LAW LIBRARY OF ANDREW S. WHITE CORNELL UNIVERSITY LIBRARY 3 1924 103 233 106 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924103233106 A TREATISE on EQUITY JURISPRUDENCE, AS ADMINISTERED IN THE UNITED STATES OF AMERICA; ADAPTED FOR ALL THE STATES, AND TO THE UNION OF LEGAL AND EQUITABLE REMEDIES UNDER THE REFORMED PROCEDURE. By JOHN NORTON POMEROY, LL.D. SECOND EDITION, BY CARTER PITKIN POMEROY and JOHN NORTON POMEROY, Jr.> or TUB SAN FRANCISCO BAK. IN THREE VOLUMES. Vol. I. SAN FRANCISCO: BANOflOFT-WHITNEY COMPANY,. IlAW Fublishebs and Law Booksellebs, 189 2. Entered according to act of Congress in the yej^r 1881, by JOHN NOETON POMEROY, In the office of the Librarian of Congress, at Washr'ngton. Entered according to act of Congress in the year 1892, by ANNIE R. POMEROY, In the office of the Librarian of Congress, at Washington. 8an Fbancibco: The Filmer-Koluns Ielectrotypb Company, tyfosbafusas and stbbs0typbr3, TO STEPHEN J. FIELD, LL.D., ONE OF THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES: NOT ONLY AS A TB1B0TE TO HIS EMINENT PUBLIC SERVICES IN THE MOST AUOnST TEIBtJNAL OF ANT MODERN NATION, BUT ALSO AS AN ACKNOWL- EDGMENT OP HIS PRIVATE TEIENDSHIP, AND OP THE author's ESTEEM AND RESPECT, THIS WORK IS DEDICATED. PEEFACE TO THE SECOND EDITION. The author of this treatise departed this life so soon after the publication of the first edition, that he had no opportunity to do anything in the way of preparation for this edition.. By a testamentary request, he charged that work upon the present editors. This duty the editors, with filial reverence, have per- formed to the best of their ability, and now subrnit the result of their labors to the profession. In the preparation of this edition, a careful examination has been made of all the cases — English and American — which have appeared since the publication of the first edition, involv- ing matters falling within the scope of this work. These cases are upwards of eight thousand in number. In gathering this large mass of material, the editors have not, in any instance, made use of the often fallible assistance of the digests, but have gone directly to the reports. A considerable proportion of the material thus gathered has, of course, been discarded, as in- volving merely the enunciation of familiar doctrines; but the nearly universal desire among members of the legal profession to be guided by the latest authority has generally been re- spected. While it has not been found necessary or desirable to add to or alter the text, except for the purpose of correcting a few typographical errors, the editors have not confined their labors to the mere enumeration of recent decisions. Without attempting to enlarge the general scope of the work, whose contents are so well known, it has been found possible to give VI PREFACE TO .THE SECOND FDITION. a treatment considerably more in detail of many important topics. It is also hoped that the insertion of numerous cross- references will prove to be a material, convenience in the use of the book. In order that those who ■ make use of this edition mq,y be able to distinguish between the work of the author and that of the present editors, all the new matter inserted in this edition has been inclosed within brackets. In submitting this result of their labors to the legal profes- sion, the editors desire to express the hope that they will be found to have done nothing to impair the original character of their father's work, or to lower the high place which it has found in the estimation of the Bench and Bar. C. P. P. J. N. P., Jr. San Fkancisco, April, 1S92. PREFACE. The author herewith submits to the legal profession a text- book which treats, in a somewhat comprehensive manner, of the equitable jurisdiction as it is now held by the national and state tribunals, and of the equitable jurisprudence as it is now administered by the courts of the United States, and of all those states in which the principles of equity, originally formu- lated by the English Court of Chancery, have been adopted and incorporated into the municipal law. It is proper that he should, in a few words, explain the motives which led to the preparation of such a work, and describe the plan which he has pursued in its composition. While the supreme court of judicature act was pending be- fore the British Parliament, there appeared in the Saturday Review a series of articles written by one of the ablest lawyers and most profound thinkers of the English bar, which pointed out a grave danger threatening the jurisprudence of England in the plan, as then proposed, for combining legal and equi- table rights and remedies in the same action, and administer- ing them by the same tribunal, Th'e writer showed, as the inevitable result of the system, that equitable principles and doctrines would gradually be suppressed and disappear in the administration of justice; that they would gradually be dis- placed and supplanted by the more inflexible and arbitrary rules of the law; until in time equity would practically cease VIU PREFACE. to be a distinctive branch of the national jurisprudence.' The reasoning of these remarkable articles was so cogent and con- vincing that it produced a deep impression, not only upon the English bench and bar, but even upon Parliament, and it ulti- mately led to an amendment of the act by the addition of the following clause, which has undoubtedly averted the antici- pated danger: " Generally, in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail." I have referred to this incident simply for the purpose of in- dicating its application, under like circumstances, to the law of our own country. The arguments of the English essayist were purely a priori, and were confined to the judicial system of England. They would apply with equal force to a large por- tion of the American states; and the correctness of his conclu- sions is established by the judicial experience of those common- wealths during the past thirty years. Since the first New York Code of Practice in 1848, about one half of the states and ter- ritories have adopted the Reformed Procedure. As the central conception of this system is the abolition of all external dis- tinctions between actions at law and suits in equity, the union of legal and equitable rights and remedies in one proceeding, and the substitution of many important equitable in place of legal methods, it was confidently supposed that in progress of time the doctrines of equity would obtain a supremacy over • The reality of the danger, and the importance of the legislative enactment by which it was averted, are most unmistakably shown in the current series of English reports. Able common-law judges, taking a part in the decision of equity causes, are frequently represented as attacking, and even denouncing, equitable principles and doctrines which have for centuries been treated by the court of chancery as fundamental and elementary, — principles which have been most fruitful in lesults, and have been applied in numberless forms to the equity jurisprudence. Can there be a doubt that equity, exposed to such judicial attacks from members of the highest court, would gradually have succumbed, and finally ceased to be a distinctive part of the English municipal law ? PREFACK. IX those of the law in the administration of justice, and that the entire jurisprudence of a slate would gradually become more equitable, more informed with equitable notions. It must be confessed, I think, that the experience of the past thirty years in these states points to a directly contrary result. Every careful observer must admit that in all the states which have adopted the Reformed* Procedure there has been, to a greater or less degree, a weakening, decrease, or disregard of equitable principles in the administration of justice. I would not be mis- understood. There has not, of course, been any conscious in- tentional abrogation or rejection of equity on' the part of the courts. The tendency, however, has plainly and steadily been towards the giving an undue prominence and superiority to purely legal rules, and the ignoring, forgetting, or suppression of equitable notions. The correctness of this conclusion cannot be questioned nor doubted; the consenting testimony of able . lawyers who have practiced under both systems corroborates it; and no one can study the current series of state reports without perceiving and acknowledging its truth. In short, the principles, doctrines, and rules of equity are certainly dis- appearing from the municipal law of a large number of the states, and this deterioration will go on until it is checked either by a legislative enactment, or by a general revival of the study of equity throughout the ranks of the legal profession. I would not be understood as condemning the Reformed Pro- cedure on this account. The tendency which I have mentioned may be checked; the danger is incidental, and can easily be prevented. A brief legislative enactment, substantially the same as that added to the English Judicature Act, would ren- der the system perfect in theory, and would secure to equity the life and prominence which properly belong to it, and which should be preserved. The state of Connecticut has incorporated the clause into its recent reformatory legislation; that it should not have been added to all the Codes of Procedure is very surprising. X PREFACE. I need not dwell upon the disastrous consequences of the tendency above described, if it should go on to its final stage. Even a partial loss of equity would be a fatal injury to the juris- prudence of a state. So far as equitable rules differ from those of the law, they are confessedly more just and righteous, and their disappearance would be a long step backward in the progress of civilization. It is of vital importance, therefore, that a treatise on equity for the use of the American bar should be adapted to the ex- isting condition of jurisprudence throughout so large a part of the United States. It should be based upon, and should pre- sent in the clearest light, those principles which lie at the foundation of equity, and which are the sources of its doctrines and rules. In this respect, the plan of the present work was deliberately chosen, and has been steadily pursued, even when it has led to amplifications which might, perhaps, be regarded by some readers as unnecessary. It has been my constant en- deavor to present the great underlying principles which sustain the whole superstructure of equity, and to discuss, explain, and illustrate them in the most complete manner. Some of these principles are so comprehensive and fruitful, that one who has grasped them in their fullness of conception has already mas- tered the system of equity; all else is the mere application of these grand truths to particular circumstances. Such a treatise, designed for the American profession, if it would at all meet and satisfy the needs of the bench and bar, must also be based upon and adapted to the equitable juris- diction which is actually possessed by the state and national courts, and the equitable jurisprudence which is actually ad- ministered by them. It must recognize the existing condition, both of law and equity, the limitations upon the chancery jurisdiction resulting from varying statutes, and the altera- tions made by American legislation, institutions, and social habits. Many departments of equity, many doctrines and PEEFACB. XI modes of applying the jurisdiction which were important at an earlier day, and are perhaps still prominent in England, have become practically obsolete in this country; while others have risen in consequence, and are constantly occupying the attention of the courts. It has been my purpose and endeavor to discuss and describe the equity jurisprudence as viewed in this light, and to present the actual system which is now administered by the courts of the United States and of all the states. As an illustration, I have attempted to ascer- tain and deternline the amount of jurisdiction held by the different state tribunals, as limited and defined by statutes, and established by judicial interpretation; and have not con- fined the treatment of this subject to a mere account of the general jurisdiction possessed by the English Court of Chan- cery. It is true that the fundamental principles are the same as those which were developed through the past centuries by the English chancery; but the application of these principles, and the particular rules which have been deduced from them, have been shaped and determined by the modern American national life, and have received the impress of the American national character. It has been my design, therefore, to furnish to the legal profession a treatise which should deal with the equity jurisdiction and jurisprudence as they now are through- out the United States; with their statutory modifications and limitations, and under their different types and forms in various groups of states; and thus to prepare a work which would be useful to the bench and bar in all parts of our country. During its composition I have constantly had before me a high ideal. The difficulty in carrying out this conception has been very great; the labor which it has required has been enormous. That I may have fallen short of this ideal in all its completeness and perfection, I am only too conscious; its full realization was perhaps impossible. If the book shall be of any help to the courts and the profession in administering equitable doctrines Xll PREFACE. and rules; if it shall be of any assistance to students in dis- closing the grand principles of equity; if it shall to any extent maintain the equitable jurisprudence in its true position as a constituent part of the municipal law, — then the time and labor spent in its composition will be amply repaid. The internal plan, the system of classification and arrange- ment, the modes of treatment, and especially the reasons for departing from the order and methods which have usually been followed by text-writers, are described at large in the third, fourth, and fifth sections of the Introductory Chapter. To that chapter I would respectfully refer any reader who may at the outset desire a full explanation of these matters, which are so important to a full understanding of an author's purposes, and to a correct appreciation of his work. The book is submitted to the profession with the hope that it may be of some aid to them in their judicial and forensic duties, and may accomplish something for the promotion of justice, righteousness, and equity in the legal and business transactions and relations of society.. J. N. P. Sam Francisco, May, 1881. Hastings Colleob of the Law. TABLE OF CONTENTS. CONTENTS OF VOLUME I. INTEODUCTORT CHAPTEE. SECTION I. THE ORIGIN OF EQUITY JUEISDICTION AND JXTRISPEUDENCK. § 1. Object of this introduotion. §§ 2-9. uEquitas in the Roman law. §§ 10-42. Origin of Equity in the English law. §§ 10-13. Primitive condition of the law and the courts. §§ 14, 15. Early influence of the Eoman law. §§ 16-29. Causes which made a court of equity necessary §§ 21-23. The earliest common law actions and procedure. § 24. Statute of Edw. I. concerning new writs. §§ 25-29. Limited results of this legislation. §§ 30-42. Commencement and progress of the chancery jurisdiction. § 31. Original powers of the King's Council. § 32. Original common law jurisdiction of the chancellor. §§ 33-35. Jurisdiction of grace transferred to the chancellor: Statute 24 Edw. III. §§ 36-.39. Development of the equitable jurisdiction. § 40. Abolition of the court in England, and in many of the American States. §§ 41, 42. Equity jurisdiction in other American States. SECTION II. THE NATUKB OF EQUITY. § 43. Importance of a correct notion of Equity. §§ 44, 45. Various meanings given to the word. §§ 46, 47. True meaning as a department of our jurisprudence. §§ 4S-54, Theories of the early chancellors concerning Equity as both sup- plying and correcting the common law. §§ 55-58. Sources from which the early chancellors took their doctrines; their notions of "conscience" as a ground of their authority. §§ 59-61. Equity finally established upon a basis of settled principles. § 62. How the equitable jurisdiction is determined at the present day. §§ 63-67. Recapitulation: Nature of Equity stated in four propositions. XIV TABLE OF CONTENTS. SECTION in. THE PRESENT BELATION OF ECJ0ITT WITH THE LAW. § 68. Importance of correctly understanding these relations. § 69. Changes in the relations of Equity to the law effected partly by statute and partly by decisions. §§ 70-88. Important instances of such changes in these relations. § 70. In legal rules concerning the effect of the seal. § 71. Ditto suits on lost instruments. § 72. Ditto forfeitures and penalties. §§ 73, 74. Ditto mortgages of land. § 75. In statutes concerning express trusts. § 76. Ditto recording and doctrine of priorities. § 77. Ditto administration of decedents' estates. § 78. Ditto jurisdiction over infants. §§ 79, 80. Ditto married women's property. § 81. In statutory restrictions upon the equitable jurisdiction. §§ 82, 83. In the practical abolition of the " auxiliary " jurisdiction. §§ 84-88. In the Reformed Procedure combining legal and equitable methods. SECTION IV. THE CONSTITUENT PARTS OP EQUITT. § 89. Object of this section. §§90-91. Rights are either "primary" or "remedial;" each described. §92. Divisions of "primary" rights: viz., 1. Those concerned with personal status; 2. Those concerned with things. §§ 93-95. Two general classes of rights concerned with things: viz., "real" and "personal;" each described. §§ 96, 97. What of these kinds of rights are embraced within equity: both "primary" and "remedial." §§ 98-107. I. Equitable primary rights, kinds and classes of. § 108-1 16. II. Equitable remedial rights, kinds and classes of. § 112. General classes of equitable remedies. § 113-116. Mode of administering them. § 116. How far legal and equitable modes can be combined. § 117. Recapitulation. SECTION V. §§ 119, §§ 121-: 118. 120. 125. §§ 122, §§124, §§ 126, 121. 123. 125. 127. §128. THE PRINCIPLES OF CLASSIFICATION. Importance and difficulty of a correct classification. Different grounds which might be taken for a classification. Ordinary mode of classification according to the nature of the jurisdiction. In the three divisions of exclusive, concurrent, and auxiliary. Different modes of carrying out this system by various writers. Fundamental objections to this system of classification. „ The true principles of classification in the present condition of equity. Place and order of arrangement adopted in this treatise. TABLE OF CONTENTS. XV PART FIRST. THE NATURE AND EXTENT OF EQUITY JURISDICTION. CHAPTEE FIRST. THE GENERAL DOCTRINE OONCERNINa THE JURISDICTION. SECTION I. FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 129. Equity jurisdiction defined. § 130. Requisites in order that a case may come within it § 131. Distinction between the existence of equity jurisdiction, and the proper exercise of it. § 132. Inadequacy of legal remedies, how far the test. § 133. Equity jurisdiction depends on two facts — the existence of equitable interests, and the inadequacy of legal remedies. §§ 134, 135. How far the jurisdiction is in personam, how far in rem. § 136. Equity jurisdiction threefold — exclusive, concurrent, and auxil iary. §§ 137, 138. What embraced in the exclusive jurisdiction. §§ 139, 140. What embraced in the concurrent jurisdiction. § 141. Cases may fall under both. §§ 142-144. What embraced in the auxiliary jurisdiction. § 145. Order of subjects. SECTION II. THE EXCLUSIVE JURISDICTION. § 146. Equitable primary rights and "equities " defined. §§ 147-149. Equitable estates described. § 150. Certain distinctive equitable doctrines forming part of equity jurisprudence. §§ 151-155. Trusts described. § 156. Executors and administrators. §§ 157, 158. Fiduciary relations. §§ 159, 160. Married women's separate property. § 161. Estates arising from equitable conversion. §§ 162, 163. Mortgages of land. § 164. Mortgages of personal property. §§ 165-167. Equitable liens. §§ 168, 169. Estates arising from assignment of things in action, possibilities, etc., and from an equitable assignment of a fund. §§ 170-172. Exclusive equitable remedies described. SECTION III. THE CONCURRENT JURISDICTION. §§ 173, 174. What embraced in the concurrent jurisdiction; inadequacy of legal remedies defined. XVI TABLE OF CONTENTS. § 175. The remedies given must be legal in their nature. §§ 176-179. General principle; when no concurrent jurisdiction exists. £§ 177, 178. Examples of such cases. § 179. Where a law court has first taken cognizance of a case. § 180. General principle; where concurrent jurisdiction does exist. § 181. Rule ^rs<. Where equity has jurisdiction for any partial pur- pose, it may retain the cause for all purposes. § 182. Rule second. Where equity originally had jurisdiction, and the. law subsequently acquires jurisdiction over the same matter, the equity jurisdiction still continues. § 183. Effect of the reformed procedure upon the equity jurisdiction. §§ 184-189. Enumeration of the principal matters over which the concur- rent jurisdiction ordinarily extends. § 185. Suits for the recovery of lands and of chattels. §§ 186-188. Suits for pecuniary recoveries. § 188. Suits arising from accident, mistake, or fraud. § 189. Other special cases. SECTION rv., THE AUXILIAKY JURISDICTION. § 190. The auxiliary jurisdiction defined. §§ 191-209. Of discovery. § 191. Definition and kinds of discovery. § 192. Origin of, in English and in Roman law. §§ 193, 194. Effect of modern legislation; how far discovery proper has beeik abolished by statutes. § 195. General doctrine; when discovery will or will not be enforced. §§ 196, 197. I. What judicial proceedings, in what courts, will be aided by^ discovery in equity. §§ 198-200. II. The parties; their situation and relations to each other, in. order that a discovery may be granted. § 198. The plaintiff. § 199. The defendant. § 200. A bona Jide purchaser. §§ 201-207. III. The nature, subject-matter, and objects of the discovery itself; of wh^t the plaintiff may compel discovery, and the; defendant must make discovery. § 201. General doctrine; of what facts discovery will be compelled. § 202. Of what kinds of facts discovery will not be compelled. § 203. What is privileged from discovery. § 204. The manner in which the defendant must make discovery. §§ 205-207. Production and inspection of documents. § 208. IV. When, how far, and for whom may the answer in the dis.- covery suit be used as evidence. § 209. How far the foregoing rules have been altered by statute. §§ 210- 215. Of the examination of witnesses. § 210. This branch of the jurisdiction described. §§ 211, 212. I. Suit to perpetuate testimony. § 212. Statutory modes substituted. TABLE OF CONTENTS. XVll §§ 213-215. II. Suits to take the testimony of witnesses de bene esse, and oi witnesses in a foreign country. § 215. Statutory modes substituted. CHAPTER SECOND. GENERAL KULES FOR THE GOVERNMENT OP THE JURISDICTION. SECTION I. INADEQUACY Or LEGAL REMEDIES. § 216. Questions to be examined stated. § 217. Inadequacy of legal remedies is the very foundation of the con- current jurisdiction. § 218. Is only the occasion for the rightful exercise of the exclusive ju; risdiction. § 219. Operation of the principle upon the exclusive jurisdiction; does- not affect the first branch, which deals with equitable estates and interests. §§220,221. Is confined to the second branch, which deals with equitable- remedies. § 222. Summary of the equity jurisdiction as affected by the inade- quacy of remedies. SECTION n. DISCOVERT AS A SOURCE OB OCCASION OP JURISDICTION. § 223. General doctrine as to discovery as a source of concurrent and: an occasion for exclusive jurisdiction, i 224, 225. Early English rule. § 226. Present English rule, i 227-229. Broad rule established in some American States. § 229. The limitations of this rule. § 230. The true extent and meaning of this rule examined. SECTION III. THE DOCTRINE THAT JURISDICTION EXISTING OVER SOME PORTION OR INCIDENT EXTENDS TO AND EMBRACES THE WHOLE SUBJECT-MATTER OR CONTROVERSY. § 231. Tlie doctrine as applied in the concurrent jurisdiction. § 232. As applied in the exclusive jurisdiction. § 233. Limitations on the doctrine. §§ 234-241. Illustrations of the doctrine. § 234. In cases of discovery. § 235. In cases of administration. § 236. In cases of injunction. § 237. In cases of waste, nuisance, damages. 1 Eq. Juk. — b JCVlll TABLE OF CONTENTS. |§ 238-241. In various other cases. § 242. Effect of the reformed procedure on the doctrine. SECTION IV. THE DOCTKINE THAT JtTEISDICTlON EXISTS IN OKDER TO PREVENT A MULTI- PLICITY OF SUITS. § 243. The doctrine applies to both kinds of jurisdiction. § 244. The questions to be examined, stated. § 245. Four possible classes of cases to which the doctrine may apply. §§ 246-248. " Bills of peace," rationale of, and examples. § 248. BiUs ' ' to quiet title " explained. §§ 249-251. Rationale of the doctrine examined on principle. §§ 252-261. Examination of the doctrine upon judicial authority. § 252. First class. §§ 253, 254. Second class. §§ 255-261. Third and fourth classes. § 256. Community of interest; "Fisheries case;" " Case of the Duties." § 257. Where proprietors of distinct tracts of land have been injured by one wrong. § 258. Where proprietors of distinct tracts of land have been relieved from illegal local assessments. §§ 259, 260. General rule as to relief from illegal taxes, assessments, and public burdens, on the ground of multiplicity of suits. § 261. Other special cases of the third and fourth classes. §§ 262-266. Examination of opposing decisions; conclusions reached by such decisions. § 263. In the first and second classes. §§ 264-266. In the third and fourth classes. §§ 265, 266. In oases of illegal taxes and other public burdens. §§ 267-270. Conclusions derived from the entire discussion. §§ 268-270. Ditto as to the third and fourth classes. §§ 271-274. Enumeration of cases in which the jurisdiction to avoid a mul- tipUcity of suits has been exercised. § 271. Cases of the first class. § 272. Cases of the second class. § 273. Cases of the third class. § 274. Cases of the fourth class. § 275. The jurisdiction based upon statute. SECTION V. THE DOCTEINE THAT THE JUEISDICTION ONCE EXISTING IS NOT LOST BECAUSE THE COURTS OF LAW HAVE SUBSEQUENTLY ACQUIRED A LIKE AUTHORITY. § 276. The doctrine is applied to both kinds of jurisdiction. §§ 277, 278. Where the jurisdiction at law has been enlarged entirely by the action of the law courts. § 278. Ditto, examples. TABLE OF CONTENTS. XIX ] 279-281. Where the jurisdiction at law has been enlarged by statute. § 280. Ditto, examples. § 281. Where such statute destroys the previous equity jurisdiction. CHAPTER THIRD. THE JURISDICTION AS HELD BY THE COURTS OP THE SEVERAL STATES, AND BY THE COURTS OF THE UNITED STATES. SECTION I. ABSTRACT OP LEOISLATIVB PROVISIONS. § 282. Source of jurisdiction, both legal and equitable, of the courts in the American States. § 283. Division of the States into four classes with respect to the amount of equity jurisdiction given to their courts. § 284. The first class of States. § 285, The second class of States. § 286. The third class of States. § 287. The fourth class of States. § 288. Summary of conclusions. SECTION II. THE JUKISDICTION AS ESTABLISHED BY JUDICIAL INTEBPKETATIOir. § 289. The questions to be examined, stated. § 290. Diversity of statutory interpretation in dififerent States. §§ 291-298. United States courts, equity jurisdiction of. §292. First principle: Uniformity of jurisdiction. § 293. Second principle: Identity of jurisdiction. § 294. Third principle: Extent of the jurisdiction. § 295. Fourth principle: Inadequacy of legal remedies. §§ 296, 297. ninstrations. § 297. Ditto; effect of State laws on the subject-matter of the juris- diction. § 298. Territorial limitations on the jurisdiction. §§ 299-341. States in which only a special and partial jurisdiction has been given by statute. §§ 299-310. New Hampshire. §§ 311-321. Massachusetts. §§ 322-337. Maine. §§ 338-341. Pennsylvania. §§ 342-352. The other States in which a general jurisdiction has been given. § 342. What States are included in this division. § 343. Questions to be examined, stated. § 344. Interpretation of statute limiting the jurisdiction to cases for which the legal remedy is inadequate. § 345. General extent of the statutory jurisdiction; the States arranged in the foot-note. XX TABLE OP CONTENTS. §§ 346-352. How far this equity jurisdiction extends to the administration of decedents' estates. § 347. Probate courts, jurisdiction and powers of. § 348. Class first: The ordinary equity jurisdiction over administra- tions expressly abolished. § 349. Class second: Such jurisdiction practically abrogated or obso- lete. § 350. Class third: Such jurisdiction still existing and actually con- current. §§ 351, 352. Special subjects of equity jurisdiction connected with or grow- ing out of administrations. §§ 353-358. States which have adopted the reformed, system of procedure. § 354. General effect of this procedure on the equity jurisdiction. §§ 355-358. Its particular effects upon equity. § 356. On certain equitable interests and rights. § 357. On certain equitable remedies. § 358. On the doctrine as to inadequacy of legal remedies. PART SECOND. THE MAXIMS AKD GENERAL PRINCIPLES OF EQUITY JURIS- PRUDENCE, AND THE EVENTS WHICH ARE OCCASIONS OF EQUITABLE PRIMARY OR REMEDIAL RIGHTS. PEELIMINAEY SECTION. § 359. Objects, questions, and divisions, stated. § 360. Equitable principles, described. § 361. Equitable doctrines, described. § 362. Occasions of equitable rights. CHAPTER FIRST. THE FUNDAMENTAL PKINCIPLES OB MAXIMS OF EQUITY. SECTION I. EQUITY BEGAEDS THAT AS DONE WHICH OUGHT TO BE DONE. § 363. List of equitable maxims. § 364. Equity regards as done what ought to be done; its importance. 5 365-377. Its true meaning, and its effects upon equitable doctrines. § 366-369. la the source of equitable property and estates. § 366. Sources of legal property or titles described. § 367. Effect of an executory contract at law. § 368. Effect of au executory contract in equity. § 369. Sources of all kinds of equitable property described. § 370-376. The equitable estates which are derived from this principle. § 371. Conversion. TABLE OF CONTENTS. XXI §372. §373. §374. §375. §376. §377. Contracts for the purchase and sale of lands. Assignments of possibilities; sale of chattels to b^ acquired ia the future; assignments of things in action; equitable assign- ments of moneys; and equitable liens. Express trusts. Trusts arising by operation of .law. Mortgage; equity of redemption. Conclusions. SECTION II. EQUITY LOOKS TO THE INTENT RATHER IHAN TO THB FORM. § 378. Its meaning and effect. § 379. Legal requirements of mere form. § 380-3S4. Is the source of equitable doctrines. § 380. Of equitable property. § 381. Of penalties and forfeitures. § 382. Of mortgages. § 38.3. Effect of the seal. § 384. Other special instances. SECTION III. HE WHO SEEKS EQUITT MUST DO EQUITY. § 385. General meaning of the principle. i 386, 387. In what cases appxicable. § 388. Is a general rule regulating the administration of reliefs. \ 389-393. Illustrations of the principle. § 389. The wife's equity. § 390. Equitable estoppel. § 391. Relief against usury. j 392, 393. Other special instances; ) 394-396. Is also the source of certain equitable doctrines. § 395. Of election. § 396. Of marshaling securities. SECTION IV. HE WHO COMES INTO EQUITY MUST COME WITH CLEAN HANDS, § 397. General meaning of this principle. § 398. Is based upon conscience and good faith. § 399. Limitations upon it. j 400-403. Illustrations of its application. § 400. In specific performance. § 401. In cases of fraud. § 402. In cases of illegality. § 403. Limitation in cases of fraud and illegality; parties not in paru delicto, % 404. Conclusion. XXH TABLE OF CONTENTS. SECTION V. EQUALITY IS EQUITY. § 405. Its general meaning. §§ 406-411. Its effects upouoertain equitable doctrines, §§ 406, 407. Of pro rata distribution and contribution. § 408. Ownership in common. § 409. Joint indebtedness; liability of estate of deceased joint debtor. § 410. Settlement of insolvent estates; marshaling of assets. § 411. Abatement of legacies; apportionment of liens; appointment under trust powers; contribution among co-sureties, and co- contractors. § 412. Conclusion. SECTION VI. WHERE THEEE ARE EQUAL EQUITIES, .THE FIKST IN OBDEB OP TIMB SHALL PEEVAiL. § 413. Its application. § 414. Its true meaning; opinion in Kice v. Bice. § 415. Its effect upon equitable doctrines. SECTION vn. WHERE THEEE 13 EQUAL EQUITY THE LAW MUST PEEVAH* § 416. Its application. § 417. Its meaning and effects. SECTION VIII. EQUITY AIDS THE VIGILANT, NOT THOSE WHO SLUMBER ON THEIR RIGHTS. § 418. Its meaning; is a rule controlling the administration of remedies. § 419. Its application and effects. SECTION IX. EQUITY IMPUTES AN INTENTION TO PULPILL AN OBLIGATION. § 420. Its meaning and application. i 421, 422. Is the source of certain equitable doctrines. § 421. Performance of covenants. § 422. Trust resulting from acta of a trustee. SECTION X. EQUITY WILL NOT SUFFER A ^ATJONG WITHOUT A REMEDY. § 423. Its general meaning and effects. § 424. Limitations upon it. TABLE OF CONTENTS. XXllli 1425,426. §425. §426. §427. SECTION XI. EQUITY FOLLOWS THE LAW. Two-fold meaning of the law. First, in obeying the law: Heard v. Stamford, per Lord Chan- cellor Talbot. Second, in applying certain legal rules to equitable estates: Cow- per V. Cowper, per Sir J. Jekyll, M. E. Operates within very narrow limits. SECTION XII. EQUITY ACTS IN PEBSONAM AND NOT IN REM. § 428. Origin and original meaning of this principle. § 429. In what sense equitable remedies do operate in rem. \ 430, 431. The principle that courts of .equity act upon the conscience of a party, explained. § 431. The same, per Lord Westbury. CHAPTER SECOND. OEBTAIN DISTINOTIVE DOCTRINES OF EQUITY JURISPRUDENCB . SECTION I. CONCERNING PENALTIES AND FOBPEITUBES. § 432. Questions stated, i 433-447. Penalties; equitable relief against. § 433. General ground and mode of interference. § 434. Form of relief; when given at law. i 435-436. What are penalties. § 436. To secure the payment of money alone. I 437-445. Stipulations not penalties. § 437. Stipulations iu the alternative. § 438. Ditto for the reduction of an existing debt upon prompt payments § 439. Ditto for accelerating payment of an existing debt, j 440-445. Ditto for "liquidated damages.'' §440. " Liquidated damages " described iu general. , I 441-445. Rules determining between liquidated damages and penalties. § 441. (1) Payment of a smaller sum secured by a larger. § 442. (2) Agreement for the performance or nou-peiformance of a- single act. § 443. (3) Agreement for the performance or non-performance of sev- eral acts of different degrees of importance. § 444. (4) The party liable in the same amount for a partial and for a complete default. § 445. (5) Stipulation to pay a fixed sum on default in one of several. acts. ' 3. XXIV TABLE OF CONTENTS. §446. §447. 5448^60. H49-458. §450. §451. §452. H53,454. §455. §456. §457. §458. 5459,460. Specific performance of a contract enforced, although a penalty is attached; party can not elect to pay the penalty and not perform. Otherwise as to stipulation for liquidated damages. Of forfeitures. When equity will relieve against forfeitures. General ground and extent of such relief. Kelief when forfeiture is occasioned by accident, fraud, mistake, surprise, or ignorance. No relief when forfeiture is occasioned by negligence, or is will- ful. Relief against forfeitures arising from covenants ip leases. Ditto, from contracts for the sale of lands. Ditto, from other special contracts. Ditto, of shares of stock for non-payment of calls. Ditto, when created by statute. Equity will not enforce a forfeiture. SECTION II. CONCERNING ELEOTION. § 461. Questions stated. ) 462-465. Rationale of the doctrine discussed. § ib'i. In the Roman law. § 464. Foundation, the presumed intention of the donor. § 465. The true foundation is the principle, he who seeks equity mnat do equity. 5 466-470. Meaning, extent, and effects of the doctrine. § 466. Election in conformity with instrument of donation. 1 467, 468. Election in opposition thereto; rules; compensation. § 469. No election unless compensation can be made. § 470. Applies to all instruments of donation §471-505. Applications; classes of cases in which the necessity for an elec- tion does or does not arise. § 472. Fundamental rule; what creates the necessity for an election. § 473-475. Subordinate rules of interpretation. § 473, 474. Donor has only a partial interest; evidence of intention not ad- missible; a general gift raises no election. § 475. Other special rules of interpretation. §476-486. First class: Donor gives property wholly another's. § 477. Ordinary case, gift of specific property. § 478-480. Under appointments in pursuance of powers. § 481-486. Where testator has attempted to give property by a will which is ineffectual. § 482. Infancy or covertiure of testator. § 483. Will valid as to personal, invalid as to real estate. § 484. WiU invalid as to property in another State or country. § 485. Will devising after acquired lands. § 486. WiU of copy-holds. TABLE OP CONTENTS. XXV §§ 487-505. §488. §489. §490. §491. §§492-502. §493. §494. §§495-502. §496. §497. §499. §500. §501. §502. §§ 503-505. §506. §§507-510. §§511,512. §513. §§514,515. §§516,517. §§518,519. Second class: Donor gives property in which he has a partial in- terest. The general doctrine. Donor owns only an undivided share. Donor owns only a future interest. Devise of lands incumbered. Dower; widow's election between dower and gifts by her hus- band's will. The general rule. Contrary legislation in various States. Classes of testamentary disposition . Express declaration. Devise of a part of testator's land to the widow, and the rest to others. Devise to the widow for life. Devise in trust to sell, or with a power of sale. Gift of an annuity, etc., to widow, charged uppu the lands de- vised to others. Devise with express power of occupying, leasing, etc. Devise to widow and others in equal shares. Election in devises of community property. The remaining questions stated. Who may elect; married women; infants; lunatics. Bights and privileges of persons bound to elect. Time of election; State statutes. Mode of election, express or implied; conduct amounting to aa election. ES'ects of an election. Equitable jurisdiction in matters of election. SECTION III. CONCERNING SATISrAOTION. § 520. Questions stated. § 521. Definition, i 522-525. Various conditions of fact. § 523. Rationale of the doctrine. § 524. Ademption and satisfaction. § 525. Extrinsic evidence. § 526. Divisions of the subject. ) 527-543. I. Satisfaction of debts by legacies, j 527-540. Legacy by a debtor to his creditor. i 528-536. Various circumstances which prevent the presumption of satis- faction. § 537. Direction in will to pay debts. § 538. Legacy in pursuance of agreement, or in express payment § 539. Debt owing to a child or wife. § 540. Debt to child satisfied by an advancement, i 541, 542. Legacy by a creditor to his debtor. XXVI TABLE OP CONTENTS. §543. §§ 544-552. §545. §§ 546-548. §549. §§ 550, 551. §552. §§ 553-564. §554. §555. §556. §§ 557-560. §559. §560. §561. §562. §§ 563, 564. §§ 565-568. §§ 566, 567. §568. §§ 569-577. §570. §§ 571-575. §572. §573. §574. §575. §576. §577. Satisfaction of debt, how enforced. II. Satisfaction of legacies by subsequent legacies. Rule first: Specific legacies. Rule second: Legacies of quantity by different instruments. Rule third : Legacies of equal amounts by the same instrument. Rule fourth: Legacies of unequal amounts by the same instru- ment. Extrinsic evidence. III. Satisfaction of legacies by portions and advancements. Presumption of satisfaction. Subsequent gift less than the legacy. Person in loco parentis. Circumstances which do or do not prevent the presumption. Payment to husband of a female legatee. What prevents the presumption. Effect of a codicil. Satisfaction of legacies between strangers. Satisfaction when not presumed but expressed. IV. Satisfaction of portions by subsequent legacies, or other similar provisions. Differences between the gifts which do not, and which do, defeat the presumption. Election by the beneficiary. Admissibility and effect of extrinsic evidence. General principles discussed and explained. When the subsequent benefit is given by a writing. The writing expresslj' states the donor's intention. The writing silent as to donor's intention, and no presumption arises from it. The writing silent as to donor's intention, but a presumption of satisfaction arises from it. Cases to which the foregoing rules apply. When the subsequent benefit is given verbally. Amount of evidence. CONTENTS OF VOLUME II. SECTION IV. CONCERNING PERrOBMANCE. § 578. Rationale. § 579. Definition. J 580-583. I. Covenant to purchase and settle or convey. § 580. General rule: Leolimere v. Earl of Carlisle. § 581. Forms of covenant to which the rule applies § 582. Special rules. § 583. Such covenant creates no lien. S 584-586. II. Covenant to bequeath personal property. § 584. General rule: Blandy v. Widmore; Goldsmid v. Goldsmid. § 585. Limitations on the rule; covenant must not create a debt in life- time of deceased. §586. A legacy not a performance; distinction between "perform- ance" and " satisfaction of legacy." § 587. Presumption of performance by trustees, i 588-590. Meritorious or imperfect consideration; theory of. i 589, 590. Defective execution of powers, relief of. § 590. Requisites for such relief; a partial execution necessary. SECTION V. COIIOERNINO NOTICE. § 591. Questions stated. Le Neve v. Le Neve. § 592. Knowledge and notice distinguished. § 593. Kinds; actual and coiujtructive. § 594. Definition. \ 595-603. Actual notice. § 596. When shown by indirect evidence. § 597. What constitutes; rumors; putting on inquiry, eto. i 598-602. Special rules concerning actual notice. § 603. Effect of knowledge instead of notice, i 604-609. Constructive notice in general. § 605. Jones v. Smith, opinion of V. C. Wigram. i 606, 607. When the presumption is rebuttable; due inquiry. § 608. When it is conclusive. § 609. Species of constructive notice. XXVI 11 TABLE OF CONTENTS. §§ 610-613. 1. By extraaeous facts; acta of fraud, negligence, or mistakei general rule as to putting on inquiry; visible objects, etc. §§ 614-625. 2. By possession or tenancy. §§ 614, 615. General rules, English and American §§ 616-618. Extent and effect of the notice. §§ 619-622. Nature and time of the possession. §§ 623, 624. Whether the presumption is rebuttable or not. § 625. Possession by a tenant or lessee. §§ 626-631. 3. By recitals or references in instruments of title. § 626. General rules. §§ 627-631. Nature and extent of the notice; limitations; instances, etc §§ 632-640. 4. By Us pendens. § 632. Rationale: Bellamy v. Sabine. §§ 633, 634. General rules; requisites. §§ 635, 636. To what kind of suits the rule applies. §§ 637, 638. What persons are affected. §§ 639, 640. Statutory notice of lis pendens. §§ 641-643. 5. By judgments. §§ 644-665. 6. By recording or registration of instruments. §§ 645, 646. (1) The statutory system; abstract of statutes. §§ 647-649. (2) General theory, scope, and object of the legislation. §§ 650-654. (3) Requisites of the record in order that it may be a notice. § 655. (4) Of what the record is a notice. §§ 656-658. (5) To whom the record is a notice. § 657. Not to prior parties. § 658. To subsequent parties holding under the same source of title; effect of a break in the record. §§ 659, 660. (6) Effect of other kinds of notice in the absence of a record. §§ 661-665. (7) What kinds of notice will produce this "effect. § 662. English rule. §§ 663, 664. Conflicting American rules; actual or constructive notice, § 665. True rationale yf notice in place of a record. §§ 666-676. 7. Notice between pi-incipal and agent. §§ 666-669. Scope and applications. §§ 670-675. Requisites of the notice. § 670. (1) Notice must be received by agent during bis actual employ, ment. §§ 671, 672. (2) And in the same transaction; when in a prior transaction. § 673. (3) Information must be material; presumption that it was com- municated to the principal. §§ 674, 675. Exceptions: Agent's own fraud. § 676. True raiionale of this rule. SECTION VI. CONCERNING PEIOKITIES. § 677. Questions stated. ) 678-692. First. The fundamental principles. \ 679-681. I. Estates and interests to which the doctrine applies. § 682. II. Equitable doctrine of priority, in generdl. TABLE OP CONTENTS. XXIX 5 683-692. III. Superior and equal equities. § 683. When equities are equal. I 684-692. Superior equities defined and described. § 685. 1. From their intrinsic nature. 5 686, 687. 2. From the efifects of fraud and negligence. 5 688-692. 3. From the effects of notice. § 688. General rules and illustrations. § 689. Notice of a prior covenant. ] 690-692. Time of giving notice, and of what it consists. I 693-734. Second. Applications of these principles. 5 693-715. Assignments of things in action. § 693. Dearie v. Hall. 3 694-696. I. Notice by the assignee. § 694. Notice to debtor not necessary as between assignor and assignee. i 695-697. English rule, notice to debtor necessary to determine the pri- ority among successive assignees. 5 698-702. II. Diligence of the assignee. § 698. General rules: Judson v. Corcoran. I 699-701. Assignment of stock as between assignee and assignor, and the company, judgment creditors of assignor, and subsequent pur- chasers. § 702. Notice to the debtor necessary to prevent his subsequent acts. S 703-715. III. Assignments of things in action subject to equities. 5 704-706. 1. Equities in favor of the debtor. § 704. General rule: assignments of mortgages; kinds of defenses. I 705, 706. Provisions in codes of procedure. S 707-713. 2. Equities between successive assignors and assignees. § 707. Conflicting decisions; mode of reconciling, i 708, 709. General rule: assignment subject to latent equities; illustrations. 5 710, 711. When the rule does not apply; effect of estoppel; true limits of the estoppel as applied to such assignments. § 712. Subsequent assignee obtaining the legal title protected as a bona fide purchaser. § 713. Successive assignments by same assignor to different assignees. ] 714, 715. 3. Equities in favor of third persons. § 714. General rule: assignments subject to such equities. § 715. Contrary rule: assignments free from all latent equities. 5 716-732. Equitable estates, mortgages, liens, and other interests. § 717. Doctrine of priorities modified by recording acts. ! 718, 719. I. Priority of time among equal equities. § 719. Illustrations: simultaneous mortgages, substituted liens, etc. i 720-726. 11. One equity intrinsically the superior. § 720. Prior general and subsequent specific lien. I 721, 722. Prior unrecorded mortgage and subsequent docketed judgment. § 723. Same, where judgment creditor had notice. § 724. Prior unrecorded mortgage and purchase at executio^j sale under a subsequent judgment. § 725. Purchase money mortgages. § 726. Other illustrations. i 727-729. in. A subsequent equity protected by obtaining the legal title, § 728. Legal estate obtained from a trustee. XXX TABLE OF CONTENTS. § 729. Legal estate obtained after notice of prior equity. § 730. rV. Notice of existing equities. §§ 731, 732. V. Effect of fraud or negligence upon priorities. §§ 733, 734. Assignments of mortgages, rights of priority depending upon them. SECTION VII. CONCERNING BONA FIDE PUBCHASE FOB A VALUABLE CONSIDEBATION AND WITHOUT NOTICE. §735. §736. i 737-744. §738. §739. i 740, 741. I 742, 743. i 745-762. i 746-751. §747. i 748, 749. i 750, 751. S 752-761. §753. §754. §755. §756. I 757-761. §758. §759. §760. §761. §762. § 763-778. §764. §765. 5 766-774. §767. § 768. §769. §770. § 771-773. General meaning and scope of the doctrine. General effect of the recording acts. First. Rationale of the doctrine. Its purely equitable origin, nature, and operation. It is not a rule of property or of title. General extent and limits; kinds of estates protected. Phillips V. Phillips; formula of Lord Westbury. Second, What constitutes a honajide purchase. I. The valuable consideration. 1. What is a valuable consideration; illustrations. Antecedent debts, securing or satisfying; giving time, etc. 2. Payment; effect of part payment; giving security. II. Absence of notice. 1. Effects of notice in general. Second purchase without notice from first purchaser with; alau second purchaser with from first purchaser v)ithout notice. 2. Time of giving notice; English and American rules. Effect of notice to a bona fide purchaser of an equitable interest before he obtains a deed of the legal estate. 3. Keoording in connection with notice. Interest under a prior unrecorded instrument. Requisites to protection from the first record by a subsequent purchaser. Purchaser in good faith with apparent record title from a grantor charged with notice of a prior unrecorded conveyance. Break in the record title; when purchaser is still charged with notice of a prior instrument. III. Good faith. Third. Effects of a bona fide purchase as a defense. I. Suits by holder of legal estate under the auxiliary jurisdiction of equity, discovery, etc. Same: exceptions and limitations. II. Suits by holder of an equitable estate or interest against a purchaser of the legal estate. Legal estate acquired by tlie original purchase. Purchaser first of an equitable interest, subsequently acquires the legal estate; " tabula in naufragio." Extent and limits of this rule. Purchaser acquires the legal estate from a trustee. This rule as applied in the United States. TABLE OF CONTENTS. XXXI § 774. Other instances; purcnase at execution sale; purchase of things in action. 1775-778. III. Suits by holders of an "equity." § 776. For relief against accident or mistake, i 777, 778. For relief from fraud, upon creditors, or between parties, i 779-783. Fourth. Affirmative relief to a bona fide purchaser. § 779. General rule, i 780-782. Illustrations. § 783. Removing a cloud from title. I 784, 785. Fifth. Mode and form of the defense. § 784. The pleadings. § 785. Necessary allegations and proofs. SECTION vm. CONCERNINO MEKGEB, § 786. Origin and nature of the doctrine. I 787, 788. First. Merger of estates. § 787. I. The legal doctrine. § 788. II. The equitable doctrine, i 789-800. Second. Merger of charges. § 790. I. The owner of the property becomes entitled to the charge. § 791. Same: Intention prevents a merger. § 792. Time and mode of expressing the intention. § 793. Conveyance to the mortgagee; assignment to the mortgagor or to his grantee. § 794. Merger never prevented when fraud or wrong would result. § 795. Life tenant becomes entitled to tile charge. § 796. II. The owner of the land pays off a charge upon it. § 797. Owner in fee personally liable for the debt pays oflF a charge. § 798. Owner who is not liable for the debt pays off a charge. § 799. Life tenant pays off a charge. § 800. Priorities affected by merger. SECTION IX. CONCERNING EQUITABLE ESTOPPEL. § 801. Nature of the rights created by estoppel. § 802. Origin of equitable estoppel. § 803. How far fraud is essential in equitable estoppels. § 804. Definition. § 805. Essential elements constituting the estoppel. § 806. Theory that a fraudulent intent is essential. § 807. Fraudulent intent necessary in an estoppel affecting the legal title to land. 808-812. Requisites further illustrated. § 808. The conduct of the party estopped. § 809. Knowledge of the truth by the party estopped. •^ 810. Ignorance of the truth by the other party. § 811. Intention by the party who is estopped. XXXll TABLE OP CONTENTS. § 812. Tne conduct must be relied upon, and be an inducement for the other party to act. § 813. Operation and extent of the estoppel. § 814. As applied to married women. § 815. As applied to infants. i 816-821. Important applications in equity. § 816. Acquiescence. § 817. Same: as preventing remedies. § 818. Same: as an estoppel to rights of property and contract. § 819. As applied to corporations and stockholders, § 820. Other instances of acquiescence. § 821. Owner estopped from asserting his legal title to land. CHAPTER THIED. OEETAIN PACTS AKD EVENTS 'WHICH AEE THE OOOASIONS OF EQUlTABJt pRTMATtY OR EEMEDIAl EIGHTS. § 822. Introductory paragraph. §823. §824. § 825. i 826-829. §826. §827. §828. §829. i 830-837. §831. §832. §833. §834. §835. §836. §837. SECTION I, ACCIDENT. Definition. Eaiionale of the jurisdiction. General limitations on the jurisdiction. Instances in which the jurisdiction does not exist. Non-performance of contracts. Supplying lost or destroyed records. Other special instances. Parties against whom the jurisdiction is not exercised. Particular instances of the jurisdiction. 1. Suits on lost instruments. Same: instruments not under seal. 2. Accidental forfeitures. 3. Defective execution of powers. Powers held in trust will be enforced. 4. Kelief against judgments at law. 5. Other special instances. SECTION n. § 838. Origin and purpose of this jurisdiction. §839. I. Definition. i 840-856. II. Various kinds of mistakes which furnish an occasion foi relief. , i 841-851. First. Mistakes of law. § 842. The general rule and its limitations. § 843. Mistake as to the legal import or effect of a transaction. . i 844-851. Particular instances in which relief will or will not be granted TABLE OF CONTENTS. XXXlll §845. §846. §847. §848. §849. §850. §851. i 852-856. §853. §854. §855. §856. 1857-867., §858. §859. §860. §861. §862. §863. i 864-867. §865. §877. §§ 8G8-871. §868. §869. §870. §871. Reformation of an instrument on account of a mistake of law. Mistake common to all the parties: mistake of a plain rule. Mistake of law accompanied with inequitable conduct of the other party. Same: between parties in relations of trust. Belief where a party is mistaken as to his own existing legal rights, interests, or relations. Compromises and voluntary settlements made upon a mistake- as to legal rights. Payments of money under a mistake of law. Second. Mistakes of fact. How mistakes of fact may occur. In what mistakes of fact may consist. Compromises and speculative contracts. Requisites to relief: mistake must be material and free from, culpable negligence. III. How mistake may be shown: when by parol evidence. Parol evidence in general in cases of mistake, fraud, or surprise. In suits for a reformation or cancellation: character and effect of the evidence. Parol evidence in defense in suits for a specific performance. Parol evidence of mistake on the platntiflf's part in suits for a specific performance : English rule. Same: American rule: evidence admissible. Evidence of a parol variation which has been part performed. Effect of the statute of frauds upon the use of parol evidence in equitable suits. Two classes of cases in which the' use of parol evidence may be affected by the statute. General doctrine: parol evidence of mistake or fraud admissible in both these classes of cases. Glass v. Hulbert: examination of proposed limitations upon thl& general doctrine. IV. Instances of equitable jurisdiction occasioned by mistake. When exercised by way of defense. By way of affirmative relief: recovery of money paid by mistake.. AfBrmative relief: reformation and cancellation. Conditions of fact which are occasions for affirmative relief. SECTION III. ACTUAL FRAUD. ^ 872. Objects and purposes. § 873. Description; essential elements. § 874. Eour forms and classes of fraud in equity. § 875. Nature of actual fraud. 876-899. First. Misrepresentations. § 877. I. The form: an affirmation of fact. § 878. Misrepresentation of matter of opinion. § 879. II. The purpose for wkleh the representation is made. XXXIV TABLE OF CONTENTS. §880. §881. §882. §§ 883-889. §884. §885. §§ 886-888. § 889; §§ 890-897. §890. §891. §892. §893. §894. §895. §896. §897. §898. §899. §§ 900-907. §901. §902. §903. §904. §905. §906. §907. §§ 908-909. §§ 910-921. §911. § 912. §913. §914. §915. §916. §917. §918. §919. §920. §921. Presumption of the purpose to induce action. False prospectuses, reports, and circulars. III. Untruth of the statement. IV. The intention, knowledge, or belief of the party making the statement. The knowledge and interest requisite at law. The knowledge or intention requisite in equity. Six forms of fraudulent misrepresentations in equity. Requisites of a misrepresentation as a defense to the specific en- forcement of contracts in equity. V. Effect of the representation on the party to whom it is made. He must rely on it. He must bg justified in relying on it. When he is or is not justified in relying on it. Information or means of obtaining information possessed by the party receiving the representation. ' Knowledge possessed by him; patent defects. When the knowledge or information must be proved and aot presumed. Words of general caution. Prompt disaffirmance necessary. VI. Materiality of the misrepresentation. Effects of a misrepresentation. Second. Fraudulent concealments. General doctrine; duty to disclose. Wlien duty to disclose exists. Concealments by a vendee. Concealments by a vendor. Non-disclosure of facts a defense to the specific enforcement of contracts in equity. Concealments by buyers on credit. Contracts and transactions essentially fiduciary; suretyship Liability of principals for the fraud of their agents. Third. Jurisdiction of equity in cases of fraud. Fundamental principles of the jurisdiction. The English doctrine. Exception: fraudulent wills. The American doctrine. Incidents of the jurisdiction and relief. The same; plaintiff particeps doli; ratification. The same; promptness; delay through ignorance of the fraud. Persons against whom relief is granted; bona fide purchasers. Particular instances of the jurisdiction; judgments; awards; fraudulent devises and bequests; preventing acts for the bep«- fit of others; suppressing instruments. The same; appointment under powers; marital rights; trusts. The statute of frauds not an instrument for the accomplishment of fraud. TABLE OF CONTENTS. XXXV SECTION IV. COUSTEUCTIVE FRAUD. §922. §923. §§ 924-942. §925. §926. §927. §928. §§ 929-936. §930. §§ 931-935. §931. §932. §933. §934. §935. i936. i 937-942. §937. §938. §939. §940. §941. §942. i 943-965. §943. i 944^-954. §945. §946. §J947. §948. §949. Definition: essential elements. Three principal classes. First. Constructive fraud apparent from the intrinsic nature and subject of the transaction itself. I. Inadequacy of consideration. Inadequacy pure and simple. Gross inadequacy amounting to fraud. Inadequacy coupled with other inequitable incidents. II. Illegal contracts and transactions. 1. Contracts illegal because contrary to statute: usury, gaming, smuggling. 2. Transaofions illegal because opposed to public policy. A. Contracts interfering with the freedom of marriage; marriage brokerage; in restraint of marriage; rewards for marriage; secret contracts in fraud of marriage; secret contracts to marry; rewards for procuring wills. Agreements for a separation. B. Conditions ajid limitations in restraint of marriage. G, Contracts directly belonging to and affecting business rela- tions; restraint of trade; interfering with bidding at auctions and governmental lettings; puffers; fraudulent trade-marks; violating policy of statutes prescribing business methods; trading with alien enemies. D. Contracts affecting public relations; interfering with the election or appointment of officers; interfering with legisla- tive proceedings; ditto executive proceedings; ditto judicial proceedings. 3. Contracts illegal because opposed to good morals; for illicit intercourse; champerty and maintenance; compounding with a felony or preventing a prosecution. m. Equitable jurisdiction in case of illegal contracts. In usurious contracts; usurious mortgages. In gaming contracts. In other illegal contracts; explanation of maxim, in pari, etc. In pa/ri delicto, general rules. In pari delicto, limitations on general rules. Not in pari delicto. Second. Constructive fraud inferred from the condition and rela- tions of the immediate parties to the transaction. General description and divisions. I. Transactions void or voidable, with persons wholly or partially incapacitated. Coverture; infancy. Insanity. Mental weakness. Persons in vinculia; ditto illiterate or ignorant. Intoxication. XXX VI TABLE OP CONTENTS. § 950. Duress. § 951. Undue influence. § 952. Sailors. § 953. Expectants, heirs, reversioners. § 954. Post obit contracts. i 055-965. II. Transactions presumptively invalid between persons in Ada ciary relations. § 955. Circumstances to which the principle applies. § 956. The general principle. § 957. Two classes of cases in which it operates. § 958. Trustee and beneficiary. § 959. Principal and agent. § 960. Attorney and client. § 961. Guardian and ward. § 962. Parent and child. § 963. Other relations: executors and administrators; physician and patient; spiritual advisers; husband and wife; partners, etc. § 964. Confirmation or ratification. § 965. Acquiescence and lapse of time. i 966-974. Third. Frauds against third persons who are not parties to the transaction. § 967. Secret bargains accompanying compositions with creditors. § 968. Conveyances in fraud of creditors. § 969. The consideration. § 970. The fraudulent intent. § 971. Modes of ascertaining the intent. § 972. Existing creditors. § 973. Subsequent creditors. § 974. Conveyances in fraud of subsequent purchasers. PART THIRD. THE EQUITABLE ESTATES, INTERESTS, AND PRIMARY EIGHTS RECOGNIZED AND PROTECTED BY THE EQUITY JURISPRUDENCE. § 975. Preliminary paragraph. CHAPTEE FIRST. TRUSTS. SECTION I. OMOIN OF USES AND TRUSTS. § 976. The testament in the Roman law. § 977. Fideicommissa in the Roman law. § 978. Origin of uses. § 979. The use at law. § 980. The use in equity. TABLE OF CONTENTS. A.XXV11 S 981. Resulting uses; equitable theory of consideration. S 982, Double nature of property in land, the use and the seisin. § 983. The " statute of uses." § 984. Kinds of nses not embraced within the statute. § 985. A use upon a use not executed by the statute. § 986. Trusts after the statute; effect of the statute in the American states. SECTIOTST II. ■f EXPRESS PRIVATE TRUSTS § 987. Classes of trusts, f § 998-990. Express passive trusts. § 989. Estates of the two parties; liability for beneficiary's debts, etc. § 990. Rules of descent, succession, and alienation. §§ 991-995. Express active trusts. § 992. Classes of active trusts. § 993. Voluntary assignments for the benefit of creditors; English doctrine. § 994. The same; American doctrine. § 995. Deeds of trust to secure debts. §§ 996-999. Voluntary trusts. § 997. The general doctrine; incomplete voluntary trusts not enforced. § 998. When the donor is the legal owner. § 999. When the donor is the equitable owner. S 1000, 1001. Executed and executory trusts. § 1001. Definition and description. 5 1002. Powers in trust. 3 1003-1005. Legislation of various states. § 1004. Judicial interpretation; validity of trusts. § 1005. Interest, rights, and liabilities of the beneficiary. SECTION III. HOW BXPBKSS TRUSTS ARE CREATED. § 1006. Trusts of real property; statute of frauds; writing necessary. § 1007. Written declaration by the grantor; ditto, by the trustee; examples. § 1008. Trusts of personal property may be created verbally; what trusts are not within the statute. § 1009. Words and dispositions sufiEcient to create a trust; examples. 1010-1017. Express trusts inferred by construction, sometimes improperly called "implied trusts." § 1011. 1. From the powers given to the trustee. § 1012. 2. Provisions for maintenance; examples. S 1013. 3. To carry out purposes of the will. §1014. 4. From " precatory " words; Knight v. Knight; examples. § 1015. Modern tendency to restrict this doctrine; in the United States. § 1016. What intention necessary to create the trust; the general cri- terion; examples. § 1017. Objections to the doctrine. XXXVlll TABLE OF CONTENTS. SECTION IV. PUBLIC OR CHARITABLE TRUSTS. § 1018. General description. § 1019. A public, not a private, benefaction requisite. § 1020. What are charitable uses and purposes: " Statute of chari table uses," §§ 1021-1024. Classes of charitable uses. . § 1021. 1. Religious purposes. § 1022. 2. Benevolent purposes. § 1023. 3. Educational purposes. §1024. 4. Other public purposes. § 1025. Creation of the trust: certainty or uncertainty of the object and of the beneficiaries. § 1026. Certainty or uncertainty of the trustees. § 1027. The doctrine of cy-pres. § 1028. Origin and extent of the equitable jurisdiction. § 1029. Charitable trusts in the United States. SECTION V. TRUSTS ARISING BT OPERATION OF LAW — RESULTING AND CONSTRUCTIVE TRUST.S. § 1030. General nature and kinds. §§ 1031-1043. First. Resulting trusts. §§ 1032-1036. First form: trusts resulting to donor. § 1032. 1. Property conveyed on some trust which fails. § 1033. Same; essential elements. § 1034. 2. A trust declared in part only of the estate conveyed. § 1035. 3. In conveyances without consideration. § 1036. Parol evidence. §§ 1037-1043. Second form: conveyance to A, price paid by B. § 1038. Special rules. § 1039. Purchase in name of wife or child. § 1040. Admissibility of parol evidence. § 1041. The same; between family relatives. § 1042. Legislation of several states. § 1043. Interest and rights of tlie beneficiary. §§ 1044—1058. Second. Constructive trusts. § 1045. Kinds and classes. §1046. 1. Arising from contracts express or implied. § 1047. 2. Money received equitably belonging to another. § 1048. 3. Acquisition of trust property by a volunteer, or purchaser with notice. § 1049. 4. Fiduciary persons purchasing property with trust funds. § 1050. 5. Renewal of a lease by partners and other fiduciary persons. § 1051. 6. Wrongful appropriation or conversion into a difi'ereut form of another's property. § 1052. 7. Wrongful acquisition of the trust property bv a, trustee or other fiduciary person. TABLE OF CONTENTS. XXXIX § 1053. 8. Trusts ex malcficio. § 1054. (1) A devise or bequest procured by fraud. § 1035. (2) Purchase upon a fraudulent verbal promise. § 1056. (3) No trust from a mere verbal promise § 1057. 9. Trust ia favor of creditors. § 1058. Rights and remedies of the beneficiaries. SECTION VI. TOWERS, DUTIES, AND LIABILITIES OF EXPRESS TKUSTEES § 1059. Divisions. § 1060. Firxt. Powers and mode* of acting. §§ 1061-1083. Second. Duties and liabilities. §§ 1062-1065. I. To carry the trust into execution. § 1062. 1. The duty to conform strictly to the directions of the trust. § 1063. 2. The duty to account. § 1064. 3. The duty to obey directions of the court. § 1065. 4. The duty to restore the trust property at the end of the trust. §§ 1066-1074. II. To use care and diligence. § 1067. 1. The duty of protecting the trust property. § 1068. 2. The duty not to delegate his authority. § 1069. 3. The duty not to surrender entire control to a co-trustee. § J 070. 4. The amount of care and diligence required. § 1071. 5. The duty as to investments. § 1072. The necessity of making investments. § 1073. Kinds of investments: When particular securities are expressly authorized. § 1074. The same: When no directions are given. §§ 1075-1078. III. To act with good faith. § 1075. 1. The duty not to deal with the trust property for his own advantage. § 1076. 2. The duty not to mingle trust funds with his own. § 107T. 3. The duty not to accept any position, or enter into any re- lation, or do any act inconsistent with the interests of the beneficiary. § 1078. 4. The duty not to sell trust property to himself, nor to buy from himself. §§ 1079-1083. IV. Breach of trust, and lia1)ility therefor. § 1080. Nature and extent of the liability. § lOSl. Liability among co-trustees. § 1082. Liability for co-trustees. § 1083. The beneficiary acquiescing, or a party to the breach of trust. § 1084. Third. The trustee's compensation and allowances. § 1085. Allowances for expenses and outlays; lien therefor. § 1086. Fourth. Removal and appointment of trustees. § 1087. Appointment of new trustees. XI TABLE Olf COJNTJaWi'B. SECTION VII. CORPORATION DIEEOTOKS AND OTHER QUASI TRUSTEES. § 1088. Quasi trustees; fiduciary persons. § 1089. Corporation directors and officers. § 1090. Trust relations in stock corporations. I 1091. Liability of directors for a violation of their trust. § 1092. First class: Directors guilty of fraudulent misrepresentation*, etc. § 1093. Second class: UUra vires pinceedings of directors, g 1094. Third class: Wrongful dealing with corporate property. § 1095. Fourth class: The same; the corporation refuses to sue. § 1096. Special classes. § 1097. Guardians. CHAPTER SECOND. ESTATES AND INTERESTS OP MARRIED WOMEN. SECTION I. THE SEPARATE ESTATE OE MARRIED WOMEN. § 1098. Origin and general nature. § 1099. Statutory legal separate estate in the United States. § 1100. How the separate estate is created; trustees not necessary. § 1101. The same: By what modes and instruments. § 1102. The same: What words are sufficient. § 1103. What property is included. 1 1104. Her power of disposition. § 1 105. The same in the United States. % 1106. Her disposition under a power of appointment. 1 1 107. Restraints upon anticipation. g 1 108. What words are sufficient to create a restraint. § 1109. Effect of the restraint. § 1110. End of the separate estate; its devolution on the wife's death. g 1111. Pin-money. § 1112. Wife's paraphernalia. g 1 1 13. Settlement or conveyance by the wife in fraud of the marriage. SECTION II. THE wife's EQUITY TO A SETTLEMENT. § 1114. General nature. § 1115. Extent of the wife's equity: to what property and against what persons. § 1116. When the equity does not arise. § 1117. Amount of the settlement. § 1118. Form of the settlement. § 1119. Maintenance of wife. 8 1120. Alimony. TABLE OF CONTENTS. xU SECTION m. THB CONTRACTS OF MABBIED WOUEN. 1 121. The general doctrine. 1122. Baliotude of the doctrine. I 1123. Extent of the liability. [1124. For what contracts her separate estate is liable. i 1125. The same; the American doctrine. i 1126. To what contracts the American doctrine applies. CONTENTS OF VOLUME III. CHAPTEE THIRD. ESTATES AOT) INTEBESTS ARISING FROM SUCCESSION TO A DECEDENT. SECTION I. LEGACIES. § 1127. Jurisdiction of equity. § 1128. The same: where origiually exclusive. § 1129. The same: in the United States. 1130-1134. Kinds of legacies. § 1130. Specific legacies. § 1131. Ademption of specific legacies. § 1132. General legacies. § 1133. Demonstrative legacies. § 1134. Annuities. 1135-1143. Abatement of legacies. § 1135. Abatement in general: order of appropnatmg aasete. § 1136. Nature of abatement. § 1137. Abatement of specific lega|pies. § 1138. Abatement of demonstrative legacies. § 1139. Abatement of general legacies. § 1140. Limitations; intention of testator. § 1141. Exceptions; legacies to near relatives. § 1142. The same; legacy for a valuable consideration. § 1143. Appropriation of a fund. § 1144. Lapsed legacies. § 1145. The same; statutory changes. SECTION II. DONATIONS CAUSA MORTIS. § 1146. General nature. § 1147. Is not testamentary. § 1148. The subject-matter of a valid gift. § 1149. Delivery. § 1150. Revocation. § 1151. Equitable jurisdiction. TABLE OF CONTENTS. xliii SECTION III. ADMmiSTEATION OP ESTATES. i 1152. Equitable jurisdiction in the United States. i 1153. The same; fundamental principle; Kosenburg v. Frank. i 1154. The jurisdiction as administered in the several states; general risum^ — the states alphabetically arranged in foot-note. SECTION IV. CONSTRUCTION AND BNEOBCEMENT OF WILLS. S 1155. Origin of the jurisdiction. ' § 1156. Extent of the jurisdiction; a branch of that over trusts. § 1157. The same; a broader jurisdiction in some states. § 1158. Suit to establish a will. CHAPTER FOUETH. EQUITABLE ESTATES ARISING I'EOM CONVERSION. SECTION I. THI CONVERSION OF REAL ESTATE INTO PERSONAL, AND OF PERSONAL ESTATB INTO REAL. § U59. Definition and general nature. § 1160. I. What words are sufficient to work a conversion. § 1161. The same; under a contract of sale. § 1162. II. Time from which the conversion takes effect. § 1163. The same; in contracts of sale with option. § 1164. in. Effects of a conversion; land directed or agreed to be sold. § 1165. The same; money directed or agreed to be laid out in land. § 1166. Limitations on these effects. § 1167. Conversion by paramount authority; compulsory sale of land under statute; sale by order of court. § 1168. Conversion as between life tenant and remainder-man. SECTION II. EBSUI/riNa THOST UPON A PAILUBB OF THE PURPOSES OP THE CONVERSION. § 1169. The questions stated; object and extent of the doctrine. § 1170. A total failure of the purpose. § 1171. Partial failure; wills directing conversion of land into money. § 1172. The same; wills directing the conversion of money into land. § 1173. The same; deeds directing the conversion of land into money. § 1174. The same; deeds directing the conversion of money into land. fliv TABLE OP CONTENTS. SECTION III. RECONVEKSION. { 1175. Definition: Saiionale of the doctrine. § 1176, "Who may elect to have a reconversion. § 1 1 77. Mode of election. I 1 1 78. Double conversion. CHAPTER FIFTH. MOBTQAaES OF LAND. SECTIOK I. THE OBIGINAL OB ENGLISH DOCTRDJB. g 1179. The common law^doctrine: Statute of 7 Geo. IL, o. 20. § 1180. Originanddevelopmentof the equity jurisdiction; the "equity of redemption." § 1181. The equitable theory. § 1182. The double system at law and in equity. § 1183. The legal and the equitable remedies. § 1184. Peculiarities of the English system, § 1185. Subsequent mortgages equitable, not legal, SECTIOK II. THE AMERICAN DOCTRINE. § 1186. In general: Two methods prevailing. § 1 187. First method: Both the legal and the equitable theories; states arranged alphabetically in foot-note. § 1 188. Second method: The equitable theory alone; states arranged in foot-note. § 1189. The same: The mortgagee in possession. §1190. The same: Equitable remedies of the parties. § 1191. Definition of mortgage. SECTION III. VARIOUS FOBMS AND KINDS OP MOBTGAGSi. § 1 192. In equity a mortgage is a security for a debt. § 1 193. Once a mortgage always a mortgage. § 1 1 94. Mortgage and conveyance with an agreement of repurchase, distinguished. § 1195. The general criterion: the continued existence of a debt. § 1196. A conveyance absolute on its face may be a mortgage. 3§ 1197-1199. Mortgage to secure future advances. § 1197. As between the immediate parties. § 1 198. As against subsequent incumbrancers and purchasers. § 1199. As affected by the recording act. |g 1200-1203. Mortgages to secure several different notes. § 1200. As between the original parties. § 1201. Assignees of the notes; order of priority among them. § 1202. Effect of an assignment of the notes. § 1203. Priority between an assignee and the mortgagee. TABLE OF CONTENTS. xlv SECTION IV. IITTEBBSTS, RIGHTS, AND UABILITIBS OF THB MORTGAGOR AND OF THE MORTGAGEE. § 1204. §§ 1205-1208. § 1205. § 1206. § 1207. § 1208. H 1209-1214. § [209. § 1210. § 1211. § 1212. 1 1213. § 1214. §§ 1215-1218. § 1215. § 1216. § 1217. § 1218. 1219-1226. § 1219. § 1220. 1221-1226. § 1221. § 1222. §1223. §1224. {1225. § 1226. § 1227. § 1228. General interests of the mortgagor and the mortgagte. I. Conveyance by the mortgagor. Conveyance " subject to " the mortgage; effect of. Grantee " assumes " the mortgage; effect of. BationcUe of the grantee's liability. Assumption by a mortgagee. n. Assignment of the mortgage. Assignment at law and in equity. Assignment of the debt is, in equity, an assignment of the mortgage; what operates as such assignment. Equitable assignment by subrogation. In whose favor such equitable assignment exists. In whose favor such equitable assignment does not exist. Bight to compel an actual assignment. III. Kights and liabilities of mortgagee in possession. To whom the doctrine applies in different states. With what he is chargeable; rents and profits, willful de- . fault. His allowances "and ciredits, disbursements, repairs, improve- ments, compensation. liability to account. rV. Bedemption from the mortgage. By the mortgagor; suit to redeem. By other persons. Bights of contribution and of exoneration upon redemption. General doctrine; classes of cases; equities equal or un- equal. ■ (1.) Where their equities are equal; titles simultaneous. (2.) Where their equities are unequal, although the titles are simultaneous; tenants for life or for years and remainder men; dowress and reversioner. (3.) Inequality of equities where titles are not simultaneous; between mortgagor and his grantee of a parcel; between successive grantees; inverse order of alienation. The same; what circumstances disturb these equities, and de- feat this rule. (4.) A release by the mortgagee of one or more parcels. V. Foreclosure; foreclosure proper or " strict foreclosure, " Foreclosure by judicial sale. CHAPTER SIXTH. MOUTGASES OP PERSONAL PKOPEKTY AND PLEDGES. I 1229. General nature of, at law. § 1230. Jurisdiction and remedies in equity. 8 1231. Pledges: Equitable jurisdiction and remedies. f 1232. Chattel mortgages in California. xlvi TABLE OP CONTE^fTS. CHAPTER SEVENTH. EQUITABLE LIENS. SECTION I. THEIR GENERAL NATtJKE. § 1'2S3. What are included in this term; what is an equitable lien. § 1234. Origin and rationale of the doctrine. SECTION II. ARISING FROM EXPRESS CONTRACT. § 1235. The general doctrine; requisites of the contract. § 1236. On property to be acquired in future. § 1237. The form and nature of the agreement; illustrations of par- ticular agreements; agreements to give a mortgage; defecti vi mortgages; assignments; bills of exchange, etc. SECTION III. ARISING FROM IMPLIED CONTRACTS. § 1238. Nature of "implied contract " in equity. § 1239. General doctrine as to liens arising ex ceqw) et bono. § 1240. Expenditure by one joint owner. § 1241. Expenditure for the benefit of the true owner. § 1242. Expenditure by a life-tenint. § 1243. In other special cases. SECTION IV. ARISING FROM CHARGES BY WILL OR ET DEED. § 1244. 'General doctrine; nature of a charge. § 1245. What amounts to a charge creating such a lien. § 1246. The same; express charge. § 1247. The same; implied charge; English and American rules stated in foot-note, § 1248. Observations upon the rules adopted by American courts. SECTION V. THE grantor's LIEN, ON CONVEYANCE. g§ 1249-1254. The ordinary grantor's lien for unpaid purchase price. § 1249. General doctrine; in what states adopted or rejected; states classified in foot-notes. ~ § 1250. Origin and rationale; Ahrend v. Odiorne discussed. § 1251. Requisites, extent, and effects of this lien; great uncertainty and conflict in the results of judicial opinion. § 1252. How discharged or waived; effect of taking other security, eta § 1253. Against whom the lien avails. § 1254. In favor of whom the lien avails; whether or not assignable, §§ 1255-1269. Grantor's lien by reservation. § 1255. General description. § 1256. What creates a lien by reservation. § 1257. Essential nature of the lien. § 1258. Its operation and effect. § 1259. The grantor's dealing with this lien; waiver; assignment TABLE OF CONTENTS. xlvii SECTION VI. TBS vendor's men AND THE VENDEe's LIEN, ON CONTRACT POR SALE AND PURCHASE. §§ 1260-1262. Vendor's lien under contract of sale. § 1260. General doctrine; vendor's lien and grantor's lien distinguished. § 1261. Essential nature and effects; vendor's interest determined by doctrine of equitable conversion. § 1262. How enforced. § 1263. Vendee's lien for purchase money paid. SECTION VII. ARISING FaOM A DEPOSIT OE TITLE DEEDS, § 1264. The English doctrine. § 1265. The doctrine in the United States. § 1266. Distinction suggested, as a conclusion from American oases. § 1267. How this lien is enforced. SECTION VIII. VARIOUS STATUTORY LIENS. § 1268. General nature and tendency of American legislation on thi« subject; various examples. f 1269. How such liens are enforced. CHAPTER EIGHTH. ESTATES AND INTERESTS ARISING FROM ASSIGNMENTS. SECTION I. «» ASSIGNMENT OE THINGS IN ACTION. j 1270. Original doctrines at law and in equity. § 1271. EationcUe of the equitable doctrine, § 1272. Assignment of things in action at common law. § 1273. The same; under statutory legislation. § 1274. Interpretation of this legislation as contained in the Reformed Procedure. § 1275. What things in action are or are not thus legally assignable. § 1276. Assignments forbidden by public policy. § 1277. The equitable jurisdiction; under the Reformed Procedure. § 1278. The equitable jurisdiction; under the common law procedure. § 1279. Incidents of an assigment. SECTION n. EQUITABLE ASSIGNMENT OF A FUND BY ORDER OR OTHERWISE. § 1280. The general doctrine; its requisites, scope, operation, and effects. S 1281. Notice to the creditor-assignee, essential. § 1282. A mere mandate to a depositary or agent, is not an equitable assignment, but is revocable; an appropriation is necessary. § 1283. Funds not yet in existence. % 1284, Operation of bills of exchange and checks. Xlviii TABLE OF CONTENTS. SECTION in. A8BIONMENT OF POSSIBILITIES, EXPECTANCIES, AND PROPEKTT TO BE AOOtmuOk IN FUTURE. § 1285. Equitable jurisdiction under modem legislation. § 1286. Essential elements and grades of contingencies, expectancies, and possibilities. § 1287. Assignment of possibilities. § 1288. Assignment of personal property to be acquired in the futoie; rationale of the doctrine; Holroyd v. Marshall. § 1289. Assignment of future cargo or freight. § 1290. Requisites of an assignment of property to be acquired in the future. § 1291. Extent of the doctrine, to what property and persons it applies. CHAPTEE NINTH. CONTRACTS IN EQUITY. SECTION L GBNEEAL DOCTRINE CONCERNING CONTRACTS. § 1292. Object of this chapter. § 1293. What constitutes a contract. § 1294. Equitable contract by representations and acts. § 1295. Effects of a contract in equity; covenant creating an equitable servitude. § 1296. Effects of contracts in general. § 1297. Enforcement of contracts in equity. tit SECTION II. EQUITABLE DEBTS. i 1298. General nature. § 1299. Husband's liability for wife's necessaries. § 1300. Liability for money advanced to pay debts of a person inca- pable of contracting. § 1301. On death of one joint debtor. § 1302. On death of a joint surety. CHAPTER TENTH. PBnSONS NOT SDI JURIS. SECTION I. INFANTS. § 1303. Question stated. § 1304. Origin of the equitable jurisdiction over infants. § 1305. How jurisdiction is acquired; infant made a " ward of court" §§ 1306-1307. Extent of the jurisdiction. § 1306. Appointment of guardians. § 1307. Custody of infants; custody of parents when controlled. §§ 1308-1310. How the jurisdiction is exercised. § 1308. Supervision of the guardian. § 1309. Management of property. § 1310. Marriage of infant ward. TABLE OF CONTENTS. xlix SECTION II. PERSONS OP UNSOUND MIND. i 1311. Origin of this jurisdiction. I 1312. Mode of exercising the jurisdiction in England. 1 1313. Jurisdiction in the United States. i 1314. Jurisdiction in cases of weak or unsound mind. PART FOURTH. THE REMEDIES AND REMEDIAL RIGHTS WHICH ARE CON- FERRED BY THE EQUITY JURISPRUDENCE. PRELIMINARY SECTION. § 1315. General object. § 1316. Classification. § 1317. Remedies acting in rem or in personam. § 1318. Remedies in personam beyond the territorial jurisdiction. FIRST GROUP. REMEDIES PURELY ANCILLARY AND PROVISIONAL. CHAPTER FIRST. INTERPLEADER. § 1319. Description of this group. § 1320. General nature and objects of interpleader. § 1321. The claims legal or equitable. § 1322. Essential elements. § 1323. First. The same thing, debt, or duty. § 1324. Second. Privity between the opposing claimants. § 1325. Third. Plaintiflf a mere stakeholder. § 1326. Fourth. No independent liability to one claimant. § 1327. By bailees, agents, tenants, and parties to contracts. § 1328. Pleadings and other procedure. § 1329. Interpleadef in legal actions by statute. CHAPTER SECOND. EECEIVEBS. § 1330. Definition, general nature, and objects. § 1331. The appointment discretionary. i 1332-1335. Cases in which a receivermay be appointed. § 1332. First class. § 1333. Second class. § 1334. Third class. § 1335. Fourth class. § 1336. Their powers, rights, duties, and liabilities. 1 Eo. JuR.— d i TABLE OF CONTENTS. SECOND GROUP. REMEDIES PURELY PREVENTIVE. CHAPTER FIRST. INJUNCTIONS. SECTION I. TO PROTECT OK RESTRAIN THE VIOLATION OF OBLIGATIONS AND EIGHTS OJ PROPERTY OR Or CONTRACT, EITHER LEGAL OB EQUITABLE. § 1337. General nature and objects: Interdicts. § 1338. Fundamental principle. § 1339. To protect purely equitable estates or interests, and in aid of purely equitable remedies. § 1340. The same: Particular instances. §§ 1341-1344. To prevent the violation of contracts. § 1341. General doctrine. §1342. (1) Restrictive covenants creating equitable easements. § 1343. (2) Contracts for personal services or acts. § 1344. (3) Other agreements, generally negative in their nature. § 1345. Miscellaneous cases: Corporations and their officers; between mortgagor and mortgagee; public officers; cloud on title; married women's property; partners, etc. SECTION II. TO PREVENT OR RESTRAIN THE COMMISSION OF TORTS. § 1346. The estates and interests generally legal. § 1347. Kinds and classes of torts restrained. § 1348. Waste. § 1349. Nuisance: Public. § 1350. Nuisance: Private; when restrained. § 1351. Same: Instances; violations of easements. § 1352. Patent rights and copyrights. § 1353. Literary property as distinct from copyright. § 1354. Trade-marks. § 1355. Good-mil. § 1356. Trespasses. , § 1357. General doctrine; cases in whioli trespass may be enjoined, § 1358. Slander of title; libels; wrongful use of name. SECTION III. MANDATORY INJUNCTIONS. § 1359. Nature and object; When granted. SECTION IV. TO RESTRAIN ACTIONS OR JUDGMENTS AT LAW. § 1360. Origin of the jurisdiction. § 1361. When the jurisdiction is not exercised: General doctrine. § 1362. When the jurisdiction may be exercised: First class; exclusive equitable interests or rights involved. TABLE OF CONTENTS. H § 1363. The same: Second class; legal remedies inadequate. § 1364. The same: Third class; fraud, mistake, or accident in the trial at law. § 1365. Jurisdiction to grant new trials at law in the United States. CHAPTER SECOND. EQUITABLE DEFENSES INTERPOSED IN LEGAL ACTIONS, AS A SUBSTITDTB FOB INJUNCTIONS. § 1366. General object. § 1367. Equitable pleas under the common law procedure. § 1368. Equitable defenses under the reformed procedure. § 1369. Meaning and nature of an equitable defense. § 1370. General effect: Injunction against actions at law unnecessary. § 1371. Cases in which an injunction may still be necessary: First class; to avoid multiplicity of suits. § 1372. The same: Second class; new parties needed. § 1373. The same: Third class; no affirmative relief. § 1374. Some illustrations of equitable defenses. THIRD GROUP. REMEDIES WHICH INDIRECTLY ESTABLISH OR PROTECT INTER- ESTS AND PRIMARY RIGHTS, EITHER LEGAL OR EQUITABLE. CHAPTER FIRST. KEFORMATION AND CANCELLATION. § 137S. General nature and object. § 1376. Reformation and re-execution of instruments. § 1377. Cancellation, surrender up, or discharge of instruments. FOURTH GROUP. REMEDIES BY WHICH ESTATES, INTERESTS, AND PRIMARY RIGHTS, EITHER LEGAL OR EQUITABLE, ARE DIRECTLY DECLARED, ESTABLISHFD, OR RECOVERED, OR THE ENJOYMENT THEREOF FULLY RESTORED. CHAPTER FIRST. SUITS BY WHICH PURELY LEGAL ESTATES ARE ESTABLISHED, AND THE ENJOYMENT THEREOF RECOVERED: NAMELY, ASSIGNMENT OF DOWER: ESTABLISHMENT OF DISPUTED BOUNDARIES; PARTITION OF LAND, AND OF PERSONAL PROPERTY. § 1378. General nature and object of this group. § 1379. Nature and object of the first class. §§ 1380-1383. Assignment of dower. § 1380. Legal remedies. § 1381. Origin and grounds of the equitable jurisdiction. § 1382. The jurisdiction now concurrent. § 1383. Exclusive jurisdiction over dower in equitable estates. lii TABLE OF CONTENTS. § 1384. Establishment of disputed boundaries. § 1385. The same; equitable incidents and grounds. §§ 1386-1390. Partition of lands. § 1386. Common law remedy. § 1387. Equitable jurisdiction and remedies. § 1388. The title of the plaintiff. § 1389. Mode of partition. § 1390. Partition by means of a sale. § 1391. Partition of personal property. § 1392. The same: issue of title. CHAPTER SECOND. SUITS BY WHICH SOME GENEBAL EIGHT, EITHER LEGAL OR EQIHTABLB, IS ESTABLISHED. BILLS OF PEACE, AND BILLS QUIA TIMET, QUIETING TITLE. § 1393. Nature and object. § 1394. Bills of peace; bills quia timet; quieting title. CHAPTER THIRD. suns BY WHICH SOME PARTICULAR ESTATE, INTEREST, OR EIGHT, EITHER LEGAL OR EQUITABLE, IS ESTABLISHED. STATUTORY SUIT TO QUIET title; SUIT TO REMOVE A CLOUD FROM TITLE. § 1395. Nature and object. § 1396. Statutory suit to quiet title; legislation. § 1397. The same; essential features and requisites; possession; title. § 1398. Suit to remove a cloud from title; to prevent a cloud. § 1399. The same; when the jurisdiction is exercised; general doctrine. FIFTH GROUP. ElEMEDIES BY WHICH EQUITABLE OBLIGATIONS ABE SPECIFI- CALLY AND DIRECTLY ENFORCED. CHAPTER FIRST. SPECIFIO PERFORMANCE OF CONTRACTS. § 1400. Nature and object. § 1401. Specific performance of contracts; grounds of the jurisdiction. § 1402. Extent of the jurisdiction; inadequacy of damages; various kinds of contracts. § 1403. The same: Impracticability of the legal remedy. § 1404. The jurisdiction discretionary. § 1405. Essential elements and incidents. § 1406. Rights under the contract; effect of events without the agency of the parties. § 1407. Performance by plaintiff a condition precedent. § 1408. Time as affecting the right to a performance. § 1409. Enforcement of verbal contracts part performed. § 1410. Damages in place of a specific performance. TABLE OF CONTENTS. liii CHAPTER SECOND. SPKOTFIO ENFOECEMENT OF OBLiaATIONS AEISINa FROM TRUSTS AND riDDCIABY RELATIONS. § 1411. General nature, kinds, and classes. § 1412. Suits against corporations to compel the transfer or issue of stock. * SIXTH GROUP. REMEDIES IN WHICH THE FINAL RELIEF IS PECUNIARY, BUT IS OBTAINED BY THE ENFORCEMENT OF A LIEN OR CHARGE UPON SOME SPECIFIC PROPERTY OR FUND. CHAPTEE FIRST. WOBEOLOSUBE SXJITS; MARSHALING SECURITIES; CREDITORS' SmTS. § 1413. Nature, kinds, and classes. § 1414. Suits for marshaling of securities. § 1415. Creditors' suits. SEVENTH GROUP. REMEDIES IN WHICH THE FINAL RELIEF IS WHOLLY PBCX). NIARY, AND IS OBTAINED IN THE FORM OP A GENERAL PECUNIARY RECOVERY. CHAPTER FIRST. SUITS FOR CONTRIBUTION, EXONERATION, AND SUBROGATION. § 1416. General nature, kinds, and classes. § 1417. Exoneration; rights of surety against the principal § 1418. Contribution. § 1419. Subrogation. CHAPTER SECOND. SUITS FOR AN ACCOUNTING. § 1420. Origin of the equitable jurisdiction. § 1421. Extent of the equitable jurisdiction; when exercised. A TREATISE ON EQUITY JURISPRUDENCE. TREATISE ON EQUITY JURISPRUDENCE. INTRODUCTORY CHAPTER. SECTION I. THE ORIGIN OF EQUITY JURISDICTION AND JURISPRUDENCE. ANALTSIS. § 1. Object of this Introduction. §§ 2-9. ^quitas in the Roman Law. §§ 10-42. Origin of Equity in the English Law. §§ 10-13, Primitive condition of the law and the courts. §§ 14, 15. Early influence of the Roman Law, §§ 16-29, Causes which made a court of equity necessary. §§ 21-23, The earliest common-law actions and procedure. § 24. Statute of Edward I. concerning new writs, §§ 25-29, Limited results of this legislation. §§ 30-42. Commencement and progress of the chancery jurisdiction. § 31, Original powers of the. King's Council. § 32, Original common-law jurisdiction of the Chancellor. §§ 33-35. Jurisdiction of grace transferred to the Chancellor: Statute 24 Ed' ward IIL §§ 36-39, Development of the equitable jurisdiction. § 40. Abolition of the court in England and in many American states. §§ 41, 42, Equity jurisdiction in other American states. § 1, Object of This Introduction. — It is not my pur- pose to attempt a complete and detailed history of equity as it exists in England and in the United States. That work has already been done by Mr. Spence, in his Equita- ble Jurisdiction of the Court of Chancery. Some general account, however, of the origin of the equitable jurisdic- lE<).JnB.— 1 § 2 EQUITY JURISPRUDENCE. 2 tion, of the sources from which the principles and doc- trines of the equity jurisprudence took their rise, and of the causes which led to the establishment of the Court of Chancery, with its modes of procedure separate and dis- tinct from the common-law tribunals, with their prescribed and rigid forms of action, is absolutely essential to an accurate conception of the true nature and functions of equity as it exists at the present day. I shall therefore preface this introductory chapter with a short historical sketch, exhibiting the systein in its beginnings, and de- scribing the early movements of that progress through which its principles have been developed into a vast body of doctrines and rules which constitute a most important department of the municipal law. § 2. ^quitas in the Roman Law. — The growth and functions of equity as a part of the English law were an- ticipated by a similar development of the same notions in the Roman jurisprudence. In fact, the equity admin- istered by the early English chancellors, and the jurisdic- tion of their court, were confessedly borrowed from the sequitas and judicial powers of the Roman magistrates; and the one cannot be fully understood without some knowledge of the other. This intimate connection be- tween the two systems is a sufficient reason or excuse for the following brief statement* of the mode in which sequitas was introduced into the Roman law, and of the important part which it performed, under the great ju- rists and magistrates of the empire, in shaping the doc- trines of that wonderful jurisprudence. The researches of modern juridical scholars have exposed the falsity of much that has been written by English authors, such as Blackstone and Coke, with respect to the origin of their law, dnd have demonstrated the existence of the closest relations between the Roman jurisprudence and the early English common law. These relations with the growing common law were disturbed, and finally broken, from political motives and considerations; but with the equity a OIUGIN OF EQUITY JURISPRUDENCE. g 6 jurisprudence they became, for that very reason, even more intimate, and have so continued until the present day.' § 3. In the earliest period of the Roman law of which there is any certain trace remaining, and thenceforward for a considerable time after the epoch of the legislation known as the Twelve Tables, there were five actions (legis uctiones) for the enforcement of all civil rights. Nothing could exceed the arbitrariness and formalism of these judicial proceedings. Absolute accuracy was required in complying with the established phrases and acts; any omission or mistake of a word or a movement was fatal. Gains, who wrote long after they were abolished, says of them: "But all these actions of the law fell gradually into great discredit, because the over-subtlety of the an- cient jurists made the slighest error fatal."*^ These ac- tions finally became obsolete and disappeared, except one of them, which under a modified form was retained for certain very special cases until a late (period of the empire. The analogy between them and the old " real actions" of the English common law is striking and complete. Their place, in all ordinary controversies, was supplied by a species of judicial proceedings much more simple and natural, to which the generic name " formula" was given.' ' See Bracton and his relations with X millia dare oporiere, judex Numerium the Roman Law, by C. Giiterbock; Negidiwm Aula Agerio sestertium X translated by Brinton Coze. milUa condemnaio, si rum paret, aisol- "Institutes, b. iv,, sec. 30. vito." 'As to "formulas," see Gaius'a In- The Judeao esio, "let there be a in- stitutes, b. iv., sees. 30-52; Poste'sed. dex,"ia merely the order for the ap- of Gains, pp. 423-441; Sandars's In- pointment of a judex. The formula stitutes of Justinian, pp. 63-67. It consists of three distinct parts. From should be remembered that the form- qiiod to vendidit is the demonstratio, ula was drawn up by or under the di- from si paret to dare oportere is the reotion of the magistrate. I add, as intentio; and from judex to the end is an illustration, one of the most simple the condemnatio. The formula ordi- kinds of formulas, as given by Gains, narily contained only these three with a brief explanation of its various parts. parts. It is a simple action to recover The demonstratio is the general state- the price of a thing sold. "Judex ment of facts which are the ground of esto, Quod Aulus Agerius Nmnerio Ne- plaintiff's claim to recover. As in gidio hominem vendidit, si paret Nume- this case Aulus Agerius, the plaintiff rirnn Negidium Aula Agerio sestertium says "that Aulus Agerius sold a slave § 4 EQUITY JURISPKUDENCE. 4: § 4. These formulas were the regular steps or pro- cesses in a cause prior to the trial, reduced to writing,, but always carefully regulated by fixed rules, and con- ducted in accordance with prescribed forms. The par- ties appeared before the magistrate, and the formula was- prepared by him, or under his direction. It contained,, as the most important elements, what we would call the- " pleadings," namely, a statement of the plaintiff's cause- of action, bearing different names in different actions,, which was expressed in certain technical language, vary- ing with the nature of the action, of the claim, and of the- relief asked; the defendant's answer, also varying accord- ing to the action and the defense; it also contained the- appointment of the lay person who was to try the issue- and render judgment, the judex or the arbiter; the rule of law which was to govern him, not stated, however, as an abstract proposition, but simply as a direction, in short and technical terms, to render such a judgment if the- plaintiff proved the case stated in the pleading, otherwise to dismiss the suit. The whole formula was contained in to Numeriua Negidius." The demon- ary, a direction to condemn the de- ttratio varied, of coarse, in each par- fendant to pay a aura of money. The- ticular case. The inteniio is the most various modiiications in the actions by important part. It is the precise state- the prsetors largely consisted in their- ment of the legal demand made by the adding other kinds of specific relief^:, plaintiff; it presents and embodies the which might be awarded. Thus iu exact question of law involved in the three actions, to partition a family in- case, and depending upon the facts as heritanoe, to divide the property of they shall be established one way or partners, and to settle boundaries, the the other. It must, therefore, exactly judex was directed "to arljudicate "" meet the law which would govern the the thing, in the sense of distributing facts alleged by the plaintiff, if true, it among the litigants entitled to por- Whether in this case the plaintiff sold tions. In these actions there was a. the slave to the defendant at the price fourth part of the formula containing alleged, and whether the debt is still such direction, and called the adjudi- owing, is the matter to be decided by catio. Where the action was brought, the judex. If it appear to the judex to recover a thing, and not a sum of (si paret) that Numerius Negidius money, the condemnatio sometimes left ought to pay to Aulus Agerius ten the sum to be paid by defendant to be thousand sesterces, -then the judex is fixed by the judex, at his discretion; to pronounce judgment against him; and sometimes inserted the words nisi if it does not so appear to the judge, restituat, so that the defendant was- tben he is to acquit. The condemnatio only ordered to pay the sum of money, is the direction to the judex to con- if he refused or neglected to restora- demn or to acquit, according to the or deliver up the thing to the plaintiff, true circumstances of the case. See Pomeroy's Introduction to Muni- The condemnatio was always pecuni- cipal Law, sees. 183, 184. S ORIGIN OF EQUITY JURISPRUDENCE. § 5 a few brief sentences, and the technical words or phrases used indicated clearly the nature of the action, the relief to be given, the defenses to be admitted, and the legal rule to be followed. The contrast between its brevity, simplicity, and at the same time comprehensiveness, and the repetitions, redundancy, verbiage, and obscurity of the later common-law special pleadings, is very striking •and instructive. The formula being thus prepared before the magistrate (the cause being at that stage injure), the parties then went before the "judex," or "arbiter," and proceeded with the trial (the cause being then, in judicio). He heard the testimony and the arguments of counsel, «nd rendered the judgment; but the cause was thereupon taken before the magistrate a second time, who enforced the judgment and also possessed a revisory authority over the decision of the judex. It is plain that the functions ■of the "judex" corresponded closely with those of our jury; and even his power in rendering the judgment was not essentially different from that of the jury in giving their verdict, since the judgment itself, which ought to be rendered, was prescribed in the direction of the formula, and the judex had no more authority than the jury has in -lngiea between its sive efficacy of law,' until they had modes of development, and those of been adopted by the judicial magis- our own law. I will, however, state trate, and reissued by him through the conclusion reached by the ablest the means of his edict or his decisions, modern scholarship: That although The theory long maintained, that the the responses of the jurisconsults al- jurisconsults possessed the power of ways had a high authority, aud al- legislating, and that they created the though during a long period of time Roman jurisprudence, has been aban- the magistrates were bound under cer- doned. See Pomeroy's Introductioa tain limitations to adopt their oflBcial to Municipal Law, sees. 315-317. opinions as precedents, yet the magis- 11 ORIGIN OF EQUITY JURISPKUDENCE. § 9 trates and jurists as having an absolute authority. They felt themselves, therefore, under an imperative obligation to bring the jurisprudence into harmony with this all-per- vading morality, and to allow such actions and make such decisions that no moral rule should be violated. When- ever an adherence to the old jus civile would do a moral wrong, and produce a result inequitable (insequum), the praetor, conforming his edict or his decision to the law of nature, provided a remedy by means of an appropriate action or defense. Gradually the cases, as well as the modes in which he would thus interfere, grew more and more common and certain, and thus a body of moral principles was introduced into the Roman law, which con- stituted equity {sequitas)? This resulting equity was not a separate department; it penetrated the entire juris- prudence, displacing what of the ancient system was arbitrary and unjust, and bringing the whole into an ac- cordance with the prevailing notions of morality. In its original sense, sequitas, asquum, conveyed the conception of universality, and therefore of impartiality, a having regard for the interests of all whose interests ought to be regarded, as contrasted with the having an exclusive or partial regard for the interests of some, which was the essential character of the old jus civile. At a later period, and especially after the influence of Christianity had been felt, the signification of sequitas became enlarged, and was made to embrace our modern conceptions of right, duty, justice, and morality. § 9. There are certainly many striking analogies be- tween the growth of equity in the Roman and in the English law; the same causes operated to make it neces- sary, the same methods were up to a certain point pur- sued, and in principle the same results were reached. The differences, however, are no less remarkable. No separate tribunal or department was made necessary in ' See Sandars's Institutes of Justin- Law among the Romans, pp. 21, 22; 2 ian, pp. 13, 14; Phillimore'a Private Austin on Jurisprudence, pp. 240-267. §§ 10, 11 EQUITY JURISPRUDENCK. 12 the Roman jurisprudence, because the ordinary magis- trates were willing to do what the early English common- law judges utterly refused to perform; that is, to pro- mote and control the entire legal development as the needs of an advancing civilization demanded. While these common-law judges resisted every innovation upon their established forms, and shut up every way for the legal growth, the Roman magistrates were the leaders in the work of reform, and constantly anticipated the wants of the community. The English judges made a new court and a separate department indispensable; the Roman prsetors accomplished every reform by means of their own jurisdiction, and preserved in the jurisprudence a unity and homogeneity which the English and American law lacks, and which it can perhaps never acquire. Both these resemblances and these contrasts are exhibited in the following paragraphs, which describe the introduction of equity into the English system of jurisprudence. § 10. Origin of Equity in the English Law — Primitive Condition of the Law and the Courts. — During the Anglo- Saxon and early Norman periods, the law of England was, like that of all peoples in the first stages of their develop- ment, to a large extent consuetudinary. The primitive Saxon Codes, except so far as they re-enacted certain pre- cepts taken from the Holy Scriptures, or borrowed a few provisions from the then known remains of the Roman law, were chiefly redactions of prior existing customs. The Saxon local folk courts, and even the supreme tribu- nal of the Witana-gemote, not being composed of profes- sional judges, were certainly guided in their decisions of particular controversies by customs which, when estab- lished and certain, were considered as having the same obligatory character which we give to positive law.* § 11. In the reign of William the Conquerer the local folk courts of the Saxon polity were left in existence; and ' As to the account in following paragraphs, sea 1 Spence'a Eq. Jur., pp. o7~128. 13 ORIGIN OF EQUITY JURISPRUDENCE. § 121 they, together with the manor courts of the Normaiii harons, continued to be the tribunals of first resort (to use a modern term) for the trial of ordinary disputes^ through several succeeding reigns; but they gradually lost their functions and sunk into disuse as the more strictly professional tribunals grew in importance and extended their jurisdiction, until they were finally super- seded by the itinerant justices appointed by the crown or by the King's Court as representative of the crown. Wil- liam, however, made some most important innovations. In the Curia Regis, King's Court, which then, and for a considerable time afterwards, was a body composed of barons and high ecclesiastics with legislative, judicial^ and administrative functions as yet unseparated, he ap- pointed a Chief Justiciary to preside over the hearing of suits. This creation of a permanent judicial ofiicer was- the germ of the professional common-law tribunals hav- ing a supreme jurisdiction throughout England, which subsequently became established as a part of the govern- ment, distinct*from the legislative and the executive. He- also appointed, from time to time, as occasion required,, itinerant justices to travel about and hold "pleas" or preside over the Shire Courts in the dififerent counties.. These officers were temporary, and ceased when their special duties had been performed, but they were the- beginning of a judicial system which still prevails ia England, and which has been adopted in many of the^ American states. § 12. The organization thus made or permitted by- William continued without any substantial change, but. yet with gradual modifications and progressive improve- ments, through several of the succeeding -reigns. The- business of the King's Court steadily and rapidly in- creased; under Henry II. its judicial functions were- finally separated from the legislative, and from that time> until its abolition in 1874, it has continued to be thei highest common-law tribunal of original jurisdiction^ § 12 EQUITY JUBISPRUDENCB. 14 under the name of the Court of King's Bench. In tlie reign of Henry I. itinerant justices were sometimes appointed, as by William the Conqueror, and under Henry II. their office and functions were made perma- nent; but during the reign of Edward III. their places were filled and their duties performed by the justices of the Superior Courts, acting under special commissions empowering them to hold courts of oyer and terminer and of nisi prius. These itinerant justices — "justices in eyre " — went from count}' to county, holding pleas civil and criminal, and as a consequence the old local courts of the shire, hundred, and manor were abandoned as means of determining controversies between litigant parties. The King's Court, even after it became a purely judicial body, was attached to the person of the King, and fol- lowed him in his journeys and residences in different parts of the realm. The great inconvenience to suitors resulting from this transitory quality of the court was remedied by Magna Charta, which provided in one of its articles that " Common Pleas shall no longer follow the King." In obedience to this mandate of the Charter, justices were appointed to hear controversies concerning lands, and other matters purely civil, — known as " com- mon" pleas, — and the new tribunal composed of these judges was fixed at Westminster. Thus commenced the Court of Common Bench. The third superior common- law tribunal acquired its powers in a much more irregu- lar manner. In arranging his government, William the Conqueror had established a board of high officials to superintend and manage the royal revenues, and a num- ber of barons, with the chief justiciary, were re,quired to attend the sittings of this board, in order to decide the legal questions which might arise. These judicial asses- sors, in the course of time, became the Court of Exchequer, a tribunal whose authority originally extended only to the decision of causes directly connected with the revenue, but its jurisdiction was subsequently enlarged, through 15 ORIGIN OF EQUITY JURISPRUDENCE. § 13 the use of legal fictions, and thus made, to a certain ex- tent, concurrent with that of the two other Superior Law Courts. The office of Chancellor was very ancient. It had existed before the conquest, and was continued by William. Under his successors, the Chancellor soon be- came the most important functionary of the King's gov- ernment, the personal adviser and representative of the crown, but, in the very earliest times, without, as it seems, any purely judicial powers and duties annexed to the position. How these functions were acquired, it is the main purpose of this historical sketch to describe. The three superior law courts whose origin has thus been stated have remained, with some statutory modification, through the succeeding centuries, until, by the Judicature Act of 1873, which went into operation November 2, 1875, they and the' Court of Chancery, and certain other courts, were abolished as distinct tribunals, and were consolidated into one " Supreme Court of Judicature." ' § 13. The local folk courts left in existence at the con- quest, and even the itinerant justices and the central King's Court, for a while continued to administer a law which was largely customary. The progress of society, the increase in importance of property rights, the arti- ficial system which we call feudalism, with its mass of arbitrary rules and usages, all demanded and rapidly produced a more complete, certain, and authoritative jurisprudence for the whole realm than the existing pop- ular customs, however ancient and widely observed. This work of building up a positive jurisprudence upon the foundation of the Saxon customs and feudal usages, this initial activity in creating the Common Law of England, ' 36 & 37 Vict., B. 66, sec. 3: "From ralty, the Court of Probate, the Court and after the time appointed for the for Divorce and Matrimonial Causes, commencement of this act, the sev- and the London Court of Bankruptcy, eral courts ' hereinafter mentioned shall be united and consolidated to- (that is to say), the High Court of gether, and shall constitute, under Chancery of England, tne Court of and subject to the provisions of this Queen's Bench, the Court of Common Act, one Supreme Court of Judicature Fleas at Westminster, the Court of in England. Exchequer, the High Court of Admi- § 14 EQUITY JURISPRUDENCE. 16 was done, not by parliamentary legislation nor by royal decrees, but by the justices in their decisions of civil and criminal causes. The law which had been chiefly cus- tomary and therefore unwritten, preserved by tradition. lex non scripta, was changed in its form by being embod- ied in a series of judicial precedents preserved in the records of the courts, or published in the books of reports, and thus it became, so far as these precedents expressed its principles and rules, a written law, lex scripta} § 14. Early Influences of the Roman taw. — In this work of constructing a jurisprudence, the early common- law judges, as well as the Chancellor at a later day, drew largely from their own knowledge of the Eoman law. The evidence, both internal and historical, is conclusive that the common law of England, in its earliest formative period, was much indebted to that Roman jurisprudence which enters so largely into the judicial systems of all the western nations of the European continent. Besides the proof furnished by the law itself, several important facts connected with the external history of its primitive stages point to this conclusion. The clergy, who possessed all the learning of the times, were students .of the Roman law. The earliest justices of the common-law courts, as well as the chancellors, were generally taken from the higher orders of ecclesiastics; and on all occasions where it was necessary for them to legislate in the decision of particular cases, to create new rules for relations hitherto undetermined, they naturally had recourse to the code with which they were familiar, borrowed many of its doc- trines, and adopted them as the ground of their judgments. Nor was a knowledge of the Roman law confined to the ' The division of " written " and taking the meaning of Roman law " unwritten " law made by Blackstone, terms. The lex non scripla is eastern- and writers who have copied hi statements in the writs were somewhat general in their terms, some applying to land, some to chattels, others to- persons, debts, torts; and, of course, the particulars of quantity, size, value, time, place, amount of damage, and the like, were not material, and could be varied without limit. One other fact of the utmost importance remains- to be mentioned. Although the chancery clerks decided in the first place upon the form and kind of writ in every case, and thus determined the species of action to be- brought, this decision did not in the least protect or secure the plaintiff after he had commenced his action.. When the action came before the common-law courts, the- judges assumed and constantly exercised the power of determining the sufficiency of the writ; and if they held that it was not the proper one for the case, or that its. recitals of facts, or formulas were imperfect or mistaken, BO attention was given to the prior decision of the chan- cery officials, the writ and action were dismissed, and th©^ plaintiff thrown out of court. § 22. The ancienti actions of the common law, prior to- the statutory legislation hereafter mentioned, as described by Bracton, were of two general classes: 1, Those which § 23 EQUITY JURISPRUDENCE. 28 concerned lands and all estates or interests therein; aud 2. Those which concerned persons, chattels, contracts, and torts. The former class, the Real Actions, included a considerable number of particular actions, adapted to va- rious estates and rights, some for determining the title, others for the recovery of possession merely; and were all technical and arbitrary in their modes of procedure. The action of ejectment by which they were superseded was a growth of later times. The second class, the Per- sonal Actions, contained two actions ex contractu, " Debt" and "Covenant," and two ex delicto, "Trespass" and "Det- inue." " Replevin," which was one of the most ancient judicial proceedings known to the English law, was so restricted in its use to special circumstances and inferior courts that it was not classified among the ordinary common-law forms of action. The functions of these four personal actions are so well known that no descrip- tion of them is necessary. § 23. From this enumeration it is plain that the com- mon law furnished a very meager system of remedies, utterly insufiBcient for the needs of a civilization advan- cing beyond the domination of feudal ideas. The appli- ances for maintaining rights over land were perhaps sufficient in number and in variety, but they were excess- ively cumbrous, aud the rights of suitors were liable to be defeated by some failure in technical matters of form. The lack of remedial instruments was chiefly felt in the class of personal actions. No contract could be enforced unless it created a certain debt, or unless it was embodied in a sealed writing. No means was given for the legal redress of a wrong to person or property, unless the tor- tious act was accompanied with violence, express or im- plied. The injuries and breaches of contract which now form the subject-matter of so much litigation were abso- lutely without any legal remedy. It is true, the ancient recprds show a few instances in which the action of tres- pass was extended to torts without violence, such as defa- 29 ORIGIN OF EQUITY JUKISPKUDENCB. § 24 * mation, but these cases were exceptional and governed by no legal rule. The chief defect, however, of the legal procedure, which rendered it incomplete as a means of administering justice, and wholly insuflScient for the needs of a people whose social relations were constantly growing more complex, consisted in its inability to adapt its ac- tual reliefs to the varying rights and duties of litigants. Whatever might be the form of action used, the remedy conferred by its judgment was either a recovery of the possession of land, a recovery of the possession of chattels, or a recovery of money. Although these simple species of relief might be suited to a primitive society, the neces- sity of other and more specific forms, adapted to various circumstances and relations, was felt as soon as the pro- gress of the nation towards a higher civilization had fairly begun. From the causes which I have thus briefly de- scribed, the common-law courts were closed against a large and steadily increasing class of rights and remedies, and a distinct tribunal, with a broader and more equitable jurisdiction and mode of procedure, became an absolute necessity, or else justice would be denied. § 24. Statute of Edward I. concerning New Writs. — Parliament at length interposed with a reformatory measure which was intended to be radical, and which perhaps might have checked the growing jurisdiction of chancery if the common-law judges had treated the stat- ute in the same liberal spirit with which it was enacted. As all writs for the commencement of actions were drawn up by the clerks in chancery, the legislature attempted to remove all the existing difficulties by enlarging the powers of these officials, and conferring upon them a wide dis- cretion in the invention of new forma of writs, suitable to new conditions of fact, and providing for remedial rights hitherto without any means of enforcement. In the reign of Edward I. the following statute was passed.-* " Whensoever from henceforth it shall fortune in chan- • ISEdw. I., 0. 1, see. 24. f § 25, 26 EQUITY JUKISPKUDENCB. 30 eery that in one case a writ is found, and in a like case falling under like law and requiring like remedy is found none, the clerks of the chancery shall agree in making the writj or the plaintiff may adjourn it into the .next Parliament, and let the cases be written in which they -cannot agree, and let them refer themselves to the next Parliament, and by consent of men learned in the law a writ shall be made, lest it should happen after that the court should long time fail to minister justice unto complain' ants." § 25. Limited Results of This Legislation. — The gen- eral intent of this enactment is perfectly clear, and it should have been liberally and largely construed in ac- cordance with that intent. The common-law judges, however, applied to it a strict and narrow construction, a literal and verbal interpretation, wholly foreign to its design and meaning. Although by its means the new «ommon-law forms of action known as "Case," "Tro- ver," and "Assumpsit" were invented, which in later times have been the most potent instruments for the development and improvement of the common law itself,' yet so far as the legislature proposed to enlarge the scope ' of the law by the introduction of equitable principles and remedies, and thereby to stop the growth of the equitable jurisdiction of chancery, that purpose was wholly frustrated by the action of the law judges in con- struing and enforcing the statute. The main points in which this restrictive interpretation was made effective, so as to defeat the ultimate object of the statute, were the following: — § 26. 1. The act permitted the framing of new writs in cases " falling under like law and requiring like rem- edy" with the existing ones. Upon this permissive lan- guage the courts put a highly restrictive meaning. As • I have elsewhere described the teresting events in the history of the manner in ■which these new actions English law. SeePomeroy'sIutroduo- were invented, — one of the most in- tion to Municipal Law, sees. 200-204. SI ORIGIN OF EQUITY JURISPRUDENCE. §§ 27, 28 the common-law forms of action gave only three dififerent kinds of remedies, every remedy obtained through the means of the new writs must be like one of these three species. Thus at one blow all power was denied of awarding to suitors any special equitable relief which <3id not fall within one or the other of these three classes, and parties who required such special forms of remedy "were still compelled to seek them from another tribunal. The same was true, irrespective of the particular kinds of relief, of all cases which might arise, quite dissimilar in their facts and circumstances from those to which the «xisting forms of action applied; not falling under "like law," they were held to be without the scope of the stat- ute, and the complainants could obtain no redress from the common-law courts. § 27. 2. The statute only provided for new writs on behalf of plaintiffs. As civilization progressed, and the relations of men grew more intricate from increase of -commerce, trade, and other social activities, new defenses as well as new causes of action constantly arose. Al- though these were not within the letter of the act, they were fairly within its spirit. But the law courts adhered to the letter, and ignored the spirit. If, therefore, the new matter of defense did not fall within the prescribed formulas of the legal actions, and did not conform to the ■established rules defining legal defenses, the party must seek relief in some manner from the jurisdiction of the chancellor.^ § 28. 8. Although the statute authorized the "clerks •of chancery" to frame the new writs, and seemed by im- plication to confer upon them the absolute powers with respect to the matter which, it was conceded, were held by Parliament, still the common-law judges assumed for themselves the same exclusive jurisdiction to pass upon ' This jurisdiction, to be effective, against the party applying to the ■would generally be exercised by means nhancellor, and in which his attempted of enjoining the legal action brought defense had been rejected. § 29 EQUITY JURISPRUDENCE. 32 the propriety and validity of the new writs which they had always exercised- over those issued by the clerks prior to the statute. They did not regard the action of the chancery officials in sanctioning a writ which would give a new remedial right to the plaintiff as at all binding, and in fact rejected all the new writs contrived in pursu- ance of the statute, which did not closely conform to some one of the existing precedents. The chancery clerks, being ecclesiastics and acquainted with the Roman law, seem to have fashioned most of their new writs in imi- tation of the Roman formulse; but all these innovations upon the established methods the law courts refused to accept. § 29. This legislation, however, produced in the course of time the most beneficial effects upon the development of the common law itself, independently of the chancery jurisdiction. Upon the basis of certain new writs con- trived by the chancery clerks and adopted by the law judges, three additional legal actions were invented, " Trespass on the Case," and its branches or offshoots, "Trover," and "Assumpsit," whic)i have been the most efficient and useful of all the forms of legal actions in pro- moting the growth of an enlightened national jurispru- dence. Without the action of "Case" applicable to an unlimited variety of wrongs, and affording an opportunity for enforcing the maxim, Ubi jus ibi remedium, and the action of "Assumpsit," by which the multiform contracts growing out of trade and commerce could be judicially enforced, it is safe to say that the common law of Eng- land would have remained stationary in the condition which it had reached at a time not later than the reign of Edward III. These two actions resembled the actiones bonx fidei of the Roman law, in admitting motives of nat- ural right and justice for the decision of causes', instead of purely technical and arbitrary rules bf form. When at a still later day the principles of equity began to react upon the law, and the common-law judges freely 33 ORIGIN OF EQUITY JURISPRUDENCK. §§ 30, 31 applied these equitable doctrines in adjudicating upon le- gal rights, it was chiefly through these actions of Case and Assumpsit that the work of reforming and reconstructing the common law was accomplished. The actions of Tres- pass, Covenant, and Debt have remained, even to the present day, technical in their modes and arbitrary in their rules; but the actions of Case, Trover, and Assump- sit have been free from formal restraints, flexible in their adaptability, capable of being administered in conformity with equitable doctrines. Through their means, many of the rules which were originally established by the Chancellor have been incorporated into the law, and are now mere legal commonplaces.' § 30. Oommencement and Progress of the Chancery Jurisdiction. — I have thus far described the causes exist- ing in the early condition of the common law, and in the attitude of the law courts, which rendered necessary a separate tribunal with an equitable jurisdiction, and a procedure capable of being adapted to a variety of cir- cumstances, and of awarding a variety of special reme- dies. I now proceed to state the origin of this tribunal, and the principal events connected with the establishment of its jurisdiction. § 31. Original Powers of the King's Council. — Un- der the early Norman kings, the Crown was aided by a Council of Barons and high ecclesiastics, which con- sisted of two branches, — the General Council, which was occasionally called together, and was the historical predecessor of the Parliament, and a Special Council, very much smaller in number, which was in constant attendance upon the King, and was the original of the present Privy Council. It was composed of certain high ofiBcials, as the Chancellor, the Treasurer, the Chief Jus- ticiary, and other members named by the King. This Special Council aided the Crown in the exercise of its I For an acconnt of the origin and troduction to Municipal Law, sees. 200 progress of these actions, see 1 Spence's -204. Eq. Jur., pp. 237-254; Pomeroy's Iq- 1 Eq. Jdb.— 3 § 32 EQUITY JURISPRUDENCE. 34 prerogative, which, as has been stated, embraced a judi- cial function over matters that did not or could not come within the jurisdiction of the ordinary courts. The ex- tent of this judicial prerogative of the King was, from its nature and from the unsettled condition of the country, very ill defined. It appears from an ancient writer that in the time of Henry I. the Select Council generally took cognizance of those causes which the ordinary judges were incapable of determining. From later records it appears that the council acted on all applications to ob- tain redress for injuries and acts of oppression, wherever, from the heiuousness of the offense, or the rank and power of the offender, or any otlier cause, it was prob- able that a fair trial in the ordinary courts would be impeded, and also wherever, by force and violence, the regular administration of justice was hindered. The council also seems to have had a jurisdiction in cases of fraud, deceit, and dishonesty, which were beyond the reach of common-law methods. It is evident, however, that this extraordinary jurisdiction of the King and council was not always exercised without opposition, es- pecially when the matters in controversy fell within the authority of the common-law courts. § 32. Original Common-law Jurisdiction of the Chan- cellor. — Side by side with this extraordinary or preroga- tive judicial function exercised by the King, or by the Select Council in his name and stead, there grew up a ju- risdiction of the Chancellor. This is not the place to detail the numerous special powers of that ofheer, for we are only concerned with those which were judicial. It is certain that the Chancellor possessed and exercised an important ordinary — that is, common-law — jurisdiction, similar to that held by the common-law courts, and wholly independent of the extraordinary prerogative ju- risdiction originally possessed by the King and council, and afterwards delegated to the Chancellor himself. The proceedings in causes arising before the Chancellor, under 35 ORIGIN OF EQUITY JURISPRUDENCE. § 33 this his ordinary jurisdiction, were commenced by com- mon-law process, and' not by bill or petition; he could not summon a jury, but issues of fact in these proceed- ings were sent for trial before the King's Bench. When this ordinary common-law jurisdiction of the Chancellor commenced is not known with certainty; it had risen in the reign of Edward III. to be extensive and important, and it had probably existed through several reigns.' § 33. Jurisdiction of Grace Transferred to the Chan- cellor. — In addition to this ordinary function as a com- mon-law judge, the Chancellor began at an early day to exercise the extraordinary jurisdiction — that of Grace — by delegation either from the King or from the Select Council. The commencement of this practice cannot be fixed with any precision. It is probable that the judicial power of the Chancellor as a law judge, and his conse- quent familiarity with the laws of the realm, and experi- ence in adjudicating, were the reasons wliy, when any case came before the King which appealed to his judicial prerogative, and which for any cause could not be prop- erly examined by the council, such case was naturally re- ferred either by the Crown or by the council to the Chan- cellor for his sole decision. Whatever may have been the motives, it is certain that the Chancellor's extraor- dinary equitable jurisdiction commenced in this man- ner. At first it was a tentative proceeding, governed by no rule, the reference being sometimes to the Chancellor alone, sometimes to him in connection with another offi- cial, and even occasionally to another official without the Chancellor. In the reign of Edward I., such references of cases coming before the King and council to the Chan- cellor, either alone or in connection with others, were ' Many of the eases appearing by should undoubtedly be referred to the earliest records to have been de- this his common-law, and not to his cided by the Chancellor, and which equitable, jurisdiction. He was, in have been regarded by some writers fact, during this early period, and as showing that his equitable powers before the equitable jurisdiction be- were then ill defined, and included came established, a common-law judge. matters of purely legal cognizance. §§ 34, 35 EQUITY JURISPRUDENCK. 36 very common, although the practice of selecting him alone had not yet become fixed. § 34. The practice of delegating the cases which came before the prerogative judicial function of the Crown and its council to the Chancellor, for his sole decision, having once commenced, it rapidly grew, until it became the common mode of dealing with such controversies. The fact that the attention of the King and of his high oflB- cials was constantly engaged in matters of state adminis- tration rendered this method natural and even necessary. In the reign of Edward III., the Court of Chancery was in full operation as the ordinary tribunal for the decision of causes which required an exercise of the prerogative jurisdiction, and the granting of special remedies which the common-law courts could not or would not give. Ed- ward III. established this jurisdiction, which hitherto had been merely permissive, upon a legal and permanent foundation. In the twenty-second year of his reign, by a general writ, he ordered that all such matters as were of Grace should be referred to and dispatched by the Chan- cellor, or by the Keeper of the Privy Seal, The Court of Chancery, as a regular tribunal for the administering of equitable relief and extraordinary remedies., is usually spoken of as dating from this decree of King Edward III.; but it is certain that the royal action was merely con- firmatory of a process which had gone on through many pre(!eding years. § 35. The delegation made by this order of the King conferred a general authority to give relief in all matters, of what nature soever, requiring the exercise of the pre- rogative of Grace. This authority differed wholly from that upon which the jurisdiction of the law courts was based. These latter tribunals acquired jurisdiction in each case which came before them by virtue of a delega- tion from the Crown, contained in the particular writ on which the case was founded, and a writ for that purpose could only be issued in cases provided for by the positive 37 ORIGIN OF EQUITY JURISPRUDENCE. § 36 rules of the common law. This was one of the funda- mental distinctions between the jurisdiction of the Eng- lish common-law courts, under their ancient organization, and that of the English Court of Chancery.' The prin- ciples upon which the Chancellor was to base his decision in controversies coming within the extraordinary juris- diction thus conferred upon him were Honesty, Equity, and Conscience.' The usual mode of instituting suits in chancery became, from this time, that by bill or petition, without any writ issued on behalf of the plaintiff. § 36. Development of the Equitable Jurisdiction. — Having thus shown the historical origin of the chancery as a court distinct from the common-law tribunals, I shall now describe the growth of the equitable jurisdic- tion until it became settled upon the certain basis of principles which has continued without substantial change to the present time. In the earliest periods the juris- diction was ill defined, and was in some respects even much more extensive than it afterwards became when the relations between the equity and the common-law tri- bunals were finally adjusted. This was chiefly due to the troublous times, the disturbed condition of the country, while violence and oppression everywhere prevailed, and the ordinary courts could give but little protection to the poor and the weak; when the powerful land-owners were constantly invading the rights of their inferiors and over- awing the local magistrates. In the reign of Eichard II. ' This distinction has never existed King and referred to the Chancellor: in the United States. The highest Lady Audley, without joining her hus- courts of law and of equity, both state band, sued her father-in-law to obtain and national, derive their jurisdiction a specifio performance of certain cov- either from the constitutions or from enants in her favor in the deed of the statutes. There is no such thing settlement made on her marriage, as a delegation of authority from the Nothing could be more opposed to executive or the legislature to these common-law doctrines. This was in courts; for the authority of the courts 35 Edward III., and it shows that two and of the other branches of the gov- most important heads of equity juris- ernment is directly derived from the prudence were then known, — the pro- same source, — the organic body politic tection of the wife's separate interests, composing the state or the nation. and specific performance of contracts. * The following case illustrates the See Sir F. Palgrave's History of the kind of matters brought before the Council, pp. 64, 67. § 37 EQUITY JURISPKUDENCE. 38 the Chancellor actually exercised some criminal jurisdic- tion to repress violence, and restrain the lawlessness of the great against the poor and helpless. He also enter- tained suits concerning land, for the recovery of posses- sion or the establishment of title, and even actions of trespass, when there had been dispossession with great violence.* A strong opposition naturally arose to these alleged usurpations by the Chancellors; but they perse- vered as long as was necessary, and were supported by the King and council. § 37. There were other reasons, inhering in the nature of its procedure and extent of its remedial functions, which operated to extend the authority and increase the business of the chancery court. It possessed and exer- cised the power, which belonged to no common-law court, of ascertaining the facts in contested cases by an exami- nation of the parties under oath, — the "probing their consciences," — a method which gave it an enormous advantage in the discovery of truth, and which has only within our own times been extended to all other tribu- nals. Again, the Chancellor was able to grant the remedy of prevention, which was wholly beyond the capacity of the law courts; and he seems to have used this kind of relief with great freedom, unrestrained by the rules which have since been settled with respect to the injunction. As the business of the court increased and became regular and constant, the practice was established in the reign of Richard II. of addressing the suitor's bills or petitions directly to the Chancellor, and not to the King or his council. During the same reign a statute was passed by Parliament for the purpose of regulating the business of the court and restraining its action, which enacted that when persons were compelled to appear before the council ' The instances of the kind men- principle of consaence, ■was the pro- tioned in the text are probably all ref- taction of the poor, weak, helpless, erable to the notion, which seems to and oppressed against the rich and have been entertained by the early powerful. This early notion has left chancellors, that one important head some traces in the subsequent equity of their jurisdiction, founded upon the jurisprudence. 39 ORIGIN OF EQUITY JURISPRUDENCE. § 38 or the chancery on suggestions found to be untrue, the Chancellor should have power to award damages against the complainant, in his discretion.' This statute was a solemn recognition by Parliament of the court as a dis- tinct and permanent tribunal, having a separate juris- diction and its own modes of procedure and of granting relief; and the enactment, was an important event in the legal history of the chancery. § 38. In the reign of Richard II., Uses first came dis- tinctly into notice and were brought under judicial cog- nizance. This species of interest in land was utterly unknown to the common law, and foreign to the feudal notions; it was therefore ignored by the law courts, and fell under the exclusive control of chancery. As uses were derived, with much modification, from the Roman law, the doctrines of that jurisprudence were naturally resorted to in deciding controversies respecting them, and in settling the rules for their government. The action of the law judges in banishing the Roman law from their courts, which has already been described,^ also operated very powerfully to throw the consideration of these matters into the chancery, and greatly augmented and strengthened its authority. No one subject has contrib- uted so much to enlarge and perfect the jurisdiction of the Court of Chancery as the uses thus surrendered to its exclusive cognizance. The principles which underlie them and the trusts which succeeded them have been extended to all departments of equity, and have been more efficient than any other cause in building up an har- monious system of equitable jurisprudence in conformity with right and justice. These flexible principles have been applied to almost every relation of life affecting property rights, and have been molded so as to meet the exigencies of the infinite variety of circumstances which arise from modern civilization. They have even reacted upon the common law, and have been recognized by the » 17 Rich. II., u. 6. » See mite, § 20. § 39 EQUITY JURISPRUDENCK. 40 law judges in their settlement of the rules which govern the rights and obligations growing out of contract. § 39. In the reigns of Henry IV. and Henry V., the Commons, from time to time, complaiued that the Court of Chancery was usurping powers and invading the domain of the common-law judges. It is a very remark- able fact, however, that this opposition never went to the extent of denouncing the equity jurisdiction as wholly unnecessary; it was always conceded that the law courts could furnish no adequate remedy for certain classes of wrongs, and that a separate tribunal was therefore neces- safy. As the result of these complaints, statutes were passed which forbade the Chancellor from interfering in a few specified instances of legal cognizance, but did not abridge his general jurisdiction. In the reign of Edward IV. the Court of Chancery was in full operation; the mode of procedure by bill filed by the complainant, and a sub- poena issued thereon to the defendant, was settled; and the principles of its equitable jurisdiction were ascer- tained and established upon the basis and with the limi- tations which- have continued to the present time. No more opposition was made to the court by the Commons, although the law judges from time to time, until as late as the reign of James I., still denied the power of the Chancellor to interfere with matters pending before their own courts, and especially disputed his authority to re- strain the proceedings in an action at law, bj' means of his injunction. This controversy between the law and the equity courts, with respect to the line which separates their jurisdictions, has in fact never been completely set- tled; and perhaps it must necessarily continue until the two jurisdictions are blended into one, or at least are ad- ministered by the same judges in the same proceeding.' ' Wherever the distinctions between might suppose this contest would suits in equity and actions at law have necessarily have disappeared, and it been abolished, and equitable and necessarily would have disappeared if legal rights may be enforced, and the courts had carried out the plain equitable and legal remedies may be intent of the legislation; unfortu- obtained, in the same proceeding, we nately, however, in some of the states 41 ORIGIN OP EQUITY JURISPRUDENCE. §40 § 40. Abolition of the Court in England and in Many American States. — The court of equity, having existed as a separate tribunal for so many centuries, has at length disappeared in Great Britain and in most of the American states, and the reforming tendency of the present age is strongly towards an obliteration of the lines which have hitherto divided the two jurisdictions. By the recent legis- lation of England and of many of the states in this coun- try, the separate tribunals of law and of equity have been abolished; the two jurisdictions have been so far combined that both are administered by the same court and judge; legal and equitable rights are enforced and legal and ■equitable remedies are granted in one and the same action; and the distinctions which hitherto existed be- tween the two modes of procedure are as far as possible abrogated, one kind of action being established for all judicial controversies.* where this legislation has been adopted, the distinction between the legal and equitable jurisdictions is kept up as ^sharply as tliongh there were the separate tribunals, and the different systems of procedure. 1 The English Judicature Act of 1 87.3, .already quoted, after uniting all the higher tribunalsintoone Supreme Court of Judicature, enacts that "in every civil cause or matter, law and equity shall be concurrently administered" by this court according to certain gen- eral rules; and that generally in all matters not particularly mentioned in other provisions of the act, in which there is any conflict or variance be- tween the rules of equity and the rules of the common law, with reference to the same matter, the rules of equity shall prevail: 36 & 37 Vict., c. 66, sees. 24, 25. This great reform, which was inaugurated by New York in 1848, has been adopted by the states of Ohio, Kentucky, Indiana, Wisconsin, Iowa, Minnesota,Mis30Uri,Kan3as,Nebraska, Nevada, California, Oregon, North Carolina, South Carolina, Arkansas, Connecticut, Colorado, and by the territories of Washington, Montana, Idaho, Dakota, Wyoming, Arizona, Utah. The form of legislation which has generally been adopted is sub- stantially the following: "The dis. tinction between actions of law and suits in equity, and the forms of all such actions and suits heretofore ex- isting, are abolished; and there shall be iu this state hereafter but one form of action for the enforcement or pro- tection of private rights and the re- dress of private wrongs, which shall be denominated a. civil action." In two or three of the states a slight ex- ternal distinction between legal and equitable actions is still preserved. Their codes of procedure contain the following provision: "All forms of action are abolished; but the pro- ceedings in a civil action may be of two kinds, 'ordinary' or 'equitable.' The plaintiflf may prosecute his actiou by equitable proceedings in all cases where courts of equity had jurisdic- tion, and must so proceed in all cases where such jurisdiction was exclusive. In all other cases the plaintiff must prosecute his action by ordinary pro- ceedings. An error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dis- missal of the action, but merely a change into the proper proceedings, and a transfer of the action to the proper docket. The provisions of this code concerning the prosecution of a §41 EQUITY JURISPRUDENCE. 42 § 41. Eqaity Jurisdiction in Other American States. — In the national courts of the United States, and in most of the states which have not adopted the reformed procedure, the two departments of law and equity are still maintained distinct in their rules, in their procedure, and in their remedies; but the jurisdiction to administer both systems is possessed and exercised by the same tri- bunal, which in one case acts as a court of law, and in the other as a court of equity. The organization of the judiciary differs widely in the states of this class, and no attempt need be made to describe it. The procedure at law is based, although in most instances with extensive modifications, upon the old common-law method, and re- tains in whole or in part the ancient forms of action. The equity procedure is the same in its essential princi- ples with that which long prevailed in the English Court of Chancery, but is much simplified in its details and rules.' civil actioQ ipply to both kinds of proceedings, whether ordinary or equitable. " As one court has jurisdic- tion over both kinds of proceedings, it is plain that the distinction here preserved is wholly superficial; it really goes no further than the desig- nation to be put at the commencement of the plaintiff's pleading, and the placing the cause on the proper docket or trial list of the court. In 1879 Connecticut adopted a Practice Act, which contains the fundamental and essential features of the reformed system of procedure, although it rather resembles the English Judi- cature Act than the Codes of Pro- cedure in the various states, since it only enacts these fundamental and essential principles, and leaves the details of practice to be regulated by rules established by the courts. It provides, in section 1, that there "shall be but one form of civil action "; and in section 6: *' All courts which arc vested with jurisdiction, both at law and in equity, may hereafter, to the full extent of their respective jurisdic- tions, administer legal and equitable rights, and apply legal and equitable remedies, in favor of either party, in one and the same suit, so that legal and equitable rights of the parties may be enforced and protected in one action; provided, that wherever there is any variance between the rules of equity and the rules of the common law, in reference to the same matter, the rules of equity shall prevail." It will be noticed that this last clause is the same in effect as one contained in the English Judicature Act, and this alone gives the Connecticut sys- tem a superiority over that prevailing in the other American states. It is remarkable that the codes of all the other states have not been amended by the introduction of this most admirable provision. Equitable and legal de- fenses and counterclaims are also per- mitted. ' This mode of judicial organization and of maintaining the two jurisdic- tions with one tribunal has been adopted by the United States for the national judiciary, and by the following States: Connecticut, Florida, (Jeorgia, Illinois, Maine, Maryland, Massachu- setts, Michigan, New Hampshire, Pennsylvania, Rhode Island. Texas, Vermont, Virginia, We?t Virginia. Connecticut no longer belongs to thit 43 THB NATURE OF EQUITY. §§ 42, 43 § 42. In a very few of the states the policy of sepa- ration is still maintained. Law and equity are not only distinct departments, but they are administered by differ- ent tribunals, substantially according to the system, both in respect to jurisdiction and procedure, which existed in England prior to the recent legislation. There is a couri, of general original jurisdiction at law, and another court of equity, consisting of one or more chancellors, and the two are entirely distinct in the persons of the judges, and in the judicial functions which they possess. Even in these states, however, there is generally but one appellate tri- bunal of last resort, which reviews on error the judgments of the law courts, and on appeal the decrees of the Chan- cellor.' SECTION II. THE NATURE OF EQUITY. § 43. Importance of a correct notion of equity. §§ 44, 45. Various meanings given to the word. §§ 46, 47. Tme meaning as a department of our jurisprudence. §§ 48-54. Theories of the early chancellors concerning equity as both inpply- ing and correcting the common law. §§ 55-58. Sources from which the early chancellors took their doctrines; their notions of " conscience " as a ground of their authority. §§ 59-61. Equity finally established upon a basis of settled principles. § 62. How the equitable jurisdiction is determined at the present day. f § 63-67. Kecapitnlation: Nature of equity stated in four propositions. § 43. Importance of a Correct Notion of Equity. — I purpose in this section to ascertain the nature of equity as it now exists in one of the great departments into which the law of the United States and of England is divided, and to fix its exact relations with the other de- partment, which, by a most confusing use of terms, is called the " Law " or the " Common Law." This inquiry class. By a statute of 1879 the re- ' This system exists in Alabama, formed procedure was, in its essential Delaware, Mississippi, New Jersey, features, adopted: See ante, note to Tennessee. S 40. I 44 EQUITY JUKISPEUDKNCB. 44 is not purely theoretical; it is, on the contrary, in the highest degree practical. An accurate conception of equity is indispensable to the due administration of jus- tice. If a certain theory of its nature, which now prevails to some extent, should become universal, it would soon destroy all sense of certainty and security which the cit- izen has, and should have, in respect to the existence and maintenance of his juridical rights. Since the combina- tion of legal and equitable remedies in one judicial pro- ceeding which has been effected in many of the states, the notion seems to have been revived, somewhat vague and undefined perhaps, but still widely diffused among the legal profession, that equity is nothing more nor less than the power possessed by judges — and even the duty resting upon them — to decide every case according to a high standard of morality and abstract right; that is, the power and duty of the judge to do justice to the individ- ual parties in each case. This conception of equity was known to the Roman jurists, and was described by the phrase, Arbitrium boni viri, which may be freely translated as the decision upon the facts and circumstances of a case which would be made by a man of intelligence and of high moral principle; and it was undoubtedly the theory in respect to their own functions, commonly adopted and acted upon by the ecclesiastical chancellors during the earliest periods of the English Court of Chan- cery. It needs no argument to show that if this notion should become universally accepted as the true definition of equity, every decision would be a virtual arbitration, and all certainty in legal rules and security of legal rights would be lost. § 44. Various Meanings Given to the Word. — Before proceeding to examine the nature of English and Ameri- can equity, as above stated, I shall briefly mention soine of the meanings which have been given to the word, taken in its general sense, and not as designating a particular department of the municipal law. The original or root 45 THB NATUBB OV BQUITT. § 45 idea of the word, as first used by the Roman jurists, rmi- versality, and thence impartiality, has already been ex- plained. From this fundamental notion, equity has come to be employed with various special significations. It has been applied in the interpretation of statutes, when a legislative enactment is said to be interpreted equitably; or, as the expression often is, according to the equity of the statute- This takes place when the provisions of a statute, being perfectly clear, do not in terms embrace a case which, in the opinion of the judge, would have been embraced if the legislator had carried out his gen- eral design. The judge, supplying the defective work of the legislator, interprets the statute extensively, or accord- ing to its equity, and treats it as though it actually did include the particular case. The word was sometimes used in this sense by the Roman jurists, when applied to modes of interpretation, and also by the earlier English text-writers and judges; but is not often employed with such a meaning by writers of the present day. § 45. Another signification sometimes given to equity is that of judicial impartiality; the administration of the law according to its true spirit and import, uninfluenced by any extrinsic motives or circumstances; the applica- tion of the law to particular cases, in conformity with the special intention or the general design of the legislator.' A third meaning makes equity synonymous with natural law as that term is used by modern writers, or morality; so that it practically becomes the moral standard to which all law should conform. It is in this sense that the epi- thet " equitable " is constantly used, even at the present day, by judges and text-writers, in order to describe ' In accordance with this conception, nothing but the liberal and hnmane the following definitions have been interpretation of the written law, given: "The application of the statute made, not according to ita words, but law to a given case, agreeably to the in conformity with the intent of the specific intention or the general de- legislator.) " Berdgnius leges interpre- sign of the legislator." " yEqiUtas ni- tandce sunt, quo voluntas eai"um conser- Ml est quam bemgna et humana. juris varetur." (Positive laws ought to be scripti interpretatio, non ex verbis, sed a interpreted liberally, so that their de- mente legislatoris /acta." (E(iuity is sign will be preserved.) § 46 EQUITY JURISPRUDENCE. 46 certain doctrines and rules which, it is supposed, will tend to promote justice and right in the relations of man- kind, or between the litigant parties in a particular case.' The only other signification which I shall mention does not greatly differ from the one last given. In that use of the term, equity is the unchangeable system of moral principles to which the law does or should conform; but in this use it rather describes the power belonging to the judge — a power which must, of course, be exercised according to his own standard of right — to decide the cases before him in accordance with those principles of morality, and so as to promote justice between suitors, even though in thus deciding some rule of positive law should be violated or at least disregarded. This concep- tion of equity regards it, not as a system of juridical prin- ciples and rules based upon morality, right, and justice, but rather as a special function or authority of the courts to dispense with fixed legal rules, to limit their gener- ality, or to supplement their defects in particular cases, not in obedience to any higher and more comprehensive doctrines of the same positive national jurisprudence, but in obedience to the dictates of natural right, or morality, or conscience.^ § 46. True Meaning as a Department of our Juris- prudence. — I am now prepared to examine, and if possible determine, the true nature of equity considered as an es- tablished branch of our American as well as of the Eng- lish jurisprudence. We are met at the very outset by numerous definitions and descriptions taken from old writers and judges of great ability and high authority, * It is with thia meaning of the found throughout the Digest. It was word that French jnrista have said: universally adopted by the clerical "L'eqmti est I'esprit de nos loia"; and a chancellors in the earliest stages of Roman jurist said: "^quitas eat hones- the chancery jurisdiction; and the taa." English equity commenced, and for a ' This theory was known to the considerable period continued, its Roman juridical writers; it was the growth as a direct result of this con- notion constantly maintained by ception: See 2 Austin ou Juriapru- Oioero, who says: "jBJquitas eat lead- dence, pp. 272-280. mentum juria," and traces of it are 47 THE NATUBB OF B(tUITT. §46 many of wTiich are entirely incorrect and misleading, so far at least as they apply to the system which now exists, and has existed for several generations. These defini- tions attribute to equity an unbounded discretion, and a power over the law unrestrained by any rule but the con- science of the Chancellor, wholly incompatible with any certainty or security of private right. For the purpose of illustrating these loose and inaccurate conceptions, I have placed in the foot-note a number of extracts taken from the earlier writers.' ' In the Doctor and Student (Dial. I, See 1 Spence'8 Eq. Jur., pp. 412, 413. § 57 EQUITY JURISPRUDENCE. 58 conscience as thus understood, a wide field of jurisdiction was opened, which included all departures from honesty and uprightness.' § 57. The question is naturally suggested, whether this "conscience" was interpreted as the personal conscience of the individual chancellor, or whether it was a kind of judicial conscience, limited by and acting according to definite rules, and constituting a fixed and common stan- dard of right recognized and followed by all the equity judges. Beyond a doubt, during the infancy of the juris- diction, the former of these conceptions was the prevail- ing one, and each Chancellor was governed in his judicial work by his own notions of right, good faith, and obliga- tion, by his own interpretation of the Divine code of mo- rality. Even during the reigns of Henry VIII. and of Elizabeth, some of the chancellors seem to have taken a view of their authority which freed them from the re- straints of precedent end even of principle, and enabled them to decide according to their private standard of right. It was this mistaken theory, so satisfying to an ambitious and self-reliant judge, but so dangerous to the equable and certain administration of justice, which pro- voked the sarcastic criticism of Selden so often quoted, and so often applied, in complete ignorance either of the subject or the occasion, to the equity jurisdiction in gen- eral.* After the period of infancy was passed, and an or- derly system of equitable principles, doctrines, and rules began to be developed out of the increasing mass of prece- dents, this theory of a personal conscience was abandoned; and the "conscience" which is an element of the equitable jurisdiction came to be regarded, and has so continued to ' See 1 Spenoe's Eq. Jnr., p. 411. measure we call a Chancellor's foot. 'Table Talk, tit. Equity: "Equity What an uncertain measure would is a roguish thing. For law we have this be! One Chancellor has a long a measure, and know what we trust foot, another a short foot, a third an to. Equity is according to the con- indifferent foot. "T is the same thing science of him that is Chancellor; and in the Chancellor's conscience. " Mr. as that is larger or narrower, so is Spence very truly remarks: " Selden, equity. 'T is all one as if they should better than any man living, perhaps, Slake his foot the atandard for the knew what equity really was. 59 THE NATURE OF EQUITY. §§ 58, 59 the present day, as a metaphorical term, designating the common standard of civil right and expediency com- bined, based upon general principles and limited by es- tablished doctrines, to which the court appeals, and by which it tests the conduct and rights of suitors, — a jurid- ical and not a personal conscience. This theory was at length announced by Lord Nottingham as the one which regulated the equity jurisdiction: "With such a con- science as is only naturalis and interna, this court has nothing to do; the conscience by which I am to proceed is merely civilis and politica, and tied to certain meas- ures." ' § 58. After " conscience " became thus defined as a common civil standard, .it was practically the same as "equity"; the distinctions between them had disappeared, and both terms were and have since been used inter- changeably. From the time of" Henry VI., precedents of decisions made in the Court of Chancery were recorded in the Year-Books, and special collections of them were made in the reigns of Elizabeth, James I., and Charles I. By the time of Charles I. the number of precedents had so accumulated, either in published or in private collec- tions, or handed down traditionally, that they substan- tially contained the entire principles of equity, and the chancellors yielded almost wholly to their guidance. In fact, they sometimes fell into the mistake of refusing relief in a case plainly within the scope of established principles, because there was no precedent which ex- actly squared with the facts in controversy. § 59. Equity Finally Established upon a Basis of Set- tled Principles. — The result of this review is very clear, and enables us to define with accuracy the general charac- ter of the English and American equity. After its growth had proceeded so far that its important principles were all developed, equity became a system of positive jurispru- dence, peculiar indeed, and difiering from the common ' Cook V. Fountain, 3 Swanst. 585, 600 (1676). § 59 EQUITY JUKISPKUDENCB. 60 law, but founded upon and contained in the mass of cases already decided. The Chancellor was no longer in- fluenced by his own conscience, or governed by his own interpretation of the Divine morality. He sought for the doctrines of equity as they had already been promul- gated, and applied them to each case which came before him. No doubt (and this is a point of the highest im- portance) the system was, and is, much more elastic and capable of expansion and extension to new cases than the common law. Its very central principles, its founda- tion upon the eternal verities of right and justice, its resting upon the truths of morality rather than upon arbitrary customs and rigid dogmas, necessarily gave it this character of flexibility, and permitted its doctrines to be enlarged so as to embrace new cases as they constantly arose. It has, therefore, as an essential part of its nature, a capacity of orderly and regular growth, — a growth not arbitrary, according to the will of individual judges, but in the direction of its already settled principles. It is ever reaching out and expanding its doctrines so as to cover new facts and relations, but still without any break or change in the principles or doctrines themselves. It ia certainly, therefore, a mistaken theory which is main- tained by many writers like Blackstone, and even by those of a later day and higher authority, and which represents the English and American equity as entirely an artificial system, embodied wholly in unyielding precedents, and incapable of further development. It is true that there can be no more capricious enlargement according to the will of individual chancellors; but the principles of right, justice, and morality, which were originally adopted, and have ever since remained, as the central forces of equity, gave it a necessary and continuous power of orderly ex- pansion, which cannot be lost until these truths themselves are forgotten, and banished from the courts of chancery.' ' The doctrine of the text was clearly Hopkins, 1 Schoales & L. 413, 429: stated by Lord Redesdale, in Bond v. "There are certain principles on which 61 THE NATUEB OF EQUITY. § 60 § 60. The general language of some writers, and par- ticularly of Blackstone, presents an erroneous theory as to the oflBce of precedents in equity, and if followed, would check and abridge the beneficent operation of its juris- diction. The true function of precedents is that of illus- trating principles; they are examples of the manner and extent to which principles have been applied; they are the landmarks by which the court determines the course and direction in which principles have been carried. But with all this guiding, limiting, and restraining efficacy of prior decisions, the Chancellor always has had, and al- ways must have, a certain power and freedom of action, not possessed by the courts of law, of adapting the doc- trines which he administers. He can extend those doc- trines to new relations, and shape his remedies to new circumstances, if the relations and circumstances come within the principles of equity, where a court of law in analogous cases would be powerless to give any relief. In fact, there is no limit to the various forms and kinds of specific remedy which he may grant, adapted to novel courts of equity act, which are very Chief Baron Hale ■were called in to well settled. The oases which occur assist. During the argument C. J. are various, but they are decided on Keylinge cited an old case; at which fixed principles. Courts of equity have C. J. Vaughan said: "I wonder to in this respect no more discretionary hear of citing precedents in matter of power than courts of common law. equity, for if there be equity in a case. They decide new cases as they arise, that equity is a universal truth, and by the principles on which former cases there can be no precedent iu it, so that have been decided, and may thus illus- in any precedent that can be produced, trate err enlarge the operation of these if it be the same with this case, the principles, but the principles are as reason and equity is the same in itself; fixed and certain as the principles on and if the precedent be not the same which the courts of common law pro- case with this, it is not to be cited." ceed. " In Gee v. Pritchard, 2 Swanst. To this Lord Keeper Bridgman replied: 402, 414, Lord Eldon states the same "Certainly, precedents are very neoes- theory: "The doctrines of this court sary and useful to us, for in them we ought to be as well settled and made may find the reasons of the equity to as uniform almost as those of the com- guide us; and besides, the authority of mon law, laying down fxed principles, those who made them is much to be but taking care that they are to be applied regarded. We shall suppose that they according to the circumstances of each did it upon great consideration and particular case." The old case of Fry weighing of the matter, and it would V.Porter, 1 Mod. 300, 307 (22 Car. II.), be very strange and very ill if we exhibits the strange notions concern- should disturb and set aside what has ing equity then held by the common-law been the course for a long series of es. On the hearing, Chief Justice time and ages." keylinge, Chief Justice Vaughan, and I 61 EQUITY JUKISPBUDBNCB. 62 conditions of right and obligation, which are constantly arising from the movements of society. While it must be admitted that the broad and fruitful principles of equity have been established, and cannot be changed by any judicial action, still it should never be forgotten that these principles, based as they are upon a Divine morality, possess an inherent vitality and a capacity of expansion, so as ever to meet the wants of a progressive civilization. Lord Hardwicke, who was, I think, the greatest of the English chancery judges, and who, far more than Lord Eldon, was penetrated by the genius of equity, indicated the true theory in a letter to Lord Kames: " Some gen- eral rules there ought to be, for otherwise the great incon- venience of jus vagum et incertum will follow. And yet the Praetor [Chancellor] must not be so absolutely and in- variably bound by them as the judges are by the rules of the common law. For if he were so bound, the consequence would follow that he must sometimes pronounce decrees which would be materially unjust, since no rule can be equally just in the application to a whole class of cases that are far from being the same in every circumstance."* § 61. I have thus far described the growth of equity, and the shape which it finally assumed in the English Munici- pal Law, and as it was thence borrowed by the American states, with but little reference to judicial opinions. I have supplied this intentional omission by collecting in the foot-note a number of extracts in which eminent ' Parke's History of Chancery, pp. theory -which looks these principles .501, 506. Judge Story severely criti- up in the already existing precedents, cises this language, pronounces it very and limits their free application to loosely said, and virtually repudiates facts, circumstances, and relations sim- it. But with all deference to Judge ilar to those which had been the sub- Story, these few sentences, although ject-matter of former adjudications, undoubtedly not written in a scientific In other words, Lord Hardwicke in this form, contain the central truth of the short passage states the same view system, the truth which must always which I have given in the text. Al- be recognized and acted upon in the though equity is and long has been in administration of equity. Lord Hard- every sense of the word a system, and wicke does not deny the existence nor although it is impossible that any new) the necessity of general principles, — general principles should be added to no other Chancellor was ever more gov- it, yet the truth stands, and always erned in his judicial work by prinei- tn\xst atund, that the final object of equity pies, — but he would guard against the u to do riglii and justice. 63 THE NATURE OF EQUITY. §61 judges have expressed their conceptions of its nature. Some of these judges have attempted to place the subject upon a broad and secure foundation. While there is a general unanimity in their views, it is still impossible to reconcile all the judicial opinions, and some of them maintain a theory of the jurisdiction which is certainly too partial and restricted.* ' In Cowper v. Cowper, 2 P. Wms. 720, 753, Sir Joseph Jekyl, M. R., de- fined the scope and powers of equity as follows: "The law is clear, and courts of equity ought to follow it in their judgments concerning titles to equitable estates: otherwise great uncertainty and confusion would en- sue. And though proceedings in equity are said to be secundum discre- tionem bom viri, yet when it is asked, Vir bonus est quia 7 the answer is, Qui consulta patrum, qui leges juraque ser- vat. (Who is the good man? He who maintains the opinions of his prede- cessors, and the laws and decisions.) And it is said in Rook's Case, 5 Coke, 99 b, that discretion is a science not to act arbitrarily, according to men's wills and private affections. So the 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, follows the law implicitly; in others, assists it and advances the rem- edy; in others, again, it relieves against the abuse, or allays the rigor of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes igno- rantly imputed to this 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. " This language was expressly adopted and approved by Sir Thomas Clarke, M. R., in Burgess v. Wheate, 1 W. Black. 123, 152. The general proposi- tions at the beginning of this extract are undoubtedly correct; but it is strange.that, in the face of the equitable doctrines concerning uses and trusts, or the separate estates of married wo- men, or the enforcing of contracts void by the statute of frauds, or the relief anciently given to an obligor who had paid the debt without taking a release, and numerous other instances, some of which have been mentioned in the text, — it is strange, I say, in the face of all these facts, that an equity judge could lay down a proposition so pal- pably untrue as the one just quoted, that in no case does equity contradict or overturn the grounds and principles of the law; a great part of its doctrines being in direct contradiction tp the rules of law governing the same cir- cumstances at the time when these doctrines were first enunciated. Lord Hardwicke, who always looked at the reality, and not at mere conventional formulas, stated the true relation be- tween equity and the law in a short but pregnant proposition. It being argued in a case before him that equity follows the law, jEquitas sequitur legem, he replied: " When the court finds the rules of the law right it will follow them; but then it will likewise go be- yond them": Paget V. Gee, Ambl. App. 807, 810. In the case of Manning v. Manning, 1 Johns. Ch. 5.30, Chancellor Kent explained his own position as an American chancellor, and his concep- tion of equity as a whole: "I take this occasion to observe that I consider myself bound by these principles, which were known and established as law in the courts of equity in England at the time of the institution of this court, and I shall certainly not pre- sume to strike into any new path with visionary schemes of innovation and improvement; Via antiqua via est tuta. .... This court ought to be as much bound as a court of law by a course of decisions applicable to the case, and establishing a rule. As early as the time of Lord Keeper Bridgmau, it was held that precedents were of author- ity (I Mod. 307. See the citation ante, in the note under § 59.) The system of equity principles which has grown up and become matured in Eng- § 62 EQUITY JURISPRUDZlvCE. 64 § 62. How the Equitable Jorisdiction is Determined at the Present Day. — Although the jurisdiction of chancery was originally based in great measure upon the omissions of the common law, the injustice of many of its rules, and its inability, from its modes of procedure, to grant the variety of remedies adequate to the wants of society and the demands of justice, yet since the equitable system has become fully established, and its principles settled, this origin of the juria diction is no longer regarded as furnish- ing the real criterion. The whole question by which the extent of the equity jurisdiction is practically determined is no longer, whether the case is omitted by the law, or the legal rule is unjust, or even the legal remedy is in- adequate, — although the latter inquiry is still sometimes made and treated as though it were controlling, — the question is, rather, whether the circumstances and rela- tions presented by the particular case are fairly embraced within any of the settled principles and heads of juris- diction which are generally acknowledged as constituting the department of equity.' Two results therefore fol- laad, and chiefly since Lord Kotting- fullness to enlarge the equitable prin- hain was appointed to the custody of ciples, to extend them over new facts the great seal, is a scientific system, and relations, and to render them being the result of the reason and the fruitful in the constant production of labors of learned men for a succession new rules. of ages. It contains the most enlarged ' The position which I maintain ia and liberal views of justice, with a well illustrated by a dictum of Jessel, mixture of positive and technical rules M. R. , — one of the most clear-headed founded in public policy, and indis- and able judges of this generation, — peusable in every municipal code. It in the recent case of Johnson v. Crook, is the duty of this court to apply the L. R. 12 Ch. Div. 639, 649. He is dis- principles of this system to individual cussing the question whether a certain cases as they may arise, and by this rule of equity jurisprudence had been means endeavor to transplant and in- established, and has cited a series of corporate all that is applicable in that decisions to show that it had not been system into the body of our own judi- established, but that the contrary rule cial annals, by a series of decisions at had been acted upon. He then adds: home." The propositions here quoted "Having examined all the authorties, are undoubtedly true, and yet the I cannot find a trace of it (i.e., the rule feeling cannot be avoided that they in question) before the case I am about do not represent the entire truth. The to mention, and therefore if there is character of Chancellor Kent's mind such a law it must have been made in was eminently conservative; and this the year 1866. Now, it could only conservative tendency has led him to have been made in the year 1S66 by suppress, or at least to refrain from statute, because in the year 1866 easpressing, the element of vitality and equity judges did not profess to make expmsion which inheres in the sys- new law, and when they state what tern, and the power of the court in its the law is, they do not mean, as might 65 THE NATURE OF EQUITY. § 63 low: First, a court of equity will not, unless perhaps in some very exceptional case, assume jurisdiction over a controversy the facts of which do not bring it within some general principle or acknowledged head of the equitable jurisprudence; and secondly, if the circum- stances do bring the case within any of these princi- ples or heads, a jurisdiction over it will be maintained, although the law may have been so altered by judicial action or by positive legislation that it has supplied the original omission, or has brought the legal rule into a conformity with justice, or has furnished an adequate legal remedy. This latter proposition is true as the gen- eral doctrine concerning the extent of the equity jurisdic- tion, but its operation has sometimes been prevented, and the jurisdiction itself denied, in such cases by express statute.' § 63. Becapitulation: Nature of Equity Stated in Four Propositions. — I shall bring this examination into the general nature of equity to an end by formulating four dis- tinct propositions: 1. The moral law, as such, is not an element of the human law. Whatever be the name under which it is described, — the moral law, the natural law, the law of nature, the principles of right and justice, — this code, which is of divine origin, and which is un- doubtedly compulsory upon all mankind in their personal relations, is not per se or ex propria vigore a part of the have been Baid two or three centuries becomes of great practical importance, before, that that was law which they This subject, as to the extent of the thought oughi to be law." To avoid a jurisdiction, which is here merely al- misunderstanding of this position, it luded to, will be fully examined in a must be remembered that I am speak- subsequent chapter, ing of the equity system as a whole, • In support of the general doctrine, as it exists in England, and in those see Shotwell v. Smith, 20 N. J. Eq. American states which have clothed 79; Segar v. Parish, 20 Gratt. 672; their courts with the entire equitable Pratt v. Pond, 5 Allen, 59; King v. jurisdiction of the chancery. In sev- Baldwin, 2 Johns. Ch. 554; Cannon v. eral of the states, a partial jurisdic- McNab, 48 Ala. 99; Collins v. Blan- tion only has been granted, and it is tern, 2 Wils. 341 ; Bromley v. Holland, by the express language of the stat- 7 Ves. 19, 21; Atkinson v. Leonard, 3 utes restricted to those oases in which Brown Ch. 218. But, per contra, see an adequate remedy cannot be ob- Ainsley v. Mead, 3 Lans. 116; Hall v. tained at law. In giving a construe- Joiner, 1 Rich., N. S., 186; Riopelle v. tion to this legislation, the question Doellner, 26 Mich. 102. whether the legal remedy is adequate 1 Ecj. Job.— 6 § 63 EQUITY JURISPRUDENCE. 66 positive jurisprudence which, under the name of the mu- nicipal law, each independent state has set for the gov- ernment of its own body politic. This truth, so simple and so plain, and yet so often forgotten by text-writers and judges, removes at once all doubt and difHculty from a clear conception of the positive human law, and of its relations with the higher and divine law which we call morality. Speculative writers upon the natural law may well see in it the foundation of all perfected human legis- lation, and it is not surprising that they should confound the two. It is surprising that those who treat of the human jurisprudence alone, and especially those who administer that jurisprudence, should confound the com- mands uttered by the divine Law-giver with those issued by human law-makers. It is true that many of the pre- cepts of this moral code relate to mankind considered as members of an organized society, — the state, — and pre- scribe the obligations which belong to them as component parts of a national body; and therefore these precepts are jural in their nature and design, and the duties which they impose upon individuals are of the same kind as those imposed by the human authority of the state. It is also true that human legislation ought to conform itself to and embody these jural precepts of the moral code; every legislator, whether he legislate in a Parliament or on the judicial bench, ought to find the source and ma- terial of the rules he lays down in these principles of morality; and it is certain that the progress towards a perfection of development in every municipal law con- sists in its gradually throwing off what is arbitrary, for- mal, and unjust, and its adopting instead those rules and doctrines which are in agreement with the eternal prin- ciples of right and morality. But it is no less true that until this work of legislation has been done, until the human law-giver has thus borrowed the rules of morality, and embodied them into the municipal jurisprudence by giving them a human sanction, morality is not binding 67 THE NATURE OF EQUITY. §§ 64, 65 upoa the citizens of a state as a part of the law of that state. In every existing municipal law belonging to a civilized nation, this work of adaptation and incorpora- tion has been performed to a greater or less degree. § 64. 2. Another very large portion of the precepts of morality are not jural in their nature; they do not relate to mankind considered as forming a society, as organized into a state, but only to individuals, prescribing their personal duties towards each other and towards God. These moral precepts create obligations resting upon separate persons, which the state and human law do not and cannot recognize or enforce; and they are left to be enforced solely by the divine sanction, acting in and upon the conscience of each person. Such obligations are often called "imperfect," which is in every point of view a very incorrect and misleading designation. Re- garded as parts of the divine code of morals, and as enforced by the divine sanction, they are as "perfect" and binding as any others; considered as parts of human jurisprudence to be enforced by human sanction, they are not simply imperfect, but are absolutely non-existent; they are no obligations at all. With this entire class of moral rules and precepts the law of the state does not and cannot deal; they do not act within the sphere of human legislation; they are not jural principles. The question then arises. Does the system of equity estab- lished in the United States and in England contain all the jural principles of morality which have been bor- rowed and incorporated into the municipal jurisprudence? The answer to this inquiry is contained in the two follow- ing propositions. § 65. 3. "Equity" alone does not embrace all of the jural moral precepts which have been made active prin- ciples in the municipal jurisprudence. The " law," even the "common law," as distinct from statutory legislation, has in the course of its development adopted moral rules, principles of natural justice and equity, notions of ab> § 66 EQUITY JUBISPRUDENCE. 68 stract right, as the foundation of its doctrines, and has infused them into the mass of its particular rules. Un- questionably at an early day the common law of Eng- land had comparatively little of this moral element; it abounded in arbitrary dogmas, as, for example, the effect given to the presence or absence of a seal; but this was the fault of the age, and the sin was chiefly one of omission; the ancient law was, after all, rather unmoral than immoral. But this has been changed, and at the present day a large part of the "law" is motived by con- siderations of justice, based upon notions of right, and permeated by equitable principles, as truly and to as great an extent as the complementary department of the na- tional jurisprudence which is technically called "equity." This work of elevating the law has been accomplished by two distinct agencies, judicial legislation and parliamen- tary legislation. At the present day the latter agency is the most active and by far the most productive; but prior to the epoch of conscious legal reform, which began in Eng- land about 1830, and at a considerably earlier day in this country, the great work of legislation within the domain of the private law, except in a few prominent instances, such as the Statute of Uses, of Wills, etc., was done by the law courts. In expanding the law, the judges in later times have designedly borrowed the principles from the moral code, and constructed their rules so as to be just and righteous. The legislature also has conformed the modern statutes to the precepts of a high morality, and their legislation has tended to correct any mistakes and to supply any omissions in the body of rules constructed by the legislative flinction of the courts. § 66. While the foregoing description is true of a large portion of the " law," it is also true that from the very necessities of the case there is another large part of the law which is and must be founded upon expediency rather than upon morality. The influence of ancient institutions, the motives of policy, the primary impor- 69 THE NATURE OF EQUITY. § 66 tance of certainty, the necessity of rules which shall cor- respond with the average conduct of men, — such, for example, as many rules of presumption which may pro- duce great wrong in particular cases, — these and other facts of equal importance must exist in every society, and must prevent a determinate part of its law from being constructed upon a basis of morality, and from admitting the creative force of purely moral principles. This in- herent necessity of a constituent part which is arbitrary and expedient, rather than just and righteous, is a most important distinction between the "law" and "equity." The element, however, of the English and American law, which has operated by far the most powerfully to retard its development in the direction of morality, which has placed an insuperable barrier to its perfected growth, which has rendered it incomplete as an embodiment of jural rights, unable to administer justice to the citizen in all bis relations, and unequal to the needs of society, has been and is its mode of procedure, its remedial system as a whole. This narrow, technical, arbitrary procedure, admitting growth in only one direction, granting but few remedies, and incapable of enlarging their number or changing their nature, was the fact which more than all else made it impossible for the " law " to borrow all the jural precepts of the moral code, incorporate them into its own rules, and administer the full remedial justice which these equitable principles demanded. The legal growth was stunted, its development was checked, its tendencies to do justice in all the private relations of soci- ety were thwarted by its partial remedies and its imper- fect means of administering them. From this cause the necessity of a distinct department of equity, with its own mode of procedure, and with absolute freedom and elas- ticity in the forms of its remedies, and their adaptation to the rights and duties of parties, has continued to the present day, and must continue until the principles and §67 EQUITY JUKISPKUDENCE. 70 rules of the common-law remedial system are utterly abandoned.* § 67. 4. As the expansive tendencies of the common law are thus confined within certain limits, and as its power to administer justice and to grant the variety of remedies needed in the manifold relations of society is incomplete, the English and American system of equity is preserved and maintained to supply the want, and to render the national jurisprudence as a whole adequate to the social needs. It is so constructed upon comprehen- sive and fruitful principles, that it possesses an inherent capacity of expansion, so, as to keep abreast of each succeeding generation and age. It consists of those doc- ciplea of natural equity which, though capable of being administered hy courts, have been omitted to be recog- nized as such, — an omission arising from that tendency of all human in- stitutions founded on a body of prin- ciples to assume a defined and solidified mass, refusing to receive further accessions even from a cognate source, and thus to become after a time incapable of expansion. Having thus mapped out the whole area of what is termed natural justice, — hav- ing seen that a large portion of it cannot be enforced at all by civil tribu- nals, that another large section of it is administered in courts of common law, and b third part enforced by legislative enactments, — we are in a position to indicate approximately the province of equity, technically so termed. Putting out of consideration all that part of natural equity sanc- tioned and enforced by legislative enactments, equity may then be de- fined as that portion of natural jus- tice which, though of such a nature as properly to admit of its being judicially enforced, was, from circum- stances, omitted to be enforced by common-law courts, — an omission which was supplied by the Court of Chancery. In short, the whole dis- tinction between equity and law may be said to be, not so much a matter of substance or principle as of form and history." These concluding sentences hardly contain an adequate conception of the English and American equity. * I quote the following passage from Mr. Snell's Principles of Equity (Introd., pp. 2, 3), which expresses substantially the same theory as that given in the text: " Are we, then, to infer that the equity of our Court of Chancery represents the residue of natural equity, or, to put it conversely, the whole of that portion of natural equity which may be enforced by legal sanctions, and administered by legal tribunals? The slightest ac- quaintance with English jurisprudence will show us that were we to arrive at this conclusion, we should ignore the claims of the common law and the statute law. Although, when we make use of the term ' common law,' we use it as contradistinguished from equity, technically so called, that circumstance should by no means blind us to the fact that in the main the common law is a system as much founded on the basis of natural justice and good con- science as our equity system; that if it has fallen short in its operation, its failure is rather to be attributed to defects in the modes of administering those principles than to any inherent weakness or deficiency of the princi- ples themselves. Clearly, therefore, another large portion of enforceable equity, often enfeebled though it be by a defective mode of administration, is to be found in the common law. And finally, we must look to the enactments of the legislature, the statute law, as embodying and giving legal sanction to many of those prin- 71 THE NATURE OP EQUITY. § 67 trines and rules, primary and remedial rights and reme- dies, which the common law, by reason of its fixed methods and remedial system, was either unable or inad- equate, in the regular course of its development, to estab- lish, enforce, and confer, and which it therefore either tacitly omitted or openly rejected. On account of the somewhat arbitrary and harsh nature of the common law in its primitive stage, these doctrines and rules of equity were intentionally and consciously based upon the pre- cepts of morality by the early chancellors, wlio borrowed the jural principles of the moral code, and openly incor- porated them into their judicial legislation. This origin gave to the system which we call equity a distinctive character which it has ever since preserved. Its great underlying principles, which are the constant sources, the never-failing roots, of its particular rules, are unques- tionably principles of right, justice, and morality, so far as the same can become the elements of a positive human jurisprudence; and these principles, being once incorpo- rated into the system, and being essentially unlimited, have communicated their own vitality and power of adap- tation to the entire branch of the national jurisprudence of which they are, so to speak, the substructure. It fol- lows that the department which we call equity is, as a whole, more just and moral in its creation of right and duties than tlie correlative department which we call the law. It does not follow, however, that the equity so described is absolutely identical with natural justice or morality. On the contrary, a considerable portion of its rules are confessedly based upon expediency or policy, rather than upon any notions of abstract right. I 68 BQUITY JURISPKUDBNCa. 72 SECTION III. ^THB PRESENT RELATIONS OF EQUITY WITH THE LAW. § 68. Importance of correctly understanding these present relations. § 69. Changes in the relations of equity to the law effected partly by statute and partly by decisions. f§ 70-88. Important instances of such changes in these relations. § 70. In legal rules concerning the effect of the seal. § 71. Ditto suits on lost instruments. § 72. Ditto forfeitures and penalties. §§ 73, 74. Ditto mortgages of land. § 75. In statutes concerning express trusts. § 76. Ditto recording and doctrine of priorities. § 77. Ditto administration of decedents' estates. § 78. Ditto jurisdiction over infants. §§ 79, 80. Diiio married women's property. § 81. In statutory restrictions upon the equitable jurisdiction. §§ 82, 83. In the practical abolition of the " auxiliary " jurisdiction. §§ 84-88. In the Reformed Procedure combining legal and equitable methods. § 68. Importance of Correctly Understanding These Present Relations. — In accounting for the historical ori- gin of equity, and in describing its general nature, it is necessary to go back to the period of its infancy and early growth, when the common law was also in its primitive and undeveloped condition. We thus naturally form a picture of the two systems standing in marked contrast and even opposition, acknowledging different sources, con- trolled by different principles, exhibiting different tenden- cies, each complete in itself and independent of the other. The impression which is thus obtained of their relations is too apt to be retained in describing the equity as it has existed at subsequent times, and even as it exists at the present day. The effect of such a tendency to confuse different epochs and conditions is shown in some of the treatises upon equity jurisprudence, which tacitly assume that all of the original antagonism still prevails, and which, ignoring the great and often radical changes made in the 73 PKESENT RELATIONS OF EQUITY WITH THE LAW. § 69 law, discuss their subject-matter as though the relations between law and equity continued to be the same as they were in the reign of Charles II., or even later, in the reigns of George III. and George IV., and under the chancellor- ships of Lord Thurlow and Lord Eldon, — as though all the harsh, arbitrary, unjust rules which then disgraced the law remained unmodified. Such neglect to appreciate the actual condition of the law will lead to the useless discussion of equitable doctrines which have become ob- solete, since all occasion for their application has been removed, and will produce, almost as a matter of course, a distorted representation of equity as a whole. In order, therefore, to form an accurate notion of equity, its present relations with the law must be carefully observed, and to that end the changes which have been made in the law itself, and which have modified those relations, must be pointed out at every stage of the discussion. Without undertaking to give an exhaustive enumeration, or any detailed description, I shall simply mention some of the most important classes of alterations which have been made in the law since the principles and doctrines of equity were definitely settled. § 69. Changes in the Relations of Equity to the Law. — These changes have certainly been very great. They have been effected, first, by the legislative work of the common-law courts; and secondly, by statutory legisla- tion. Since the docrines of equity began to react upon the law, and especially since the impulse given by the brilliant career of Lord Mansfield, the common-law courts have consciously adopted and applied, as far as possible, purely equitable notions — not so much the technical equity of the Court of Chancery, but the principles of natural justice — in their decision of new cases, and in the development of the law, until a large part of its rules are as truly equitable and righteous in their nature as those administered by the Chancellor. From time to time, the legislature .has interposed, and by occasional § 70 EQUITY JURISPRUDENCE. 74 statutes has aided this work of reform. During the past generation, since about 1830 in England, and an earlier date in the United States, this legislative process of amendment has been more constant, more systematic, and more thorough, extending to all parts of the law, and has been the chief agency in the work of legal reform. The result is, that many doctrines and rules which were once exclusively recognized and enforced by chancery have become incorporated into the law, and are now, and perhaps long have been, administered by the law courts in the decision of cases. In this manner, the law has been broughi at many points into a coincidence with equity. Nor has the legislative work been confined to the law; it has largely acted upon the system of equity, and has brought that system into a closer resemblance, external at least, with the law. These changes have naturally gone much further in the United States than in England; the law has been more essentially altered, and equity itself has been subjected to more limitations. The following instances are taken from the legislation, statu- tory or judicial, of this country. § 70. 1. Effect of a Seal. — One of the earliest in- stances of equity breaking in upon the common law was the relief which it gave to a debtor on a sealed instrument who had paid the debt in full, but had neglected to obtain a release or a surrender up of the contract. The legal rule was, that a sealed instrument could only be dis- charged by another instrument of as high a character, or else by a surrender of it, so that the creditor could not " make profert " of it in an action at law. Equity justly regarded the debt as the real fact, its payment as a sat- isfaction, and the seal as a mere form. It therefore relieved the debtor who had thus paid, and against whom an action at law was brought on the obligation, by re- straining this action; and the debtor was thus practically safe, although technically his legal liability still subsisted. Generalizing this particular rule, equity never gave the 75 PRESENT BBLATIONS OF EQUITY WITH THE LAW. § 70 consequence to a seal which the common law gave; it always looked below this mere form into the real relations of the parties, and rejected the dogma that a seal can only be discharged by an act of equal degree. These equitable doctrines have been transferred into the "law" of the United States. The special head of equitable relief first mentioned has become utterly obsolete, since the defense of payment in such cases has long been admitted by the common-law courts. In most of the states all distinction between sealed and unsealed instruments is abolished, except so far as the statute of limitations operates to bar a right of action; in others, the only effect of the seal upon executory contracts is to raise a prima facie pre- sumption of a consideration, while it is still required on a conveyance of land; in a very few, the common-law rule is retained, which makes the seal conclusive evidence of a consideration.' By this legislation, all the distinction between the legal and the equitable doctrines concerning contracts and other rights, except those growing out of a conveyance of land, founded upon the presence or absence of the seal, has been abrogated. The equitable doctrines, of course, remain, but they have become a part of the law, and no necessity remains of applying to courts of equity for their enforcement. Even the equitable rule permit- ting a sealed agreement to be modified or replaced by subsequent parol contract is generally adopted by the law courts, except in cases where the statute of frauds prevents its operation.* ' In some states the seal is only (1S68), p. 183, sees. 6-8; Kentucky, 1 presumptive evidence of a conaidera- R. S. (Stanton's), p. 267, sees. 2, 3; tion: See New Ym-h, 2 R. S. 406, sec. Nebraska, Gen. Stats. (1873), p. 1001; 77; Alabama, Rev. Code (1867), p. 526, Tennessee, Gen. Stats. (1871), sees, sec. 2632; Michigan, Comp. Laws 1804, 1806; Texas, Pasch. Dig., vol. 1, (1871), vol. 2, p. 1710, sec. 90; Oregon, sec. 5087 (on contracts and conveyances Gen. Laws (1872), p. 258, sec. 743; "respecting real orpersonalproperty"). Texas, Fasch. Dig., vol. 1, sec. 228. In * See notes to Rees v. Berrington, 2 many states all distinction between Eq. Lead. Oas. 1867, 1896 (4th Am. sealed and unsealed instruments is ed.); Hurlbut y, Phelps, 30 Conn. 42; abolished, and a seal is never essential; Headley v. Goundry, 41 Barb. 279; See California, Civ. Code, sec. 1629; Clark v. Partridge, 2 Pa. St. 13; 4 Indiana, 2 R. S. (G. & H.), p. 180, sec. Pa. St. 166; Keisselbrach v. Living- 273; Imoa, Rev. Code (1873), p. 383, ston, 4 Johns. Ch. 114; Kidder v. sees. 2112-2114; Kansas, Gen. Stats. Kidder, 33 Pa. St. 268. § 71 KQTTITT JDEISPBUDKNCE. 76 § 71. 2. Lost Instruments. — By another ancient doc- trine of the common law, the creditor on a sealed instru- ment which had been lost or accidentally destroyed was prohibited from maintaining an action upon it, because he could not make the "profert" which the inflexible rules of the legal procedure required. Equity, disregard- ing this form, gave him relief by enforcing the demand. At a latter day, when negotiable paper came into use, the owner of a bill or note so drawn that it could be nego- tiated by delivery, who had lost it, was debarred from suing upon it at law, because the common-law courts had no means, according to their rigid forms of procedure, of compelling hira to indemnify the defendant against a second claim made by any bona fide holder into whose hands the paper might have come. As the Court of Chan- cery has such power, through its ability to shape its re- medial processes so as to meet any new emergency, it acquired jurisdiction in this class of cases, and for a long time all suits upon such lost negotiable paper were neces- sarily brought in equity. Both of these legal rules have been changed. The courts of law have long been able to entertain actions upon lost or destroyed bonds and other sealed instruments, since the ancient requirement of a profert by the plaintifif has been abrogated. Statutes have generally been enacted in the American states which permit actions at law on lost negotiable paper to be brought by the owner, who is simply required, as a preliminary step, to execute and file a bond of indemnity to the defendant.' In this manner the necessity for equi- table interference has been removed, and all such actions to recover a money judgment upon lost obligations or negotiable instruments are brought in courts of law ac- cording to the legal modes of procedure. § 72. 3. Penalties. — Another most important class of changes in the law consists in the adoption, to a consid- ' Examples of such statutes are, 3 (5th ed.); Civil Code of CaL, eeo. N. Y. R. S., p. 691, sees. 106, 108, 3137. 77 PRESENT BELATIONS OF BQUITT WITH THE LAW. § 73 erable extent, of the equitable doctrines concerning pen- alties and forfeitures. The ancient common law rigidly exacted all penalties and enforced all forfeitures if the act which should prevent them was not done at the very time and in the precise manner stipulated. Equity from the earliest period of its growth adopted the policy of relieving against penalties and forfeitures, by generally treating the time of performance as immaterial, and a sub- stantial conformity to the stipulated manner of it as suf- ficient, and by giving to the creditor what was justly and equitably his due, and compelling him to forego the sur- plus which he had exacted, and which the law permitted him to retain. These equitable doctrines have to a great extent been transferred into the law of the American states. Law courts give judgment for the amount really due, and not for the penalty, and often accept a subse- quent performance without exacting the forfeiture. The most familiar example is that of a bond with penalty, conditioned for the payment of a smaller sum which rep- resents the real debt. The equitable doctrine restricting the recovery to the sum constituting the actual debt, with interest for the delay, has been everywhere accepted as a settled rule of the law. This modification of the common law has generally been extended so as to include all cases where a penalty or forfeiture has been agreed upon as security for the payment of a certain or ascertainable sum of money. §73. 4. Mortgages. — Intimately connected with the equitable doctrine relating to forfeiture is the remarkable change which has been made in the law of the American states concerning mortgages of land. Without attempt- ing to describe either the common law or the equity doctrine as to mortgages, it is sufiicient for my present, purpose to state very briefly their results. Under the common law and equity in combination, two different kinds of interests or estates, the legal and the equitable, are simultaneously held in the mortgaged premises by the § 74 EQUITY JUKISPEUDENCE. 78 two parties. The mortgagee is the legal owner, and after a default is entitled to the possession of the land; he can convey his estate, not by an assignment of the mortgage, but by a deed of the land itself; on his death it descends to his heirs or passes to his devisees, and does not go to his administrators or executors; in short, he is at law clothed with all the rights and powers of legal ownership.' On the other hand, the estate of the mortgagor, after de- fault, is purely an equitable one, a right to redeem the land from the mortgagee, his heirs, devisees, or grantees, and therefore very properly denominated "an equity of redemption." Equity regards this interest of the mortga- gor as the real beneficial estate in the land, subject, how- ever, to the lien and encumbrance of the mortgage, and as such it can descend to his heirs, pass to his devisees, or be conveyed by deed to his grantees. According to the equitable theory, the interest of the mortgagee is simply a lien and encumbrance on the premises, and not an estate in the land itself. These legal rules, and this double ownership resulting therefrom, prevail in England, and are still retained in most of the New England states and in a few of the other commonwealths; but through- out the greater part of the country a radical change has been made in the law, and its doctrines as to the respect- ive rights and interests of the mortgagor and mortgagee have been substantially conformed to those of equity. I shall take the law of New York as the type. § 74. In New York — and its legislation has been sub- stantially followed in so many of the states that it may fairly be said to express the American doctrine — there is no longer any double ownership nor any equitable estate in the laud; there is one legal estate only, and that be- longs to the mortgagor until it is cut off by foreclosure and sale. The interest of the mortgagee, under ordinary circumstances, is not an estate of any kind in the land; ' I have assamed in this deBcription that the mortgage is in fee, which ia the common case in the ITuited States. 79 PKKSENT RELATIONS OF EQUITY WITH THE LAW. § 75 he is simply a creditor holding a lien upon the mortgaged premises as security for his debt, which lien he must en- force by a foreclosure and sale. He is not entitled to possession, and cannot maintain ejectment either against the mortgagor or a stranger. On his death his interest is wholly personal assets, and goes to his administrator or executor. He cannot convey the land, and his deed of it could operate (if at all) only as an assignment of the mortgage. He can assign the mortgage by mere delivery; but so completely is the debt the principal thing and the mortgage an incident, that an assignment of the debt car- ries with it the mortgage as a collateral, while an assign- ment of the mortgage without the debt is a nullity. On the other hand, the mortgagor is the owner of the entire legal estate, subject to the lien and encumbrance of the mortgage, until his title is divested by a foreclosure and sale; the term " equity of redemption," when used to desig- nate his interest, is therefore a complete misnomer, pro- ductive only of confused and mistaken notions. As such owner, the mortgagor can convey, mortgage, or devise the land, and if he dies intestate, it descends to his heirs. These rules no longer form a part of the equitable doc- trine merely; they are, partly as the results of statutes and partly of judicial decision, rules of the law, constantly recognized and enforced in all the courts of common-law jurisdiction.* The effect of these alterations in the law upon the equity jurisdiction has certainly been very great. §'75. 5. Express Trusts. — Another important change in the relations between law and equity has been effected by the statutes of many states concerning express trusts in land. By the English law, in the absence of, any statutory restriction, express active trusts may be created for all possible purposes, and express passive trusts corre- ' For example, every court of law interest of the mortgagee, npon hia will recognize and enforce an assign- death, is recognized as devolving upuu ment of the debt and mortgage made hia personal representatives, while that by the mortgagee; and in every such of the mortgagor is treated as desoend- conrt, as well as in courts having ing to his heirs or as passing to hia jurisdiction of probate matters, the devisees. § 76 EQUITY JUKI8PKUDENCB. 80 sponding with all the various legal estates, in fee, for life, for years, in possession, and in remainder, as the case may be. In the latter class of trusts the naked legal title only is vested in the trustee, while the equitable in- terest of the beneficiary is the one which possesses all the attributes of real ownership. The field of equity juris- diction which these trust estates presented has been greatly narrowed by the policy of American legislation. The statutes of New York and of many other states have at one blow abolished all express passive trusts, and have restricted express active trusts to a very few specified objects,' declaring void all those attempted to be created for other purposes. Even in the few cases where these trusts are permitted, the entire estate is vested in the trustee; the beneficiary has no ownership, legal or equi- table, in the land; his sole interest is simply a right in equity to compel a performance by the trustee of the obligations created by the trust, — a right of action merely, and not an equitable estate of any kind in the subject-matter. This great alteration in the relations of the law and equity with respect to trusts in land has necessarily produced an important efl^ect upon the extent and scope of the equity jurisdiction throughout a great part of the United States. § 76. 6. Recording and Priorities. — The system of recording couveyances and mortgages of land which uni- versally prevails throughout this country has greatly modified and simplified the doctrines of equity concern- ing notice which afiect titles to real estate. While the fundamental principles with respect to notice are un- changed and form a part of our own equitable jurispru- dence, it is not too much to say that most of the particular ' The following are the objects for it; 3. To hold and manage the land which express active trusts are gen- for the purpose of receiving its rents erally permitted in the states which and profits and applying them to the have adopted this legislation, namely: use of a beneficiary; 4. To hold and 1. To sell the land for the purpose of manage the land for the purpose of paying debts; 2. To sell, mortgage, receiving its rents and profits and ac- or lease the land for the purpose of cumulating them during the minorities paying legacies or other charges upon of infant beneiiciariea. ' 81 PRESENT RELATIONS OF EQUITY WITH THE LAW. § 77 rules relating to titles which have been developed from these principles by the English Court of Chancery have little or no application in the United States. § 77. 7. Administration. — Equity, in the exercise of its unrestricted powers, has jurisdiction in the matter of settling the personal estates of deceased persons; and in England this is undoubtedly the most important branch of the equitable jurisprudence, — a very large proportion of the suits brought in the Court of Chancery are ad- ministration suits. The jurisdiction may theoretically remain in some of the states which have conferred full equity powers upon their courts; it does not even nomi- nally exist in the others; and it is practically unknown throughout the entire country. As administered in England, this head of jurisdiction includes everything pertaining to the settlement of decedents' estates, except ihe probate of wills, and the issue of letters testamentary and of administration; and there is a considerable dis- crepancy between the legal and the equitable rules con- cerning the nature, distribution, and marshaling of assets. In the American states these matters are all governed by statutes, which determine the nature and regulate the application and distribution of assets by fixed and certain rules binding alike upon all tribunals. Probate courts are established for the settlement of decedents' estates, and all questions arising in the course of administration are decided by them, to the practical exclusion of the equity jurisdiction. Equitable suits growing out of pend- ing administrations are still frequent, but they are brought for some special and partial relief, for the construction of a will, the determination of a controversy arising with respect to a particular legacy, the adjustment of conflict- ing claims to a particular fund, and the like. It is true that the statutory rules for the settlement of estates are largely based upon the principles which had been settled in equity, and that equitable doctrines are constantly enforced by the courts of probate; but it is no less true 1 Eq. Jde.— 6 §§ 78, 79 EQUITY JURISPEUDENCK. 82 that this important head of equity jurisdiction has been greatly restricted, or even practically abandoned, in all the states. §78. 8. Infants. — Another branch of the jurisdiction equally familiar to the English lawyer, and equally un- known in the United States, in that over Infants. When- ever an infant succeeds to property, the English chancery takes the management of his person and his estate. A proper suit having been commenced, the court appoints a guardian (in the absence of a testamentary appoint- ment), and the infant is thenceforward a "ward of the court," under its actual paternal care. In some of the states, the courts possessing full equitable jurisdiction have theoretically the power to appoint a guardian; but even if this power should be exercised, the court does not make the infant its ward and extend a personal oversight over him. In this matter, however, as in the administra- tion of decedents' estates, the legislature has intervened, and the probate courts practically appoint all guardians, and control their official actions. Under their general power in cases of trust and of accounting, the American courts of equity may give all proper relief to wards against their guardians; but the peculiar jurisdiction over the persons and estates of infants possessed by the English chancery does not, to any extent, exist in the American equity jurisprudence. § 79. 9. Married Women. — One of the most impor- tant of the alterations made in the relations between law and equity is that caused by the legislation concern- ing married women's property and capacity to contract. The following outline will give a general notion of this legislation; its details must be postponed for a subsequent examination. In nearly all the states the common-law rules giving the husband an ownership or interest in his wife's property have been abrogated; the wife is clothed with a full legal estate in and right to all the property, real and personal, which she has at the time of the mar- 83 PRESENT RELATIONS OF EQUITY WITH THE LAW, § 80 riage, or which she may acquire by inheritance, by will, conveyance, grant, or gift, during its continuance; and she has generally the entire power of its management and disposition, as though she were unmarried. This is the prevailing type of statute, but in some of the states the husband must join in a deed or mortgage of her land, and in a very few he is still entitled to its possession. In addition to the foregoing, there are certain special forms of legislation prevailing over large portions of the country. A number of the western and southwestern states have substantially adopted the French system of "commu- nity of assets," whereby the two spouses are co-owners of the community property, which is under the husband's exclusive management during their joint lives. With reference to the wife's capacity of entering into contracts, there are two general types or classes of the legislation. By the first, which is confined to a comparatively few states, she is clothed with full power to contract in any business, trade, or profession which she carries on, and also with reference to her own property, and the latter embraces all agreements made for the benefit of her property, and all agreements made for any purpose which are expressly charged upon such property. All these con- tracts are legal in every sense of the term, and not equi- table. When once made, they become personally binding upou her, and are enforced by ordinary legal actions, legal pecuniary judgments, and executions. By the sec- ond class, which prevails in most of the states, the wife's capacity is limited to agreements made with reference to her property; these contracts are wholly equitable in their nature and obligation, and can only be enforced by an equitable action against the property itself, and not against the wife personally. § 80. The effect of this legislation upon the equity jurisdiction in the United States must be very great. In the first place, the married woman's equitable separate estate, and the doctrines of equity directly concerned § 80 EQUITY JURISPEUDENCE. 84 with its maintenance, are, for the future at least,' super- seded. The fabric constructed by the chancellors with so much acumen and skill, in order to protect the natural rights of wives which the law ignored, is virtually over, thrown. The law, by conferring full legal ownership upon married women, has done for them much more than family settlements or nuptial contracts can do, even when enforced by courts of equity. Equity in the United States is thus at one blow relieved of a subject- matter which in England occasions a very large part of its actual jurisdiction. With respect to the contracts of married women, the effect of the modern legislation has been directly the opposite in different states. In those commonwealths where wives have been clothed with the large capacity to contract, and their contracts have been made legal, the equitable jurisdiction over their agreements has been virtually abrogated. Whatever kind of contract is within the power of a married woman falls under the ordinary jurisdiction of the law courts, and a suit in equity to enforce it as a charge upon any specific property belonging to her would be useless, even if it could now be maintained. In all the other stattts where the wife's contracts are not yet made legal, the equitable jurisdiction is to a certain extent enlarged. It is no longer confined in its operation to her separate equitable estate held in trust for her by au express or implied trustee; it reaches to and operates upon all her property of which she holds the full legal title and in- terest. While the wife's power to make contracts which shall be a charge upon her property is not increased, the ' These statutes, of course, do not men in future, and such trusts are affect existing estates held in trust for even now occasionally created; but wives; but in many of the states they all necessity for them, in order to pro- authorize the wife, by means of an or- tect wires against the acts or defaults der of court, to convert such equitable of husbands, is removed, and the only interests into legal estates; that is, to advantage of such a tinst is the pro- compel a conveyance of the land di- tection of the land against the acts of rectly to themselves by the trustees, the wives themselves, by so arranging Nor do these statutes forbid the crea- the ownership that they can neither tion of trusts in favor of married wo- alienate nor encumber it. 85 PEESENT RELATIONS OF EQUITY WITH THE LAW. § 82 property thus affected, and which can be reached by a court of equity, is all which the wife holds in her own name and right by a legal title. § 81. 10. Statutory Limitations of Equity. — The changes in the relations of law and equity described in the foregoing paragraphs are chiefly those resulting from alterations made in the law itself, by which it has as- sumed more of an equitable character; those to be here- after described have resulted from modifications of equity jurisdiction or jurisprudence. In several of the states the full equitable jurisdiction exercised by the English chan- cery has never been conferred upon any tribunal. A partial jurisdiction only is possessed by some designated court, derived from and measured by statute, defined, limited, confined to certain enumerated classes of subject- matters. This fact, which is most important to members of the profession practicing in all parts of the country, should not be overlooked in a treatise upon equity as it is administered in the United States. § 82. 11. The Auxiliary Jurisdiction. — A distinct de- partment of equity jurisdiction which arose at an early day from the imperfection of the legal procedure was termed Auxiliary, since it was exercised, not to obtain any equitable remedy, nor to establish any equitable right or estate, but to aid in maintaining a legal right, and in prosecuting actions pending or to be brought in a court of law. This ancillary function of chancery was the ne- cessary result of certain inflexible legal rules — especially those concerning the examination of witnesses and the obtaining of evidence — which interfered with the ad- ministration of justice in the common-law courts. The most important and common instances of this auxiliary jurisdiction were " Suits for Discovery " and " Suits for Perpetuations of Testimony," or for taking testimony " de bene esse." A brief description of these proceedings — once so essential for the attainment of justice — will suf- fice for my present purpose. An action at law affecting § 82 EQUITY JURISPKUDENCE. 86 property rights is pending between A and B. Either one of the parties, — I will assume it to be the defendant, B, — fearing that he cannot succeed without the help of facts within the personal knowledge of his adversary, commences a suit in equity against A, setting forth in his bill all the facts of the case, and adding thereto such interrogatories as he thinks will elicit the truth from A. A is thereupon obliged to answer this bill under oath, fully, and without reservation or evasion. No further re- lief is asked by the plaintiff, no decree is made, and as soon as the answer is complete, the function of the equity court is ended. Having thus obtained the written state- ments of his adversary under oath, B can, if he please, use them as evidence on the trial of the action at law; and un- der certain circumstances the same privilege may be en- joyed by A to use his answer as evidence in his own behalf. Such was the nature and office of the " Bill of Discovery"; and for a long time it was the only means of obtaining the evidence of the parties for use on the trial of legal ac- tions. The " Suits to Perpetuate Testimony " or to take testimony de bene esse were special modifications of this contrivance. Where a dispute with respect to property rights existed between A and B, and in the one case no action had yet been brought, and could not yet be brought, while in the other case an action had already been com- menced, and important evidence is within the knowledge of persons who, from age, sickness, or other sufficient cause, may not be able to testify upon the expected trial, either of the contestants may bring a suit in equity against the other, not for the purpose of trying and de- ciding the matters in controversy, but for the purpose merely of eliciting the facts through the answer and of taking the testimony of the witnesses. The answer and depositions, being preserved in the offices of the chancery, can then be used upon the trial of the legal action, when- ever it shall take place. In other words, a court of equity entertained jurisdiction of the matter to the extent of 87 PRESENT RELATIONS OF EQUITY WITH THE LAW. § 83 taking the evidence and putting it into a permanent form, so that it might be " perpetuated " for future use in a court of law. ' § 83. These instances of auxiliary jurisdiction have wholly disappeared from the English system under the late reorganization of the courts and the procedure,* and have almost entirely disappeared from the equity as ad- ministered in the United States.' In England, in the states of this country generally, and in the United States courts, parties are permitted to testify in their own behalf, and are required to testify in behalf of their adversaries, in all actions and proceedings of a civil nature, so that every ground or reason for a " bill of discovery " has been removed, by the far more efficient means of an oral and personal examination conducted by counsel in open court. In the states which have adopted the reformed American procedure, suits for mere discovery have been expressly abolished, since the defendant in all actions, with certain exceptions, can be compelled to answer under oath and to testify as a witness. In other states which keep up the two jurisdictions of law and equity administered by the same tribunal, discovery as an auxiliary to trials at law is no longer necessary; and is, I believe, practically obso- lete even where not formally abrogated.* In the few states which still retain a separate Court of Chancery, this jurisdiction may be nominally preserved. The juris- diction to perpetuate testimony has generally been sup- ' See poBt, §§ 238-242, where these or the American procedure which pre- proceedings are more fully described, vents the plaintiff in any action from ' See Judicature Act, Bules of Fro- taking advantage of all snch admis- cednre, 25-27. siona and disclosures of fact which ' It should be carefully observed the defendant in that action may that this proposition is confined to make by his answer; on the contrary, "bills of disco very, "properly so called, such disclosures in the pleadings are as described in the text. The term favored and sometimes required. But " discovery " is often applied, but very this is not " discovery, technically improperly applied, to the statements and properly so called, and admissions made by the defend- * In several of the states which ant in his answer, which may be use- have not adopted the reformed pro- fnl to the plaintiff as evidence in the cedure, " bills of discovery " are ex- same suit in which the answer is filed, pressly abolished. There is nothing in either the English § 84 EQUITY JUEISPRUDBNCB. 88 planted by simple, inexpensive, and more summary and efiQcient methods prescribed by statute, which can be applied to all actions for the purpose of obtaining and preserving any species of evidence. It seems to be still retained, however, upon the statute-books of several of the states. § 84. 12. The Reformed Procedure. — The most rad- ical and extensive alteration in the relations between law and equity has been wrought by the Reformed American Procedure, which prevails in more than half the common- wealths of this country, and all the essential features of whiph are enacted by the recent English Judicature Act.' The grand underlying principle of this system consists in the abolition of all the forms of legal actions, the ab- olition of all distinctions between actions at law and snits in equity, and the establishment of one Civil Action for the enforcement of all remedial rights. In and by this one civil action, legal and equitable causes of action, legal and equitable defenses, and legal and equitable remedies may be united, and may be determined by the same judgment. It has been settled by numerous decisions, wherever this system exists, that the legislative changes, being confined to procedure, have not affected the sub- stantial doctrines either of law or of equity, — those doc- trines which define and declare the primary rights and duties of individuals, and the remedies or reliefs to which they may be entitled. This proposition must, however, be accepted and understood with its proper and necessary limitations. The legislation has done much more than alter the mere external forms and modes of procedure; it has necessarily affected to a certain extent the equity jurisdiction in the granting of its remedies, and has in some instances rendered the exercise of that jurisdiction unnecessary, by removing the ground and occasion for the remedies. In other words, the legislation has made it unnecessary, under certain circumstances, to bring a * See ante, % 40, note. 89 PRESENT KELATI0N8 OF EQUITY WITH THE LAW. § 85 auit in equity and to obtain specific equitable relief. The most important of these results I shall point out in a very brief manner.* § 85. In the first place, the permission to set up an equitable defense against a legal cause of action has in a great number of instances removed all occasion for bring- ing a suit in equity by which the equitable right of the defendant constituting his defense may be established and the prosecution of the legal action may be restrained. I take a simple example of a very large class of cases. A, the vendor in a contract for the sale of land, brings an action of ejectment against B, the vendee, who is in pos- session, and having the legal title, must of course recover at law. B was therefore obliged to file a bill in equity against A, and obtain thereby a decree of specific per- form^ance, and in the mean time an injunction restraining the further prosecution of the action at law. Having ob- tained a conveyance of the legal title under his decree, B would be in a position to defend the action of ejectment, or any subsequent one which might be brought against him. By the reformed procedure, when the vendor com- mences a legal action to recover possession of the land from the vendee, the latter need not resort to a second equitable suit, nor obtain an injunction. The whole controversy is determined in the one proceeding. B's equitable estate and right to a conveyance is not only a negative defense to A's legal cause of action, but entitles B in the same action to assume the position of an actor, and to obtain the full afiirmative relief which he would formerly have obtained by his separate bill in equity, — a decree for a specific performance and a conveyance of the legal estate. Although, no substantial doctrines of equity have been altered, still, the vendee is no longer compelled in such circumstances to sue in equity, nor to demand the ancillary remedy of an injunction. § 86. This familiar example may be generalized into > pSee poat, § 354, and note.] § 85 EQUITY JUlilSPfiUDENCE. 90 the following universal proposition: Whenever, under the former procedure, one party. A, had a legal estate or right which entitled him to recover in an action at law brought against B; and where B, having no legal defense to this action, was still possessed of an equitable estate or right which entitled him to some particular affirmative equitable remedy, — as, for example, a specific perform- ance, a reformation or correction, a cancellation, a rescis- sion, etc., — which remedy when obtained would clothe him with the legal estate or right, and enable him thereby to defeat the plaintiff A's action at law; and where, under these circumstances, B would be obliged to go into a court of equity jurisdiction, and file a bill therein against A, and obtain a decree granting the desired equitable re- lief, and, as an incident thereto, procure an injunction restraining A's action at law, — in all such cases, the ne- cessity, and even the propriety, of bringing the separate equity suit and enjoining the legal action are completely obviated, since B can set up all his equity by way of de- fense or counterclaim, recover a judgment for the affirm- ative relief which he seeks, and defeat the action brought against him by A, in that very action itself. It would not be correct to say that the equity jurisdiction has been abrogated in this class of cases, since the defendant B might possibly follow the former method, and bring a separate action instead of setting up his equitable rights as a defense and counterclaim; but this circuitous mode of proceeding is seldom adopted, and will ultimately, per- haps, be prohibited by the courts, so that this direct equity jurisdiction will doubtless, in time, become obso- lete.* > The following cases illustrate the 131; Cavalli v. Allen, 57 N. Y. 608, operation of equitable defenses: Dob- B14; Andrews v. Gillespie, 47 N. Y. son V. Pearce, 12 N. Y. 156; 62 Am. 487, 490; McCIane v. White, 5 Minn. Dec. 152; Pitcher v. Hennesey, 48 N. 178; Richardson v. Bates, 8 Ohio St. Y. 415; Heermans v. Robertson, 64 N. 257, 264; Petty v. Malier, 15 B. Men. Y. 332; Crary v. Goodman, 12 N. Y. 604; Harris v. Vinyard, 42 Mo. 568; 266, 268; 64 Am. Dec. 506; Hoppough Onson v. Gown, 22 Wis. 329; Talbert V. Struble, 60 N. Y. 430; Bartlett v. v. Singleton, 42 Cal. 390, 395, 396; Judd, 21 N. Y. 200, 203; 78 Am. Deo. Brack v. Tucker, 42 Cal. 346, 352; 91 PRESENT RELATIONS OF EQUITY WITH THE LAW. § 87 § 87. One other equally important change produced by the reformed procedure should be mentioned. Un- der the system of separate jurisdiction, when a person possesses an equitable right or estate entitling him to some particular equitable remedy which, when obtained, would, in turn, confer upon him a legal right or estate in respect to the subject-matter, and enable him therewith to maintain an action at law, he is obliged (except in a few special cases) first to bring a suit in equity and pro- cure a decree establishing his right and granting him the needed equitable remedy, which clothes him with the legal title or estate. Having thus acquired a legal basis for his demand, he must go into a court of law and en- force his newly perfected legal demand by means of a legal action. As familiar illustrations, if a person holds an equitable estate under a land contract, he must com- pel a specific performance in equity before he can recover possession of the land at law; if he holds the equitable estate under an implied trust, he must in gen- eral obtain a transfer of the legal title from the trustee before he can maintain ejectment for the possession; if the instrument under which he claims is infected with mis- take, and his full rights under it depend upon a correction •of the mistake, he must obtain the remedy of reformation or re-execution in equity, and may then enforce his per- fected legal right by the proper action at law; if his estate in land is purely an equitable one because a deed voidable through fraud has conveyed the legal title to another person, the equitable remedy of cancellation or rescission must be granted before a legal action for the possession can be successful. Wherever the reformed procedure has been administered according to its plain intent, the necessity of this double judicial proceeding Lombard v. Cowham, 34 Wis. 486, obtain his equitable remedy by an af- 492. There may still be cases in which firmative decree, and in the mean time the defendant in the action at law can- an injunction restraining the action at not obtain full relief by means of an law. See this question quite fully dis- equitable defense, and is obliged to cussed by Folger, J. , in Erie Railway bring a separate suit in equity, and to Co. T. Bamsey, 45 N. Y. 637. § 88 EQUITY JUKISPEUDENCK. 92 bas been obviated; indeed, if the true spirit of the new procedure is accepted by the courts, such a separation of equitable and legal rights and remedies, and their prose- cution in distinct actions, will not perhaps be allowed. The plaintiff brings one civil action in which he alleges all the facts showing himself entitled to both the equi- table and the legal reliefs needed to complete his legal right, and asks and obtains a double judgment, granting, first, the proper equitable remedy, and secondly, the legal remedy, by which his juridical position with respect to the subject-matter is finally perfected;* or he may simply demand and recover a judgment conferring only the final legal remedy, the preliminary equitable relief being as- sumed as an essential prerequisite to the recovery, but not being in terms awarded by the court.* It follows, as an incident of tbis union of rights and remedies in one action, that all occasion for the ancillary or provisional equitable remedy of injunction to restrain the defendant from proceeding at law is often, and indeed generally, avoided in this class of cases. § 88. The results of this reform in the procedure might be described with much more detail; but I have already accomplished my purpose, which was to indicate some of the great changes made by judicial decisions- and by acts of the legislatures in the relations formerly subsisting between law and equity, and in the body itself of equity jurisprudence. The foregoing sketch, mere outline as it is, also shows very plainly that a treatise which would accurately represent to the reader the equity jurisprudence of the United States must conform to mod- ern facts, rather than follow ancient traditions. It must ■ As illustrations, see Laub v. Buck- 17 Minn. 104, 108. But see Super- miller, 17 ST. Y. 620, 626; Lattin t. visors v. Decker, 30 Wis. 624. McCarty, 41 N. Y. 107, 109; N. Y. ' See Bidwell v. Aster Ins. Co., 16 lee Co. V. N. W. Ins. Co., 23 N. Y. N. Y. 263, 267; Phillips v. Gorham, 357; Cone v. Niagara Ins. Co., 60 17 N. Y. 270; Caswell v. West, 3 N. Y. 619; Turner v. Pierce, 34 Wis. Thomp. & 0. 383; McNeady v. Hyde* 658, 665; Gray v. Dougherty, 25 CoL 47 Oal. 481, 483; Sternberger v. Mo- 266; Henderson v. Dickey, 50 Mo. Govern, 56 N. Y. 12, 21. 161, 165; Guernsey T. Am. Ins. Co. 93 THE CONSTITDBNT PAETS OF EQUITY. § 89 recognize the existing condition, both of the law and of equity, the limitatione upon the chancery jurisdiction, the alterations made by American legislation, institutions, and social habits. Many doctrines and modes of apply- ing the jurisdiction which were important at an earlier day, and are perhaps still prominent in England, have become practically obsolete in this country, while others have risen in consequence, and are constantly occupying the attention of the courts. It is my purpose to discuss and describe the equity jurisprudence as viewed in this light, and to present the system which is now adminis- tered by the state and national courts of the United States. It is true that the fundamental principles are the same as those which were developed through the past centuries by the English chancery; but the application of these principles, and the particular rules which have been deduced from them, have been shaped and de- termined by modern American national life, and have received the impress of the American national character. SECTION IV. THE CONSTITUENT PARTS OF EQUITY. § 89. Object of this section. §§ 90, 91. Rights are either " primary " or " remedial "; each described. § 92. Divisions of " primary " rights, viz. : 1. Those concerned with personal status; 2. Those concerned with things. §§ 93-95. Two general classes of rights concerned with things, viz. ; " real " and "personal"; each described. §§ 96, 97. What of these kinds of rights are embraced within equity; both "primary" and "remedial." §§ 93-107. I. Equitable primary rights, kinds and classes of. §§ 103-116. II. Equitable remedial rights, kinds and classes oL § 112. General claases of equitable remedies. §S 113-116. Mode of administering them. § 116. How far legal and equitable modes can be combined. $117. Recapitulation. § 89. Object of This Section. — I have thus far de- scribed the historical origin of equity, and its general §§ 90, 91 EQUITY JURISPBUDENCB. 94 nature considered simply as a separate department of the national jurisprudence, and in its relations with the other department called the "law." It is necessary now to make a closer investigation into the internal elements and features of equity, and to determine its constituent parts, — the character of the rights and duties created by its doctrines and rules. § 90. Classes of Rights. — Laying out of view the rules which form the "public law" and the "criminal law," all the commands and rules which constitute the " private civil law " create two classes of rights and duties, the "primary" and the "remedial." The pri- mary rights and duties form the body of the law; they include all the rights and obligations of property, of contract, and of personal status; they are the very end and object of all law. If mankind were so constituted that disobedience to legal rules was impossible, then the law would be entirely made up of the rules which create these primary rights and duties. But since all these pri- mary rights and duties may be violated, another branch of the law becomes necessary, which may enforce obe- dience by means of the " Remedies " which it provides. All possible remedies are either substitutes or equivalents given to the injured party in place of his original primary rights which have been broken, or they are the means by which he can maintain and protect his primary rights in their actual form and condition. Remedial rights are those which a person has to obtain some appropriate remedy when his primary rights have been violated by another. Remedial duties are those devolving upon the wrong-doer in such case to give the proper remedy prescribed by law. § 91. Primary and remedial rights and duties stand towards each other in the following relations: Every com- mand or rule of the private civil law creates a primary right in one individual, and a primary duty correspond- ing thereto resting upon another person or number of 95 THE CONSTITUENT PARTS OF EQUITY. § 92 persong. These rights and duties are, of course, innu- merable in their variety, nature, and extent. If a person upon whom a primary duty rests towards another fails to perform that duty, and thereby violates the other's primary right, there at once arise the remedial right and duty. The one whose primary right has been violated immediately acquires a secondary right to obtain an ap- propriate remedy from the wrong-doer, while the wrong- doer himself becomes subjected to the secondary duty of giving or suffering such remedy.' It is the function and object of courts, both of law and of equity, to directly enforce these remedial rights and duties by conferring the remedies adapted to the injury, and thus to indirectly maintain and preserve inviolate the primary rights and duties of the litigant parties. It is plain from this anal- ysis that the nature and extent of remedial rights and duties, and of the remedies themselves, must depend upon two distinct factors taken in combination, namely, the nature and extent of the primary rights which are violated, and the nature and extent of the wrongs in and by which the violation is effected. The same primary right may be broken by many kinds of wrong-doing; and the same wrongful act or default may invade many differ- ent rights. The wrongs which are breaches of primary rights may be either positive acts of commission or negative omissions; their variety, form, and nature are practically unlimited, and no classification of them is necessary for the purposes of this discussion. § 92. Primary Bights." — A very general analysis and classification of Primary Rights and Duties will, however, be essential to an accurate notion of the constituent parts of equity. The rules and their resulting primary rights and duties which make up the private municipal law — omitting, as before stated, the public and the criminal law — fall by a natural line of separation into two grand 'See 2 Anstin on Juriaprudence, sec. 1; Fomeroy on Remedies and Re- pp. 450, 453; vol. 3, p. 162; Pomeroy medial Rights, seoa. 1, 2. on Specific Performance of Contracts, § 92 EQUITY JURISPRUDENCE. 96 divisions, namely: 1. Those directly and exclusively con- cerned with or relating to Persons; 2. All the remaining portions, which, in a broad sense, relate to or are con- cerned with Things. The first of these divisions, under a natural and logical system of arrangement, comprises only those rules the exclusive object of which is to define the status of persons; or in other words, those which determine the capacities and incapacities of persons to acquire and enjoy legal rights, and to be subject to legal duties.' In the United States, where nearly all distinctions of class have been abolished, and all persons sui juris stand upon an equality with respect to their capacity of enjoy- ing civil rights, and of being subject to civil duties, this division contains but a very small part of the law, as compared with the corresponding department in the Ro- man law, or even in the existing law of many European countries. It also follows, as a necessary consequence of this principle of classification, that most of the matter which Blackstone, and after him Kent and other institu- tional writers, have treated as belonging to the so-called "Rights of Persons," has been misplaced. Such mat- ter has no connection whatever with personal status or capacity, and if any scientific or consistent system of arrangement is pursued, it plainly belongs among those rules which relate to Things.* ' See 2 Austin on Jurisprudence, pp. rights which Blackstone calls " abso- 10, 382, 386, note, 412; voL 3, pp. 170- lute rights of persons," but which are 172. no more absolute than their rights of ' Simply as illustrations of this im- property, or rights growing out of con- proper classification, and without at- tract. The rules defining the rights tempting to enumerate all the cases, and duties existing between husband I mention the following: All the rules and wife, parent and child, guardian concerning the property and contracts and ward, master and servant, also of married women, and the contracts come within the law concerning things, actually made by infants, have no as truly as do those which define the proper place in the division which rights and duties existing between the treats of the "Law as to Persons"; parties to any and every contract they form a part of the law concerning The subject of corporations, with all Things, in exactly the same manner, of its ramifications involving every and for exactly the same reason, that department of the private Munici- the rules regulating the property and pal Law, has not even the semblance contracts of adult men or of single of belonging to the division which women belong to the law of things, comprises the " Law oonoerning Per- The same is true of the rules defining sons." 97 THE CONSTITUENT PAKTS OF EQUITY. §§ 93; 94 § 93. The primary rights embraced in the second grand division of the law — those concerned with or relating to Things — are naturally separated into two principal classes, namely, Rights in rem, or Real rights, and Rights in per- sonam, or Personal rights. Rights in rem, or real rights, are those which, from their very nature, avail to their possessor against all mankind, and a correlative duty rests alike upon every person not to molest, interfere with, or violate the right. Rights in personam, or personal rights, are those which avail to their possessor against a specified, particular person, or hody of persons only, and the cor- relative duty not to infringe upon or violate the right rests alone upon such specified person or body of persons. § 94. Real Rights. — The first of these classes, the rights in rem, embraces three distinct genera, which differ from each other in the subject-matter over which the rights extend, but not in the essential nature of the rights them- selves. These three genera are: 1. Rights of property of every degree and kind over lands or chattels, things real or things personal; 2. The rights which every person has over and to his own life, body, limbs, and good name; 3. The rights which certain classes of persons, namely, husbands, parents, and masters, have over certain other persons standing in domestic relations with themselves, namely, wives, children, and servants and slaves. In all kinds and degrees of property the right plainly avails to its possessor over the subject-matter — the land or the chattel — against all mankind, and a corresponding duty rests upon every human being not to interfere with or molest him in the enjoyment of the property. The right which every person has over his own life, body, lilnbs, or good name is of the same general nature. It imposes an equal duty upon every one not to injure, or in any man- ner disturb or molest, the possessor of the right in the free use and enjoyment of his own life, body, limbs, or good name. The rights of the husband, parent, or master over the wife, child, or servant are in our law very meager 1 Eq. Jue.— 7 § 95 EQUITY JURISPRUDENCE. 98 and limited, but so far as they exist at all, they resemble the more complete rights of property, because they avail against all mankind, and impose an equal duty upon every human being. Thus the husband is, by virtue of this right, entitled to the society of his wife, and the father is entitled to the services of his infant children, while a duty rests upon every person not to violate tliese rights by en- ticing away, seducing, or injuring the wife or child. This latter group of rights must not be confounded with those which the husband and wife, parent and child, master and servant, hold against each other, and which resemble in their nature the rights arising from contract. § 95. Personal Rights. — The second class, rights in personam, personal rights (called by the Roman law " Ob- ligations") includes two distinct 5^enera, namely: 1. Eights arising from contract; and 2. Rights arising, not from contract, but from some existing relation between two specific persons or groups of persons, which is generally created by the law. In every case of contract the right is held by one of the contracting parties and avails to him against the other party alone, while the corresponding duty rests only upon that other party, and not upon every human being. As contracts must of necessity be made ' between specified determinate persons, it follows that the rights and duties arising from contract must always avail against and rest upon some particular, definite person or number of persons. The same is true of the rights and duties arising from special relations existing between par- ticular persons, created, not by contract, but by the law. The legal effect of these special relations is so similar to that produced by contract, that the rights flow^ing from them were said by the Roman law to arise from quasi contract (quasi ex contractu). The important and ordi- nary examples of this genus are the rights and duties against each other subsisting between husband and wife, parent and child, guardian and ward, executors or admin- istrators and legatees, distributees, or creditors, and in W THE CONSTITUENT PAETS OF EQUITY. §§ 96, 97 many cases between trustees and eestuis que trustent. This general classification embraces all primary rights and drties, both legal and equitable, which belong to the pri- vate civil law. § 96. Equitable Rights. — The foregoing analysis will aid us in forming a clear and accurate conception of the constituent elements which make up the equity jurispru- dence. Comparing the two great divisions of the private municipal law, law and equity, are they antagonistic, or simply complementary to each other? or does one merely occupy a sphere which the other does not? Are the rules creating the primary rights and duties embraced in the law different from the same class of rules, rights, and duties embraced in equity? Or does the distinction lie solely in the remedial rights and remedies which arise from the violation of rules common to both, and in the judicial modes by which these remedies are obtained? Equity does certainly deal largely in remedies and rights to them, and the opinion has been maintained by some modern writers, that it consists in nothing else; that all the rights peculiar to it and which it confers are reme- dial rights, — rights to obtain certain forms of remedy unknown to the law. That this opinion is a mistaken one is clearly demonstrated by an examination of the doctrines and rules of equity as now established, and the results which they have produced. § 97. Equity, as a branch of the national jurispru- dence, and so far as it differs from the law, consists in fact of two parts, two different kinds of rules and rights. First, it contains a mass of rules which create primary rights and duties, — entirely irrespective of the remedies, — which are different from the corresponding rules, rights, and duties, with respect to the same subject-matter, contained in and enforced by the law. Secondly, it contains another mass of rules defining and conferring a variety of special remedies and remedial rights, both of which are to a very great extent unknown to the law. These remedies and § 97 EQUITY JURISPRUDKNCB. 100 rights to them are peculiarly " equitable," in contradis- tinction to those of the law, and irrespective of any differ- ence in the primary rights for the violation of which they are granted. There may be four kinds of cases arising in the administration of the equity jurisdiction: 1. The primary right of the complaining party which has been broken may be purely legal, — that is, a right which the rules of law confer, — while his remedial right and the remedy which he obtains may be entirely equitable, rec- ognized, aud given by equity alone.' 2, His primary right which has been violated maybe one which the rules of equity alone create, while his remedial right and rem- edy may also be only known to equity.* 3. His primary right broken may be entirely equitable, but his remedial right and remedy may be legal, such as are recognized, enforced, and granted by the law.* 4. In some cases, few in number, his primary right may be legal, while his remedial right and remedy are also legal, such as are ad- ministered by courts of law.* The peculiar feature which ' I give simple illastrationa of these gagor is purely equitable. According four classes. Of the first class is a to the doctrine prevailing generally in Bait by one who holds the legal title this country, the estate of the mort- to land, — his primary right, of course, gagor is legal, and the case would fall being legal, — to restrain the commis- within the first class. Suits by which aion of waste npou it, or of trespasses a plaintiff's equitable title ia turned doing irreparable damage; also the into a legal estate, by the remedy of suit oy the owner in fee of land in reformation, cancellation, and the possession, to declare his own title like, also belong to this second class, against other claimants not in posses- ' In this class are some suits for ac- sion, whether their claims be legal or counting, the plaintiff's claim or equitable. This latter kind of remedy interest in the fund or other snbjeclj. is given by statute in many states. It matter being equitable, and the ac- is very plain in these cases that the counting and pecuniary recovery being plaintiff's estate and right are wholly a legal remedy; also many suits in legal, and the remedies are clearly which the plaintiff's interest is equi- equitable. The instances of this class table, and he recovers damages; also are very numerous. suits, by an equitable assignee of a ' As simple illustrations: A suit by fund in the hands of a third person, the vendee in a parol contract for the to recover the amount thereof, where sale of land part performed, to obtain the plaintiff's ownership is wholly a specific performance. The right and equitable, but his relief is simply a re- estate under the contract are recog- covery of a certain sum of money, nized by equity alone, and the rem- ' The suits of this class are generally, edy is pnrely equitable. Also a suit if not always, actions for accounting, brought by a mortgagor of land who in which the rights and interests in has made default, to redeem. Accord- the subject-matter are pnrely legal, ing to the original legal and equitable and the action is brought in equity doctrines, the estate of auch mort- merely for convenience. The account- 101 THE CONSTITUENT PAETS OP EQUITY. §§ 98, 99 distinguishes equity from the law does not therefore consist solely in the fact that it possesses remedies which the law does not admit, nor solely in the fact that it creates and confers primary rights and duties different from any which the law contains, but in both these facts combined. These two elements will be examined separately. § 98. I. Equitable Primary Rights. — Equity consists in part of rules creating primary rights and duties differ- ing from those relating to the same subject-matter, which are purely legal. Recurring to the classification given in a former paragraph (§ 92), it will enable us to fix the limits of these primary rights, and to determine the classes in which they are all found, with great ease and precision. No equity primary rights belong to the first grand division of rights relating to or concerned with the status of persons. All the rules which define the capaci- ties and incapacities of persons to acquire rights or to be subject to duties are strictly legal. The only apparent exceptions to this proposition are the statutory special proceedings for determining whether a person is a luna- tic, or non compos mentis, or a confirmed drunkard, and the statutory suits for divorce, which in many of the states are confided to the Chancellor, or tq a judge or court possessing equity powers. But in the first place, these proceedings are wholly statutory, and do not belong to the equity jurisdiction as such; and in the second place, they are wholly remedial.* All the primary rights, therefore, which form a part of equity are referable to the second division of Rights relating to Things. § 99. From this division, also, there must be a process of elimination. In the department of Real rights. Rights ing and recovery of money are of course tain and eataUiah the status of lunacy, a legal remedy. The case of an ordi- unsoundness of mind, etc., or to dia- nary suit to settle accounts among solve the status of marriage; but they partners, where neither of them is in- do not determine the capacities or in- solvent, and no equitable liens or claims capacities of lunatics, etc., — all the to marshal the assets arise, is a famil- rules which determine who are luna- iar example. tics, insane, married, etc., and their ' These proceedings are in truth capacities, are wholly legal, and not remedies; they are intended to ascer- equitable. § 100 EQUITY JURISPRUDENCK. 102 in rem, very important and broad limitations are to be made. No equitable primary rights are contained in the second of the three genera into which real rights are divided, — or those which a person possesses over his own life, body, limbs, or good name. All the rights of this kind are purely legal; they are the very flower and fruit of the common law, — its highest excellence; and equity does not intrude upon this peculiar field of the law. Nor are any equitable primary rights contained in the third of these genera, — the rights held by certain classes of persons over certain other persons occupying special domestic relations towards themselves. The rules which define these rights, and determine the powers of husbands over their wives, parents over their children, guardians over their wards, masters over their servants, belong ex- clusively to the domain of the law; equity does not inter- fere with these purely personal relations. It is only when some property rights or questions concerning property arise between husband and wife, parent and child, guar- dian and ward, that equity can possibly have jurisdiction, and even in such cases the jurisdiction does not extend to the merely personal relations. § 100. We are now prepared by this process of elim- ination to de'fine with exactness the classes of primary rights and duties which alone come within the domain of equity, and thus form a part of its jurisprudence. Among the rights in rem, real rights, it is only those of the first genus, the rights of property, which do or can come within the scope of equity. Among the rights m personam, personal rights, both of the genera, those arising from contract and those arising from particular relations subsisting between two or more specific persons, may come within the domain of equity. The rights and duties of the parties growing out of contracts, and especially those growing out of certain determinate relations not based upon contract, but directly concerned with prop- erty, such as trustee and cestui que trust in all its forms, 103 THB CONSTITUENT PARTS OF EQUITY. § 101 guardian and ward, executor or administrator and lega- tees, distributees, or creditors, and the like, constitute a large and important part of the primary rights falling under the equitable jurisdiction. Having thus referred the primary rights which equity creates to their general classes, I shall now describe with more of detail their essential nature and qualities. § 101. It must be premised that in most instances the legal primary right, and the corresponding but different equitable primary right, arise from the same facts, cir- cumstances, acts, or events which are the occasion of both. But in some instances, facts, circumstances, or events which are not the occasion of any legal right at all give rise to a primary right in equity.' With respect to the equitable primary rights taken as a whole, it is proper to say that most of them are simply different from or addi- tional to those which exist at law; they do not contradict any rules upon the same subject-matter which the common law provides; but they are supplementary, touching upon particulars in relation to which the law is silent. Be- tween this class of equitable rights and the correspond- ing legal rights there is, therefore, no conflict; each is absolutely true at all times and in all places; equity courts recognize and administer the one, and law courts the other,. without clashing or discord. With respect to an- other portion of these primary equitable rules and rights, it must be said that they are not merely additional to, but they are in actual conflict with, the legal rules and rights concerning the same subject-matter, or arising from the same circumstances; between the kind of equi- table rules and rights and the corresponding portions of the law, there is, therefore, an antagonism; the equity ' A familar example will illustrate when part performed, there arises no both of these cases. From the same legal right whatever; but these facts, fact, namely, a valid written contract the verbal contract together with the for the sale of land, there arise the part performance, are the occasion of legal right of the vendee, and also his an equitable right in the vendee which very dififerent equitable right. From is even a right of property, an equi- a verbal contract for the sale of laud table estate in the land itself. § 102 EQUITY JURISPRUDENCE. 104 courts admit and uphold a particular right as resulting from a certain state of facts, which the law courts not only refuse to recognize, but which they would deny and oppose. This contrariety existed to a much larger ex- tent in the infancy of the system than it does now; it has gradually become less as the law itself has grown more liberal and equitable. That there should be any such conflict between two departments of a munici- pal law is undoubtedly a blemish upon the national ju- risprudence; but this condition had a strictly historical origin, and the very progress towards perfection largely consists in the elimination of these instances of antagon- ism. It should be remembered, also, that equity some- times furnishes its remedies for the violation of primary rights which are strictly legal, as, for example, in many cases of accounting. § 102. A few examples will serve to illustrate the fore- going description of equitable rules and rights, and will exhibit its correctness in the clearest manner. Although the first of the cases selected no longer exists, it is none the less appropriate for the purpose of showing the exact nature of equitable doctrines in their relations with the law. As has already been mentioned, at an early day the law declared that when a debtor on a sealed obligation had paid the debt, but had failed to take an acquittance under seal, or a surrender of the instrument, he was sti41 liable, and the creditor could recover the amount a second time by action. Equity interfered and gave the debtor the remedy of a perpetual injunction against any action at law, and perhaps the delivery up or cancellation of the bond. It is not the forth of the remedy to which I now call attention, but the primary equitable right for the maintenance of which the remedy was given. Compare the rights and duties of the two parties at law and in equity. The law said that notwithstanding the payment already made, the primary right of the creditor arising from the contract to demand the money, and the primary 105 THE CONSTITUENT PARTS OF EQUITY. § 102 duty of the debtor to pay it, still existed in full force, and it therefore gave the remedial right of an action to col- lect the debt. Equity said the exact opposite of this. It declared that the primary right of the creditor and the primary duty of the debtor had been ended; that the ob- ligation of the debtor to pay had been destroyed, and in its place there had arisen a righ^t to have the evidence of that obligation canceled or to have evidence of the payment created in a formal manner. It therefore gave to the debtor the remedial right and the remedy of an injunction and of a cancellation. It is an entirely mis- taken and even absurd explanation of this and other analogous cases, to assert that equity simply granted a remedy which the law did not give. Remedies are not conferred by equity courts, any more than by law courts, unless a primary right and duty exist, which have been violated, so that a remedial right arises from such viola- tion. Equity did not, in this case, interpose its remedy in favor of the debtor for the violation of any legal right; for the law most peremptorily affirmed that the primary right of the creditor, which it gave him on the occasion of the sealed contract being executed, was in full force, and that the primary duty which it imposed upon the debtor remained unaflFected. Equity as emphatically de- nied all this, and asserted that no such primary right and duty were left existing, but that the position of the two parties had been exactly reversed. There was a plain and direct conflict in the primary rights and duties flow- ing from the same facts and events. It is true, this par- ticular instance of antagonism no longer exists, since the absurd rule of the law has long been changed, so as to harmonize with the equitable doctrine; but I have thus dwelt upon the case at large, because it is a most admir- able illustration of the class of equitable primary rights which are in conflict with, and not merely supplementary to, the legal primary rights resulting from the same cir- cumstances. I 103 EQUITY JDRISPSUDENCB. 106 § 103. I give another example of the same class. Under the prohibition of the Statute of Frauds, a contract for the sale of land, when not in writing, cannot be en- forced in law, even though part performed. It makes no difference M'hether the statute says, as in England and in some of the states, that no action can be maintained on such an agreement, or says, as in the other states, that the agreement is void; the result is practically the same in either form of the statute: the verbal contract is no contract at law, but is simply a nullity.* Equity speaks a very different language. It says that such a verbal contract, if part performed in a proper manner, shall be enforced. The processes of reasoning through which courts of equity have reached this conclusion, and the theory which they have adopted to reconcile their judicial action with the prohibitions of the statute, are wholly immaterial; the result is patent upon any theory, that equity from certain acts and events creates primary rights and duties in the parties diametrically opposed in their nature to those which the law creates on the occasion of the same facts. The law declares that from the verbal contract, although part performed, no primary right arises in favor of either party, and no corresponding duty de- volves upon either; and if either refuses to do what he has thus verbally promised, the law admits no remedial right in the other, and gives him no remedy. Very dif- ferent is the result in equity. Whatever be the grounds of its action, the plain fact is, that when such a verbal agreement has been properly part performed, say by the purchaser, equity recognizes in him exactly the same ' I am, of course, aware of the theory verbal contract; it has never been car- so often stateil by courts, that' the ried to the exreiit of maintaining that statute only affects the eviilence, and any legal rig/U arose from such an not the right. Bnt a right which can- agreement It is strictly correct, not under any possible circumstances therefore, to say that with either form be enforced is certainly no right, of the statute no legal primary right This purely technical doctrine in rela- results from a verbal contract within tioQ to the statute was invpnted in the statute; for if there were any such order to admit a legal basis for cer- right, its violation would give rise to tain collateral results flowing from a a legal remedy, which ia impossible. 107 THE CONSTITUENT PARTS OF EQUITY. § 104 primary right which would have existed if the contract had been written, — the right to have the very thing done which was agreed to be done, — and devolves upon the vendor exactly the same duty which would then have rested upon him; and if this primary right or duty is violated by the vendor's refusal to perform, equity gives to the vendee its remedy of a specific enforcement. The same is true when the part performance has been by the vendor. In this instance, also, the primary rights and duties created by equity are not only additional to, but in direct conflict with, those created by the law between the same parties under the same circumstances. In both the foregoing examples the equitable rights and duties belong to the class of "Personal," — Rights in personam, h&ing against a specific or determined person. § 104. Another remarkable example of equitable pri- mary rights, in direct conflict with those created by the law under the same facts, is shown in those contracts of married women which are treated as valid and enforced by . equity. At the common law every agreement of a mar- ried woman was simply a nullity, not merely voidable, but absolutely void. Equity did not in a direct manner abolish this legal dogma. It did, however, in the cases reached by its doctrine, create a primary right and duty from the contract, which, being violated, it enforced in its own manner and by its own peculiar remedy; it even enforced an agreement between the husband and wife, if beneficial to her rights of property. So far as equity went, there was thus a direct antagonism between its rules and those of the law. The law said most peremp- torily that no right or duty arose from the transaction. Equity said that the contract was the occasion of a full right and duty of performance, and although in defer- ence to the common law it did not enforce the duty against the wife personally, it enforced it against her separate estate, upon which it was a charge. And in agreements made by the married woman for the benefit § 105 KQUITY JURISPRUDENCE. 108 of her separate estate, equity gave her its remedy of spe- cific performance.' § 105. I pass to examples of other kinds. Wherever the books or the courts speak of " equitable estates," either in land or in chattels, as held by a person, there are in reality equitable real rights, rights in rem, rights of prop- erty, in the land or chattels, different from or additional to the rights arising from the same facts which the. law confers upon the same party. The kinds and degrees of these equitable rights of property are numerous, ranging from the most complete, beneficial ownership, simply wanting the legal title, through various grades to mere liens; the special rules concerning them constitute an important part of equity jurisprudence. I shall mention a few examples for purposes of illustration. The most familiar case in this country is that of the ordinary executory contract for the sale of land. The law rec- ognizes from this transaction nothing but " personal " rights and duties. As long as the agreement remains executory, the vendee acquires no right of property in the land, nor the vendor in the purchase-money; each * I add one more striking illustra- ference whether we adopt the English tion. When there are two or more rule that the creditor may sue the joint promisors and debtors, — A, B, representatives of the deceased at his and 0, — and one of them, C, dies, election, or the rule prevailing in some then at the common law all his lia- of our states, that the creditor can bllity ceases absolutely. The creditor only sue C's representatives, when he can maintain no action at law, under is unable to enforce his demand against any circumstances, against his per- the survivors. In either form of the Bonal representatives to recover the rule, equity regards the primary right debt or any portion thereof; the cred- of the creditor growing out of the iter's sole primary right growing out original contract, and the obligation of the original contract, and his sole of the deceased debtor, as stiil exist- remedy by action, are against the sur- ing, and therefore gives its remedy vivors, A and B. Equity, however, by suit; while the law regards snoh has altered these relations. Equity right and obligation as wholly gone, regards the original demand of the and therefore refuses any remedy. It creditor as still subsisting against the is true that the legislature, in some estate of the deceased joint debtor, states, has abrogated this legal doc- C, and such estate as still remaining trine, and has made the estate of the bound by the obligation; and there- deceased joint debtor liable at law. fore enables the creditor to maintain Similar remarks might be made con- a suit against the representatives of cerning the case of two or more joint O, for the purpose of recovering the creditors, where one of them dies, amount due. Here the antagonism is and the contrasting doctrines of law plain and direct; and it makes no dif- and of equity applicable thereto. 109 THB CONSTITUENT PARTS OF EQUITY. § 105 party has the right against the other that the contract shall be fulfilled according to its terms; but for the viola- tion of this primary right the only legal remedy is a pecuniary compensation. The view ■which equity takes of the juridical relations resulting from the transaction is widely dififerent. Applying one of its fruitful princi- ples, that what ought to bo done is regarded as done, equity says that from the contract, even while yet execu- tory, the vendee acquires a "real" right, a right of property in the land, while though lacking a legal title, and therefore equitable only, is none the less, the real, beneficial ownership, subject, however, to a lien of the vendor as security for the purchase-price as long as that remains unpaid. This property in the laud, upon the death of the vendee, descends to his heirs, or passes to his devisees, and is liable to the dower of his widow. The vendor still holds the legal title, but only as a trustee, and he in turn acquires an equitable ownership of the purchase-money; bis property, as viewed by equity, is no longer real estate, in the land, but personal estate, in the price, and if he dies before payment, it goes to his ad- ministrators, and not to his heirs. In short, equity regards the two contracting parties as having changed positions, and the original estate of each as having been "converted," that of the vendee from personal into real property, and that of the vendor from real into personal property. Although these primary rights which equity thus creates are very different from those which the law recognizes, there is still no conflict or antagonism between the two. While equity gives to the purchaser a property in the land, and furnishes him with its specific remedies to maintain and enforce that ownership, at the same time it does not deny nor interfere with his legal primary right against the vendor personally arising from the con- tract. The vendee in fact has an election. Relying upon the mere personal primary right of contract, he or his executors or administrators may sue in a court of law to §§ 106, 107 EQUITY JUEISPKUDENCB. 110 recover damages for a violation of the agreement; or relying upon the real right, his ownership of the land, he or his heirs may sue in a court of equity, and procure his ownership to be fully established, and the legal muni- ments of his title perfected. § 106. In all cases of implied trusts there is the same difference between the legal primary right, purely " per- sonal " in its nature, and the equitable estate, or right of property. One instance will illustrate the entire class. A receives from B a sum of money under an agreement to purchase therewith a parcel of land for B, and to take the conveyance in the latter's name; he purchases the land, but takes the deed to himself in violation of his duty, and with the design of obtaining all the benefit and of retaining the ownership. The law under these and all similar circumstances sees only a contract, express or implied, between the parties, with the purely "personal" rights which spring from contract. B has no property in the land, and his only legal remedy is compensation by damages. In equity, however, B acquires a "real" right, an estate in the land, which is regarded as the true and beneficial ownership, with all the incidents of real property; and he can establish that ownership by com- pelling A to convey the legal title and deliver the pos- session. § 107. The same and sometimes even a greater differ- ence between the legal and equitable rights exists in all instances, so common in England, but no longer permit- ted in many American states, but seldom known, even if theoretically possible, in the others, of express passive trusts in lands. At law the cestui que trust never acquires any property in the land so long as the trust is subsisting, and in many cases he obtains no right whatever, either of property or of contract. In equity, however, the cestui que trust is the real owner; his primary right is one of property in the land, either in fee, for life, or for years. Another exceedingly instructive example is, the estate of Ill THE CONSTITUENT PARTS OF EQUITY. § 108 the mortgagor created by equity, while the law, unless altered by statute, regards all the property as vested in the mortgagee. I need not add any more examples. I have already given a sufficient number and variety to illustrate and show the truth of my main proposition, — that equity is not wholly a system of remedies; but that it consists in part of primary rights and duties, and of the rules concerning them, differing from, sometimes conflicting with, but more often additional to, the pri- mary rights, duties, and rules relating to the same mat- ters established by the law. § 108. II. Equitable Remedies. — Equity consists, to a very great extent, of Remedies and Remedial Rights different from any which the law administers by means of its ordinary actions;' although it does, under certain circumstances, grant remedies which are legal in their nature, and are capable of being conferred by a judgment at law, namely, a mere recovery of money, or of the pos- session of specific land or chattels. Many of the ordi- ' I intentionally paaa by the specific equitable right. Bnt the married legal remedies which the lay gives by woman who contracts in that way is means of Mandamus, Quo Warranto, not a debtor in any sense of the word " and certain other special proceedings, (that is, she is not liable under a con- and which have some general resem- tract binding at law, which creates blance to the reliefs granted by equity, the legal liability of indebtedness and The principle of equitable primary the corresponding legal right of a rights, as distinguished from legal creditor). Brett, L. J., said: The primary rights, and of equitable rem- equitable procedure " did not enable edies, was very clearly recognized and any one to sue a married woman as illustrated by the doctrine concerning upon and for a debt in a, court of the liability of a married woman's equity. It was a peculiar remedy separate estate to be appropriated in against the separate property of the equity in satisfaction of her contracts, married woman so long as it existed, by the English Court of Appeal in bnt it was not a remedy against her the very recent case of Ex parte Jones, as and for a debt." L. R. 12 Ch. Div. 484, 488-490. Cotton, L. J., said: "A debtor must Speaking of the nature and grounds be a person who can be sued person- of this equitable liability, James, L. ally for a debt, and who is liable to J., said: " If she is not liable to be all the consequences of a personal sued as a, feme sole in what used for- judgment against him. But that is merly to be called a common-law ac- not at all the position of a married 4ion, she is not liable to be sued for a woman, even though she has separate debt at all. In equity the liability estate It is not the woman, was to have her separate estate taken as a woman, who becomes a debtor, from her for the benefit of the person but her engagement has made that with whom she had contracted on the particular part of her property which faith of it. That was a special equi- is settled to her separate use a debtor table remedy/, arising out of a special and liable to satisfy the engagement." § 109 EQUITY JURISPKUDENCB. 112 nary equitable remedies are derived directly from the nature of the primary right which they are intended to protect. For example, in the case of a contract for the purchase of land, or of an implied trust in land, or of any other transaction from which the equitable primary right consists in a right of property, this equitable estate, al- though the real, beneficial ownership is subject to some great inconveniences which lessen its value, the holder of the legal title in trust for the equitable owner cannot de- feat the latter's right as long as he retains such title in his own hands, but he can convey it to another 6ona/de pur- chaser, and thus cut off the existing equitable estate. To prevent this, and to secure his full enjoyment of the prop- erty, a peculiar remedy is given to the equitable owner, by which he establishes his right, perfects his interest, compels a conveyance of the legal title, and a transfer of the possession, if necessary, and thus acquires a full and indefeasible estate, legal as well as equitable, in the land. A large class of remedies are thus based upon and exactly fitted to the nature of the primary right; these remedies are distinctively equitable; and their intimate correspondence with the primary rights which they enforce has, more than anything else perhaps, led to the mistake, alluded to in a former paragraph, of confounding all equitable primary rights with remedial ones, and of sup- posing that equity is wholly a system of remedies. § 109. The distinguishing characteristics of legal rem- edies are their uniformity, their unchangeableness or fixedness, their lack of adaptation to circumstances, and the technical rules which govern their use. The legal remedies by action are, in fact, only two: recovery of possession of specific things, land or chattels, and the re- covery of a sum of money. When a person is owner of land or of chattels in such a way that he is entitled to immediate possession, he may recover that possession; but since the action of "Ejectment" has taken the place of the old real action^, a recovery of the land by its means llcJ THE CONSTITUENT PARTS OF EQUITY. § 110 does not necessarily determine or adjudge the title, and in a recovery of chattels by the action of replevin, the title is only determined in an incidental manner.' For all other violations of all possible primary rights, the law gives, as the only remedy, the recovery of money, which may be either an ascertained sum owed as a debt, or a sum by way of compensation, termed damages. Equi- table remedies, on the other hand, are distinguished by their flexibility, their unlimited variety, their adapta- bility to circumstances, and the natural rules which gov- ern their use. There is in fact no limit to their variety and application; the court of equity has the power of de- vising its remedy and shaping it so as to fit the changing circumstances of every case and the complex relations of all the parties. § 110. Notwithstanding this unlimited power of ex- pansion and invention, there are certain species of equi- table remedies which have become well established and familiarly known, and which are commonly designated by the term "equitable remedies" whenever it is used. They may be separated into three classes: 1. Those which are entirely different from any kind of reliefs known and granted by the law. Of this class are the preventive rem- edy of Injunction, the restorative remedy of Mandatory Injunction, the remedies of Reformation, Specific Per- formance, and many others. 2. Those which the legal procedure recognizes, but does not directly confer, and ' It should be remembered that I may be brought. Under the reformed am speaking of the common-law forms procedure, the action to recover land of action, and not of the system Intro- really has nothing in common with duced by the reformed procedure. " ejectment "; it ratheir resembles the Since in the action of ejectment the old "real action "in determining the plaintiff was a fictitious person, and title as well as the possession, and it is not the real party in interest, a judg- so regarded in some of the states, ment was no bar to any number of But by a strange inconsistency, the succeeding actions; it required a suit statutes of other states treat it as only in equity and ~ perpetual injunction a simplified ejectment, and the judg- to restrain the continuous bringing of ment recovered by it as not finally such actions in a given case, and to adjudicating upon the title. In a few declare the title. In the American of the states, the old common-law states, statutes have put a limit upon "real action " is still used instead of the number of separate actions which ejectment, 1 El}. JnE.— 8 § 110 EQUITY JUKISPRUDENCB. 114 the beneficial results of which it obtains in an indirect manner. A familiar example is the relief of Rescission or Cancellation. A court of equity entertains a suit for the express purpose of procuring a contract or convey- ance to be canceled, and renders a decree conferring in terms that exact relief. A court of law entertains an action for the recovery, of the possession of chattels, or, under some circumstances, for the recovery of land, or for the recovery of damages, and although nothing is said concerning it, either in the pleadings or in the judgment, a contract or a conveyance, as the case may be, is virtually rescinded; the recovery is based upon the fact of such rescission, and could not have been granted unless the rescission had taken place. Here the remedy of cancella- tion is not expressly asked for, nor granted by the court of law, but all its effects are indirectly obtained in the legal action.' It is true, the equitable remedy is much broader in its scope, and more complete in its relief; for its effects are not confined to the particular action, but by removing the obnoxious instrument they extend to all future claims and actions based upon it. 3. Those which are substantially the same both in equity and at the law. Familiar examples of this class are the partition of land among co-owners, and «the admeasurement of dower, in which the final relief granted by equity is the same as that obtained through the now almost obsolete legal ac- tions;^ the process of accounting and determining the balance in favor of one or the other party; and even, under special circumstances, the award of pecuniary ' It would perhaps be more cor- ment; as in actions by defrauded veil" reot to say that the legal judgment dors to recover the goods or their value, proceeded upon the assumption that ' The ancient legal actions of parti- one of the parties had himself rescinded tion and admeasurement of dower, the contract or conveyance prior to though long discarded in England, the suit, and that he was justified in are still retained in a modified form so doing; but this explanation does in Massachusetts, Pennsylvania, and not alter the result or modify the perhaps in two or three additional statement of the text. In either states. In other states, where the theory, the legal procedure recognizea reformed procedure has not been in- the rescission as a fact, and its bene- troiluced, "ejectment" is sometimes fits are secured indirectly by the judg- used for the same purpose. 115 THE CONSTITUENT PARTS OF EQUITY. §§ 111, 112 damages expressly. This mode of classifying equitable remedies was both common and convenient while the jurisdictions of law_and equity were wholly distinct and confided to different tribunals, but has lost much of its «fficacy since they have been conferred upon the same <;ourt, and under the reformed procedure, which com- bines legal and equitable remedies in one action, it has become positively misleading, § 111. Abandoning, therefore, this method of arrnn- ging and describing remedies, as no longer adapted to the administration of equity jurisprudence at the present day, I shall classify them according to their essential natures. Equity has followed the true principle of contriving its remedies so that they shall correspond both to the pri- mary right of the injured party, and to the wrong by which that right has been violated. It has, therefore, never placed any limits to the remedies which it can grant, either with respect to their substance, their form, or their extent; but has always preserved the elements of flexibility and expansiveness, so that new ones, may be invented, or old ones modified, in order to meet the re- quirements of every case, and to satisfy the needs of a progressive social condition, in which new primary rights and duties are constantly arising, and new kinds of wrongs are constantly committed. § 112. Although the number and variety of particular remedies are great, those in common use may be grouped into certain general classes according to their essential elements, which, as said above, are based upon the pri- mary right violated and the wrongful act or default in combination. These classes are the following: 1. Declara- tive Remedies, or those whose main and direct object is to declare, confirm, and establish the right, title, property, or estate of the plaintiff, whether it be equitable or legal. The remedies of this class are often granted in combina- tion with others, and in fact they sometimes need other kinds of relief as a preliminary step to make them efi'ect- § 112 BQUITY JURISPRUDENCE. 116 ive; but on the other hand, they are often granted by themselves, unconnected with anything else. 2. Restora- tive Remedies, or those by which the plaintiff is restored to the full enjoyment of the right, property, or estate to which he is entitled, but which use and enjoyment have been hindered, interfered with, prevented, or withheld by the wrong-doer. The legal remedies of this kind are sim- pie recoveries of possession either of land or of chattels. The equitable remedies of restoration are much more various in their form and complete in their effect. Like those of the first class, they are often granted in combina- tion with other kinds of relief, and frequently need some other special equitable remedy, such as cancellation or reformation of instruments, to remove a legal obstacle to the full enjoyment of the plaintiff's right, and to render them efficient in restoring him to that enjoyment. 3. Preventive Remedies, or those by which a violation of a primary right is prevented before the threatened injury is done, or by which the further violation is prevented after the injury has been partially effected, so that some other relief for the wrong actually accomplished can be • granted. The ordinary injunction, whether final or pre- liminary, is the familiar example of this class; the man- datory injunction is essentially a restorative remedy. 4. Remedies of Specific Performance, or those by which the party violating his primary duty is compelled to do the very acts which his duty and the plaintiff's primary right require from him. The remedies of this class are very numerous in their special forms and in respect to the juridical relations in which they are applicable. "Spe- cific performance" is often spoken of as though it was confined to the case of executory contracts; but in reality it is constantly employed in the enforcement of rights and duties arising from relations between specific persons which do not result from contracts, as, for example, between cestuis que trustent and their trustees, wards and their guardians, legatees, distributees, or creditors and 117 THE CONSTITUBNT PAETS OF EQUITY. § 112 executors or administrators, and the like. In these latter cases, however, as well as in that of the specific perform- ance of an executory contract at the suit of a vendor, the form and nature of the final relief is often the same as that of accounting, pecuniary compensation, or restoration. 5. Remedies of Reformation, Correction, or Re-execution, by means of which a written instrument, contract, deed, or other muniment of title, which for some reason does not conform to the actual rights and duties of the parties thereto, is reformed, corrected, or re-executed. Sometimes this remedy is asked for and obtained simply on its own account, merely for purpose of correcting the instrument; but it is often, and perhaps generally, obtained as a necessary preliminary step to the granting of a fur- ther and more substantial relief needed by the plaintifii such as a restoration to full rights of property, or the specific performance of the contract after it has been cor- rected. 6. Remedies of Rescission or Cancellation, or those by which an instrument, contract, deed, judgment, and even sometimes a legal relation itself subsisting be- tween two parties, is, for some cause, set aside, avoided, rescinded, or annulled. This remedy, like the preceding, is sometimes conferred as the sole and final relief needed by the plaintiff, but is often the preliminary step to a more effective remedy by which his primary right is de- clared or restored. 7. Remedies of Pecuniary Compensa- tion, or those in which the relief consists in the award of a sum of money. These remedies, whose final object is the recovery of money, are of three distinct species, which differ considerably in their external form and incidents, but which agree in their substance, — in the intrinsic nature of the final relief. They are the following: First. Those in which the relief consists simply in the recovery of a general pecuniary judgment; that is, a judgment to be enforced or collected out of the debtor's property generally, — any property which he may own liable to be taken in satisfaction. This simple pecuniary recovery is, § 112 EQUITY JURISPKUDENCB. 118 in the vast majority of cases, legal, and not equitable, but it is not unknown in equity. A court of equity occasion- ally grants the relief of compensatory damages in con» nection with some other specific relief, and" under very peculiar circumstanceB it decrees the payment of damages alone. Several kinds of equitable suits are wholly pecu- niary in their relief, as those for contribution and exon- eration.' Secondly. Those cases in which the relief ia not a general pecuniary judgment, but is a decree of money to be obtained and paid out of some particular fund or funds. The equitable remedies of this species are many in number and various in their external forms and inci- dents. They assume that the creditor has, either by operation of law, or from contract, or from some acts or omissions of the debtor, a lien, charge, or encumbrance upon some fund or funds belonging to the latter, either land, chattels, things in action, or even money; and the form of the remedy requires that this lien or charge should be established, and then enforced, and the amount due obtained by a sale total or partial of the fund, or by a sequestration of its rents, profits, and proceeds. These preliminary steps may, on a casual view, be misleading as to the nature of the remedy, and may cause it to appear to be something more than compensatory; but a closer view shows that all these steps are merely auxiliary, and that the real remedy, the final object of the proceeding, is the pecuniary recovery. Among the familiar examples of this species are the suit to foreclose a mortgage of land^ common throughout the United States, by a sale of the mortgaged premises;* the suit to foreclose a chattel mort- ' A few well-known equitable ac- not oat of the land itself as a special tions are wholly pecuniary in their fund. [See Blair v. Smith, 114 Ind. object and relief, although not gener- 114.] ally described as such. For example, ' The strict foreclosure by which tha the suit by the vendor for the specific mortgagor's equitable right of redemp- performance of an ordinary land con- tion ia cut off, and the mortgagee's tract is really brought for the recovery legal estate is perfected, is a remedy of money alone, and it differs from the of an entirely different class; it is in suit to enforce the vendor's lien in the fact a recovery of land, the acqnisi- fact that the judgment is for the re- tion of a complete title, the establish- covery of the money generally, and ment of a perfect legal ownership. 119 THE CONSTITUENT PARTS OF EQUITY. § 112 gage by a sale of the goods; a suit to enforce a vendor's lien by a sale of the land; the creditor's suit to enforce his equitable lien upon the debtor's property by sale; the suit to enforce payment of a married woman's contract by a sale of the separate estate upon which it is charged; and generally, all similar suits the object of which is to enforce an equitable lien upon a fund, and thereby to obtain satisfaction of the demand which it secures. Thirdly. There is also another species of pecuniary rem- edies, closely analagous to the last, and differing from it only in the additional element of a distribution of the final pecuniary awards among two or more parties having claims either upon one common fund or upon several funds. The final relief in all these cases is simply pecu- niary; the amounts to which the different parties are entitled are ascertained, and are obtained by a distribu- tion of the fund or funds upon which* they are chargeable. Of this species are suits to wind up partnerships and dis- tribute partnership assets; to settle and distribute the personal .estates of decedents; to marshal assets; and the statutory proceeding to wind up the affairs of insolvent corporations. 8. The Remedy of Accounting. This is closely analogous to the remedy of Compensation, and is generally used in connection with and auxiliary to some forms of it. It is also a legal remedy, but has become to a great extent equitable. It is a necessary step in many forms and varieties of pecuniary relief, and sometimes is an essential preliminary in establishing rights of property in lands or chattels. 9. Remedies of Conferring or Remov- ing Official Functions. Courts of equity are empowered by statute in many of the states to remove and to appoint trustees of private trusts, and under certain circumstances to remove and to appoint, or provide for the election of, the managing ofiQcers of private business corporations. 10. Remedies of Establishing or Destroying Personal Status. This species of remedies does not belong to the original jurisdiction of chancery, and so far as it exists, is wholly § 113 EQUITY JURISPEUDBNCK. 120 of statutory origin. I would include in it suits to obtain a divorce and to annul a marriage, which in several of the states are entertained by equity courts, and proceed- ings by which a person is judicially declared to be of unsound mind or an habitual drunkard. Other species of equitable remedies have been created by statute in different states, which do not properly belong to any of the foregoing classes. The most important are the pro- ceedings for the dissolution and winding up of corpora- tions, and of enforcing the official duties of corporate ofl&cers. The remedial powers of equity are so broad and so flexible that there may be many other special forms of remedy belonging to its general jurisdiction, but de- pending so closely upon the peculiar circumstances and relations of the litigant parties that they do not admit of classification.* § 113. The equitable remedies also differ from the legal ones in the manner of their administration. The common-law rules of procedure are fixed, rigid, arbitrary, technical, while those of the equity suit are natural and flexible. In no features is the contrast greater than in respect to parlies and to judgments. The doctrines of the common law concerning the parties to actions, their joint or several rights and liabilities, and the form of judgment based upon these respective kinds of right and liability, are the crowning technicality of the system, resting upon verbal premises which mean nothing, and built up from these premises by the most accurate processes of mere verbal logic. It was a fundamental principle that no one could be a plaintiff unless he was alone or jointly with the co-plaintiffs entitled to the whole recovery, nor a defendant unless he was alone or jointly with the co- defendants liable to the entire demand. The common law knew no such thing as the making a person plaintiff who did not share the right of recovery, or defendant who > [That an action to establish a table, see Sharon T. Sharon, 67 CaL marriage and for a divorce is eijui- 185.] 121 THE CONSTITUENT PARTS OF EQUITY. § 113 was not liable for the whole claim, merely for the purpose of binding him by the judgment and cutting off any possible right on his part} The judgment must be one single, entire recovery, both as affects the plaintiffs and the defendants; and no one could be a plaintiff who did not thus hold the legal title, even though all beneficial inter- est in the cause of action belonged to another. On this ground the assignor of a thing in action not negotiable must be the plaintiff, and the ability of an assignee to bring an action is wholly the result of statute. "Where the action was by two or more plaintiffs, the judgment was necessarily a single one in favor of all considered as one undivided body. It was impossible that each one of several plaintiffs could recover a different sum of money by way of debt or damages. Even if the action was for the possession of chattels or land, different plaintiffs could not recover distinct chattels or tracts of land; the judgment was for all the chattels as one subject-matter, or for the whole land as a unit, and if the plaintiff's rights were different they must be undivided, so that each share, being as yet unpartitioned, should extend throughout the entire mass, and the judgment be for all as joint or co- owners. The same rule extended to the defendants. If there were two or more, one single judgment must be rendered against all; different recoveries against separate defendants in the same action were impossible. The common law permitted no affirmative relief, no recovery of debt or damages, land or chattels, in favor of a de- fendant against a plaintiff, except perhaps in the little ' This rule haa been chaDged by the may be barred by tbe judgment, new procedure as adopted in several This innovation, which strikes at the of the western states, which very very root of the common-law theory properly requires that when an action as to parties and judgments, has been is brought by the assignee of a thing in operation for years without the in action, except of negotiable paper, slightest diffionlty, and its advantages the assignor must be. made a party are patent. This single fact demon- either plaintiff or defendant, so that strates the utter worthlessness, the he may be beard, if necessary, on the mere verbal character, of the so-called question as to the validity of the al- legal reasoning by which the common, leged assignment, and any future law dogmas have been upheld, claim against the debtor on his part §§ 114, 115 EQUITY JURISPRUDENCE. 122 used and now virtually obsolete legal action of " account." Even in the case of " Kecoupment of Damages," which was a recent invention of the common-law courts, "the demand on behalf of the defendant was only used defen- sively. The exceptional case of " Set-ofF," in which alone an affirmative recovery always pecuniary was ever pos- sible in favor of the defendant, was wholly of a statutory origin. § 114. The equitable doctrines with respect to parties and judgments are wholly unlike those which prevailed at the common law, different in their fundamental con- ceptions, in their practical operation, in their adaptability to circumstances, and in their results upon the rights and duties of litigants. The governing motive of equity in the administration of its remedial system is to grant full relief, and to adjust in the one suit the rights and duties of all the parties, which really grow out of or are con- nected with the subject-matter of that suit. Its funda- mental principle concerning parties is, that all persons in whose favor or against whom there might be a recovery, however partial, and also all persons who are so interested, although indirectly, in the subject-matter and the relief granted, that their rights or duties might be aflPected by the decree, although no substantial recovery can be ob- tained either for or against them, shall be made parties to the suit; and it is not ordinarily a matter of substantial importance whether they are joined as plaintiffs or as de- fendants, although this question of procedure is regulated to a certain extent by rules based upon considerations of convenience rather than upon any essential requirements of the theory. The primary object is, that all persons sufficiently interested may be before the court, so that th» relief may be properly adjusted among those entitled, the liabilities properly apportioned, and the incidental or con- sequential claims or interests of all may be fixed, and all may be bound in respect thereto by the single decree. § 115. The fundamental principle of equity in relation 123 THE CONSTITUENT PARTS OF EQUITY. § 115 to judgments is, that the court shall determine and adjust the rights and liabilities concerning or connected with the subject-matter of all the parties to, the suit, and shall grant the particular remedy appropriate in amount and nature to each of those entitled to any relief, and against each of those who are liable, and finally shall so frame its decree as to bar all future claims of any party before it which may arise from the subject-matter, and which are within the scope of the present adjudication. In render- ing its decree, a court of equity is not hampered by any of the arbitrary regulations which restrict the action of common-law tribunals; and especially, it is not bound to give a single judgment in favor of the co-plaintififs re- garded as one body, nor against the defendants as a group of persons jointly or equally liable. In this respect it possesses a full freedom to adapt its relief to the particular rights and liabilities of each party, and to determine the special interests of all, so far as they are legitimately con- nected with the subject-matter, and properly within the scope of the adjudication. It has power to grant relief to some of the co-plaintifiFs, and not to others, and against some of the co-defendants, and not against others; it can confer different reliefs in kind and extent to different plaintiffs and against different defendants; it can bestow affirmative relief upon all or some of the defendants against all or some of the plaintiffs; and finally, it can determine and adjust the rights and duties of the co-plaintiffs, or of the co-defendants, as between themselves. I would not be understood as asserting that this extreme flexibility or apportionment of remedies and obligations is common in ordinary equitable suits, nor that it is without limit and control; on the contrary, it is regulated by rules of plead- ing and procedure so contrived that all parties may be informed of the claims made against them, and of the lia- bilities, to which they are exposed. My object here is simply to state the general principles of the Equity Remedial System, and to describe the power which inheres § 116 EQUITY JURISPKUDENCB. 124 in a court of equitable jurisdiction to mold its decree and to adjust its reliefs so as to establish and enforce the par- ticular rights and liabilities, legitimately connected with the subject-matter, and within the scope of the judgment, of all the parties to the action. The modes in which this power should be exercised according to the rules of plead- ing and procedure must be considered in another place. § 116. The remedial system of equity as a whole, with its great variety of specific remedies which enforce the very primary rights and duties of persons rather than give pecuniary equivalents for their violation, with its power to enlarge the scope of these ordinary forms of relief, and even to contrive new ones adapted to new cir- cumstances, with its comprehensive rules concerning par- ties, and with its unlimited control over the form and material of its judgments, possesses enormous advantages over the narrow, inflexible, and artificial methods of the common law. The reformed American procedure has attempted to combine the two, or rather to fenlarge the equity doctrines and rules, so that they may embrace all actions, legal as well as equitable; and in those states where the courts* have accepted and carried out the re- form in its true spirit, this attempt has been successful as far as is possible from the essential elements of the two jurisdictions. A complete amalgamation, however, is not possible, so long as the jury trial is retained in legal actions. There is certainly no impossibility nor even difficulty in requiring a jury to decide the issues of fact upon which the right to many kinds of equitable remedy depends; this is the province of a jury in legal actions, the court pronouncing the judgment upon their verdict. A jury is clearly incompetent to frame and de- liver a decree according to the doctrines and methods of equity; but there can be no real obstacle in the way of its ascertaining the facts by its verdict, and leaving the court to shape the decree and award the relief based upon these facts in many species of equitable remedy. That 125 THE CONSTITUENT PARTS OF EQUITY. § 117 the issues of fact may be complicated is no insurmount- able difficulty; for no issues of fact are ordinarily more complicated than those involving elements of fraud, which have always been regarded as peculiarly within the prov- ince of a jury.* There are, however, classes of equitable suits in which the issues of fact upon which the relief de- pends are so intimately connected with the relief itself that their decision is plainly beyond the competence of a jury, and must of necessity be left to the court or judge. Of this character, for example, are all suits for the dis- tribution and marshaling of assets, and in fact all those in which the final relief depends upon an accounting. While a partial amalgamation of law and equity into one remedial system may be theoretically possible by extend- ing the jury trial to certain equitable actions in which it is not now used, I am strongly of the opinion that the jury trial in civil causes of a legal nature is a prac- tical obstacle to any more complete combination of the two systems than has already been accomplished by the reformed procedure.* § 117. To sum up the discussions of the foregoing sec- tion: The entire municipal law, so far as it is concerned with private civil relations, compri&es, — 1. Legal rules defining legal primary rights and duties applicable to most of the facts and circumstances which have been brought within the range of jural relations; 2. Legal rules defin- ' This proposition of the text, which pleadings, the jury passed upon the night otherwise have been regarded issues of fact, legal and equitable, and as a mere theoretical conception, has on their verdict the court rendered been actually wrought out into prac- its judgment, which, by being made tice by the courts of Pennsylvania, conditional, was enabled in an indl- For a long term the legislature of that rect manner to maintain the equitable state refused to confer any equitable right and grant the equitable remedy, jurisdiction upon its courts. As a In this manner the common-law ac- consequence, and in order to prevent tion of ejectment Was made the means a failure of justice, the courts con- of enforcing specific performance, and trived a system of administering many of protecting the equitable estates of equitable remedies and enforcing parties, where their land was held un- many equitable rights by means of der an implied trust, etc. the common-law forms of action. This ' See Pomeroy on Remedies and was accomplished in the manner sug- Remedial Rights, sees. 51, 52 in, Bested in the text. In the common- which this question is more fully law action the facts showing the equi- examined, table right were admitted into the § 117 EQUITY JURISPRUDENCE. 126 ing legal I'emedial rights and duties and remedies, which are few in uumijer, and very limited in their nature and form; 3. Equitable rules defining equitable primary rights and duties applicable to certain classes of jural relations, which rights and duties are supplementary and additional rather than contradictory to the legal ones affecting the same relations ; 4. Equitable rules defining equitable pri- mary rights and duties applicable to a comparatively few facts and circumstances, which are actually conflict- ing with the corresponding legal rights and duties; 5, Equitable rules defining equitable remedial rights and duties and remedies, which are much more various in their nature and form, specific in their object, and flexible in their operation, than the remedies supplied by the law. There is, therefore, no clashing nor uncertainty with respect to the final absolute rights and duties of Individ, uals, except so far as such conflict or doubt may arise from the comparatively few rules of the fourth class, where the antagonism between equity and the law does actually exist. It is certainly strange, inexplicable ex- cept upon historical grounds, that in an age and country advanced in civilization, the municipal law should present such an anomaly, that a married woman's agreement, for example, should be utterly void by the rules of the law, while, according to the doctrines of equity, it might be valid and enforceable out of her separate estate; or that a certain contract for the sale of land should be treated as an absolute nullity by a court of law, and should be regarded as binding and specifically executed by a court of equity. If any change, however, is to be made for the purpose of removing this discord, it must be in the legal and not in the equitable rules. The latter are, in all instances, the more just, and more in accordance with the sentiments and opinions of the age; while the former are necessarily subordinate, some of them have become practically obsolete, and all of them would be totally abandoned in any thorough revision or scientific codifica- tion of our entire jurisprudence. sns. «S 119, 120. «§ 121- -125. §121. S§122, 123. S§124, 125. «§126, 127. 127 THB PBINCIFLES OF CLASSIFICATION. §§ 118, 119 SECTION V. THE PRINCIPLES OP CLASSIFICATION. Importance and difficulty oF a correct classification. Difi^ereut grounds which might be taken for a classification. Ordinary mode of classification according to the nature of thg jurisdiction. In the three divisions of exclusive, concurrent, and auxiliary. Different modes of carrying out this system by various writers. Fundamental objections to this system of classification. The true principles of claaaification in the present condition of Equity. § 123. Flan and order of arrangement adopted in this treatise. § 118. Importance and DifiQculty of a Correct Classifi- cation. — The practical as well as the scientific value of a treatise on equity jurisprudence must largely depend upon the Principles of Classification adopted in the arrangement and discussion of the subject-matter. At the very outset, however, we encounter a most serious obstacle. From the partial character of equity as a system, from the fact that it covers only a comparatively small portion of the doctrines and rules, facts and circumstances, embraced in the entire national jurisprudence, its orderly and consistent arrangement necessarily becomes a matter of great difficulty. There are so many breaks, omissions, and, so to speak, empty spaces in the system of equity, that it is almost impossible to follow any one plan or method throughout the whole extent. It is plain, how- €ver, that the principles and modes adopted should con- form to the present condition of equity, and to its existing relations with the law. § 119. Different Grounds of Classification. — There are several features or elements of the equity jurisprudence ■which might, with more or less propriety, be selected as the basis of a classification. Among these are certain im- portant external facts or events, such as Fraud, Mistake, § 120 EQUITY JURISPKUDENCB. 128 Accident, and the like, which are the occasions of numer- ous equitable rules. These external facts have been treated by some writers as distinct heads or departments of equity jurisprudence, and they are often so described in the gen- eral language of judicial opinions. A jurisprudence, how- ever, does not consist of the mere facts or events which are the occasions of rules and rights, but of the rules which create the rights, and of the rights and duties themselves which result from these rules. Although such external facts and events as fraud, mistake, accident, and the like are the occasions of numerous equitable rules, and there- fore figure largely in the practical workings of the equi- table jurisdiction, they are also the occasions from which many legal rules and rights take their origin; they are not peculiar to equity, and if adopted as a basis of classifica- tion, would tend to confuse its doctrines with those of the law. There is another objection, of much more weight. These external facts are the sources of a great variety both of rights and remedies. Fraud, for example, affects a large part of equity jurisprudence. It is the occasion of equi- table rights of property, of equitable rights concerning contract, of equitable rights growing out of special per- sonal relations, such as cestui que trust and trustee, and of many equitable remedies, such as cancellation, reforma- tion, specific enforcement, accounting, and others. It is plain, therefore, that these species of external facts and events, important' as they undoubtedly are, do not furnish any sufficient basis for a practical nor for a scientific classification. They do not suggest any grounds for discriminating between rights and remedies which are essentially different; they would tend to produce confu- sion, rather than to supply a means of analyzing and arranging the doctrines in an orderly and distinct man- ner.* § 120. Another possible basis for a classification might be found in certain grand underlying principles, which are « [See Stockton v. Andfiraon, 40 N. J. Eq. 488.] 129 THK PRINCIPLES OF CLASSIFICATION. § 121 often called the Maxims of Equity, of which the following are given merely as examples: He who seeks equity must do equity; equality is equity; equity regards as done what ought to be done; equity looks at the substance and real intent, and not at the form, etc. It must be said of these grand principles, that they are a component part of equity jurisprudence, and not mere external facts or events, like fraud and mistake. They are the fruitful sources of doctrine whence are derived a vast number of particular rules concerning both primary rights and remedies. But the objection last mentioned in the pre- ceding paragraph applies with even greater force to them. These principles are too broad, comprehensive, and, so to speak, universal, to be taken as the basis of any practical classification. They run through all parts of the system, and are the source of so many and difier- ent rights and remedies, that they furnish no lines of division nor grounds of distinguishing one from another, and of arranging the whole according to any fixed plan. These principles in themselves are of the highest impor- tance to an accurate understanding of equity as a whole; they are the unfailing fountains whence flow the various streams of right and justice; the perennial sources of practical rules applicable to the ever-changing events of the social life; the foundation-stones upon which the beautiful structure of equity has been erected. The student who has made all these principles a part of his mental habit, who has, as it were, incorporated them into his very intellectual being, has already mastered the essence of equity, and has made the acquisition of its particular rules an easy and delightful labor. § 121. Ordinary Mode of Classification. — The plan of arrangement which has been followed by most authors of general treatises is based upon the relations which for- merly existed between equity and the law when the two jurisdictions were as yet wholly distinct, and were admin- istered by separate tribunals. Its divisions were made, 1 Eq. Jue. — » § 122 EQUITY JURISPRUDENCE. 130 not according to any inherent quality or nature either of rights or remedies, but according to a purely accidental quality oHhe jurisdiction. The fact that this jurisdictional criterion was merely accidental and incidental, is demon- strated by its having been utterly abolished in England and in many of our states without any change in the equitable rights and remedies themselves, but with only a change in the mode of administering those rights and remedies by a separate judicial proceeding. This plan of classification separates the whole body of equity into the three following grand divisions: 1. That containing the matters in respect of which courts of equity had an exclu- sive jurisdiction; 2. That containing matters in respect of which courts of equity had jurisdiction concurrently with courts of law; 3. That containing matters in respect of which the equity jurisdiction, though exclusive, was wholly exercised in aid of certain actions or proceedings which belonged exclusively to courts of law. In brief, the classi- fication which has ordinarily been adopted in the text- books is, the Exclusive Jurisdiction, the Concurrent Jurisdiction, and the Auxiliary Jurisdiction. § 122. Before examining the merits of this plan, a brief description of the manner in which it has been followed by different authors will be given. A great diversity exists among text-writers who have adopted this plan, in the modes which they have employed, in the accuracy and consistency with which they have ad- hered to the principles, in the criteria which they have taken to determine the nature and scope of the three grades of jurisdiction, and, as a consequence, in their arrangement of particular topics and heads of equity in one or the other of these three divisions. By some writ- ers the element of exclusiveness or of concurrence in the jurisdiction has been regarded more in connection with the primary rights, estates, and interests created by equity than with its remedies. But they have not followed this method consistently, since their order of arrangment has, 131 THE PRINCIPLES OF CLASSIFICATION. | 123 to a partial extent, been determined by the nature of the remedies, and even by mere external facts or events which are the occasions of rights and duties. It has resulted from this radical difference in their mode of in- terpreting and carrying out the plan, that there is no agreement among these authors in their arrangement of particular topics under the three general divisions of jurisdiction.* § 128. Other authors, in adopting this general plan of classification, have applied the criterion of exclusiveness or concurrence wholly to the remedies which equity gives, and have determined the various topics falling within one or the other of the three divisions in accordance with the nature of these remedies; that is, whether they belong exclusively to the equity jurisdiction, or are con- ferred by the law courts, or are entirely auxiliary to the prosecution of legal actions. This method has the ad- vantage of consistency and simplicity, and is not open to the objection of confusion; but it necessarily places the primary rights and duties of equity in a very subordinate position, and thus presents a one-sided and even mislead- ing view of the equity jurisprudence considered in its totality.* Some text-writers of high reputation, while ' I take simply as an illnstration establishing rights of property. It is the Principles of Equity, by B. H. diflEloult to conceive how a suit to T. Suell (London, 1874). In the " quiet title " can be regarded as be- " Concurrent" jurisdiction, this au- longing to the " Auxiliary " jurisdic- thor places both "Specific Perform- tion. This author, like many others, ance' and "Injunction," although as places fraud, actual or constructive, remedies both are exclusively equita- mistake, and accident as distinct ble. The reason of this arrangement heads of concurrent jurisdiction. The seems to be that the law has jurisdic- objections to such an arrangement are tion over contracts generally, and over patent. In the first place, as already some of the rights and interests which said, these matters are not in any may be protected by injunction. Un- sense parts of equity Jwisprudence. der the " Auxiliary " jurisdiction, he In the second place, they are the ocoa- Btrangely enough places the remedy sions whence equitable primary rights of "Cancellation, "Bills to Estab- and remedies of the most exclusive lish Wills," "Bills Quia Timet, "and character take their rise, as well as "Bills of Peace." The first of these those which are legal, is an exclusive equitable remedy, and ' By far the best example of this is constantly used as a means of estab- method, I think, is the Doctrine of lishing or restoring equitable rights Equity, by John Adams, 6th Am. ed., and estates. The three others are in 1873. His three chief divisions are: every case final reliefs, declaring and 1. Jurisdiction in cases in which the § 124 EQUITY JUKISFKUDENCB. 132 professing to classify particular topics under the three divisions according to the nature of the remedies, have failed to carry out this mode of arrangement with con- sistency, and have thus left the student without any cer- tain clew to their system of classification.' § 124. Even if the plan of classification according to the nature of the equity jurisdiction, considered in its re- lations with that of the law, possessed at one time certain practical advantages which on the whole rendered it pref- erable to any other (and I do not admit this proposition as unquestionably true), the recent and great changes made by statute have, in England, and in many of the states entirely, and in other states to a large extent, de- stroyed the basis of fact — the relations between equity and the law — upon which the very principles of the classification were founded. In England and in all the commonwealths of this country where the reformed pro- law courts cannot et{force a right; meaning thereby a remedial right, and intending to include in the divis- ion those remedies which are exclu- sively equitable. Under this head he places Specific Performance, Reforma- tion, Cancellation and Rescission, In- junction, Bills of Peace and to Quiet Title, Suits to Foreclose or to Redeem Mortgages, Enforcement of Trusts, and others. 2. Jurisdiction in cases in which the law courts cannot ad- minister a right, — that is, cannot fully and advantageously enforce it; the division including remedies which are within the concurrent jurisdiction of equity. Under this head he ranges Account, Partition, Settlement of Part- nership Matters and Estates of Dece- dents, Marshaling of Assets, Contri- bution and Exoneration, etc. 3. Juris- diction which is wholly auxiliary, including only Discovery, Perpetua- tion of Testimony, and Examination of Witnesses abroad. This author is perfectly consistent in following out the principles which he has adopted; and he does not fall into the common error of taking fraud, mistake, acci- dent, and the like as distinct heads of equity jurisprudence. The result is, that Mr. Adams's book is clear, dis- tinct, without confusion, and from hia stand-point presents a very correct and consistent view of equity. But this view is certainly a partial one. The representation of equity as consisting wholly of remedies is incorrect in its fundamental conception, and when all equitable primary rights, interests, and estates are treated merely as incidents of the remedies, such a representa- tion is actually made, even though it was undesigned on the part of the author. ' It cannot be denied that Judge Story's Commentaries are liable to this criticism, and the result is plainly shown in his classification and ar- rangement and treatment of particu- lar topics. While certain remedies are properly ranged under the excln- sive jurisdiction, and others under the concurrent, as is done by Mr. Adams, this criterion is often abandoned; ne clear distinction is made between remedies or the rights to them, and the equitable estates, interests, rights, and obligations which are primary in their nature; and finally, the mere ex- ternal facts of fraud, mistake, etc., are regarded as veritable and impor- tant heads of equity jurisprudence, and are discussed at great length. 133 THB PRINCIPLES OP CLASSIFICATION. § 124 cedure prevails, there is no longer any auxiliary jurisdic- tion of equity, nor any reason for calling its remaining functions either exclusive or concurrent, since legal and equitahle primary rights are maintained, legal and equi- table remedial rights are enforced, and legal and equitable remedies are granted by the same tribunal and in the same action. In most of the remaining states where the two jurisdictions are still kept distinct, the " auxiliary " equitable proceedings have either been abolished or have become practically obsolete; and in all of them the powers of the law courts have been so enlarged, equitable rights and interests are to such an extent cognizable by way of defense in legal actions, and so many matters which once came within the province of equity have been placed under a complete system of statutory regulation, and their administration given to special tribunals, that the ancient separation into exclusive jurisdiction no longer furnishes an adequate nor even a true principle upon which to classify the body of equity jurisprudence. This method, which has been commonly adopted by text- writers, is therefore in direct conflict with the reformed procedure now used in more than half of the states and territories, as well as in England and its chief colonial dependencies; and it is also opposed to the tendencies of legislation in all the other states, with a very few excep- tions. There is nothing which so hinders the progress of legal reform, and so long delays the general acceptance according to its true intent of a new legal system, as the persistent retention of the nomenclature, methods, and classification which had been established as the out- growth and formal expression of the ancient notions dis- carded and abandoned by the legislative enactment. For this reason, if for nO other, I am strongly of the opinion that a plan of arranging and presenting the equity juris- prudence which had its origin solely in the fact that law and equity were originally two distinct jurisdictions, and were administered by separate tribunals, is not at all §§ 125, 126 EQUITY JURISPBUDENCE. 134 adapted to the condition of the municipal law, and of the relations between its departments, which now exists throughout the United States, nor to the national ten- dencies shown in the changes which are constantly made by the state legislatures, especially the tendencies tow- ards a scientific revision and codification of the municipal law, which will more and more obliterate the external dis- tinctions between equity and the law. § 125. There is, however, another, and as it seems to me more fundamental, objection to this method of classi- fication, based upon the assumed relations between legal and equitable jurisdiction. Whenever some single fea- ture or partial element of an extensive system is taken as the basis of classifying its component patts, the inevita- ble result must be an imperfect and even incorrect view of the system as a whole. The choice of the equitable remedies alone as the fixed points to which all doctrines and rules are referred, and the classification of these remedies solely according to their relations with the jurisdictions possessed by the two courts, have tended irresistibly to produce a confused and one-sided concep- tion of the nature and functions of equity.* Under the influence of such a conception, some writers have taught that equity consists entirely of certain remedies, and have denied that it creates any primary rights and duties whatever. I have already shown the erroneous character of this theory, and shall not dwell upon it further. § 126. True Principles of Classification. — A compre- hensive treatment of equity which shall conform to its real nature and its present condition as a branch of the juris- prudence now existing in the United States should present all of its component parts in their true relations with each ' As an illustration of this proposi- the only elements for determining the tion, it is impossible to lay down any question. The primary rights, estates, comprehensive, complete, and accu- and interests created by equity most rate rales concerning the extent of the necessarily enter into any general equity jurisdiction, when the eqni- solution oi the problem, table and legal remedies are taken as 135 THE PRINCIPLES OF CLASSIFICATION. § 127 other and with the law, and should adopt such principles of classification as will follow the essential lines of separa- tion between these parts, and furnish a correct and prac- tical guide for the student and the lawyer. No method can be accurate nor really practical which, in the first place, does not recognize the fact that equity consists of two grand divisions, the Primary Eights and Duties, Es- tates and Ii^terests which it creates, and the Remedial Rights and Duties enforced by the various Remedies which it confers; and which, in the second place, does not present the principles, doctrines, and rules concerning these Primary Rights, Estates, and Interests, separate and distinct from those which relate to the Remedial Rights and Remedies. The classification of the remedies, being no longer based upon any notion of exclusive and concur- rent jurisdictions, should be made in accordance with their own inherent nature and the nature of the primary rights, the violation of which they are intended to redress or re- lieve. Underlying these equitable estates, interests, and rights, and these equitable remedies, and constituting the sources from which most of them have been derived, there are certain equitable principles of a mosit broad, com- prehensive, and general nature and application. These principles run through every branch of the equity juris- prudence; from them a large part of the particular doc- trines and rules of that system, both concerning equitable estates and interests, and equitable remedies, have been developed. They seem to require, therefore, in any well- constructed arrangement, a separate treatment, prelimi- nary to the examination of those more special topics which are directly connected with the equitable estates, interests, rights, and remedies. § 127. The order which should be observed in the treatment of these two grand divisions which make up the whole of equity jurisprudence may well be determined by considerations of convenience, rather than by the requirements of a scientific precision. The division of I 128 EQUITY JURISPRUDENCB. 136 equity which is concerned solely with remedies is much broader aud more comprehensive than that which is con- cerned with equitable primary rights and interests. The remedies administered by equity are not confined to cases in which equitable primary rights have been violated; they are not restricted to the single purpose of maintain, ing equitable estates and interests. As has already been stated in a preceding section, the peculiar reliefs of equity are given, under certain well-established conditions of fact, for the violation of legal primary rights and for the .protection and support of legal estates and interests. In other words, while every equitable right and interest is enforced and preserved by an appropriate equitable remedy, the remedial jurisdiction of equity extends be- yond these somewhat narrow limits, and embraces many classes of legal rights and interests for the violation of which, under the existing circumstances, the law gives no adequate relief. Before, however, entering upon either of these two grand divisions of the work, a preliminary investigation into the nature and extent of the equity jurisdiction is necessary as a foundation for all subsequent discussions. § 128. I shall in the following treatise adopt the gen- eral plan, principles of classification, and method of treat- ment described in the foregoing paragraphs. The entire work will be separated into four parts. Part First will contain an inquiry into the nature and extent of the Equity Jurisdiction as it now exists in the United States, both in its original and general form, and as limited or regu- lated by the statutory legislation of the various states and of the Congress of the United States. The three remain- ing parts will treat of the Equity Jurisprudence, or the doctrines which are administered by the courts in the exer- cise of their eqnitahle jurisdiction. Part Second will discuss the grand principles and maxims which are the foundation of Equity Jurisprudence, and the sources of its particular doctrines, and will also describe some of the most important 137 THE PRINCIPLES OF CLASSIFICATION. § 128 facts and events which are the occasions of equitable primary and remedial rights and duties. Part Third will contain that portion of Equity Jurisprudence which consists of Primary Rights and Duties, or in other words, of equita- ble estates, titles, and interests. Part Fourth will contain that portion of Equity Jurisprudence which consists of remedial rights and duties and of remedies. This de- scription does not include any discussion of mere proce- dure. The term " Remedies," as it has been defined, and as it will be used throughout the book, does not embrace the rules of procedure, but only the reliefs which are granted for a violation, actual or threatened, of legal and •equitable rights. PAKT FIRST. PART FIRST. THE NATURE AND EXTENT OF EQUITY JURIS- DICTION. CHAPTER FIRST. THE GENERAL DOCTRINE CONCERNING THE JURISDICTION. SECTION I. FUNDAMENTAL PEINCIPLES AND DlVISIONa S 129. Eqnity jnrisdietion defined. § 130. Bequiaites in order that a case may come within it. § 131. Distinction between the existence of equity jurisdiction and th» proper exercise of it. § 132. Inadequacy of legal remedies, how far the test. § 133. Eqnity jurisdiction depends on two facts: the existence of equip table interests, and the inadequacy of legal remedies. i§ 134, 135. How far the jurisdiction is in personam, how far tn rem. § 136. Equity jurisdiction threefold, — exclusive, concurrent^ and aux- iliary. S§ 137, 138. What embraced in the exclusive jurisdiction. §§ 139, 140. What embraced in the concurrent jurisdiction. § 141. Cases may fall under both. §§ 142-144. What embraced in the auxiliary jurisdiction. § 145. Order of subjects. § 129. Equitable Jurisdiction Defined. — It is impor- tant to obtaia at the outset a clear and accurate notion of what is meant by the term "Equity Jurisdiction." It is used in contradistinction to "jurisdiction" in general, and to "common-law jurisdiction" in particular. In its most general sense the term "jurisdiction," when applied to a court, is the power residing in such court to deter- §129 EQUITY JUKISPRUDENCB. 142 mine judicially a given action, controversy, or question presented to it for decision. If this power does not exist with reference to any particular case, its determination by the court is an absolute nullity; if it does exist, the determination, however erroneous in fact or in law, is binding upon the parties until reversed or set aside in some proceeding authorized by the practice, and brought for that express purpose.' It is plain that the term used in this strict sense may be applied to courts of equity as ' The trua meaning of "jurisdic- tion "is so often misunderstood, and the word is so often misapplied, that I shall quote a passage from the opin- ion of Mr. Justice Folger in the re- cent case of Hunt v. Hunt, 72 N. Y. 217, 228-230, 28 Am. Rep. 129, in which the subject ia explained in a very clear and convincing manner: "Jurisdiction of the subject-matter does not depend upon the ultimate existence of a good cause of action in the plaintiff in the particular case. See Groenvelt v. Burwell, 1 Ld. Raym. 466, 467. A court may have jurisdic- tion of all actions in assumpsit of that subject-matter. An action by A in which judgment is demanded against B, as the indorser of a promissory note, falls within that jurisdiction. Such court may entertain and try the ac- tion, and give a valid and effectual judgment in it. Though it should appear in proof that there never had been presentment and demand, nor notice of non-payment, yet a judgment for A against B, though against the facts, without facts to sustain it, would not be void aa rendered with- out jurisdiction. It would be errone- ous, and liable to reversal on review. Until reviewed and reversed, it would be valid and enforceable against B, and entitled to credit when brought in play collaterally. Jurisdiction of the subject-matter is power to adjudge concerning the general question in- volved, and is not dependent upon the state of facts which may appear in a particular case, arising, or which is claimed to have arisen, under that general question. One court has ju- risdiction in criminal cases; another in civil cases; each in its sphere has ju- risdiction of the subject-matter. Yet the facts, i. e., the acts of the party proceeded against, may be the same in a civil case as in a criminal case; as, for instance, in a civil action for false and fraudulent representations and deceit, and in a criminal action for obtaining property by false pretenses. We should not say that the court of civil powers bad jurisdiction of the criminal action, nor vice versa, though each had power to pass upon allega- tions of the same facts. So there is a more general meaning to the phrase 'subject-matter,' in this connection, than power to act upon a particular state of facts. It is the power to act upon the general, and, so to speak, the abstract, question, and to determine and adjudge whether the particular facts presented call for the exercise of the abstract power. A suitor for a divorce may come into any court of the state in which he is domiciled, which is empowered to entertain a suit therefor, and to give judgment between husband and wife of a disso- lution of their married state. If he does not establish a cause for divorce, jurisdiction to pronounce judgment does not leave the court. It has power to give judgment that ho has not made out a case. That judgment would be so valid and effectual as to bind him thereafter, and to be res ad- judicata as to him in another like at- tempt by him. If that court, however, should err, and give judgment that he had made out his case, jurisdiction re- mains in it so to do. The error is to be corrected in that very action. It may not be shown collaterally to avoid tha judgment, while it stands unreversed. The judgment is in such case also rea adjudicata against the party cast in the judgment. We conclude that ju- risdiction of the subject-matter is the power lawfully conferred to deal with the general subject iuvolved iu the action." 143 FUNDAMSMTAL PBINCIPLES AND DIVISIONS. § 130 well as to any other tribunals. With this signification of the word, it would be said that an equity court has no jurisdiction to try the issues arising upon an indictment, and to render judgment in a criminal prosecution; the entire proceeding would be null and void. On the other hand, it is equally plain that this strict meaning is not always given to the term "equity jurisdiction," as it is or- dinarily used. The proceedings and judgment of a court of chancery or of a court clothed with equity powers are not necessarily null and void because the action is not one which comes within the scope of the "equity jurisdic- tion " in the common acceptation of that phrase, or in other words, because the claim is one for which there is a full, adequate, and complete remedy at law.' This well- settled rule furnishes a decisive test, and shows that when ordinarily speaking of the "equity jurisdiction " we do not thereby refer to the general power inherent in a court to decide a controversy at all, — a power so essential that its absence renders the decision a mere nullity, but we intend by the phrase to describe some more special and limited judicial authority. § 130. "Equity jurisdiction," therefore, in its ordinary acceptation, as distinguished on the one side from the general power to decide matters at all, and on the other from the jurisdiction "at law" or "common-law jurisdic- tion," is the power to hear certain kinds and classes of civil causes according to the principles of the method and procedure adopted by the court of chancery, and to decide them in accordance with the doctrines and rules of equity jurisprudence, which decision may involve either the de- termination of the equitable rights, estates, and interests ' Bank of Utica T. Herserean, 3 suit and dismiss it, even though no Barb. Ch. 528; Cnmmings v. Mayor objection had been raised by the par- etc, 11 Paige, 596; Creely v. Bay ties; but even in such cases a judgment State B. Co., 1Q3 Mass. 514; Amis v. of the equity court sustaining the ac- Myers, 16 How. 492, 493; Sexton t. tion and granting the relief would not Pike, is Ark. 193. In some instances necessarily be a nullity. See Parker v. where the facta very clearly bring the Winnipiseogee Co., 2 Black, 545, 550, case within the common-law jurisdic- 551; Hipp y, Babin, 19 How, 271i tion, the court of equity will itself 277, 278. take the objection at any stage of the % 130 EQUITY JURI8PRUDBNCB. 144 of the parties to such causes, or the granting of equitable remedies. In order that a cause may come within the scope of the equity jurisdiction, one of two alternatives is essential: either the primary right, estate, or interest te be maintained, or the violation of which furnishes the cause of action, must be equitable rather than legal;' or the remedy granted must be in its nature purely equitable, or if it be a remedy which may also be given by a court of law, it must be one which, under the facts and circum- stances of the case, can only be made complete and ade- quate through the equitable modes of procedure.' At the same time, if a court clothed with the equity jurisdiction as thus described should hear and decide, according to equitable methods, a case which did not fall within the scope of the equity jurisprudence, because both the pri- mary right invaded constituting the cause of action and the remedy granted were wholly legal, and belonging properly to the domain of the law courts, such judgment, however 'Reese v. Bradford, 13 Ala. 837j Sessions v. Sessions, 33 Ala. 522, 5t3; Torrey v. Camden etc. R. R. Co., 18 N. J. Eq. 293; Ontario Bank v. Mum- ford, 2 Barb. Ch. 596, 615; Woodruflf V. Robb, 19 Ohio, 212, 214; Wolfe v. Scarborough, 2 Ohio St. 361, 368; Heilman v. Union Canal Co., 37 Fa. St. 100, 104; McCuUough v. Walker, 20 Ala. 389, 391; Wolcott v. Eobbins, 26 Conn. 236; Green t. Spring, 43 III. 280; Viek v. Percy, 7 Smedes & M. 256, 268; 45 Am. Dee. 303; Abbott v. Allen, 2 Johns. Ch. 519; 7 Am. Deo. 554; Waddell v. Beach, 9 N. T. Eq. 793, 795; Milton v. Hogue, 4 Ired. Eq. 415, 422; Johnson v. Connecticut Bank, 21 Conn. 148, 157; Perkins v. Perkins, 16 Mich. 162, 167; Bollea v, Carli, 12 Minn. 11.3, 120; Echols v. Hammond, 30 Miss. 177; Hipp v. Ba- bin, 19 How. 271, 277, 278; Wing y. Hall, 44 Vt 118, 123; Detroit v. Board of Public Works, 23 Mich. 546, 552; Simmons v. Hendricks, 8 Ired. fiq. 84-86; 55 Am. Deo. 439; Pratt v. Northam, 5 Mason, 95, 104; Thomp- son V. Brown, 4 Johns. Ch. 619, 631; Hunt V. Danforth, 2 Curt. 592, 603; Gay V. Edwards, 30 Miss. 218, 230; Bush V. Golden, 17 Conn. 594; Gilliam V. Chancellor, 43 Miss. 437; 5 Am. Rep. 498. ' Brinkerhoff v. Brown, 4 Johns. Ch. 671; Mason v. Piggott, 11 111. 85, 89; Clausseu v. Lafrenz, 4 G. Greene, 224-227; Kimball v. Grafton Bank, 20 N. H. 347, 352; Fersou v. Sanger, Daveis, 252, 259, 261; Curtis v. Blair, 26 Miss. 309, 327; 59 Am. Dec. 257; Dickenson v. Stoll, 8 N. J. Eq. 294, 298; Perkins v. Perkins, 16 Mich. 162, 167; Barrett v. Sargeant, 18 Vt. 365, 369; Jordan v. Faircloth, 27 Ga. 372, 376; Bassett v. Brown, 100 Mass. 355; Morgan v. Palmer, 48 N. H. 336; Hall V. Joiner, 1 S. C. 186; Matter of Broderick's Will, 21 Wall. 803, 504; Comstook v. Henneberry, 66 HI. 212; Suter v. Matthews, 115 Mass. 253; Santacruz v. Santacruz, 44 Miss. 714, 720; Glastenbury v. McDonald's Administrator, 44 Vt. 450, 453; Bran- don V. Brandon, 46 Miss. 222, 231; Scruggs V. Blair, 44 Miss. 406, 412; Carr v. Silloway, 105 Mass. 543; San- born V. Braley, 47 Vt. 171; Doremus V. Williams, 4 Hun, 458; Carlisle 7. Cooper, 21 N. J. Eq. 576; Edsell T. Briggs, 20 Mich. 429; McGunn v. Hun- tin, 29 Mich. 477; Gay ». Edwards, 30 Miss. 218, 230. 145 FUNDAMENTAL PEINCIPLES AND DIVISIONS. § 131 erroneous it might be and liable to reversal, would not necessarily be null and void.* On the contrary, as will be more fully stated hereafter, the objection that the case does not come within this so-called equity jurisdiction must ordinarily be definitely raised by the defendant at the camraencement of the proceedings, or else it will be regarded as waived, and the judgment will not even be erroneous.' In some instances, however, where the equi- table functions of the court are specifically defined by statute, or the facts show very clearly that the rights involved in the controversy and the remedies demanded are purely legal, and completely within the scope of ordi- nary legal proceedings, the court of equity will itself take the objection at any stage of the cause, and will dismiss the suit, although no objection has in any way been raised by the parties.' § 131. It is plain, from the foregoing definitions, that the question whether a given case falls within the equity jurisdiction is entirely different and should be most carefully distinguished from the question whether such case is one in which the relief peculiar to that jurisdic- tion should be granted, or in which the equity powers of the court should be exercised in maintaining the primary right, estate, or interest of the plaintiff". The constant tendency to confound these two subjects, so essentially different, has been productive of much confusion in the discussion of equitable doctrines. Equity jurisdiction is distinct from equity jurisprudence. One example will ' This eoQclusion results from the of a power to decide concerning oer- prinoiple.laid down by Folger, J., in tain subject-matter, involves the power the passage above cited. If the court to decide wrongly as well as correctly, has jurisdiction over the subject-mat- ' Cummings v. Mayor etc., 11 Paige, ter of equitable rights, interests, and 596; Bank of TJtica v. Mersereau, 3 remedies, its jurisdiction does not de- Barb. Ch. 528; Amis v. Myers, 16 How. pend upon its deciding correctly as 492; Creely v. Bay State B. Co., 103 to the existence of such rights, or as Mass. 514; Sexton y. Pike, 13 Ark. to the granting of such remedies. 1 93. [See also Smith v. Bock, 69 Vt. The jurisdiction itself exists indepen- 232.] dently of the particular case over * Hipp v. Babin, 19 How. 271, 278; which it is exercised; jurisdiction, in Parker v. Winnipiseogee Co., 2 Black, iti moat general and accurate sense 645, 660, 651. 1 Eq. Job.— 10 § 132 EQUITY JURISPRUDENCK. 146 suffice to illustrate this important proposition. A suit to enforce the specific performance of a contract, or to reform a written instrument on the ground of mistake, must always belong to the equity jurisdiction, and to it alone, since these remedies are wholly beyond the scope of common-law methods and courts; but whether the re- lief of a specific performance, or of a reformation, shall be granted in any given case, must be determined by an application of the doctrines of equity jurisprudence to the special facts and circumstances of that case. The same is true of every species of remedy which may be con- ferred, and of every kind of primary right, estate, or interest which may be enforced or maintained, by a court possessing 'the equitable jurisdiction. In other words, the equity jurisdiction may exist over a case, although it is one which the doctrines of equity jurisprudence forbid any relief to be given, or any right to be maintained. This conclusion is very plain, and even commonplace; and yet the "equity jurisdiction" is constantly con- founded with the right of the plaintiff to maintain his suit, and to obtain the equitable relief. This is, in fact, making the power to decide whether equitable relief should be granted to depend upon, and even to be identi- cal with, the actual granting of such relief. § 132. Extent of the Jurisdiction. — Having thus gen- erally defined " equity jurisdiction," I shall proceed with the most important and practical inquiry as to its extent and limitations, and with the examination of the kinds and classes of cases over which it may be exercised. The attempt has been made to furnish one comprehensive test for the solution of all questions which may arise as to the existence of the jurisdiction, — to reduce all special rules to one general formula. To this end, it has often been said by courts as well as by text-writers that the equity jurisdiction extends to and embraces all civil cases, and none others, in which there is not a full, adequate, and 147 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 13o complete remedy at law.* As has already been stated, some writers have gone so far as to assert that equity jurisprudence consists wholly in a system of remedies, and that the only rights created and conferred by it are remedial rights, that is, rights to obtain some remedy; and according to their theory, its jurisdiction is of course to be measured by the absence or existence of adequate remedies at the law.* § 133. The general criterion which has thus been pro- posed is, however, insufficient and misleading. Although the inadequacy of legal remedies explains, and is even necessary to explain, the interposition of equity in cer- tain classes of cases, it wholly fails to account in any consistent and correct manner for the entire equity ju- risdiction. The history of the court of chancery shows ' See, as illustrations, the following among many such cases: Earl of Ox- ford's Case, 1 Ch. Rep. 1; 2 Lead. Cas. Eq. 1291, and notes; Grand Chute V. Winegar, 15 Wall. 37.3; Insurance Co. V. Bailey, 13 Wall. 616; Hipp v. Babin, 19 How. 271, 278; Parker v. Winnipiseogee Lake etc. Co., 2 Black', 545, 550, 551. ' See Adams's Equity, Introduction, p. 9, 6th Am. ed. Mr. Adams says: Equity " does not create rights which the common law denies; but it gives effectual redress for the infringement of existing rights, where, by reason of the special circumstances of the case, the redress at law would be inade- quate." See also Introd., p. 12: Now, if equity "gives effectual re- dress for the infringement of existing rights " (and the whole passage shows that he is speaking of existing pri- mary rights), it is plain that the " ex- isting rights " thus infringed upon and redressed must have drawn their ex- istence from some source, either from the law or from equity. It is abso- lutely certain that many of the " ex- isting rights " which are thus redressed by equity, even if not denied by the law, are neither created nor recognized hy the law. Whence, for example, do the rights of the cestui que trust of land arise? Such rights " exist," and when infringed upon they are "effec- tually redressed " by equity. Rights cannot exist without some creative source from which they derived their efficacy. The law certainly does not create, nor even acknowledge, the ex- istence of any rights belonging to the cestui que trust. The conclusion is inevitable that these rights are created by equity. Even Mr. Adams admits the existence of these primary rights independent of the remedies for their violation; and to deny that they are created by equity is to run into a palpable absurdity for the purpose of maintaining an untenable theory. If it should be said, in opposition to this conclusion, that the only rights which the law does not itself create nor rec- ognize are the very remedial rights themselves given by equity, the rights to obtain the remedies furnished by the equity methods, the answer is very simple. In the first place, this argu- ment is a mere begging of the ques- tion, a mere reasoning in a circle; and in the second place, the statement is without any foundation in fact. There are large and numerous classes of rights, estates, and interests main- tained and enforced by equity, but not recognized by the law, which are in every sense of the term primary, — as much so as the legal estate in fee in land; and some of these equitable primary rights are, in truth, not merely unrecognized, but actually dfl- nied by the law. § 134 EQUITY JURISPKUDENCB. 148 that all its powers cannot be referred to this source. It is true that the common-law modes of procedure are utterly inadequate to meet all the ends of justice, and to administer all the remedies which are granted by equity; and that in some general sense equity is established to supply this defect in the law. But the absence of full, adequate, and complete remedies at law does not consti- tute a basis upon which to rest the whole equity jurisdic. tion, nor furnish a practical explanation of all the doc- trines and rules which make up the equity jurisprudence. No theory is scientifically complete, nor practically eflB- cient, which does not recognize two distinct sources and objects of the equity jurisdiction, namely, the primary rights, estates, and interests which equity jurisprudence creates and protects, and the remedies which it confers. These two facts in combination can alone define the ex- tent and fix the limits of the equity jurisdiction.' § 134. Some writers have argued that the equitable jurisdiction is to be regarded as wholly remedial, and that equity itself does not create, any rights of property or other primary rights, because the court of chancery, as they say, only acts in personam against the parties, and never in rem upon the subject-matter of a judicial con- troversy. It is said that a decree of the court never operates by virtue of its own inherent efficacy to create or to transfer an estate, right, or interest; that such de- cree never executes itself, nor furnishes any means or instruments by which it may be executed without the in- tervention and act of the party against whom it is ren- dered; that the plaintiff in equity never, merely by means of the decree in his favor, either recovers possession of the land or other subject-matter, or becomes vested with a title to or estate therein; and that the court simply ' The correctness of this view of the terminology somewhat different from equitable jurisdiction and of equity that which I have adopted, makes jurisprudence is acknowledged and this theory the basis of his olassifica- asserted by the most able and learned tion and of hia whole treatment of among modern text-writers. Mr. equity jurisprudence. Spenoe, in particular, though using a 149 FUNDAMENTAL PKINCIPLES AND DIVISIONS. § 135 orders some act to be done, a conveyance to be executed an instrument to be surrendered up and canceled, posses- sion to be delivered, and the like, and then merely uses a moral coercion upon the defendant, by means of fine and imprisonment, to compel him to do what is directed to be done in the judgment. This radical difference between the effect of a decree in equity and a judgment at law, it is urged, shows that there are no equitable primary rights, no equitable estates or interests, distinct and separate from the rights to obtain such remedies as are adminis- tered by the court of chancery. § 135. There may be some plausibility in this argu- ment on its surface, but when it is examined with care, and under the light of history, all its force disappears. The early chancellors, from prudential motives alone, and to avoid a direct conflict with the common-law courts, adopted this method of acting, as they said, upon the consciences of defendants; and the practice which they invented has, with the English national devotion to estab- lished forms, continued to modern times. But it is cer- tainly a complete confounding of the essential fact with the external form, to say that such a mere method of procedure,, adopted solely from considerations of policy, determines the nature of the equitable jurisdiction, and demonstrates the non-existence of any equitable primary rights, estates, and interests. If there had been any necessary connection between the proceedings and reme- dies of chancery and this mode of enforcing its decrees in personam, if it had been intrinsically impossible to render these decrees operative in rem, then the argument would have had some weight; but in fact there is no such connection, no such impossibility; the decrees of a court of equity may be made to operate in rem to the same extent and in the same manner as judgments at law. Further- more, whatever of plausibility there might be in the theory as applied to the English court of chancery has been entirely destroyed by the legislation of this country. § 135 EQUITY JURISPRUDENCE. 150 The statutes of tlie several states have virtually abolished the ancient doctrine that the decrees in equity can only act upon the person of a party, and have ' generally pro- vided that in all cases where the ends of justice require such an effect, and where it is possible, a decree shall either operate ex propria vigore to create, transfer, or vest the intended right, title, estate, or interest, or else that the acts required to be done in order to accomplish the object of the decree shall be performed by an oflBcer of the court acting for and in the name of the party against whom the adjudication is made. In the vast variety of equitable remedies, there are, of course, some which directly affect the person of the defendant, and require some personal act or omission on his part, and these are still enforced, and can only be enforced, in personam. In regard to all other classes, the statutes of our states have, as a general rule, either made them operative per se as a source of title, or as conferring an estate or right, or have given the requisite power to certain officers to carry them into effect.* This modern legislation has not, however, deprived a court of equity of its power to act in personam in cases where such an effect is necessary to maintain its settled jurisdiction; as, for example, where the parties being within its jurisdiction, the subject-matter of the controversy, whether real or personal property, is situ- ated within the territory of another state or nation.' ' For example, wherever a decree some kinda of restorative decrees, aa orders a conveyance to be made by mandatory injunctions, must still op- the defendant, the statutes of many erate m personam, and be enforced by states provide that the deed may be attachment process against the de- executed by a commissioner or other fendant, with fine and imprisonment officer of the court, with the same in case of disobedience, effect as though done by the (defend- " See Topp v. White, 12 Heisk. ant himself; others declare that de- 165; Moore v. Jaeger, 2 McAr. 466; creea may vest a title in the party in Penn v. Lord Baltimore, 1 Ves. Sen. whose favor they are rendered. All 444; 2 Lead. Cas. Eq., and notes decrees which require the sale of thereto; Caldwell v. Carrington, 9 property real or personal, or the dis- Pet. 86; Watkins v. Holman, 16 tribution of moneys, are executed by Pet. 25; Mead v. Merritt, 2 Paige, an officer of the court, and his deed 402; Hawley v. James, 7 Paige, 213; upon the sale conveys all the estate 32 Am. Dec. 623; Sutphen v. Fowler, and title of the defendant. Preventive 9 Paige, 280; TJewton v. Bronson, 13 decrees, like ordinary iujunctions, and N. Y. 587; 67 Am. Dec. 89; Bailey v. 151 FUNDAMENTAL PKINCIPLES AND DIVISIONS. § 136 §136. Divisions. — Adopting, therefore, the primary rights, estates, and interests which equity creates, and the remedies which it confers, as the objects which de- fine and limit the extent of the equity jurisdiction, I shall state the principles by which the extent and limits of that jurisdiction are ascertained. It has been custom- ary among writers to distinguish the equitable jurisdic- tion as exclusive and concurrent, and some have added the third subdivision, auxiliary. I have already given reasons which appear to be sufficient for not following this method of division in treating of the matters which constitute the body of equity jurisprudence; but I shall adopt it as the most convenient in discussing the jurisdiction. This dis- tinction or opposition between the " exclusive " and the "concurrent" relates wholly to the nature and form of the remedies which are administered by equity courts, and properly belongs, therefore, to that part of the jurisdiction alone which is based upon these remedies. As has al- ready been stated, the equity jurisdiction embraces both cases for the maintenance or protection of primary rights, estates, and interests purely equitable, and cases for the maintenance or protection of primary rights, estates, and interests purely legal; and in the latter class of cases the remedies granted may be of a kind which are peculiar to equity courts, such as reformation, cancellation, injunc- tion, and others, or may be of a kind which are adminis- tered by courts of law, as the recovery of money, or of the possession of specific things. It is evident that the dis- tinction between the exclusive and the concurrent juris- diction represents the fact that the two kinds of remedies, equitable and legal, may, under proper circumstances, be obtained in the last-mentioned class of cases; no such di- vision could have existed if the equity jurisdiction had been confined to the first class. Ryder, 10 N. Y. 368; Gardner v. Davis v. Parker, 14 Allen, 94; Brown Ogden, 22 N. Y. 332-339; 78 Am. Dee. v. Desmond, 100 Mass. 267. 192; Pingree v. Coffin, 12 Gray, 304; § 137 EQUITY JUKISPKUDENCB. 152 § 137. Exclusive Jurisdiction. — With these prelimi- nary explanations we are prepared for a description, in general terms, of the various kinds and classes of cases which come within the equitable jurisdiction of courts. The exclusive jurisdiction extends to and embraces, _^rs<, all civil cases ■ in which the primary right violated or to be declared, maintained, or enforced — whether such right be an estate, title, or interest in property, or a lien on property, or a thing in action arising out of contract — is purely equitable, and not legal, a right, estate, title, or interest created by equity, and not by law.' All cases of this kind fall under the equitable jurisdiction alone, because of the nature of the primary or substantive right to be redressed, maintained, or enforced, and not because of the nature of the remedies to be granted; although in most of such instances the remedy is also equitable. It is a proposition of universal application that courts of law never take cognizance of cases in which the primary right, estate, or interest to be maintained, or the violation of which is sought to be redressed, is purely equitable, unless such power has been expressly conferred by stat- ute; and if the statutes have interfered and made the right or the violation of it cognizable by courts of law, such right thereby becomes to that extent legal.* One .example will sufficiently illustrate this proposition. At the common law (in its earliest stages), an assignment of a thing in action conveyed no right or interest whatever to the assignee which would be recognized to any extent 'See 1 Spence's Eq. Jur., pp. 430- session, and who simply needed th« 434. legal title to complete hia ownership, ^ For example, by a peculiar rule in would have the "complete equity" Georgia, a person who has a high intended by this rule. In my own equitable estate in land, called a opinion, the same result should follow "complete equity," may maintain the in all the states which have adopted legal action of ejectment on it to re- the reformed procedure abolishing cover possession of the land; Good- all distinction between legal and son V. Beacham, 24 Ga. 153; Jordan equitable actions; but the decisions V. Fairoloth, 27 Ga. 372, 376. A ven- are nearly all opposed to this view, dee in a contract for the sale of land See the question stated and discussed who had paid the agreed price, and in Pomeroy on Remedies and Bo- was entitled to a deed and to the pos- medial Rights, sees. 98-103. 153 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 138 or for any purpose by a court of law. In process of time, however, an interest in the assignee came to be acknowl- edged, and to be in some measure protected; but he was never regarded as obtaining a full l«gal right or title, so that he could maintain an action in his own name as assignee of the thing in action.* Equity, however, treated the assignee as succeeding to all the right and title of the assignor, as possessing a full interest in, or, so to speak, ownership of, the thing in action transferred, and there- fore permitted him to maintain the proper suit in his own name. It is an entirely mistaken view to say that equity only gave a remedy in this case, for there could be no remedy without an antecedent right. The' assignee acquired a substantive right, an absolute interest; but it was equitable, and could therefore only be enforced by a suit in equity; while a court of law would only permit an action to be prosecuted in the name of the assignor, in whom it said the title was still vested.* The .statutes of many states have abolished this common-law rule^ and enabled the assignee to sue in his own name in a court of law. The necessary effect of this legislation is to change the right acquired by the assignee of a thing in action, from being purely equitable, into a legal title, interest, or ownership.* § 138. The exclusive jurisdiction includes, secondly^ all civil cases in which the remedy to be granted — and,, ' 2 Black. Com. 442; 1 Spence's Eq. maintenance, prohibited the trane- JuE., p. 181; Lampet'g Case, 10 Uoke, fer of fee legal piioperty in a oAoae 47, 48; Winch v. Keeley, 1 Term Rep. in action, so as to give the assignee a 61^; Master v. Miller, 4 Term Rep. right of action in his o-wn name. But 340; Westoby v. Day, 2 El. & B. 605, this is now abrogated, and such a de- 624; Raymond v. Squire, 11 Johns, mand as that asserted against the fle- 47; Brigga v. Dorr, 19 Johns. 95; Con- Jendant in this suit [an ordinary debtj over V. Cutting, 50 N. H. 47. may be sold and conveyed, so as to vest ' 1 Spence's Eq. Jur. , p. 643 ; Row v. in the purchaser all ihe legal as well as Dawson, 1 Ves. Sen. 331 ; 2 Lead. Cas. the equitable rights of the original Eq. 153i, 1559, and notes thereto. creditor." See also Cummings v. Mor- ° See, as to these state statutes and ris, 25 N. Y. 625, 627, per Allen, J. their effect, Pomeroy on Remedies Some dicta of judges to the contrary, and Remedial Rights, u. 2, see. 2, to be found in a few cases, must be §§ 124-138; Petersen v. Ohemioal regarded as mietaken,; as, tor ex- Bank, 32 N. Y. 21, 35; 88 Am. Deo. ample, McDonald v. Kneeland, 6 298, per Denio, J.; "The law of Minn. 352, 395, per Atwater, J. § 138 EQUITY JURISPKUDKNCE. 154 of course, the remedial right — is purely equitable, or one which is recognized and administered by courts of equity, and not by courts of law. In the cases of this class, the primary right which is maintained, redressed, or enforced is sometimes equitable and is sometimes legal; but the jurisdiction depends, not upon the nature of these rights, estates, or interests, but wholly upon the nature of the remedies. Cases in which the remedy sought and ob- tained is one which equity courts alone are able to con- fer must, upon any consistent system of classification, belong to the exclusive jurisdiction of equity, even though the primary right, estate, or interest of the party is one which courts of law recognize, and for the violation of which they give some remedy. Thus a suit to compel the specific performance of a contract falls under the exclusive jurisdiction of equity, although a legal right also arises from the contract, and courts of law will give the remedy of damages for its violation. The remedies peculiar to equity are not confined to cases in which the primary right of the complaining party, whatever be its kind, is equitable; they are given in numerous classes of instances where such right, estate, or interest is wholly legal. Thus a legal estate in land may be protected by the exclusively equitable remedy of injunction against nuisances or continued trespasses; or the legal estate may be established against adverse claimants by a suit to quiet title, or by the remedy of cancellation to remove a cloud from title. Again, the particular fact or event which occasions the peculiar equitable remedy, and gives rise to the right to such remedy, may also be the occasion of a legal remedy and a legal remedial right simultaneous with the equitable one. This is especially true with reference to fraud, mistake, and accident. Fraud, for example, may at the same time be the occasion of the legal remedy of damages and of the equitable relief of cancellation. These two classes of cases cannot, however, be regarded or treated as belonging to the concurrent 155 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 139 jurisdiction; such a mode of classification could only be productive of confusion. The criterion which I have given is always simple and certain in referring to the ex- clusive jurisdiction all cases in which the remedy is given by courts of equity alone, without regard to the nature of the substantive right which forms the basis of the action, or to the fact or event which is the occasion of the re- quired relief. In this manner only is the notion of jwris- diction preserved distinct from all questions as to the propriety of exercising that jurisdiction and of granting relief by equity courts in particular cases. It is proper to remark here that the statutory legislation of many states has increased the number of cases in which purely equitable remedies are granted for the purpose of main- taining, enforcing, or defending primary rights, estates, and interests which are legal in their nature, and has thus enlarged this department of the original exclusive jurisdiction of equity. As examples merely, I mention the statutory suit to quiet title and determine the legal estate by the holder of the fee in possession or not in possession, against an adverse claimant or claimants rely- ing perhaps upon another legal title; the suit by heirs to set aside an alleged will of lands; the ordinary equitable suit in many states to enforce a mechanic's lien and other similar liens; and the suits given by statute in most states to dissolve corporations or to remove their oflScers, and the like. § 139. Concurrent Jurisdiction. — The concurrent ju- risdiction embraces all those civil cases in which the primary right, estate, or interest of the complaining party sought to be maintained, enforced, or redressed is one which is cognizable by the law, and in which the remedy conferred is of the same kind as that administered, under the like circumstances, by the courts of law, — being or- dinarily a recovery of money in some form.' The pri- mary right, the estate, title, or interest, which is the ' See 1 Spenoe's Eq. Jur., pp. 430-434. § 139 EQUITY JUKISPEUDBNCE. 166 foundation of the suit, must be legal, or else the ease would belong to the exclusive jurisdiction of equity; and the law must, through its judicial procedure, give some remedy of the same general nature as that given by equity, but this legal remedy is not, under the circumstances, full, adequate, and complete. The fact that the legal remedy is not full, adequate, and complete is, therefore, the real foun- dation of this concurrent branch of the equity jurisdiction.* This principle is well illustrated by the case of contribution among sureties. The surety entitled to reimbursement may maintain an action at law, and recover a pecuniary judgment against each of the persons liable to contribu- tion, but this legal relief is subject to so many limitations that it may often fail to restore the plaintiff to his right- ful position. The equity suit for a contribution gives ex- actly the same final remedy, — a recovery of money; but on account of the greater freedom and adaptability to cir- cumstances incident to the equitable procedure, it enables the plaintiff in one proceeding to obtain such complete reimbursement as relieves him effectually from all the burden which does not properly rest upon him, and pro- ' There la a distinction here of great and the foundation of the jurisdtclion importance, but which haa often been in equity ia the inadequacy of the re- overlooked. The want of a full, ade- lief as it ia administered throngh quate, and complete remedy at law, means of the legal procedure. The under the circumatancea of the par- exclusive jurisdiction of equity re8ts ticular caae, ia alao the reaaon why upon an entirely different foundation, the jurisdiction of equity ia actually and exiats absolutely without refer- exercised, and a decision ia made in ence to the adequacy of legal reliefs, favor of the plaintiff granting him equi- This distinction is a plain one, but is table relief, in some instances of the often lost sight of; the two classes of exclusive jurisdiction; as, for example, cases are often confounded, and the in Buita for the specific performance of equitaljle jurisdiction, in all instances contracts. But such fact is not in exoluaive and concurrent, ia made to these instances the foundation of the rest merely upon the inadequacy of juriediation; it is only the occasion on legal remedies. This error grows out which a decision ia rightfully made in of the tendency to confonnd questions pursuance of the doctrinea of equity aa to the equitable jwisdicdon; i. o., jurisprudence by courts already poa- the power of equity courts to hear sessing the jurisdiction. The juris- and decide, with the altogether differ- diction exists because courts of equity ent questions aa to the rightfulness of alone are competent to adminiater their deciaionj i. o., w'luther, accord- theae remedies. In all inatances of ing to the doctrines of equity, a case concurrent jurisdiction, both the courts unquestionably within their jnriBiiio- of law and those of equity are com- tion was properly decided. [See Hen- potent to adminiater the same remedy, derson v. Johns, 13 Col. 280.] 157 FUNDAMENTAL PEINCIFLISS AND DIVISIONS. § 140 duces a just equality of recompense as well as of loss among all the parties.' The incidents and features of legal reme- dies which render them inadequate are various in their kind and extent, and will be described in a subsequent section. One of the most common and important of th-ese features which is frequently the ground for the equitable jurisdiction is the necessity of obtaining whatever reme- dies the law furnishes, by means of several separate ac- tions, either simultaneous against different persons, or successive against the same person; while in equity the plaintiff may obtain full relief by one suit brought against all the parties liable or interested. This power, which the equity courts possess, of deciding the whole matter in one judicial proceeding, and of thus avoiding a repetition or circuity of legal actions, is a fruitful source of the con- current equitable jurisdiction.* § 140. The cases included within the concurrent juris- diction may, for purposes of .convenience and clearness in their discussion, be arranged under two general classes. The first contains all those cases, belonging to the concur- rent jurisdiction, in which the primary right violated, the estate, title, or interest to be protected, is, of course, legal, and the subject-matter of the suit, and the act, event, or fact which occasions the right to a remedy, may be brought within the cognizance of the law courts, and made the foundation of a legal action, but in respect of which the whole system of legal remedies is so partial and insuflicient that complete justice can only be done by means of the equity jurisdiction. The most important acts, events, and facts which thus require or permit the interposition of equity in the cases forming this branch of the concurrent jurisdiction are fraud, mistake, and 'Dering v. Earl -yi Winohelsea, 1 Johns. Ch. 281; West v. Mayor etc., Cox, 218; 1 Lead. Cas. Eq. 120, and 10 Paige, 539; Oelriohs v. Spain, 15 notes. Wall. 211, 228; Woods v. Monroe, 17 'New York ete. R. R. v. Schuyler, Mich. 238; Eail of Oxford's Case, 2 17 N. Y. 592; McHenry v. Hazard, 45 Lead. Cas. Eq. 1337, note. [See Mo- N. Y. 580; Third Ave. R. R. v. Mayor MuUin'a Adm'r v. Sandars, 79 Va. etc., 54 N. Y. 159; Eldridge v. Hill, 2 356.] § 141 EQUITY JUKISPBUDENCE. 158 accident.' The second class contains all the remaining cases in whicli the primary right to be redressed or pro- tected is legal, and the relief is of the same kind as that given by the law, but in which, from the special circum- stances of the case itself, or from the inherent defects of the legal procedure, the remedy at law is inadequate, and equity takes jurisdiction, in order to do complete justice. Among the familiar examples of this class are suits for an accounting, for contribution, for exoneration, in all of which the remedy, both at law and in equity, is a recov- ery of money; suits for partition of land, admeasurement of dower, and settlement of boundaries, in all of whicli the final relief, both at law and in equity, is the obtain- ing possession of specific tracts of land; and suits which result in an award of damages. § 141. It should be remarked, however, that the fore- going divisions of the jurisdiction cannot always be strictly observed in the actual practice, since one suit may often include different kinds of the same jurisdic- tion, and may even embrace both the exclusive and the concurrent jurisdictions. For example, both the equi- table estate of the cestui que trust and the legal estate of the trustee may be protected by means of one action based upon the exclusive jurisdiction, and many reme- dies belonging to the exclusive jurisdiction are combined in the same suit with a pecuniary recovery. The ex- planation is to be found in the general principle of the equity procedure, which requires all the parties interested in the subject of an action to be brought before the court, and the whole controversy to be settled by one adjudica- tion. ' All cases of equitable cognizance mistake, in which the remedy is_ a arising from fraud, accident, or mis- reformation, and the like, fall witliin take do not belong to the concurrent the exclusive jurisdiction. The con- jurisdiction merely because the law current jurisdiction, however, em- has jurisdiction of cases arising from braces a large variety of cases in which the same facts. Suits occasioned by the cause of action springs from, or is fraud, in which the remedy granted is occasioned by, fraud or mistake. [See cancellation, and those occasioned by Stockton v. Anderson, 40 N.J. Eq.48S.l 159 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 143 § 142. Auxiliary Jurisdiction. — The auxiliary juris- diction, in its original and true scope and meaning, is in fact a special case of the " exclusive," since its methods and objects are confined to the equity procedure. In all suits which belong to this jurisdiction in its original and proper sense, no remedy is either asked or granted; their sole object is the obtaining or preserving of evidence to be used upon the trial of some action at law. The cases embraced within this proper auxiliary jurisdiction are suits for discovery, to obtain an answer under oath from a party to a pending or anticipated action at law, which answer may be used as evidence on the trial of such action; suits for the perpetuation of evidence; and suits for the obtaining of evidence in a foreign country. The latter two species of suits are practically obsolete in this country, having been superseded by more summary and efficient proceedings authorized by statutes. § 143. Although the auxiliary jurisdiction for a discov- ery was originally exercised for the sole purpose above mentioned, to obtain evidence from a party litigant to be offered on the trial of a legal action, so that as soon as its purpose was accomplished by the filing of a proper an- swer the suit itself was ended, and no decree was possible, yet in some of the American states such a discovery in relation to matters in controversy purely legal has been made the ground of enlarging the concv/rrent jurisdiction of equity, by extending it to the very issues themselves in respect of which the discovery is obtained. In other words, where the court of equity has exercised its auxil- iary jurisdiction to obtain discovery concerning any mat- ter in controversy, even though purely legal, it thereby acquires complete jurisdiction over the controversy itself, and may go on and decide the issues and grant the proper relief, although the case is one cognizable at law, and the legal remedy is fully adequate. Mere discovery is thus made the foundation of a concurrent jurisdiction over cases which are purely legal, both in the primary rights in. §§ 144, 145 EQUITY JTTRISPRUDBNCE. 160 volved and in the remed}^ without any regard to the ade- quacy or inadequacy of this legal remedy. This doctrine prevails, or has prevailed, in certain of the states, but it is clearly opposed to the true theory of the equitable juris- diction.' It should be remarked that in many of the states the whole auxiliary jurisdiction for discovery has become useless and obsolete, through great changes made in the general law of evidence, or has been expressly abol- ished by statute.* § 144. The suit for a "discovery" belonging to the auxiliary jurisdiction, as described in the foregoing para- graphs, should be carefully distinguished from the so- called "discovery" which may be, and ordinarily is, an incident of every equitable action. It is a part of the or- dinary equity procedure, that whatever be the relief sought, and whether the jurisdiction be exclusive or concurrent, the plaintiff may, by means of allegations and interroga- tories contained in his pleading, compel the defendant to disclose by his answer facts within his own personal knowledge which may operate as evidence to sustain the plaintiff's contention. The name "discovery" is also given to this process of probing the defendant's con- science, and of obtaining admissions from him, which accompanies almost every suit in equity; but it should not be confounded with " discovery " in its original and strict signification, nor with that mentioned in the last preceding paragraph, which is sometimes made the ground for extending the concurrent jurisdiction of equity 9ver cases otherwise belonging to the domain of the common-law courts. § 145. The foregoing summary may be appropriately concluded by a statement of the order to be pursued in the further discussion of the equitable jurisdiction thus briefly outlined. The whole subject will be distributed info three chapters, which will respectively treat of,— Chapter I., doctrines concerning the jurisdiction gener- ' See post, c. ii., §§ 250 et seq. ' See posC, see. ir. 161 THE EXCLUSIVE JURISDICTION. § 146 ally, its extent when unaffected by statutory limitations; Chapter II., general rules for the government of this jurisdiction; Chapter III., particular jurisdiction of the courts in the various states, and of the United States courts. The three remaining sections of the present chapter are devoted in order to a more detailed descrip- tion of the exclusive, the concurrent, and the auxiliary jurisdictions. SECTION II. THE EXCLUSIVE JURISDICTION. § 116. Equitable primary rights and "equities'* defined. §§ 147-149. Equitable estates described. § 150. Certain distinctive equitable doctrines forming part of equity jurisprudence. §§ 151-155. Trusts described. § 156, Executors and administrators. §§ 157, 158. Fiduciary relations. §§ 159, 160. Married women's separate property. § 161. Estates arising from equitable conversion. §§ 162, 163. Mortgages of land. § 164. Mortgages of personal property. §§ 165-167. Equitable liens. §§ 168, 169. Estates arising from assignment of things in action, possibili- ties, etc., and from an equitable assignment of a fund. §§ 170-172. Exclusive equitable remedies described. § 146. Equitable Estates, Interests, and Rights in Property. — It was stated in the preceding section that the exclusive jurisdiction included, first, all civil cases based upon or relating to equitable estates, interests, and rights in property as the subject-matter of the action, whatever may be the nature of the remedy; and secondly, all civil cases in which the remedy granted is purely equitable, that is, administered by courts of equity alone, whatever may be the nature of the primary right, estate, or interest involved in the action. I purpose now to de- scribe these two classes in a general manner. Equitable primary rights, interests, and estates may exist in things 1 Eq. Juk.— U § 147 EQUITY JURISPEUDENCB. 162 real and in things personal, in lands and in chattels. They are also of various amounts and degrees, from the substantial beneficial ownership of the subject-matter down to mere liens. In all cases, however, they are rights in, to, or over the subject-matter, recognized and protected by equity, and are to be distinguished from the so-called " equities," a term which, when properly used, denotes simply the right to some remedy administered by courts of equity.' A cestui que trust, a mortgagee, a ven- dee in a contract for the sale of land, is clothed with an equitable estate or interest; while the mere right to have an instrument reformed or canceled, or to have a security marshaled, and the like, is properly " an equity." § 147. Equitable Estate Defined. — An equitable estate, in its very conception, and as a fact, jequires the simul- taneous existence of two estates or ownerships in the same subject-matter, whether that be real or personal, — the one legal, vested in one person, and recognized only by courts of law; the second equitable, vested in another person, and recognized only by courts of equity. These two interests must be separate, and as a rule, must be held by different persons; for if the legal estate and the equitable estate both become vested in the same person by the same right, then, as a general rule, a merger takes place, and the legal estate alone remains.^ There are in- deed exceptions to this general doctrine; for under certain circumstances, as will appear hereafter, equity prevents such a merger, and keeps alive and distinct the two in- terests, although they have met in the same owner.^ In all cases of equitable estates, as distinguis'hed from lesser interests, whether in fee, for life, or for years, they are in equity what legal estates are in law; the ownership of the ' The term " an equity " is thus tels, liens, and rights to obtain reme- synonymous with what I have de- dies. Such indiscriminate use of the nominated an equitable remedial right, term only tends to produce confusion It is, however, constantly used in a of thought, broader and improper sense, as de- ^ Selby v. Alston, 3 Ves. 339. scribing every kind of right which 'These apparent exceptions really equity jurisprudence recognizes, — es- confirm the general rule. fates and interests in laud, or chat- 163 THB EXCLUSIVE JURISDICTION. § 148 equitable estate is regarded by equity as the real owner- ship, and the legal estate is, as has been said, no more than the shadow always following the equitable estate, which is the substance, except where there is a purchaser for value and without notice who has acquired the legal estate.' This principle of a double right, one legal and the other equitable, is not confined to equitable estates, properly so called; it is the essential characteristic of every kind of equitable interest inferior to estates. In the total ownership resulting from mortgages, or from the operation of the doctrine of conversion, or from the as- signment of things in action, and other interests not assignable at law, and in liens, there is always a legal title or estate vested in one person, recognized by courts of law alone, and an equitable interest, ownership, or claim, distinct from a mere right of action or remedial right, vested in another person, which is recognized, and, ac- cording to its nature, protected or enforced by courts of equity. § 148. Equitable estates and interests of all kinds are separated by a broad line of distinction, with respect to their nature and the mode in which equity deals with them, into two classes. The first class contains those in which the equitable estate is regarded as a permanent, subsisting ownership; the separation between the legal and equitable titles is not treated as an anomaly, much less a wrong, but as a fixed and necessary condition to be preserved as long as the equitable interest continues; and the various rules and doctrines of equity are concerned with the respective rights and liabilities of the two owners, while the remedies given to the equitable owner are in- tended to preserve his estate, and to protect it both against 'Attorney-Gen. v. Downing, Wilm. table rights of action or "equities," 23; Burgess v. Wheate, 1 Eden, 223j see Trash v. Wood, 4 Mylne & C. 324, Mansell v. Mansell, 2 P. Wms. 681; 328; Roberts v. Dixwell, 1 Atk. 609. Williams v. Owens, 2 Ves. 603; For example of equitable estate in Brydges v. Brydges, 3 Ves. 120. As fee under the doctrine of conversion to the descent of equitable estates as descending to heir, see Martin v. contradistinguished from mere equi- Trimmer, L. R. 11 Ch. Dir. 341. § 148 EQUITY JUEISPRUDENCB. 164 the legal owner and against third persons. The class embraces most species of express trusts, the interests created by mortgages as originally established by the court of chancery, the interests resulting from an assign- ment of things in action. These various species of equi- table estates and interests might well be descri'bed by applying to them the term " permanent." In the second class the separation of the two in-terests is regarded as always temporary, and in many instances as actually wrongful. There is a certain antagonism between the equitable and the legal ownership or right, and the very existence of the legal estate is often in complete violation of the rights of the equitable owner. The doctrines and rules of equity concerning this class do not contemplate a permanent separation between the two interests; the rights of the equitable owner are hostile to those of the legal proprietor; while the remedies given to the equitable owner always have for their object the perfecting of Ms rights against the legal estate, and very generally consist in compelling a complete transfer of the legal estate, so that the equitable owner shall obtain the legal title in addition to the equitable interest which he already pos- sesses. The class embraces resulting, implied, and con- structive trusts, the interests arising from the operation of the doctrine of conversion, and liens, including the equitable interest of mortgagees according to the doctrine which prevails in many of the states. Equitable estates of the first class are very numerous in England, by reason of the customs of landed proprietors and the frequency of marriage settlements, provisions for families in wills, the separate property of married women, charitable founda- tions, and other species of express trusts; and a very large part of equity as administered in England is con- cerned with these permanent equitable estates. Although not unknown, they are, from our widely different social customs and practices of land-owners, comparatively very infrequent in this country. 165 THE BXCLtJSIVE JUBISDICTION. §§ 149, 150 g 149. From the universality of this double owner- ship, or separation of the legal and equitable titles be- tween two proprietors or holders, which is an essential feature of trusts, all species of equitable estates and inter- ests might possibly be regarded as particular kinds of trusts, or as special applications of the general principles concerning trusts. Thus the holder of the legal title in assignments of things in action, in cases of conversion, in mortgages and in liens, no less than in trusts proper, is frequently spoken of as the trustee, and the holder of the equitable interest as the cestui que trust. It would be pos- sible, therefore, to treat the entire jurisdiction of equity over equitable estates and interests, and these estates and interests themselves, as based upon and included within the single subject of trusts.' But this method, while rest- ing upon some analogies and external resemblances, would overlook essential differences between the various estates and interests created by equity, and would therefore be misleading. Still, as this form of a double ownership or right originated in the notion of trusts, and as all the species of equitable interests are connected by analogy, more or less closely, with trusts,, it becomes necessary to explain the essential nature of trusts, and to describe the introduction and development of their conception with some detail. § 150. I would remark, in this connection, so as to prevent misunderstanding, that there are many impor- tant and even fundamental principles and doctrines which are applied in all parts of the equity jurisprudence, but which- do not belong to a statement of its jurisdiction. These doctrines do not determine the existence of equi- table estates and interests, nor fix the form and nature of equitable remedies; but they aid in defining and regu- lating the rights, duties, and liabilities incident to such estates and interests, and furnish rules concerning their ' This method has been pursued partially, if not wholly, by some text- writers; See Willard's Eq. Jur, § 150 EQUITY JURISPKUDENCK. 166 enjoyment, transfer, devolution, and the like; and they also serve to determine the occasions on which rights of action arise, the extent to which parties are entitled to remedies, and the kind of remedy appropriate to secure or restore the primary right invaded. Among these im- portant principles and doctrines of equity I mention, as illustrations, the rules established for the construction of wills and deeds; the principles which are especially con- cerned with the administration of estates, and the settle- ment of the claims of creditors, encumbrancers, devisees, legatees, and others, upon funds belonging to the same debtor, including the doctrines of equitable and legal assets, of contribution and exoneration, of marshaling assets and securities, of election, of satisfaction and per- formance, of priorities, and of notice; and other principles of equal importance, the equitable position of bona fide purchasers, the theory of valuable and meritorious con- sideration, the appropriation of payments and the appor- tionment of liabilities, the relations between sureties and their creditors and the principal debtors, the control of transactions between persons in fiduciary relations, the equitable theory as to forfeitures and penalties, and the general doctrines concerning fraud, mistake, accident, public policy, and the like. These and other fundamental principles and doctrines are invoked and applied through- out every branch of equity jurisprudence; they aid, to a greater or less extent, in controlling every species of equitable primary right, estate, or interest, and in regu- lating every kind of remedial right and remedy recog- nized by courts of equity. While they form no part of the jurisdiction, properly so called, they constitute a most important feature of the equity jurisprudence, and will be discussed under their appropriate connections in sub- sequent chapters. The purely equitable estates and in- terests which come within the exclusive jurisdiction and constitute the first branch thereof are the following, sepa- rated, for purposes of convenience as to treatment, into 167 THK EXCLUSIVE JURISDICTION. § 151 general groups: Trusts; married women's separate prop- erty; equitable interests arising from the operation of the doctrine of conversion; equitable estates or interests aris- ing from mortgages of real or of personal property, and from pledges of chattels or securities; equitable liens on real and on personal property; equitable interests of as- signees arising from assignments of things in action, possibilities, and the like, not assignable at law, or aris- ing from transactions which do not at law operate as as- signments/ I shall describe with only so much detail as is necessary each one of these groups in order. § 151. Trusts. — The whole theory of trusts, which forms so large a part of the equity jurisprudence, and which is, in a comprehensive view, the foundation of all equitable estates and interests, has undoubtedly been developed from its germ existing in the Roman law, a peculiar mode of disposing of property by testament called the "fidei-commissum." In a fidei-commissum the testator gave his estate directly to his heir, but accom- panied the bequest with a direction or request that the heir should, on succeeding to the inheritance, at once transfer it to a specified beneficiary. At first the claims of the beneficiary were purely moral, resting wholly upon the good faith of the heir; but in process of time they became vested rights, recognized by the law and enforced by the magistrates.'' Borrowed from this Roman concep- tion, "uses," by which land was conveyed to or held by A to the use or for the benefit of B, seem to have been invented during the latter part of the reign of Ed- ward III.' They grew rapidly into favor, and it is said that during the reign of Henry V. the greater part of the ' See 1 Spence'a Eq. Jur. 429-434, although hia right is wholly gone at 435-593, 594^598, 599-604, 642. To law; and the similar right of the per- these might be added, as an example sonal representatives of a deceased of equitable primary rights not being joint creditor. estates or interests in nor liens on spe- '' See Institutes of Justinian, b. ii. , tit, eific property, the right in equity of a 23, sec. 1; Sandars's ed., pp. 237, 238; creditor against the personal repre- Institutes of Gains, ii. , sees. 246-259. sentativea of a deceased joint debtor, * 1 Spence'a Eq. Jur. 439-442. I 152 EQUITY JURISPRUDENCE. 168 land in England was held in this manner. The " trusts," however, of modern equity jurisprudence are all directly based upon the celebrated " Statute of Uses," passed in the twenty-seventh year of the reign of Henry VIII. (A. D. 1535), although the principal doctrines which de- fine their kinds and classes and regulate their operation may be traced to the uses existing prior to the statute. Henry VIII., in compelling Parliament to enact the stat- ute of uses, undoubtedly intended to destroy the entire system of conveyances to uses, by which the legal and equitable estates in land were separated, and vested in different owners, and which, for many reasons, he re- garded as a fraud upon his legal rights and prerogatives; but in fact no such result followed. From the peculiar language of the enacting clause, and by the judicial inter- pretation placed thereon, all the various kinds of double ownership which had before existed under the name of "uses" were preserved under the name of "trusts." The whole system fell within the exclusive jurisdiction of chancery; the doctrine of trusts became and continues to be the most efficient instrument in the hands of a chancellor for maintaining justice, good faith, and good conscience; and it has been extended so as to embrace not only lands, but chattels, funds of every kind, things in action, and moneys. I shall merely state, without de- scribing in this part of my work, the various kinds and classes of trusts which are thus subject to the exclusive equitable jurisdiction. § 152. All possible trusts, whether of real or personal property, are separated by an important line of division into two great classes: those created by the intentional act of some party having the dominion over the property, done with a view to the creation of a trust, which are ex- press trusts; those created by operation of law, where the acts of the parties may have had no intentional reference • to the existence of any trust, which are implied trusts. Express trusts are again separated into two general 169 THE EXCLUSIVE JURISDICTION. § 153 classes: private and public. Private trusts are those created by some written instrument, deed, or will, or in some trusts of personal property by a mere verbal declara- tion without any writing, for the benefit of certain and designated individuals, in which the cestui que trust, or " beneficiary," is a known and certain person or class of persons. Public, or as they are frequently termed, charitable, trusts are those created for the benefit of an unascertained, or uncertain, and sometimes fluctuating body of individuals, in which the cestuis que trustent may be a class or portion of a public community, as, for ex- ample, the poor of a particular town or parish. § 153. Express private trusts are either " passive " or " active." An express private passive trust exists where land is conveyed to or held by A in trust for B, without any power expressly or impliedly given to A to take the actual possession of the land, or to exercise acts of owner- ship over it, except by the direction of B. The naked legal title only is vested in A, while the equitable estate of the cestui que trust is to all intents the beneficial owner- ship, virtually equivalent in equity to the corresponding legal estate.' Express private active, or as they are some- times called, special, trusts are those in which, either from the express directions of the written instrument de- claring the trust, or from the express verbal directions, when the trust is not declared in writing, or from the very nature of the trust itself, the trustees are charged with the performance of active and substantial duties in respect to the management of and dealing with the trust property, for the benefit of the cestuis que trustent. They may, except where restricted by statute, be created for every purpose not unlawful, and as a general rule, may extend to every kind of property, real and personal. In this class, the interest of the trustee is not a mere naked legal title, and that of the cestui que trust is not the real " 1 Spence's Eq. Jur. 495-497; 1 Sohoales & L. 262, per Lord Eedes- Cookv. Fountain, 3 Swanst. 591, 592, dale; Lloyd v. Spillett, 2 Atk. 150; per Lord Nottingham; Adair v. Shaw, Raikes v. Ward, 1 Hare, 447, 454. § 154 EQUITY JUEISPKUDEKCB. 170 ownership of the subject-matter. The trustee is generally entitled to the possession and management of the prop- erty, and to the receipt of its rents and profits, and often has, from the very nature of the trust, an authority to sell or otherwise dispose of it. The interest of the bene- ficiary is more limited than in passive trusts, and in many instances cannot with accuracy be called even an equitable estate. He always has the right, however, to compel a performance of the trust according to its terms and intent.' The foregoing classes of express private trusts are all embraced within the general exclusive jurisdiction of equity as it is established by the English court of chancery; and they belong to the same jurisdic- tion as it is administered in the states of this country, except so far as they have been abrogated or modified by statute. In some of the states the legislatuTe has not interfered, so that all these species of private trusts have a theoretical, even if not an actual, existence. In several of the states, however, great changes have been made by statute. By the common type of this legislation, wher- ever it has been adopted, all express private passive trusts in land have been abolished, and the express private ac- tive trusts, have been restricted to a few specified forms and objects.^ § 154. Express Public Trusts or Charities. — In private trusts there is not only a certain trustee who holds the legal estate, but there is a certain specified cestui que trust. It is an essential feature of public or charitable trusts, that the beneficiaries are uncertain, a class of persons described in some general language, often fluctuating, changing in their individuals, and partaking of a quasi public character. The most patent examples are "the poor " of a specified district, in a trust of a benevolent character, or "the children" of a specified town, in a trust for educational purposes. It is a settled doctrine in ' 1 Spence's Eq. Jur. 496, 497; Lord tion, see I R. S. of N. Y., p. 727, Glenorchy v. Bosville, Gas. t. Talb. 3. sees. 45-65; Civil Code of Cal., sees. ' As examples of this type of legisla- 847, 852, 857-871. 171 THE BXCLUSIVa JUKISDICTIOH. § 154 England and in many of the American states, that per- sonal property, and real property except when prohibited by statutes of mortmain, may be bequeathed or conveyed in trust for charitable uses and purposes, for the benefit of such uncertain classes; and if the purposes are chari- table within the meaning given to that term, the trust falls within the jurisdiction of equity, and will be en- forced.^ The trusts over which this peculiar jurisdiction extends, and which mark its special nature, should not be confounded with gifts to corporations which are au- thorized by their charters to receive and hold property, and apply it to objects which fall, perhaps, within the general designation of " charitable." Such gifts are regulated either by the rules of law applicable to cor- porations, or by the provisions of their individual char- ters.^ There is a wide divergence among the states of this country in their acceptance of the doctrine concern- ing charitable trusts. In some of them, either from a statutory abolition of trusts, or from the general provis- ions of statutes concerning perpetuities, or from the gen- eral public policy of the state legislation, it is held that charitable trusts do not exist at all, except in the instances expressly authorized by statute, which are all gifts to cor- porations.' In a much larger number of the states, the ^ Morice v. Bishop of Durham, 9 Ves. Fowler, 33 Beav. 616; Hoare v. Oa- 399, 405; 10 Ves. 522, 541; Mitford v. borne, L. R. 1 Eq. 585; or those to Reynolds, 1 Vhila. 185; Nash v. Mor- found a private museum: Thompson ley, 5 Beav. 177; Kendall v. Granger, v. Shakespeare, 1 De Gex, F. & J. 5 Beav. 300; Townsend v, Carus, 3 399; or those for the benefit of a pri- Hare, 257; Nightingale v. Goulburn, vate company: Attorney-General v. 5 Hare, 484; Attorney-General v. As- Haberdashers' Co., 1 Mylne & K. 420; pinal, 2 Mylne & C. 613, 622, 623; or for a mere private charity: Omman- British Museum v. White, 2 Sim. & ney v. Butcher, Turn. & R. 260. St. 594, 596; Coggeshall v. Pelton, 7 » See Levy v. Levy, 33 N. Y. 97, Johns. Ch. 292; 11 Am. Deo. 471; 112-118, per Wright, J.; Bascom v. Saltonstall v. Sanders, 11 Allen, 446; Albertson, 34 N. Y. 584, 587-62], per American Academy v. Harvard Col- Porter, J. lege, 12 Gray, 582; Jackson v. Phillips, 'New York is a leading example of 14 Allen, 539, per Gray, J. Trusts for this class: See Bascom v. Albertson, private objects do not fall within the 34 N. Y. 584; Levy v. Levy, 33 N. Y. jurisdiction over charitable trusts, and 97 ; Beekman v. Bonsor, 23 N. Y. 298; are void if they create perpetuities; as, 80 Am. Dec. 269; Holmes v. Mead, 52 for example, those for the erection or N. Y. 3S2, 339; Burrill v. Boardman, repair of private tombs or monuments: 43 N. Y. 254, 263; 3 Am. Rep. 694; In reRickard, 31 Beav. 244; Fowler v. Adams v. Ferry, 43 N. Y. 487. § 155 EQUITY JURISPKUDENGB. 172 jurisdiction over charitable trusts, either on the ground that the statute of Elizabeth is in force, or as a part of the ordinary powers of equity, has been accepted in a modified form and to a limited extent, and such trusts are upheld only when the property is given to a trustee sufficiently certain, and for purposes and beneficiaries sufficiently definite. In a very few of the states the juris- diction seems to be accepted to its full extent, and to be exercised in substantially the same manner as it is by the English court of chancery.' § 155. Trusts Arising by Operation of Law. — The sec- ond great division of trusts, and the one which in this country especially affords the widest field for the jurisdic- tion of equity in granting its special remedies so superior to mere recoveries of damages, embraces those which arise by operatfon of law from the deeds, wills, contracts, acts, or conduct of parties, without any express intention, and often without any intention, but always without any words of declaration or creation. They are of two spe- cies, "resulting" and "constructive," which latter are sometimes called trusts ex maleficio; and both these spe- cies are properly described by the generic term "implied trusts." ^ Resulting trusts arise where the legal estate is disposed of or acquired, not fraudulently or in the viola- ' See Part Third, Chapter of Chari- which "arise by operation of law": table Trusts, post. they are in every respect expivM 2 There is another kind which are trusts, either active or passive; they sometimes, but very improperly, called only differ in form from ordinary ex- " implied" trusts; namely, where a press trusts from a certain vagueness party, by a written instrument, deed, or incompleteness of the language used or will, has intended to create a trust to create or declare them, so that a for some specific object, and has used court is forced to interpret this Ian- language showing that intent; but the guage. When interpreted, it becomes language he has employed does not in in every sense an express declaration express terms declare and create the of the trust. To include these in- trust, so that the court, in deciding stances among implied trusts is to upon the effect of the instrument, is violate every principle of true classi- obliged to construe or interpret the fioation, and to introduce an unneces- words, in order that they may amount sary confusion into the subject. All to a declaration of the trust. The true implied trusts differ from express most familiar illustration is that of trusts, not only in the manner of their «. trust arising from mere precatory creation, but also in their essential fea- words in a deed or will. These trusts tures and qualities, have no resemblance whatever to those 173 THB EXCLUSIVE JURISDICTION. § 155 tion of any fiduciary duty, but the intent in theory of equity appears or is inferred or assumed from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go with the legal titl«. In such a case a trust "results" in favor of the person for whom the equitable interest is thus assumed to have been intended, and whom equity deems to be the real owner.' Constructive trusts are raised by equity for the purpose of working out right and justice, where there was no intention of the party to create such a relation, and often directly contrary to the inten- tion of the one holding the legal title. All instances pf constructive trust may be referred to what equity denom- inates fraud, either actual or constructive, including acts or omissions in violation of fiduciary obligations. If one party obtains the legal title to property, not only by fraud or by violation of confidence or of fiduciary relations, but in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to an- other, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner.* Courts of equity, by thus ex- tending the fundamental principle of trusts — that is, the principle of a division between the legal estate in one and the equitable estate in another — to cases of actual or con- structive fraud and breaches of good faith, are enabled to ' The following oases furnish illnstra- Spenoe's Eq. Jur. 511, 512; McLane tions: Ackroyd v. Smithson, 1 Browii v. Johnson, 43 Vt. 48; Collins v. Col- Ch. 503; 1 Lead. Gas. Eq. 1177; Rob- lins, 6Lans. 368; Thompson v. Thomp- insoa v. Taylor, 2 Brown Oh. 589; son, 16 Wis. 94; Pillow v. Brown, 26 Berry v. Usher, 11 Ves. 87; Watson Ark. 240; Ryan v. Dox, 34 N. Y. 307; V. Hayes, 5 Mylne & C. 125; Jessop v. 90 Am. Dec. 696; Dodd v. Wakeman, Watson, 1 Mylne & K. 665; Eyre v. 26 N. J. Eq. 484; Green v. Ball, 4 Bush, Marsden, 2 Keen, 564; Burley v. Eve- 586; Hunt v. Roberts, 40 Me. 187,; lyn, 16 Sim. 290; Wood v. Cone, 7 Hodges v. Howard, 5 R. I. 149; Laing Paige, 472, 476; Wood v. Keyes, 8 v. McKee, 13 Mich. 124; 87 Am. Dec. Paige, 565, 369; Millard v. Hathaway, 738; Nelson v. Worrall, 20 Iowa, 469; 27 Cal. 119; Malony v. Sloans, 44 Vt. Coyle v. Davis, 20 Wis. 593; Hidden 311; [Springer V. Young, 14 Or. 280.1 v. Jordan, 21 Cal. 92; Sandfoss v. » 1 Perry on Trusts, sec. 166; 1 Jones, 35 Cal. 481. § 156 EQUITY JUEISPRUDENCB. 174 wield a remedial power of tremendous efficacy in protect- ing the rights of property. § 156. Executors and Administrators — Estates of De- ceased Owners. — The theory of trusts express and implied having been established, it was easily extended to certain other analogous subjects which were thus brought within the equitable jurisdiction. One of the most important of these was the administration of the estates of deceased persons. The relation subsisting between executors and administrators on the one hand, and legatees, distributees, and creditors on the other, has so many of the features and incidents of an express active trust, that it has been completely embraced within the equitable jurisdiction in England, and also in the United States, where statutes have not interfered to take away or to abridge the juris- diction. At the common law no action lay to recover a legacy, unless it was a specific legacy of goods, and the executor had assented to it so that the property therein vested in the legatee.' Although individual creditors might recover judgments at law for the amount of their respective claims, the legal procedure furnished absolutely no means by which the rights and claims of all distribu- tees, legatees, and creditors could be ascertained and rata- bly adjusted, the assets proportionably distributed among those having demands of an equal degree as to priority, and the estate finally settled. The power of the ancient "spiritual courts" over the subject-matter was also very limited and imperfect; in many instances it could furnish no relief, and was at best but "a lame jurisdiction."^ Where the claim against an estate was purely equitable, as where a testator had charged land with his debts or legacies, thus creating an equitable lien, or had devised property in trust for the payment of debts or legacies, and the like, the court of chancery had, of course, an original ' Deeka v. Strutt, 5 Term Rep. 690; Chan. 95; Matthews v. Newby, 1 Vern. Doe V. Guy, 3 East, 120. 134; 2 Freetn. 189; Petit v. Smith, 5 »See Pamplin v. Green, 3 Cas. Mod. 247. 175 THE EXCLUSIVE JURISDICTION. § 157 and exclusive jurisdiction. In all other cases it obtained a jurisdiction because its relief was more complete, and it alone could provide for the rights and claims of all parties. This jurisdiction at length became firmly established and practically exclusive on this ground of trusts; that the relation between the executor or, administrator and the parties interested in the estate is virtually one of express trust, which equity has always the power to enforce.* Throughout the great majority of the United States, how- ever, this jurisdiction of equity, even where not expressly abrogated, has become virtually obsolete. Partly from prohibitory and partly from permissive statutes, the juris- diction over the administration of decedents' estates in all ordinary cases has been wholly withdrawn from the equity tribunals and exclusively exercised by the probate courts in all the states, with very few exceptions.* Although the general jurisdiction of equity over the subject of admin- istrations is thus practically, and even in some instances expressly, abolished in so many states, still the jurisdiction remains in all matters of trust created by or arising from the provisions of wills; and thus a large field is left for the exercise of the equitable jurisdiction in the construc- tion of wills, and in the determination and enforcement of equitable rights, interests, and estates created and con- ferred thereby.* § 157. Fiduciary Relations. — The equitable doctrine of trusts has also been extended so as to embrace, either wholly or partially, many other relations besides those of trusts created by private owners of property. Guar- dians of infants, committees or guardians of the insane, 'See Adair v. Shaw, 1 Schoales & 149; Haag v. Sparks, 27 Ark. .594; L. 262, per Lord Redesdale; Anony- Jones v. Jones, 28 Ark. 19; Duncan v. mons, lAtk. 491, per Lord Hardwicke. Duncan, 4 Abb. K. C. 275; Marlett 'See post, chap, iii., sec. ii., §§ 346- v. Marlett, 14 Hun, 313; Chipmau v. 352, where this matter is more fully Montgomery, 63 N. Y. 221; Bailey v. described. Briggs, 56 N. Y. 407; Brundage v. 'Whitman v. Fisher, 74 111. 147; Brundage, 65 Barb. 397; Collins v. CampbeU's Appeal, 80 Pa. St. 298; Collins, 19 Ohio St. 468; Perkins v. Harris v. Yersereau, 52 Ga. 153; Caldwell, 77 N. C. 433; Heustis v. Dorsheimer v. Rorback, 23 N. J. Eq. Johnson, 84 111. 61; Matter of Brod- 46; Youmans v. Youmans, 26 N. J. Eq. erick's Will, 21 Wall. 504. § 158 EQUITY JURISPBUDENCB. 176 receivers, directors, and other managers of stock corpora- tions, and the like, are in a general sense trustees, or rather quasi trustees, in respect of the particular persons towards whom they stand in a fiduciary relation, — the wards, stockholders, etc/ But the analogy should not be pushed too far. The trust which exists in these and similar cases is not of so high and complete a character that equity has an exclusive jurisdiction over the rights and interests of the beneficiaries, to maintain and enforce them against the trustees. The law, by means of its actions ez mqiw et bono, supplies the beneficiaries with sufficient remedies for many violations of such fiduciary relations. The relations in which such persons stand towards their beneficiaries partake so much of the trust character, however, that equity possesses a jurisdiction in many instances where its remedies are more effective, or its modes of procedure enable the court to do more com- plete justice by its decrees. § 158. While the jurisdiction of equity in these last- mentioned cases of fiduciary relations is concurrent and depends upon the superiority of its remedies, the exclu- sive jurisdiction in the cases before described of private express trusts proper, whether passive or active, is wholly independent of the nature of the remedies given. The actual remedies which a court of equity gives depend upon the nature and object of the trust; sometimes they are specific in their character, and of a kind which the law courts cannot administer, but often they are of the same general kind as those obtained in legal actions, being mere recoveries of money. A court of equity will ' Keeoh v. Sandford, Sel. Cas. Ch. v. Mousley, 4 De Gex & J.'VS; 3 De 61; 1 Lead. Cas. Eq. 48; Fox v. Maok- Gex, F. & J. 433; Holman v. Loynes, 4 reath, 2 Brown Ch. 400; 2 Cox, 320; De Gex, M. & G. 270; Hesse v. Briant, 1 Lead. Cas. Eq. 188; Morret v. Paske, 6 De Gex, M. & G. 623; Knight v. 2 Atk. 64; Kimber v. Barber, L. R. 8 Bowyer, 2 De Gex & J. 421, 445; Sa- Ch. 56; Powell v. Glover, 3 P. Wms. very v. King, 5 H. L. Cas. 627; Dodge 252; Wedderburn v. Wedderburn, 4 v. Woolsey, 18 How. 331, 341; Koeh- Mylne & 0. 41; Gt. Luxembourg R'y ler v. Black R. etc. Co., 2 Black, 715j Co. V. Magnay, 25 Beav. 586; Docker Butts v. Wood, 37 N. Y. 317; Bliss V. Somes, 2 Mylne & K. 665;,:Knox v. v. Matteson, 45 K. Y. 22; Neall v. Gye, L. R. 5 H. L. 656, 675; Gresley Hill, 16 Oal. 145; 76 Am. Dec. 508. 177 THB EXCLUSIVE JURISDICTION. §§ 159, 160 always by its decree declare the rights, interest, or estate of the cestui que trust, and will compel the trustee to do all the specific acts required of him by the terms of the trust. It often happens that the final relief to be obtained by the cestui que trust consists in the recovery of money. This remedy the courts of equity will always decree when necessary, whether it is confined to the payment of a sin- gle specific sum, or involves an accounting by the trustee for all that he has done in pursuance of the trust, and a distribution of the trust moneys among all the beneficia- ries who are entitled to share therein. §159. Married Women's Separate Property. — The married woman's separate estate, prior to any legislation on the subject, is merely a particular case of trusts, and the jurisdiction of equity over it has been long estab- lished.' As the wife's interest in the property held to her separate use is wholly a creature of equity, the equi- table jurisdiction over it is of course exclusive; and in direct antagonism to the common law theory, equity regards and treats the wife, with respect to such separate estate, as though she were unmarried.^ This equitable separate estate of married women being only a species of trust property held upon express trust, either passive or active, it is of course embraced within the legislation of various states abolishing or restricting and regulating such trusts. § 160. This jurisdiction of equity, so far as it is con- cerned with the contracts of married women, and their other dealings with their separate property, has been greatly enlarged by the modern legislation in many of the states. These statutes, it is true, do not create any 'See Drake v. Storr, 1 Freem. 205, rook, 9 Vea. 189; Aylett v. Ashton, 1 which shows that in 1695 the wife's Mylne& C. 105, 112; La Touohe v. La separate estate was a well-settled doo- Touohe, 3 Hurl. & C. 576; Heatley v. trine of equity. Thomas, 15 Ves. 596; MoHenry v. ' Lady Arundel v. Phipps, 10 Ves. Davies, L. E. 10 Eq. 88; Murray v. 140; Grigby v. Cox, 1 Ves. Sen. 517; Barlee, 3 Mylue & K. 209; Owen v. Ho- Huhnev. Tenant, IBrownCh. 16; Field man, 4 H. L. Cas. 997; Johnson v. V. Sowle, 4 Russ. 112; Owens v. Dick- Gallagher, 3 De Gex F. & J. 494, enson, Craig & P. 48; Nantes v. Cor- 521. 1 E(}. JUB. — 12 § 161 EQUITY JURISPBUDKNCK. 178 equitable estate; their effect is to vest a purely legal title iu the wife, and to free such title from the interests and claims and rights which the common law gave to the husband. But while the legislation thus acts upon her title, it does not, in general, remove the common-law dis- ability of entering into contracts, or clothe the wife with a general capacity of making contracts which are binding at law, and enforceable against them by legal actions. The matter of married women's contracts is therefore left exclusively to courts of equity, and is governed by equitable doctrines. The jurisdiction of equity in the enforcement of married women's liabilities against their separate property has thus been enlarged, since it- has been extended in these states to all the property which a wife may hold by a legal title, and is not confined to such equitable estate as is held for her separate use.* § 161. Equitable Estates Arising from the Doctrine of Conversion. — The doctrine of "conversion" is a par- ticular application of the principle that equity regards as done what ought to be done. The doctrine itself was thus stated by an eminent English equity judge in the leading case upon the subject: " Nothing is better settled than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted; and this, in whatever manner the direction is given, whether by will, by way of contract, marriage articles, settlement, or otherwise; and whether the money is actu- ally deposited or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed, the owner of the fund, or the contracting parties, may make land money, or money land. The cases establish this rule universally."* As this doctrine of conversion ' See post, part iii., chapter on ' Fletcher v. Aahburner, 1 Brown Married Women's Separate Property, Ch. 497, per Sir Thomas Sewell, M. R. ; where an abstract of the legislation in Lechmere v. Carlisle, 3 P. Wms. 223; the various states is given. Wheldale v. Partridge, 5 Ves. 396; 179 THE BXCLUSIVB JURISDICTION. § 162 19 wholly a creation of the equitable jurisprudence, the estates or interests which result from it are entirely equi- table in their nature, and equity has an exclusive juris- diction to maintain and protect such interests, whether the remedy which it gives in any particular case consists in establishing a person's right to a specific piece of land, or merely in granting a recovery of money. § 162. Mortgages. — At the common law a mortgage of land is a conditional conveyance of the legal title, subject to be defeated by the mortgagor's performing the condition, paying the debt on the very day stipulated. If the condition for any reason was not performed on that day, the conveyance ipso facto became absolute, the mortgagee's estate became a perfect legal title, in fee, for life, or for years, according to the terms of the deed, and all the mortgagor's interest under the instrument was completely gone. In other words, the law applied to a mortgage the same strict rules which had been estab- lished with regard to every conditional conveyance. Side by side with this harsh system of the law, the court of chancery developed another theory, which may justly be regarded as the most magnificent triumph of equity juris- prudence over the injustice of the common law. The source of this theory was found in the principle that equity can and will relieve against legal penalties and forfeitures, whenever the person who seeks to enforce them may be fairly compensated by an award of money. As early as the reign of James I. the court of chancery had begun to relieve the mortgagor; and in the reign of Charles I. his right to redeem, after a failure to perform the condition, had become fully recognized as a part of 8 Ves. 227; Harcourt v. Seymour, 2 641; Pratt v. Taliaferro, 3 Leigh, 419, Sim. N. S., 12, 45; In re Pedder, 5 421, 427; Siter v. McClanaohan, 2 De Gex, M. & G. 890; Craig v. Lea- Gratt. 280; Smith v. MoOrary, 3 Ired. lie, 3 Wheat. 564; Peter v. Beverly, Bq. 204, 207; Samuel v. Samuel's 10 Pet. 534, 563; Lorillard v. Coster, Adm'ra, 4 B. Men. 245, 253; Allison 5 Paige, 173, 218; Gott v. Cook, 7 v. Wilson's Ex'rs, 13 Serg. & R. 330, Paige, 523, 534; Kane v. Gott, 24 332. Wend. 641, 659, 660; 35 Am. Dec. § 163 EQUITY JUEISPRUDENCE. 18.0 the equity jurisprudence.' This equitahle right of the mortgagor was termed his "equity of redemption"; that is,, his " right in equity to redeem." At first this equity of redemption was regarded as a mere right or thing in action, and at the close of the reign of Charles II. it was said to be a mere right to recover the land in equity after a failure to perform the condition, and not to be an estate in the land.^ This narrow view, however, was soon aban- doned; the equitable theory became more consistent and complete, until in 1737 Lord Hardwicke laid down the doctrine as already established, and which has since been regarded as the very central notion of the equitable the- ory, that an equity of redemption is (in equity) an estate in the land, which may be devised, granted, or entailed with remainder; that it cannot be considered as a mere right only, but such an estate whereof there may be a seisin; and that the person therefore entitled to the equity of redemption is considered as the owner of the land, and a mortgage in fee is considered as personal assets.' It should be carefully observed that by this theory the mortgagor's estate is wholly an equitable one; neither in equity nor at law is he regarded as retaining the legal estate. Being purely a creation of equity, it fell, of course, under the exclusive jurisdiction of chan- cery, and was maintained and protected by means of the remedy obtained in a suit for redemption. This double mode of dealing with mortgages, the legal, the only one recognized and administered by the courts of law, and the equitable, prevailing alone in the court of chancery, has continued to exist in England until the present day. § 163. The English system has not been adopted to its full extent in any of the American states. Two entirely different methods of viewing the mortgage have become established in the states of this country, and the states ' Btnannel College v. Evans, 1 Rep. ' Rosoarriok v. Barton, 1 Cas. Chan. Chan. 18; 1 Jonea on Mortgages, sees. 217. 6, 7; Coote on Mortgages, 21. ' Casborue v. Soarfe, 1 Atk. 603. 181 THE EXCLUSIVE JUKISDICTION. § 163 themselves must be separated into two greed, classes with respect to their adoption of one or the other of these methods: 1. In nearly half of the states and territories the conflict between the legal and the equitable concep- tions is entirely removed. The legal theory of mort- gages has been abandoned, and the equity theory has been left in full force, furnishing a single and uniform collection of rules, recognized and administered, so far as necessary, alike by courts of law and of equity. The mortgage is not a conveyance; it confers no estate in the land upon the mortgagee. It simply creates a lien on the land as security for the debt due. The mortgagor's estate, instead of being equitable, an equity of redemption, is, for all purposes, and between all parties, the legal es- tate, but encumbered by the lien created by the mortgage. This simple conception is carried out with all its conse- quences, not only as between the immediate parties, but as between all persons who have or acquire any interest in or claim upon the mortgage itself or the land which is subject to the mortgage.' 2. Tlie second method, which prevails in the residue of the states and territories, may be briefly described as follows: Between the immediate parties — the mortgagor and mortgagee and persons hold- ing under them — the legal conception is acknowledged, and the legal rights and duties flowing from the mortgage as a conveyance of the legal estate are recognized and en- forced by the courts of law. But as between the mort- gagor and his representatives and all other persons not holding under or through the mortgagee, the legal con- ception has been entirely abandoned, and the equity view has been adopted by all courts, of law as well as of equity. Finally, the equity theory exists, is in fact the only one administered by courts of equitable jurisdiction, and is applied by them to all parties in the same manner and ' This method has been adopted in siana, Michigan, Minnesota, Kebraska, the following states and territories: Nevada, New York, Oregon, South California, Colorado, Dakota, Florida, Carolina, Texas, Utah, and Wiscon- Greorgia, Indiana, Iowa, Kausa», Loui- sin. § 164 EQUITY JURISPEUDENCE. 182 to the same extent as by the court of chancery in Eng- land.* § 164. Mortgage of Personal Property. — While a mortgage of personal property is, at the common law, a conditional sale, which becomes absolute, passing a per- fect legal ownership on the mortgagor's failure to perform the condition, yet the doctrine is well settled that an equity of redemption exists; and the equitable jurisdic- tion is undoubted to relieve the mortgagor by a suit to redeem, even though the mortgagee has taken posses- sion of the chattels, at any time before the mortgagor's right has been foreclosed by a public sale of the mort- gaged property. Even after such a sale, if there has been any element of bad faith or inequitable conduct on the part of the mortgagee, the mortgagor may still some- times maintain a suit for an accounting.* The jurisdic- tion also extends to the mortgagee's interest, which may be protected and enforced by a suit brought to foreclose the mortgagor's right of redemption, and to sell the mort- gaged property, similar to the suit so common in the United States for the foreclosure of a mortgage of land.' A like jurisdiction exists over pledges of chattels or of things in action; the pledgee may enforce his security by a suit for a foreclosure and sale.* Under special circum- stances the pledgor may maintain an equitable action for a redemption.* In some of the states the common-law view of the chattel mortgage as a conditional sale has ' The second method has been per Jones, C. ; Charter v. Stevens, adopted in the following states: Ala- 3 Denio, 33; 45 Am. Dec. 444; Hnn- bama, Arkansas, Connecticut, Dela- tington v. Mather, 2 Barb. 538; Mat- ware, Illinois, Kentucky, Maine, Ma- tison v. Baucas, 1 N. Y. 296. [As to ryland, Massachusetts, Mississippi, the jurisdiction to protect the mort- Missouri,NewHampshire,New Jersey, gaged chattel, see McCormick v. North Carolina, Ohio, Pennsylvania, Hartley, 107 Ind. 248.] Ehode Island, Tennessee, Vermont, ' Ex parte Mountford, 14 Ves. 606; Virginia, and West Virginia, Freeman v. Freeman, 17 N. J. Eq. ' Hart v. Ten Eyck, 2 Johns. Ch. 44; Dupuy v. Gibson, 36 111. 197; 100, 101; Stoddard V. Denison, 7 Abb. Donohue v. Gamble, 38 Cal. 340; Pr., N. S., 309; Flanders v. Cham- Civ. Code of Cal., sec. 3011. berlain, 24 Mich. 305; Heyland v. ' Jones v. Smith, 2 Ves. 372; Bart- Badger, 35 Cal. 404. lett v. Johnson, 9 Allen, 530; Has- ' Hart V. Ten Eyck, 2 Johns. Ch. brouck v. Vandervoort, 4 Sand. 74. 100; Lansing y. Goelet, 9 Cow. 372, 183 THE BXCLUSIVB JUKISDICTION. §§ 165, 166 been totally abandoned; the mortgage itself has been as- similated to the mortgage of land as only creating a lien, — a mere hypothecation, — the legal ownership with all its incidents, including the right of possession, being left in the mortgagor until the lien is enforced and the mort- gagor's interest extinguished, either by means of an equitable suit or by a public sale.' § 165. Equitable Liens, analogous to mortgages, con- sidered from the purely equitable point of view, are the class of interests embraced under the denomination of " equitable liens." An equitable lien is not an estate or property in the thing itself, nor a right to recover the thing, — that is, a right which may be the basis of a pos- sessory action; it is neither a jus ad rem nor a jus in re.' It is simply a right of a special nature over the thing, which constitutes a charge or encumbrance upon the thing, so that the very thing itself may be proceeded against in an equitable action, and either sold or se- questered under a judicial decree, and its proceeds in the one case, or its rents and profits in the other, applied upon the demand of the party in whose favor the lien exists. It is the very essence of this conception, that while the lien continues, the possession of the thing re- mains with the debtor or person who holds the proprie- tary interest subject to the encumbrance.' § 166. The doctrine of equitable liens is one of great importance, and of wide application in administering the remedies peculiar to equity jurisprudence, and a brief explanation of the foundation and reasons of the jurisdic- tion is essential to a full understanding of the subject. It is sometimes, although unnecessarily and even incorrectly in my opinion, spoken of as a branch of implied trusts; but it is more accurate to describe these liens as analagous ' As, for example, in California: Civ. • Brace v. Duchess of Marlborough, Code, sees. 2920, 2923, 2927, 2931, 2 P. Wms. 491; Ex parte Knott, 11 2936, 2967-2970, 3000-3002. Ves. 617. ' See Peck v. Jennesa, 7 How. 620, per Grier, J. § 166 EQUITY JUKISPRUDENCE. 184 to trusts; for although they have some similar features, they are unlike in their essential elements. The com- mon-law remedies upon all contracts, except those which transfer a legal estate or property, such as conveyances of land and sales or bailments of chattels, are always mere recoveries of money; the judgments are wholly personal, in ancient times were enforced against the person of the debtor, by his imprisonment until he voluntarily paid the amount, and in modern times, against the property gen- erally of the judgment debtor, by means of an execution. This species of remedy is seldom granted by equity, and is opposed to its general theory. The remedies of equity are as a class specific. Although it is commonly said of them that they are not in rem, because they do not op- erate by the inherent force of the decree in an equitable suit to change or to transfer the title or estate in contro- versy, yet these remedies are, as a general rule, directed against some specific thing; they give or enforce a right to or over some particular identified thing, land, or per- sonal property, or a fund, rather than a right to recover a sum of money generally out of the defendant's assets. Remedies in equity, as well as at law, require some pri- mary right or interest of the plaintiff, which shall be maintained, enforced, or redressed thereby. When equity has jurisdiction to enforce rights and obligations growing out of an executory contract, this equitable theory of rem- edies cannot be carried out, unless the notion is admitted that the contract creates some right or interest in or over specific property, which the decree of the court can lay hold of, and by means of which the equitable relief can be made efficient. The doctrine of " equitable liens " supplies this necessary element, and it was introduced for the sole purpose of furnishing a ground for the specific remedies which equity confers, operating upon particular identified property, instead of the general pecuniary re- coveries granted by courts of law. It follows, therefore, that in a large class of executory contracts, express or 185 THE EXCLUSIVE JUEISDICTION. § 167 implied, which the law regards as creating no property- right nor interest analogous to property, but only a mere personal right and obligation, equity recognizes, in addi- tion to the obligation, a peculiar right over the thing with which the contract deals, which it calls a " lien," and which, though not property, is analogous to property, and by means of which the plaintiff is enabled to follow the identical thing, and to enforce the defendant's obli- gation by a remedy which operates directly upon that thing. § 167. These equitable liens may be created by express executory contracts relating to specific property then ex- isting,^ or property to be afterwards acquired;^ and some- times by implied contracts, upon the maxim that he who seeks the aid of eqaity in enforcing some claim must himself do equity.' The following are some of the im- portant kinds of equitable liens which are recognized as falling under this branch of the jurisdiction: Those re- sulting from charges on property by will or by deed;* the grantor's lien on laud conveyed for the unpaid price;* the vendee's lien for the money paid in a contract for the purchase of land;* the vendor's lien for the purchase price » Ex parte Willa, 1 Ves. 162; 2 Cox, Smith v. Drake, 23 N. J. Eq. 302; Mc- ^3; Card v. Jaffray, 2 Sehoales & L. Langhlin v. Banmm, 31 Md. 425; Sale 579; In re Howe, 1 Paage, 125; 19 Am. v. Crutohlield, 8 Bush, 636. Dec. 395; Chase v. Peck, 21 N. Y. 581; * King v. Denison, 1 Ves. Sc B. 272, Daggett v. Rankin, 31 Oal. 321, 326; 276; Hill v. Bishop of London, 1 Atk. Lovev. Sierra Nevada Co., 32 Cal. 639, 620; Craig v. Leslie, 3 Wheat. 582; 652, 653; 91 Am. Dec. 1602; Pinch v. Gardner t. Gardner, 3 Mason, 178. Anthony, 8 Allen, 536; Adams v. ' Mackreth v. Symmons, 15 Ves. Johnson, 41 Miss. 258; Morrow v. 329; 1 Lead. Cas. Eq. 289; Blackljurn Turney, 35 Ala. 131. v. Gregson, 1 Brown Ch. 420; Rose v. » Holroyd v. Marshall, 10 H. L. Watson, 10 H. L. Cag. 672; Smith v. ■Cas. 191; Wellesley v. Wellesley, 4 Evans, 28 Beav. 59. This lien is es- Mylne S; C. 561, 579, per Lord Cot- tablished in a large number of tlie tenham; Metcalfe v. Arohb. of York, states, but not in all. 6 Sim. 224; 1 Mylne & C. 547, 556; «Cator v. Earl of Pembroke, 1 Brown Lyde v. Mynn, 4 Sim. 505; 1 Mylne & Ch. 301; Rose v. Watson, 10 H. L. K. 683; Otis v. Sill, 8 Barb. 102. Cas. 672; Wythea v. Lee, 3 Drew. 396; ' Lake v. Gibson, 1 Abr. Cas. Eq. Lane v. Ludlow, 6 Paige, 316, note; 290, pi. 3; Lake v. Craddock, 3 P. Chase v. Peck, 21 N. Y. 585; Wick- Wms. 158; 1 Lead. Cas. Eq. 177, 179; man v. Robinson, 14 Wis. 494; 80 Am. Gladstonev.Birley, 2 Mer. 403; Bright Dec. .789; Stewart v. Wood, 63 Mo. V. Boyd, 1 Story, 478; 2 Story, 605; 252; Willis v. Searcy, 49 Ala. 222. Miner ▼. Beekman, 50 N. Y. 337; § 168 EQUITY JURISPRUDENCE. 186 in the same contract;' the grantor's lien for unpaid price created by express reservation in a deed of conveyance;' the lien in favor of a lender, created by a deposit of title deeds;' various statutory liens. In addition to the liens above mentioned, which belong to the general equitable jurisprudence, the legislation of many states has created or allowed other liens, which often come within the equity jurisdiction, in respect, at least, to their means of enforce- ment. The so-called " mechanics' liens " may be taken as the type and illustration of this class. § 168. Equitable Estate or Interest Arising from an Assignment of Things in Action, Possibilities, Contingen- cies, or Expectancies, and from an Equitable Assignment of a Fund. — By the ancient common law, things in action, possibilities, expectancies, and the like, were not assign- able; an assignee thereof acquired no right which was recognized by courts of law. Equity, however, has always held that the assignment of a thing in action for a valuable consideration should be enforced at the suit of the as- signee; and has also given effect to assignments of every kind of future and contingent interests and possibilities in real and personal property, when made upon a valu- able consideration.^ As soon as the assigned expectancy or possibility has fallen into possession, the assignment will be enforced.' It followed, therefore, that the assignee of a thing in action acquired at once an equitable owner- ship therein, as far as it is possible to predicate property ' Smith T. Hibbard, Dick, 730; Smith land, and has been recognized in some T. Kvana, 28 Beav, 59; Haughwout v. of the states: Kussell v. Russell, 1 Murphy, 22 N. J. Eq. 531; Hall v. Brown Ch. 269; Ex parte Hooper, 1 Jones, 21 Md. 439; Yancy v. Mauck, Mer. 7; Parker v. Housefield, 2 Mylne 15 Gratt. 300; Hill v. Grigsby, 32 Gal. & K. 419; Whitbread v. Jordan, 1 55; Smith v. Rowland, 13 Kan. 245. Younge & C. 303. " This species of lien, peculiar to the ♦ Warraatrey v. Lady Tanfield, 1 United States, is fully established in Ch. Rep. 16; Wright v. Wright, 1 several of the states: Heist v. Baker, Ves. Sen. 411; Hobson v. Trevor, 2 49 Pa. St. 9; Carpenter v. Mitchell, P. Wms. 191; Bennett v. Cooper, 9 54 111. 126; Markoe v. Audras, 67 111. Beav. 252; Lindsay v. Gibbs, 22 Beav. 34; Davis v. Hamilton, 50 Miss. 213; 522; Spragg v. Binkea, 5 Ves. 588; Stratton v. Gold, 40 Miss. 781; White Stokes v. Holden, 1 Keen, 152, 153; V, Downs, 40 Tex. 226; King v. Young Jewson v. Moulson, 2 Atk. 421. Men's Ass'n, 1 Woods, 386. ' Holroyd v. Marshall, 10 H. L. Gas. ^ This lien is very common in Eng- 191. 187 THE EXCLUSIVE JURISDICTION. § 168 or ownership of such a species of right; while the assignee of an expectancy, possibility, or contingency acquired at once a present equitable right over the future proceeds of the expectancy, possibility, or contingency, which was of such a certain and fixed nature that it was sure to ripen into an ordinary equitable property right over those pro- ceeds, as soon as they came into existence by a transfor- mation of the possibility or contingency into an interest in possession. There was an equitable ownership or property in abeyance, so to speak, which finally changed into an absolute property upon the happening of the future event. Equity permitted the creation and transfer of such an ownership. At an early day, this species of equitable ownership arising from assignments prohibited by the common law was very important, and was the oc- casion of an extensive branch of the equitable jurisdiction. This special jurisdiction has, however, been greatly cur- tailed. Modern statutes, both in England and in the American states, permit, with certain well-defined excep- tions, things in action, possibilities, expectancies, and contingencies to be assigned, and the assignee to sue thereupon in his own name. As far as this legislation has gone, it has, in effect, turned the equitable right or own- ership of the assignee into a legal one, and has thus re- moved the very foundation of the equitable jurisdiction over the subject-matter. The jurisdiction is therefore abrogated, except so far as it is preserved by the opera- tion of the general principle, that where the jurisdiction of equity has been established over any given subject, it is not abolished by subsequent statutes conferring juris- diction over the same subject upon the courts of law. Whatever may be the effect of these statutes in abridging, or rather in removing occasion for, the jurisdiction of equity, it is plain that the jurisdiction must still exist in the cases where a thing in action or demand purely equi- table in its nature is assigned, and where the assignment itself is equitable, — that is, does not operate as an assign- §§ 169, 170 EQUITY JURISPKUDENCE. 188 ment at law, — and where any species of possibility or expectancy not within the scope of the statutes is trans- ferred. § 169. Among these cases which are untouched by the legislation, and, over which the exclusive jurisdiction of equity still continues unabridged, is the equitable assign- ment of a specific fund which is in the hands of a third person, an assignment which does not operate at law, and therefore creates no legal rights of property in the assignee. If A has a specific fund in the hands of B, or in other words, if B is a depositary or otherwise holds a specific sum of money which he is bound to pay to A, and if A agrees with that the money shall be paid to 0, or as- signs it. to C, or gives to an order upon B for it, the agreement, assignment, ot order creates an equitable ownership of the fund in the assignee C, so that he can recover it by a suit in equity, and it is not necessary that B should consent or promise to hold it for or pay it to such assignee.' It is not necessary that the entire debt or fund should be thus assigned; the same doctrine ap- plies to the assignment of a definite portion of it.* § 170. Exclusively Equitable Hemedies. — Havingthus explained the equitable primary rights, estates, interests, and charges in and upon property over which the ex- clusive jurisdiction of equity sertends, I now proceed to enumerate the remedies which are wholly equitable, ad- ministered by courts of equity alone, and which therefore > Rodiek v. Gandell, 1 De Gex, M. & Carruthers, 3 He Gex & S. 570; Mal- G. 763; Ex parte Imbert, 1 De Gex & colm v. Scott, 3 Hare, 39; Mandevillo J. 152; Joneav.Jarrell, IDeGex & J. v. Welch, 5 Wheat. 277, 286; Tieman 208; Gurnell V. Gardner, 9 Jur., N. S., v. Jackson, 5 Pet. 598; Gibson v. 1220; Ex parte South, 3 Swanst. 393; Finley, 4 Md. Oh. 75; Wheatley v. Burn V. Carvalho, 4 Mylne & C. 702; Strobe, 12 Oal. 92, 98; 73 Am. Dec Lett V. Morris, 4 Sim. 607; Watson v. 622; Walker v. Mauro, 18 Mo. 564; Duke of Wellington, .1 Russ. & M. Shaver v. Western Union Tel. Co., 57 605; Yeates v. Groves, 1 Ves. 281; N. Y. 459, 464. Lepard v. Vernon, 2 Ves. & B. 51 ; Ex ' Watson v. Duke of Wellington, 1 parte Alderson, 1 Madd. 53; Collyer Russ. & JVI. 602, 605, per Sir John V. Fallon, 1 Turn. & R. 470, 475; Leach; Lett v. Morris, 4 Sim. 607; Adams v. Claxon, 6 Ves. ,230; Row Smith v. Everett, 4 Brown Ch. 64; Mor- v. Dawson, 1 Ves. Sen. 331; Freddy ton v. Nay lor, 1 Hill, 583; Grain v. -V. Hose, 3 Mer. 86, 102; Ex parte Aldrich, 318 Oal. 514; 99 Am. Dec. 423. 189 THB EXCLUSIVE JURISDICTION. § 170' constitute the' other department of the exclusive jurisdic- tion. There are certain geileral qualities belonging to all these remedies, which should be clearly and correctly understood; otherwise our notions of the remedial func- tions of equity will be partial, confused, and even erro- neous. 1. These exclusive remedies may be granted in order to protect, maintain, or enforce primary rights, estates, or interests which are legal as well as those which are equitable; they are not administered in behalf of equitable substantive rights alone. As illustrations, an injunction is often given to prevent the invasion of a legal ownership or interest, a decree quieting title is often rendered to establish an existing legal estate, and the like. And in many instances where the existing primary right, estate, or interest of the complainant is equitable, the very object and effect of the remedy is to^ clothe him with the corresponding legal right, estate, or interest; as, for example, when the beneficiary under a construct- ive trust, or the vendee under a contract for' the sale of land, obtains a decree directing a conveyance of the legal title. 2. Although it was said in the earliest days of the jurisdiction of chancery, and has been constantly repeated by writers and judges to the present time, that equitable remedies act wholly on the person, in personam, and not upon property, in rem, the exact meaning and limits of this rule must be accurately understood, or else it will be very misleading, and will entirely misrepresent the theory of the equity remedial system. It has no sig- nificance beyond the fact that, according to the practice adopted by the court of chancery from prudential mo- tives, the decrees of the court did not, so to speak, exe- cute themselves by divesting the defendant of estates or interests, and vesting the same in the plaintiff; defend- ants were ordered to do specified acts, such as the execu- tion of conveyances, the delivery up and cancellation of instruments, and the like, which would, when done, es- tablish, perfect, and secure the rights adjudged to be- § 170 EQUITY JURISPHUDKNCB. 190 held by the plaintiffs; the decree that a conveyance of land should be made by the defendant to the plaintiff did not of itself operate as a title, did not of itself transfer the estate to the plaintiff; nor was an officer of the court authorized to execute the conveyance; the defendant himself was ordered to do the act, and he alone could perform it; his refusal simply brought on him the pun- ishment of fine and imprisonment until he consented to obey. This ancient quality in the operation of equitable remedies has been greatly modified by various statutes in the United States, which, in some instances, provide that a decree establishing an estate, interest, or right of property in the plaintiff shall execute itself, shall be of itself a muniment of title, by divesting the defendant of the interest and vesting the same in the plaintiff, without any conveyance or other instrument of transfer. The decree alone, being on record, operates as a sufficient security of the plaintiff's rights as adjudged. In other instances, an officer of the court, commissioner, master, or referee is authorized to carry out the provisions of the decree by executing the necessary instruments, which are thereupon the plaintiff's muniments of title, with the same effect as though they had been executed by the de- fendant himself. Finally, in many instances, the decree must, from the nature of the remedy, — e. g., an injunc- tion, — act directly against the defendant personally, and order him to do or to refrain from certain acts. The maxim referred to has therefore a very limited applica- tion. When we turn from this mere external manner in which equitable remedies were enforced according to the original chancery procedure to the essential, and so to speak internal, nature and qualities of the remedies themselves, instead of their being merely personal, it is one of the distinctive and central principles of the equity remedial system that it deals with property rights, — es- tates, interests, liens, — rather than with the mere per- sonal rights and obligations of the litigant parties. This 191 THE EXCLUSIVE JUEISDICTION. § 170 tendency of equity to base its remedies upon the rights of property, in their various grades, from complete estates to liens or charges, is exhibited in the clearest manner in all its suits brought to enforce the rights and duties growing out of contracts. Although the contract is ex- ecutory, even though it stipulates only with respect to things not yet in existence, — things to be acquired in future, — the remedial right is worked out by conceiving of a present ownership, interest, lien, or charge, as aris- ing from the executory provisions, or a present possibility which will ripen into such an interest, and by establish- ing this proprietary right, protecting and enforcing it. The decree, with a few exceptional cases, passes over the personal rights of the plaintiff, and the personal obliga- tions of the defendant, deals with rights or interests in property, and shapes its relief by conferring rights, or imposing duties growing out of or connected with some grade of property. Even when the executory contract creates what at law would be a debt, and when the re- covery at law would be a general pecuniary judgment, the equitable remedy views this debt as an existing fund, and awards its relief in the form of an ownership of or lien upon that fund. A general pecuniary judgment to be recovered from the debtor's assets at large — as an award of damages — is only granted by a court of equity under very exceptional circumstances.' 3. Another qual- ity of the distinctively equitable remedies, connected with and perhaps growing out of the one last mentioned, is their specific character, both with respect to substance and form. Except in actions to recover possession of land or of chattels (" action of right," " ejectment," or "replevin"), the legal remedies by action are all general ' The same conception is shown in exercise, is the existence of property the jurisdiction which equity exer- belonging to the person. An infant, cises over the persons of those who for example, cannot be made a, ward are non sui juris, such as infants, luna- of the court merely because he is an tics, etc. Although the jurisdiction, infant, but because he is an infant when existing, extends over the per- possessing property which the court sons, the /act upon which it rests, and can administer, which is the necessary occasion for its § 170 EQUITY JUKISPKUDENCE. 192 recoveries of specified sums of money, which may be col- lected by execution out of any property of the debtor not exempted. The eq^uitable remedies, with a few excep- tions, are specific; deal with specific things, land, chat- tels, choses in actions, funds; establish specific rights, estates, interests, liens, and charges in or over these things; and direct specific acts to be done or omitted with respect to these things, for the purpose of enforcing the rights and duties thus declared. Even when the controversy is concerning pecuniary claims and obli- gations, and the final relief is wholly pecuniary, the equitable remedies are administered by regarding the subject-matter as a specific fund, and by adjudging such fund to its single owner, or by apportioning it among the several claimants. It is the distinctive feature of the system, which gives it a superior efficacy over the legal methods, that it ascertains a rightful claimant's interest in or over a specific thing, land, chattels, choses in ac- tion, debts, and even money in the form of a fund, and follows it through the hands of successive possessors as long as it can be identified. The two qualities which I have thus described, that equitable remedies deal with property rights rather than with personal rights and ob- ligations, and that they are specific in their nature, are the peculiar and important features of the system, and give it the power of expansion and of application to an unlimited variety of circumstances, which enables equity to keep abreast with the progress and changing want& of society. 4. Another quality of equitable remedies is their unlimited variety of form. It is absolutely impos- sible to enumerate all the special kinds of relief which may be granted, or to place any bounds to the power of the courts in shaping the relief in accordance with the circumstances of particular cases. As the nature and incidents of proprietary rights and interests, and of the circumstances attending them, and of the relations aris- ing from them, are practically unlimited, so are the 193 THE EXCLUSIVE JUSISDICTION. § 171 kinds and forms of specific relief applicable to these cir- cumstances and relations. The ordinary remedies, how- ever, which are administered by equity, those which are appropriate to the circumstances and relations most fre- quently arising, are well ascertained and clearly defined, both as to their form and nature. Certain species of these belong to the exclusive jurisdiction, and the doc- trines and rules which regulate their administration constitute a large portion of the equity jurisdiction. I shall complete my survey of the exclusive jurisdiction by enumerating these kinds of remedies which are com- monly administered, and which are susceptible of a definite classification and arrangement. They may be grouped according to their nature and objects in the fol- lowing classes. § 171. 1. The first class embraces those remedies which are wholly ancillary or provisional; which do not either directly or indirectly affect the nature of any primary right, but are simply means and instruments by which primary rights may be more efficiently preserved, pro- tected, and enforced in judicial proceedings. This class includes the ordinary preventive injunction, receivers, and interpleader. 2. The second class embraces those remedies which operate indirectly to establish or protect primary rights, either legal or equitable. They do not expressly nor directly declare, establish, and enforce the ultimate right, estate, or interest of the complaining party; but their object is to perfect and complete the means by which such right, estate, or interest is evidenced or se- cured, — the title, — or to remove obstacles which hinder the enjoyment of such right. They are therefore in their nature not final remedies, but are often granted as pre- liminary to the final relief by which the party's pri- mary right, estate, or interest is established and enforced. The important remedies contained in this class are re-exe- cution of instruments, reformation of instruments, sur- render or discharge of instruments, and cancellation or 1 Eq. Jue. — 13 § 171 EQUITY JUEISPEUDENCB. 194 rescission. 3. The third class embraces those remedies by which a primary right of property, estate, or interest is directly declared, established, acquired, or enforced; and they often consist in the conveyance by defendant of a legal estate, corresponding to the complainant's equitable title. These remedies deal directly with the plaintiff's right of property, and grant to him the final relief which he needs, by establishing and enforcing such right. The particular remedies properly belonging to this class may assume an almost unlimited variety of forms, since their form depends upon and corresponds to the nature of the primary right to be established, and of the subject-matter over which that right extends; it is chiefly in its relation with this class that the peculiarly elastic quality of the equity remedial system is found. The remedies belonging to the class may, for purposes of clearer description, be again subdivided into three principal groups. Some are simply declarative; that is, their main and direct object is to declare, confirm, and establish the right, title, interest, or estate of the plaintiff, whether legal or equitable; they are usually granted in combination with others, and often ))eed other kinds of relief as a preliminary step to making them eflicient; as, for example, a preliminary reformation, re-execution, or cancellation. Others are restorative, or those by which the plaintiff is restored to the full enjoy- ment of the right, interest, or estate to which he is entitled, but the use and enjoyment of which has been hindered, interfered with, prevented, or withheld by the wrong-doer. These also are often granted in combination with other kinds of relief, and frequently need some other prelimi- nary equitable remedy, such as cancellation or reformation, to remove a legal obstacle to the full enjoyment of the plaintiff's right, and to render them efficient in restoring him to that enjoyment. Others are remedies of specific performance, or those by which the party violating his primary duty is compelled to do the very acts which his duty and the plaintiff's corresponding primary right re- 195 THE EXCLUSIVE JURISDICTION. § 171 quire from him. The following particular instances are • examples of the remedies belonging to this general class: Establishing and quieting title and possession of land; establishing some general right ("bills of peace"); estab- lishing wills; construing wills and determining the rights under them of devisees and legatees, establishing dis- puted boundaries; redeeming lands or chattels from mort- gages, pledges, and thus establishing the plaintiff's right of property and possession therein; strict foreclosure of mortgages; specific performance of contracts and of other similar obligations; performance of duties arising from implied trusts, resulting or constructive, by compelling a conveyance of the legal title; performance of the duties arising from express trusts, by compelling the trustee to fulfill the trust according to its terms; and numerous other cases of the same nature. 4. A fourth class embraces those remedies which establish and enforce liens and charges on property, rather than rights and interests in property, either by means of a judicial sale of the property itself which is affected by the lien and a distribution of its proceeds, or by means of a sequestration of the prop- erty, and an appropriation of its rents, profits, and income, until they satisfy the claim secured by the lien. The im- portant examples are: The foreclosure of mortgages of land or of chattels, and of pledges, by a sale and application of the proceeds; the similar enforcement of grantors' or vendees' liens on land; the enforcement of mechanics' and other like statutory liens; the enforcement of charges cre- ated by will and other equitable liens; creditors' suits to enforce the equitable liens of judgment creditors and other similar liens on the assets of debtors, and the like. 5. A fifth class contains certain special remedies ^hich do not belong to the original jurisdiction of chancery, but are wholly the results of statutory legislation. Among them are suits to set aside wills; suits to establish or to destroy some kinds of official status, as proceedings against corporations and their officers, brought by stockholders § 172 EQUITY JURISPKUDENCa. 196 or creditors or officials on behalf of the state, to dissolve and wind up the corporations, and to remove or institute corporation officers, and the like; and suits for divorce absolute and limited, and for alimony, in many of the states. 6. The last class comprises proceedings in which jurisdiction is exercised over persons not sui juris, — in- fants, persons non compotes mentis, confirmed drunkards. The foregoing six general classes include all the impor- tant species, and most of the particular instances of the remedies which belong to the exclusive jurisdiction, those which are administered alone by courts of equity. § 172. When, under what circumstances, for what pur- poses, to what extent, and with what limitations and re- strictions these remedies, or any one of them, will actually be granted to and against litigant parties, are questions which do not belong to a statement of the equitable juris- diction; they belong alone to the equity jurisprudence, and their answer involves, to a large extent, a discussion of its doctrines and rules. The administration of those purely equitable remedies is the judicial function which marks and fixes one branch of the exclusive jurisdiction; the determination of the scope and extent of that juris- diction only requires a knowledge of what these remedies are, and not of the particular circumstances under which they will be conferred. In a word, all cases in which the purely equitable remedies are granted fall within the ex- clusive jurisdiction of equity; what those cases are con- stitutes a large portion of the equity jurisprudence, and is ascertained only by an application of its principles, doctrines, and rules. 197 THB CONCURRENT JURISDICTION. §173 SECTION III. THE CONCURRENT JURISDICTION. |§ 173, 17*. §175. §§ 176-179. §§ 177, 178. §179. §180. §181. §182. §183. §§ 184^189. §185. §§ 186-188. §188. §189. What embraced in the concurrent jurisdiction; inadequacy of legal remedies defined. The remedies given must be legal in their nature. General principle; when no concurrent jurisdiction exists. Examples of such cases. Where a law court has first taken cognizance of a case. General principle; where concurrent jurisdiction dols exist. Rule first. Where equity has jurisdiction for any partial pur- pose, it may retain the cause for all purposes. Rule second. Where equity originally had jurisdiction, and the law subsequently acquires jurisdiction over the same matter, the equity jurisdiction still continues. Effect of the reformed procedure upon the equity jurisdiction. Enumeration of the principal matters over which the concurrent jurisdiction ordinarily extends. Suits for the recovery of lands and of chattels. Suits for pecuniary recoveries. Suits arising from accident, mistake, or fraud. Other special cases. § 173. Description and Test. — The Concurrent Juris- diction, as stated in a former section in this chapter, em- braces all those civil cases in which the primary right, estate, or interest of the complaining party sought to be maintained, enforced, or redressed is one which is created and is cognizable by the law, and in which the remedy con- ferred is also of the same kind as that administered, under the like circumstances, by the courts of law. The primary right, estate, title, or interest which is the foundation of the suit must be legal, or else the case would belong to the exclusive jurisdiction of equity; and the law must, through its judicial procedure, give some remedy of the same general nature as that given by equity; but this legal remedy is not, under the circumstances, full, adequate, and complete. The actual foundation of this concurrent branch of the equitable jurisdiction, the essential princi- § 173 BQUITY JUEISPRUDENCE. 19S pie to which every instance of its exercise must finally be referred, is therefore the inadequacy, incompleteness, or insufficiency of the legal remedies which can be granted by courts of law to the litigant parties. This inadequacy or insufficiency inheres, not in the essential nature of the relief itself, but generally in the modes in which the re- lief is administered by courts of law, the inflexible and often arbitrary rules of legal procedure concerning parties to actions, trials, judgments, and the like. Although the exclusive jurisdiction of equity does not rest upon the in- adequacy of legal remedies as its foundation, yet, as has already been said, the rules which govern its exercise, the doctrines of equity jurisprudence which guide and limit the court of chancery in its decision of causes falling within the exclusive jurisdiction, do also depend in some measure upon the insufficiency and inadequacy of the remedies granted by the law. This inadequacy of legal remedies, in its relations with the exclusive jurisdiction of equity, almost always exists in the very nature of the remedies themselves. The equitable remedies are differ- ent from and superior to those conferred by the law, and for this reason a court of equity may interfere and grant them, although the primary right, interest, or estate of the plaintiff is legal in its nature, and he might obtain some remedy for the violation of his right from a court of law. This is not true of the concurrent jurisdiction. The very definition of that jurisdiction assumes that the remedies ad- ministered under a given state of circumstances, by equity and by the law, are substantially the same, — recoveries of money, or of specific tracts of land, or of specific chattels. The incompleteness or insufficiency of the legal remedy upon which the concurrent equitable jurisdiction rests must therefore necessarily exist in the modes of legal pro- cedure, its arbitrary and unbending rules, its want of elasticity and adaptability to circumstances, and all the other incidents of legal methods which often prevent them from doing full justice to the litigant parties. 199 THE CONCURRENT JURISDICTION. §§ 174, 175 § 174. The cases coming witMii the concurrent juris- diction may, for purposes of convenience only, and not from any difference of principle, be arranged under two general classes. The distinguishing feature of the first class is the act, event, or fact which is the occasion of the remedial right. It contains all those cases in which the primary right violated, the estate, title, or interest to be protected, is of course legal, and the subject-matter of the suit, and the act, event, or fact which occasions the right to a remedy, may be brought within the cognizance of the law courts, and made the foundation of a legal action, but in respect of which the whole system of legal pro- cedure and remedies is so partial and insufficient that complete justice can only be done by means of the equity jurisdiction. The most important acts, events, or facts which are the occasions of remedial rights, and which thus permit or require the interposition of equity in the cases composing this class, are fraud, mistake, and acci- dent.' The second class contains all the remaining cases in which the primary right to be redressed or protected is legal, and the relief is of the same kind as that given at law, but in which, from the special circumstances of the case itself, or from the inherent defects of the legal procedure, the remedy at law is inadequate, and equity assumes jurisdiction, in order to do complete justice. As mere illustrations of this class may be mentioned suits for an accounting, for contribution, and the like, in which both the legal and the equitable remedy is a recovery of money; suits for partition, for admeasurement of dower, and for settlement of boundaries, in which the relief in both courts is the obtaining possession of land; and the suits which may be maintained under peculiar circum- stances for the recovery of specific chattels. § 175. The Remedies Legal. — In order that a suit may fall under the concurrent jurisdiction of equity, the remedy — that is, the substantial relief obtained by the ' [Stockton V. Anderson, 40 N. J. Eq. 488.] § 176 EQUITY JUKISPEUDENCB. 200 decree — must be of the same general nature as that which would be obtained by means of an action at law under like circumstances. All the general kinds of remedy, or final relief, which are possible by means of legal actions are defined with absolute certainty and fixed- ness. Omitting the particular species of relief obtain- able through certain writs or sjjecial judicial proceedings, such as " mandamus," the writ of " prohibition," " habeas corpus," the law, through its actions, is confined to three general kinds of remedies, — the obtaining possession of specific tracts of land, the obtaining possession of specific chattels, and the recovery of ascertained sums of money, either debts or damages, by way of compensation. In every case, therefore, properly belonging to the concur- rent jurisdiction of equity, the final and substantial relief granted by the decree must be either an award of posses- sion of some piece of land, or a delivery of possession of some specific chattel, including written instruments, such as deeds, which with this respect are regarded as chattels, or a pecuniary recover}'.' While the equitable relief must be of the same general nature as that granted by the law courts, it need not be of the same external form, nor be accompanied by the same incidents. Thus where a decree in equity awards to the plaintifl", as his ultimate relief, the possession of certain land, it may, as a prelim- inary to and basis of such award, adjudge his estate and ' In respect to no other topic con- one which can be administered only nected with equity has there been by a court of equity, such as reforma- snch confusion of treatment, and such tion, cancellation, , injunction, etc., utter laclc of any consistent principle, they are all, right and remedy, treated among text-writers, as in relation to as though belonging to this branch of the matter of the concurrent jurisdio- equity jurisdiction. In the same tion. As illustrations: Because some manner, the subject of partnership, purely legal rights and legal causes of as an entirety, is referred to this jn- aotion may be occasioned by fraud, risdiction, although the interest to be accident, or mistake, many text-writ- maintained and the remedy to be ob- ers have therefore placed fraud, acoi- tained are wholly equitable in their dent, and mistake, and everything nature. These instances are exam- pertaining to them, wholly within the pies merely of a mode of treatment concurrent jurisdiction of equity. Al- which falls to draw any true line of though the primary right arising there- distinction between the two great from may be entirely equitable, and departments of the equity jurisdio- altbough the remedy conferred may be tion. 201 THE CONCUKKENT JUKISDICTIOTJ. § 176 title — in fee, for life, or for years — in and to such land; while the judgment in an action of " ejectment " simply awards the possession, without expressly adjudicating upon the estate or title. Also, in most instances of pecu- niary recoveries in equity, the money is regarded and treated as a fund, which is either awarded to the single claimant, or is distributed among the several claimants in the shares to which they are adjudged to be entitled. The cases are very few indeed in which a court of equity, in the same manner and form as a court of law, decrees the payment to the plaintiff of a sum of money merely as a debt or as compensatory damages. Another impor- tant element of the concurrent equitable jurisdiction exists in the marked difference between the modes of procedure at law and in equity with reference to the actual rendition of final judgment and the form of such judgment. The judgment in an action at law, unaltered by modern statutes, is most truly a yea, yeay. or a nay, nay; that is, it is a single, undivided award, or denial of some one of the three kinds of relief above described as alone possible; no adjustment of opposing rights, no partial relief to each of the opposing litigants, is permitted. The judgment is either for the defendant wholly, that the plain- tiff take nothing by his action, or for the plaintiff wholly, that he recover possession of a specified tract of land, or of a specified chattel, or that he recover a single sum of money from the defendant, or from all the defendants if there are more than one. The doctrine of set-off, by which a defendant may recover judgment for a debt against the plaintiff, is wholly of a statutory origin; and the doctrine of recoupment, by which the plaintiff's pecuniary recov- ery may be lessened by means of a claim for damages in favor of the defendant, is a very recent innovation upon the common-law methods of procedure. The modes of procedure in a court of equity have never been thus re- stricted. Its decree is not confined to a single adjudica- tion for or against the defendant; but as a preliminary. § 176 EQUITY JURISPRUDENCE. 202 and leading up to the final award in favor of either party, or even in the very final award itself being thus partially in favor of both litigants, it may make any adjustments, admit any limitations, and determine upon any cross- demands and subordinate claims which complete justice done to the parties shall require. The decree in equity can thus easily shape itself to the circumstances of each case, even when the final relief is only an award of money, or of possession of land or of chattels.' The instances to which the concurrent jurisdiction extends may therefore be described, in a general way, as follows: First, those cases where the primary right, interest, or estate is of course legal, and where the law gives its remedy, but from the superior flexibility of the equitable procedure, and the greater power of the equitable decrees to do complete justice, the relief conferred by equity, although of the same kind as that given by the law, is more efiicient and complete; and secondly, those comparatively few cases where, from the arbitrary, rigid, and technical nature of its rules of procedure, the law can give no remedy at all.' In further treatment of this subject, I shall state the gen- eral doctrines upon which the jurisdiction rests, and which regulate all possible instances of its exercise, and shall then enumerate and explain the important and well-set- tled cases which come within its scope. § 176. General Principle — No Concurrent Jurisdiction. — The principle may be stated in its broadest generality, ' [For example, although an admin- that the pleadings were broad enongh istrator cannot, to the detriment of to allow its reception, such judgment creditors, distributees, or legatees, may be given upon the facts as the discharge a, debt due the estate by a right of the matter required, although cancellation of his individual liability the defense of an equitable set-off has to the debtor of the estate, yet such not been specifically pleaded: State v. debtor is entitled to a credit by way of Donegan, 94 Mo. 66.] equitable set-off, where, by its allow- ' As illustrations of this second ance, justice will be done as between class: by the ancient rules of common- him and the administrator, without law procedure, at the time when the affecting the rights of any one except equity jurisdiction commenced, there those of the administrator as heir or could be no recovery at law on a lost devisee. And where evidence of such bond; and for the same reason, one equitable set-off has been received partnership cannot maintain an action without objection, being thus before at law against another firm, when the the court with the implied admission two firms have a couimoa member. 203 THE CONCURRENT JURISDICTION. § 176 that in cases where the primary right, interest, or estate to be maintained, protected, or redressed is a legal one, and a court of law can do as complete justice to the mat- ter in controversy, both with respect to the relief granted and to the modes of procedure by which such relief is conferred, as could be done by a court of equity, equity will not interfere even with those peculiar remedies which are administered by it alone, such as injunction, cancel- lation, and the like, much less with those remedies which are administered both by it and by the law, and which therefore belong to its concurrent jurisdiction.* This principle, however, must be understood as referring to the original condition of law and equity, at a period when equity was establishing its jurisdiction, and before the remedial powers of the law courts had been extended by statutes, or enlarged by the gradual adoption of equitable notions; for, as will be more fully shown hereafter, the present power of the law courts to grant complete relief does not, in general, deprive equity of a jurisdiction which it had formerly acquired, because the law courts then possessed no such power." But in. order that the general principle may apply, the suflBciency and completeness of the legal remedy must be certain; if it is doubtful, equity may take cognizance.' While the concurrent jurisdiction of equity thus depends upon the inadequacy of legal 'Southampton Dock Co. v. South- De Gex, J. & S. 1; Foley v. Hill, 1 ampton etc. Board, L. R. 11 Eq. 254; Phill. Ch. 399; 2 H. L. Gas. 28. Collins V. Clayton, 53 Ga. 649; Craft =Varet v. New York Ins. Co., 7 V. Dickens, 78 111. 131; Dart v. Bar- Paige, 560, 568; King v. Baldwin, 2 hour, 32 Mich. 267, 271; Ross v. Johns. Ch. 554; 17 Johns. 384; 8 Am. Buchanan, 13 111. 55, 58; Mason v. Dec. 415; Bromley v. Holland, 7 Ves. Piggott, 11 111. 85, 89; and the same 3, 19, per Lord Eldon; Atkinson v. doctrine applies under the reformed Leonard, 3 Brown Ch. 218, 224, per system of procedure: Kyle v. Frost, LordThurlow; Billon v. Hyde, 1 Atk.. 29 Ind. 382; Claussen v. Lafrenz, 4 126, per Lord Hardwioke; and see G. Greene, 224, 225-227. See also, post, § 209. sustaining the general principle as ^Rathbone v. Warren, 10 -Tohns. stated in the text. Grand Chute v. 587; King v. Baldwin, 2 Johns. Ch. Winegar, 15 Wall. 373; Insurance Co. 554; 17 Johns. 384; 8 Am..Dec. 415; V.Bailey, 13 Wall. 816; Hipp V. Babin, Bateman v. Willoe, 1 Schoales & L. 19 How. 271; South Eastern R'y v. 205, per Lord Redesdale; Southampton Brogden, 3 Macn. & G. 8; Phillips v. Dock Co. v. Southampton etc. Board, Phillips, 9 Hare, 471; Moxon v. Bright, L. R. 1 1 Eq. 254; South Eastern R'y L. R. 4 Ch. 292; Smith v. Leveaux, 2 v. Brogden, 3 Macn. & G. 8. I 177 EQUITY JURISPRUDENCE. 204 remedies for tte particular controversy, or for the class of cases of which the particular controversy is an instance, it is impossible to define, by any single formula, what is the adequacy or suflficiency of the remedy at law which shall prevent an exercise of the equitable jurisdiction. Instead of attempting to formulate such a comprehensive proposition, we must describe the various classes of cases in which this adequacy exists, and over which, as a con- sequence, the concurrent jurisdiction of equity does not extend. § 177. Illustrations. — In all cases where the plaintiff holds or claims to have a purely legal estate in land, and simply seeks to have his title adjudicated -ipon, or to re- cover possession, against an adverse claimant who also relies upon an alleged legal title, there being no equitable feature of fraud, mistake, or otherwise, calling for the ap- plication of equitable doctrines or the granting of peculiar equitable reliefs, the remedy at law is adequate, and the concurrent jurisdiction of equity does not exist. A suit in equity, under its concurrent jurisdiction, will not be maintained to take the place of the action of ejectment, and to try adverse claims and titles to land which are wholly legal, and to award the relief of a recovery of pos- session.' While this general doctrine is well established, still, in addition to the particular cases of disputed boun- daries, partition, and assignment of dower, over which the concurrent jurisdiction may extend,, and in which a ' Welbyv. Duke of Rutland, 6Browu 26 Conn. S36; Green v. Spring, 4.S Pari. C. 575 (vol. 2, p. 39, in Tomlins's 111. 280; Roberts v. Taliaferro, 7 e Aa illustrations, see the following Craddock, L. B. 2 Ch. Div. 140; Hoff- cases: Anderson v. Bk. of Br. Colum- man v. Foatill, L. £. 4 Ch. 673. bia, L. B. 2 Ch. Dir. 614; Casbiu v. I 195 EQUITY JURISPRUDENCE. 236 in the particular case to prevent or to limit its operation. This affirmative proposition is so generally true that the discussion of the subject mainly consists in stating and explaining the objections which have been established, and which alone can avail to hinder the exercise of the jurisdiction.' While thus made effective, the jurisdiction is also carefully guarded, so as not to infringe upon the defendant's rights. Its object is to promote justice by eliciting facts material to the plaintiff's contention; not to compel the defendant to disclose matters injurious to himself or prejudicial to his own case. While the plain- tiff is sufficiently aided in establishing his own side of the controversy, the defendant is also carefully guarded. In stating the matters which are affirmatively requisite to the maintenance of a suit for discovery, and the objec- tions which may negatively operate to defeat it, I shall divide the discussion into the following principal heads: 1. What judicial proceeding, in what courts, wiU be ■ Jeremy's Eq. Jur. 257-269. In discovery for the particular court for Wigram on Discovery, 21, 22, the gen- which it is wanted; 3. That the plain- eral principles are summed up in the tiflf is not entitled to a discovery, by following propositions; ** 1. It is the reason of some personal disability; 4. right, as a general rule, of the plaintiff That the plaintiff has no title to the in equity to examine the defendant character in which he sues; 5. That upon oath as to all matters of fact the value of the suit is beneath the which, being well pleaded in the bill, dignity of the court; 6. That the are material to the proof of the plain- plaintiff has no interest in the subject- tiff's case, and which the defendant matter, or title to the discovery re- does not, by his form of pleading, quired, or that an action will not lie admit. 2. Courts of equity, as a gen- for which it is wanted; 7. That the eral rule, oblige a defendant to pledge defendant is not answerable to the his oath to the truth of his defense; plaintiff, but that some other person with this qualification, the right of a has a right to call for the discovery; plaintiff in equity to the benefit of the 8. That the policy of the law exempts defendant's oath is limited to a dis- the defendant from the discovery; 9. covery of such material facts as relate That the defendant is not bound to to the plaintiff's case; and it does not discover his own title; 10. That the extend to the discovery of the manner discovery is not material in the suit; in which, or of the evidence by means 11. That the defendant is a mere wit- of which, the defendant's case is to be ness; 12. That the discovery called established, or to any discovery of the for would criminate the defendant." defendant's evidence." In Cooper's It should be observed that both these Eq. PI., 0. 3, sec. 3, p. 189, the ol)ieo- extracts relate to discovery as an in- tions which will prevent a discovery cident of ordinary suits for relief, as are thus summarized: " 1. That the well as to discovery proper; indeed, subject is not cognizable in any muni- some passages in each can only apply cipal court of justice; 2. That the to the former mode of compelling the court will not lend its aid to obtain a defendant to disclose facts. 237 THE ADXILIABY JURISDICTION. § 19& aided by " discovery " in equity; 2. The parties, their situation and relations with each other, in order that a discovery may be enforced; 3. The nature, subject-mat- ter, and object of the discovery itself, — that is, the matters and facts of which the plaintiff in the equity suit may in- quire and compel a discovery, and the defendant must answer and make discovery; 4. The defendant's answer in the discovery suit, when, how far, and by whom it may be used as evidence. § 196. I. What Judicial Proceedings, in What Courts, will be Aided by Discovery in Equity. — A suit for dis- covery will be maintained in aid of another cause depend- ing in a court of equity upon a cross-bill filed for that purpose by the defendant therein;* and especially in aid of proceedings in any common-law court of general juris- diction or other public tribunal of the same country which is or was by its original modes of procedure un- able to compel the needed disclosure.^ It has been said that the jurisdiction in aid of courts of law is confined to the superior courts, and does not extend to inferior courts whose jurisdiction is local or is limited as to the subject- matter.* It is well settled that a discovery will not be ' Millaapa v. Pfeiffer, 44 Miaa. 805; courts, and defining them aa those King of Spain V. Hullett, 1 Clark & F. whose jurisdiotion is local, al though 333; Prioleau v. United Statea, L. R. otherwise general, and those whose 2 Eq. C59; United Statea v. "Wagner, jurisdiction is limited in any manner, L. R. 2 Ch. 582; L. R. 3 Eq. 724; giving aa an illustration the ecclesias- Colombian Government v. Rothschild, tical courts. The proposition in this 1 Sim. 94; but see Heath V. Erie R. R., broad form may well be doubted. 9 Blatoh. 316, as to effect of recent Adams, in hia treatise, states the statutes. It seems, also, that a bill for limitation in a much different manner, discovery may sometimes lie in behalf He says that discovery may be eu- of the complaining party in another forced in aid of relief "aaked from proceeding pending in a court of the court of chancery, or from an- equity: Montague v. Dudman, 2 Ves. other public tribunal, in this country, Sr. 398, per Lord Hardwioke. which is itself unable to enforce discov- ' Jeremy's Eq. Jur. 268; March v. ery; but will not be enforced to aid a Davidson, 9 Paige, 580; Lane v. Steb- proceeding before arbitrators, or be- bins, 9 Paige, 622; Atlantic Ina. Co. fore an inferior court." He adds that V. Lunar, 1 Sand. Ch. 91; Kearney the reason why it is refused in aid of V. Jeffries, 48 Miss. 343; Buckner v. proceedings in the ecclesiastical courts Ferguson, 44 Miss. 677; Shotwell v. is because those courts have them- Smith, 20 N. J. Eq. 79. selves ample power to compel a dis- ' See Jeremy's Eq. Jur. 268, where closure of facts. I think it clear that the proposition is laid down in this the "inferior courts" mentioned by broad manner excepting all inferior Mr. Adams do not entirely correspond §197 EQUITY JURISPRUDENCE. 238 granted in aid of a controversy before arbitrators, where the submission to arbitration was the voluntary act of the parties;' but the reason of this rule fails, and a discovery will be compelled in aid of a compulsory reference to arbitrators or referees ordered by the court in an action.^ Discovery has some times been granted, both in England and in this country, in aid of a controversy pending in a tribunal of a foreign country.* § 197. The cause of action or the defense which can be aided by a suit for discovery must furthermore be wholly civil in its nature. The auxiliary jurisdiction of discovery will only be exercised on behalf of a contention, action, or defense entirely civil; and it will therefore withhold its aid from criminal prosecutions, actions penal in their nature, and controversies invoking moral turpi- tude, or arising from acts clearly immoral, even though with the description given in Jeremy. It is very certain that a discovery will not be granted in aid of suits pending in courts of justices of the peace, and such tribunals which are in every way interior. But in most of the states the courts of general original jurisdiction as to persons and subject-matter are limited as to local- ity, and to deny the " discovery " in aid of proceedings in these courts because they are "inferior" would virtually be to abolish discovery. ' Jeremy's Eq. Jur. 268; Street v. Rigby, 6 Ves. 821. The reason is, that such arbitrators are not a regular tri- bunal, but judges chosen by the par- ties outside of the ordinary course and mode of administering justice. ' British Empire Ship Co. v. Somes, 3 Kay & J. 433. ' Mitchell V. Smith, 1 Paige, 287; Daubigny v. Davallon, 2 Anstr. 467, 468; Earl of Derby v. Duke of Athol, 1 Ves. Sr. 202, 205; Bent v. Young, 9 Sim, 185; that a suit for discovery may be maintained in aid of a foreign court has certainly not become a uni- versal rule. Mr. Adams strongly doubts its propriety: Adams's Eq., marg. p. 19. The recent decision m Reiner v. Marquis of Salisbury, L. R. 2 Ch. Div. 378, supports this doubt. [In the very recent case of Dreyfus v. jperuvian Guano Company, L. R. 41 Ch. Div. 151, the question whether jurisdiction existed to entertain a bill for discovery only in aid of an action pending in a foreign tribunal was di- rectly passed upon, and the jurisdiction was expressly denied. In examining the question, Mr. Justice Kay, in his opinion, showed that the notion that such jurisdiction existed was directly traceable to a dictum of Lord Redesdale, contained in his own work on pleadings (Mitford's Eq. PI., 3ded., 151; 5th ed., p. 221), which purported to be based on the authority of the case of Crowe v. Del Rio, erroneously called Crowe v. Del Ris, decided in 1769, and referred to in the subsequent case of Bent v. Young, 9 Sim. 180, and., that such dictum was without support, and was founded on an erroneous construction of the case of Crowe v. Del Rio. In his opinion, Mr. Justice Kay expressly refers to the case of Mitchell v. Smith, 1 Paige, 287, and to the various text- writers who state that the jurisdiction exists, and shows conclusively that these authorities based their opinions on Lord Redesdale's dictum, for in cit- ing the case of Crowe v. Del Rio they have each copied his misspelling of the names of the defendants.] 239 THE AUXILIARY JURISDICTION. §197 brought for tlie purpose of recovering pecuniary compen- sation.* It was also a well-settled rule prior to the modern legislation, that equity would not interfere in aid of pro- ceedings, otherwise suitable to be aided, in other courts which, by their constitution or established modes of pro- cedure, were themselves able to give their suitors the needed relief by compelling the disclosure of facts or the production of documents.' As to the effect of the recent ' Black V. Black, 26 N. J. Eq. 431 (no discovery granted as to commis- sion of adultery); Currier v. Concord R. R., 48 N. H. 321; Glynn v. Hous- ton, 1 Keen, 329; Earl of SuflFolk v. Green, 1 Atk. 450; East India Co. v. Campbell, 1 Ves. Sr. 246; Kiiig v. Burr, 3 Mer. 693; Claridge v. Hoare, 14 Ves. 59, 65; Montague v. Dudman, 2 Ves. Sr. 398; Litchfield v. Bond, 6 Beav. 88; Short v. Mercier, 3 Macn. & G. 205; United States v. McRae, L. R. 3 Ch. 79; United States v. Mc- Rae, L. E. 4 Eq. 327; United States V. Saline Bank, 1 Pet. 100, 104; Ocean Ins. Co. V. Fields, 2 Story, 59; Stew- art V, Drasha, 4 McLean, 563; Union Bank v. Barker, 3 Barb. Ch. 358; Skinner v. Judson, 8 Conn. 528; 21 Am. Dee. 691; ITorthrup v. Hatch, 6 Conn. 361; Poindexter v. Davis, 6 Gratt. 4S1; as to discovery in aid of suits for slander and libel, see Bailey V. Dean, 5 Barb. 297; Thorpe v. Ma- cauley, 5 Madd. 229, 230; Shackell v. Macauley, 2 Sim. & St. 79; 2 Rusa. 550, note; 1 Bligh; N. S., 96, 133, 134; Wilmotv. Maocabe, 4 Sim. 263; South- all V. , 1 Youuge, 308; Hare on Discovery, 116, 117. * Jeremy's Eq. Jur. 269; Dunn v. Coates, 1 Atk. 288; Anonymous, 2 Ves. 451; Gelston v. Hoyt, 1 Johns. Ch. 547. In Leggett v. Postley, 2 Paige, 599, it was held that a discovery would not be granted merely to guard against anticipated perjury on the trial of a suit'at law. In Gelston v. Hoyt, 1 Johns. Ch. 547, Chancellor Kent lays down the doctrine in a very sweeping manner, but his statement of the rule is too broad, and must not be accepted without much limitation, as baa been shown by subsequent au- thorities. He says: "If a bill seeks discovery in aid of the jurisdiction of a court of law, it ought to appear that such aid is required. If a court of law can compel the discovery, a court of equity will not interfere. And the facta which depend upon the testi- mony of witnesses can be procured or proved at law, because courts of law can compel the attendance of wit- nesses. It is not denied in thia case but that every fact material to the defense at law can be proved by ordi- nary means at law, without resorting to the aid of this court Unless, therefore, the bill states affirmatively that the discovery is really wanted for the defense at law, and also shows that the discovery might be material to that defense, it does not appear to be reasonable and just that the suit at law should be delayed. " The same rule was stated in Seymour v. Sey- mour, 4 Johns. Ch. 411, and Leggett V. Postley, 2 Paige, 599, 601. But the rule as thus stated is confined to suits for discovery and relief, and does not apply to suits for discovery proper, i. e., the pure exercise of the auxiliary jurisdiction. When an action is pend- ing at law, and one of the parties seeks to withdraw the entire contro- versy from that tribunal into a court of equity, on the ground that a dis- covery is needed, and files a bill in equity praying for a discovery and for final relief, and an injunction upon the action at law, he must affirmatively allege in his bill that a discovery is necessary, and that the facts which he seeks to obtain, and which are ma- terial to his contention, cannot be proved by witnesses or by the ordi- nary testimony in the court of law. There ia no such requisite to the main- taining a suit for discovery proper without relief. The plaintiff in the suit must, of course, show that the matters which he seeks to obtain are ■mattrial to his contention, but not §197 EQUITY JUBISPKUDENCB. 240 statutes conferring powers upon the law courts, and even upon courts of equity, which they did not originally pos- sess, and thus obviating the necessity of a special resort to equity, there is, as has already been shown, a direct an- tagouism among the decided cases; some holding that the auxiliary equitable jurisdiction remains unaffected, others declaring it abridged or abrogated.' The action in aid of which the discovery is sought may be pending; but this is not necessary. It is sufficient if the plaintiff in the bill for a discovery shows that he has a right to main- tain or defend an action in another court, and that he is about to sue or is liable to be sued therein, although no action is yet commenced; a discovery may be needed to determine the proper parties, or to properly frame the allegations of his pleading.* But after a judgment or that the suit for a discovery is the only means of obtaining them. In other words, a suit for a discovery is proper, not only when the plaintiff therein is without other means of proof, but also in aid of his other evi- dence, or even to dispense with the necessity of other evidence. All the text- writers are agreed upon this view of the object and use of "discovery" proper: Hare on Discovery, 1, 110; Wigram on Discovery, 4, 5, 25j Story's Eq. PI., sec. 319, note 3. In Mitford's Eq. PI. (Jeremy's ed.) 307, it is said: "The plaintiff may re- quire this discovery, either because he cannot prove the facts, or in aid of proof, or to avoid expense." In Earl of Glengall v. Frazer, 2 Hare, 99, 105, Wigram, V. C, said: "The plaintiff is entitled to a discovery, not only in respect to facts which he cannot other- wise prove, but also as to facts the admission of which will relieve him from the necessity of adducing proof from other sources." The decisions are to the same effect: Montague v. Dudman, 2 Ves. Sr. 398; Breretou V. GamnI, 2 Atk. 241; Peck v. Ash- ley, 12 Met. 481; Stacy v. Pearson, 3 Rich. Eq. 152; Chambers v. War- ren, 13 111. 321; Williams v. Wann, 8 Blackf. 478. In March v. Davison, 9 Paige, 580, the rule laid down in att V. Postley, 2 Paige, 599, and Gelston v. Hoyt, 1 Johns. Ch. 547, so far as it applied to suits for a dis- covery alone, was expressly overruled. See also French v. First Nat. Bank, 7 Bsn. 488; Shotwell v. Smith, 20 N. J. Eq. 79. ' It has been held that the statutes permitting parties to be examined as witnesses, and providing summary modes for compelling the production of documents, have not affected the auxiliary equitable jurisdiction for discovery: Lovell v. Galloway, 17 Beav. 1; British Emp. Ship. Co. v. Somes, 3 Kay & J. 433; Cannon v. McNab, 48 Ala. 99; Shotwell v. Smith, 20 N. J. Eq. 79; [Haudley v. Heffin, 84 Ala. 600;] but, per contra, such statutes have abolished the jurisdic- tion: Riopelle v. Doellner, 26 Mich. 102; Heath v. Erie R. R., 9 Blatch. 316; also a statute allowing the de- fendant in a suit in equity to examine the plaintiff therein npon interroga- tories does not affect the jurisdiction to entertain a cross-bill by defendant for purpose of a discovery: Millsapa v. Pfeiffer, 44 Miss. 805; but, per contra, see Heath v. Erie R. R., 9 Blatch. 316. ^ Kearney v. Jeffries, 48 Miss. 343; Buckner v. Ferguson, 44 Miss. 677; Hoppock V. United etc R. R., 27 N. J. Eq. 286; Baxter v. Farmer, 7 Ired. Eq. 239; Turner v. Diokerson, 9 241 THE AUXILIAKY JUEISDICTION. § 198 verdict in the action at law, it is too late to bring a suit for discovery alone.' § 198. II. The Parties, their Situation and Relations to Each Other, in Order that a Discovery may be Granted — The Plaintiff. — Either the plaintiff or the defendant in the pending or anticipated action at law may file a bill for a discovery. Since by the rules of equity pleading, independent of modern statutes, only the complainant can compel a disclosure on oath from his adversary, if the defendant in an equity suit needs a discovery he must file a cross-bill, and thus become a plaintiff for that purpose.* As the first requisite, the plaintifif in the equity suit for a discovery must show that he has a title or interest in the subject-matter to which the proposed discovery relates, such an interest as he can maintain or defend in a pro- ceeding pending or to be brought in another tribunal, and must thus show that he is entitled to the discovery. A mere stranger is never allowed to maintain a suit for dis- covery concerning a subject-matter in which he has no interest enforceable by a judicial proceeding, or concern- K. J. Eq. 140; Moodalay v. Morton, v. Heming, 4 Beav. 235; Bate v. Bate, 1 Brown Ch. 469; 2 Dick. 652; Angell 7 Beav. 528; Milligau v. Mitchell, 6 V. Angell, 1 Sim. & St. 83; City of Sim. 186; Penfold v. Nunn, 5 Sim. London v. Levy, 8 Yes. 404. 405; United States v. Wagner, L. R. 'Green v. Massie, 21 Gratt. 356; 2 Ch. 582; Talmage v. Pell, 9 Paige, MoCoUum v. Prewitt, 37 Ala. 573; 410; White v. Buloid, 2 Paige, Duncan v. Lyon, 3 Johns. Ch. 355, 164. 402; 8 Am. Deo. 513; Cowman v. It should he remembered, in apply- Kingsland, 4 Edw. Oh. 627; Foltz v. ing these settled rules, that by the Pourie, 2 Desaus. Ecj. 40; Faulkner's present practice in England and in Adm'r v. Harwood, 6 Rand. 125. If many of our states, the defendant in equity has concurrent jurisdiction, a an equity suit no longer files a cross- bill may be filed for relief and dis- bill, and the defendant (or plaintiff) oovery as an incident thereto, and to in a suit at law no longer files a " bill enjoin the action at law even after of discovery "; in either case the de- judgment, fendant may set up any ground for ' Millsap V. Pfeiffer, 44 Miss. 805; affirmative relief in a ''counterclaim," Bogert V. Bogert, 2 Edw. Ch. 399. and may obtain a discovery by means To aid the defendant in obtaining a, of " interrogatories " submitted in the discovery, and the production of docu- action itself. The settled doctrines of ments upon his cross-bill, the court equity apply to this new mode of pro- may stay the proceedings of the plain- cedure: Saunders v. Jones, L. K. 7 tiff on his original bill until he has Ch. Div. 435, 443, per Bacon, V. C; fully answered the cross-bill, made Cashin v. Craddock, L. R. 2 Ch. Div. complete discovery, or produced the 140; Anderson v. Bank of British neededdocuments: Princess of Wales v. Columbia, L. R. 2 Ch. Div. 644; Hoff- Lord Liverpool, 1 Swanst. 114; Taylor man v. Postill, L. R. 4 Ch. 673. 1 Eq. Jue.— 16 § 198 EQUITY JUKISPEUDENCB. 242 ing the title or estate of a third person.' In addition to exhibiting a title or interest in the subject-matter, the allegations of the plaintiff's bill must show that a dis- covery would not be useless. The plaintiff in the dis- covery suit must show by his averments, at least in a prima facie manner, that if he is the plaintiff in the ac- tion at law he has a good cause of action, and if he is the defendant, he has a good defense thereto. While it is not necessary that his right of action or of defense at law should be beyond dispute, still, if the bill should negative the existence of any such right, the court of equity would of course refuse a discovery which would then be useless.' If the result of the controversy at law is doubtful, even when the defendant in the suit for a discovery has de- nied the plaintiff's title, or has set up matter which if true would operate as a complete defense, the court of equity will, in general, grant the discovery, and leave the issue to be tried and finally determined by the court of law.' ' Jeremy's Eq. Jur. 258; Baxter v. ends of jnatice, and the following Farmer, 7 Xrei. Eq. 239; Turner T. cases are examples both of the rule Dickerson, 9 N. J. Eq. 140; Carter v. and its application: Brown v. Wales, Jordan, 15 Ga. 76; Jones v. Bradshaw, L. R. 15 Eq. 142; Girdelatone v. North 16 Gratt. 355; Continental Life Ins. British etc. Co., L. R. 11 Eq. 197; Co. V. Webb, 64 Ala. 688; Brown v. Comm'rs etc. v. Glaase, L. R. 15 Eq. Dudbridge, 2 Brown Ch. 321, 322j 302; Kettlewell v. Barstow, L. R. 7 Brownsword v. Edwards, 2 Ves. Sr. Oh. 686; Slack v. Black, 109 Maas. 243, 247. _ 496; Haskell v. Haskell, 3 Cush. 540; On this ground the heir at law can- Sackvill v. Ayleworth, 1 Vern. 105; not, during the life of his ancestor, Dursley v. Fitzhardinge, 6 Ves. 260; maintain a suit for discovery concern- Allan T. Allan, 15 Ves. 131; Attorney- ing the estate, since he has no present General v. Duplessis, Parker, 144, interest in it: Buden v. Dore, 2 Ves. 155-^164; 5 Brown Pari. C. 91; Gleggv. 445; and the heir at law cannot com- Legh, 4 Madd. 193, 208; Wigram on pel a production of deeds relating to Discovery, 21, 22; Jeremy's Eq. Jur. the estate in possession of the devisee, 262, 263. unless he is an heir in tail; but the 'Jeremy's Eq. Jur. 261; Cardale v. devisee is entitled to such production Watkins, 5 Madd. 18; Wallia v. Duke from the heir at law: Shaftesbury v. of Portland, 3 Ves. 494; Lord Ken- Arrowsmith, 4 Ves. 71; Gosper's Eq. singston v. Mansell, 13 Ves. 240; PI., c. 1, sec. 4, pp. 58, 59; o. 3, sec. Angell v. Draper, 1 Vern. 399; Ma- 3, pp. 197, 198. As a general rule, cauley v. Shackell, 1 Bligh, N. S., 120; the plaintiff is confined to facts Thomas v. Tyler, 3 Younge & C. 255; connected with or relating to his Metier v. Metier, 19 N. J. Eq. 457; own title or estate, and cannot Slack v. Black, 109 Mass. 496. investigate the title or estate of the ' March v. Davison, 9 Paige, 580; defendant in the discovery suit. Lane v. Stebbins, 9 Paige, 622; Deas This rule, however, has sometimes v. Harvie, 2 Barb. Ch. 448; Bailey v. been relaxed when necessary for the Dean, 5 Barb. 297; Peck v. Ashley, 248 THE AUXILIARY JURISDICTION. §199 § 199. The Defendant. — I proceed to consider, in the next place, the requisites concerning the defendant in a suit for a discovery. No discovery can be compelled from an incompetent defendant; as, for example, an infant, or a lunatic without committee.' The general rule is well set- tled, and admits of only one or two special exceptions, which are necessary to prevent a failure of justice, that no person can properly be made a defendant in the suit for a discovery, or compelled as such to disclose facts within his knowledge, unless he has an interest in the subject-matter of the controversy in aid of which the dis- covery is asked.* Thus, as an illustration of this rule, arbitrators cannot, in general, be joined as defendants to a bill of discovery and compelled to disclose the grounds of their award,' but if they are charged with actual mis- conduct, fraud, or corruption, they are obliged to answer with respect to such allegations.* As another illustration 12 Met. 478; Thomas v. Tyler, 3 Younge & C. 255, 261, 262; Hare ou Discovery, 43-46. A suit for dis- covery alone may thus sometimes be maintained where a bill for discovery and reli^ would be overruled; but not after a judgment or verdict in an ac- tion at law: McCoUum v. Prewitt, 37 Ala. 573; Treadwell v. Brown, 44 N. H. 551; Primmer v. Patten, 32 111. 528; Chichester v. Marquis of Donegal, L. R. 4 Ch. 416; KettleweU v. Bar- stow, L. R. 7 Ch. 686; Thompson v. Dunn, L. R. 5 Ch. 573; Smith v. Duke of Beaufort, 1 Phill. Ch. 209. ' Or the attorney-general, when sued on behalf of the crown: Mickle- thwaite v. Atkinson, 1 Coll. C. C. 173; Adams's Eq. 8. The joinder, as de- fendants in the same suit for a discov- ery, of defendants in separate actions at law is irregular: Broadbentv, State, 7 Md. 416; McDougald v. Maddox, 17 Ga. 52. ' Jeremy's Eq. Jur. 259; Brown- sword V, Edwards, 2 Ves. Sr. 243; Neuman v. Godfrey, 2 Brown Ch. 332; Plummer v. May, 1 Ves. Sr. 426; Dineley v. Dineley, 2 Atk. 394; Finch V. Finch, 2 Ves. Sr. 491; Fenton V. Hughes, 7 Ves. 287. Thus it has been held that in a suit by his cred- itors against a bankrupt and his assignees, he cannot be compelled to make discovery because he has parted with his interest: De Golls v. Ward, 3 P. Wms. 311, note; Griffin v. Archer, 2 Anstr. 478; 2 Ves. 643; Whitworth V. Davis, 1 Ves. & B. 545. The excep- tions to this rule belong much more frequently to suits for relief, in which discovery is asked as an incident, than to suits for a discovery proper without relief. It was decided in In re Bar- ned's Bank, L. R. 2 Ch. 350, that an official "liquidator," in winding up corporations, under the statute, is in all respects in the same position as any other defendant, and is not deemed an officer of the court; i. e., if joined as a defendant in a suit against the corporation, all the rules as to discov- ery, production of documents, privi- lege, etc., apply to him. » Steward v. East India Co., 2 Vern. 380; Anonymous, 3 Atk. 644; Tittenson v. Peat, 3 Atk. 529. ♦ Jeremy's Eq. Jur. 260; Ives t. Medcalf, 1 Atk. 63; Lingood v. Croncher, 2 Atk. 395; Lonsdale v. Littledale, 2 Ves. 451; Dummer v. Corp'n of Chippenham, 14 Ves. 252; Chicot V. Lequesne, 2 Ves. Sr. 315, 418; Lindsley v. James, 3 Cold. 477. § 199 EQUITY JURiaPKUD'ENCK. 244 of the rule, mere tntnesses cannot be joined as defend- ants and obliged to answer; nor can a mere agent be made a party for purpose of obtaining a discovery from him.' This application of the rule is not without ex- ception. Where an agent, as, for example, an attorney, has assisted nis principal in the accomplishment of actual fraud, he may be made a co-defendant and' compelled to disclose the facts.* The most important exception is in case of suits against corporations. Where it is desired to obtain discovery from a corporation in a bill filed against it for that purpose, it is firmly settled by the authority of decided cases that a secretary or some other officer may and must be joined as a co-defendant, from whom the discovery may be obtained by his answer under oath. This exception is based wholly upon considerations of expediency, since a corporation cannot make an answer on oath, nor be liable for perjury." For the same reason, the rule has been extended by modern cases to suits by and cross-bills against nations or states which are not monarchical, such as the United States of America and other republics.* ' BalliQ V. Ferst, 55 Ga. 546; and Ch. 582; L. R. 3 Eq. 724; Priolean v. see cases cited in the three preceding United States and Andrew Johnson, L. notes. R. 2 Eq. 659. See also Republic of 2 Ballin v. Ferst, 55 Ga. 546: Bowles Costa Eica v. Erlanger, L. R. 1 Ch. V. Stewart, 1 Sohoales & L. 227; Ben- Div. 171; L. R. 19 Eq. 33; Republic of net V, Vade, 2 Atk. 324; Fenwick v. Peru v. Wegnelin, L. R. 20 Eq. 140. Reed, 1 Mer, 114; Plummer v. May, 1 In King of Spain v. HuUett, 1 Clark Ves. Sr. 426; Brace v. Harrington, 2 & F. 333, the house of lords held that Atk. 235; Dumraer v. Corp'n of Chip- when a foreign, monarch sues in his penham, 14 Ves, 252, 254; Jereiijj''3 own name, he thereby submits hirn- Eq. JuF. 260} Gartland v. Nunn, 11 self to the jurisdiction and ordinary Ark. 721. practice of the court; and if the de- ' Jeremy's Eq. Jur. 260; Wych v. fendant flies a cross-bill for a disoov- Meal, 3 P. Wms. 311, 312, per Tal- ery, the king must make his answer bot, L. C, (the leading case); French and swear to it personally, as any V. First Nat. Bk., 7 Ben. 488; Fenton other plaintiff would be required to V. Hughes, 7 Vea. 288-291, per Elden, do. This and other cases also hold L. C; Dumrner v. Corp'n of Chip- that ■when a foreign monarch sues, the penham, 14 Ves. 252; Glaascott v. court regards him as suing personally. Copper Min. Co., 11 Sim. 805; Ex and not in any representative or offi- parte The Contract Co., L. R. 2 Ch. oial character. It is otherwise when 350; Gooch's Case, L. R. 7 Ch. 207; a nation or state sues in its corporate Ayers v. Wright, 8 Ired. Eq. 229; capacity. See also King of the Sici- Yates V. Monroe, 13 111, 212; Many v. lies v. Willcox, 1 Sim., N. S., 301; Oo. Beekman Iron Co., 9 Paige, 188. lombian Government v. Rothschild, 1 ♦ United States v. Wagner, L. R. 2 Sim. 94. 245 THB AUXILIARY JUKISDIOTION. § 200 § 200. A Bona JFide Purchaser.— Where tlie defendant is a bona fide purchaser of the property which is the sub- ject-matter of the controversy, or which Ms adversary is endeavoring to reach, for a valuable consideration actually paid, and without notice of the plaintiff's claim, he is pro- tected, not only from relief concerning the property in a suit brought for that purpose, but he is also freed from the duty of making discovery, which might otherwise have rested upon him, of any facts and circumstances tending to aid the plaintiff in his contention in a suit of discovery alone. To constitute him a purchaser in good faith for a valuable consideration, so as to come within the opera- tion of this equitable doctrine, he must have actually paid the purchase price which forms the valuable considera- tion.' The protection of bona fide purchasers for a valu- able consideration without notice of opposing claims is a prineiple running through the entire equity jurisprudence, and is one of its most righteous and efficient -doctrines in promoting justice. Although the general riules .are well settled that as among mere equities to the same property, the one which is prior in time is also prior in right, and as between two holders of different equities to the same property, the one who has also obtained a legal title has thereby acquired the precedence, and that a purchaser without any show or semblance of title cannot claim pro- tection as a bona fide purchaser from the equitable prin- '.Jeremy'a Eq. Jur. 263, 264; Stan- The aystem of registering convey- hope V. Earl Verney, 2 Eden, 81; ances, mortgages, judgments, and Maundrell v.. Maundrell, 10 Ves. 246, other encumbrances, universal in ,tho 259, 260, ,270; Jones v. Powles, 5 Mj'lne United fcjtates, 'has rendered tb« equi- & K. 581, 596-598; McNeil v. Magee, table doctrines concerning "notice," 5 Mason, :26.9, 270; Wood v. Maiin, "priorities," and "bona Jide puj- 1 .Sum. 5Q6j Flagg v. Mann, 2 Sam. chasers " of less frequent application 487; Willoughby v. Willoughby, 1 in this country "than in England; but Tenm Rejp. 7l)3, J67., per Lord Hard- the same .doctrines form a part of oar wicke. ,See the whole subject .of .Sumo equity jurisprudence, and are con- fide (pu'iohasers, notice, and priorities stantly invoked and applied by the discussed in the notes ito Bassebt 'V. courts whenever cirounistances require Noswotthy, Cas. t. Finch, 102, and Lo or permit. [As to the necessity of pay- Neve V. Le Neve, Amb. 436, .3 Atk. ment of the purchase price, in order to 646, 1 Ves. Sir. 64, in 2 [Lead. .Cas. Eq., become a bonajide purchaser, see past, 4th Am. ed., i, 4-106, 109, in-aa?. §§ 750, 751.] § 200 EQUITY JURISPEUDENCB. 246 ciple above mentioned,' still it is not absolutely essential that a purchaser in good faith for a valuable considera- tion, and without notice, in order to come within the mean- ing and operation of the doctrine, and to be protected against discovery in aid of his adversary, or against relief, should always be a purchaser of a legal title. The prin- ciple upon which equity proceeds is, that " if a defendant has in conscience a right equal to that claimed by the person filing a bill against him, although he is not clothed with a perfect legal title, this circumstance, in his position as defendant, renders it improper for a court of equity to compel him to make any discovery which may hazard his title.'" It is also settled, as a corollary of the principle, that a purchaser of property with notice from a bona fide purchaser for a valuable consideration, and without notice, acquires the rights of and is entitled to the same protection as his grantor.' These rules of protection to the innocent purchaser are, of course, recognized and acted upon by the ' Payne v. Compton, 2 Younge & C. Jackson v. MoChesney, 7 Cow. 360; 457; Fitzsimmons v. Ogden, 7 Cranoh, 17 Am. Deo. 521; and see notes to 2; Vattier v. Hinde, 7 Pet. 252, 271; Bassett v. Nosworthy, and Le Neve v. Boone v. Chiles, 10 Pet. 177; and see Le Neve, 2 Lead. Cas. Eq. 1, 109. In notes to Bassett v. Nosworthy, and fact, the rights once acquired by the Le Neve v. Leneve, 2 Lead. Caa. Eq. bona fide purchaser for a valuable con- 1-108, 109-227. aideration, and without notice, are "Mitford'a Eq. PI. (Jeremy's ed.) transferred to hia heirs, devisees, and 199. The substance of this doctrine is, other purely voluntary assignees. It that courts of equity will not take has been held in England that a judg- any step against such an innocent pur- ment creditor, who has taken the land chaser, but will suffer him to take of hia debtor by an elegit ia not to be every advantage which the law gives regarded as a honafide purchaser with- him; for there is nothing which can, in the meaning of the rule; and there- in the language of equity, attach itself fore such a judgment creditor, taking upon or work on his conscience, in the land of his debtor by an elegit, favor of an adverse claimant: Story's which was subject to a prior equitable Eq. Jur.,8ec. 1503. See, on this general mortgage, of which he had no notice subject, Payne v. Compton, 2 Younge at the time of executing the elegit, was & C. 457, 461; Bechinall v. Arnold, decreed to hold the land only in sub- 1 Vern. 355; Dnrsley v. Fitzhardinge, ordination to the lien of the equitable 6 Ves. 2B3; Jerrard v. Saunders, 2 mortgage: Whitworth v. Gaugain, 3 Vej. 458, per Loughborough, L. C; Hare, 416. The same has been held Senhouse v. Earl, 2 Ves. Sr. 450; in this country with respect to a judg- Wortley v. Birkhead, 2 Ves. 573, 574; ment creditor who obtams title to hie Langton v. Horton, 1 Hare, 547, 563; debtor's land by levy thereon under Skeeles v. Shearly, 8 Sim. 153; 3 an execution: Hart v. Farmers' and Mylne &C. 112; Doe ex dem. Coleman Mech. Bank, 33 Vt. 252; Abell v. V. Britain, 2 Barn. & Aid. 93; Wood Howe, 43 Vt. 403; but see Danbury v. v. Mann, 1 Sum. 507-509. Robinson, 14 N. J. Eq. 213; 82 Am. » Varick v. Briggs, 6 Paige, 323, 329; Dee. 244. 247 THE AUXILIARY JUEISDICTION. § 200 courts in administering relief; and although they can no longer, in many states, he applied in suits for a discovery to excuse him from answering, they should still, on prin- ciple, furnish the proper limitations to the examination of such a purchaser as a witness by his adversary, when he is a party to a litigation involving his title, where such examination has taken the place of the equitable suit for a discovery." ' [In Ind, Coope, & Co. v. Emmer- son, L. R. 12 App. C. 300, the effect of the judicature act of 1873 upon the doctrine that a hmafide purchaser was protected in a suit for discovery alone from making discovery was dis- cussed. This was a suit, brought in the Chancery Division of the High Court of Justice, by the holder of the legal title to lands, to recover their posses- sion, and in it the plaintiff claimed the discovery of certain papers and docu- ments which.she alleged were material to her title. To the prayer for discov- ery, the defendants set up that they were bona fide purchasers. It will be noticed that the plaintiff's caise, so far as it sought to recover the possession of the land, was one that, prior to the judi- cature act, would have been enforced in a legal action of ejectment, and that the discovery would have been ob- tained in a bill brought for that pur- pose, to which the defense of bona fide purchaser would have been a complete answer. The defendants contended that the same protection was afforded them in the present action, and that the consolidation of the legal and equi- table actions in the one action author- ized by the judicature act had made no change in the pre-existing equitable rules as to discovery in oases of bona fide purchaser. In disposing of this contention. Lord Chancellor Selborne said: "The first observation to be made is, that the court of chancery, when it allowed a plea of purchase for valuable consideration without notice to a bill for discovery only, allowed it, not to particular discovery (as, e. g., of cer- tain deeds and documents), but to the whole, not on the ground that certain things ought not to be inquired into, but because the court ought not, as against such a purchaser, to give any assistance whatever to a plaintiff suing upon a legal title in another jurisdic- tion. And upon the same ground, a like plea would have been allowed to a suit asking for more than discovery (e. g., for an injunction to restrain the defendent at law from setting up out- standing terms), when the object of the suit was still to obtain from the court of chancery assistance to the suit of the plaintiff suing upon a legal title in another jurisdiction. The defense was, in effect, 'no equity,' which is a different thing from an ' equitable de- fense.' It was thought inequitable, generally, that a man should defeat a legal title by keeping back facts in his own knowledge, or by setting up out- standing terms; it was thought not inequitable that a purchaser for value without notice should use any such tabula in nau/ragio as best he could. But in the present case there is no suit in any other jurisdiction; the High Court of Justice is asked, and is competently asked, to exercise a prin- cipal and not an auxiliary jurisdiction, and to give effect to the legal title which the plaintiff alleges to be in her- self. If a like suit had formerly been brought in the court of chancery it would have been demurrable, not because there was an equitable defense, but because the title was legal, and the plaintiff stated no equity. To abolish that division of jurisdictions was the very object of the judicature act, .... In the class of cases referred to, the separation and division of jurisdictions between the courts of equity and the courts of common law was the real and only ground on which such a defense was admitted. As against an innocent purchaser sued at law, the court of chancery (having no jurisdiction itself to try the title) found no equity re- quiring it to give assistance to a pro- ceeding brought elsewhere for that §201 EQUITY JURISPKUDENCE. 248 § 201. III. The Nature, Subject-matter, and Objects ol the Discovery Itself; that is, the Matters concerning Which the Plaintiff may Inquire and Compel a Discovery, and the Defendant must Answer and Make Discovery. — The fundamental rule on this subject is, that the plaintiff's right to a discovery does not extend to all facts which may be material to the issue, but is confined to facts which are material to his own title or cause of action; it does not enable him to pry into the defendant's case, or' find out the evidence by which that case will be supported. The plaintiff is entitled to a disclosure of the defendant's title, and to know what his defense is, but not to a state- ment of the evidence upon which the defendant relies to establish it.' This rule, however, must be understopd purpose. But it is impossible, without departing from that ground, to make the same defense available against dis- covery (otherwise proper) in a suit in which it is not available against the relief, and in which the High Court has proper jurisdiction to try, and must try, and determine the question of title, and accordingly we find that there is no instance of any suit com- petently brought in the court of chan- cery for relief, as well as discovery in which the defense of purchaser for value without notice has been held available against discovery incident to the relief, and not against the relief itself also. That defense was never admitted as an objection to particular discovery; it went to all or none. And in those cases in which the court of chancery had concurrent jurisdiction with the common-law courts upon legal titles, it was not available against either discovery or relief." It was accordingly held, affirming the judg- ment of the Court of Appeals (L. B. 33 ■Ch. Div. 323), that the defendants were obliged to make discovery. That a fiimilar conclusion would be reached in all those American states where there has been a union of legal and equitable jurisdictions would seem necessarily to follow.] 'Jeremy's Eq. Jur. 262, 263; Wi- gram on Discovery, 21, 22; see quotation ante, § 195, note; Hop- pookv. United etc. R. R., 27 N. J. Eq. 286; French v. Rainey, 2 Tenn. Ch. ,641; Richardson v. Mattieon, 5 Biss. 31; Kearney v. Jeffries, 48 Miss. 343; Heath v. Erie R. R., 9 Blateh. 316; Sackvill v. Ayleworth, 1 Vern. 105; Dursley v. Fitzhardinge, 6 Ves. 260; Allan v. Allan, 15 Ves. 131; Jan- son V. Solarte, 2 Younge 4 0. 127; At- torney-General V. Corp'n of London, 2 Macn. & G. 247; Llewellyn v. Badely, I Hare, 527; Lowndes v. IJavies, 6 Sim. 468; Grlasscott v. Copper Miners' Co., II 8im. 305; Bellwood v. Wetherell, 1 Younge &C. 211-218; CuUisouv. Bos- som, 1 Md. Ch. 95; Phillips v. Prevost, 4 Johns. Ch. 205; Cuyler v. Bogert, 3 Paige. 186; Bank of Uticav. Mersereau, 7 Paige, 517; King v. Ray, 11 Paige, 235; Brooks v. By am, 1 Story, 296- 301; Langdonv. Goddard, SStorj-, 13; Haskell v. Haskell, 3 Gush. 542; Bethell v. Casson, 1 Hem. & il. 806. [See also Smythe v. N. 0. C. etc. Co., 34 Fed. Rep. 826; Roberts T. Oppen- heim, L. R. 20 Ch. Div. 724; Lyell v. Kennedy, L. R. 8 App. C. 217; reversing 20 Ch. Div. 484; Benton V. Low,!,. R. 16 Ch. Div. 93; Bidder V. Bridges, L. R. 29 Ch. Div. 84. And a plea that the documents which the bill seeks to discover do not relate to the plaintiff's case must be taken as true, unless the court can see from the nature of the case or of the documents that the party has misunderstood the effectof the documents: Roberts v. Op- penheim, L. R. 26 Ch. Div. 484.] The 249 THE AUXILIARY JUEISDICTION. §201 with tlie limitation that the plaintiff may compel the dis- covery of all facts material to his own cause of action, even though the defendant's evidence may thereby be in- cidentally disclosed, as, for example, where the establish- ment of the plaintiff's title or cause of action involves th« proof of fraud; and the defendant, besides discovering what the ease is on which he relies, can be compelled to disclose all facts which would, by way of evidence, tend to impmch or destroy it, unless otherwise privi- leged, since such facts are material evidence for his ad- versary, but is not bound to disclose any evidence by which he intends to or may support his case,, for such evi- dence cannot be material to the plaintiff.' As a dii'eeit following cases also illustrate the rule, in some of which the discoyery was held to be material to plaintiflfs case, amd proper; in others not to be proper, because relating solely to de- fendant's defense: Owen v. Wynn, L. R. 9 Oh. T>W. 29; Minetv. Momgaiii, L. R. 8 Ch. 33], 363; L. R. 11 Eq. 234; In re Leigh's Bstaite, L. R. 6 C?h. Div. ^56; Great Western etc. Co. v. Tucker, L. R. 9 Ch. 376; Kebtlewell y. Bar- stow, L. R. 7 Ch. '686 (deieadan,t was excused from producing a pedigree whicih he .swore positiirely related solely to his own tiitle, and showed nothing concerning the plaintiff's title by descent, which was in issue); Thompson v. Dunn, L. R. 5 Oh. 573; Ghiehester v. Marquis of Donegal, L. R. 5 Ch. 497: Wilson v. Thornbury, L. R. 17 Eq. 517; Murray t. Clayton, L. R. 15 Eq. 115 (in a suit for in- fringement on a patent riglit, after a decree in plaintiff's favor, establishing plaintiff'.s right, and enjoining the de- fendant, plaintiff is entitled to a dis- covery of all the patented articles sold by defenidaint, a/nd of the names amd addresses iof their purohasers); Brown V. Wales, L. R. 15 JEq. 142 (in a con- troversy concerning title to lauds em- braced in. a certain convey ance, matters identifying the parcels of land in dis- putB are ipaitt of plaiinjtiff's itttle, as well as matters Bhowmg itbe idmoluiion iof the esta:te); Wierw. Tucker, L. R. 14 Eq. 25; (Jirdleatone v. Honth Beit. 'eito. InB.iOo., L. R. 11 Eq. a!97;-BoYin v. ..Smith, L. E. 2 Eq. 458; Dixon v- Prater, L. R. 2 Eq. 497; Saunders v. Jones, 7 Ch. Div. 435, 443. ' Stain ton v, Ohadwick, 3 Maon. & G. .575; Young v. Colt, 2 Blatch. 373. In Attorney-General v. Corporation of London, 2 Maon. & G. 247, 256, 257, 13 Baav. 313, Lord iCoittembam states in a very clear and full manner the exact extent and limits lOf .the .plain- tiff's right of discovery with respect to matter relating to ths def-endaiit^s defense and title, .and his opinion has been regarded accurate. Thfi follow- ing more recent decieions will further illustrate this rule: In Hoffoiain v. Postill, L. R. 4 Ch. .673, it was held that although the plaintiff caunot have a, discovery of the evidence in support of defendant's case, yet when the defendant files interrogatories, he may ask any questions tending to de- feat the plaintiff'^ cause of action. While this decision does not claim that discovery by defendant is governed by any different principle, it plainly shows that more freedom is allowed to the defendant than to the plaintiff .in investigating his adversary's ease. To exactly the same effect is the .decision in Commissioner etc. v. Glasae, L. R. 15 Eq. .302. In Republic of Costa Rica V. Elangea-, L. R. 19 Eq. 33, 44, 45, per Malius, V. C, while it was ad- mitted thart, in general, 'matter^s simply injurious -to ddfendautt's caBe.could not he discovered, and that a mortgagee or bona fide purchaser for value, in a suit against h'imi., concerning the land, cannot be couipelled to disclose the § 202 EQUITY JUKISPKUDENCE. 250 inference of this general rule, all the facts which the plaintiff seeks to discover must be material; the defendant is never compelled to disclose matters which are immate- rial as evidence to support the plaintiff's contention; he is never obliged to answer vexatious or impertinent ques- tions, asked from curiosity or malice.* § 202. As a general proposition, the discovery, in order to be granted, must be in aid of some object which a court of equity can regard with approval, or at least without disapproval, — some object which is not opposed to good morals or to the principles of public policy embodied in the law.^ This doctrine is the foundation of several par- ticular rules regulating the practice of discovery. The first of these particular applications of the doctrine is, that a defendant in the discovery suit, or in a suit for relief as well as discovery, is never compelled to disclose facts which would tend to criminate himself, or to expose him to criminal punishment or prosecution, or to pains, title deeds of the estate under which son v. Solarte, 2 Younge & 0. 127; he holds, this general rule is subject to Montague v. Dudman, 2 Ves. Sr. 399; an exception; viz., when a prima facie Gelston v. Hoyt, 1 Johns. Ch. 548, case is stated impeaching the validity 519; Lindsley v. James, 3 Cold. 477; of these very deeds, on the ground of Wier v. Tucker, L. R. 14 Eq. 25; fraud, or some other ground which Minet v. Morgan, L. B. 8 Ch. 361; would establish the plaintiff's right. Republic of Costa Rica v. Erlanger, their discovery by the defendant will L. R. 19 Eq. 33; as, for example, in be compelled; citing, as illustrations of suits against vendors or mauufactur- this doctrine, Beckford v. Wildman, 16 ers for infringing upon plaintiff's trade- Ves. 438; Balch v. Syines, Turn. & R. mark, the names of defendant's cus- 87; Bassfordv. Blakesley, 6 Beav. 131, tomers who have bought the article 133; Kennedy v. Green, 6 Sim. 6 (case need not be disclosed; Carver v. Pinto of abonafide purchaser, etc.); Latimer Leite, L. R. 7 Ch. 90; Moore v. Cra- V. Neate, 11 Bligh, 112; 4 Clark & F. ven, L. R. 7 Ch. 94, note; butsee Mur- 570; Follettv. Jefferyes, 1 Sim., N. S., ray v. Clayton, L. R. 15 Eq. 115; and 1; Freeman v. Butler, 33 Beav. 289j see Jeremy's Eq. Jur. 265. This Crisp V. Platel, 8 Beav, 62. And on special rule should not be understood the rule that defendant must disclose as requiring that the discovery itself matters aiding the plaintiff's cause of must be material in the sense that the action, even though they may also plaintiff has no other way of obtaining affect his own title or defense, see the evidence; it has been shown that Brown v. Wales, L. R. 15 Eq. 142; a suit for discovery may be maintained Smith V. Duke of Beaufort, 1 Hare, solely on the ground of convenience, 507; Earp v. Lloyd, 3 Kay & J. 549; and need not be rested on any neces- Lowndes v. Davies, 6 Sim. 468. [See sity. For further illustrations of the also Edison Electric L. Co. v. United text, see cases cited in last note. States Electric L. Co., 45 Fed. Rep. ' Jeremy's Eq. Jur. 268; King v, 59.] Burr, 3 Mer. 693; Cousins v. Smith, ■ Finch v. Finch, 2 Vea. Sr. 492; 13 Ves. 542; Rejah v. East India Co., Richards v. Jackson, 18 Ves. 472; Jan- 35 Eng. L. & Eq. 283. 251 THE AUXILIARY JURISDICTION. §202 penalties, fines, or forfeitures. He may refuse an answer, not only to the main, directly criminating facts, but to every incidental fact which might form a link in the chain of evidence establishing his liability to punishment, penalty, or forfeiture.' This restriction upon the right to a discovery is subject to several limitations and excep- tions necessary in order to promote the ends of justice. A defendant is always compelled to disclose his frauds and fraudulent practices, when such evidence is material to the plaintiff's case, even though the fraud might be so great as to expose the defendant to a prosecution for conspiracy, unless perhaps the indictment was actually pending.* And a party may have so contracted that he has thereby bound himself to make discovery, although it might subject him to pecuniary penalties.' Some other grounds of limitation or exception are stated in the note.' » Jeremy's Eq. Jur. 265-268; Cur- rier V. Concord etc. R. R., 48 N. H. 321; Black v. Black, 26 N. J. Eq. 431; East India Co. v. Campbell, 1 Yes. Sr. 246; Claridge v. Hoare, 14 Vea. 59, 65; Fisher v. Owen, L. R. 8 Ch. Div. 646; Christie v. Christie, L. R. 8 Ch. 499; Lichfield v. Bond, 6 Beav. 88; Short V. Mercier, 3 Macn. & G. 205; Glynn v. Houston, 1 Keen, 329; United States v. Saline Bank, 1 Pet. 100; Horsburg v. Baker, 1 Pet. 232- 236; Greenleaf v. Queen, 1 Pet. 138; Ocean Ins. Co. v. Fields, 2 Story, 59; Stewart v. Drasha, 4 McLean, 563; Union Bank v. Barker, 3 Barb. Ch. 358; Northrup v. Hatch, 6 Conn. 361; Skinner v. Judson, 8 Conn. 528; Poiu- dexter v. Davis, 6 Gratt. 481; Higdou V. Heard, 14 Ga. 255; Marshall v. Riley, 7 Ga. 367; King of the Sicilies V. Willcox, 1 Sim., N. S., 301; United States V. McRae, L. R. 3 Ch. 79; [Cross V. MoCIenahan, 54 Md. 21.] ' Dummer v. Corp'n of Chippenham, 14 Ves. 245; Lee v. Read, 5 Beav. 381; Janson v. Solarte, 2 Younge & C. 132, 136; Green v. Weaver, 1 Sim, 404, 427, 432; Mitchell v. Koeoker, 11 Beav. 380; Robinson v. Kitchen, 35 Eng. L. & Eq. 558; Currier v. Con- cord etc. R. R., 48 N. H. 321 ; Attwood V. Coe, 4 Sand. Ch. 412; Skinner v. Judson, 8 Conn. 528; 21 Am. Dec. 691; Howell v. Ashmore, 9 N. J. Eq. 82; 57 Am. Dec. 371; O'Connor v. Tack, 2 Brewst. 407. [See also Leitch V. Abbott, L. R. 31 Ch. Div. 374; Poatlethwaite v. Rick man, L. R. 35 Ch. Div. 744. Before the defendant can be compelled to discover concern- ing the transaction claimed by the plaintiff to have been fraudulent, it is not necessary that the bill should allege the particulars of the fraud: Leitch V. Abbott, L. R. 31 Ch. Div. 374; Whyte v. Ahrens, L. R. 26 Ch. Div. 717. Nor can the defense of privi- leged communications be set up to defeat discovery, where the oommuni- catioD is made in a f raudulen t transac- tion: Poatlethwaite V. Rickman, L. R. 35 Ch. Div. 744. See this subject further discussed, post, § 203, note.] ' Green v. Weaver, 1 Sim. 404; Lea V. Read, 5 Beav. 381. • Where the liability to a penalty is barred by lapse of time, or where the right to it held by the plaintiff has been waived by him: Trinity House Corp'n V. Burge, 2 Sim. 411; Skinner V. Judson, 8 Conn. 528; 21 Am. Dec. 691; Northrop V. Hatch, 6 Conn. 361; Dwinal v. Smith, 25 Me. 379; Mit- ford's Eq. PI. 195-197. Or when the penalty is in reality only liquidated damages: Mitford's Eq. PI. 195-197. And if the so-called forfeiture ia § 203 BQUITY JURISP!RUDE!SrCE. 252 § 203. Privileged CommiiBicati^sns. — Another appli- cation of the general doctrine concerning public policy is, that no disclosure will be compelled of matters a knowledge of which has been communicated or obtained through or by means of certain close confidential relations, which are carefully guarded and protected from invasion or interference by the general policy of the law. For this reason a married woman cannot be compelled to dis- close facts tending to establish any liability of her hus- band, the knowledge of which was acquired by her through her marital relation.' On the same foundation of prin- ciple rests the important rule that a party will not be compelled to disclose the legal advice given him by his attorney or counsel, nor the facts stated or matters com- municated between himself and them in reference to the pending suit, or to the dispute which has resulted in the present litigation; nor, on the other hand, will these pro- fessional advisers be compelled or permitted to disclose the matters which they have learned or communicated in the same manner.^ With respect to the nature of the merely the termination or chamge of ' By the ancient law, a married the iparty'a interest imder some condi- woman could not testify in any civil tional limitation, the rule does not proceeding either for or against her ajjply; e. g., a gift to a woman daring husband, no matter when, or where, her widowhood, and if she marry, then or how she became informed of the over, she must disclose wheibher she faeta. Under modern statutes per- baa miwriod: Hurst v. Hurst, L. R. 9 mitting her to be a witness generally Gh. 762; Chauneey v. Tahonrden, 2 in «uits to which he is a party, the Aitk. 392; Lucas v. Evans, 3 Atk. 260; limitation upon her discovej'j would Hambrook V. Smith, 17 Sim. 209. Also doubtless extend, as stated in the where gaming, ■stock-jobbing, and the text, only to those matters of which like, have been made illegal by statute, she obtained a knowledge through the and parties engaging therein liable to confidences of the marital relation: csTitain peQuwaiary penalties or forfeit- See Le Texier v. Margrave of Aus- ures, a discovery is authorized by lihe paoh, 5 Ves. 322; 15 Ves. 159; Cart- atatate, although it might expose the wright v. Green, 8 Ves. iOi, 408; defendant to such possible liabilities, Barron v. Grillard, 3 Ves. & B. 165. amd therefore a suit for discovery of ' Bulsbrode v. Letchmore, 3 Freem. sums lost ai play, or by «took-jobbing 5; 1 'Oas. Ch. 277; Parkhurst v. Low- operations, and of securitiea given ten, 2 Swanst. 194, 216; Sandford v. therefor, may be maintained: Mit- Remington, '2 Ves. 1S9; Wilson v. ford's iEq. PI. 288; Rawden v. Shad- Northampton etc. R'y Co., L. R. 14 well, Amb. 268; Mewman v. Franco, Eq. 477; McFarlan v. RdLt, L. R. 14 2 Anstr. 519; Andrewa v. Berry, 8 Eq. 680; Minet v. Morgan, L. R. 8 Anfitr. 634, 635; but see Short v. Mer- Ch. 361; Currier v. Concord etc. R. cier, 3 Macn. & G. 205; Robinson v. R., 48 N. H. 321; tLyell v. Kennedy, Lamond, 15 Jur. 240. L. R. 27 Ch. il>iv. 1; Kennedy v. Lyell, 253 THE AUXrCIARY JUIll3©ieTI0N. 203 Huatter passing between the client and his attorney or counsel, the protection is not absoJute nor univergral. The privilege from disclosure embraces those matters alone "in which it is lawful for the client to ask and the solicitor to give professional advice";' and therefore com- L. R. 23 Ch. Div. 387; affirmed L. R. 9 App. 0. 81. la the latter case, it was decided that no discovery can be compelled where the party swears that he has no knowledge or rtiforraia- tion with regard to the matters in- quired of, except such as he has derived' from privileged communications made to htm by his solicitors or their agents, and that ai beUef founded; on strcli knowledge or inforraatiou is protected,] As to the persons between whom the privilege exists, the matters mast have been communicated between a, client and his professional legal ad- viser, or some person acting at the time as that legal adviser's agent or clerk, and may be made to such legal adviser personally, or through the means of any intermediate agent em- ployed expressly to make the commu- nication, either by writing or orally: Anderson v. Bank of Br. Columbia, L. R. 2:C%. Div. 644; Wilson v. North- ampton etc. R'y Co., L. R. 14 Eqj. 477; McFarlau v, Rolt, L. R. 14 Eq. 580; Jenkyns v. Bushby, L. R. 2 Eq. 547; Goodall V. Little, I Sim., N. S., 155; Lafone v. Falkland Islands Co., 4 Kay & J. 34; Reid v. Langlois, 1 Macn. & G. 627; Russell v. Jackson, 9 Hare, 387; Bank of Utica v. Mersereau, 3 Barb. Ch. 528; 49 Am. Deo. 189; Crosby V. B'erger, 11 Fafge, 377; 42 Am. T)eo. 117; Maneh V. Ludliim, 3 Sand. Ch. 35; Stuyvesant v. Peokham, 3 Eilw. Ch. 579; Parker v. Carter, 4 Munf. 273; 6 Am. Dec. 5IC; and communications be- tween the party's predecessors in title and their atborneys have been held privileged: Minet v. Morgan, L. R. 8 Ch. 361. Communications made to or from, or in the hearing of, the fol- lowing persons have been held not to come within the rule, and not to be Erivileged. The attorney's son, who appened to be present in his father's office, but not connected with him in business: Goddard v. Gardner, 28 Conn. 172;. a stranger who happened to be present at the conversation with the attorney: Jackson r. French, 3 Wend. 337; 20 Am. Dec. 699; a confi- dential clerk of the party: Corps v. Robinson, 2 WasK C. C. 388j f ro>m a business managing, agent of the party: Anderson v. Bank of Br. Columibia, L. R. 2 Ch. Div. 644; but see Ross r. Gibbs, L. R. 8 Eq. 522; between two oo-defeadants after suit brought: Ham- ilton V. Kott, L. R. 16 Eq. 112; be- tween defendants for the purpose' of being laid before their attorney: Goodall V. Little, I Sim., N. S., 155; but see Je»kyn» v. Bashiby, L, R. 2 Eq. 547; between the attorneys of the opposite parties: Gore v. Bowser, 5 De Gex & S. 30. Not only must one of the persons be a legal' professional man, but the relation oJ client and pro- fessional adviser must actually be sub- sisting, at the time the communication is made; therefore a eomjuunication will not be priivUeged if made to an attorney at law, who is acting simp'ly as & friend of the person making it: Coon V. Swan, 30 Vt. 6; nor if made after the actual relation of client and lawyer has ceased: Yordan v. Hess, 13 Johns. 492; and the communication must be made to the lawyer in conse- quence of and in respect of his profes- sional character: Banbury v. Bunbury, 2 Beav. 173; Greenlaw v. King, 1 Beav. 137; Dartmouth v, Holdsworth, 10 Sim. 476. In order to be entitled to the privilege, the matter need not be comnimnicated personally between the client and his legal adviser; it may pass between them through an agent: Anderson v. Bank of Br. Columbia, L. R. 2Ch. Div. 644, per Jessel, M. R.; Bunbury v. Buiibary, 2 Beav, 173; Steele v. Stewart, 1 Phill. Ch. 47); Goodall V. Little, I Sim., N. S., 155; Russell v. Jackson, 9 Hare, 387; Jenk- yns v. Bushby, L. R. 2 Eq. 547. [See also Lyell v. Kennedy, L, R. 23 Ch. Div. 387; afBrmed ia L, R. 9 App. 0. 81.] ' [The privilege from discovery does not extend to facts communicated by a solicitor to his client which can- not be the subject of a confidential § 203 EQUITY JURISPRUDENCB. 254 munications by which fratid is contrived or arranged be- tween a lawyer and client are wholly excluded from the privilege, and must be divulged.' With respect to the time at which the communication must be made in order to be protected, there has been no little fluctuation among the decisions, and the rule cannot even now be considered as settled with certainty and uniformity, both throughout all the states of this country and England, although it is settled at last in England by the most recent decisions. It is well established that a lawyer who has been consulted professionally will not be compelled nor permitted to disclose the matters passing between himself and the client, at whatever time the communication was made, whether during the pendency of the litigation, or in contempla- tion of a litigation, after the dispute resulting in it had begun, or even before any dispute had arisen or any liti- gation was anticipated.* It is equally well established the sender forbid; but plaintiff may be required to give an undertaking not to use them for other purposes than as requisite for his litigation: Hopkinsoa V. Lord Burghley, L. R. 2 Ch. 447; as to letters being the joint property of sender and receiver, see Pope v. Curl, 2 Atk. 842; but that the sender can- not prevent their production when re- quired for the ends of justice, see Gee V. Pritohard, 3 Swanst. 402; Williams V. Prince of Wales Life Ins. Co., 23 Beav. 338, On the general rule as to what is privileged: Oossey v. London etc. R'y, L. R. 5 Com. P. 146 jreport of the company's medical man about an accident to plaintiff); Smith v. Daniell, L. R. 18 Eq. 649 (letters written to counsel, but not sworn to be "confi- dential"); Heath v. Crealock, L. R. 15 Eq. 257 (attorney of a defendant who had absconded not compelled to disclose his address, so that plaintiff might make personal service of pro- cess on him, although & personal ser- vice was required by the practice). ' The rule is thus settled whether the lawyer is examined as an ordinary witness, or whether he is joined as a party defendant for purpose of discov- ery: Herring v. Clobery, 1 Phill. Oh. 91; Jones v. Pugh, 1 Phill. Ch. 96; Grreenough v. Gaskell, 1 Mylne & K. 98. communication between them, even though such facts have a relation to the case of the client in the action: Foakes v. Webb, 28 Ch. Div. 287. So held as to information derived by the client from his solicitor of the fact that the solicitor had had correspondence with the solicitor of his adversary con- cerning the subject-matter of the ac- tion.] > Reynell v. Sprye, 10 Beav. 51; 11 Beav. 618; Gartside v. Outram, 26 L. J. Ch. 113; [Postlethwaite v. Rick- man, L. R. 35 Ch. Div. 724.] But where the fraud was entirely on the part of the client, was not imputed to the at- torney, and was therefore collateral to the communication between them, the communication was held to be privileged: Mornington v. Morning- ton, 2 Johns. & H. 697. In the very recent case of Anderson v. Bank of British Columbia, L. R. 2 Ch. Div. 644, the doctrine of privileged com- munications as it now stands under the modern decisions, and according to the new procedure substituted in place of the " bill of discovery," was fully examined by Sir George Jessel, M. R. The following cases also illus- trate what is and what is not privi- leged: Private and confidential let- ters from a stranger to defendant must be produced by him, aUhnwjh 255 THE AUXILIARY JURISDICTION. § 203 that the client cannot be compelled to disclose the advice or opinion which he has at any time professionally re- ceived from his legal adviser.^ The fluctuation and dis- crepancy in the decisions relate to the liability of the client to make discovery of the matters which he has himself laid before his attorney or counsel as the basis of professional advice. It was at one time settled by the decisions, and the rule was generally understood and acted upon, both in England and in the United States, and per- haps is still so acted upon in this country, that statements of fact made to a lawyer, and even written " cases " laid before him for his opinion, before any dispute has arisen, and therefore not in contemplation of an impending or anticipated litigation, are not embraced within the privi- lege, but must be disclosed or produced by the client at the instance of his adversary in any subsequent judicial controversy.* Whatever may be thought of the correct- ness of this particular rule, it is well settled in England, and generally in the United States, that facts stated or communications made by a client to his lawyer, either personally or by means of an intermediate agent, con- cerning the controversy, while a litigation is actually ' Ibid. & J. 179; Newton v. Berreaford, 1 ' Radoliffe v. Fursman, 2 Brown Younge, 378; and per Lord Brougham Pari. C 514; Bolton v. Corporation of and Lord Abinger, in the cases cited Liverpool, 3 Sim, 467; 1 Mylne & K. above. But in truth no such general 88; Greenough v. Gaskell, 1 Mylne rule was laid down or involved in the & K. 98, 115, per Lord Brougham; case of Radcliffe v. Fursman, 2 Brown Walker v. Wildman, 6 Madd. & Gr. 47, Pari. C. 514; and the subsequent de- per Sir John Leach; Knight v. Water- cisions made upon its authority have ford, 2 Younge & 0. 39, per Lord proceeded upon an entire misapprehen- Abinger; Hawkins v. Gathorcole, 1 sion of its facts. This result is estab- Sim., N. S., 150; Lord Walsingham v. lished in the most convincing manner Goodricke, 3 Hare, 122; Faddon v. by the writer of an article in the Law Winch, L. R. 9 Eq. 666. Radcliffe v. Magazine, vol. 17, p. 51 (Feb., 1837), Fursman, 2 Brown Farl.C. 514, ia the who, by a masterly analysis of Rad- leading case in which the rule is sup- cliffe v. Fursman, 2 Brown Pari. C. 614, posed to have been laid down, and the and of subsequent cases, demonstrates subsequent decisions have been made the correctness of his conclusion, wholly upon its authority as the judg- These views of the article referred to ment of the highest appellate court, the have been fully adopted, and the au- judges considering themselves bound thority of Radcliffe v. Fursman, 2 by it, although denying its correctness Brown Pari. C. 514, and of the cases on principle, and sometimes severely following it, has been completely over- criticising it: See Richards v. Jackson, thrown l)y the very recent English 18 Yea. 474; Preston v. Carr, 1 Younge decisions cited in a subsequent note. § 203 EQUITY JUEISFRUDBNCE. 258 pending, or before the litigation has commenced, tut after the dispute has arisen which tends to a litigation, and in contemplation of such anticipated litigation, are entitled to the privilege on the part of the client who communi- cates, as well as on the part of the attorney or counselor who receives. The client cannot be compelled to discover the facts stated, nor to produce the written case sub- mitted for professional advice and opinion, under these circumstances.* There has always been much dissatis- faction with these doctrines supposed to have been es- tablished upon authority of the house of lords, both among the profession and the judges, and this opposition has finally triumphed. It is now settled by the latest de- cisions in England, that a party will not be compelled to disclose matters otherwise privileged, confidentially communicated, relating to questions connected with an existing judicial controversy, although the communica- tion was made before any dispute arose, and was there- fore not in contemplation or anticipation of any impending or expected litigation.* Upon the same consideration of ' Bolton V. Corporation of Liverpool, Pari. C 514, and cases which had fol- 3 Sim. 4G7; 1 Myliie & K. 88; Green- lowed it. Thesame view is maintained ough V. Gaskell, 1 Mylne & K. 98, in the following oases, some of them de- 115; VVarde v. Warde, 1 Sim., N. S., cided before and some after Minet 18; 3 Macn. & G. 365; Bluck V. Gales- v. Morgan, L. R. 8 Ch. 361, viz.: worthy, 2 GiflF. 453; Jenkyns v. Bush- Pearse v. Pearse, 1 De Gex & S. 12; by, L. R. 2 Eq. 547; MoLellen v. Lawrence v. Campbell, 4 Drew. 485; Longfellow, 32 Me. 494; 54 Am. Dec. MoFarlan v. Rolt, L. R. 14 Eij. 580; 599; MoMannus v. State, 2 Head, 213. Turton v. Barber, L. R. 17 Eq. 329; Kotwithstanding the strong current of Wilson v. Northampton etc. R'y Co., modern authority, and the tendency L. R. 14 Eq. 477; Walsham v. Stain- to maintain and even to extend the ton, 2 Hem. & il. 1; Manser v. Dix, privilege, it has still been held that no 1 Kay & J. 451. statements are protected from disclos- In addition to the cases heretofore nre unless made during the actual pen- cited, the following are illustrations of dmcy of a judicial proceeding to which the general doctrines concerning con- they relate: Whiting v. Barney, 30 fidential communications which are N. Y. 330; 86 Am. Deo. 385. privileged: Nias v. Northern etc. R'y ' This conclusion was reached by Co., 3 Mylne & C. 355, 357. per Lord the court of appeal in chancery, in Cottenliam; Flight v. Robinson, 8 Minet V. Morgan, L. R. 8 Ch. 361, in Beav. 22; Reynell v. Sprye, 10 Beav. amost able opinion by Lord Chancellor 51: Simpson v. Brown, 33 Beav. 482; Selborne, which contains a thorough Galley v. Richards, 19 Beav. 401; review of the leading decisions, and Beadon v. King, 17 Sim. 34; Good- discussion of the subject on principle, all v. Little, 1 Sim., N. S., 155; Gar- and overthrows the supposed author- land v. Scott, 3 Sim. 396; Gresley v. ity cf Radclilfe v. Fursman, 2 Brown Mousley, 2 Kay & J. 2S8; Lafoae T. 257 THE AUXILIARY JURISDICTION. § 204 public policy controlling discovery, the rule is settled that governmental officers, whether civil or military, are not compelled to disclose matters of state, where the public interests might be harmed by such a disclosure, at the suit of a private individual.' § 204. Manner of Making Discovery. — Having thus ascertained what matters are exempt from a discovery, and of what a discovery will be compelled, it remains to consider certain settled rules concerning the manner in which the discovery must be made by the defendant. 1. Assuming that the matters called for are proper subjects of a discovery; that they belong to the plaintiff's case, and not to the defendant's; that they are not privileged, or are not exempt within the operation of any other doctrine, — then the defendant must disclose all material facts; in other words, if he answers at all, he must answer fully. The court will, however, in the exercise of its discretion, judge of the materiality, and guard him against oppress- ive, vexatious, or impertinent inquiries.^ 2. The an- Falkland Islands Co., 4 Kay & J. 34; he cannot, in his answer, deny a por- Russell v. Jackson, 9 Hare, 387; Chant tion of the plaintiff's allegations, and V. Brown, 9 Hare, 790; Glyn v. Caul- then claim that a discovery as to such field, 3 Maon. &G. 463; Storey v. Lord portion is made immaterial: Saunders Lennox, 1 Mylne & C. 525; Burrell v. v. Jonea, L. R. 7 Ch. Dir. 435, 443j Nicholson, 1 Mylne & K. 680; Hughes Lancaster v. Evors, 1 Phill. Ch. 349; V. Biddulph, 4 Russ. 190; Herring v. Reade v. Woodruffe, 24 Beav. 421 ; Chi- Clobery, 1 Phill. Ch. 91; Thompson v. Chester v. Marquis of Donegal, L. R. 4 Falk, 1 Drew.21; Charlton v. Coomhes, Ch. 416; L. R. 5 Ch. 497; Thompson v. 4 Giff. 372; NichoU v. Jones, 2 Hem. Dunn, L. R. 5 Ch. 573; Carver v. & M. 588; Combe v. Corporation of Pinto Leite, L. R. 7 Ch. 90; Elmer v. London, 15L. J. Ch. 80;Ross V. Gibbs, Creasy, L. R. 9 Ch. 69, and cases L. R. 8 Eq. 522; Parker v. Carter, 4 cited per Lord Selborne; SauU v. Munf. 273; 6 Am. Dec. 513; CheWv. Browne, L. R. 9 Ch. 364; Hurst v. Farmers' Bank, 2 Md. Ch. 231; Wil- Hurst, L. R. 9 Ch. 762; Moore v. liams V. Fitch, 18 N. Y. 546. Craven, L. R. 7 Ch. 94, note; Hichens ' Smith V. East India Co., 1 Phill. v. Congreve, 4 Russ. 562; West of Ch. 50; Rajah of Coorg v. East India Eng. etc. Bank v. NickoUs, L. R. 6 Co., 25 L. J. Ch. 345, 365; and see Ch. Div. 613; Marquis of Donegal v. Marbury v. Madison, 1 Cranoh, 49. Stewart, 3 Ves. 446; Brookes v. ' This particular rule, however, is Boucher, 8 Jur., N. S., 639; Inglessi chiefly one of practice in framing an v. Spartali, 29 Beav. 564; Wier v. answer, and applies to suits for dis- Tucker, L. R,. 14 Eq. 25, and cases covery and relief, as well as those for cited; Meth. Epis. Church v. Jaques a discovery alone. It means that if 1 Johns. Ch. 65; Phillips v. Provost, 4 the defendant does not raise any ques- Johns. Ch. 205; Cuyler v. Bogert, 3 tion by plea or demurrer to the bill, Paige, 186; Bank of Utica v. Merse- but answers, he must make a full dis- reau, 7 Paige, 517; King v. Ray, 11 covery as to all matters inquired of; Paige, 235; Champliu v. Champlin, 2 1 Eq. Jue.— 17 §204 EQUITY JUKISPKUDENCB. 258 swers of tlie defendant must be complete, so that the information which they give will be of substantial use to the plaintiff;' and must be to the best of the defendant's knowledge, information, and belief. A defendant is bound to obtain information from all means reasonably within his power. If documents are ordered to be pro- duced, it is no excuse for non-production that they are in the possession of a third person, or even that a third person has a lien upon or an interest in them.* But if documents belong wholly or in part to a third person, not a party to the suit, their production will not be compelled.* 3. The answers must be distinct, positive in their state- ments, not leaving facts to be inferred argumentatively, and giving specific replies to specific questions;* but must Edw. Oh. 362; Waring v. Suydam, 4 Edw. Ch. 426;,Brooka v. Byam, 1 Story, 296; Langdon v. G-oddard, 3 Story, 13; Kittridge v. Claremont Bank, 3 Story, 590; Wootten v. Burch, 2 Md. Ch. 190; Hagthorp V. Hook, 1 Gill & J. 272; Salmon V. Clagett, 3 Bland, 142; Robertson v, Bingley, 1 MoCord Eq. 333; French v. Rainey, 2 Tenn. Ch. 641; Shotwell v. Struble, 21 N. J. Eq. 31; Walter V. MoNabb, 1 Heisk. 70:^. ' As, for example, when accounts are called for, they must be reasonably made out, and not simply the books through which the items are scattered, produced for inspection: White v. Williams, 8 Ves. 193; Attorney-Gen- eral V. East Retford, 2 Mylne & K. 35; Drake v. Symes, John. 647; hut this is a matter under the discretionary control of the court, and a defendant will not be subjected to unreasonable labor and expense: See Christian v. Taylor, 11 Sim. 401. 2 Glengall v. Frazer, 2 Hare, 99; Stuart V. Bute, 11 Sim. 442; Taylor V. Rundell, Craig & P. 104; 1 Phill. Ch. 222; Clinch v. Financial Corporation, L. R. 2 Eq. 271. Where a defendant, who was bound to produce certain documents, had become a bankrupt, and had changed his attorneys, and the documents were in the possession of his former attorneys, who had a lien upon them for their charges, this was held to be no excuse, and he was ordered to produce them: Vale v. Oppert, L. R. 10 Ch. 340, 342; but James, L. J., said that an attorney cannot set up his lien as against the right of other parties to have a pro- duction; and to the same e£fect is Belauey v. Ffrench, L. R. 8 Ch. 918. See also, as to the production of docu- ments in the possession of third per- sons, etc.. Ex parte Shaw, Jacob, 270; Rodick V. Gandell, 10 Beav. 270; PalmerV. Wright, 10 Beav. 234; North V. Huber, 7 Jur.. N. S., 767; In re Wil- liams, 7 Jur., N. S., 323; Liddellv. Nor- ton, 23 L. J. Ch. 169; Bethell v. Casson, 1 Hem. & M. 806. It is no excuse for the non-production of docu- ments that third persons, not parties to the suit, are interested in them: Kettlewell v. Barstow, L. R. 7 Ch. 686. Answers on information and be- lief inay be required: Fry v. Shehee, 55 6a. 208. » Hadley v. McDougall, L. R. 7 Ch. 312; Warrick v. Queen's College, L. R. 4 Eq. 254; Vyse v. Foster, L. R. 13 Eq. 602; but the nature and extent of such third person's ownership must be explained when this excuse is set up: Bovill V. Cowan, L. R. 5 Ch. 495. •Faulder v. Stuart, 11 Ves. 296; Wharton v. Whastou, 1 Sim. & St. 235; Tipping v. Clarke, 2 Hare, 383, 389; Anonymous, 2 Younge & C. 310; Duke of Brunswick r, Duke of Cam- bridge, 12 Beav. 281. 259 THE AUXILIARY JURISDICTION. § 205 not be unnecessarily minute and prolix, especially in setting forth accounts.' § 205. Production and Inspection of Documents. — A branch of this general subject of discovery is the doctrine concerning the production and submission to inspection by the plaintiff of documents which the defendant admits to be in his possession, and which are liable to a discovery. I shall state the particular rules regulating the operation of this doctrine, without repeating those which are com- mon to it, and to all other kinds of discovery.^ It should be carefully borne in mind that the doctrine concerning the production and inspection of documents relates en- tirely to their disclosure for the purpose of being used as evidence, or to aid in the trial of a pending or contem- plated litigation, and has no connection whatever with the ownership of or final right of possession to the docu- ments in question. In most instances, the ownership of the documents sought to be produced will not be at all in issue. But even in an action expressly brought to estab- lish the plaintiff's title to documents and to recover their possession, the production of them before the hearing must be governed by the settled rules as to discovery. The plaintiff has otherwise no right to possess or to see them until a decree is rendered in his favor; for such right is the very matter in issue, and to decide that it existed would be to decide the whole merits of the contro- versy upon a preliminary application. It is well settled, therefore, that the matter of the production and inspec- tion of documents depends upon the same principles and doctrines which govern discovery in general.' 'Norway v. B.owe, 1 Mer. 346; In fact, a large number of the decisions Byde v. Maaterman, Oraig & P. 265; already cited illustrating these rules but documents are sometimes per- relate directly to the production of mitted to be given in extenso: See documepta. Parker v. Pairlie, 1 Sim. & St. 295; • By the original chancery practice, Lowe V. Williams. 2 Sim & St. 574. an interrogatory or interrogatories, ' The rules as to materiality, as to more or less specific according to the purposes for which a disclosure ia plaintiffs choice, are inserted in the proper, as to what is privileged, and bill, asking the defendant whether he the like, apply with equal force to this has any documents, or such and such and to other instances of discovery, particular documents, in bis posses- § 206 EQUITY JUKISFKUDEilCB. 260 § 206. It follows from this fact that the production of documents rests wholly on the defendant's' own admis- sions, contained either in his answer to the bill, or in his answers to interrogatories, or in his affidavit. If his an- swers or his affidavit are evasive or insufficient, he may be called upon to make them more specific, and to admit or deny; but when he has once directly denied the pos- session of documents, or their materiality to the plaintiff's case, the court will not compel their production. The truth of the defendant's statements cannot be contested, either by his own cross-examination, or by means of any contradictory evidence offered on the part of the plaintiff.' The admission authorizing an order to produce must cover two facts, — the possession of the documents and their materiality. Manual possession is not essential. It is enough if the documents are either in the actual posses- sion of the defendant, or are under his control; that is, are in the custody of an attorney, agent, or other third person, whose custody of them the defendant can, by the exercise of his lawful powers, control, or from whom he can, by the exercise of such powers, obtain the possession himself. The rule is the same even when the third per- sion. If bis answer admits his posses- discovery of doctimeiits must be satia- sion of material documents, an order fied with his opponent's affidavit on is made, on the plaintiffs motion, for the subject, and cannot cross-examine their production, so that they may be or give evidence contradicting it ": inspected. Under the more recent Reynell v. Sprye, 1 De Gey, M. & G. practice, the defendant's admissions 656; and see Robbins v. Davia, 1 are made in his answer to interroga- Blatch. 238. There is, however, tories filed, or in his affidavit made in one exception to this rule. Notwith- reply to the plaintiff's motion. standing the denials of the defendant's ' I say the defendant's admisdon, affidavit that he has any other doon- because it is ordinarily the defendant ments, if the court has a ' ' reasonable who is called upon to produce. But suspicion," arising from other admis- the same rule applies alike to the atom of the affidavit or of his answer, plaintiff when the defendant files in- that the defendant must have other terrogatories and moves for a disolos- documents in his possession, it may ure and production by the plaintiff, compel him to make a further affidavit without a resort to a cross-bill for a containing more specific statements: discovery, as is permitted by the mod- SauU v. Browne, L. R. 17 Eq. 402; ern practice in England and in many Noel v. Noel, 1 De Gex, J. & S. 468; of the states. for the exact limitations of this exoep- ' Wright T. Pitt, L. R. 3 Ch. 809, tion, see Wright v. Pitt, L. E. 3 Ch. 810, per Page Wood, L. J. "The 809,810. general rule is, that the party seeking 261 THE AUXILIAKY JURISDICTION. § 207 son has some lien on the papers.' But if the documents belong wholly or in part to a third person not a party to the suit, or if they are in the joint possession of the de- fendant and of some third person not a party to the suit by virtue of the latter's separate interest or right in them, their production will not be compelled without the con- sent of such third person." § 207. Since the same rules as to materiality, privi- lege, and the like, which govern discovery, apply to the production of documents, it follows that in order for the plaintiff to be able to compel the production and in- spection of the documents admitted to be in the defend- ant's possession, their materiality to the plaintiff's case must also be admitted by the defendant. If, therefore, the defendant, having admitted certain documents to be in his possession, or having furnished a list of them, definitely denies that they are, or that any portion or pro- vision of them is, material to or relates to the plaintiff's case, he is freed from the obligation of producing them.' ' Vale V. Oppert, L. R. 10 Ch. 340, 30 Beav. 282; Robertson v. Shewell, 342; an attorney cannot set op his 15 Beav. 277; Morrell v. Wootten, 13 lien on the documents as against a Beav. 105; Chant v. Brown, 9 Hare, party's right to their production; and 790; Ford v. Dolphin, 1 Drew. 222; to the same effect is Belaney v. Ffrenoh, Penney v. Goode, 1 Drew. 474; Taylor L. R. 8 Ch. 918. As to the produo- v. Rundell, Craig & P. 104; Murray tion of documents in the custody of v. Walter, Craig & P. 114. But the third persons, etc., see also Ex parte mere fact that third persons are inter- Shaw, Jacob, 270; Rodick v. Oandell, ested in the documents is not an excuse 10 Beav. 270; Palmer v. Wright, 10 for their non-prodnction : Kettlewell Beav. 234; North v. Huher, 7 Jur., v. Barstow, L. R. 7 Ch. 6S6; Hercy v. N. S., 7(i7; In re Williams, 7 Jur., Ferrers, 4 Beav. 97; Hopkinaon v. N. S., 323; Lidiiell v. Korton, 23 L. J. Lord Burghley, L. R. 2 Ch. 447. Ch. 169; Bethell v. Casson, 1 Hem. & ^ Bat, under the circumstances de- M. 806; Morrice v. Swaliy, 2 Beav. scribed, the defendant's statements oq 500;La [See §§ 139, 173, 176, 180.] 1 E(J. Jdb. — IS § 218 EQUITY JUKISPBUDENCB. 274 operation in both cases may be apparently the same; and it is the neglect to observe this distinction which has tended more than anything else to involve the whole subject in confusion. The exclusive equitable jurisdic- tion, or the power of the courts to adjudicate upon the subject-matters coming within that jurisdiction, exists independently of the adequacy or inadequacy of the legal remedies obtainable under the circumstances of any par- ticular case. It exists, as has been shown in a preced- ing section, from one or the other of two facts: either, first, because the primary rights, interests, or estates of the complaining party, which are to be enforced or pro- tected, are equitable in their nature, and are therefore not recognized by "the law so as to be cognizable in the law court; or second, because the remedies asked by the complaining party are such as are administered alone by courts of equity, and are therefore beyond the com- petency of the courts of law to grant. Whenever either of these two facts is involved in the circumstances of a judicial controversy, the jurisdiction of equity over the subject-matter of such controversy is, and from the nature of the case must be, exclusive. But because the equitable jurisdiction in certain kinds of circumstances is exclusive, it does not follow that the jurisdiction can be properly exercised in every individual case involving or depending upon such circumstances. The power of a tribunal to adjudicate upon a class of facts to which a certain individual case belongs is not identical with the due and proper exercise of that power, according to the established rules of jurisprudence, by a judgment maintaining the alleged right and conferring the de- manded remedy. This proposition is self-evident, is a mere commonplace truism; and yet it has been ignored in much that has been said concerning the equitable jurisdiction. The distinction thus stated clearly shows the manner in which the inadequacy of legal remedies under a given condition of circumstances operates upon 275 INADEQUACY OF LEGAL REMEDIES. § 219 and affects the exclusive equitable jurisdiction. Such inadequacy simply furnishes the occasion upon which much of the exclusive jurisdiction may properly be re- sorted to; it is the rule, in many instances, for the proper use of the exclusive jurisdiction in accordance with the settled doctrines of equity jurisprudence; that jurisdic- tion can only be duly and regularly exercised, in many instances, by an affirmative adjudication upon the alleged rights and an award of equitable remedies, when the legal remedies obtainable under the same facts are inad- equate to promote the ends of justice.' § 219. Operation of the Principle upon the Exclusive Jurisdiction. — The foregoing statement is so general and vague as to be of little practical benefit; it is necessary, therefore, to define the principle more exactly, and to as- certain, if possible, what portions of the exclusive juris- diction thus depend for their due and proper exercise upon the inadequacy of legal remedies and the insuffi- ciency of legal methods. The exclusive jurisdiction con- sists, as has been shown, of two distinct branches, namely 1. Where the primary rights, interests, or estates of the complaining parties are wholly equitable; and 2. Where the primary rights, interests, or estates are legal, but the remedies sought and obtained are wholly equitable. The principle that the inadequacy of legal remedies furnishes the occasion for a resort to the equitable jurisdiction and the rule for its proper exercise does not extend to the first branch or division of the exclusive jurisdiction. The exercise of the power, in cases belonging to this first branch, to adjudicate upon, maintain, enforce, or protect purely equitable primary rights, interests, or estates does not at all depend upon' any insufficiency or inadequacy of legal methods and remedies, but solely upon the fact that these primary rights, interests, or estates are wholly ' Earl of Oxford'3 Case, 1 Ch. Rep. Warren, 10 Johns. 587; King v. Bald- 1; 2 Lead. Cas. Bq. 1291; Southamp- win, 2 Johns. Ch. 554. fSee also ante, ton Dock Co. v. Southampton etc. §§ 137, 138, 139, note, 173.] Board, L. R. 11 Eq. 254; Rathbone v. § 219 EQUITY JUKISPRUDENCB. 276 equitable, are not recognized by the law nor cognizable by the courts of law, and there is therefore no other mode of maintaining and enforcing them except by the courts of equity. Wherever the complaining party has purely equitable primary rights, interests, or estates ac- cording to the doctrines and principles of the equity jurisprudence, courts having equitable powers do and must exercise their exclusive jurisdiction over the case, entirely irrespective of the adequacy or inadequacy of legal remedies, for the plain and sufficient reason that the litigant party cannot possibly obtain any legal reme- dies under the circumstances; the courts of law do not recognize his rights, and cannot adjudicate upon nor protect his interests and estates. One or two examples will illustrate the correctness and the generality of this statement. In the case of a trust created in lands, the estate of the cestui que trust is purely an equitable one, of which law courts refuse to take cognizance. He is there- fore always entitled to the aid of a court of equity in establishing, maintaining, and enforcing his estate accord- ing to the nature of the trust and the doctrines of equity jurisprudence which regulate it, and to obtain such reme- dies as the circumstances may require; and the question never is asked, nor could be asked, whether the remedies given him by a court of law are or are not adequate, since all legal remedies are to him impossible.* Again, in case of an equitable assignment, — as, for example, the equitable assignment of a particular fund or a portion thereof by means of an unaccepted order on the depositary, — the interest of the assignee in the' fund is a purely equitable ownership, and he is always entitled to maintain an action in a court of equity, although thd actual relief which he obtains is legal in its nature, being simply a recovery of 'It will be understood, of conrse, 137, note], which permits the holder of that I am speaking of the equity juris- a "complete equity " in land, e.g., diction, unaffected by any particular the vendee under a land contract who statutes. There may be legislation in has paid the purchase price, to main- the various states similar to the stat- tain the legal action of ejectment, in nte of Georgia already referred to [§ order to recover possession of the land. 277 INADEQUACY OF LEGAL REMEDIES. § 219 money. The proper exercise of the equitable jurisdiction under such circumstances cannot depend upon any in- adequacy of legal remedies, since a court of law would not acknowledge any right or interest of the assignee.' A well-settled doctrine concerning the interference with actions at law by injunction furnishes a further illustra- tion. If the defendant in an action at law has an equi- table interest or estate in the property, or an equitable right in the subject-matter, which, according to the es- tablished rules of equity jurisprudence, should prevent a recovery against him, but which, being purely equitable, cannot be set up as a defense in the proceeding before a court of law, he can invoke the exclusive jurisdiction of a court of equity, without regard to any legal defenses which he may have, and can procure the action at law to be restrained, and his own equitable interest to be estab- lished and enforced by means of appropriate equitable reliefs, because such equitable interest is not recognized by the law nor cognizable by the legal tribunals.' Such illustrations might be indefinitely multiplied. They are, however, sufficient to show that, so far as the exclusive jurisdiction of equity is concerned with equitable estates, interests, and primary rights alone of the complaining party, and therefore belongs to the first branch, its exer- cise does not depend upon any consideration of the ade- quacy or inadequacy of legal remedies, but depends upon ' Rodick V. Gandell, I De Gex, M. Reynolds, i Md. 375; Ross v. Harper, & Gr. 763; Ex parte Imbert, 1 De Gex 99 Mass. 175; Panning v. Dunham, & J. 152; Mandeville v. Welch, 5 5 Johns. Ch. 122; 9 Am. Deo. 283; Wheat. 277, 286; Gibson v. Finley, 4 Edwards v. Variok, 1 Hoff. Ch. 382; Md. Ch. 75; Wlieatley v. Strobe, 12 11 Paige, 290; 5 Denio, 664. 679; Hib- Cal. 92, 98; 73 Am. Dec. 522; Shaver bard v. Eastman, 47 N. H. 507; 93 V. West. U. T. Co., 57 N. Y. 459, 464; Am. Deo. 467; Miller v. Gaskins, 1 and see cases cited ante, under § 169. Smedes & M. Ch. 524; Smith v. 'Earl of Oxford's Case, 1 Ch. Rep. Walker, 8 Smedes & M. 131; Wilson 1; 2 Lead.- Cas. Eq. 1291; Pyke v. v. Leigh, 4 Ired. Eq. 97; Rees v. Ber- Northwood, 1 Beav. 152; Newlanda rington, 2 Ves. 540; Williams v. V. Paynter, 4 Mylne & C. 408; Lang- Price, 1 Sim. & St. 581; Capel v. ton V. Horton, 3 Eeav. 464; 1 Hare, Butler, 2 Sim. & St. 457; Hayes v. 549; East India Co. v. Vincent, 2 Atk. Ward, 4 Johns, Ch. 123; 8 Am. Dec. 83; Stiles v. Cowper, 3 Atk. 692; 554; Viele v. Hoag, 24 Vt. 46; Gal- Jackson V. Cator, 5 Ves. 688; Pilling lagher v. Roberts, 1 Wash. C. C. 156, V. Armitage, 12 Ves. 85; Young v. 328; Boardman v. Florez, 37 Mo. 559 § 220 EQUITY JURISPRUDENCE. 278 and is controlled by the doctrines and rules of the equity jurisprudence. Such jurisdiction both exists and is exer- cised because the equitable estates, interests, or rights of the litigant party exist, and can be established, protected, and enforced by no other judicial means and instrumen- talities. § 220. It is otherwise with the second branch of the exclusive jurisdiction, as above described, where the pri- mary rights, interests, or estates of the complaining party are legal in their nature, but the remedies sought by him are entirely equitable. Where a person has a legal pri- mary right, he is not always, and as a matter of course, entitled to go into a court of equity, set its jurisdiction in motion, and obtain the equitable remedies appropriate to maintain or protect his right. Since his estates, interests, or primary rights are legal, he can always, in case of their infringement or violation, demand and recover the legal remedies which are conferred by courts of law under the circumstances. Whether he may also demand and recover the proper equitable remedies depends upon other considerations. Although the jurisdiction of courts of equity to grant these equitable remedies in all such cases is exclusive, because courts of law (except as author- ized by modern statutes) have no power to grant them, yet the courts of equity will not, in every instance, exer- cise their jurisdiction. The proper exercise of the juris- diction in every case of this kind — but not the juris- diction itself — depends upon the question whether the legal remedies which the party can obtain from courts of law upon the same facts and circumstances are inade- quate to meet the ends of justice, — insufiicient to confer upon him all the relief to which he is justly entitled. If the legal remedies administered by the judicial machin- ery and methods adopted in the law courts are fully ade- quate to establish, protect, and enforce the party's legal estates, interests, and rights, a court of equity will not interfere in his behalf with the purely remedial branch 279 INADEQUACY OF LEGAL REMEDIES. § 221 of its exclusive jurisdiction; if the legal remedies, either from their own essential nature pr from the imperfection of the legal procedure, are inadequate, then a court of equity will interpose, and do complete justice hy granting the appropriate equitable remedies which it alone is com- petent to confer. Examples taken from the decided cases in which the various kinds of equitable remedies have been decreed would clearly show that the dicta of judges and the rules laid down by courts concerning the general dependence of the equitable jurisdiction upon the inade- quacy of legal rejaedies, however conflicting they may appear to be, are all embraced within and rendered har- monious and consistent by the foregoing principle; they all become particular applications and illustrations of this principle.' A few such instances must suffice for expla- nation. § 221. The well-settled rules concerning the restraint of actions at law by means of injunction furnish a great variety of examples. When the defendant in an action at law has some equitable interest or right which, being established according to the doctrines of equity jurispru- ' I do not mean that in their dicta claim that the principle f ormnlated and statements of rules concerning the and distinctions thus stated in the equitable jurisdiction, the judges have text are implicitly and necessarily always consciously recognized this contained in and established by the principle, and have expressly drawn judicial dicta and rules, and produce the distinction formulated in the text, an orderly and consistent system out viz., that while the inadequacy of le- of materials which, on the surface, ap- gal remedies is the fact upon which pear to be unarranged and conflicting, the concurrent jurisdiction exists, it [See Illges v. Dexter, 73 Ga. 362; Glo- simply furnishes the occasion and rule ver v. Stamps, 75 Ga. 209; 54 Am. for the exercise of the exclusive juris- Rep. 870; Oellrick v. Georgia R. R., diction, and furthermore, that the 73 Ga. 399; Markham v. Huff, 72 6a. application of this latter doctrine, by ,874; Hodges v. Cole, 140 Mass. 116; which the actual exercise of the exclu- Russell v. Barstow, 144 Mas.<). 130; sive jurisdiction is made to depend Bierbower's Appeal, 107 Pa. St. 14; upon the inadequacy of legal remedies, Earley's Appeal, 121 Pa. St. 11; Bush is confined to one branch alone of that Electric Co. 's Appeal, 114 Pa. St. 574; jurisdiction, the branch which is con- Levering v. Schnell, 78 Mo. 167; Bank cerued with the granting of purely of Commerce v. Chambers, 96 Mo. 459; equitable remedies in cases where the Mann v. Appel, 31 Fed. Rep. 381 ; primary rights of the complaining par- Smythe v. Henry, 41 Fed. Rep. 715; ty are legal, and does not extend to Kilbourn v. Sunderland, 130 U. S. 514; the other branch, which deals with Killian v. Ebbinghaus, 110 U. S. 568; cases where the primary rights of the Lawson v. Menasha W. W. Co., 59 party are wholly equitable. But I Wis. 393.1 § 221 EQUITY JURISPKUDBNCB. 280 dence, would prevent the recovery at law against him, then a court of equity will, as a matter of course, take cognizance of the matter, entertain a suit on his behalf, and enjoin the action at law, in order that it may, by the proper equitable remedies, maintain, protect, or enforce the equitable right held by such party.' But, on the other hand, when the right or interest on which the de- fendant in the action at law relies is legal in its nature, so that it may be set up by way of defense in such action, and may be adjudicated upon by the court of law, and the defendant is prevented or hindere^ from thus pre- senting or availing himself of his legal defense by means of some collateral or extrinsic matter, such as fraud, du- ress, mistake, ignorance, negligence, and the like, or the defense itself, although legal, involves some matter of equitable cognizance, such as fraud, mistake, or accident, — whether a court of equity will then interpose in aid of the party, will take cognizance of the controversy, and enjoin the action at law, in order that the legal right of the defendant therein may be rendered effective so as to prevent a recovery against him, always depends upon the question whether the legal remedies which the litigant party, under the circumstances of the case, has obtained from the court of law, or might have obtained by the use of due diligence, are inadequate to attain the ends of jus- tice; in other words, whether the refusal of a court of equity to interpose would, from the insufficiency of the legal relief, or the imperfection of the legal procedure, work a substantial injustice to the litigant party under all the facts of his case.* In both these classes of cases J See ante, § 219. Protherne v. Forman, 2 Swanst. 227, 2 Earl of Oxford's Case, 1 Oh. Rep. 233; Holworthy v. Mortlock, 1 Cox, 1; 2 Lead Gas. Eq. 1291; Harrison v. 141; Stevens v. Praed, 2 Vea. Jr. Nettleship, 2 Mylne & K. 423; Har- 519; Ware v. Horwood, 14 Ves. 31; dinge v. Webster, 1 Drew. & S. 101; Holmes v. Stateler, 57 III. 209; Foster Simpson v. Lord Howdeu, 3 Mylne & v. Wood, 6 Johns. Ch. 89; Marine Ins. C. 108, per Lord Cottenham; Curtess Co. v. Hodgson, 7 Cranch, 332; Hen- V. Smalridge, 1 Eq. Cas. Abr. 377, pi. driokson v. Hinckley, 17 How. 445; 1; Stephenson V. Wilson, 2 Vern. 325; Dauaher v. Prentiss, 22 Wis. 311; Blackball v. Combs, 2 P. Wms. 70; Forsythe v. McCreight, 10 Rich. Eq. 281 INADKQUAC3T OF LEGAL REMEDIES. § 221 the equitable jurisdiction is exclusive, since a court of «quity alone has power to grant the remedy of injunction; in the first, the jurisdiction is always exercised as a mat- ter of right, in the second, its exercise is supplementary to the judicial methods existing at the law, and is called into operation only when those methods fail to give com- plete relief.* Additional examples may be found in the established rules concerning the use of the injunction. The jurisdiction to restrain torts to property, real or per- sonal, nuisances, trespasses, and the like, by injunction, is exclusive, although the estate of the complaining party which is interfered with, and which he seeks to protect, is legal, and he is entitled to the legal remedy of com- pensatory damages, yet the preventive remedy which he demands for. the protection of his property is wholly equitable, and can only be administered by courts of equity. The general doctrine is well established that this exclusive jurisdiction will not be exercised in any case for the purpose of enjoining trespasses and other tortious acts to property, at the suit of one having the legal estate, unless the legal remedy — compensatory dam- ages — is inadequate, under the circumstance of the case, to confer complete relief upon the injured party .^ An- 308; Wilaey v. Maynard, 21 Iowa, Eq. 177; 69 Am. Dec. 728; Livingston 107; Day v. Cummings. 19 Vt. 496; v. Livingston, 6 Johns. Ch. 497, 499, Vaughn v. Johnson, 9 N. J. Eq. 173; 500; 10 Am. Dec. 353, and cases cited; Harrison v. Davenport, 2 Barb. Ch. Hawley v. Clowes, 2 Johns. Ch. 122; 77; Perrine v. Striker, 7 Paige, 59S; De Veney v. Gallagher, 20 N. J. Eq. Powell V. Watson, 6 Ired. Eq. 94; 33; Coe v. Lake Mfg. Co., 37 N. H. Hood V. N. R. R. Co., 23 Conn. 609; 254, and cases cited; Burnham v. Kemp- Clapp V. Ely, 10 N. J. Eq. 178. ton, 44 N. H. 78; Gallagher v. Fayette ' It is for this reason that some Co. R. R., 38 Pa. St. 102; Johnson v. writers have classified all cases in Conn. Bank, 21 Conn. 148, 157; Hard- which the exercise of the jurisdiction esty v. Taft, 23 Md. 512, 530; 87 Am. depends upon the inadequacy of legal Dec. 584; Mechanics' and Traders' Bank remedies under the head of the " con- v. De Bolt, 1 Ohio St. 591; Eastman v. current" jurisdiction. Amoskeag Mfg. Co., 47 N. H. 71, 78; 2 Garth v. Cotton, 1 Ves. Sr. 524, Watson v. Sutherland, 5 Wall. 74, 78; 546; 1 Dick. 183; 3 Atk. 751; 1 Lead. Parker v. Winnipiseogee Co., 2 Black, Cas. Eq. 955, 987-1027; Jesus College 545, 550, and oases cited; Creely v. v. Bloome, 3 Atk. 262; Amb. 54; Van Bay State Brick Co., 103 Mass. 514; Winkle v. Curtis, 3 N. J. Eq. 422; Morgan v. Palmer, 48 N. H. 336; Weigel V. Walsh, 45 Mo. 560; Mus- Jenka v. Williams, 115 Mass. 217; selman v. Marquis, 1 Bush, 463; 89 Walker v. Zorn, 50 Ga. 370; Zeigler Am. Dec. 637; Hicks v. Compton, 18 v. Beasley, 44 Ga. 56. Cal. 206; Gause v. Perkins, 3 Jonea ' § 221 BQUITT JURISPBUDBNCB. 282 other illustration may be found in the doctrines con- corning the remedy of specific performance of contracts. The jurisdiction to enforce performance of contracts spe- cifically is exclusive, for the remedy itself is most dis- tinctively equitable and completely beyond the judicial methods of the law courts; yet the complaining party has a legal primary right created by the contract, and upon its violation is always entitled to the relief afforded by an action at law, — compensatory damages, — even though such damages are only nominal. The doctrine is funda- mental that this jurisdiction will be called into operation, and the specific performance will be decreed only in those classes of cases in which, according to the views taken by the equity court, the legal remedy of compensatory dam- ages is, from its essential nature, insufficient, and fails to do complete justice between the litigant parties.' It is true that in applying this doctrine the courts of equity have established the further rule that in general the legal remedy of damages is inadequate in all agreements for the sale or letting of land, or of any estate therein; and therefore in such class of contracts the jurisdiction is always exercised, and a specific performance granted, un- less prevented by other and independent equitable con- siderations which directly affect the remedial right of the complaining party; but this result does not interfere with nor modify the principle which is under discussion.' ' Fomeroy on Specific Performance of conversion, an equitable estate in of Contracts, sees. 9-27. the land, — an estate which equity re- * Various and sometimes very in- gards as the real beneficial ownership, sufficient reasons have been given by burdened simply or encumbered with judges for the foregoing rule, that the the lien of the unpaid purchase price, legal remedy is always to be regarded Being thus the holder of the equitable as inadequate in contracts relating to estate in the subject-matter, the equi- real estate, while on the other hand table owner of the land, he is, accord- it is generally to be regarded as ode- ing to the doctrine stated in the text, quale in contracts relating to personal entitled as a matter of course to the property. The distinction stated in aid of a court of equity in protecting the text, and which I am illustrating, such estate and in clothing him with may perhaps furnish a complete ex- the legal title by means of a convey- planation. In an agreement for the ance from the vendor. The exercise sale of land, the vendee, in addition of the jurisdiction does not then de- to his legal primary right, also obtains, pend, as it does when the jurisdiction in pursuance of the equitable doctrine is merely to confer equitable relief, 283 INADBQUACY OF LEGAL RBMKDIES. § 221 Another illustration may be drawn from the doctrines concerning the cancellation or surrender of written in- struments on the ground of some actual fraud either in their original execution or in their subsequent use. Such remedy is entirely equitable; but when the injured party has a legal estate in the subject-matter or a legal primary right, he may set up the actual fraud as a defense in an action at law, if his legal title is thereby attacked, or a recovery is thereby sought against him on the instru- ment. Whether, under these circumstances, and at the suit of a party holding a legal interest or a legal primary right, the exclusive jurisdiction will be exercised for the purpose of protecting his estate or maintaining his right, by decreeing a cancellation or a surrender of the instru- ment thus affected by fraud, depends upon the question whether the legal remedies, either affirmative or defensive, open to the party, are inadequate to promote the ends of justice, and to afford him complete relief.' In the same upon the inadequacy of the legal v. Beokwith, 33 Conn. 357; Hall v. remedy, but is rather a matter of Whiston, 5 Allen, 126; Martin v. equitable right in the vendee. The Graves, 5 Allen, 601; Sherman v. same rule is applied in cases of similar Fitch, 98 Mass. 59; Ferguson v. Fisk, contracts to the vendor, partly be- 28 Conn. 501; McHenry v. Hazard, cause he acquires an equitable owner- 45 N. Y. 580. In Hamilton v. Cum- ship of the purchase price, and partly mings, 1 Johns. Ch. 517, Chancellor because of the doctrine of mutuality. Rent stated the rule concerning the In the contracts relating to personal exercise of the jurisdiction as follows: property, the equitable principle of " Perhaps the cases may all be recon- conversion is not applied with the ciled on the general principle that the same strictness and with all the con- exercise of this power is to be regu- sequences as in contracts relating to lated by sound discretion, a=! the cir- real estate. The further rule, that cumstances of the individual oases the granting a specific performance may dictate, and that the resort to in all cases depends upon certain equi- equity, to be sustained, must be expe- table grounds affecting the remedial dient, either because the instrument right of the plaintiff, or, to use the is liable to abuse from its negotiable common but misleading expression, character, or because the defense, not that it depends upon the judicial dis- arising upon its face, may be difficult cretion of the court, plainly does not or uncertain at law, or from some interfere with this view. See Pome- other special circumstances peculiar roy on Specific Performance of Con- to the case, and rendering a resort to tracts, sees. 35-43. chancery proper and clear of all bus- ' Hamilton v. Cummings, 1 Johns, picion of any design to promote ex- Ch. 517; Bushnell v, Hartford, 4 Johns, pense and litigation." I would remark 301; Dale v. Roosevelt, 5 Johns. 174; that the statement in this extract that Mitler v. Mitler, 18 N. J. Eq. 270; 19 the exercise of the jurisdiction is a N. J. Eq. 257, 457; Town of Glaston- matter of "discretion" in the court, bury V. McDonald, 44 Vt. 453; Bissell which was a favorite mode of expres- § 221 EQUITY JURISPRUDENCE. 284 manner, where a bill of exchange, promissory note, or other negotiable security has been obtained by fraud, conversion, or other like manner which would create a valid defense at law as between the original parties, the acceptor, maker, or other party apparently liable on the instrument may invoke this jurisdiction of equity, before the maturity of the paper, against the holder, and procure an injunction restraining him from making any transfer to a bona fide purchaser, and even the final relief of a cancellation or surrender; because in such a case, if the present unlawful holder, although the legal defense to an action by him would be perfect, should transfer the secu- rity to a bona fide purchaser, such legal defense would be cut ofi", and the injured party would be without adequate and complete remedy in a court of law. This doctrine extends, under similar circumstances, to the transfer of lands, goods, and things in action to a bona fide purchaser, where the rights and equities of the original grantor, vendor, or owner would be cut off, and he would be de- prived of complete relief at law, as against the bona fide transferee.' Similar illustrations might bo taken from the settled rules concerning the use of the exclusive juris- diction to grant the remedies of reformation, re-execution, interpleader, and other strictly equitable remedies, in or- der to maintain, protect, and enforce estates, interests, sion among some equity judges of a of equity will afford relief by directing former day, is very misleading, no the instrument to be delivered up and matter how much the word is guarded canceled, or by making any other de- by adding "sound" or "judicial." oree which justice and the rights of No part of the regular jurisdiction of the parties may require." equity can depend upon the "disore- ' Hamilton v. Cummings, Is Johns, tion " of the judge, if the word is used Ch. 517; Delafield v. Illinois, 26 Wend, in any signification properly belonging 192; Van Doren v. Mayor of New to it. In Martin v. Graves, 5 Allen, York, 9 Paige, 389; Cox v. Cllffc, 2 601, the court thus stated the general N. Y. 118; Town of Glastonbury v. rule: " Whenever a deed or other in- McDonald, 44 Vt. 453; Bank of Bellows strument exists, which may be vexa- Falls v. Rutland etc. R. R. Co., 28 Vt tiously or injuriously used against a 470; Franklin v. Green, 2 Allen, 520; party after the evidence to impeach or Sherman v. Fitch, 98 Mass. 59; Poor invalidate it is lost, or which may v. Carleton, 3 Sum. 70; Ferguson v. throw a cloud or suspicion over his Fisk, 28 Conn. 501; Mitler v. Mitler, title or interest, and he cannot imme- 18 N. J. Eq. 270; 19 N. J. E^. 257; dialely protect or maintain his right by Peirsoll v. Elliott, 6 Pet. 95. any course o/ proceedings at law, a court 285 INADEQUACY OF LEGAL REMEDIES. § 222 and primary rights of the complaining party, which are legal in their nature; but the foregoing examples are aufiBcient to explain the distinction, and to show the gen- erality of the principles stated in the preceding paragraph. § 222. Summary of the Jurisdiction as Affected by . the' Principle. — The principle which has been thus ex- plained in the preceding paragraphs of this chapter, and which is not a mere speculative theory, but is fully sus- tained by settled rules taken from every part of the equity jurisprudence, presents the entire equitable jurisdiction in the form of a simple, well-defined, and consistent system, the result of a few plain and harmonious rules. Laying out of view for the present that special branch of equity which is called the " auxiliary jurisdiction," and which has become obsolete except in a few of our Amer- ican states, the administration of the equitable jurisdic- tion, and the resulting doctrines which make up the equity jurisprudence, may be separated, according to a natural order, into four distinct classes, namely: 1. Where the primary right or interest of the cojnplaining party which has been invaded is purely equitable, — one which the doctrines of equity jurisprudence alone create and recognize, — and his remedial right and the remedies which he obtains are also wholly equitable; for example, where an equitable owner of land, under the doctrines of trust or of conversion, procures the declarative relief establish- ing his,estate, and the relief of specific performance by means of a conveyance of the legal title. 2. Where the primary right or interest of the complaining party is in like manner equitable, and the remedies which he asks and receives are legal; that is, are of the same kind as those conferred by courts of law; for example, where the equitable owner of a fund, through an equitable assign- ment, establishes his ownership and recovers the fund by a final judgment which is simply pecuniary. 3. Where the primary right or interest of the complaining party is legal, — one which is created by the law, and cognizable by § 222 EQUITY JURISPKUDBNCB. 286 the law courts, — and his remedial right, and the remedies which he procures, are entirely equitable; for example, where the legal owner of property obtains protection to his possession or enjoyment by means of injunction against tortious acts, or against wrongful proceedings at law, or pro- tects his title from disturbance, or himself from wrongful demands, by means of the remedy of cancellation, and the like. 4. Where the primary right or interest of the com- plaining party is legal, recognized and maintainable by the law courts, and the remedies which he obtains are also legal, — of the same kind as those administered and conferred by the courts of law, — recoveries of money, or of specific lands or chattels; for example, where a surety sues his principal, under his right of exoneration, to recover back the money paid out on behalf of such principal, or sues his co-surety to recover money, under his right of contri- bution; or where an owner in common of land by a legal estate therein recovers his own specific portion by a par- tition, and the like. All possible cases of equity may be referred to one pr the other of these four divisions. The first three belong to the "exclusive" jurisdiction; the fourth constitutes the " concurrent " jurisdiction. Fur- thermore, in the first and second, the jurisdiction is not only exclusive, but is exercised as a matter of right in be- half of the complaining party whenever he has an equi- table estate, interest, or primary right, according to the doctrines of equity jurisprudence. In the third division, although the jurisdiction always exists and is exclusive, it is not exercised on behalf of the complaining party as a matter of right in him; its proper exercise depends upon the inadequacy Of the legal remedies which he might obtain to do him complete justice. Finally, in the fourth division, the very existence as well as the exercise of the jurisdiction, being concurrent, depends upon the inadequacy of the remedies which the party could obtain from a court of law, owing partly to the form of those remedies themselves, and partly to the imperfection of the legal mode of procedure. 287 DISCO VBKY AS A SOURCE OF JURISDICTION. § 223 SECTION n. DISCOVERY AS A SOURCE OR OCCASION OP JURISDICTION. S 223. General doctrine as to discovery as a source of concnrrent and an occasion for exclusive iorisdiction. ^ 224, 225. Early English rule. § 226. Present English rule. §§ 227-229. Broad rule established in some American states. § 229. The limitations of this rule. § 230. The true extent and meaning of this rule examined. § 223. General Doctrine. — It has already been shown that, under the general jurisdiction of equity, a suit of discovery alone without relief might be maintained in order to procure admissions from the defendant to be used on the trial of an action at law between the same parties; and that in every equitable suit brought for any purpose of relief over which a court of equity has juris- diction, the plaintiff may make his pleading a means of discovery, and may compel the defendant to disclose facts within his knowledge material to the issue, which can be used as evidence on the hearing. In addition, however, to these original and strictly proper functions of discov- ery, the doctrine has been established in many of the American states, and to a very limited and partial extent in England, that discovery itself is, under certain circum- stances, an independent source or foundation of the equi- table jurisdiction to adjudicate upon matters and to award reliefs which are otherwise purely legal. In other words, that, under certain circumstances, where the plaintiff has asked and obtained a discovery, the court of equity may go on and decide the whole issue, and grant the requisite remedies, although the subject-matter of the controversy and the primary rights and interests of the party are wholly legal in their nature, and the remedies conferred are of such a kind as a court of law can administer. A § 224 EQUITY JUEISPKUDBNCB. 288 fortiori, then, may discovery be a proper occasion for exer- cising the jurisdiction in cases belonging to the exclusive jurisdiction, where an equitable remedy is needed in sup- port of a legal right or interest. This doctrine has, of course, become obsolete wherever the auxiliary suit for a discovery has itself been abolished; but since the doctrine prevailed in some states which still retain the separate equity jurisdiction, and the ancillary method of discovery as an incident thereof, some discussion of it seems to bfr necessary. §224. Early English Rule. — The earlier English cases fail to establish any rule, and leave the matter in a condition of uncertainty. There are dicta of eminent judges and some decisions which undoubtedly go to the length of holding, as a general proposition, that wherever a party is entitled to and obtains a discovery in a suit brought directly and primarily for that purpose, the court of equity will go on and decide the issues and grant the requisite relief, although the subject-matter of the con- troversy and the primary rights involved and the reliefs conferred are not otherwise within even the concurrent equitable jurisdiction, but are cognizable by the courts of law, and the legal remedies obtainable in the particular case are adequate. This conclusion is said to result from the doctrine that when a court of equity has obtained jurisdiction of a cause for any purpose, it will go on and determine the entire matters in dispute, in order to avoid a multijjlicity of suits.' These expressions of judicial opinion are certainly very loose, and unless carefully limited, would extend the equitable jurisdiction far be- yond its legitimate boundaries. The doctrine has there- ■ The earlier English cases and dida Madd. 373, per Sir John Leach; Parker are by no means unanimous in sup- v. Dee, 2 Cafl. Ch. 200, 201, per Lord porting this conclusion; some of them Nottingham; Jesus College v. Bloom, are directly opposed to it, and there is 3 Atls. 262, 263; Amb. 54; G-east T. an irreconcilaUle conflict among them: Barker, 2 Brown Ch. 61; Dukeof Leeds- See Adley v. Whitstable, 17 Ves. 329, v. New Radnor, 2 Brown Ch. 338, 619^ per Lord Eldon; Rylev. Baggie, 1 Ja- Bishop of Winchester v. Knight, 1 P. cob & W. 2U, 236, 237, per Sir Thomas Wms. 406; Kemp v. Pryor, 7 Ves. 248,. Plumer; MoKenzie v. Johnston, 4 249, per Lord Eldon, 289 DISCOVERY A3 A SOURCE OF JURISDICTION. §*224 fore been stated in a much more guarded and restricted manner. An early treatise of high authority, after ad» mitting the impossibility of extracting a more definite rule from the conflicting decisions, says: " 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." * Later decisions have been still more guarded, and seem to reject discovery as a distinct and independent source or foundation of the equitable jurisdiction in any cases; that is, to deny that relief would be granted merely as a consequence of discovery in any case which did not other- wise come within some recognized branch of the equita- ble jurisdiction, either exclusive or concurrent.* ' Fonblanqne's Equity, b. 1, o. 1, sec. 3, note/.' "The concurrence of juris- diction may, in the greater number of oases in which it is exercised, be justi- fied by the propriety of preventing a multiplicity of suits; for as the mode of proceeding in courts of law requires the plainti6f to establish his case with- out enabling him to draw the neces- sary evidence from the examination of the defendant, justice could never be attained at law in those oases where the principal facts to be proved by one party are confined to the knowl- edge of the other party. In such cases, therefore, it becomes necessary for the party wanting such evidence to resort to the extraordinary powers of a court of equity, which will com- pel the necessary discovery; and the court, having acquired cognizance of the suit for the purpose of discovery, will entertain it for the purpose of re- lief in most cases of fraud, account, accident, and mistake. " 'Thus in Pearce v. Creswick, 2 Hare, 293, per Wigram, V. C: "The first proposition relied upon by the plaintiff in support of the equity of his bill was 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 t,o discovery may en- title a plaintiff to relief also. In Ad- ley v. The Whitstable Co., 17 Ves. 329, Lord Eldou says: ' There is no 1 Eq. Job. —19 mode of ascertaining what is due ex- cept an account in a court of equity; but, it is said, the party may have discovery, and then go to law. The answer to that is, that the right to the discovery carries along with it the right to relief in equity.' In Ryle v. Haggle, 1 Jacob & W. 236, Sir Thomas Plumer said: 'When it is admitted that a party comes here properly for the discovery, the court is never dis- posed to occasion a multiplioitj' of suits by making him go to a court of law for the relief. ' And in MoKenzie v. Johnston, 4 Madd. 373, Sir John 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 unreasonable that he should pay them for that discovery, it it turned out that they had abused his confidence; yet such must be the case if a bill for re- lief 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 remedy to which the dicta I have referred to may en- title him. But, I confess, the argu- ments founded upon these dicta appear to me to be exposed to the objection of proving far too much. They can only be reconciled with the ordinary practice of the court, by understand- ing them as having been uttered with § 225 KQUITY JURISPRUDENCB. 290 § 225. If it be generally true that a court " having ac- quired jurisdiction of a suit for the purpose of discovery will entertain it for purpose of relief in most cases of fraud, account, accident, and mistake," what is the real significance of this proposition? It does not assert that mere discovery is an independent source of jurisdiction in any case where it v)ould not otherwise exist; it simply regards a discovery obtained as the proper occasion for exercising the jurisdiction, sometimes exclusive, some- times concurrent, in certain classes of cases where such jurisdiction already exists, — that is, may be exercised, — in pursuance of settled doctrines of the equity jurispru- dence. In many cases of fraud, mistake, or accident, the exclusive jurisdiction exists to award purely equitable remedies in support of legal interests and primary rights of the plaintiff; and such jurisdiction will be exercised in these cases, according to the principle heretofore ex- plained, whenever the legal remedies obtainable therein are inadequate. Also, in many cases of fraud, mistake, accident, or account, the concurrent jurisdiction exists to award remedies of a kind which are purely legal, such as pecuniary recoveries, in support of the legal interests and primary rights of the plaintiff, whenever the remedies obtainable from a court of law are inadequate, through the imperfection of the legal modes of procedure. Now, the proposition quoted above simply asserts that in all cases falling within either of the two classes last men- tioned, in all such cases belonging either to the exclusive or to the concurrent jurisdiction, the very fact that a dis- covery is necessary for the plaintiff, and is obtained by reference in each case to the subject- ery, is a circumstance to be regarded matter to which they were applied, in deciding upon the distinct and in- and not as laying down any abstract dependent question of equitable juris- propoaition so wide as the plaintiff's diction; further than this I have not argument requires. I think this part been able to follow this branch of the of the plaintiff's case cannot be stated plaintiff's argument." And see Mitch- more highly in his favor than this, that ell V. Greene, 10 Met. 101; Pease v. the necessity a party may be under Pease, 8 Met. 39S. [See also Buzard (from the very nature of a given trans- v. Houston, 119 U. S. 347; Kramer v, action) to come into equity for discov- Cohn, 119 U. S. 355.] 291 DISCOVERY AS A SOUECB OF JURISDICTION. § 226 him, shows of itself, and independent of any other con- siderations, that the case is one in which the ordinary- remedies at law are inadequate, and therefore that the equitable jurisdiction is proper in such case. In other words, the discovery obtained in such cases belonging to the exclusive jurisdiction is of itself a fact showing that the legal remedies are inadequate to do complete justice to the parties therein, and that the exercise of the exclu- sive jurisdiction, by conferring equitable remedies, is both proper and necessary. Also, the discovery obtained in such cases belonging to the concurrent jurisdiction is of itself a fact showing that the remedies recoverable at law by the parties therein are inadequate, and that the con- current equitable jurisdiction of the controversy exists, and should be enforced by deciding all the issues and awarding the appropriate reliefs, although they may be of the same kind as those conferred at law. This view, as it seems to me, removes all conflict appearing in the English decisions and dicta, and brings the effect of dis- covery into a complete harmony with the general princi- ples concerning jurisdiction. It rejects the notion that the mere fact of discovery has any power to enlarge the equitable jurisdiction, or to extend that jurisdiction, whether exclusive or concurrent, to any cases in which it does not otherwise exist; on the other hand, it admits that, in cases otherwise belonging either to the exclusive or the concurrent jurisdiction, a discovery obtained may be the determining fact upon which the proper exercise of that jurisdiction depends, — the fact which, without any other accident, renders the legal remedies inadequate, and thus sets in motion the judicial machinery of equity. § 226. Present English Rule. — The conclusion thus reached is fully sustained by the more modern English decisions. The rule fully settled by the English courts, before the auxiliary jurisdiction over discovery was finally abolished by the supreme court of judicature act,' > See ardc, § 193. § 227 EQUITY JURISPEUDENCB. 292 was, that if the controversy and the issues involved in it are not otherwise within the equitable jurisdiction, either exclusive or concurrent, and the legal remedies obtain- able in the case are adequate, a bill properly for discovery without any relief, in aid of a pending or expected action at law, can alone be maintained; and if in such a bill the plaintiff demands relief, either general or special, the whole is demurrable.' This rule confines discovery to its legitimate function of furnishing evidence, and prevents- it from operating to extend the equitable jurisdiction to causes which would otherwise be solely cognizable at law. § 227. American Rule. — A very different doctrine has been asserted and perhaps established by the courts of several American states, in which the separate jurisdic- tion of chancery formerly existed, and of other states in which such separate jurisdiction is still preserved; and the doctrine thus affirmed has sometimes been spoken of by writers and judges as the distinctively American doc- trine on the subject. It may well be doubted, however, whether, with all the limitations and exceptions which have been suggested, any doctrine can be considered as having been fairly established by a preponderance of judicial decisions (not of mere dicta) which goes beyond the general proposition quoted iu a preceding paragraph, at one time admitted by English text- writers.'' The rule has been asserted by many American courts in very gen- eral terms, that whenever a court of equity has obtained jurisdiction of a cause for any one purpose, it may re- tain such cause for the purpose of adjudicating upon > Foley V. Hill, 2 H. L. Gas. 28, 37j 395; Little v. Cooper, 10 N. J. Eq. 273; Morris v. Morgan, 10 Sim. 341; Ben- Miller v. Soainmoa, 52 N. H. 609. 610; yon V. Nettlefold, 3 Macn. & G. 94; Stone v. Anderson, 26 N. H. 506, 518; beare v. Attorney-General, 1 Younge Stevens v. Williams, 12 N. H. 246; & C. 205, 206; Albretoht v. Sussman, Tappan v. Evans, 11 N. H. 311, 325. 2 Ves. & B. 328; and see Story's Eq. » Ante, § 224. I refer to the gen- PI., sec. 312, note 3, and cases there eral proposition laid down in Fon- cited. The same doctrine as to the blanque'a Equity, that when the eflFeot of discovery upon the juris- court has acquired jurisdiction for a diction has been adopted in some discovery, it will entertain juriscUction American states: Mitchell v. Greene, for relief in most cases of fraud, aoci- 10 Met. 101; Fease t. Pease, 8 Met. dent, mistake, and account. 293 DISCOVERY AS A SOURCE OP JURISDICTION. § 227 all the matters involved, and of granting complete relief. As a consequence of this principle, whenever the court can entertain a suit for discovery, and a discovery is obtained, the court will go on and decide the whole issue, and will grant to the plaintiff, if he has prayed for it, whatever relief is proper, even though such relief is legal in its kind, and could have been obtained by an action at law.' These general expressions would seem to extend the concurrent jurisdiction of equity almost with- out limit, over matters ordinarily cognizable at law. It is not a little remarkable that courts which, in relation to some matters, have shown a strong tendency to restrict the equitable jurisdiction, upon the alleged ground that the remedies at law are adequate, should thus have opened the door for an apparently indefinite extension of the ju- risdiction over large classes of cases in which, excepting the single incident of a discovery of evidence, the legal remedies are confessedly adequate.* ' Rathbone v. Warren, 10 Johns. 587, 596; King v. Baldwin, 17 Johns. 384; 8 Am. Dec. 415; Gelston v. Hoyt, 1 Johns. Ch. 543; Seymour v. Sey- mour, 4 Johns. Ch. 409; Shepard T. Sanford, 3 Barb. Ch. 127; Sanborn v. .Kittredge,20Vt. 632; 50 Am. Deo. 58; Holmes V. Holmes, 36 Vt. 525; Traip V. Gould, 15 Me. 82; Isham v. Gilbert, 3 Conn. 166; Middletown Bank v. Russ, 3 Conn. 135, 1.39; 8 Am. Dec. 164; Lyons v. Miller, 6 Gratt. 438; 52 Am. Deo. 129; Chichester's Executors V. Vass's Administrators, 1 Munf. 98; 4 Am. Dec. 531; Sims v. Aughtery, 4 Strob. Eq. 121; Ferguson v. Waters, 3 Bibb, 303; Brooks v. StoUey, 3 Mo- Lean, 523; Warner v. Daniels, 1 Wood. & M. 90; Foster v. Swasey, 2 Wood. & M. 217; Hepburn v. Duulop, 1 Wheat. 197; Russell v. Clark's Ex- ecutors, 7 Cranch, 69. In the last- named case, the United States supreme court went so far as to announce the following universal rule: "That if certain facts essential to the merits of a claim purely legal he exclusively within the knowledge of the party against whom that claim is asserted, he may be required in a court of chan- cery to disclose those facts; and the 'Oourt, being thus rightfully ia posses- sion of the cause, will proceed to de- termine the whole matter in contro- versy." [See also Wallis v. Skelly, 30 Fed. Rep. 747; Mining Co. v. Mjnmg Co., 5 Utah, 3; Bowden v. Johnson, 107 U. S. 263. Of course, if tlie bill be brought for discovery and equitable re- lief, it may be retained for the latter purpose when the first purpose fails: Bouton V. Smith, 113 111. 481.] ' The extreme reluctance of some American courts to extend the juris- diction of equity, even where such extension consists solely in applying familiar principles to new conditions of fact, is in marked contrast with the freedom shown by English chancery judges in developing the equity juris- prudence. An illustration may be seen in their refusal to use the in j unc- tion to restrain trespasses, or to re- strain the breach of contracts, or to use the mandatory injunction, in many instances where such use has become common in England, In the face of this tendency, the adoption by the same courts of a general rule, which, if not limited, would sweep almost every case at law within the equitable jurisdiction, is, to say the least, very remarkable. §§ 228, 229 EQUITY JUKISPRUDBNCE. 294 § 228. It is plain that this doctrine, although ex- pressed in such broad terms, cannot be intended to oper- ate in all of its generality. Taken literally and without limitation, it would break down the barriers between the jurisdictions in equity and at law, and would virtually render the equitable jurisdiction universal by bringing every judicial controversy within its scope. Before the modern legislation concerning witnesses and evidence, the actions at law were very few in which one or the other of the parties might not be aided by a discovery, and might not, in conformity with settled rules, maintain a suit for a discovery. If a discovery, therefore, right- fully demanded and obtained, were of itself sufficient to bring the entire cause within the jurisdiction of chancery for final adjudication upon its merits, it is plain that almost every kind and class of purely legal actions could thus be brought within the equitable concurrent jurisdic- tion; and the fundamental principle, that the concurrent equitable jurisdiction only exists in cases where the legal remedies are inadequate, would practically be abrogated, — would become an empty formula. This conclusion, which is a neccessary deduction from the assumed prem- ises, shows that the premises themselves are false. The doctrine of which it is a consequence cannot be true in all the generality of its statement.* § 229. Limitations were therefore established which very much restricted the operation of the doctrine. • In the first place, the rule is settled in those American courts which admit the general doctrine that when the action ' See Foley v. Hill, 2 H. L. Cas. 28, tion, and that where a plaintiff is en- 37, per Lord Cottenham, where this titled to a demand he may come to a able chancellor thns described the ef- conrt of equity for a discovery. But feet of the notion that discovery alone the rule is, that where a case is so is a source of jurisdiction: "It ia not complicated, or where from other cir- hecause you are entitled to discovery cumstances the remedy at law will not that therefore you are entitled to an give adequate relief, then the court of account. That is entirely a fallacy, equity assumes jurisdiction." As this That would, if carried to the extent case was one for an accounting, the to which it would be carried by the chancellor, in his remarks, was ^eak- argument, make it appear that every ing directly of the remedy of an ao- case is a matter of equitable jurisdic- count. 295 DISCOVERY AS A SOURCE OjF JURISDICTION. § 229 is one cognizable at law, in which the rights and remedies are legal, and which does not otherwise belong to the equitable jurisdiction, but which the plaintiff brings in a court of equity under the doctrine that a discovery of itself enables equity to extend its concurrent jurisdiction over the whole cause, he must allege that the facts con- . cerning which he seeks a disclosure are material to his cause of action, and that he has no means of proving those facts by the testimony of witnesses or by any other' kind of evidence used in courts of law, that the only mode of establishing them is by compelling the defendant to make disclosure, and therefore that a discovery by suit in equity is indispensable. Without these allegations the plaintiff cannot avail himself of the doctrine, and obtain relief as a consequence of the discovery. Nor are these allegations a mere empty form, a mere fiction of pleading; they may be controverted, must be supported by proof, and if disproved, the whole foundation for the equitable interference in the case would fail.' In the second place, if the defendant by his answer fully denies all the allega- tions of fact with respect to which a discovery is de- manded, the whole suit must fail; the court of equity cannot grant the relief prayed for, since its jurisdiction ' Gelston v. Hoyt, 1 Johns. Ch. 543; without any relief, in aid of a pending Seymour v. Seymour, 4 Johns. Ch. or expected action at law, and that if 409; Laight v. Morgan, 1 Johns. Cas. such averments are omitted from the 429; 2 Gaines Cas. 344; Bank of U. S. bill, the suit for a discovery must fail : V. Biddle, 2 Pars. Cas. 31; Lyons v. Gelston v. Hoyt, 1 Johns. Ch. 543. Miller, 6 Gratt. 427, 438; 52 Am. Deo. This erroneous ruling was followed by 129; Duvals v. Ross, 2 Munf. 290, the same court in Seymour v. Sey- 296; Bass v. Bass, 4 Hen. & M. 478; mour, 4 Johns. Ch. 409; Leggett v. Pryor v. Adams, 1 Call, 382; 1 Am. Postley, 2 Paige, 599; and by other Dec. 533; Stacy v. Pearson, 3 Rich, courts in other cases. But this mis- Eq. 148, 152; Sims v. Aughtery, 4 taken view has been corrected, and Strob. Eq. 103, 121; Merchants' Bank these decisions overruled, and the re- V. Davis, 3 Ga. 112; Bullock v. Boyd, quirement given in the text confined 2 A. K. Marsh. 322; Emerson v. to cases where the plaintiff demands Staton, 3 T. B. Mon. 116, 118; [SuUi- relief legal in its nature as a direct van V. Lawler, 72 Ala. 74.] In an consequence of the discovery: March early case, Chancellor Kent, through v. Davison, 9 Paige, 580; Vance v. a mistaken view concerning discovery, Andrews, 2 Barb. Ch. 370; and see held that these same allegations by other oases, ante, % 197, note, where the plaintiff are essential in every this point is more fully explained, equity suit for a mere discovery alone § 230 EQUITY JURISPRUDENCE. 296 to give relief in such causes, according to the very as- sumption, rests upon the fact of a discovery rightfully obtained.' §230. True Meaning of the American Rule. — By means of these two restrictive rules, the general expres- .sions of the American judges, before quoted, are very much limited,' and their operation is brought within much narrower bounds. The so-called American doe- trine concerning the effect of discovery upon the equi- table jurisdiction is thus practically as follows: Whenever, in a controversy purely legal, depending upon legal inter- ests and primary rights of the plaintiff, and seeking to obtain final reliefs which are wholly legal, the plaintiff prays for a discovery as a preliminary relief, and alleges and proves that such discovery is absolutely essential to the maintenance of his contention; that tli«re is no other mode of obtaining the requisite proofs to sustain his cause; tliat he is utterly unable to establish the issues on his part by the testimony of witnesses, or by any other kind of evidence admissible in courts of law, — so that an action at law is utterly impracticable; and whenever, in such case, the defendant does not wholly deny the facts which the plaintiff alleges as the basis of his recov- ery, but makes an actual discovery by his answer disclos- ing a right of action in the plaintiff, — then the court of equity having jurisdiction of such a case to compel a discovery acquires a jurisdiction over it for all purposes, and may go on and determine all the issues, and decree full and final relief, although the relief so given is of the same kind as that granted by courts of law in similar ' This results from the general prin- cannot, for the purpose of discovery cipl« concerning all discovery, stated merely, — that ia, considered merely aa in a preceding section, that the actual evidence, — be controverted. Ifhedia- dUcovery obtainable by the plaintifif tinctly denies all the allegations of the depends upon the disclosures of the plaintiff, that is the end of the dis- defendaut in his answer. While the covery, and as a matter of necessary defendant can be compelled to answer consequence, an end of the relief in this every material averment and inter- class of suits. See aatr., §§ 204, 208; rogatory of the bill, distinctly and Russell v. Clarke's Ex'rs, 7 Cranoh, squarely, what he shall answer rests 69; Ferguson v. Waters, 3 Bibb, 303j within his own conscience. His answer Robinson v. Grilbreth, 4 Bibb, 184. 297 DISCOVERY AS A BOUaCK OP JURISDICTION. § 230 controversies.' It is plain, therefore, that the doctrine thus narrowed rests solely upon the essential fact that the successful prosecution of an action at law, and the recovery by the plaintiff of the reliefs to which he is justly entitled in a court of law, are rendered wholly im- possible by the operation of the arbitrary rules of the law concerning the examination of witnesses, the testi- mony of the parties themselves, and the production of evidience generally,* The question then arises, What effect has been produced upon this particular doctrine by the modern legislation, which authorizes the examination of parties on the trial of actions, abolishes the disabilities of witnesses, and removes the other legal restrictions ' Gelston v. Hoyt, 1 Johns. Ch. 543; Seymour v. Seymour, 4 Johns. Ch. 409; Rathbone v. Warren, 10 Johns. 587, 591); Shepard v. Sanford, 3 Barb. Ch. 127; Sanborn v. Kittredge, 20 Vt. 632; 50 Am. Deo. 58; Holmes v. Holmes, 36 Vt. 525; Traip v. Gould, 15 Me. 82; Isham V. Gilbert, 3 Conn. 166; Mld- dletown Bank v. Bnss, 3 Conn. 135, 139; 8 Am. Deo. 164; Bank of U. S. v. Biddle, 2 Pars. Cas. 31; Lyons v. Mil- ler, 6 Gratt 427, 438; i52 Am. Deo. 129; Duvals r. Ross, 2 Munf. 290, 296; Stacy V. Pearson, 3 Rich. Eq. 148, 152; Sims v. Aughtery, 4 Strob. JEq. 103, 121; Brooks v. StoUey, 3 McLean, 523; Warner v, Daniels, 1 Wood. & Min. 90; Foster v. Swasey, 2 Wood. & M. 217; Russell v. Clark, 7 Cranoh, 69. 'It should be remembered that at the time when this equity doctrine was established the rules of the law concerning evidence were extremely arbitrary, and productive of great in- justice. Actions at law based lapon the plainest right might frequently fail from the inapossibUty of proving the facts in conformity with the legal rules of evidence. Not only were parties to actions unable to testify for themselves or for their opponents, Ijut all peraons having any pecuniary in- terest in the event of the action were disabled; the door was closed against the admiasion of the truth from many directions. An appeal to the powers of equity to compel a discoviery from the opposite party was therefore the only -possible mode in very many in- stances of eliciting the facts which would make out the plaintiff's cause of action in suits of a purely legal nature. It is true, there was no ab- eolutf necessity of allowing the equity court to go on and decide the whole cause after a discovery was made. In such cases, as well as in all others where a separate bill of discovery had been filed, after the discovery was made the plaintiff might return to a court of law, prosecute his legal action in that tribunal, and use the defend- ant'CaL Civ. Code, sec. 3423. Also 2017. 377 JUKISDICTION NOT LOST WHEN. § 276 tiplicity of suits, I have placed in the foot-note the decisions which have given a judicial interpretation to this clause.' SECTION V. THE DOCTRINE THAT THE JURISDICTION ONCE EXISTING IS NOT LOST BECAUSE THE COURTS OF LAW HAVE SUBSE- QUENTLY ACQUIRED A LIKE AUTHORITY, ANALYSIS. § 276. The doctrine Is applied to both kinds of jnrisdiction. §§ 277, 278. Where the jurisdiction at law has been enlarged entirely by the action of the law courts. § 278. Ditto, examples. S§ 279-281. Where the jurisdiction at law has been enlarged by statute, § 280. Ditto, examples. § 281. Where such statute destroys the previous equity jurisdiction. § 276. Is Applied to Both Kinds of Jurisdiction. — There is still another principle affecting the equitable jurisdiction, which remains to be considered in all its relations, namely: Whenever a court of equity, as a part of its inherent powers, had jurisdiction to interfere and grant relief in any particular case, or under any con- dition of facts and circumstances, such jurisdiction is not, in general, lost, or abridged, or affected because the oourts of law may have subsequently acquired a jurisdic- tion to grant either the same or different relief, in the same kind of cases, and under the same facts or circum- stances. This principle has already been briefly men- tioned as one source of the concurrent jurisdiction;^ but, like the doctrines discussed in the preceding sections of this chapter, it also extends to and operates in the exclu- sive jurisdiction. In other words, the exclusive juris- diction to grant purely equitable reliefs, as well as the 'Uhlfelderv, Levy, 9 Cal. 607, 614, son, 8 Cal. 34, 36; Revalk v. Krae. 615; Crowley v. Davis, 39 Cal. 268, mer, 8 Cal. 66, 71; 68 Am. Dec. 304; 269; Pixley v. Hnggins, 15 Cal. 134; Chipman v. Hibbard, 8 Cal. 268, 270; Hockstaoker v. Levy, 11 Cal. 76; Gor- Agard v. Valencia, 39 Cal. 292, 303; ham V. Toomey, 9 Cal. 77; Anthony Flaherty v. Kelly, 51 CaL 145. f. Dunlap, 8 Cal. 26; Rickett T. John- > See ante, § 182. |§ 277, 278 EQUITY JUKISPRUDBNCE. 378 concurrent jurisdiction to confer legal reliefs, is still preserved, although the common-law courts may have obtained authority to award their remedies to the same parties upon the same facts. § 277. Jurisdiction at Law Enlarged by the Law Courts. — This subsequent jurisdiction of the courts of law may be acquired in either of two modes: by the virtual legislative action of the common-law judges them- selves, or by express statutory legislation. In many instances it has happened that the law courts, by aban- doning their old arbitrary rules, and by adopting notions which originated in the court of chancery, and by enlar- ging the scope and effect of the common-law actions, have in process of time obtained the power of giving even ade- quate relief in cases and under circumstances which for- merly came within the exclusive domain of equity. In all such instances, the courts of equity have continued to assert and to exercise their own jurisdiction, for the rea- son that it could not be destroyed, or abridged, or even limited by any action of the common-law courts alone. The enlargement of the jurisdiction at law, by the ordi- nary process of legal development, has not, in general, affected the pre-existing jurisdiction of equity.* § 278. The following are some of the most important classes of cases in which this principle has been applied and the equitable jurisdiction has been exercised, al- though a court of law may maintain an action or allow a defense upon the same facts, and may give an adequate and perhaps the very same relief: In suits to recover a ' Eyre v. Everitt, 2 Ruas. 381, 382, 7 Vea. 3, 19-21; Kempr. Pryor, 7 Vea. per Lord Eldon: " This court will not 237, 249, 250; Varet v. N. Y. Ins. allow itself to be ousted of any part Co., 7 Paige, 560, 567, 568; Rathbone of its original jurisdiction because a v. Warren, lO Johns. 587, 595; Peo- court of law happens to fall in love pie v. Houghtaling, 7 Cal. 348, 351; with the same or a similar jurisdic- Wells v. Pierce, 27 N. H. 503, 511- tion." See also Collins v. Blantern, 514; Irick v. Black, 17 N. J. Eq. 189, 2Wila. 341, 350, per Wilmot, C. J.; 198; Sailly v. Elmore, 2 Paige, 497, Atkinson v, Leonard, 3 Brown Cb, 499; Lane T. Marshall, 1 Heisk, 80, 218, 224; Harrington v. Du Chatel,-! 34; State t. Adler, 1 Heisk. 543, 547, Browu Ch. 124; Bromley v. Holland, 648. 379 JURISDICTION NOT LOST WHBN. § 278 fund impressed with a trust, or where a trust relation in view of equity exists between the parties, where the plain- tiff might recover the same sum by an action of as- sumpsit for money had and received, or like legal action; ' in suits involving fraud, mistake, or accident, the equita- ble jurisdiction being exercised to give appropriate relief to the injured party, although a court of law has assumed power to grant relief either affirmatively by action, or negatively by allowing a defense;' in suits growing out of the relation of suretyship, brought by a suret}- against his principal for an exoneration, or against co-sureties for a contribution, or against the creditor or the princi- pal to be relieved from liability on account of the credi- tor's conduct, or for any other appropriate relief, although courts of law may give adequate relief to the surety by action upon implied contract, or by defense to an action brought against him by the creditor;' in suits by the assignee of a thing in action, brought in his own name as equitable owner, to collect the amount due;* and in suits to set aside or to be relieved from, or to restrain an action or judgment at law upon, a contract which is illegal, although the illegality may, either by authority of the law courts themselves or by express statute, be set up as a defense to an action at law brought to enforce the contract, and may thus defeat a recovery thereon; as, for example, where the contract is usurious, or given for a ' Kemp V. Pryor, 7 Vea. 237, 249, King v. Baldwin, 17 Johns. 384, 388; 250; New York Ins. Co. v. Eoulet,24 8 Am. Deo. 415; Iriok v. Black, 17 Wend. 505; Varet v. N. Y. Ins. Co., N. J. Eq. 189, 198, 199; Wesley 7 Paige, 560, 567, 568; Kirkpatrick v. Church v. Moore, 10 Pa. St. 273, McDonald, 11 Pa. St. 387, 392, 393. 278-282; Montague v. Mitchell, 28 » People V. Houghtaling, 7 Cal. 348, 111. 481, 486; Smith v. Hays, 1 Jones 351; Wells v. Pierce, 27 N. H. 503, Eq. 321, 323; Viele v. Hoag, 24 Vt. 511-514; Babooek v. McCamant, 53 46, 51; Hempstead v. Watkins, 6 Ark. 111. 214, 217; Boyce's Ex'rs V. Grundy, 317, 355, 368; 42 Am. Dec. 696; 3 Pet. 210, 215; Humphries v. Bartee, Heath v. Derry Bank, 44 N. H. 10 Smedes & M. 282, 295, 296. 174. » Eyre v. Everitt, 2 Russ. 381, 382; * Dobyns y. McGovem, 15 Mo. 662, Sailly 7. Elmore, 2 Paige, 497, 499; 668; but the jurisdiction in such cases Mintnru v. Parmer's Loan & T. Co., is practically very much limited. See 3 N. Y. 498, 500, 501; Rathbone v. Ontario Bk. v. Mnmford, 2 Barb. Ch. Warren, 10 Johns. 687, 595, 596; 696, 615; post, § 281. §§ 279, 280 EQUITY JUKISPRUDENCB. 380 gambling debt, or other illegal consideration, or is con- trary to good morals/ § 279. Jurisdiction at Law Enlarged by Statute. — Where, on the other hand, the new power is conferred upon the law courts by statutory legislation, the rule is well settled that unless the statute contains negative words or other language expressly taking away the pre-existing equitable jurisdiction, or unless the whole scope of the statute, by its reasonable construction and its operation, shows a clear legislative intent to abolish that jurisdic- tion, the former jurisdiction of equity to grant its relief under the circumstances continues unabridged. It fol- lows, therefore, that where the statute merely by affirma- tive words empowers a court of law to interfere in the case, and to grant a remedy, even though such remedy may be adequate, and even though it may be special and equitable in its nature, the previous jurisdiction of equity generally remains.' § 280. The following are some of the instances in which this rule has been applied, and the equitable jurisdiction has been asserted, notwithstanding the statutory power given to the courts of law under the same condition of facts: In suits upon lost instruments, bonds, notes, bills, and other contracts to recover the amount due;' in suits for ' CoUina v. Blantern, 2 Wilg. 341, City of Elizabeth, 27 N. J. Eq. 408 350, per VFilmot, C. J.; Bromley v. Case v. Fishback, 10 B. Mon. 40, 41; Holland, 7 Ves. 3, 18-20; Harrington HoUron v. Simmons, 28 Ala. 629 V. Du Chatel, 1 Brown Ch. 124; Fan- Bright v. Newland, 4 Sneed, 440, 442; ning V. Dunham, 5 Johns. Ch. 122; 9 Payne v. Ballard, 23 Miss. 88, 90; 55 Am. Dec. 283; Gough v. Pratt, 9 Md. Am. Deo. 74; Crain v. Barnes, 1 Md. 526;Thoma3v.Watts,9Md. 536, note; Ch. 151, 154; Mitchell v. Otey, 23 Lucas V. Waul, 12 Smedea & M. 157; Miss. 236, 240; Wells v. Pierce, 27 West V. Beanes, 3 Har. & J. 568; N. H. 503, 511-514. [See also Thrasher White V. Washington, 6 Gratt. 645, v. Doig, 18 Fla. 809; Union Pas- 649; but, as examples of circumstances senger R'y Co. v. Mayor etc. of in which the jurisdiction will not be Baltimore, 71 Md. 239; Darst r. exercised, see Thompson v. Berry, 3 Phillips, 41 Ohio St. 514; Sweeny T. Johns. Ch. 394, 398; Sample V. Barnes, Williams, 36 N. J. Eq. 627; Howell 14 How. 70, 73, 75. v. Moores, 127 111. 67.] ' Atkinson v. Leonard, 3 Brown Ch. • Atkinson v. Leonard, 3 Brown Ch. 218, 224; Toulmin v. Price, 5 Ves. 218, 224; Toulmin v. Price, 5 Ves. 235, 238, 239; Ex parte Greenway, 6 235, 238 (and. see note 2, at end of the Ves. 812, 813; East India Co. v. Bod- case, p. 240, Perkins's ed.); Ex parte 4*ai, 9 Ves. 464, 466-469; Howe v. Greenway, 6 Ves. 812, 813 (see notes Taylor, 6 Or. 284, 291, 292; Force v. at end of the case, p. 813, Perkina'i 381 JURISDICTION NOT LOST WHEN. § 280 the establishment or admeasurement of dower, although a statutory authority over matters of dower has been given to other courts;' in suits to be relieved from a contract liability on account of a failure of consideration, although a statute has permitted the fact to be set up as a defense in an action at law brought on the contract;" in suits to enforce a partnership liability or the payment of a firm debt by the estate of a deceased partner, although a stat- ute has allowed a recovery by action at law under the same circumstances, and this legal remedy is adequate;' where a statute had authorized similar relief in the action by a court of law, it did not interfere with the equitable jurisdiction by suit to enforce an inchoate lien on a judg- ment debtor's land, created by an imperfect levy by exe- cution, where the execution and other papers had all been lost by the defendant's fraud or negligence;* a statute au- thorizing a garnishment or attachment by a proceeding at law does not take away nor abridge the equity jurisdic- tion to enforce an equitable attachment or sequestration by suit under the same circumstances;^ insults by a ward ed.); East India Co. v. Boddam, 9 Vea. in actions at law. [See also, in support 464, 466-469; Howe v. Taylor, 6 Or. of the general mle, Bohart v. Cham- 284, 291, 292; Allen v. Smith, 29 Ark. berlain, 99 Mo. 622.] 74; Hickman v. Painter, 11 W. Va. 'Jones v. Jones, 28 Ark. 19, 20; 386; Force v. City of Elizabeth, 27 Menifee v. Menifee, 8 Ark. 9. [Also N. J. Eq. 408; Patton v. Campbell, 70 Efland v. Efland, 96 N. C. 493.] 111. 72; Hardeman v. Battersby, 53 » Case v. Fishback, 10 B. Mon. 40, Ga. 36, 38 (case of a warehouseman's 41 ; and see Bromley v. Holland, 7 Ves, receipt for cotton lost or destroyed; a, 3, 18-20. court of equity has jurisdiction of a 'Holdron T. Simmons, 28 Ala. 629 suit to recover the cotton described in Ala. Code, sec. 2142. the contract); but see Mossopv. Eadon, 'Bright v. Newland, 4 Sneed, 440, 16 Ves. 430, 433, 434, in which the 442. [The statutory proceedings sup chancellor refused to entertain a suit plemeutary to execution have been on a lost note not negotiable, since the held not to exclude the equitable rem- holder could recover at law. The rea- edy by creditor's bill: Enright v. Grant, eon given fir this decision was, that in 5 Utah, 334; contra, § 2S1, note.] all such cases (where no pro/ert was 'King v. Payan, 18 Ark. 583, 587, ever required at law), the only ground 588; Payne v. Ballard, 23 Miss, 88, of the equitable jurisdiction was the 90; 55 Am. Dec. 74 (suit by a judg- power of the court to order indemnity, ment creditor of a corporation to re^ where indemnity was necessary, as in cover from a stockholder the unpaid suits on lost negotiable instruments; amount due on his stock, not affected but no indemnity being needed in case by a statute allowing a garnishment of non-negotiable notes, equity conld at law of such stockholder); Lane v. not interfere. This reasoning does not Marshall, ] Heisk. 30, 34; but see, per apply to those lost instruments of contra, McGough v. Insurance Bank, 2 which profert was originally requisite Ga. 151, 153, 154; 46 Am. Deo. 382, § 280 BQUITY JURISPEUDENCB. 382 against his guardian for an accounting or to enforce the trust duty, where a statute has given jurisdiction to com- mon-law courts to grant any similar relief; * suit by a cred- itor to reach the separate property of a married woman, where an action at law for the same purpose has been per- mitted by statute;* in suits to be relieved from an illegal contract, or to restrain an action brought or judgment obtained thereon, although a statute has permitted the illegality to be set up as a defense in bar of any recovery on the contract; * statutes permitting actions at law against an executor or administrator under particular circum- stances, or for special purposes, do not interfere with the general equity jurisdiction over the administration of de- cedents' estates;^ and statutes authorizing courts, of law to grant some distinctively equitable relief to sureties, by means of proceedings in actions at law, do not alter nor abridge the equitable jurisdiction over suretyship, even in giving the very same relief;* and a statute giving common- law courts the power to correct a judgment fraudulently obtained does not affect the equity jurisdiction to relieve against fraudulent judgments; fraud is a matter of equi- table cognizance, and the jurisdiction is not lost by legis- lation giving the same authority to courts of law;° it is held in several of the states which have not adopted the reformed system of procedure that the statutes permitting ' Grain v. Barnes, 1 Md. Ch. 151, 154. 336, 338-340; Oliveira v. University of 'Mitchell V. Otey, 23 Miss. 236, 240; North Carolina, 1 Phill. Eq. 69. 60. [A [Rooney v. Michael, 84 Ala. 585.] statute giving probate courts jurisdic- ' Bromley v, Holland, 7 Vea. 3, IS- tion of claims against estates, when 20; Harrington v. Du Chatel, 1 Brown the decedent has received money in Ch. 124; Clay v. Fry, 3 Bibb, 248; 6 trust for any purpose, does not exclude Am. Dec. 654; Fanning v. Dunham, 5 the jurisdiction of a court of equity to Johns. Ch. 122; 9 Am. Dec. 283; enforce the trust: Howell v. Moores, Gough V. Pratt, 9 Md. 526; Thomas 127 111. 67.] v. Watts, 9 Md. 526, note; Lucas v. ' Irick v. Black, 17 N. J. Eq. 189, Waul, 12 Smedes & M. 157; West v. 198, 199; Smith v. Hays, 1 Jones Eq. Beanes, 3 Har. & J. 568; White v. 321, 323; Hempstead v. Watkius, 6 Washington, 5 Gratt. 645, 648; Day Ark. 317, 355, 368; 42 Am. Dec. 696; V. Cummings, 19 Vt. 495; but, per Harlan v. Wingate's Adm'r, 2 J. J. contra, see Thompson v. Berry, 3 Marsh. 139, 140. Johns. Ch. 394, 398; Sample v. Barnes, "Baboock v. MoCamant, 53 111. 214, 14 How. 70, 73, 75. 217; [Darst v. Phillips, 4 J. Ohio St. * Clark T. Henry's Adra'r, 9 Mo. 514.] 383 JURISDICTION NOT LOST WHEN, § 281 parties to actions at law to testify as witnesses on their own behalf, and to be examine.d on behalf of their adversaries, do not in any manner interfere with the ancillary juris- diction of equity to maintain suits for a discovery without relief, in aid of proceedings at law;' but this conclusion is by no means unanimous. It has been decided in Penn- sylvania that the peculiar system heretofore existing in that state of administering some equitable remedies through the machinery of actions at law is not abrogated by statutes which conferred a limited equity jurisdiction upon the courts.* The radical change in the equitable and legal procedure effected in many states, which permits equitable defenses to be set up, and even affirmative equi- table relief to be obtained, by the defendant in an action at law has not, it has sometimes been held, abridged the former well-established jurisdiction of equity to restrain actions and judgments at law on the ground that the con- troversy involved some equitable right or interest; ' but this question has been differently answered by different courts, and on account of its great importance it will be separately examined in the following chapter.* § 281. When Such Statute Destroys the Equity Jaris- diction. — On the other hand, the decisions all admit that if the statute contains words negativing or expressly tak- ing away the previous equitable jurisdiction, or even if, upon a fair and reasonable interpretation, the whole scope of the statute shows, by necessary intendment, a clear legislative intention to abrogate such jurisdiction, then the former jurisdiction of equity is thereby ended.* The following examples will illustrate the effect of such 'Cannon v. McNab, 48 Ala. 99; • Dorsey v. Reese, 14 R Mon. 127, Millaaps v. Pfeiffer, 44 Miaa. 805; but 128; and aee, on this question, Erie ^r contra, Riopelle v. Doellner, 26 Railway Co. v. Ramaey, 45 N. Y. 637; Mich. 102; Hall v. Joiner, I S. C. 186; Schell v. Erie R'y Co., 51 Barb. 368. and aee a/iOe, §§ 193, 194. <■ See post, % 357. 'Biddle v. Moore, 3 Pa. St. 161, 'See cases cited ante, in first note 175, 176; Wesley Church v. Moore, under § 279. [See also Cumberland 10 Pa. St. 273, 279-282. These cases & Penn. R. R. Co. v. Reiohert, 58 arose under early statutes, which gave Md. 267; MaoLaury v. Hart, 121 N. Y. only a partial equity jurisdiction. 636.] § 281 EQUITY JURISPRUDBNCB. 384 enactments: A statute authorizing common-law courts to render a judgment abating a private nuisance com- plained of in an action brought to recover damages there- for was held to have abrogated the equitable jurisdiction to entertain a suit for the same relief, although the juris- diction to restrain a private nuisance remained unaltered.' A statute permitting an action at law to recover compen- sation for work and labor or other services rendered to a trust estate on the employment of a trustee has taken away the jurisdiction of equity by suit to enforce such a demand as a lien upon the trust property.* It has been held that a court of equity has no jurisdiction to enter- tain a suit to recover the amount due on a lost non-nego- tiable note, since the holder has a complete remedy at law.* The statutes permitting the parties to actions at law to be examined as witnesses are held, in several of the states, to abolish the auxiliary equitable jurisdiction of discovery in aid of proceedings in courts of law.* "Whenever a legal right is wholly created by statute, and a legal remedy for its violation is also given by the same statute, a court of equity has no authority to interfere with its reliefs, even though the statutory remedy is difficult, uncertain, and incomplete.* Finally, where th^re is no statute, the equitable jurisdiction may become unused, obsolete, and practically abolished, since the courts of law have assumed the power to grant a simple, certain, and perfectly efficient remedy. The practical abandonment of the equity jurisdiction over suits by the ' Remington v. Foster, 42 Wis. 608, are exclusive of the equitable remedy 609. [Compare, however, Bushnell v. of a creditor's bill: Pacific Bank v. Robeson, 62 Iowa, 540, where a similar Robinson, 57 Cal. 520; 40 Am. Rep. statute was lield not to have imposed 120; contra, see ante, § 280, note.] any exception upon a general statu- ' Massop v. Eadou, 16 Ves. 430, 433, tory provision which read: "An in- 434; see cases cited ante, under §§ 279, junction may be obtained in all cases 280. where such relief would have been * Hall v. Joiner, 1 S. C. 186; Rio- granted in equity previous to the pelle v. Doelluer, 26 Mich. 102. See adoption of this code."] §§ 193, 194, 209. » Askew V. Myrick, 54 Ala. 30. [It ' Jaaney v. Buel, 55 Ala. 408; Cole- has been held that statutory pro- man v. Preemau, 3 Ga. 137. ceedings supplementary to execution ,385 JUBISDICTION NOT LOST WHEN. § 281 assignees of ordinary things in action is a striking illus- tration of the change which may thus be effected. As a general rule, a court of equity will not now entertain a suit brought by the assignee of a debt or of a chose in action which is a mere legal demand.' The recent stat- utes of many states, as well as of England, requiring the assignee to sue at law in his own name confirm and es- tablish this rule ' Ontario Bank v. Mumford, 2 Barb. Ch. 596, 615, per Walworth, C: "As a general rule, this court will not en- tertain a suit brought by the assignee of a debt or of a chose in action which is a mere legal demand; but will leave him to his remedy at law by a suit in the name of the assignor (citing Carter V. United Ins. Co., 1 Johns. Ch. 463; Hammond v. Messinger, 9 Sim. 327; Moseley t. Boush, 4 Band. 392; Adair 1 Eo. JVB.— 2i V. Winchester, 7 Gill & J. 114; Smiley V. Bell, Mart. & Y. 378; 17 Am. Dec. 813). Where, however, special cir- cumstances render it necessary for the assignee to come into a court uf equity for relief, to prevent a failure of justice, he will be allowed to bring a suit here upon a mere legal de- mand"; citing as an example, Lenox T. Roberts, 2 Wheat. 373. § 282 EQUITY JUEISPKUDBNCE. 386 CHAPTER III. THE JUKISDICTION AS HELD BY THE COURTS OP THE SEVERAL STATES, AND BY THE COURTS OP THE UNITED STATES. SECTION I. ABSTRACT OF LEGISLATIVE PKOVISIONS. ANALYSIS. § 2S2. Source of jurisdiction, both legal and equitable, of the courts in the American states. § 283. Division of the states into four classes with respect to the amount of equity jurisdiction given to their courts. § 284. The first class of states. § 285. The second class of states. § 286. The third class of states. § 2S7. The fourth class of states. § 288. Summary of conclusions. § 282. Source of the Jurisdiction of the American Courts. — In the preceding chapters T have described the general equitable jurisdiction in its condition of complete development, unabridged by any express statutory legis- lation, as it has been exercised by the English court of chancery. As a matter of fact, however, this unlimited jurisdiction is not now possessed by any American tribu- nal, state or national. In every commonwealth some important branch of it has been lopped off by statute. It becomes necessary, therefore, that I should give, in addition to the foregoing general discussion, some account of the particular jurisdiction which now exists in the courts of each state and of the United States; that I should show to what extent the powers of the English chancery have been conferred or withheld by the state 387 ABSTRACT OF LEGISLATIVE PROVISIONS. § 282 and national constitutions and legislation. To this end I shall first exhibit tlie statutory basis and authority for the jurisdiction which are found in the laws of the United States and of all the individual states. This preliminary explanation is absolutely essential to at correct understand- ing of the American equity jurisprudence, since the equi- table powers held by all our courts, whether of the nation or of the states, are wholly derived from and measured by the provisions of statutes or of constitutions. The highest courts of original jurisdiction in each of the states ' are understood to derive their common-law powers, sub- stantially co-extensive with those possessed by the supe- rior law courts of England, merely from the fact of their being created as such tribunals, and without any express grant of authority being essential. Although such a grant of authority or enumeration of powers has fre- quently been made either by the constitutions or by the statutes of different states, this was really unnecessary. These tribunals are deemed to possess by their very cre- ation all the common-law powers, not incompatible with our institutions, which have not been expressly withheld or prohibited, in the same manner as the state legisla- tures are understood to hold by their very creation all the authority of the English Parliament not expressly withdrawn by the national and state constitutions. It is not so with the equitable jurisdiction of the American courts. For that there must be an authority either ex- pressly conferred, or given by necessary implication from the express terms, in some provision of the constitution or of a statute. In other words, the American state courts do not derive their equitable powers, as they do their common-law functions, as a part of the entire common- law system of jurisprudence which we have inherited from England, and which is assumed to exist even in- dependently of legislation; their equitable jurisdiction is wholly the creature of statute, and is measured in each § 283 EQUITY JURISPRUDKNCE, 388 state by the extent and limitations of the statutory au- thority.' § 283. Amount of Equity Jurisdiction — Four Classes of States. — In some of the states this statutory delegation of power is so bro^d and comprehensive that the juisdic- tiou which it creates is substantially identical with that possessed by the English court of chancery, except so far as specific subjects, like administration, have been expressly given to different tribunals; but in others the delegation of power is so special in its nature and limited ill its extent that a reference to the statutes themselves on the part of the courts as the source and measure of their jurisdiction is a matter of constant practice and of absolute necessity. A correct knowledge of these statu- tory provisions in the various states is of the highest im- portance from another point of view; without it the force and authority of decisions rendered in any particular state cannot be rightly appreciated by the bench and bar of other commonwealths.* It will not be found necessary to examine in detail the statutes of each state separately. A comparatively few distinct types of legislation have been adopted and closely followed throughout the consti- tutions and statutes; and it is possible to arrange all the states into a few classes, in each of which the equitable jurisdiction is substantially the same with respect to its statutory origin, nature, and extent, although some differ- ences may exist in the judicial interpretation given to these legislative provisions. Such differences will be no- ticed in a subsequent section of this chapter. This classi- fication is made without any reference to the external ' It hardly need be said that the ated a court ot equity, but in some constitution of a state is here included sufficient words conferred upon it under the designation ' ' statute "; for such a general jurisdiction, the constitution is only a higher and ' As an illustration, the modern de- more compulsory statute. Certain de- oisions in Massachusetts upon ques- cisions may be found in a very few tiona of general equity jurisprudence, states holding that the equity jurisdic- able and learned as they are, would tion of those states is commensurate often be very misleading in other with that possessed by the English states, if the statutes upon which the chancery. In all these states, however, jurisdiction ot its courtIs rests were not a constitutional provision not only ere- accurately known. 389 ABSTRACT OF LEGISLATIVE PROVISIONS. § 284 form and organization of the courts, and is based wholly upon the amount of equitable jurisdiction created and conferred by the legislation. § 284. 1. Class First. — The first class embraces those states in which the constitutions or statutes have in ex- press terms created and conferred an equity jurisdiction identical or co-extensive with that possessed by the Eng- lish court of chancery, so far as is compatible with our forms of government, political institutions, and public policy.' The jurisdiction thus taken as the criterion and measure is that held and exercised by the English court of chancery by virtue of its general powers as a court of justice;' and it does not include that special authority or jurisdiction delegated to the chancellor individually, as a representative of the crown in its capacity oi parens patriae. This latter authority, so far as it exists at all, is possessed only by the state legislatures. The following states com- pose this class: Michigan, New York, Vermont.* ' It should be noticed, however, that eery in England, with the exceptions, in all these states, notwithstanding additions, and limitations created and the broad grant of general power, cer- imposed by the constitution and laws tain particular subjects belonging to of this state." These provisions were the jurisdiction of the English cban- also found in the Revised Statutes of eery have been given to the exclusive 1846 (c. 90), which abolished the for- cognizance of some other tribunal, and mer separate court of chancery. The thus the general equitable jurisdiction latter of the two sections above quoted has been abridged. The administra- (viz., sec. 21) was also found in the tion of decedents' estates ia a very Revised Statutes of 1838 (p. 365, seo. striking example, which has been in- 23), and applied to the then existing trusted to the probate courts. separate court of chancery. ' Michigan. — The constitution (art. New York. — The constitutions of VI.) establishes a supreme court with 1777 and of 1822 established a separate appellate jurisdiction only (sec. 3), and court of chancery, and a supreme court circuit courts which " shall have origi- with general original jurisdiction in nal jurisdiction in all matters, civil and law. The constitution of 1846, in its criminal, not excepted in this consti- original form, and as amended in 1869, tution, and not prohibited by law." 2 provides (art. VI., sec. 6), that "the Comp. Laws 1871, c. 176, sec. 1 [How- supreme court shall have general ju- ell's Stats. 1882, sec. 6592]; "Thesev- risdiction in law and equity "; and by eral circuit courts of this state shall article XIV., sections 5 and 6, that be courts of chancery within and for all the powers of the former court of their respective counties "; and Comp. chancery are transferred to the su- Laws 1871, sec. 21 [Howell's Stats., preme court. The Revised Statutes, sec. 6611}: " The powers and jurisdic- which wentintooperationiu 1830, while tion of the circuit courts in chancery the court of chancery was in existence, in and for their respective counties enact (5th ed., vol. 3, pt. III., o. 1, tit. shall be co-extensive with the powers 2, art. 2, seo. 42, p. 264): "The powers and jurisdiction of the court of chaa- and jurisdiction of the court of chan- § 285 EQUITY JUKISFBUDENCE. 390 § 285. 2. Class Second. — The second class embraces those states in which the constitutions, not in express terms, but by necessary implication, create and confer a gejieral equity jurisdiction substantially the same as that possessed by the English court of chancery, except so far as modified or limited by other portions of the state legis- lation. In this type of legislative action, no attempt is made by any clause to particularly define the extent of the jurisdiction by comparing it with that held by the Eng- lish chancery; the language employed is always general; it declares that certain courts " have power to decide all cases in equity"; or that they "have jurisdiction in equity," or that they shall exercise their powers " according to the course of equity;" and it thereby plainly implies that the equity powers and jurisdiction thus recognized and con- ferred are substantially those possessed by the English court of chancery. In many of these states the general clause is added by way of limitation, that equity powers shall not exist where there is "a plain, adequate, and eom- plete remedy at law." The effect given to this provision will be explained in the following section. It should be added, however, in this connection, that in many of the states the ordinary jurisdiction of equity thus conferred in such general terms is greatly abridged, restricted, or modified, with respect to some of its branches or heads, by other statutes, especially by those defining and regu- lating the powers of the various subordinate courts.' In eery are co-extensive with the powera acting as chancellors; and (G-en. Stats., and jurisdiction of the court of chan- sec. 2 [Rev, Laws, 695]) define the ex- cery in England, with the exceptions, tent of that jurisdiction in language additions, and limitations created and identical with that found in the stat- imposed by the constitution and laws utes of Michigan and of New York, of this state." This continues to be quoted above. the measure of the equitable jurisdic- ' As illustrations, in several of the tion of the courts of New York, al- states the original jurisdiction over though both the legal and the equi- trusts is limited by statutes abolish- table powers are now administered ing or restricting express trusts, and together by the same court and in the the like; and in nearly all, if not all, same proceeding. of them the jurisdiction over the ad- Vermont. — The General Statutes of ministration of decedents* estates is 1862-70 (tit. XV., c. 29, sec. 4) [and greatly restricted, or perhaps taken the Revised Laws of 1880 (sec. 698)] away, by statutes giving exclusive confer the equity jurisdiction upon the power in such matters to courts of judges of the supreme court virtually probate. 391 ABSTRACT OF LEGISLATIVE PEOVISIONS. 285 this class, which is the most numerous of all, are included the following states: Alabama, California, Connecticut, Delaware, Florida, Georgia, Illinois, Iowa, Kentucky, Maryland, Mississippi, Nebraska, Nevada, New Jersey, North Carolina, Oregon, Ehode Island, Tennessee, Vir- ginia, West Virginia, Wisconsin, and the United States.' ' I omit, in this note, all reference to courts of appellate jurisdiction, as un- necessary. It is enough to say that in every state, and in the tjnited States, there is a tribunal with such a jurisdiction both in law and in equity. United States. — Rev. Stats., sec. 629: " Circuit courts have jurisdiction in all suits of a civil nature, at common law and in equity, where the matter in dispute exceeds the sum or value of five hundred dollars," in the cases pro- vided for by the constitution, and in a number of specified oases arising under statutes of Congress. Sec. 723: "Suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, ade- quate, and complete remedy may be had at law." These provisions formed sections 11 and 16 of chapter 20 of the Laws of 1789, commonly known as the "Judiciary Act." Alabama. — Rev. Code 1867, sec. 698 [Code 1886, sec. 720]: "Ordinary jurisdiction. The powers and juris- diction of the courts of chancery ex- tend, — 1. To all civil causes in which a plain and adequate remedy is not provided in the other judicial tribu- nals; 2. To all cases founded on a gambling consideration, so far as to sustain a bill of discovery and grant relief; 3. To subject an equitable title or claim to real estate to the payment of debts; 4. To such other cases as may be provided by law." Rev. Code 1867, sec. 699 [Code 1886, sec. 721]: "Ex- traordinary jurisdiction. Chancellors may exercise the extraordinary juris- diction granted to such officer by the common law in cases of necessity when adequate provision has not been made for its exercise by some other oflicer or in other courts, and with the exceptions, limitations, and additions imposed by the laws of this state." The whole state is separated into three "chancery divisions," and a chan- cellor is appointed in each: Rev. Code 1867, sees. 695, 697. [These "divis- ions " are now four in number: Code 1886, sec. 713.] California. — Const. 1879, art. VI., sec. 4: "The supreme court shall have appellate jurisdiction in all cases in equity, except such as arise in justices' courts," and in all cases at law. Sec. 5: "The superior courts shall have origi- nal jurisdiction in all cases in equity," and in cases at law. Code Civ. Proc, sec. 57: "The jurisdiction of the supe- rior courts extends, — 1. To all civil actions for relief formerly given in courts of equity,'' and also to other civil actions. Connecticut. — Gen. Stats. 1875, p. 40, sec. 2: "The superior court shall have jurisdiction of all suits in equity which are not within the sole jurisdic- tion of other courts." P. 413, sec. 2: Jurisdiction, where the amount in- volved does not exceed five hundred dollars, is given to the court of com- mon pleas, and for cases exceeding that amount, to the superior court. Sec. 5: "Courts having jurisdiction in suits in equity shall proceed therein according to the rules and practice of equity, and take cognizance only of matters in which adequate relief can- not be had in the ordinary course of law." I^ote, however, that this clause, so far as it speaks about the " proceed- ing in suits in equity according to tlie practice of equity," has been modified by more recent legislation, which has adopted substantially the principles and methods of the reformed proce- dure (Practice Act of 1879), and which is mentioned in a subsequent para- graph. Delaware. — The constitution (art. VI., sec. 3) establishes a court of chan- cery. Sec. 5: "The chancellor shall hold the court of chancery. This court shall have all the jurisdiction and pow- ers vested by the laws of this state in the court of chancery." Sec. 13: " Un- til the general assembly shall other- wise provide, the chancellor ■shall ex- ercise all the powers which any law of 286 EQUITY JURISPRUDENCE. 392 § 286. 3. Class Third. — The third class emhraces those states in which the constitutions and statutes do not this state vests in the chancellor, be- sides th« general powers ot the court of chancery." Rev. Stats. 1852, p. 320, c. 95, sec. 1 : "The court of chancery shall have full power to hear and decree all matters and causes in equity; , . , . provided, that the chancellor shall not have power to determine any matter wherein sufficient remedy may be had, by common law or statute, before any other court or jurisdiction of this state." Jurisdiction, in several partic- ular cases, or for particular reliefs, ia is also given by other statutory pro- visions. Florida. — Bush's Digest of Statutes, 18.72, c. 92, see. 22 [McLellan's Digest 1881, c. 52, sec. 22]: "Circuit courts shall have original jurisdiction in all cases of equity," and also of law. The constitution (art VI., see. 8) contains exactly the same provision. There is no further definition or description of the equitable jurisdiction. Georgia. — Const. 1868, art. V., sec. 2, § 2: The supreme court has only an appellate jurisdiction. Sec, 3, § 2: The superior courts have "exclusive original jurisdiction in ecjuity eases." Code 1873, p: 45, sec. 218 [Code 1882, p. 55]: The supreme court has an ap- pellate jurisdiction only. Code 1873, p. 50, see. 246 [Code 1882, p. 62]: The superior courts have original jurisdic- tion and authority in all civil causes, — "2. To exercise the powers of a court of equity." Illinois. — Const., art. VI., sec. 12: " Circuit courts have original juris- diction in all causes in law and equity. " Gross's 111. Stats. 1871-74, vol. 2, p. 31, c. 21, sec. 1 [Hurd's 111. Rev. Stats. 1889, p. 212, c. 22, sec. 1]: The circuit courts and the superior court, of Cook Couuty (i. e., of Chicago), "in all causes of which they may have jurisdiction as courts of chancery, shall have power to proceed therein according to the mode herein provided, and when no provision is made by this act, according to the general usage and practice of courts of equity. " ioMia. — Const.,. art. 5, sec. 6: "The district court shall be a court of law and equity, which shall be distinct and separate jurisdictions." Code of 1873, sec. 161: "The district courts shall have and exercise general origi- nal jurisdiction, both civil and crim- inal, when not otherwise provided." Sec. 162: "The circuit court shall have and exercise general original ju- risdiction concurrent with the district courts in all civU actions and special proceedings." Sec. 2507: All forms of action are abolished; but two kinds of proceeding by the "civil action" are allowed; namely, the "ordinary" and the "equitable." See. 2508: " Plaintiff may prosecute his action by equitable proeeedings in all cases where courts of equity, before the adoption of this code, had jurisdiction, and must so proceed in all eases wheie such ju- risdiction was exclusive." Kentucky,. — Stanton's Rev. Stats. 1867, vol. 1, p. 310 [Gen. Stata 1887, p. 353]: " The circuit court has origi- nal jurisdiction of all mattera,. both in law and equity, within its county, of which jurisdiction is not< by law exclusively delegated to some other tribunal." Ppi 343, 360: A special court is established in certain districts for the hearing and decision of all equitable actions which would other- wise be heard by the circuit courts of those districts. Maryland. — Code 1860, p. 82, sec 56 [Pub. Gen. Laws 1888, art. 16, sec. 70]: "The judges of the several judi- cial circuits, aud the judge of the cir- cuit court for Baltimore city, shall each, in his respective circuit, have aud exercise all the power, authority, and jurisdiction which the court of chancery formerly held and exercised, except in so far as the same may be modilied by this code." These courts also have original jurisdiction in cases at law. Mi«sissippi. — Const. 1868, art. VI., sec. 4: The supreme court has only an appellate jurisdiction. Sec. 16: Chan- cery courts shall be established in each county. Rev. Code 1871, p. 191, c 9, art. 3, sec. 974 [Rev. Code 1880, sec. 1829}: " The chancery courts shall have full jurisdiction in all matters in equity, and of divorce and alimony; in all matters, testamentairy and of administratiou, in minors' business, and' allotment of dower; and' in cases of idiocy, lunacy, and persons non 393 ABSTRACT OF LEGISLATIVE PROVISIONS. 286 confer a general equity jurisdiction by any single com- prehensive provision, or single grant of power, but enu- eompos menUs, as trell a,8 of snch other matters and cases as may be provided for by law. " Nebraska. — Const., art, XIV., see. 3 [Oonst. 1875, art. VI., aeo. 9]: "The supreme court and the district ijourts shall have both chancery and common- law juriadiction." [Comp. Laws 1889, c. 19, sec. 24: " The district courts shall have and exercise general, original, and appellate jurisdiction in all matters, both civil and criminal, except where otherwise provided."] Necada. — Const., art. VI., sec. 6: "The district courts in the several judicial districts shall have original jurisdiction in all cases in equity, " and also in cases at law. Comp. Laws 1873, sec. 925; Gen. Stats. 1885, sec. 2439: A provision exactly the same as the last preceding. Comp. Laws 1873, see. 1064 [Gen. Stats. 1885, sec. 3023]: " There shall be in this state but one ■form of civil action," etc. This is section 1 of the Code of Civil Practice, passed March 8, 1869. New Jersey. — The constitution (art. VI., sec. 1) establishes a court of errors and appeals of the last resort in all cases; a court of chancery; a supreme court; and circuit courts. Sec. 4: The court of chancery shall consist of a chancellor. Sec. 5: The supreme court and circuit courts have jurisdiction at law only. The Digest of Laws by Nixon (1709-1868) contains no statutory provision defining the ex- tent of the chancery jurisdiction. A late statute has created the ofSce of vice-chancellor. North Carolina. — The constitu- tion of 1868 (art. IV., sec. 1) abol- ishes the distinction between actions at law and suits in equity; and (sec. 4) creates a supreme court and superior courts having jurisdiction in law and in equity. A code of procedure identical with that originally adopted in New York has been enacted. Rev. Code 1854, c. 32, sec. 1: "Each superior court of law shall also be and act as a court of equity in the same county, and possess all the powers and author- ities within the same that the court of -chancery which was formerly held within this state under the colonial ^government used and exercised, and that are properly and rightfully in- cident to such a court." Oregon. — The constitution (art. VII., sec. 1) creates a supreme court and circuit courts, etc., "having gen- eral jurisdiction, to be defined, limited, and regulated by law," Sec. 9: "All judicial power, authority, and juris- diction not vested by this constitution, or by laws consistent therewith, ex- clusively in some other court shall belong to the circuit courts." The Code of Civil Procedure (sec. 1), Gen- eral Laws of Oregon, lb72 (p. 105), abolishes all forms of action at law, but not the distinction between actions at law and suits in equity. Code Civ. Proc, sec. 376; Gen, Laws, p, 189: " The enforcement or protection of a private right, or the prevention of or redress for an injury thereto, shall be obtained by a suit in equity, in all cases where there is not a plain, ade- quate, and complete rejnedy at law; and may be obtained thereby in all cases where courts of equity have been used to exercise concurrent juris- diction with courts of law, nnless otherwise specially provided in this chapter," Shade Island. — The constitution (art. IV., sec. 1) creates a supreme court. Sec. 2: " The court shall have such jurisdiction as may from time to time be granted by law. Chancery powers may be conferred on the supreme court, but on no other court to any greater extent than is now pro- vided bv law," Gen. Stats. 1872, p. 404, c. 181, sec. 4 [Pub. Stats. 1882, p. 506, 0, 192, sec. 8]: "The, supreme court shall have exclusive cognizance and juriadiction of all suits and pro- ceedings whatsoever in equity, with full power to make and enforce all orders and decrees therein, and to issue all process therefor, according to the course of equity." Tennessee. — The constitution (art. VI., sec. 1) establishes a, supreme court, and "such circuit, chancery and other inferior courts as the legisla- ture shall from time to time establish." Sec, 8: "The jurisdiction of the chan- cery , . , , courts shall be as now established by law until changed by the legislature," Comp. Stats, 1872, §286 EQUITY JURISPEUDENCB. 394 merate and specify the particular and partial heads or divisions of equity jurisprudence over which the jurisdic- tion of the courts shall extend, with various restrictions and limitations. The equitable jurisdiction thus created in any state is not co-extensive with that possessed by the English court of chancery, but is partial, and to a considerable extent fragmentary, since the more general clauses of the statutes have naturally been confined or restricted in their judicial interpretation by the enumer- ation of special powers contained in other clauses. In all these states the legislation on the subject has been progressive. At an early day the equity jurisdiction was either wholly withdrawn from the courts, or else existed within extremely narrow bounds, and it has from time to time been enlarged by the legislature. For this reason the judicial d'ecisions of all these states should be carefully sec. 4279 [Code 1884, sec. 5022]: "The chancery courts shall continue to have all the powers, privileges, and jurisdiction properly and rightfully incident to a court of equity by exist- ing laws." Comp. Stats. 1872, sec. 4280 [Code 1884, sec. 5023]: "They have exclusive original jurisdiction in all cases of an equitable nature, where the debt or demand exceeds fifty dollars, unless otherwise provided by this code." Other provisions give a power to grant equitable relief in certain specified cases, all of which, however, are embraced within the foregoing general authority. Virginia. — Code 1860, o. 158, see. 5, p. 667 [Code 1887, sec. 3058]: " The circuit court of each county shall have jurisdiction in all cases in chancery and all actions at law." Certain local courts are also established in particu- lar districts having the same juris- diction. The high court of errors and appeals is entirely an appellate tribu- nal. No change in this jurisdiction seems to be made by subsequent stat- utes. West Virginia. — Const., art. VI., sec. 6 [art. VIII., sec. 12]: "Circuit courts shall have original and general jurisdiction of all matters at law and of all cases in equity." The Code of 1868 (c. 112, sec. 1) [and the Code of 1884 (c. 112, sec. 2)], contain a pro- vision identical with the foregoing. Wisconsiti. — Const., art. VII., sec. 2: "The judicial power of the state, both as to matters of law and equity, shall be vested in a supreme court, circuit courts," etc. Sec. 8: Circuit courts have original jurisdiction "in all matters civil and criminal not ex- cepted by this constitution or pro- hibited by law." Gen. Stats. 1871, vol. 2, c. 116, sec. 5, p. 1303: Cir- cuit courts " have original jurisdiction in all cases, both of law and equity " ; and (sec. 9) "shall have power to issue writs of injunction, .... and all other writs, process, .... according to the common usage of courts of record of common law and of equity jurisdiction." [Stata. 1889, sec. 2420: "The circuit courts have the general jurisdiction prescribed by the constitu- tion They have the power to hear and determine, within their re- spective circuits, all civil actions and proceedings."] Gen. Stats. 1871, sec. 22, p. 1306: "Circnit courts shall have original jurisdiction of all civil actions." The distinction between actions at law and suits in equity is abolished, and one " civil action " is established for all private rights and remedies. 395 ABSTRACT OF LEGISLATIVE PKOVISIONS. § 286 examined and compared with the statutes in force at the time when they were rendered; otherwise their true scope and effect may be misapprehended. The following states are embraced in this class: Maine, Massachusetts, New Hampshire, Pennsylvania.* ' JUaim Rev. Stats. 1871, c. 77, sec. 2, p. 581: The supreme judicial court has jurisdiction in law. Sec. 5, p. 582: " It has jurisdiction as a court of equity in the following cases: 1. For the redemption of estates mort- gaged; 2, For relief from forfeiture of penalties to the state, and from for- feitures in civil contracts and obliga- tions, and in recognizances in crimi- nal cases; 3. To compel the specific performance of written contracts, and to cancel and compel the discharge of written contracts, whether under seal or otherwise, when a full performance or payment has been made to the con- tracting party; 4. For relief in cases of fraud, trusts, accident, or mistake; 5. In cases of nuisance or waste; 6. In cases of partnership, and between the part owners of vessels and of other real and personal property, for adjust- ment of their interests in the prop- erty and accounts respecting it; 7. To determine the construction of wills, and whether an executor not expressly appointed a trustee becomes such from the provisions of a will; and in cases of doubt; the mode of executing a trust, and the expediency of making changes and investments of property held in trust; 8. In cases where the power is specially given by statute; and for discovery in the cases before named, according to the course of chancery practice; 9. When counties, cities, towns, or school districts, for a purpose not authorized by law, vote to pledge their credit, or to raise money by taxation, or to pay money from their treasury; or for such purpose any of their officers or agents attempt to pay out such money, the court shall have equity jurisdiction on ap- plication of not less than ten taxable inhabitants therein. " Sec. 7: "Writs of injunction may be issued in cases of equity jurisdiction, and when specially authorized by statute." Laws 1873, c. 140: "The supreme judicial court shall have jurisdiction in equity between partners or part owners, to adjust all matters of part- nership between such part owners, compel contribution, and make final decrees." Laws 1874, c. 175, p. 126: Chapter 77 of the Revised Statutes (sec. 5), quoted above, is amended by adding the following subdivision: "10. And shall have full equity jurisdiction, ac- cording 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." Laws of 1876 (c. 101, p. 74) is amended by Laws of 1877 (c. 158, p. 119). The same chapter 77 of the Re- vised Statutes (sec. 5) is amended again, by adding the following sub- division: "10. In suits for the re- delivery of goods or chattels taken or detained from the owner, and secreted or withheld, so that the same cannot be replevied; and in bills in equity by a creditor or creditors to reach and apply in payment of a debt any prop- erty, right, title, or interest, legal or equitable, of a debtor or debtors re- siding or found within this state, which cannot be come at to be at- tached or taken on execution in a suit at law against such debtor or debtors, and which is not exempt by law from such attachment and seizure, and any property or interest conveyed in fraud of creditors." Laws 1877, c. 197, p. 143: The same chapter 77 of the Revised Statutes (sec. 5) is amended by adding to the sixth subdivision the following words: "And incases aris- ing out of the law providing for the application of receipts and expendi- tures on railroads by trustees in pos- session under mortgage." In addition to the foregoing grants of power, various provisions of the Re- vised Statutes also give an equitable remedy, or permit the court to inter- pose as a court of equity, in certain other special cases, as follows: P. 139, sec. 48, suits for the redemption of lands sold for non-payment of taxes; p. 24o, sec. 29, suits by town officers 287 EQUITY JUEISPEUDENCB. 396 § 287. 4. Class Fourth. — The fourth class embraces those states in which, from an abandonment of the to restrain county officials from im- properly constructing a highway through the town; p. 331, sec. 10, suits between general and special partners; p. 33t), sec. 5, suits by own- ers of cargo against ship-owners for discovery and payment, in cases of embezzlement, loss, or destruction of goods by master or seamen; p. 396, see. 19, suits by a creditor or stock- holder to wind up an expired corpora- tion; p. 398, sec. 31, suits to compel contribution by stockholders, and to enforce their liability for the corpora- tion debts; p. 399, sees. 34, 35, suits by judgment creditors against a cor- poration when its property cannot be reached by attachment or execution, or when it has made illegal dividends; pp. 410, 411, sees. 40, 46, suits by creditors against directors and stock- holders of a bank for unlawful acts; p. 411, sec. 47, suits by a stockholder who has paid debts of a bank, against the directors and other stockholders for a contribution; p. 413, sec. 57, suits by official bank examiner to en- join hank which has made over-issues, or is unsound; p. 417, sec. 74, suits by receivers of banks to recover unpaid assessments from stockholders, when necessary to meet demands against the bank; p. 422, sees. 99, 100, 101, suits by the trustees or by any depositor of an insolvent savings bank to compel a ratable distribution of its property; p. 450, sec. 10, suit by the person entitled against a railroad to compel payment of land damages awarded, when land has been taken, and to enjoin the railroad until they are paid; p. 458, sec. 53, suits by railroads to redeem from mortgages; p. 462, sec. 70, in all controversies relating to trustees, mortgages, and the foreclosure or re- demption of mortgages of railroads; p. 464, sec. 77, suits to enforce awards made by railroad commissioners con- cerning controversies between connect- ing railroad lines and companies; p. 492, sec. 9, suits by a married woman to control and invest for her own use the damages awarded to her when her own separate property has been taken for public uses; p. 517, sec. 63, all ■controversies between co-executors or co-adniinistrators, in the same manner as those between copartners; p. 541, sees. 10, 11, suits to enforce and regu- late the execution of trusts; p. 565, sec. 14, suits to compel contribution among heirs, devisees, and legatees, whenever they are liable to contribute; p. 705, sec. 13, suits for redemption from mortgages; p. 787, sec. 6, suits to compel the specific performance of land contracts, after the vendor has died, against his heirs, devisees, ad- ministrators, or executors. Magsachusetts. — The following pro- vision^except where the date of their enactment is specially stated, are also found, with some difference of lan- guage, intheKevised Statutes of 1830: Gen. Stats. 1873, p. 558, c. 113, sec. 2 [Gen. Stats. 1882, c. 151, sec. 2]: "The court may hear and determine in equity all cases hereinafter mentioned, when the parties have not a plain, adeqnate, and complete remedy at the common law, namely: 1. Suits for the redemption of mortgages, or to fore- close the same; 2. Suits and proceed- ings for the enforcing and regulating the execution of trusts, whether the trusts relate to real or personal es- tate; 3. Suits for the specific perform- ance of written contracts, by and against either party to the contract, and his heirs, devisees, executors, ad- ministrators, and assigns; 4. Suits to compel the redelivery of goods and chattels taken or detained from the owner, and secreted or withheld so that the same cannot be replevied; 5. Suits for contribution by or between legatees, devisees, or heirs, who are liable for the debts of a deceased tes- tator or intestate, and by or between any other persona respectively liable for the same debt or demand, when there is more than one person liable at the same time for the same contribu- tion; 6. Other cases where there are more than two parties having distinct rights or interests which cannot be justly or deSuitely decided or ad- justed in one action at the common law; 7. Suits between joint tenants, tenants in common, and copartners and their legal representatives, with authority to appoint receivers of rents and profits, and apportion and dis- tribute the same to the discbarge o( 397 ABSTRACT OP LEGISLATIVE PEOVISIONS. §287 ancient modes of procedure inherited from the law of England, the constitutions and statutes, in their grants encumbrances and liens on the estates, or ainoag co-tenants; 8. Suits be- tween joint trustees, co-administra- tors, and co-executors, and tiieir legal representatives; 9. Suits concerning waste and nuisance, whether relating to real or personal estate; 10. Suits upon accounts, when the nature of the account is such that it caimot be conveniently and properly adjusted and settled in an action at law; 11. Bills by creditors to reach and apply in payment of a debt any prop- erty, right, title, or interest, igal or equitable, of a debtor, witmu this state, which cannot be come at to be attached or taken on execution in a suit at law against such debtor (Laws 1851, c. 206; Laws 1858, o. 34); 12. Cases of fraud and conveyance or transfer of real estate in the nature of mortgage (Laws 1855, c. 194); 13. Cases of acci- dent or mistake; 14. Suits or bills for discovery, when a discovery may be lawfully required according to the course of proceedings in equity; 15. 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 (Laws 1857, e. 214)." By the Laws of 1875 (c. 235) [and Gen. Stats. 1882 (c. 151, sec. 3)], jurisdiction is given to enter- tain creditors' suits by judgment credi- tors to reach property of the debtors fraudulently transferred to or held by others. Other statutes confer special powers and remedies in particular cases, most of which, however, are covered by some one of the foregoing provisions. Laws 1877, c. 178, p. 558, sec. 1 [Laws 1882, c. 151, sec. 4]: "The supreme judicial court shall have jurisdiction in equity of all cases and matters of equity cogni:!abIe under the general principles of equity jurispru- dence; and in respect of all such cases and matters shall be a court of general equity jurisdiction." Laws 1877, c. 178, sec. 2: "The last paragraph of section 2 of chapter 113 of the General Stat- utes, beginning with the words ' And shall have,' is hereby repealed; but this repeal shall not affect any cause or proceeiling now pending." This statute of 1877, it will be seen, confers a much broader and more unlimited jurisdiction than had beeo given by any previous legislative grant. [By chapter 223 of the Laws of 1883, simi- lar jurisdiction in equity is conferred upon the superior courts. Section 14 of the act permits equitable defenses in actions at law.] New Hampshire. — Gen. Stats. 1867, p. 388, c. 190, sec. 1: "The supreme court shall have the powers of a court of equity in cases cognizable in such courts, and may hear and determine, according to the course of equity, in cases of charitable uses, trusts, fraud, accident, or mistake; of the affairs of copartners, joint tenants or owners, or tenants in common; of the redemp- tion and foreclosure of mortgages; of the assignment of dower; of contribu- tion; of waste and nuisance; of specific performance of contracts; of discovery, when discovery may be had according to the course of proceeding in equity j and in all other cases where there is not a plain, adequate, and complete remedy at law, and such remedy may be had by proceedings according to the course of equity; may gi-ant writs of injunction whenever the same is ne- cessary to prevent fraud or injustice." Sec. 2: " When goods or chattels are unlawfully withheld from the owner, proceedings in equity may be had for a discovery, for a restoration of the property, and for such other relief as the nature of the case and justice may require." ■ Section 3 provides for a creditor's bill by a judgment creditor whose execution has been returned unsatisfied. Laws 1874, c. 97, p. 340: This statute reorganizes the en- tire judicial system, changes the courts, and transfers all jurisdiction to the new courts; but makes no alter- ation in the existing jurisdiction itself. Pdnnsylvania. — Prior to the legisla- tion hereinafter mentioned, the courts of Pennsylvania possessed no equity jurisdiction whatever. To prevent the absolute failure of justice, which would otherwise have followed, they had invented a curious system, by means of which some equitable prin- ciples and rules were enforced, and some equitable reliefs were given, through the ordinary common-law §287 EQUITY JUKISPRUDENCB. 398 of jurisdiction- to the courts, make no distinction between, nor even any mention of, either the "law" or "equity." forms of action. For example, in the action of ejectment, an equitable right or title was permitted to be set up by the defendant, and then after the ver- dict of the jury the equities of the par- ties were worked out by an alternative or conditional judgment. This whole system was, of course, cumbrous, and could only be applied within narrow limits. The change made by the legislature has been gradual, and the final steps were quite recent, of which the following is a summary: Const., (as amended in 1838), art. V., sec. 6: "The supreme court and the several courts of coirimon pleas shall, besides the powers heretofore usually exer- cised by them, have the power of a court of chancery, so far as relates to the perpetuation of testimony, the ob- taining of evidence from places not within the state, and the cases of the persons and estates of those who are Tion compos mentis; and the legislature shall vest in the said courts such other powers to grant relief in equity as shall be found necessary; and may from time to time enlarge or diminish those powers, or vest them in such other courts as they shall judge proper for the due administration of justice." Const. 1873, art. V., see. 1: A supreme court and courts of common pleas are established. Sec. 3: The jurisdiction of the supreme court is appellate, except that "the judges shall have original jurisdiction iu cases of injunction where a corpo- ration is defendant." Sec. 20: "The several courts of common pleas, be- sides the powers herein conferred, shall have and exercise, within their respective districts, subject to such changes as may be made by law, such chancery powers as are now vested by law in the several courts of common pleas of this commonwealth, br as may hereafter be conferred on them by law. " Brightly's edition of Purdon's Di- gest (1700-1872), vol. 1, p. 689 (Act of June 16, 1836, sec. 1) [ed. of 1883, vol. 1, p. 689]: "The supreme court and the several courts of common pleas shall have the jurisdiction and power of a court of chancery, so far as relates to, — 1. The perpetuation of testimony; 2. The obtaining of evi- dence from places not within the state; 3. The case of the persons and estates of those who are non compos mentis; 4. The control, removal, and discharge of trustees, and the appoint- ment of trustees and the settlement of their accounts; 5. The supervision and control of all corporations other than those of a municipal character, and unincorporated societies and as- sociations and partnerships; 6. The care of trust moneys and property, and other moneys and property made liable to the control of the said courts; and iu such other cases as the said courts have heretofore possessed such jurisdiction and powers under the constitution and laws of this common- wealth." Sec. 2: " The supreme court when sitting in bank in the city of Philadelphia (extended l)y act of July 26, 1842, to the judges thereof sitting at nisi prius in said city), and the court of common pleas for the said city and county shall, besides the powers and jurisdiction aforesaid, have the powers and jurisdiction of courts of chancery so far as relates to, — 1. The supervision and control of partnerships and corporations other than municipal; 2. The care of trust moneys and property and other moneys and property made liable to the control of the said courts; 3. The discovery of facts made material to the just determination of issues and other questions arising or depending in said courts; 4. The determination of rights to property or money claimed by two or more persons, in the hands or possession of a person claiming no right of property therein; 5, The pre- vention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individ- uals; 6. The affording specific relief when a recovery in damages would be an inadequate remedy." Act of June 13, 1840: "The equity jurisdiction of the supreme court within the city of Philadelphia and of the court of com- mon pleas for said city shall be ex- tended to all cases arising in said city over which courts of chancery enter- tain jurisdiction on the giuuiids of 399 ABSTRACT OF LEGISLATIVE PROVISIONS. 287 All these states, excepting Louisiana and Texas, have adopted the reformed American system of procedure. Their constitutions and statutes confer upon the courts complete power and jurisdiction to hear and determine all civil causes, or to grant all civil remedies; and they thus implicitly include a full jurisdiction in cases and over remedies of an equitable character, as well as those of a legal nature. From considerations of convenience, and because the same principle of administration is now common to the whole group, I have added to this class all those other states which have adopted the reformed procedure, but which have already been mentioned either fraud, mistake, accident, or account." By the act of April U , 1 845, it was declared that this provision " should be construed to include all cases of fraud, actual or constructive. " Act of October 13, 1840: " The supreme court, district courts, and courts of common pleas within this commonwrealth shall have all the powers and jurisdiction of courts of chancery in settling part- nership accounts and such other ac- counts and claims as by the common law and usages of this commonwealth have hitherto been settled by the action of ' account render, ' and plain- tiff can sue either in equity or at law. " Act of April 10, 1848: "The supreme • court and court of common pleas iu Philadelphia shall have the jurisdic- tion of courts of chancery in all suits for the discovery of facts." Act of April 25, 1850: The powers conferred (by act of J^une 16, 1836, above), con- cerning the perpetuation of testimony, are extended to all cases of perpetu- ating lost records. Act of April 8, 1852: The jurisdiction conferred by the foregoing acts upon the supreme court iu and for the city of Philadel- phia is extended throughout the en- tire state; "provided that said court shall not have original jurisdiction by virtue of this act to supervise any partnerships or unincorporated asso- ciations or societies." Act of February 14, 1857: The jurisdiction vested by the foregoing acts in the district court or the court of common pleas in and for Philadelphia is extended to all the courts of common pleas, through- out the state. In addition to the foregoing somewhat general grants of authority, other statutes have from time to time given jurisdiction or power to grant special relief under various particular circumstances, the most important of which are the fol- lowing: Act of June 16, 1836: Bills for discovery in favor of judgment creditors are allowed. Act of March 17, 1845: The supreme court for the eastern district of the state, and the court of common pleas'for Philadelphia, have jurisdiction of all cases of dower and of partition within Philadelphia; and by act of April 15, 1858, the same courts have a like jurisdictiou in cases of disputed boundary within the same city. Act of April 25, 1850: Suits in equity for an accounting between co- owners of mines or minerals are al- lowed. Act of April 11, 1862: The supreme court has all the powers of chancery in all cases of mortgages given by corporations. Statute of March 15, 1873, p. 301: The act of April 5, 1860, abridging the equity ju- risdiction in Philadelphia, is repealed, and the equity jurisdiction of the dis- trict court in Philadelphia is restored as it was before said act. Statutes of 1876, May 5, p. 123: All courts of common pleas have all the powers of a court of chancery in all cases of or for the enforcing of mortgages on the property or franchises of any railroad, canal, or navigation corporation sit- uated within the state. Statutes of 1876, May 8, p. 134: Equity jurisdic- tion in partition is enlarged so that any and every proper relief may be given by the decree of the court. 287 EQUITY JUEISPEUDENCB. 400 in the first or the second of the foregoing classes. As a matter of fact, in all the commonwealths where the re- formed procedure prevails, there is substantially the same amount of equitable jurisdiction, and there are also the same limitations upon the extent and exercise of that jurisdiction growing out of the radical change in the modes of administering it effected by the reformatory legislation. The fourth class is thus composed of the fol- lowing states: Arkansas, [Colorado,] Indiana, Kansas, Louisiana, Minnesota, Missouri, [Montana, North Da- kota,] Ohio, South Carolina, [South Dakota,] Texas, [Washington, Wyoming,] and those which have already been mentioned: California, Connecticut, Iowa, Kentucky, Nebraska, Nevada, New York, North Carolina, Oregon, Wisconsin. To these may be added several of the terri- tories. ' Arkansas. — Const. 1868, art. VII., aeo. 1: A supreme court and circuit courts are created. Sec. 4: "The supreme court shall have general su- pervision and control over all inferior courts of law and equity." Sec. 5: "The inferior courts of the state as now constituted by law sheill remain with the same jurisdiction as they now possess, " subject to the power of the legislature to alter. Dig. of Stats. 1874, sec. 1182 [Dig. of Stats. 1884, sec. i357]: Circuit courts have original jurisdiction in all civil actions. Dig. 1874, see. 1183 [Dig. 1884, sec. 1358]: "They shall have exclusive original jurisdiction in each county in which they may be held, except in the county of Pulaski, as courts of equity, in aU cases where adequate relief cannot be had by the ordinary course of pro- ceedings at law. " Dig. 1874, sees. 1208, 1209 [Dig. 1884, sees. 1380, 1381]: A separate chancery court is established in the county of Pulaski, which has jurisdiction of all equity cases arising in that county. Dig. 1874, p. 798, sec. 4450 [Dig. 1884, sec. 4914]: All forms of action are abolished. Dig. 1874, sec. 4451 [Dig. 1884, sec. 4915]: There shall be one form of action for the maintenance of all private rights and the granting of all private reme- dies, called the civil action. Dig. 1874, sec. 4453 [Dig. 1884, sec. 4917]: The proceedings in civil actions may be either at law or in equity. Dig. 1874, sec. 4454 pig. 1884, sec. 4918]: The civil action "may be by equitable proceedings in all cases where conrta of equity, before the adoption of this statute, had jurisdiction, and must be in all cases where such jurisdiction was exclusive." This provision is sub- stantially the same as the correspond- ing one in Iowa, Kentucky, and Ore- gon. [Colorado. — Const., art. VI., sec. 11: "The district courts shall have origi- nal jurisdiction of all causes, both at law and in equity." Code Proc, sec. 1: "The distinction between actions at law and suits in equity, and the distinct forms of action, and suits heretofore existing, are abolished, and there shall be in this state but one form of civil action for the enforce- ment or protection of private rights, and the redress or prevention of pri- vate wrongs, which shall be the same at law and in equity, and which shall be denominated a civil action."] _ Connecticut. — Iq addition to the citations given ante, in note describing the second class, the recent Practice Act of 1879 (Pub. Acts 1879, p. 432 [Gkn. Stats. 1888, sees. 872, 877]) con- tains the following provisions: Sec, 1: 401 ABSTRACT OP LEGISLATIVE PKOVISIONS. § 288 § 288. Conclusions. — Although it is apparent from the foregoing summary that there is a very general agree- "There shall be hereafter but one form of civil action." Seo. 6: "All courts which are vested with jurisdio- tiou both at law and in equity may hereafter, to the full extent of their respective jurisdictions, administer legal and equitable rights, and apply legal and equitable remedies, in favor of either party, in one and the same suit; so that legal and equitable rights of the parties may be enforced and protected in one action; provided, that wherever there is any variance between the rules of equity and the rules of the common law in reference to the same matter, the rules of equity sludl prevail." The other states included in this fourth class because they have also adopted the reformed system of pro- cedure are described ante, in notes to the first and second classes. Indiana. — Const., art. VTL, see. 8: "Circuit courts shall have such civil and criminal jurisdiction as may be prescribed by law." Seo. 20; Com- missioners must be appointed to sim- plify the practice. "They shall pro- vide for abolishing the forms of ac- tions at law now in use, and that justice shall be administered in a uni- form mode of pleading, without dis- tinction between law and equity." Gavin and Hord's Ind. Stats., vol. 2, p. 7, 0. 14: " Circuit courts shall have jurisdiction of all kinds of civil ac- tions." " Such courts shall have power to make all proper judgments, sen- tences, decrees, orders, and injunc- tions, and to issue all processes, and to do such other acts as may be proper to carry into effect the same, in con- formity with the constitution and laws of this state." [Rev. Stats. 1888, seo. 1314; Stats. 1881, p. 102: "Circuit courts shall have original exclusive jurisdiction in all cases at law and in equity whatsoever, .... except where exclusive or concurrent jurisdiction is or may be conferred by law upon jus- tices of the peace."] Kansas. — Const., art. III., sec. 6: " District courts shall have such juris- diction as may be provided by law "; that of the supreme court is entirely appellate. Gen. Stats. 1868, p. 304, a, 28, sec. 1: District courts "shall 1 Eq. Jhk. —26 have a general original jurisdiction of all matters, civil and criminal, not otherwise provided by law. " Minnesota. — Stats, at Large of 1873, p. 723, sec. 17: " District courts shall have original jurisdiction of all civil actions." Seo. 18: "The district courts have original jurisdiction in equity, and all suits or proceedings in- stituted for equitable relief are to be commenced, prosecuted,and conducted to a final decision and judgment by the like process, pleadings, trial, and proceedings as in civil actions, and shall be called civil actions." Stats. 1866, c. 64, tit. L Missouri. — Const., art. VI., sec. 13: Circuit courts "shall have exclusive original jurisdiction in all civil cases which shall not be cognizable be- fore justices of the peace." Wag- ner's Stats. 1870, p. 431, sec. 2: "Cir- cuit courts shall have .... exclusive original jurisdiction in all civil oases which shall not be cognizable be- fore county courts and justices of the peace. " [Montana. — Const., art. VIII., sec. 11: "The district courts shall have original jurisdiction in all cases at law and in equity." Sec. 28: "There shall be but one form of civil action, and law and equity may be adminis- tered in the same action."] {North Dakota. — Const,, sec. 103: " The district court shall have original jurisdiction, except as otherwise pro- vided in this constitution, of all causes, both at law and equity." By section 111, provision is made for conferring general jurisdiction on certain county (probate) courts.] Ohio. — Const., art. XIV., sec. 3: Courts of common pleas are the tri- bunals of original general jurisdiction throughout the state; and (sec. 4) they have " such jurisdiction as shall be conferred by law." There is also a superior court of the city of Cincin- nati possessing the same jurisdiction within certain territorial limits. Swaa and Critchfield's Rev. Stats. 1870, p. 386, c. 32, seo. 33 [Smith and Bene- dict's Rev. Stats. 1890, p. 124, sec. 456]: Courts of common pleas "shall have original jurisdiction in all civil cases where the sum or matter in dis- 288 EQUITY JURISPRUDENCE. 402 ment with respect to the amount of equity jurisdiction conferred upon the courts by this fundamental legislation of the various states, since the whole power belonging to a court of chancery seems to be given either expressly or impliedly in all the commonwealths with a few excep- tions, yet practically such a complete uniformity by no means exists. The real condition of the jurisdiction as it is administered in the different groups of states requires a brief statement of the judicial interpretation which has been given to the constitutional and statutory grants of power, either taken separately or arranged according to their respective types. This judicial interpretation is described in the following section. puts exceeds the exclusive original jurisdiction of justices of the peace." A like power is giren to the superior court of Cincinnati within its territo- rial limits. South Carolina. — The constitution of 1868 provides for an appellate court and lower courts of original jurisdic- tion; and that the distinction between suits in equity and actions at law shall be abolished. Prior to this re- vision of the constitution, law and equity had been administered by dis- tinct tribunals. In 1870 a code of procedure was adopted similar in all respects to the like code which had prevailed in New York since 1849, by which the legal and equitable jurisdic- tions are combined in the same pro- ceedings. [SotUh Dakotcu — Const., art. V., sec. 14: "The circuit courts shall have original jurisdiction of all actions and causes, both at law and in equity." General jurisdiction maybe conferred by statute.ou county (probate) courts]. In two other states of this class all distinction between legal and equita- ble actions has been abandoned, but the peculiar methods of the reformed procedure have not been adopted. The law of Louisiana, both with re- spect to substantive or primary rights and to remedies, is based upon the "civil law" as that had been moiii- fied and reconstructed by the French codes. The substantive law of Texas has also a large element of the "civil law," but recognizes the common law and the principles of equity. Its remedial procedure provides one form of action for. all kinds of relief, but does not copy either the common-law or the chancery methods. In each of these states many of the principles, doctrines, and remedies of equity con- stitute a part of the jurisprudence, for no enlightened system could be without them. Texas. —Co-aai. 1869, art. V., sec. 3: The supreme court has only an ap- pellate jurisdiction. Sec. 7: " Dis- trict courts have original jurisdiction of all suits, without regard to any distinction between law and equity, when the value of the matter in con- troversy is one hundred dollars or more." [ Washington. — Const., art. IV., sec. 6: "The superior court shall have original jurisdiction in all cases in equity," and in many cases at law.] \_Wyommg. — Const., art. V,, sec. 10: "The district court shall have original jurisdiction of all causes, both at law and in equity."] 403 JUDICIAL INTERPRETATION OF JURISDICTION. § 289 SECTION II. THE JURISDICTION AS ESTABLISHED BY JUDICIAL INTER- PRETATION. §2S9. §290. §§ 291-298. §292. §293. §294. §295. §§ 296, 297. §297. §298. §§ 299-341. §S 299-310. §§ 311-321. §§ 322-337. §§ 338-341. §§ 342-352. §342. §343. §344. §345. §S 346-352. §347. §348. §349. §360. §§ 351, 352. §§ 353-358. §354. SS 355-358. §356. §357. §358. The questions to be examined stated. Diversity of statutory interpretation in different states. United States courts, equity jurisdiction of. First principle: Uniformity of jurisdiction. Second principle: Identity of jurisdiction. Third principle: Extent of the jurisdiction. Fonrth principle: Inadequacy of legal remedies. niustratious. Ditto; effect of state laws on the subject-matter of the jurisdic- tion. Territorial limitations on the jurisdiction. States in which only a special and partial jurisdiction hag been given by statute. New Hampshire. Massachusetts. Maine. Pennsylvania. The other states in which a general jurisdiction has been given. What states are included in this division. Questions to be examined stated. Interpretation of statute limiting the jurisdiction to cases for which the legal remedy is inadequate. General extent of the statutory jurisdiction; the states arranged in the foot-note. How far this equity jurisdiction faxtenda to the administration of decedents' estates. Probate courts, jurisdiction and powers of. Class first: The ordinary equity jurisdiction over administrations expressly abolished. Class second: Such jurisdiction practically abrogated or obso- lete. Class third: Such jurisdiction still existing and actually con- current. Special subjects of equity jurisdiction connected with or grow- ing out of administrations. States which have adopted the reformed system of procedure. General effect of this procedure on the equity jurisdiction. Its particular effects upon equity. On certain equitable interests and rights. On certain equitable remedies. On the doctrine as to inadequacy of legal remedies. §§ 289, 290 EQUITY JUBISPKUDBNCB. 404 § 289. Questions Stated. — Having collected the legis- lative grants of equitable jurisdiction, I shall now, for the purpose of arriving at a practical result, describe in a very brief and condensed manner the judicial inter- pretation which has been given to them. It will not be necessary to examine each of them separately; they may, with a very few exceptions, be conveniently grouped and discussed according to three or four prevailing types. It was remarked at the close of the last section that while there appeared to be a very general agreement on the amount of equitable jurisdiction conferred by the con- stitutions and statutes, yet practically such a complete uniformity does not exist. This actual condition results from several causes. § 290. Different Theories of Interpretation. — In the first place, a marked diversity will be found in the funda- mental motives and theory of the judicial interpretation put upon these legislative provisions by the courts of different states. In some of them a strong tendency has been shown to lay much stress upon the limiting clauses contained in the statutory grants of authority, and to give a broad meaning and controlling operation to such clauses as those which restrict the equitable jurisdiction to cases " where there is no plain, adequate, and com- plete remedy at law." In others, the tendency has been towards a more liberal construction; to hold that these and similar clauses are simply declaratory of a familiar principle embodied in the general theory of equity juris- diction, and add no restriction whatever to the extent of jurisdiction which would have been conferred without their presence; in short, that they merely state a limita- tion which is necessarily involved in the very conception of the equitable jurisdiction. In the second place, the apparent uniformity in the jurisdiction created by these general provisions has been greatly interfered with, and even destroyed, by the different systems of legislation adopted by various states with reference to many impor- 405 JUDICIAL INTERPRETATION OF JUEISDICTION. § 291 tant branches of the municipal law, which originally, and prior to any statutory interposition, formed a part of the equity jurisprudence. In many, and perhaps most, of the states, subjects which fell within the domain of equity, and which were governed by equitable doctrines as administered by the court of chancery, have been wholly subjected to a statutory regulation, and committed to special tribunals, such as the courts of probate, so that the interference of equity is no longer necessary, even if it is possible. Other departments of the municipal law — as, for example, trusts and married women's property — have been modified by legislation, so that the material upon which the equity jurisdiction acted has been altered, limited, or perhaps enlarged. Some of these changes have already been described. This same method of modifying the equitable jurisdiction has even been car- ried out to a much greater extent. In several of the states, the municipal law has been, either wholly or in large part, reduced to a codified form, and the doctrines and rules, both of law aud equity, have thus been com- bined into one statutory system; or at least, the division walls between them have, to a considerable extent, been broken down. From these facts, the conclusion is evi- dent, that in order to ascertain the actual jurisdiction of equity as it now exists in the different states, an exami- nation is requisite both of the judicial decisions inter- preting its fundamental grants of power, and of the statutes which have modified the subject-matter upon which it acts. In the brief examination of the judicial construction which follows, I shall consider first and sep- arately the United States, and shall then take up the several states, arranged in a few groups. § 291. The United States. — The constitution of the United States recognizes equity as a part of the national jurisprudence inherited from England at the time of the Revolution, and the equitable jurisdiction as a part of the judicial powers conferred upon the national tribunals. § 292 EQUITY JUEISPKUDENCE. 406 The statutes of Congress have, as is seen by the extracts given in the preceding section, acted upon this constitu- tional provision; and have, in broad terms, intrusted the exercise of this jurisdiction to the courts of original juris- diction, which are established throughout the states, and to the supreme court created by the constitution as the appellate tribunal of last resort. In giving a judicial in- terpretation to these constitutional and statutory enact- ments, the national courts have, by numerous decisions, settled the following principles, which may justly be regarded as tlie foundations of the equitable powers pos- sessed by the national judiciary. §292. First Principle: Uniformity. — The equitable jurisdiction of the national courts, being derived wholly from the United States constitution and statutes, exists uniformly and to its full extent throughout the entire Union, independent of and unaflfected by any state laws, or any peculiar system of jurisprudence and legislation adopted by individual states. It is the same in Louisiana with its civil-law code, in California with its code com- bining legal and equitable doctrines, and in New Jersey, which has preserved the ancient English system of com- mon law and equity almost unaffected by modern legal reform. Whatever may be the municipal law of any par- ticular state, either in its substance or its form, the United States courts in that state preserve their equitable juris- diction, and administer the equitable jurisprudence un- changed by such local legislation. It follows, as a neces- sary consequence from this principle, that the reformed system of procedure now prevailing in many states and territories, whereby all distinction between suits in equity and at law is abolished, and all rights are maintained and all reliefs procured by means of one judicial proceed- ing, called the " civil action," has not in the least affected either the doctrines of equity jurisprudence administered, nor the extent and modes of equity jurisdiction exercised, 407 JUDICIAL INTERPKBTATION OP JURISDICTION. § 293 by the national courts situated and acting within the same commonwealths.' §293. Second Principle: Identity. — The second prin- ciple is a corollary of the first. The equitable jurisdiction is the same with respect to its nature and extent in all the states, and is wholly unmodified and unabridged by state legislation which deals with subjects belonging to the general system of equity jurisprudence. State laws subtracting from or limiting the scope of equity do not act upon the equitable powers and jurisdiction held by ' This result of the principle stated in the text is recognized and followed by the most recent legislation of Con- gress upon the subject. U. S. Rev. Stats., see. 914 (Laws of 1872, c. 255, sec. 5; 17 Stats, at Large, p. 197), pro- vides that practice, pleading, forms, and modes of proceeding in civil causes, other than in equity or in admi- ralty, shall conform as near as may be to the forms, pleading, etc., existing at the time in like causes in the courts of record of the state within which the United States court is held. This provision preserves the equity methods unchanged by the state laws. The following cases maintain the doctrine formulated in the text: Bodley v. Taylor, 5 Cranch, 191, 221, 222; Liv- ingston v. Story, 9 Pet. 632; [see also Ridings v. Johnson, 128 U. S. 212;] (equity jurisdiction in Louisiana); Clark V. Smith, 13 Pet. 195, 203; Wat- kins V. Holman, 16 Pet. 25, 26, 58, 59; Bennett v. Butter worth, ll How. 669, 674, 675; Stinson v. Dousman, 20 How. 461, 464; Greer v. Mezes, 24 How. 268, 277, per Grier, J. ; Lessee of Smith v. MoCann, 24 How. 398, 403; Barber v. Barber, 21 How. 582, 591, 592; Noonan V. Lee, 2 Black, 499, 509; Thompson v. Railroad Co., 6 Wall. 134, 137; Dunphy V. Kleinsmith, 11 Wall. 610, 614; Walker v. Dreville, 12 Wall. 440 (in Louisiana); Basey v. Gallagher, 20 Wall. 670, 679; 1 Mont. Ter. 457; Case of Broderick's Will, 21 Wall. 503; Shuford v. Cain, 1 Abb. 302, 305; Loring v. Downer, 1 McAU. 360, 362; Mezes v. Greer, 1 McAU. 401, 402; Byrd v. Badger, 1 McAll. 443, 444; Lorman v. Clarke, 2 McLean, 668; Putnam v. City of New Albany, 4 Biss. 365. [See also Northern Pae. R. R. V. Paine, 119 U. S. 561; Gold- smith V. Gilliland, 22 Fed. Rep. 865; Myrick v. Heard, 31 Fed. Rep. 97. Church V. Spiegelburg, 31 Fed. Rep. 601; Borer v. Chapman, 119 U. S. 587; Kirbv V. L. S. etc. R. R. Co., 120 U. S. 13*7; Northern Pac. R. R. Co. v. St. P., M., & M. R'y Co., 3 Fed. Rep. 702; Smythe v. Henry, 41 Fed. Rep. 715; Herklotz v. Chase, 32 Fed. Rep. 433.] The principle was concisely and clearly stated in Shuford v. Cain, 1 Abb. Pr. 302, 305, by Erskine, J. : "In the courts of many states — Georgia, for example — law and equity are in a greater or leas degree blended. This commin- gling is unknown in the national courts. .... As courts of equity, they enter- tain suits in which the relief is sought according to the principles, and in general the practice, of the equity jurisdiction as established in English jurisprudence "; citing Parsons v. Bedford, 3 Pet. 447; Robinson v. Campbell, 3 Wheat. 212; United States V. Howland, 4 Wheat. 108; Pennsyl- vania v. Wheeling Bridge Co., 13 How. 519. In Thompson v. Railroad Co., 6 Wall. 134, 137, the supreme court distinctly held that the state codes abolishing the distinction be- tween legal and equitable proceedings, and establishing one civil action, etc., do not affect the jurisdiction or meth- ods of the United States courts in such states. In Putnam v. New Albany, 4 Biss. 365, it was held that the Indi- ana code of procedure giving certain equitable remedies in courts of law does not oust a court of equity of its former jurisdiction to give the same or similar remedies by suit. § 293 EQUITY JUKISPKUDENCE, 408 the national courts. But while state legislation cannot thus influence the jurisdiction negatively so as to narrow it, it may operate affirmatively so as, at least indirectly, to enlarge it. The actual jurisdiction of the United States courts in large measure depends upon the personality of the litigant parties, — their state citizenship, — and extends to all subject-matters belonging to such tribunals. The primary rights, interests, or estates of the litigant parties, which are dealt with by the exercise of this jurisdiction, must often, therefore, be created by state laws, and not by statutes of Congress. It has accordingly been repeat- edly held that while the equitable jurisdiction cannot be narrowed or limited by any state legislative or judicial action, on the other hand, if equitable primary rights, interests, or estates have been enlarged, or if entirely new equitable primary rights or interests have been created, by state laws, such enlarged or new rights will necessarily come within the equity jurisdiction of the national courts, and may be protected, maintained, and enforced in ap- propriate suits by proper remedies.' A very striking ' Pratt V. Northam, 5 Mason, 95, the equity jurisdiction of tha courts 105; Lorman v. Clarke, 2 McLean, 568; of the United States is not limited Livingston v. Van Ingen, 1 Paine, 45; or restrained by the local remedies Canal Co. v. Gdrdon, 6 Wall. 561, 568; in the different states; that it is the Barber v. Barber, 21 How. 582, 591, same in all the states, and is the same 592; Case of Broderick's Will, 21 which is exercised in the land of our Wall. 503; Noonan v. Lee, 2 Black, ancestors, from whose jurisprudence 499, 509; Livingston v. Story, 9 Pet. our own is derived "; citing Robinson 632; Clark v. Smith, 13 Pet. 195; 203; v. Campbell, 3 Wheat. 212; United Putnam V. New Albany, 4 Biss. 365. States v. Howland, 4 Wheat. 108, 115. [See also Fechheimer v. Baum, 38 Fed. In Lorman v. Clarke, 5 McLean, 568, Rep. 167; Wells, Fargo, & Co. V. Miner, McLean, J., decided in the circuit 25 Fed. Rep. 533; Goldsmith v. Gilli- court for Michigan, that the "United land, 22 Fed. Eep. 865; Reynolds v. States courts derive their equity as Crawfordsville Bank, 112 U. S. 410; well as their common-law jurisdiction Gormley v. Clark, 134 U. S. 348; from the constitution and laws of the Holland v. Challen, 110 U. S. 16, ex- United States. In states where there plained in Whitehead v. Shattuck, is no chancery court, the equity juris- 138 U. S. 146; Hartford Fire Ins. Co. diction of the United States courts is V. Bonner Mercantile Co., 44 Fed. the same as in other states. A state Rep. 151; De la Vergue etc. Co. v. cannot enlarge nor restrict the jui-is- Montgomery etc. Co., 46 Fed. Rep. diction of the United States courts. 829; Alexander v. Mortgage Co., 47 But the primary rights of parties may Fed. Rep. 131.] In Pratt v. Northam, be governed by or created by the laws 5 Mason, 95, Story, J., thus stated the of a state; and the jurisdiction of the general doctrine: "It has been often United States to adjudicate upon decided by the supreme court that those rights, and the modes whether 409 JUDICIAL INTERPKETATION OF JUKISDICTION. § 294 illustration of this principle may be seen in the power of the United States circuit courts to entertain a suit for the general administration and settlement of a decedent's per- sonal estate, when the citizenship of the parties is such as to confer the jurisdiction. In very many of the states the whole subject of administration has been taken from the equity tribunals, and conferred upon probate courts acting under special statutory authority. This legisla- tion, it is held, has not afifected the original equitable jurisdiction of the national courts sitting in such states, nor interfered with their power to entertain a suit for ad- ministration in a proper case.* §294. Third Principle: Extent.— The third princi- ple relates to the extent of the jurisdiction. While the equitable jurisdiction of the national courts is derived wholly from the United States constitution and statutes, it is identical or equivalent in extent with that possessed by the English high court of chancery at the time of the Revolution. The judicial functions and powers of the English court of chancery are held to have been conferred en masse upon the national judiciary; but not the peculiar administrative functions held by the chan- cellor as representative of the crown in its character of parens patrix. These latter functions of the English chancellor have not been granted to the United States courts, but are given to the several states, and are exer- cised either by the state legislatures or by the state tribu- equitable or legal, are governed by In Case of Broderiok'a Will, 21 United States laws." In Barber v. Wall. 503, the supreme court held Barber, 21 How. 582, 591, 592, Wayne, that "alterations in the jurisdiction J., said: "It is no objection to the of state courts cannot affect the equi- equity jurisdiction in the courts of the table jurisdiction of the United States United States, that there is a remedy courts, so long as the equitable rights under the local law, for the equity themselves remain; but an enlargement jurisdiction of the federal courts is of equitable rights may be adminis- the same in all the states, and is not tered by United States courts as well affected by the existence or non-exist- as by the state courts." [This language ence of an equity jurisdiction in the was repeated in Holland v. Challen, state tribunals. It is the same in 110 U. S. 16.] nature and extent as the jurisdiction * Pratt v. Northam, 6 Mason, 95, of England, whence it is derived "; 105, per Story, J. citing Livingston v. Story, 9 Pet. 632. § 295 EQUITY JUEISPKUDENCB. 410 nals. The United States supreme court has frequently laid down and acted upon this principle in deciding cases brought for the purpose of enforcing charitable trusts.' § 295. Fourth Principle: Inadequacy of Legal Reme- dies. — The fourth principle also relates to the extent of the equitable jurisdiction, as that is affecled by the most important provision of the statute.' In the judicial in- terpretation of this clause, it has been well settled that the section of the statute is merely declaratory of a familiar doctrine belonging to the general system of equity juris- diction and jurisprudence. It does not take away or abridge the jurisdiction which is affirmatively granted, nor deprive the United States courts of any part of the field of powers occupied by the English court of chan- cery so far as the functions of that tribunal are judicial. In short, this section does not substantially affect the equitable jurisdiction of the national courts; their powers would have been the same, and subject to the same limits, if the provision had not been enacted.' • Bodley v. Taylor, 5 Cranch, 191, " Equity jurisdiction of the courts of 221, 222; Fontain v. Ravenel, 17 the United States is derived from the How. 369, 384-; Canal Co. v. Gordon, constitution and lawa of the United 6 Wall. 561, 568; Case of Broderick'a States. Their powers and rules of Will, 21 Wall. 503; Noonan v. Lee, 2 decision are the same in all the states. Black, 499, 509; Loring v. Marsh, 2 Their practice is regulated by them- Cliff. 469, 493; Livingston v. Van selves and by rules established by the Ingen, 1 Paine, 45. [See also Mor- supreme court. In all these respects mon Church v. United States, 136 they are unaffected by state legisla- U. S. 1.] In Fontain v. Ravenel, 17 tion"; citing Neves v. Scott, 13 How. How. 369, a suit to establish a chari- 270; Boyle v. Turner, 6 Pet. 658; table trust, Mr. Justice McLean stated Robinson v. Campbell, 3 Wheat. 323. the doctrine as follows: "The courts 'I refer to the United States Re- of the United States cannot exercise vised Statutes, section 723, being the any equity powers except those con- same as section 16 of the Judiciary Act ferred by acts of Congress, and those of 1789,quotedante,innoteunder§312. judicial powers which the high court ' Boyce's Executors v. Grundy, 3 of chancery in England, acting under Pet. 210, 215; Baker v. Biddle, 1 its judicial capacity as a court of Bald. 394, 403; Barber v. Barber, equityj possessed and exercised at the 21 How. 582, 591; Hunt v. Danforth's time of the formation of the constitu- Ex'rs, 2 Curt. 592, 603; Bunce v. tion of the United States. Powers Gallagher, 5 Blatch. 481, 487. The not judicial, exercised by the chan- doctrine of the text was clearly stated cellor merely as the representative of in Boyce's Executors v. Grundy, 3 Pet. the sovereign, and by virtue of the 210, 215, by Johnson, J., and has been king's prerogative as parens patricB, repeated by the subsequent cases: are not possessed by the United States "This court has been often called circuit courts." In Noonan v. Lee, 2 upon to consider section 16 of the Black, 499, 509, Swayne, J., said: Judiciary Act of 1789, and as often, ' 411 JUDICIAL INTERPEETATION OF JURISDICTION. § 296 § 296. Illustrations. — The four foregoing principles may be justly regarded, I think, as the very foundations of the equitable jurisdiction of the United States courts. They give it whatever peculiar character it possesses growing out of the double organization of the national and state governments, and they clearly distinguish it from the jurisdiction possessed by any 'state tribunals. In the practical administration of their equitable pow- ers, the national judiciary have constantly affirmed and steadily adhered to the doctrine in its negative form, that the equitable jurisdiction does not exist, or will not be exercised, in any case or under any circunastances where there is an adequate, complete, and certain remedy at law, sufficient to meet all the demands of justice.* I have collected and placed in the foot-note a number of exam- ples which will sufficiently illustrate the uniformity and consistency with which the United States judiciary have applied this negative rule under a great variety of cir- cumstances.* either expressly or by the course of its decisions, has held that it is merely declaratory, making no alteration whatsoever in the rules of equity on the subject of legal remedy. It is not enough that there is a remedy at law; it must be plain and adequate, or in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity." [In the recent case of McOonehay v. Wright, 121 U. S. 20, the supreme court of the United States again laid down the rule that the test of the equity jurisdiction of the courts of the United States, so far as the same was determined by the adequacy of the remedy at law, is the remedy which existed when the Judiciary Act of 1789 was adopted, unless subsequently changed by Con- gress, and is not the existing remedy in a state or territory by virtue of local legislation. See also Payne v. Kansas & A. Val. R. R. Co., 46 Fed. Rep. 546.] ' Thompson v. Railroad Co., 6 Wall. 134, 137; Parker v. Winnipiseogee etc. Co., 2 Black, 545, 550; Knox v. Smith, 4 How. 298, 316; Wright v. Ellison, 1 Wall. 16, 22; Oelrichs v. Spain, 15 Wall. 211; Lewis v. Cocks, 23 Wall. 466, 470; Hungerford v. Sigerson, 20 How. 156; Hipp V. Babin, 19 How. 271; Baker v. Biddle, 1 Bald. 394, 405; Blakeley v. Biscoe, 1 Hempst. 114, 115; United States T. Meyers, 2 Brock. 516; Andrews v. Solomon, 1 Pet. C. C. 356; Shapley v. Rangeley, 1 Wood. & M. 213, 216; 2 Ware, 242; Pierpout V. Fowle, 2 Wood. & M. 23; Foster v. Swasey, 2 Wood. & M. 217. ' It has thus been decided that the jurisdiction, if concurrent, does not exist, and if exclusive, will not be ex- ercised, in the following cases: Not to try the mere legal title to lands, or to recover possession of lands when only the legal title is disputed: Mezes v. Greer, 1 McAU. 401, 402; Hipp v. Babin, 19 How. 271; Lewis v. Cooks, 23 Wall. 466, 470; [see also Killian v. Bbbinghaus, 110 U. S. 568;] nor for a breach of a simple contract of agency : Blakeley v. Biscoe, 1 Hempst. 114, 115; nor of suit by principal against his agent to recover for losses occa- sioned by the latter's negligence or § 297 EQUITY JUEISPRUDBNCB. 412 § 297. Effect of State Laws. — On the other hand, the affirmative form of the rule has also been uniformly as- serted and maintained, that the equitable jurisdiction exists and will be exercised in all cases, and under all circumstances, where the remedy at law is not adequate, complete, and certain, so as to meet all the requirements of justice. That there is a legal remedy is not enough; such remedy, in order to oust or prevent the equitable misconduct: Voso v. Philbrook, 3 Story, 335, 344, 345; nor of suit by in- surance company to cancel a fire policy, and enjoin action at law thereon, on the ground of fiaiidulent representa- tions in procuring the same, where the suit was brought after a loss: Home Ins. Co. V. Stanchfield, I DiU. 424, 429, 431-43S; 2 Abb. 1; whether the suit for a discovery has been abrogated by statutes making parties liable to be called as witnesses for their adversa- ries: Home Ins. Co. v. Stanchfield, 1 DiU. 424, 429, 431^38; 2 Abb. 1; when suit will not be sustained to set aside a sale on ground of fraud: An- drews V. Solomon, 1 Pet. C. C. 356; Foster v. Swasey, 2 Wood. & M. 217; nor to recover on contract which has been entirely performed, ercept the payment of the money due thereon; and equity has no jurisdiction to com- pel municipal officers to levy a tax in order to provide a fund for the pay- ment of such a contract; Heine v. Loan Commissioners, 19 Wall. 655; 1 Woods, 246; nor of a suit brought to enforce a decree in equity for the payment of money alone: Telford v. Oakley, 1 Hempst. 197; nor of a suit to declare the future rights which may arise un- der a will : Cross V. De Valle, 1 Wall. 1 ; 1 Cliff. 282; nor of a suit for a di- vorce or for alimony: Barber v. Bar- ber, 21 How. 582, 584; nor of a suit to establish the probate of a will, nor to set aside the probate of a will on any ground; Fouverne v. New Orleans, 18 How. 470, 473; nor of a suit to set aside a will or the probate thereof, on the ground of forgery or of fraud; nor to declare the executor, or legatee, or devisee in such a will a trustee: Case of Broderiok's Will, 21 Wall. 503; [nor to set aside the granting of letters of administration on the ground of fraud; nor to charge purchasers at such ad- ministrator's sale nnder order of court as trustees: Simmons v. Saul, 138 U. S. 439 ;] nor to maintain the " proceedings supplementary to execution," author- ized by a state code of procedure, the proper equitable remedy being a "creditor's suit": Byrd v. Badger, 1 McAU. 44.3, 444-446; when the juris- diction will not be exercised in a case of private nuisance: Parker v. Winni- piseogee Co., 2 Black, 545, 550; nor to enjoin any suit pending in a state court: Rogers V, Cincinnati, 6 McLean, 337; nor to enjoin a sheriff under or- dinary circumstances from levying on and selling, under an execution against a third party, any property in which the plaintiff 'is interested, an action at law for damages being ample remedy : Knox v. Smith, 4 How. 298, 316; nor to enforce a forfeiture: Horsburg v. Baker, 1 Pet. 232, 236; for limita- tions upon the jurisdiction of the na- tional courts in enforcing vague and uncertain charities: See Fontain v. Ravenel, 17 How. 369, 384. [A state statute authorizing suit to quiet title by one out of possession against one in possession will not be enforced in equity, as the remedy by ejectment is adequate: Whitehead v. Shattuck, 138 U. S. 146; nor a creditor's bill author- ized by state statute to be brought before any proceedings are had at law to establish the validity of the claim: Scott V. Neely, 140 U. S. 106; United States v. Ignate, 48 Fed. Rep. 251; nor a state statute conferring equity juris- diction in accounting, where "the nature of the account is such that it cannot conveniently and properly be adjusted and settled in an action at law," as it does not create a new rem- edy, but merely withdraws a certain class of cases from a court of law to a court of eqnity: Hunton v. Eqnit. Life Assur. Soc, 45 Fed. Rep. 661.] 413 JUDICIAL INTEKPKBTATION OF JUKISDICTION. § 297 jurisdiction, must be in all respects as satisfactory as the relief furnished by a court of equity.' Not intending to re-examine the questions concerning jurisdiction which have been discussed in the preceding chapters, I have merely collected and placed in the foot-note a few decided cases as examples, which will illustrate the manner in which the United States courts have applied the fore- going affirmative rule, and have exercised their equitable powers under a variety of circumstances.* In order to ' Pratt V. Northam, 5 Mason, 95, 105; Baker v. Biddle, 1 Bald. 394; 403-411; United States v. Meyers, 2 Brook. 516; [Kilboum v. Sunderland, 130 U. S. 514; Smythe v. Henry, 41 Fed. Red. 715; Mann v. Appel, 31 Fed. Rep. 381.] In the case of Baker V. Biddle, 1 Bald. 394, 405, Baldwin, J., said; " It follows that wherever a court of law is competent to take coguizance of a right, and has power to proceed to a final judgment which affords a remedy plain, adequate, and complete, without the aid of a court of equity, the plaintiflf must proceed at law, because the defendant has a con- stitutional right of trial by jury. If the right is only an equitable one, or if the right being legal, the remedy is only equitable, or both legal and equi- table, partaking of the character of both, and a court of law is unable to afford a remedy according to its old and settled proceedings commensurate with the right, then the suit for its assertion may be in equity The tests of the relative jurisdiction over suits at law and in equity are, — 1. The subject-matter; 2. The relief; 3. Its application; 4. The competency of a court of law to afford it. " The judg- ment of Mr. Justice Baldwin in this case is, in my opinion, one of the ablest, clearest, and most, accurate statements of the true doctrines con- cerning the equitable jurisdiction to be found in the whole range of reports, English and American. ^ The equitable jurisdiction has been held to exist and has been exer- cised in the following cases, on the ground that the legal remedy is inade- quate: On behalf of the one having the equitable estate in land, to compel a conveyance to him of the legal estate: Bodley v. Taylor, 5 Cranch, 191, 221, 222; in " creditors' suits " an^ suits similiar thereto: Dunphy v. Kleins- mith, 11 Wall. 610, 614; Lorman v. Clark, 2 McLean, 568; Bean v. Smith, 2 Mason, 252, 267, 268; in suit to fore- close a mortgage, even in a state where the common-law mortgage is not known: Walker v. Dreville, 12 Wall. 440; in a suit to enforce a lien created by statute, and to enforce liens gener- ally: Canal Co. v. Gordon, 6 Wall. 561, 568; Heine v. Loan Comm'rs, 19 Wall. 655; 1 Woods, 246; [though the statute provides for the enforcement of such lien on the law side of the state court, in the federal courts it will be enforced on the equity side, as the legal procedure is not adequate: De la Vergne Refrig. Mach. Co. v. Montgomery Brewing Co., 46 Fed. Rep. 829;] to remove a cloud from title: Loring v. Dorner, 1 McAU. 360, 362-365; in an "administration suit": Pratt v. Northam, 5 Mason, 95, 105; to enforce charitable trusts, so far as the same can be done by judicial ac- tion: Fontain v. Ravenel, 17 How. 369, 3S4; to regulate and control one railroad company in the construction of its tracks across those of another company, where the state legislation has not prescribed any manner: Chi- cago & N. W. R. R. V. Chicago & Pac. R. R., 6 Biss. 219, 221, 222; to carry into full effect the provisions of a, bankrupt act passed by Congress, and in matters of accounting gener- ally: Mitchell V. Great Works etc. Mfg. Co., 2 Story, 648; in cases of fraud, misrepresentation, and conceal- ment, to give the relief of cancellation, etc.: Jones V. BoUes, 9 Wall. 364, 369j in suit by insurance company brought before a loss to cancel a fire policy on the ground of fraud in its procure- ment: Home Ins. Co. v. Stanchfield, I § 297 EQUITY JURISPEUDBNCB. 414 prevent a misconception of the foregoing rules concern- ing the equitable jurisdiction of the national courts, there is one limitation which must be constantly borne in mind. Since the original jurisdiction of the United States courts — especially of the circuit courts — in large measure de- pends upon the state citizenship of the litigant parties as its sole basis, it follows that in some cases of ordinary controversies — in all those which do not directly arise under statutes of Congress or provisions of the United States constitution — the subject-matter of the suit, the primary rights, interests, or estates to be maintained and protected, are created and regulated by state laws alone. While, therefore, it is correctly held that the equitable jurisdiction of the national courts, their power to enter- tain and decide equitable suits and to grant the remedies properly belonging to a court of equity, is wholly derived from the constitution and laws of the United States, and is utterly unabridged by any state legislation, yet, on the Dill. 424, 429, 431-438; 2 Abb. I; to a corporation and its managers tn set aside and cancel a written agree- prevent or redress wrongful acts and ment on the ground of fraud: Boyce's dealings with corporate property and Ex'rs V. Grundy, 3 Pet. 210, 215; franchises: Pond v. Vermont Valley when equity can give relief against a B. R., 2 Blatoh. 280, 287; to enforce a forged or fraudulent will which has payment of a judgment for money been admitted to probate, to parties recovered at law against a municipal entitled to the estate: Case of Broder- corporation which is wholly insolvent: ick's Will, 21 Wall. 503; to set aside Putnam v. New Albany, 4 Biss. 3B5; a forged deed of land at the suit of the to enforce by appropriate remedies pretended grantor, although the deed any equitable rights which may be is absolutely void: Bunce v. Gallagher, created by state laws: Clark v. Smith, 5 Blatch. 481, 487; citing PeirsoU v. 13 Pet. 195, 203; [the statutory Elliott, 6 Pet. 95; Hamilton v. Cam- remedy of suit to quiet title, both mings, 1 Johns. Ch. 517; in a suit for parties being out of possession: Hol- a discovery and an accounting: Baker land v. Challen, 110 U. S. 16; c. f., V. Biddle, 1 Bald. 394, 403-411; to Whitehead v. Shattuok, 138 U. S. 146, recover amount due on a decree for anle, in note § 296; suit authorized by alimony rendered by a state court in state statute to quiet title against a a suit for divorce, where the husband deed void on its face: Reynolds v. had removed to another state: Barber Crawfordsville Bank, 112 U. S. 410; v. Barber, 21 How. 582, 584, 591; to the enlarged remedy of interpleader restrain a private nuisance: Parker v. given by California statute: Wells, Winnipiseogee etc. Co., 2 Black, 545, Fargo, & Co. v. Miner, 25 Fed. Rep. 550-553; in a case of trust: United 533; statutory remedy by motion to States V. Meyers, 2 Brock. 516; by a vacate an award of arbitrators does married woman against an executor to not take away the equitable remedy: recover money given by the will to her Hartford Fire Ins. Co. v. Bonner separate use: Hunt v. Dantorth, 2 Mercantile Co., 44 Fed. Rep. 151.] Cart. 592, 603; by stockholders against 415 JUDICIAL INTERPRETATION OF JURISDICTION. § 298 other hand, the primary rights, interests, and estates which are dealt with in such suits and are protected by- such remedies are within the scope of state authority, and may be altered, enlarged, or restricted by state laws.* The equitable jurisdiction of the national courts is not directly affected by the state statutes, but what may be finally accomplished by the exercise of that jurisdiction, what estates, property rights, and other interests of the litigants may be maintained, enforced, or enjoyed by its means, must depend to a great extent upon the policy of •legislation adopted in each individual state. §298. Territorial Limitations. — There is one other special feature of the jurisdiction which remains to be considered, growing out of the peculiar organization of the national judiciary, and the restriction of the powers of each court within certain territorial limits or districts which are either coincident with or definite parts of the separate states.* This feature to which I refer is the locality of the subject-matter of the suit — its territo- rial position within a certain state or district — in its effect upon the jurisdiction. In respect to this matter, the following propositions have been established by re- peated and unanimous decisions: Where the subject- matter of the suit is strictly local, the jurisdiction of the United States court depends upon such locality, and can only be exercised in the state where the subject-matter is situated; in other words, where the subject-matter is local, and the suit is brought for the purpose of directly affecting or acting upon this subject-matter, and the ' As a familiar illustration of this married women holding separate prop. proposition, I mention the statutes in erty. [See Andrews Bros. Co. v. many states modifying and recon- Youngstown Coke Co., 39 Fed. Bep- structing the whole subject of trusts 353.] in real and personal property, and ' In most instances, a state consti- creating the separate property of mar- tutes a single judicial district of the ried women, and the like. While United States, Some of the larger such state statutes do not abridge the states, like Hew York, Pennsylvania, jurisdiction of the national courts to Ohio, and others, are divided into two entertain equitable suits concerning or more judicial districts. In no in- trusts or married women's property, stance does a district embrace two they, of course, determine the rights states, or portions of different states, growing out of these trusts or of the § 298 EQUITY JOKISPRUDENCK. 416 decree when rendered and the relief when granted would operate directly upon such subject-matter, and not merely upon the person of the party defendant, then the situa- tion of the subject-matter determines the proper place for the exercise of the jurisdiction; the jurisdiction can only be exercised in the state where such subject-matter is located.* It follows as a necessary consequence that where a court of the United States is sitting in one state, no decree which it renders can directly affect land situ- ated in another state. On the other hand, although the subject-matter may be local, — as, for example, a tract of< land, — still if the object of the suit is to directly deal with and affect the person of the defendant party, and not this subject-matter itself, and the decree when rendered and the relief when granted would in fact directly affect and operate upon the person of the defendant only, and would not directly operate upon the subject-matter, then the suit may be maintained in any state or district where the court obtains jurisdiction of the person of the defendant, although the subject-matter of the controversy referred to and described in the decree, and ultimately but indirectly affected by the relief granted, may be situated in another state. Under this rultf, it is well settled that equitable suits for the specific performance of contracts, for the enforcement of trusts, for relief on the ground of fraud, actual or constructive, or for the final accounting and settlement of a partnership, are not local, although the > Miss. & Mo. R. R. V. Ward, 2 In Maaaie v. Watts, 6 Cranch, 148, it Black, 485; Massie v. Watts, 6 Craaoh, was held that a suit on behalf of the 148; North. Indiana K. B. v. Mich, one holding the equitable estate in Cent. R. R., 15 How. 233; 5 McLean, certain laud to compel a conveyance to 444; Tardy v. Morgan, 3 McLean, 358. him of the legal title is thus local. These cases will sufficiently illustrate and can only be maintained in the both the meaning of the rule and its state where the land is situated. In application. In Miss. & Mo. R. R. North. Indiana R. R. v. Mich. Cent. T. Ward, 2 Black, 485, it was held R. R., 15 How. 233, a suit brought in that the United States circuit court in Michigan, directly dealing with the Illinois had no jurisdiction of a suit title and ownership of a railroad sit- brought to abate a nuisance which uated in Indiana, was dismissed for was situated across the Mississippi want of jurisdiction. River, within the territory of Iowa. 417 JUDICIAL INTERPRETATION OF JURISDICTION. § 298 land or other subject-matter may be situated in a state different from that in which the action is pending. Such a suit may be brought in any state where jurisdiction is obtained of the defendant's person. It should be care- fully observed, however, that a decree in such a suit di- recting a conveyance of the land under the contract, or in pursuance of the trust, or directing a sale or convey- ance of the partnership land, or a transfer of the estate affected by the fraud, only binds and operates upon the person of the defendant; it is not of itself a muniment of title, and does not of itself transfer any title; it can only be carried into effect by an actual conveyance executed by the defendant; and the execution of such conveyance can only be compelled by proper proceedings directed against the defendant personally, such as attachment, fine, and imprisonment.* I have thus described the dis- tinctive elements of the jurisdiction held by the United States courts, and proceed to consider the several states as they may be arranged in a few groups or classes, and take first in order the class in which the jurisdiction is or has been wholly statutory, special, and restricted. * Masaie v. Watts, 6 Cranch, 148; States court in one state may by its Watkins v. Holman, 16 Pet. 25, 26; decree order the conveyance of land Brigga v. French, 1 Sum. 504; Lyman in another state, and the decree may V. Lyman, 2 Paine, 11, 13; Carring- be enforced against the defendant per- ton's Heirs v. Brents, 1 McLean, 167; sonally. But the decree itself does Watts V. Waddle, 1 McLean, 200; Tardy not operate on the land nor on the V. Morgan, 3 McLean, 358. [See also title, nor does any conveyance made Montgomery v. United States, 36 Fed. under the decree by an officer, nor by Rep. 4, a case of the specific per- any one else other than the very per- formance of a contract for the sale of son himself in whom the title to the land outside the state; and Hart v. land is vested. In Briggs v, French, Sansom, 110 U. S. 155; Cole v. Cun- 1 Sam. 504, the same rule was applied ningham, 133 U. S. 107. In the latter by Story, J., to cases of fraud, either case, a suit was sustained to restrain actual or constructive. In Lyman v. the prosecution of a suit in another Lyman, 2 Paine, 11, the rule was ap- state.] In Massie v. Watts, 6 Cranch, plied to a suit for the settlement of a 148, the supreme court held that partnership and a sale of firm lands while a suit by the equitable owner of situated in another state. In Tardy land to compel a conveyance of the v. Morgan, 3 McLean, 358, the same legal estate is local, and can only be rule was reaffirmed, and it was further brought in the state where the land is held that the conveyance made by the situated, a suit on contract, or trust, defendant in pursuance of the decree or fraud is not thus local. Watkins operates under the deed of convey- V. Holman, 16 Pet. 25, is a leading anoe itself, and not under the decree authority. It decided that a United merely. 1 Eq. Jub. — 27 § 299 EQUITY JUEISPKUDENCE. 418 § 299. New Hampshire — General Extent and Nature. — The statute quoted in the preceding section/ while it particularly mentions several important specific heads of equity jurisprudence and equitable cognizance, also con- tains in its general clauses a very broad and comprehen- sive grant of equity jurisdiction. The courts of New Hampshire have given a very liberal interpretation to this enactment. Unlike the courts of Massachusetts, they have not regarded the language " in all other cases where there is not a plain, adequate, and complete remedy at law " as restrictive, or as imposing any new and statutory limitation upon the jurisdiction otherwise belonging to the court of chancery; but, following the example of the United States courts in dealing with a similar provision of the Judiciary Act, they have treated the clause as merely declaratory of the well-known principle which forms an essential element of the general equitable jurisdiction as exercised in England and throughout this country. In fact, according to the conclusions reached by the court after a careful historical examination, it seems to be de- cided that the equitable jurisdiction now possessed by the New Hampshire courts is not derived from this statute; that it existed to its full extent during the colonial period, and has never been abrogated or abandoned; and that the provisions now contained in the Revised Statutes of the state, which were adopted in 1832, instead of being the original source of the equitable powers, are simply regulative and limiting in their effect. The practical conclusion to be derived from a comparison of the lead- ing decisions is, that with respect to the heads of equi- table cognizance enumerated in the statute, and with respect to the matters embraced in the broader and more general grant of authority, the courts of New Hampshire possess the full equitable jurisdiction, equal in all respects to that exercised by the high court of chancery in Eng- land, so far as it has power to deal with the same subject- > See ante, note under § 286. 419 JUDICIAL INTERPRETATION OP JURISDICTION. § 299 matter. As the statute, like some portions of the United States constitution, enumerates, rather than describes, the courts, in their liberal mode of interpretation, have held that their jurisdiction includes all the incidental and auxiliary details, powers, and remedies belonging to the general system of equity jurisprudence, and reasonably necessary to render their principal functions effective in the due administration of justice according to the meth- ods and usages of equity; and that this jurisdiction has not been restricted, abridged, or modified, because the courts of law may have obtained the concurrent power to grant similar remedies which in some cases may be re- garded as adequate.' In other words, while the equitable ' Wells T. Pierce, 27 N. H. 503, 512 (1853); Walker v. Cheever, 35 N. H. 339, 349; Bean v. Coleman, 44 N. H. 539, 547; Samuel v. Wiley, 50 N. H. 353, 354, 355; Craft v. Thompson, 51 X. H. 636, 542. Since the discussion in several of these cases is very able, and since the conclusions reached will apply in other states as well as in New Hampshire, and will aid in de- termining the extent of their equi- table jurisdiction, I shall quote some instructive passages from oue or two of these opinions. The case of Wells ▼. Pierce, 27 N. H. 503, is especially interesting. The historical review by Mr. Justice Bell might doubtless throw much light npon the equitable system in others of the older states. I quote from his opinion, at page 512: "This court has a broad jurisdiction as a court of equity in all cases of trust, fraud, accident, or mistake. The limits of its jurisdiction in these cases are co-extensive with those of the court of chancery and other courts of equity in England. Equity, as a great branch of the law of their na- tive country, was brought over by the colonists, and has always existed as a part of the common law, in its broad- est sense, in New Hampshire, While our territory was under the colonial government of Massachusetts, there is reason to believe that the general court exercised original chancery jurisdic- tion: Wash. Jud. Hist, of Mass. 34; Ann. Charters of Mass. 94. Under the first royal governor of this province, Robert Mann was appointed chancel- lor of the province, and among the early records are to be found bills in equity which were heard and decided before him: 1 Belk. Hist. 198, 200. In 1692, by 'An act for establishing courts of judicature,' it was provided that ' there shall be a court of chan- cery within this province, which said court shall have power to hear and determine all matters of equity, and shall be esteemed and accounted the high court of chancery of this prov- ince; that the governor and council be the said high court of chancery,' etc. It is not known that this law was ever repealed, and it is supposed that the governor and council, who composed the court of appeals, continued to ex- ercise chancery powers till the Revo- lution Equity having thus always constituted a part of the law of New Hampshire, though there was a long period after the Revolution when there was no chancery court, and the jurisdiction conferred on this court in 1832 being as broad as equity itself, the question whether this court will lose its jurisdiction because there is adequate remedy at law is to be decided here aa it would be in Eng- land. If courts of equity had juris- diction in certain cases for which the ordinary proceedings at common law did not then afford an adequate rem- edy, that jurisdiction will not be lost because authority to decide in such cases has been conferred on courts of law by statute, unless there are nega- § 300 EQUITY JUKISPRUDENCK. 420 jurisdiction of New Hampshire is not in its extent actually commensurate with that of the English court of chancery, yet so far as it does extend, and with respect to all matters embraced within its scope, it is identical with the juris- diction held by any court of general equitable powers. Having thus shown the liberal spirit in which the courts of New Hampshire have interpreted the statutes, and their tendency to maintain and enlarge their own equi- table powers, and the comprehensive equitable jurisdic- tion which they possess, I shall now describe, in a very brief and summary manner, the practical results which have been reached by applying this mode of interpreta- tion to the most important subjects of equitable cogni- zance. It will appear that a. complete system of equity jurisprudence has been developed within the limits which fix the extent of the equitable jurisdiction. § 300. Specific Performance. — The courts of New Hampshire possess the full power to decree the specific, performance of executory contracts, whenever, according to the doctrines of equity jurisprudence, such remedy is tive words excluding the juriadiotion dress." The conrt further held that of courts of equity It ia well the objection that there was an ade- known that equitable relief can be but quate remedy at law would not apply very imperfectly obtained in courts of to the case, since it ia a well-estab- law, because the power of those courts lished principle that the equitable and their modes of practice are ill jurisdiction once existing will not be adapted for that purpose. On the in- lost or ousted because the courts of vestigation of all questiona of fraud, law have adopted equitable principles the discovery by the oath of the party and give relief under circumstances is one of the e£fectual means for its which formerly belonged to the do- detection. The common law affords main of equity alone. Craft v. Thomp- no meana of obtaining auch discovery, son, 51 N. H. 536, 542, per Foster, J. : and the recent statutory enactments "The jurisdiction of a court of equity, [in New Hampshire] are but an untried especially under the statute, is very experiment, which may fall much short comprehensive, and in all cases of of the discovery in chancery." VS^alker fraud, mistake, or accident, courts of V. Cheever, 35 N. H. 339, 349, per East- equity may, in virtue of their general man, J. :" Whatever doubts may have jurisdiction, interfere to set aside been entertained heretofore, we regard awards, upon the same principles and it as now settled that this court, as a reasons which justify their interference court of equity, has full chancery pow- in regard to other matters where there era, and a general equity jurisdiction: is no adequate remedy at law. And Wells V. Pierce, 27 N. H. 503; and this court may, by statute, "grant that it will administer relief in all writs of injunction whenever the same cases falling within equity jurisdic- is necessary to prevent fraud or injus- tion, where the statutes of the state tice': Geu. Stats., o. 190, sec. 1." have not provided other means of re- 421 JUDICIAL INTERPRETATION OP JURISDICTION. § 301 or may be granted, without any exception or limitation.' The jurisdiction includes, in its fullest extent, the specific enforcement of verbal contracts for the purchase and sale of lands, either where the agreement is admitted by the defendant in his pleading, or where a part performance has taken the case out from the operation of the statute of frauds. The interpretation put upon their statutes by the courts of Massachusetts and of Maine, whereby the power to enforce the specific performance of such verbal con- tracts has been denied, is expressly rejected.* In admin- istering this remedy the courts have adopted all the settled rules of equity which govern its use, admitting all of the equitable limitations and defenses which are really meant by the ordinary language which describes it as "discre- tionary." ' § 801. Mortgage, Foreclosure, and Bedemption. — As the statute in express terms gives jurisdiction in cases "of the redemption and foreclosure of mortgages," no question could arise as to the existence of a full power to grant these remedies under all circumstances of equitable cognizance. It is decided, however, that this grant of equitable jurisdiction in cases of redemption has not re- pealed by implication a prior statute passed in. 1829, by which it is provided that if the mortgagee should be in quiet possession of the mortgaged premises for one year ' Newton v. Swazey, 8 N. H. 9, II; of their statutes conferring chancery Tilton V. Tilton, 9 N. H. 385, 389; powers. This court has the power to Powers V. Hale, 25 N. H. 145; Picker- decree the specific performance of con- ing V. Pickering, 38 N. H. iOO, 407; tracts generally without qualification; Bunton V. Smith, 40 N. H. 352; East- and it is a reasonable construction man v. Plumer, 46 N. H. 464, 478; that our powers on this subject con- Chartier v. Marshall, 51 N. H. 400; form substantially to the practice of Ewins V. Gordon, 49 N. H. 444. courts of chancery in England, so far ' Newton v. Swazey, 8 N. H. 9, 11; as that practice may be applicable to Tilton V. Tilton, 9 N. H. 385, 389; our condition. " Buuton V. Smith, 40 N. H. 352. In ' Powers v. Hale, 25 N. H. 145; Tilton V. Tilton, 9 N. H. 385, Wilcox, Pickering v. Pickering, 38 N. H. 400, J., said: " It is no objection to the 407; Eastman v. Plumer, 46 N. H. power of a court of equity to decree a 464, 478; Chartier v. Marshall, 51 specific performance, that the contract N. H. 400. In Ewins v, Gordon, 49 is proved only by parol testimony. N. H. 444, a unilateral contract in the Cases in Massachusetts and Maine form of a penal bond for the convey- are not in point on this subject, as ance of laud was enforced, they rest upon the peculiar provisions § 302 EQUITY JURISPKUDENCE. 422 after condition broken, without payment or lawful tender of the debt within that time, the mortgagor should be thereby forever barred and foreclosed of his right to re- deem. This statutory foreclosure or bar is not abrogated by the right of redemption by means of a suit in equity.' A suit in equity may be maintained to redeem a pledge, if an accounting is necessarj' to ascertain the amount due, or there has been an assignment of the pledge.^ § 302. Discovery. — The statute mentions cases " of discovery, where discovery may be had according to the course of proceedings in equity." The earlier decisions plainly admit a discovery, in suits brought both for dis- covery and relief, as a source of jurisdiction, or rather, perhaps, as an aid to the exercise of the jurisdiction in cases where the subject-matter, such as fraud, is of itself one of equitable cognizance. The more recent decisions leave no doubt that the so-called " American rule," for- merly adopted in some of the states, whereby a discovery is regarded as an independent ground of a concurrent jurisdiction to adjudicate upon purely legal rights and to grant purely legal remedies in cases not otherwise belong- ing to the equitable jurisdiction, is rejected by the courts of New Hampshire.' The suit for a discovery proper > Wendell T. New Hampshire Bank, of fraud, added: " And it is said that 9 N. H. 404, 416. in some cases of fraud for which the ' White Mts. R. B. ■v. Bay State common law a£fords complete and ade- Iron Co., 50 N. H. 57 (1870). quate relief, chancery may have con- ' Tappan v. Evans, 11 N. H. 311, current jurisdiction. This general 325; Stevens v. Williams, 12 N. H. proposition, however, is too broad 246; Stone v. Anderson, 26 N. U. 506, when applied to our practice, under 518; Miller v. Soammon, 52 N. H. the rules of evidence which permit and 609, 610 (1873). In the first three of require parties to testify. In the these cases the suit was for a discovery English practice, and perhaps in some and relief, and the discovery was held American states, equity may entertain proper, and even the jurisdiction of this concurrent jurisdiction, because, the court was spoken of as partly, at although the remedy at law may be least, based on the discovery. But said to be adequate, the means of ob- in each case the relief was sought on taining the truth, where discovery by the ground of fraud, and the juris- the oath of the party is essential, may diction was expressly held to exist be wanting or deficient in the courts independently of any discovery. In of common law. . .» . . But to a very the latest case of Miller v. Scammon, great extent the right to enforce dis- 52 N. H. 609, 610, which was also one covery and search the conscience of of fraud, Foster, J., after stating the the party, which was formerly only general jurisdiction of equity in cases to be had in chancery, is aflForded in 423 JUDICIAL INTERPEETATION OF JURISDICTION. § 304 without any relief, in aid of an action or defense at law, seems to be admitted, although the decisions are not very- explicit.* § 303. Fraud, Cancellation, Rescission, and Other Rem- edies. — The general equitable jurisdiction in cases of fraud, and the power to grant a cancellation, a rescission, an injunction, an accounting, or any other kind of remedy, necessary, under the circumstances, to attain the ends of justice, are asserted in the most emphatic manner.^ I have placed in the foot-note some illustrations of the manner in which this branch of the jurisdiction has been exercised, and of the remedies which have been granted.' § 304. Mistake: Reformation, and Other Remedies. — The jurisdiction over all cases of mistake which are mat^ ters of equitable cognizance, and to grant all the appro- priate remedies therein, is asserted in the same broad the practice and by the statutes of our law courts aa fully and effectually as by a court of equity." This opin- ion fully sustains the conclusions reached by me in the text of a former paragraph, concerning the effect of the modern statutes upon the doctrine respecting discovery as an independent source of jurisdiction. See ante, § 230. ' Stevens v. VPilliams, 12 N. H. 246; Dennis v. Riley, 21 N. H. 50; Robinson v. Wheeler, 51 N. H. 384. In Stevens v. Williams, 12 N. H. 246, which was a bill for discovery and relief, the court expressly declined to discuss the question whether a suit for a discovery alone in aid of an action or defense at law was within the jurisdic- tion. But in the two other cases cited, the propriety of such a suit is admitted, by judicial dicta at least. ' Dodge v. Griswold. 8 N. H. 425; Tappan v. Evans, 11 N. H. 311, 325; Stevens v. Williams, 12 N. H. 246; Rand v. Redington, 13 N. H. 72, 76; 38 Am. Deo. 475; Brewer v. Hyndman, 18 N. H. 9, 17; Tracy v. Herrick, 25 N. H. 381, 394; Stone v. Anderson, 26 N. H. 506, 518; Wells v. Pierce, 27 N. H. 503, 512; Lyme v. Allen, 51 N. H. 242; Craft v. Thompson, 51 N. H. 536, 542; Miller v. Scammon, 52 N. H. 609, 610; Marstou v. Durgiu, 54 N. H. 347, 374; Gordon v. Gordon, 55 N. H. 399; Moore v. Kidder, 55 N. H. 488; Hathaway v. Noble, 55 N. H. 508. " Remedy of cancellation in general Tappan v. Evans, 11 N. H. 311, 325 Stone V. Anderson, 26 N. H. 506, 518. setting aside or canceling a deed fraudulent as against creditors: Dodge V. Griswold, 8 N. H. 425; setting aside an award on the ground of fraud: Rand v. Redington, 13 N. H. 72, 77; 38 Am. Dec. 475; Tracy v. Herrick, 25 N. H. 381, 394; Craft v. Thompson, 51 N. H. 536, 542; setting aside a fraudu- lent mortgage: Brewer V. Hyndman, IS N. H. 9, 11; setting aside a decree of a probate court obtained through fraud: Gordon v. Gordon, 55 N. H. 399; in- junction to restrain commission of fraud: Marston v. Durgin, 54 N. H. 347, 374; injunction against a judg- ment at law obtained by fraud, or to which there was a defense of fraud: Lyme v. Allen, 51 N. H. 242; Craft v. Thompson, 51 N. H. 536, 542; suit in aid of a proceeding at law to prevent a party from fraudulently transferring his property so as to defeat the col- lection of a judgment to be recovered against him; Moore v. Kidder, 55 N. H. 488; delay and laches of the defrauded party, their effect upon his right to relief against the fraud: Hath- away V. Noble, 65 N. H. 508, § 305 EQUITY JUKISPKUDENCE. 424 and unrestricted terms as that over cases of fraud.' The equitable doctrines concerning the reformation of written instruments on account of mistake are fully accepted. The American rule which permits parol evidence of such a mistake on behalf of the plaintiff who seeks to reform an agreement and then to compel its specific perform- ance as thus reformed, as well as on behalf of the defend- ant who seeks to defeat its performance by proving a mistake, is also adopted.'' The remedy of rescission may also be granted; as, for example, where an award is set aside on account of mistake.' Other reliefs may be given, depending upon the special circumstances of the case.* § 305. Trusts. — Jurisdiction is expressly given by the statute in cases of trust as well as of fraud and mistake. This embraces, it has been held, not merely the general power to enforce the performance of a trust against the trustee at the suit of the beneficiary, but all the incidental and auxiliary powers and remedies which may be neces- sary to maintain and protect the rights of all the parties interested; as, for example, the removal of trustees, the appointment of trustees, the interpretation and construc- tion of instruments creating a trust, the direction and management of trustees in the performance of their duties, the supervision of investments of trust property, and other like incidents.* ' Rand v. Redington, 13 N. H. 72, ford, 54 N. H. 463 (when a reforma- 76; 38 Am. Dec. 475; Bellows v. Stone, tion will not be granted). 14 N. H. 175; Smith v. Greeley, 14 ' Rand v. Redington, 13 N. H. 72, N. H. 378; Underwood v. Campbell, 76; 38 Am. Dec. 475; Tracy v. Her- 14 N. H. 393; Craig v. Kittredge, 23 rick, 25 N. H. 381, 394; Craft v. N. H. 231; Tracy v. Herrick, 25 N. H. Thompson, 51 N. H. 536, 542. 381, 394; Wells v. Pierce, 27 N. H. • Avery v. Bowman, 40 N. H. 453; 503, 512; Busby v. Littlefield, 31 N. H. 77 Am. Dec. 728. A mistake was 193, 199; 33 N. H. 76; Avery v. Bow- made in levying an execution by which man, 40 N. H. 453; 77 Am. Dec. 728; a too large amount of land was taken Craft V. Thompson, 51 N. H. 536, 542; and transferred to the execution cred- Bradford v. Bradford, 54 N. H. 463. itor. Such mistake may be corrected ' Bellows V. Stone, 14 N. H. 176 by a decree compelling the creditor to (parol evidence on behalf of the plain- reconvey the excess to the judgment tiff in case of reformation and specific debtor. performance, as well as on part of the ' Wells v. Pierce, 27 N. H. 503, 512; defendant); Smith v. Greeley, 14 N. H. Wheeler v. Perry, 18 N. H. 307, 311 378; Busby v. Littlefield, 31 N. H. 193, (contraction of the trnsl;, aiding and 199; 33 N. H. 76; Bradford v. Brad- directing the trustee, in the manage- 425 JUDICIAL INTERPRETATION OF JURISDICTION. § 307 § 306. Accounting. — Although this remedy is not specifically mentioned in the statute, the jurisdiction to compel an accounting and to settle accounts exists, and is exercised by the courts, under the regulations, restric- tions, and limitations governing its use, which form a part of equity jurisprudence.' § 307. Injunction. — The statute expressly authorizes an injunction " whenever the same is necessary to pre- vent fraud and injustice." The jurisdiction has been exercised in a very careful and guarded manner, and the courts have shown a tendency to restrict rather than to enlarge its use.^ Where the facts and circumstances are sufficient, and the remedy at law is inadequate, it may be granted to restrain a private nuisance,' to prevent waste,* to restrain a trespass when it is continuous or would pro- duce irreparable injury,* and to stay an action, judgment, or execution at law.* An injunction may also be proper in a suit by stockholders to restrain the managing officers of a corporation from improper dealings with the corpo- rate property and franchises,' but there is no jurisdiction of equity to restrain the collection of a tax illegally as- sessed and laid.* ment of the trust property); Petition * Marston v. Durgin, 54 N. H. 347, of Baptist Church, 51 N. H. 424 (same 374; B. & M. R. R. v. P. & D. R. R., as the last); Methodist Epis. Soo. v. 57 N. H. 200; Webber v. Gage, 30 Heirs of Harriman, ,54 N. H. 444, 445 N. H. 182. (charitable trusts, direction of inirest- * Coe v. Winnepisi«gee M. Co., 37 ments, etc.); but under this general N. H. 254; Webber v. Gage, 39 N. H. power over trusts, the courts of New 182; Bnrnham v. Kempton, 44 N. H. Hampshire do not possess the jurisdic- 78, 79, 92; Eastman v. Amoskeag M. tion to entertain the " administration Co., 47 N. H. 71, 78; Bassett v. Salia- suit" Tinder ordinary ciroumstanoes: bury M. Co., 47 N. H. 426, 437. Walker v. Cheever, 35 N. H. 339, 349. « Dennett v. Dennett, 43 N. H. 499, ' Walker v. Cheever, 35 N. H. 339, 501, 503. 349 (-will not exercise the jurisdiction ' Hodgman v. Richarde^ 45 N. H. when the account is all on one side, 28. and no discovery is asked); Tread well ' Hibbard v. Eastman, 47 N. H. 507, T. Brown, 41 N. H. 12 (aocounting 508; 93 An*. Dec. 467; Lyme v. Allen, and settlement of a partnership at suit 51 N. H. 242; Robinson y. Wheeler, of a creditor of one individual part- 51 N. H. 384; Craft v, Thompson, 51 ner)j Dennett v. Dennett, 43 N. H. N. H. 536, 542. 499, 501, 503 (account of waste); ' March v. Eastern R. R., 40 N. H. White Mts. R. R. v. Bay State Iron 648, 567; 77 Am. Deo. 732. Co., 50 K. H. 57 (accounting io suit ° Brown ▼. Concord, 66 N. H. to redeem a pledge). 375, §§ 308-310 EQUITY JURISPRUDENCE. 426 § 308. Nuisance and Waste. — The statute expressly mentions these heads in its enumeration of powers. The supreme court, while asserting the full equitable jurisdic- tion to restrain or abate nuisances of all kinds, has exer- cised it with great caution, and has evidently preferred to leave the injured party to his legal remedy wherever that was at all practicable.* The same is true concerning waste" and trespass.' § 309. Creditor's Suit. — The statute in express terms permits the "creditor's suit" by a judgment creditor whose legal remedies have been exhausted. The supreme court has sustained the full equitable jurisdiction on behalf of the judgment creditor to reach the equitable rights and estates of the debtor, or assets not subject to levy by execution or attachment, or property fraudulently assigned and transferred; and has even held that juris- diction exists independently of the express statutory grant.* § 310. Other Special Oases. — In addition to the fore- going general heads of equitable cognizance, the jurisdic- tion has been asserted or exercised in the following cases: To remove a cloud from title by setting aside a deed of land;' in a suit for the partition of real estate;* for the establishment of a widow's dower right and the assign- ment of her dower;' to define and limit a right of way and to regulate its use;' in a suit by stockholders against the corporation and its managers to prevent or redress any improper dealings with the corporate property or franchises;' in a suit for an accounting and settlement of > Coe T. Winnipisiogee M. Co., 37 N. H. 223, 230; Sheaf e v. Sheafe, 40 N. H. 254; Webber v. Gage, 39 N. H. N. H. 516, 518; Treadwell v. Brown, 182; Burnham v. Kempton, 44 N. H. 44 N. H. 551. 78, 79, 92; Eastman v. Amoskeag M. ' Downing v. Wherrin, 19 N. H. 9, Co., 47 N. H. 71, 78; Basslbt v. Salis- 91; 49 Am. Dec. 139. bury M. Co., 47 N. H. 426, 437. The « Whitten v. Whitten, 36 N. H. 326, discussion of the doctrine in some of 332. these cases is very elaborate and able. ' Norria v. Morrison, 45 N. H. 490. 2 Dennett v. Dennett, 43 N. H. 499, » Beau v. Coleman, 44 N. H. 539, 501, 503. 547. » Hodgman v. Richards, 45 N. H. 28. » March v. Eastern R. R., 40 N. H. * Bay State Iron Co. v. Goodall, 39 648, 567; 77 Am. Dec. 732. 427 JUDICIAL INTERPRETATION OF JURISDICTION. § 311 partnership matters;* to order the arrest of a party to a suit who is intending to leave the state for the purpose of avoiding the decree which will be rendered therein.' On the other hand, it is held that a court of equity in New Hampshire does not possess jurisdiction to entertain a suit for the administration and settlement of a decedent's estate, that subject having been intrusted to the courts of probate;' nor the jurisdiction to restrain the collection of a tax illegally assessed.* § 811. Massachusetts: General Extent and Nature — The Statutory Construction. — The courts of Massachu- setts originally possessed the narrowest possible equitable jurisdiction; and the legislation successively enlarging the scope of their equitable powers has, until within a few years past, been very gradual and exceedingly cau- tious. The earliest statute of 1798, chapter 77, conferred an authority only in cases of foreclosure or redemption of mortgages. In the Laws of 1817, chapter 87, the legis- lature gave to the supreme court jurisdiction in equity over "all cases of trust arising under deeds, wills, or in the settlement of estates, and all cases of contract in writ- ing, where a party claims the specific performance of the same, and in which there may not be a plain, adequate, and complete remedy at law." Other statutes were passed, and additional powers were given, enlarged, or modified in the Revised Statutes of 1830, and in 1851, 1853, 1855, 1857, and 1858, until the various provisions were com- pleted which are collected and condensed in chapter 113, section 2, of the Revised Statutes of 1873, quoted in the preceding section.* Finally, by the Laws of 1877, chap- ter 178, the last subdivision of said chapter 113, section 2, of the Revised Statutes, which reads, "And shall have full equity jurisdiction according to the usage and prac- tice of courts of equity, in all other cases where there is ' Treadwell v. Brown, 41 N. H. ' Walker v. Cheever, 35 N. H. 339, 12. 349. ' Samuel y. Wiley, 50 N. H. 353- ' Brown v. Concord, 56 N. H. 375. 355. ' See ante, in note under § 286, § 312 EQUITY JUBISPSUDENCB. 428 not a plain, adequate, and complete remedy at law," was repealed, and instead thereof was substituted the follow- ing most comprehensive provision: "The supreme judi- cial court shall have jurisdiction in equity of all cases and matters of equity cognizable under the general prin- ciples of equity jurisprudence; and in respect of all such cases and matters shall be a court of general equity juris- diction." § 312. The language of this last enactment seems to be as strong, in its grant of powers, as any which could possibly be used. There can be no reasonable doubt that under it a complete equitable jurisdiction commensurate in its nature and extent with that held by the English court of chancery is conferred upon the supreme judicial court, — a jurisdiction absolutely unrestricted and unliin- ited save by the principles inherent in the system of equity jurisprudence itself, and except, perhaps, with respect to some particular matters, by positive mandatory provisions of other statutes of the state.' The supreme judicial court is now a tribunal of general equitable powers and func- tions. It seems to be wholly unnecessary, therefore, to examine the course of past decision and the judicial in- terpretation put upon the prior series of statutes for the purpose of ascertaining the amount of equitable jurisdic- tion at present established in Massachusetts. The act of , 1877 has swept away the results of more than a half-cen- tury of careful judicial labor. It is very important, how- ever, to examine this course of past decision, and to state in a summary manner the interpretation given to the prior statutes, in order to show the value of the decisions themselves — many of them most able, elaborate, and learned — as precedents, to discover their probable bear- ing upon the future development of equity within the ' Aa an illustration of my meaning, jurisdiction over administrations and it may very well be held, as it is in the settlement of decedents' estates ia many other states, that, notwithstand- exclusively given by other statutes to ing this sweeping grant of a general the courts of probate, equitable jurisdiction, the ordinary 429 JUDICIAL INTKKPKETATION OF JURISDICTION. § 313 state, and to understand their relations with the gen- eral system of equitable jurisdiction and jurisprudence throughout the entire country. Unless the methods of interpretation and of dealing with their equitable powers pursued by the Massachusetts judges were described, and the restrictive effects necessarily produced by the former legislation were explained, many of these decisions would be exceedingly misleading as authorities upon the powers and doctrines of equity in other states. I purpose, there- fore, to exhibit, in a very condensed and summary form, the course and results of the judicial interpretation put upon the prior statutory grants of jurisdiction. § 313. The following single principle lies at the basis of and explains this entire course of interpretation, and separates the decisions made in it from the equitable sys- tem prevailing in any other state except Maine. It has been constantly asserted that the courts of Massachusetts possess no inherent equitable functions and authority whatsoever, but are, in their original creation and endow- ment, purely common-law tribunals; that all the equitable powers which they hold are those conferred by the express terms of some statute; that all thees statutory grants have been coupled with the condition that such powers shall only exist in cases where there is no plain, adequate, and certain remedy at law, and this clause, instead of being merely formal, is the very test and criterion of the jurisdiction, limiting and restricting it on all sides, and applying not simply to the remedies known to the an- cient common-law system of procedure, but to those legal remedies from time to time created and furnished by the state legislation. In giving effect to the statutes, the strictest mode of interpretation has been uniformly adopted. In following out the policy assumed to have been intended by the legislature, it has been settled that the courts took no powers nor jurisdiction over any equi- table right or to administer any equitable remedy, except those plainly permitted by the express and positive Ian- §313 EQUITY JURISPRUDENCE. 430 guage of the statutes; and that this language could never be enlarged by judicial construction, so as to include and confer by implication any authority which was not thus expressly mentioned in the terms used by the legislature. This restrictive method of interpretation has been pur- sued without any exception, and has sometimes produced very strange results. Over all these express grants ex- tends the clause limiting their operation to cases in which there is no adequate remedy at law. In dealing with this clause the courts have followed a course directly opposed to that adopted by the national judiciary, and have given the strongest effect to its restrictive words. As a neces- sary result of this judicial action, the equitable juris- diction and jurisprudence of Massachusetts have been fragmentary in form, and curtailed and limited in every portion and with respect to every kind of subject-matter, unlike the equitable system prevailing in England or in most of the other states.' This peculiar character will ' The following cases are given as examples of the mode of interpreta- tion, and illustrations of the principle described in the text, selected from several important heads of the equita- ble jurisprudence: Kelleran v. Brown, 4 Mass. 443 (equitable mortgage); Dwight V. Pomeroy, 17 Mass. 302, 324, 327; 9 Am. Dec. 148, per Parker, C. J. (specific performance of contract); Putnam v. Putnam, 4 Pick. 139-141, per Parker, 0. J. (bill of revivor to redeem a mortgage); Black v. Black, 4 Pick. 234, 236, per Parker, C. J. (implied or constructive trust); Jones V. Boston Mill Corp'n, 4 Pick. 507, 509, 511, 512, per Parker, C. J. (spe- cific performance of an award); Hunt V. Maynard, 6 Piok. 489 (redeeming a mortgage); Campbell v. Sheldon, 13 Pick. 8 (lost deeds and trusts created by foreign wills); Dimmoek v. Bixby, 20 Pick. 368, 372 (assignment for the benefit of creditors); Wright v. Dame, 22 Pick. 55, 60, per Wilde, J. (implied trust); Eaton v. Green, 22 Pick. 526, 529, 531. per Wilde, J. (equitable mort- gage); Whitney v. Stearns, 11 Met. 319 (fraud and trust); Clarke v. Sibley, 13 Met. 210 (equitable mortgage or lien); Parker v. May, 5 Gush. 336, 341 (charitable trusts); Jacobs v. Peter- borough etc. E,. K Co., 8 Gush. 223, 225 (specific performance of a verbal contract for the sale of land); Bowditch V. Banuelos, 1 Gray, 220, 228, per Shaw, C. J. (trusts arising from a deed); Harvard Coll. v. Society for Promoting Theol. Education, 8 Gray, 280, 282, per Dewey, J. (charitable trusts); Tread well v. Cordis, 5 Gray, 341, 348, per Shaw, C. J. (construc- tion of a will with trusts); Old Colony R. R. Co. V. Evans, 6 Gray, 25, 30, per Dewey, J. (specific performance of a contract); Sanborn v. Sanborn, 7 Gray, 142 (specific performance of a verbal contract for the sale of land); Miller V. Goodwin, 8 Gray, 542) specific per- formance againsst heirs and adminis- trator of deceased vendor); Campbell V. Wallace, 10 Gray, 162, 163, per Thomas, J, (trusts created by a foreign will); Buck v. Dowley, 16 Gray, 555, 557, per Chapman, J. (specific perform- ance of a verbal contract, and enforce- ment of parol trusts); Brown v. Evans, 6 Allen, 333, 336, per Merrick, J. (specific enforcement of an award); Drury v. Inhabitants of Natick, 10 Allen, 169, 175 (charitable trusts); Jackson v. Phillips, 14 Alleu, 539, 593 431 JUDICIAL INTERPRETATION OF JURISDICTION.' § 314 doubtless be changed in the future. To the general de- scription thus given of the jurisdiction as it depended upon the former statutes, I shall add very briefly the results which have been reached with respect to some of the most important subject-matters of equitable cog- nizance. § 314. Specific Performance. — The power to decree the specific execution of written contracts was given by an early statute, and the provisions contained in the re- vision of 1873, quoted in the preceding section, confer this particular jurisdiction in ample terms. The courts have therefore bad no difficulty in decreeing the specific execution of written contracts in accordance with the settled doctrines of equity jurisprudence between the original parties,' and in favor of an assignee of the ven- dee against the vendor,^ and in favor of the heirs and ad- ministrator of a deceased vendee, or against the heirs and administrator of a deceased vendor.' The jurisdiction did not, however, include the specific execution of awards,^ nor of verbal contracts for the sale of land on the ground (charitable trusts); Basgett v. Brown, through them might be the more loo Mass. S55 (no jurisdiction at suit clearly shown. It will be seen that of defrauded grantor to set aside a in the very latest ones of the series, conveyance of land obtained by fraud); decided after the powers of the court Carlton v. City of Salem, 103 Mass. had been so much enlarged by success- 141 (suit by taxable inhabitants to re- ive statutes, the principle of inter- strain municipal officers from illegal pretation concerning the equitable acts); Suterv. Matthews, 115 Mass. 253 jurisdiction stated in the text was (no concurrent jurisdiction in equity asserted with even greater emphasis over cases of fraud where there is an than in the earlier cases, adequate remedy at law); Jones v. ' Dwight v. Pomeroy, 17 Mass. 302, Newhall, 115 Mass. 244, 247; 15 Am. 327; 9 Am. Dec. 148; Salisbury v. Rep. 97, per Wells, J. (no jurisdiction Bigelow, 20 Pick. 174; Billiard v. to compel the specific performance of Allen, 4 Cush. 532, 535; Old Colony a contract at a suit of the vendor when R. R. Co. v. Evans, 6 Gray, 25, 30; 66 the only substantial relief would be Am. Dee. 394; Boston & Me. R. BL v. the recovery of the purchase price, the Bartlett, 10 Gray, 384. remedy at law being held adequate); ' Currier v. Howard, 14 Gray, Frue V. Loring, 120 Mass. 507 (no ju- 511. risdiction to recover an amount of ' Reed v. Whitney, 7 Gray, 533; money alleged to be due in conse- Miller v. Goodwin, 8 Gray, 542; Davis quence of an implied trust, the remedy v. Pope, 12 Gray, 193, 197; Bell v. City at law being adequate). I have pur- of Boston, 101 Mass. 506, 511. p'Dsely arranged these oases in the or- * Jones v. Boston Mill Corp'n, 4 Pick, derof their dates, rather than according 507, 512; Brown v. Evans, 6 Allen, to their subject-matters, so that the 333, 336; Howe v. Nickerson, 14 Allen, method of interpretation running 400, 40S. § 315 EQUITY JURISPBUDBNOB. 432 of part performance.' In one of the recent cases it was held, after a very elaborate examination of the legislative system and policy, that there was no jurisdiction to de- cree the specific performance of a contract on behalf of the vendor when the only substantial relief to be ob- tained was the payment of the purchase-money by the vendee.* § 315. Trusts. — The statute of 1817 gave power to the supreme court to determine in equity " all cases of trust arising under deeds, wills, or in the settlement of estates." This language was afterwards enlarged into the provision contained in the revision of 1878, quoted in the preced- ing section: " Suit^and proceedings for the enforcing and regulating the execution of trusts, whether the trusts re- late to real or personal estate." Under the first of these statutes the equitable powers of the courts were exceedingly narrow. They held that their jurisdiction embraced only trusts expressly created by the terms of a will or deed, and they refused to extend it by implication to resulting, constructive, and implied trusts, or even to those created by foreign wills.' By the second form of the statute, the jurisdiction over this subject was, of course, greatly en- larged. It embraced not only cases of ordinary express trusts created by the terms of a deed or will, but assign- ments for the benefit of creditors, charitable trusts, and resulting, implied, or constructive trusts, as recognized ' This mling was placed upon the manner. And there is no jurisdiction ground that the express terms of the to compel the specific performance by statute only mentioned written con- the vendee of an agreement to pur- tracts; and the court refused to ex- chase certain stocks: Noyes v. Marsh, ercise any enlarged powers by im- 123 Mass. 286j citing Thorndike v. plication from other heads of the Locke, 98 Mass. 340; Somerby v. Bun- statutory jurisdiction: Dwight v. tin, 118 Mass. 279, 287; 19 Am. Kep. Pomeroy, 17 Mass. 302; 9 Am. Deo. 459; Jones v.Newhall, 115 Mass. 244; 148; Jacobs v. Peterborough etc. nor to enforce an agreement to submit R. R., 8 Gush. 223, 225; Sanborn v. matters to arbitration: Pearl v. Har- Sanborn, 7 Gray, 142; Buck v. Dowley, ris, 121 Mass. 390. 16 Gray, 555, 557. * Black v. Black, 4 Pick. 234, 236 » Jones V. Newhall, 115 Mass. 244. (implied and resulting trusts); Hunt In this opinion the statutory restric- v. Maynard, 6 Pick. 489 (no trust tion to cases where there is no ade- created by a mortgage in favor of the quate remedy at law was applied with mortgagor); Campbell v. Slieldon, 13 great stringency and in a very general Pick. 8 (trust created by a foreign will). 433 JUDICIAL INTBRPRKTATION OF JUEISDICTION. § 316 by the doctrines of equity jurisprudence. The court exercised a power to compel the due performance of a trust at the suit of the beneficiary, and to give construction to an instrument creating a trust, and to define the nature of a trust, and direct the trustees in the discharge of their fiduciary duties, and to appoint trustees. But still the jurisdiction was held not to be commensurate in its ex- tent with that general power over trusts belonging to the unlimited system of equity jurisprudence, and possessed by the English court of chancery. The statutory grant was restricted by the clause confining its operation to cases where there was no adequate remedy at law. The Massachusetts courts have therefore denied the exist- ence of an equitable jurisdiction even in cases of trust, where the substantial relief would be the payment of money due under a trust relation, which could be re- covered by an action at law for money had and received.^ § 316. Mortgages. — The earliest grant of an equita- ble jurisdiction, continued in the General Laws of 1873, * Dimmock v. Bixby, 20 Pick. 368, a mere equitable lien or mortgage on 372 (assignment for the benefit of the ground of an implied trust: Clarke creditors); Wright v. Dame, 22 Pick. v. Sibley, 13 Met. 210; nor to enforce 55; National Mahaiwe Bank v. Barry, performance of an express trust 125 Mass. 20 (implied trust); Parker created by a foreign will: Campbell V. May, 5 Cush. 336; Harvard College v. Wallace, 10 Gray, 162, 163; nor to T. Society for Theological Education, enforce a parol trust: Buck v. Dowley, 3 Gray, 280, 282; Drury v. Inhabitants 16 Gray, 555, 557. Finally, in Frue v. of Natick, 10 Allen, 169; Jackson Loring, 120 Mass. 507, the court de- r. Phillips, 14 Allen, 539, 593 (chari- cided that there was no equitable ju- table trusts); Sears v. Hardy, 120 risdiction to recover an amount of Mass. 524 (resulting trust). The fol- money, where the liability grew out of lowing are cases of express trusts a trust or trust relation, since the under a deed or will, or of the con- legal remedy by action for money had struction of a will creating trusts: and received was adequate. Under First Congregational Society v. Trus- its general jurisdiction over trusts the tees etc., 23 Pick. 148; Hooper v. court may appoint a trustee, although Hooper, 9 Cush. 122, 127; Bowditch no express provision for an appoint- v.' Banuelos, 1 Gray, 220, 228, per meut is made by the statute, nor is Shaw, C. J.; Treadwell v. Cordis, 5 contained in the instrument creating Gray, 341, 348; Kussell v. Loring, 3 the trust: In re Eastern R. R., 120 Allen, 121, 125, per Dewey, J. But Mass. 412; citing Bowditch v. Banue- under this statutory grant it was held los, 1 Gray, 220, 228; Bailey v. Kil- that there was no jurisdiction over a burn, 10 Met. 176; 43 Am. Deo. 423; case of fraudulent conveyance of his Winslow v. Cummings, 3 Cnsh. 358; land by a debtor on the ground of a Felch v. Hooper, 119 Mass. 52; Parker resulting or constructive trust arising v. Parker, 118 Mass. 110; Ellis v. therefrom in favor of the defrauded Boston, H. & E. R. R., 107 Mass. 1; creditors: Whitney v. Steams, 11 and see also Attorney-General v. Met. 319; nor a jurisdiction to enforce Barbour, 121 Mass. 568. 1 Ea JL'R.— 28 § 317 BQUITY JURISPKUDENCE. 434 provides merely for the redemption and foreclosure of mortgages, although a later statute adds "cases of the conveyance or transfer of real estate in the nature of mortgage." It has been decided that the former of these clauses is confined in its operation to mortgage deeds by which the legal estate is conveyed to the mortgagee ac- cording to the common-law theory; and the court has repeatedly denied the existence, by implication from this or other statutory grants, of any jurisdiction to enforce or redeem equitable mortgages or equitable liens.* Of the power to redeem or to foreclose legal mortgages, there was no question.* This narrow jurisdiction has, beyond a doubt, been enlarged by the later enactment above men- tioned. Thus it is held that the court may, in a proper equitable suit for that purpose, declare a deed of land absolute on its face to be a mortgage, and decree a re- demption and reconveyance.* § 317. Creditors' Suits. — The power to aid creditors in reaching the property of their debtors is given by the statute in very broad terms. In addition to the ordinary " creditors' suits " by judgment creditors whose execu- tions have been returned unsatisfied, for the purpose of reaching equitable assets or impeaching fraudulent trans- fers, it is held that a suit may be maintained by a cred- ' Kelleran v. Brown, 4 Mass. 443, ted, but the relief -was refused on the 444, per Parsons, C. J. ; Eaton v. facts. Where a mortgage is given to Green, 22 Pick. 528, 629, per Wilde, secure an indebtedness arising from J. ; Clarke v. Sibley, 13 Met. 210, 214, an agreement illegal, as being in viola- per Wilde, J. tion of the bankrupt law and in fraud ^ Saunders v. Frost, 5 Pick. 259, of other creditors, the mortgage itself 267: 16 Am. Dec. 394, per Parker, is also tainted with the illegality, and C. 3, 468, 469; 56 Am. Dec. 352. [See also Reay v. Butler, 69 Cal. 579; Nunez V. Morgan, 77 Cal. 427; "Wallace V. Maples, 79 Cal. 433; Arguello v. Bours, 67 Cal. 447; Meeker v. Dal ton, 75 Cal. 164; Helm v. Wilson, 76 Cal. 476.] Connecticut. — See ante, § 344, and note. Georgia. — The equitable jurisdic- tion is, in general, that poaseased by the court of chancery in England. The present code (sec. 3045) confers the jurisdiction in express terms, and does not by any of its more specific provis- ions materially change that jurisdic- tion: Mordecai v. Stewart, 37 Ga. 364, 375-377, 382; Walker v. Morris, 14 Ga. 323, 325^327; Collins v. Barks- dale, 23 Ga. 602, 610.; Williams v. Mclntyre, 8Ga. 34, 42; Beale v. Ex'rs of Fox, 4 Ga. 404, 425, 426; Gilbert V. Thomas, 3 Ga.'575, 579, 580; Jus- tices of the Inferior Court etc. v. Hemphill, 9 Ga. 65, 67; Cook v. Walker, 15 Ga. 457, 466-473; [Mark- ham V. Huff, 72 Ga. 874.] Illinois. — The general equitable ju- risdiction is that held by the English chancery, except where limited by an express statute, or where some other court is clothed by statute with exclu- sire jurisdiction over a particular matter: Maher v. O'Hara, 4 Gilm. 424, 427; Isett v. Stuart, 80 111. 404; 22 Am. Rep. 194; [Howell v. Moores, 127 lU. 67; Walker v. Doane, 108 111. 236; Ide v. Sayer, 129 HI. 230.] Indiana. — A full equity jurisdiction, as that exercised by the English court of chancery: McCord v, Ochiltree, 8 Blackf. 15, 17-20 (containing an in- teresting historical sketch of the ju- risdiction during the territorial period and since the organization of the state); Matlock v. Todd, 25 Ind. 128. Iowa. — A distinct and full equity jurisdiction recognized and preserved by the constitution: Clausseu v. La- frenz, 4 G. Greene, 224; Laird v. Dickerson, 40 Iowa, 665, 669; Sher- wood V. Sherwood, 44 Iowa, 192. Kansas. — A full chancery jurisdic- tioa is exercised through the " civil action" over all matters belonging to the gtineral equity jurisprudence, al- though the constitntion makes no men- tion of any distinction between law and equity or legal and equitable pow- ers: Sattig V. Small, 1 Kan. 170, 175; Shoemaker T. Brown, 10 Kan. 383, 390. Kentudcy. — All the decisions assume and recognize the jurisdiction in this state, without any statutory limit: Johnson v. Johnson, 12 Bush, 485 (a full equitable jurisdiction is possessed by the Louisville chancery court). Louisiana. — While the superior courts are said to have a general equi- ty jurisdiction, it is plain that the ' " equity " thus spoken of is not exactly synonymous with the system of equi- ty jurisprudence administered by the court of chancery in England, and by the courts of the other states in which the common law has been adopted. The term is used in the meaning given to it by modern civilians, as the power to decid* according to natural justice in cases where the positive law is si- lent. Thus "in ^1 civil matters where there is no express law, the judge is bound to proceed and decide according to equity. To decide equi- tably, an appeal is made to natural law and reason, or to received usages, where positive law is silent": Civ. Code, art. XXI.; Clarke v. Peak, 15 La. Ann. 407, 409; Welch v. Thorn, 16 La. 188, 196; Kittridge v. Breaud, 4 Rob. (La.) 79; 39 Am. Dec. 512. Maine. — See ante, §§ 322-337, and notes. Mai-ykmd. — The full jurisdiction of the English chancery. "The chan- cery court of England has always been regarded as the prototype of that of Maryland As mere courts of equity there is scarcely any difference between the court of chancery of Mary- land and that of England": Cunning- ham V. Browning, 1 Bland, 299, 301; Amelung v. Seekamp, 9 Gill & J. 468, 472; Manly v. State, 7 Md. 135, 146. Massachusetts. — See ante, §§ 311- 321, and notes. Michigan. — The jurisdiction of the English court of chancery is given in express terms by the statute. Minnesota. — A full jurisdiction over all matters cognizable in courts of equity, administered by the one " civil 461 JUDICIAL INTERPRETATION OP JURISDICTION. § 346 matters actually complete — equitable jurisdiction exist- ing in most of the states, the inquiry still remains whether action ": Grates t. Smith, 2 Minn. 30, 32. Mhsissippi, — A complete general jurisdiction in equity is given by tlie constitution and by the statutes to the court of chancery as the tribunal of first resort, and to the high court of errors and appeals as the appellate tri- bunal. This jurisdiction is exercised whenever the law does not furnish a complete, certain, and adeq^uate rem- edy; but this limitation is regarded as an element inherent in the very nature of the equitable jurisdiction itself, and • not as a mandatory restriction im- posed upon the court by statute. The equitable jurisdiction has always been asserted and exercised by the courts of Mississippi in as free and progress- ive a manner as by those of any other state. In fact, the equity system of Mississippi is much more completis than that to be found in many of the states. These conclusions are fully sustained by the following decisions, and their number might easily be in- creased: Shotwell V. Lanson, 30 Miss. 27; Echols v. Hammond, 30 Miss. 177; Haynes v. Thompson, 34 Miss. 17; Boyd V. Swing, 38 Miss. 182; Barnes v. Lloyd, 1 How. 584; Freeman v. Guion, 11 Smedes & M. 58, 65 (all the fore- going cases deal with the question of there being an adequate remedy at law or not); Farish v. State, 2 How. 826, 829; Farish v. State, 4 How. 170, 175. See also cases cited post, § 350, in note, as to the jurisdiction in the administration of decedents' estates. Missouri. — A full general jurisdic- tion as held by the English chancery: Clark V. Henry's AdmV, 9 Mo. 336, 339; Cabanne v. Lisa, I Mo. 682; Jan- ney v. Spedden, 38 Mo. 395; Biddle v. Ramsey, 52 Mo. 153; Meyers v. Field, 37 Mo. 434, 441; Magnire v. Tyler, 47 Mo. 115, 128; Lackland v. Garesche, 56 Mo. 267, 270. [Montana. — See Zimmerman v. Zim- merman, 7 Mont. 114.] Nebraska. — A full jurisdiction ad- ministered by the single civil action: Wilcox V. Saunders, 4 Neb. 69. Nevada. — A full equity jurisdiction administered by the single civil action in all cases where there is not a com- plete, certain, and adequate remedy at law: Champion v. Session, 1 Nev, 478; Sherman v. Clark, 4 Nev. 138; 97 Am. Dec. 516; Conley v. Chedie, 6 Nev. 222. New Hampshire. — See ante, §§ 299- 310, and notes. New Jersey. — A full general jnris- diction held and exercised to the same extent and under the same limitations as by the English court of chancery. The whole course of decisions in the chancery coart assumes such a juris- diction, although it is not defined by any legislation, and seldom by any judicial opinion: Jackson v. Darcy, 1 N. J. Eq. 194; Wooden v. Wooden, 3 N. J. Eq. 429; Hopper v. Lutkins, 4 N. J. Eq. 149; Hoagland v. Township etc., 17 N. J. Eq. 106; Winslow v. Hudson, 21 N. J. Eq. 172. In 19 N. J. Eq., at page 577, may be found an inter- esting history of the chancery court in New Jersey, written by Mr. Chancel- lor Zabriskie, and published as an ap- pendix to the volume. See also post, § 350, and note, for decisions con- cerning the jurisdiction in the admin- istration of decedents' estates. New York. — An equity jurisdiction commensurate with that of the English chancery is expressly given by the le- gislation. It follows that the supreme court, and the other tribunals of the same original jurisdiction with refer- ence to subject-matter, although some- what restricted as to persons within certain territorial districts, possess all the jurisdiction which was held by the equity courts of the colony at any time, ancl which was held by the high court of chancery in England on the fourth day of July, 1776, with the ex- ceptions, additions, and limitations created and imposed by the legisla- tion of the state. This jurisdiction is now exercised by means of the single " civil action." It will be seen that the only material exception or limita- tion created by the state legislation consists in the practical withdrawal of the control of administrators from the courts of equity, and the placing of that important branch of equity jurisprudence under the cognizance of the probate or aarrogates' courts. The decisions involving the general question of jurisdiction are exceed- §346 KQUITY JUKISPKUDENCE. 462 any branches or subjects originally belonging to this ju- risdiction have been withdrawn from it by other statutes, ingly nnmerous, but they all show that the equitable powers are to be exercised in every caae where there is no complete, certain, and adequate remedy at law, but that this limita- tion is treated as an essential element of the original jurisdictioa of chan- cery, and not as abridging or curtail- ing that jurisdiction: Sherman v. Felt, 2 N. Y. 186; Newton v. Bronson, 13 N. Y. 587, 591; 67 Am. Dec. 89; Bar- low V. Scott, 24 N. Y. 40, 45; Wilcox V. Wilcox, 14 N. Y. 575, 579; Garcie V. Freeland, 1 N. Y. 228, 232, 235; Burch V. Newbury, 10 N. Y. 374, 387; Onderdonk v. Mott, 34 Barb. 106, 112; Boyd V. Dowie, 65 Barb. 237, 242; Brockway v. Jewett, 16 Barb. 590, 592; Garoie v. Sheldon, 3 Barb. 232; Mat- tar of Bookhont, 21 Barb. 348, 349; De Hart y. Hatch, 3 Hun, 375, 380; Matter of MoConihe v. Exchange B'k, 49 How. Pr. 422, 424; Fellows v. Heermans, 13 Abb. Pr., N. S., I, 6; Van Pelt v. U. S. Metallic Springs etc. Co., 13 Abb. Pr., N. S., 325, 327. In Youngs V. Carter, 10 Hun, 194, 197, it was held that the equity jurisdiction thus giTen "includes of necessity all cases properly comprehended within established principles of equity juris- prudence. Nor can the test of the jurisdiction be restricted to the exist- ence of some definite precedent for the actioa which may be brought; the case need only fall within the limits of any defined equitable principle; and equitable principles are as broad as the just wants and necessities of civilized society require." This is, in my opin- ion, a correct description of the equi- table jurisdiction as it now exists in all the states of the three classes under consideration. Compare the equally correct views of Mr. Justice Currey, in Dougherty v. Creary, 30 Cal. 290, 297; 89 Am. Dec. 116. North Carolina. — Complete juris- diction exercised according to the in- herent limitation when there is* no certain and complete remedy at law, enforced at present by the one "civil action ": Glasgow v. Flowers, 1 Hayw. (N. C.) 233; Perkins v. BuUinger, 1 Hayw. (N. C.) 367; Martin v. Spier, 1 Hayw. (N. C.) 369; Wells v. Good- bread, 1 Ired. Eq. 9; Thorn v. Wil- liams, 1 Car. Law Eep. 362; Hook v. Fentress, Phill. Eq. 229, 233; Powell V. Howell, 63 N. 0. 283. Ohio. — The equitable jurisdiction ii the same as that held by the English chancery. The early statute confining the jurisdiction to cases where there is no plain and adequate remedy at law merely states an essential rule, and leaves the jurisdiction in exactly the same condition which it would have occupied had there been no such ex- press statutory provision: Hulee v. Wright, Wright, 61, 65; Bank of Mus- kingum V. Carpenter's Administrator, Wright, 729, 732; Critohfield v. Por- ter, 3 Ohio, 518, 522; Oliver v. Pray, 4 Ohio, 175, 192; 19 Am. Dee. 595; Heirs of Ludlow v. Johnson, 3 Ohio, 553, 561; 17 Am. Dec. 609; Cram v. Green, 6 Ohio, 429, 430; Mawhorter y, Armstrong, 16 Ohio, 188; Douglas v. Wallace, 11 Ohio, 42, 45; Nichol- son V. Pirn, 5 Ohio St. 25; Lessee of Love V. Truman, 10 Ohio St. 45, 55; Clayton v. Frat, 10 Ohio St. 544, 546; Goble v. Howard, 10 Ohio St. 165, 168; Hager v. Reed, 11 Ohio St. 626,> 635; Dixon v. Caldwell, 15 Ohio St. 412, 415; 86 Am. Dec. 487. Oregon. — See a7ite, § 344, and note; Howe V. Taylor, 6 Or. 284, 291, 292; Wells, Fargo, & Co. v. Wall, 1 Or. 295; Hatcher v. Briggs, 6 Or. 31, 41. Sontlt Carolina. — See ante, § 344, and note; Hall v. Joiner, 1 S. C, 186, 190; Eno v. Calder, 14 Rich. Eq. 154; Mattisou V. Mattison, 1 Strob. Eq. 387, 391; 47 Am. Dec. 541. See also 1 Desaus. Eq. lii., for a sketch of the chancery jurisdiction in this state. Tennessee. — A complete general equitable jurisdiction exercised under the inherent limitation that no certain and adequate remedy can be had at law: Dibrell v. Eastland, 3 Yerg. 533, 535; University V. Cambreling, 6 Yerg. 79, 84; Porter v. Jones, 6 Cold. 313, 317; Almony v. Hicks, 3 Head, 39, 42. Texas. — There is not in the jurispru- dence of this state any clear line of dis- tinction between "law" and "equity," either with reference to the rules which define and determine primary rights and duties, or those which regulate remedies and procedure. Although the principles of the common l&w have 463 JUDICIAL INTERPRETATION OF JURISDICTION. § 346 SO that they no longer come within the ordinary cogni- zance of the equity courts. One very conspicuous branch of the original jurisdiction has been thus either expressly or practically withdrawn in a great majoritj' of the commonwealths. No department of the equity jurisdic- tion and jurisprudence as administered in England is more important, or more frequently demands the atten- tion of the chancei-y courts, than the accounting, final settlement, and administration of the personal estates of decedents. A very large percentage of the suits brought in the English equity tribunals are administration suits. I shall not attempt to discuss the origin of this jurisdic- tion over administrations. By some judges it has been described as a natural outgrowth of the authority over trusts; by others, as resulting from the frequent necessity of applying to the court of chancery for a discovery of assets; by all, it is admitted that no adequate relief could be obtained from the common law or the ecclesiastical courts. "Whatever be the correct explanation, th« result was that the equitable jurisdiction of administrations, though often called concurrent, practically became exclu- sive. been adopted by statute, yet they are 526, 532; 76 Am. Dec. 117; Herrington blended with and modified by equity, v. Williams, 31 Tex. 448, 460, 461 ; This "equity" seems in part to be Jones v. McMahan, 30 Tex. 719, 728; the natural justice of the civilians, but Newson v. Chrisman, 9 Tex. 113, 117; also in large part the equitable juris- Smith v. Smith, 11 Tex. 102, 106; prudence developed by the English Coles v. Kelsey, 2 Tex. 541, 553; 47 court of chancery. It may with ao- Am. Dec. 661; Carter v. Carter, 5 Tex. curacy be said that the courts of, Tex- 93, 100; Wells v. Barnett, 7 Tex. 584, as have full jurisdiction to recognize 586, 587; Purvis v. Sherrod, 12 Tex. and give effect to any principles and 140, 159, 160. doctrines of the equity jurisprudence Vermont.-r- The decisions assume a to maintain any equitable rights, and full general equitable jurisdiction, to grant any equitable remedies. All with perhaps a somewhat greater rights and reftiedies, whether legal or weight given to the limitation that equitable, are administered together there is no adequate remedy at law by one action and in the same modes than is given to it by the courts of of procedure. These conclusions will many other states: Barrett v. Sargent, be found fully sustained by the fol- 18 Vt. 365, 369. lowing decisions, and are assumed or Wisconsin. — A full jurisdiction in implied in a great number of other all matters of equitable cognizance, cases: Ogden v. Slade, 1 Tex. 13, 15; administered by the "civil action": Smith V. Clopton, 4 Tex. 109, 113; Janesville Bridge Co. v. Stoughton; 1 Spann v. Stern's Administrators, 18 Finn. 667; Dauaher y. Prentiss, 22 Tex. 556; Seguin v. Maverick, 24 Tex. Wis. 311, §§ 347, 348 EQUITY JUSISPRUDBNCB. 464 § 347. Probate Courts. — From a very early period of our history the policy has prevailed throughout the states of legislating with respect to the subject of administra- tions. This policy has been pursued with such uniformity and to such an extent, that in all the states, I believe without exception, special tribunals, unknown to the ancient judicial system of England, have been created, under different names, — probate courts, surrogates' courts, orphans' courts, — which possess a statutory jurisdiction over all matters of probate and administration, the proof of wills, the appointment of executors and administrators, the accounts of executors and administrators, the final settlement and distribution of the estates of deceased per- sons, both testate and intestate, and many other kindred subjects. Not only have such courts been established, but in very many states the doctrines and rules of the law reg- ulating the administration of decedents' estates, whether testate or intestate, have been reduced to a statutory and often to a minutely codified form. The provisions of these statutes are to a large extent the principles and doctrines concerning the subject-matter which have been settled by the English and American courts of equity through a long course of decision.' The effect of this entire legisla- tion upon the equitable jurisdiction existing in the same states remains to be considered. § 348. Class First. Ordinary Equity Jurisdiction over Administrations Abolished. — The general effect produced by this legislative system may be briefly stated in one proposition. In a great majority of the states the origi- nal equitable jurisdiction over administrations is in all ordinary cases — that is, in all cases without; any spe- cial circumstances, such as fraud, or without any other equitable feature, such as a trust — either expressly or practically abrogated. The courts of equity, in the ab- sence of such special circumstances or distinctively equi- table feature, either do not possess or will not exercise the jurisdiction, but leave the whole matter of adminis- 465 JUDICIAL INTERPKETATION OF JUKISDICJTION. § 349 trations to the special probate tribunals. To describe this result more accurately, the states must be separated into two divisions. In the one class, the statutes creating the probate courts and defining their powers are drawn in such mandatory terms that the jurisdiction conferred upon them is held by the judicial intrepretation to be exclusive; and no concurrent jurisdiction over adminis- tration is possessed by the courts of equity in any case, unless it involves some additional incident or feature — such as trust or fraud — which of itself, and indepen- dently of the administration, would be a sufficient ground for the interference of an equity court. In other words, this most important and extensive department has been completely cut off from the purely equitable jurisdiction, and transferred to that of the probate courts, although most of the doctrines concerning administration in gen- eral, hitherto settled by the courts of equity, and which form an integral part of the equity jurisprudence, have been preserved and made more compulsory in the statutes which regulate the proceedings and furnish rules for the decisions of these special probate tribunals.* § 349. Class Second. Such Jurisdiction Practically Obsolete. — In the other and more numerous division, the statutes creating the probate courts and defining their ' The decisions by which the result the note nnder the next paragraph, described in the text baa been accom- The line of decisions, of trhich the plished tbronghont the various states above are examples, have therefore composing this class are collected and been overruled, compared in this note. Pennsylvania. — The doctrine of the Mississippi. — This view of the equi- text is firmly settled in this state by table jurisdiction for a long time pre- numerous decisions, of which the fol- vailed in the state of Mississippi, and lowing are among the most recent; was regarded as settled in the follow- Dundas's Appeal, 73 Fa. St. 474, 479; ing among many other cases: Gilliam Linsenbigler v. Gourley, 56 Pa. St. V. Chancellor, 43 Miss. 437, 448; S 166, 172; 94 Am. Dec. 51; Whiteside Am. Rep. 498; Blanton v. King, 2 v. Whiteside, 20 Pa. St. 473, per How. 856; Carmichael v. Browder, 3 Black, C. J.; Campbell's Appeal, 80 How. 252; but by an alteration in the Pa. St. 298. statutes, and a change in the judicial Massachusetts. — This state may also interpretation, and especially by the be included in the class, although the latest coastitution reconstructing the extent of its equitable system has al- judiciary, this theory has been aban- ready been described; Wilson v. Leis- doned, and the original jurisdiction of man, 12 Met. 316. Sea quotations equity over administrations has been from the opinion in note under fully re-established, as will appear in § 320. 1 Eq. Juk.— 30 § 349 EQUITY JURISPKODENCK. 466 powers are not so negative and mandatory in their terms that they ipso facto render the prohate jurisdiction ab- solutely exclusive. The equitable jurisdiction is theo- retically left existing, and is sometimes spoken of as " concurrent with," and sometimes as "auxiliary to," that of the probate courts. Practically, however, it is abol- ished, or perhaps it would be more strictly accurate to say that its exercise is suspended, in all ordinary cases. The meaning of this proposition as explained in varying language by different judges is, that unless the case in- volves some special feature or exceptional circumstances of themselves warranting the interference of equity, such as fraud, waste, and the like, or unless it is of such an essential nature that a probate court is incompetent to give adequate relief, or is one of which the probate court, having taken cognizance, has completely miscarried and failed to do justice by its decree, the courts of equity will refuse to interpose and to exercise whatever dormant powers they may possess, but will leave the subject-mat- ter and the parties to the jurisdiction of the statutory forum, which the legislature plainly regarded as sufficient and intended to be practically exclusive. According to this theory, the courts of equity do not deny the exist- ence of any jurisdiction over administrations; but they treat their own jurisdiction as auxiliary and supplemen- tary, and not as concurrent, only to be exercised in the exceptional cases where the probate jurisdiction is con- fessedly inadequate, or has actually shown itself insuffi- cient.* ' The following states properly be- Moren v. McCown, 23 Ark. 93; Free- long to this division, although it will man v. Reagan, 26 Ark. 373. But be seen by examining the decisions when the circumstances are special, that a somewhat varying language and the probate court cannot give has been employed by different courts adequate relief, equity will take juris- to describe the condition of the juris- diction. In Freeman v. Reagan, 26 diction. Ark. 373, 378, the rule was stated Arhamas. — In Haag v. Sparks, 27 that courts of chancery will not, in Ark. 591, it was held that generally general, take jurisdiction of an ad- courts of equity will not take juris- ministration going on before the pro- diction of an administration when it bate court; but still there may be is Siefore the probate court; citing cases of fraud, waste, etc., which 467 JUDICIAL INTERPRETATION OF JURISDICTION. § 350 § 350. Glass Third. Such Jurisdiction Existing and Concurrent. — There is, however, still a third division, would enable courts of chancery to interfere, and exerciae powers not held by the probate court. In apply- ing this rule, it may be remarked that whenever a probate court has, in any issued letters testamentary or of ad- ease, admitted a will to probate, or ministration, or taken any other judi- cial step, the administration will then be "pending "or "going on before" such probate court within the mean- ing of the language above quoted. Connecticut. — Bailey v. Strong, 8 Conn. 278, 280. Georgia. — Harris v. Tiaereau, 52 Ga. 153, 159-163; 21 Am. Rep. 242. The probate court has, in all ordinary cases, an exclusive jurisdiction in the probate of wills, in the appointment of executors and administrators, and in administrations; citing Georgia Code, sec. 331; Slade v. Street, 27 Ga. 17; and Walton v. Walton, 21 Ga. 13. But equity has full jurisdic- tion in all cases of fraud; and where fraud thus exists, it may draw after it as an incident a jurisdiction over matters of administration. It had been held in an early case, decided under a former statute, that the origi- nal jurisdiction of equity in admin- istrations still existed in Georgia: Walker v. Morris, 14 Ga. 323, 325- 327; but this decision is no longer an authority. See also Collins r. Ste- phens, 58 Ga. 284. Illinois. — Heustis v. Johnson, 84 111. 61; Freeland v. Dazey, 25 111. 294. In Heustis v. Johnson, 84 111. 61, which was a suit in equity against an administrator for a final account- ing and settlement, the court stated the rule: "Courts of equity will not exercise jurisdiction over the adminis- tration of estates except in extraordi- nary cases. Some special reason must be shown why the administration should be taken from the probate court "; citing Freeland v. Dazey, 25 111. 294; and see Strubher v. Belsey, 79 111. 307, 308. And yet in Heward e, 52 111. 336, which was an appeal by the distributees (or heirs) from a decree of the probate court finally settling the administrator's accounts, the supreme court said: "When the probate court has settled an administrator's account, and dia> charged the administrator, and the heirs are dissatisfied and wish a re- view and resettlement, and the estate is complicated, the better mode is by a bill in chancery, and not by appeal from the probate court." Ntw Jersey. — Frey v. Demarest, 16 N. J. Eq. 236, 239. For » state- ment of this decision and a more full explanation of the rule which seems to prevail in New Jersey, see the note under the next succeeding para- graph. New Torh. — Chipman v. Mont- gomery, 63 N. Y. 221, 235, 236. Since this decision is quite recent, and since the reasoning and conclusions of the court will apply with equal force to the legislation of many other states besides New York, and fully illus- trate the propositions of the text, I shall quote from the able opinion of Allen, J., at some length. The suit was equitable, brought by next of kin against an executor, praying various kinds of relief. In dismissing the suit, the court, by Allen, J., said (pp. 235, 236): "Again, as an action for an accounting as to the personalty, as in case of intestacy, the action ought not to be sustained. The laws give full powers to the surrogate's court to call executors and adminis- trators to account, and to distribute the estate among the next of kin, and to pass upon every question that may arise, directly or indirectly, in the progress of the accounting and final distribution. That is the appropi-iate tribunal, conceding that, to a limited extent, concurrent jurisdiction exists in a court of equity. The jurisdic- tion of courts of equity in respect to accounts in the course of administra- tion, and the marshaling of assets, grew out of the defects in the process and powers of ecclesiastical courts, and the early courts of probate. The jurisdiction over cases of administra- tion was made to rest upon the notion of a constructive trust in executors and administrators, as well as the necessity of taking accounts and com- pelling a discovery. But these con- siderations do not apply in ordinary cases to the settlement of estates in § 350 KQUITY JUKISPRUDBNCB. 468 comprising a few of the states, in which, notwithstand- ing the probate courts with all the powers given them by statute, the original and full equitable jurisdiction over administrations is held to remain unimpaired. The au- thority of courts of equity over the general subject of this state; and to withdraw a caae of mere settlement of an estate, discon- nected with the enforcement of a special and express trust, as distin- guished from what is called a con- structive trust in all administrations, from the tribunal created for that purpose with ample powers, special reasons should be assigned, and facts stated to show that full and complete justice cannot be done in that court. Upon a final accounting, — and that is what the plaintiffs are entitled to if they have any rights as next of kin, ^ creditors, as well as legatees and next of kin, are entitled to be heard; and they may much more easily be cited before a surrogate than made parties to a formal suit in equity. Chancel- lor Kent recognizes the rule that creditors may come into the court of chancery for the discovery of assets; but that draws the whole settlement of the estate into chancery, which certainly is not to be encouraged: Thompson v. Brown, 4 Johns. Ch. 619. In Seymour v. Seymour, 4 Johns. Ch. 409, the chancellor re- fused to take jurisdiction, and inter- fere with the ordinary exercise of the powers of the surrogate in the settle- ment of the accounts of administra- tors an* the distribution of the estate, without some special reason set forth in the bill. The province of the court of chancery was to aid by a discovery, and when necessary by injunction, the courts of surrogates in the exer- cise of their general powers, and the jurisdiction should be regarded rather as auxiliary than concurrent. But there is uo action now possible for a discovery, and the plaintiffs do not make a case for or ask for an in- junction. It is not optional with ex- ecutors and administrators accounting on their own motion, or creditors, legatees, or next of kin calling them to an accounting, to pass by the sur- rogate's court having ample jurisdic- tion in the premises, and, without assigning any special reasons, proceed by formal action in eqnity, making all persons whose presence is neces- sary to a final accounting parties to the action. It would be unreasonable to subject the parties to the vexation and delay, and the estate to the un- necessary costs, of such a litigation: Adams V. Adams, 22 Vt. 50." Ohio. — Piatt v. Longworth'g Ex'rs, 27 Ohio St. 159, 186: " Since the act of 185B, the probate court has exclu- sive jurisdiction of the settlement of the accounts of executors and admin- istrators. Wlien that remedy proves in- adequate, the aid of a court of equity may he invoked." Rhode Island. — Blake v. Butler, 10 R. I. 133, 137, 138. An administra- tor had filed his accounts in the pro- bate court, and a final decree of set- tlement and distribution had been made therein. The plaintiffs — next of kin — appealed to the supreme court under the statute. Fending this ap- peal the plaintiffs commenced a suit in equity in the supreme court against the administrator, charging fraud iu the administration and in his accounts, and praying for general relief, an ac- counting, and settlement. The su- preme court held that it had no juris- diction of the suit under such circum- stances; that the plaintiff could obtain full relief in the probate court or on the appeal; that the jurisdiction in equity is only concurrent with that of the probate court, and the jurisdiction of the probate court having first at- tached thereby became, under a gen- eral principle, exclusive. According to this decision, the doctrine adopted in Rhode Island is, perhaps, not in full harmony with the proposition formulated in the text; it appears that equity has an active concurrent jurisdiction over administrations, and may regulate and decree the settle- ment of decedents' estates. Still, the state can hardly be regarded as fully belonging to the third class, described in the next succeeding para- graph. 469 JUDICIAL INTERPRBTATION OB" JURISDICTION. § 351 administration, which forms a part of the unabridged system of equity^jurisprudence, still continues in those tribunals concurrent with that conferred upon the pro- bate courts, and it may be exercised even though the case does not involve any special incidents or features which of themselves would constitute distinctive and independent grounds of equitable interference. This continued existence of an active equitable jurisdiction results in some instances from positive provisions of the legislation, in others from the merely permissive terms of the statute defining the powers of probate courts, or perhaps from the absence of any negative or sufficiently mandatory language.* § 351. Special Subjects of Equitable Cognizance in Aid of Administrations. — While the original jurisdiction ' The following states may properly be placed in this division: — Mississippi. — Walker v. State, 53 Miss. 532, 535; Bank of Miss. v. Dun- can, 52 Miaa. 740; Brunini v. Pera, 54 Miss. 649; Eraus r. Robertaon, 54 Mias. 683. In Walker v. State, 53 Miaa. 532, the court held that under the constitution of 1832, the rule was settled that chancery had no jurisdic- tion of admiuiatratioQ, but that the jurisdiction belonged exclusively to courta of probate. Under the pres- ent constitution, such original juris- diction has been restored to courts of equity, and they may entertain suits for administration proper, and also suits upon administration bonds against the administrator or execu- tor and his sureties. The same ruling is repeated in the other cases cited, and a long line of previous decisions is of course overruled. New Jersey. — Frey v. Demarest, 16 N. J. Eq. 236, 238, 2S9. In this carefully considered case, the court expressly holds that the concurrent jurisdiction of equity with the probate courts over the administration of as- sets has long been well settled, and may be exercised on behalf of legatees, next of kin, creditors, and executors or administrators. The suit by a next of kin for his share was established in the reign of Charles II. In New Jersey, the equity jurisdiction over the accounts of executors and admin- istrators, and to enforce the claims of creditors, legatees, and next of kin, has been repeatedly affirmed and is constantly exercised; it is well settled, and also its limitations; citing Meeker V. Marsh, 1 N. J. Eq. 198; King v. Ex'rs of Berry, 3 N. J. Eq. 44, 261; Salter v. Williamson, 2 N. J. Eq. 480, 489; 35 Am. Dec. 513; Smith v. Moore's Ex'rs, 4 N. J. Eq. 485; Van Mater v. Sickler, 9 N. J. Eq. 483; Clark V. Johnston, 10 N. J. Eq. 287. To this explicit statement of the doc- trine, the court adds a conclusion which may seem somewhat inconsis- tent with it: " But, unless for some special cause, a court of equity will not interfere with the ordinary juris- diction of the probate court in the settlement of the accounts of admin- istrators or executors." Shade Island. — Blake v. Butler, 10 R. I. 133, 137, 138. See the state- ment of this case and comments upon it in the note under the preceding paragraph. It appears that in Rhode Island the equitable jurisdiction of the supreme court is concurrent, and of course may be exercised; but if the probate court has already taken cog- nizance of a particular administration, equity will not then interfere, unless for some special and exceptional reason, but will leave the matter under the ex- clusive control of the probate tribunal. § 351 EQUITY JUEISPKUDENCE. 470 of equity over the subject of administration in general is thus abolished in so many states, the power to interfere for some special and partial purpose, or to grant some special and partial relief in the course of the administra- tion and settlement of decedents' estates, exists in all the commonwealths as a part of the general functions be- longing to equity courts. The jurisdiction over estates, interests, and primary rights purely equitable, and to administer equitable remedies, is nowhere lost merely because the interest, right, or remedy grows out of or is connected with the estate of a deceased person which is in the course of administration, even though the admin- istration proper, the accounting, and final settlement are carried on under the exclusive supervision of another tribunal. In all such cases the jurisdiction must, of course, be based upon some distinctive and independent ground or matter of equitable cognizance, and its exercise may then result in a remedy which is a material aid to a pending administration, or which removes an impediment from the final settlement of an estate; as, for example, the construction of a will containing trust provisions, the enforcement of trusts created by a will, the establishment of a will lost or fraudulently destroyed, the canceling and setting aside a fraudulent transfer made by an executor or administrator, and the like. While these and similar instances of the reliefs which may always be furnished by courts of equity are not in any sense parts of or de- rived from the original jurisdiction over administrations, and have not therefore been withdrawn from the courts by the legislation on the subject,' yet they may prop- erly be regarded ks incidental and auxiliary to that juris- diction, even where it has been exclusively intrusted to the probate tribunals. In some of the states belonging to the second division as described above, where the gen- eral equity jurisdiction over administrations is not abso- lutely abolished, but is rather suspended or dormant, when ' [See, by way of illustration, Howell v. Moores, 127 111. 67; ante, § 280, note.] 471 JUDICIAL INTERPRETATION OF JURISDICTION. § 352 sucli a suit is properly brought to obtain a particular relief which necessarily operates to aid some pending administration, or to remove some obstacle from its com- pletion, the rule is settled, in accordance with a familiar principle,' that the court, having thus acquired a partial jurisdiction over the subject-matter, or for a partial pur- pose, will go on and decree full and final relief. The court will therefore, in addition to the particular remedy demanded, take control of the entire administration; will even withdraw it from the probate court if already begun therein, and to that end will enjoin all further proceed- ings before such tribunal, and will order a final account- ing and decree a final settlement and distribution, whether the deceased died testate or intestate.* § 352. Any discussion at present of the cases in which a court of equity may thus interfere and grant particular reliefs connected with a pending administration, which will operate in aid of its complete settlement, would neces- sarily require me to anticipate many subjects properly belonging to subsequent portions of this work; I have, therefore, for the purpose of more clearly explaining the statements of the preceding paragraph, merely placed in the foot-note a few examples which will sufficiently ' See amte, chap. II., see, iii., table cognizance, it will retain the §§ 231-243. entire administration and decree a ' Alalajna. — Pearson v. Darring- final settlement of the estate. In ton, 21 Ala. 169, 176, holds that such a case the court of equity will equity has jurisdiction of a suit apply the same rules of law concern- brought to settle the accounts of com- ing the settlement of estates which plicated transactions entered into by would govern the probate court, but an administrator, and to enforce the in its procedure will follow the meth- due execution of trusts created by a ods and rules of chancery practice: will; and when it takes jurisdiction in Stewart v. Stewart, 31 Ala. 207; Wil- such a case by the commencement of son v. Crook, 17 Ala. 59; Hunley v. a suit, the whole administration is Hunley, 15 Ala. 91; Hall v. Wilson, thereby withdrawn from the probate 14 Ala. 295; Taliaferro v. Brown, 11 court: Cowles v. Pollard, 51 Ala. 445, Ala. 702. 447. When the trusts of a will are New Jersey. — Youmans v. You- doubtful, equity has jurisdiction to mans, 26 K. J. Eq. 149; and Mallory construe the will and to direct the v. Craige, 15 N. J. Eq. 73. In a suit executor in the execution of its pro- properly brought for the construction visions: Sellers v. Sellers, 35 Ala. 235; of a will, all parties being before the Trotter v. Blocker, 6 Port. 269. And court, a final accounting by the exec- when chancery takes jurisdiction upon utor and settlement of the estate will any such independent ground of equi- be decreed. § 352 EQUITY JURISPEUDENCE. 472 illustrate the meaning of the text.' There are a few states in which, by the operation of peculiar and manda- ' This jarisdiction, baaed upon dis- tinct and independent grounds of equitable cognizance, to grant reme- dies which will more or less directly aid, or remove obstacles from, a pend- ing administration is well settled, and constantly exercised for the following purposes, among others: To construe doubtful provisions of a will, and to direct the executors with respect to their duties when a trust is created by it; but there is no such equitable jurisdiction to interpret a will — or a deed — which only deals with and dis- poses of purely legal estates or inter- eats, and which makes no attempt to create any trust relations with respect of the property donated. This special jurisdiction to interpret a will is wholly an outgrowth and application of the general power over trusts: Chipman v. Montgomery, 63 N. Y. 221, 230; Bailey v. Briggs, 56 N. Y. 407; Post V. Hover, 33 N. Y. 593, 602; 30 Barb. 312, 324; Bowers v. Smith, 10 Paige, 194; Woodruff v. Cook, 47 Barb. 304; Onderdonk v. Mott, 34 Barb. 106; Wabath v. Handy, 24 How. Pr. 353; Cowles v. Pollard, 51 Ala. 445, 447; Youmans v. Youmans, 26 N. J. Eq. 149; Strubher v. Belsey, 79 111. 307, 308; Whitman v. Fisher, 74 HI. 147; Simmons v. Hendricks, 8 Ired. Eq. 84, 85, 86; 55 Am. Dec. 439. The doctrine is clearly and concisely stated by Allen, J., in the recent case of Chipman v. Montgomery, 63 N. Y. 221, and I quote a short passage from his opinion at page 230: "The rule is, that, to put a court of equity in motion, there must be an actual litigation in respect to matters which are the proper subjects of the jurisdiction of that court as distinguished from a court of law It is by reason of the jurisdiction of courts of chancery over trusts that courts hav- ing equitable powers as an incident of that jurisdiction take cognizance of and pass upon the interpretation of wills. They do not take jurisdiction of actions brought solely for the con- struction of instruments of that char- acter, or when only legal rights are in controversy. Judge Folger, in Bailey v. Briggs, 56 N. Y. 407, well expresses the rule in these words: 'It is whea the court is moved on behalf of an ex- ecutor, trustee, or cestui que trust, and to insure a correct administration of the power conferred by a will, that jurisdiction is had to give a construc- tion to a doubtful or disputed clause in a will. The jurisdiction is inciden- tal to that over trusts.' This is in ac- cord with all the caaes in which the question has been considered by the courts in this state." Suits based upon the actual fraud, misconduct, waste, or misappropriation of funds by the administrator or executor in the performance of his fiduciary du- ties, either to set aside transfers fraudulently made by him, or decrees of the probate court fraudulently ob- tained, or to reach property under bis control belonging to the estate: Clark v. Henry's Adm'rs, 9 Mo. 336; Free- man V. Reagan, 26 Ark. 373, 378; Haag v. Sparks, 27 Ark. 594. Suits to establish a will which had been fraudulently destroyed: Harris v, Tisereau, 52 Ga. 153, 159-163, 21 Am. Kep. 242, holds that equity has full ju- risdiction in all caaes of fraud, except fraud in the execution of a will, and this includes fraud in the destruction of a will, notwithstanding the jurisdiction over admiuistratious given to the pro- bate court. Suits to aid or remove an obstacle from the due course of ad- ministration, either by establishing or setting aside a, settlement made by the decedent upon his wife, and by determining her rights under it and to the estate: Campbell's Appeal, 80 Pa. St. 298. A husband had executed a post-nuptial settlement upon his wife, and afterwards died, leaving a will. The widow elected not to take under the will, claiming her dower and share of the personal property as though her husband had died intestate. She also brought suit in equity to set aside the post-nuptial settlement on account of fraud. The equitable jurisdiction was sustained; the decree would re- move an obstacle to the settlement and distribution of the estate by the pro- bate court, and it was not an invasion of the jurisdiction given to that tribu- nal over administration. And in Car- michael v. Browder, 3 How. (Miss.) 252, a portion had been given to a 473 JUDICIAL INTERPRETATION OF JURISDICTION. § 353 tory language of the statutes, certain other subjects which belong to the equitable jurisdiction in its original form have been withdrawn from the cognizance of equity- courts, and given into the exclusive control of special tribunals, ordinarily to those having probate powers; as, for example, the assignment of dower, and the partition of real estate. These instances, however, are so few and comparatively unimportant that they do not substan- tially affect the general system of equitable jurisdiction existing throughout the country, and their consideration will be postponed to a subsequent chapter. The radical changes in the doctrines concerning trusts made by the legislation of several states belong rather to the equity jurisprudence than to the jurisdiction, and they will be fully described in the division of this work which treats of equitable estates. §'353. States Which have Adopted the Reformed Sys- tem of Procedure. — In dealing finally with the states com- posing this fourth class, I shall no longer inquire into the extent of the equitable jurisdiction as compared with that of the English court of chancery. The only ques- tion which now remains for consideration is, — assuming that either a full or a limited equitable jurisdiction had been conferred by the constitution or the statutes upon the courts of any state belonging to this class, — what is the effect produced upon the nature, extent, and exercise of such jurisdiction by the reformed procedure, which has abolished all distinctions between actions at law and wife by a marriage contract, and after- states, the rule still prevails that a wards a legacy by her husband's will, next of kin may sue the administrator which the executor claimed was in- in equity to recover bis distributive tended to be in satisfaction of the share of the estate, although the courts portion, but the widow to be in addi- of law and the orphans' court also tion thereto. A suit in equity to de- have jurisdiction if there has been a termine the rights of the widow under decree for a distribution made in the the nuptial contract and the will, and administration; when no decree of dia- in the mean time to restrain her from tribution has yet been made, the only suing in the probate court to recover remedy of the next of kin is by such her legacy, was sustained. Suits to snitin equity: Dorsheimer v. Eorback, recover distributive shares: In New 23 N. J. Eq. 46; Freyv. Demarest, 16 Jersey, and perhaps in some other N. J. Eq. 236, 23S. § 354 EQUITY JUKISPRUDBNCB. 474 suits in equity, and which provides that all rights, legal and equitable, shall be maintained, and all remedies, legal and equitable, shall be obtained, by means of the one civil action? It would be impossible, and indeed wholly unnecessary, for me to follow the course of judi- cial discussion and decision upon this question in each individual state; all that I can do is to formulate, in as brief and comprehensive terms as possible, the conclu- sions which have been reached by the courts in all the states of this class. § 854. Its General Effect on the Jurisdiction. — When- ever the judges of any state have dealt with this subject generally, whenever they have in general terms described the total effect of the reformed procedure upon the equity jurisprudence and jurisdiction,, they have all used lan- guage of the same import and leading to the same result. From this entire course of judicial decision and dicta in all the states, the following proposition may be formulated as expressing the unanimous conclusion of the courts with respect to the general effect of the reformed proce- dure. The reformed procedure, in its abolition of all dis- tinction between actions at law and suits in equity; in its abrogation of the common-law forms of action, and its institution of one " civil action " for all remedial pur- poses; in its allowing both legal and equitable rights to be maintained, and legal and equitable remedies to be conferred in combination by the single "civil action"; and in the uniform rules which it has established for the regulation of this civil action whenever and for whatever purposes it may be used, — purports to deal with, and does in fact deal with, the procedure alone, with the mere in- strumentalities, modes, and external forms by which jus- tice is administered, rights are protected, and remedies are conferred. The new system was not intended to affect, and does not affect, the differences which have heretofore existed, and still exist, between the separate departments of " law " and " equity "; it was not intended to affect, and 475 JUDICIAL INTERPRETATION OF JURISDICTION. § 354 does not affect, the settled principles, doctrines, and rules of equity jurisprudence and equity jurisdiction. To sum up this result in one brief statement, all equitable estates, interests, and primary rights, and all the principles, doc- trines, and rules of the equity jurisprudence by which they are defined, determined, and regulated, remain abso- lutely untouched, in their full force and extent, as much as though a separate court of chancery were still pre- served. In like manner all equitable remedies and reme- dial rights, — that is, the equitable causes of action, and the rights to obtain the reliefs appropriate therefor, — and the doctrines and rules of equity jurisprudence which define and determine these remedies and remedial rights, and the doctrines and rules of equity jurisdiction which govern and regulate, not the mere mode of obtaining them, but the fact of obtaining such remedies, also remain wholly unchanged, and still control the action of courts in the administration of justice. While the external dis- tinctions of form between suits in equity and actions at law have been abrogated, the essential distinctions which inhere in the very nature of equitable and legal primary or remedial rights still exist as clearly defined as before the system was adopted, and must continue to exist until the peculiar features of the common law are destroyed, and the entire municipal jurisprudence of the state is transformed into equity. If, therefore, the facts stated in the pleadings show that the primary rights, the cause of action, and the remedy to be obtained are legal, then the action is one at law, and falls within the jurisdiction at law. If, on the other hand, the facts stated show that the primary rights, or the cause of action, or the remedy to be obtained are equitable, then the action itself is equi- table, governed by doctrines of the equity jurisprudence, and falling within the equitable jurisdiction of the court. It should be carefully observed, however, that, under the reformed system of procedure, the same action may be both legal and equitable in its nature, since it may com- §354 EQUITY JURISPRUDENCE, 476 bine both legal and equitable primary rigbts, causes of action, defenses, and remedies. It is this fact which, more than any other, has tended to produce whatever confusion may have arisen in the actual workings of the new system. I have collected and arranged in the foot- note cases selected from the decisions of various states, by which the foregoing general conclusions are fully sus- tained.* ■ My limits of space will not permit of much extended citation from judi- cial opinions, and I shall only quote a few passages which state the doctrines upon which the conclusions of the text are founded in a, peculiarly clear and forcible manner. I have collected these cases according to the states, arranged in an alphabetical order. Arhansaa. — Talbot v. Wilkina, 31 Ark. 411, 422; Oantt'sDig., sees. 4461, 4463, 4464. California. — De Witt v. Hays, 2 Cal. 463, 468; 56 Am. Deo. 352, per Murray, C. J. ; Smith t. Rowe, 4 Cal. 6; Grain v. Aldrich, 38 Cal. 514; 99 Am. Dec. 423; Wiggins v. McDonald, 18 Cal. 126; Bowen v. Aubrey, 22 Cal. 566, 569; White v. Lyons, 42 Cal. 279, 282. In two of these cases the whole theory, both in its positive and its negative aspects, was stated in so clear a manner that I may be per- mitted to make short extracts from the opinions, especially as other cases have, from necessity, only repeated the same conclusions. In De Witt v. Hays, 2 Cal. 463, 468, 56 Am. Deo. 352, Mr. C. J. Murray said: "The legislature, in providing that 'there shall be but one form of civil action,' cannot be supposed to have intended at one fell stroke to abolish all distinction between law and equity as to actions. Such a construction would lead to in- finite perplexities and endless difficul- ties So cases legal and equi- table have not been consolidated; and though there is no difiference between the form of a bill in chancery and a common-law declaration under our system, where all relief is sought in the same way from the said tribunal, the distinction between law and equity is as naked and broad as ever. To entitle the plaintiff to the equitable interposi- tion of the court, he must show a proper case for the interference of a court of - chancery, and one in which he has no adequate or complete relief at law." In White v. Lyons, 42 CaL 279, 282, Mr. Justice Crockett said: "Under the code there is but one form of ac- tion in this state If the facta stated are such as address themselves to the equity side of the court, the ap- propriate relief will be granted by the court sitting as a court of equity. On the other hand, if the facts alleged are purely cognizable in a court of law, the proper relief will be administered in that form of proceeding." Indiami. — Matlock v. Todd, 25 Ind. 128, 130, per Elliott, J.; Woodford v. Leavenworth, 14 Ind. 311, 314, per Worden, J.; Emmons v. Kiger, 23 Ind. 483, 487; Troost v. Davis, 31 Ind. 34, 39; Scott v. Crawford, 12 Ind. 411. lovM. — Claussen v. Lafrenz, 4 G. Greene, 224, 225-227; Kramer v. Reb- man, 9 Iowa, 1 14; Laird v. Dickerson, 40 Iowa, 665, 669; Sherwood v. Sher- wood, 44 Iowa, 192. Kansas. — Shoemaker v. Brown, 10 Kan. 383, 390; Sattig v. Small, 1 Kaa. 170, 175. Kentucky. — Garret v. Gault, 13 B. Mon. 378, 380; Martin r. Mobile & 0. R. R., 7 Bush, 116, 124; Richmond etc. T. Co. v. Rogers, 7 Bush, 532, 535; Hord v. Chandler, 13 B. Mon. 403; Hill V. Barrett, 14 B. Mon. 67. Minnesota. — Gates v. Smith, 2 Minn. 30, 32; Guernsey v. Am. Ins. Co., 17 Minn. 104, 108; Montgomery V. McEwea, 7 Minn. 351. Missouri, — Henderson v. Dickey, 50 Mo. 161, 165; Lackland v. Garesche, 56 Mo. 267, 270; Magwire v. Tyler, 47 Mo. 115, 128; Meyers v. Field, 37 Mo. 434, 441; Richardson y. Means, 22 Mo. 495, 498; Maguire v. Vice, 20 Mo. 429; Rogers v. Penniston, 16 Mo. 432; and see also Curd v. Lackland, 43 Mo. 139; Wynn v. Cory, 43 Mo. 301; Gray v. Payne, 43 Mo. 203; Bobb v. Wood- 477 JUDICIAL INTERPRETATION OF JURISDICTION. § 355 § 355. Its Particular Effects. — While this unanimous conclusion of the courts is, in general, correct; while. ward, 42 Mo. 482, 487; Peyton ▼. Rose, 41 Mo. 257, 262; Gott v. Powell, 41 Mo. 416; Reed v. Robertson, 45 Mo. 580; Rutherford v. Williams, 42 Mo. 18, 23; Fithiaa v. Monks, 43 Mo. 502, 617. Nebraska. — Wilcox v. Saunders, 4 Neb. 569, 587. Nevada. — Crosier v. McLaughlin, 1 Nev. 348; Champion v. Sessions, 1 Nev. 478; Sherman v. Clark, 4 Nev. 138; 97 Am. Deo. 516; Couley v. Che- dio, 6 Nev. 222. New York. — Reubens v. Joel, 13 N. Y. 488, 493, per S. L. Selden, 0.; Voorhis v. Child^s Ex'rs, 17 N. Y. 354, 357-362, per S. L. Selden, J.; Peck v. Newton, 46 Barb. 173, 174; Cole v. Reynolds, 18 N. Y. 74, 76; Lattin v. MeCarty, 41 N. Y. 107, 110, per Hunt, C. J. ; Cropsey v. Sweeney, 27 Barb. 310; Dobson v. Pearce, 12 N. Y. 156, 165; 62 Am. Dec. 152; Crary v. Good- man, 12 N. Y. 266, 268; 64 Am. Deo. 506; N. Y. Cent. Ins. Co. v. Nat. Pro- tect. Ins. Co., 14 N. Y. 85, 90; Bidwell V. Astor Ins. Co., 16 N. Y. 263, 267; Phillips V. Gorham, 17 N. Y. 270, 273, 275; Laub v. Buckmiller, 17 N. Y. 620, 626; N. Y. Ice Co. v. Northwest Ins. Co., 23 N. Y. 357, 359, 360; Brown v. Brown, 4 Rob. (N. Y.) 688, 701; Grin- nell V. Buchanan, I Daly, 538; Ireland V. Nichols, 1 Sweeny, 208; Wright v. Wright, 54 N. Y. 437, 442; Giles v. Lyon, 4 N. Y. 600; Anderson v. Hunn, 5 Hun, 79; Barlow v. Scott, 24 N. Y. 40, 45; De Hart v. Hatch, 3 Hun, .375, 380; Wilcox v. Wilcox, 14 N. Y. 575, 579, 581. In the first two cases above cited (Reubens v. Joel, 13 N. Y. 48Sj Voorhis v. ChUd's Ex'rs, 17 N. Y. 354), Mr. Justice S. L. Selden undoubtedly carried this principle of interpreting the codes of procedure altogether too far. By his theory not only the in- herent distinctions between law and equity are retained, but all the differ- ences of external form between suits in equity and actions at law, and even among the various kinds of legal actions, are substantially preserved. While his views on this point have been rejected by all the authoritative decisions, his statement of the effect of the new system upon what is essential and inherent in the equity jurispru- dence and jurisdiction is both accurate and admirable. From this long list of New York decisions I will make one or two short quotations. Lattin v. Me- Carty, 41 N. Y. 107, is a very leading and authoritative case, because its facts presented the question in the most di- rect manner. Mr. C. J. Hunt said (p. 109): "Assuming that the complaint does contain two causes of action, as is insisted, the judgment was still er- roneous. The argument principally relied upon to sustain the demurrer is this, that the two causes of action are of different characters, one an action of ejectment, being an action at law, the other an action to set aside a deed as fraudulent, and of an equitable na- ture; that the latter may be tried by the court, while in the former the party is entitled to have his case passed upon by a jury. The codifiers labored assiduously to anticipate and to over- rule this objection." He cites certain sections of the code, and proceeds: "In these provisions and in others, the distinction between legal and equita- ble causes of action is recognized. There is no attempt to abolish this distinction, which would be quite un- availing. The attempt is to abolish the distinction between the forms of action and the modes of proceeding in the several cases. The difficulty under consideration has been expressly over- ruled by this court in the cases that I shall presently cite. " He cites several cases, all of which are placed in the above list. The case of Wright v. Wright, 54 N. Y. 437, is also a very instructive one. The action was by a wife against her husband upon a prom- issory note given* by him to her before the marriage, and in contemplation thereof. The complaint was in the usual form of an action on a note, but stating the relation between the par- ties, and how the note was given. Reynolds, J., said (p. 442): "While it is admitted that the rights of the plaintiff could be enforced by a suit in equity, yet itis insisted that this, being an action at law, cannot be maintained by a married woman against her bus- band. It might be asked by what au- Owrky the defendant names this an action at law. What additional allegation is § 355 EQUITY JURISPEUDBNCB. 478 when we look at the efiFects of the reformed procedure as a whole, — en masse, — it is true that equity and the law the compIa.mt would have enabled the defendant to designate it as a suit in equity! While regard ia still to be had in the application of legal and equitable principles, there is not of necessity any difference in the mere form of procedure so far as the case to be stated in the complaint is concerned. All that is needful is to state the facts • sufficient to show that the plaintiff is entitled to the relief demanded; and it is the duty of the court to afford the relief without stopping to speculate upon the name to be given to the action. These principles have been frequently acted upon by the court. .... When, as in our system, a sin- gle court baa jurisdiction both in law and in equity, and administers justice in a common form of procedure, the two jurisdictions of necessity became to some extent blended. This must be especially the result when the forms of pleading and proceeding are alike, " I know of no opinion which more ac- curately and completely expresses the true intent and effects of the reformed procedure than this. In Wilcox v. Wilcox, 14 N. Y. 575, 579, 581, it was decided that individual judges acting in chambers have all the powers and functions which were possessed and ex- ercised by the chancellor in chambers. Ohio. — Klonne v, Bradstreet, 7 Ohio St. 322, 325; Lamson v. Pfaff, 1 Handy, 449, 452; McCrory v. Parks, 18 Ohio St. 1; EUithorpe v, Bucks, 17 Ohio St. 72; Clayton v. Freet, 10 Ohio St. 544, 546; Goble v. Howard, 12 Ohio St. 165, 168; Hager v. Reed, 11 Ohio St. 626, 635; Dixon v. Caldwell, 15 Ohio St. 412, 415; 86 Am. Deo. 487, In the last-named case, the court held that the code had abolished the dis- tinction between actions at law and suits in equity, and had substituted in their place one form of " civil action"; but the rights and liabilities of parties, both legal and equitable, as distin- guished from the mode of procedure, remain the same since aa before the adoption of the code. Oregon. — Hatcher v. Brigga, 6 Or. 31, 41. Wisconsin. — Bonesteel v. Bonesteel, 28 Wis. 245, 250; Dickson v. Cole, 34 Wis. 621, 625; Mowry v. Hill, 11 Wis. 146, 149; Leonard v. Rogan, 20 Wis. 568; Supervisors v. Decker, 30 Wis. 624, 626-630; Turner v. Pierce, 34 Wis. 658, 665; Lawe v. Hyde, 39 Wis. 345; Noonan v. Orton, 21 Wis. 283; Horn V. Ludington, 32 Wis. 73. From these and other cases which might be cited, it is plain that the supreme court of Wisconsin, while maintaining the doctrine that law and equity are unaffected by the reformed procedure, has also preserved in actual practice more of the external distinctions of form between equitable suits and legal actions than has been done by the courts of any other state where the new system of procedure is adopted. There are two other states in which law and equity are blended, and are administered by means of the same kind of action, with the same forms of pleading and rules of practice, al- though the peculiar system known as the "reformed procedure" does not prevail therein. These states are Louisiana and Texas, and they should properly be included in this fourth class. Louisiana, — The "equity" recog- nized in this state is the power of the court to decide according to natural justice in all cases where the positive law is silent. See remarks, ante, § 345, in note; Welch v. Thorn, 16 La. 188, 196; Kittridge v. Breaud, 4 Rob. (La.) 79, 80; 39 Am. Dec. 512; Clarke v. Peak, 15 La. Ann. 407, 409. Texas. — Ogden v. Slade, 1 Tex. 13, 15; Smith v. Clopton, 4 Tex. 109, 113;- Spann v. Stern's Adm'rs, 18 Tex. 556; Seguin v. Maverick, 24 Tex. 526, 532; 76 Am. Dec. 117; Herrington v. Wil- liams, 31 Tex. 448. 460; Jones v. Mo- Mahan, 30 Tex. 719, 728; Newson v. Chrisman, 9 Tex. 113, 117; Smith v. Smith, 11 Tex. 102, 106; Gross v. Mc- Claran, 8 Tex. 341, 344; Coles v. Kel- sey, 2 Tex. 541, 553; 47 Am. Dec. 661; Carter v. Carter, 5 Tex. 93, 100; Wells V. Barnett, 7 Tex. 584, 586; Purvis v. Sherrod, 12 Tex. 140, 159. The pecu- liar system of administering justice, with respect to the distinctions be- tween law and equity which prevails in Texas, can only be fully understood by an examination of these decisions. I add a single quotation from an early 479 JUDICIAL INTBRPKETATION OF JURISDICTION. § 355 remain unchanged, — still, this proposition is not true in every particular; there are some important and necessary- limitations. When we descend from such a general sur- vey of the entire domain, and make a close inspection of each portion in detail, we shall find that some modifica- tions have been made in the body of equity jurisprudence. This result was in fact inevitable. Certain equitable in- terests and primary rights, and certain equitable reme- dies and remedial rights, were so essentially bound up with and dependent upon the fwms peculiar to the suit in equity, and to the administration of justice by the methods of chancery, that any abolition of the peculiar forms must of necessity work some change in this class of interests, rights, and remedies. It is easy to say that the distinctive modes of equity procedure are alone abro- gated by the legislature, while the principles, doctrines, and rules of the equity jurisprudence and jurisdiction are wholly unaffected; but in the very nature of things this is simply impossible with respect to all the details of the system. Some particular changes in equity jurispru- dence and jurisdiction have therefore been made; they have been distinctly recognized and unqualifiedly ad- case. In Smith v. Clopton, 4 Tex. 109, By the constitution of the state, and 113, Hemphill, C. J., said: "Before by subsequent legislation, the distinc- the introduction of the common law, tion between these two systems is, in the distinction between law and equity a great measure, if not totally, disre- wag altogether unknown. The par- garded The only inquiry, then, ties stated their causes of complaint to be made at the institution of a suit and grounds of defense, and on the is, whether the facts of the case are allegations and proofs such relief was such as to entitle a party to a judg- afforded as they were entitled to under ment in his favor in either law or any and all the laws of the land, with- equity; and if he have rights cogni- out reference to that peculiarity of the zable by either, such relief will be ad- English system of jurisprudence which judged by the court as the nature of renders the righte of parties, or at the case demands. The rule that least their reliefs, dependent not only courts of equity will Interfere only upon the facts of their case, but also where the party is remediless at law upon the form in which redress was has but little application under a sys- sought. Upon the introduction of the tern in which the litigants in a suit common law, the intention of the legis- can demand and obtain all the relief lature is manifest to prevent such which can be granted by either courts distinction from being recognized, at of law or of equity." See also th© least, to an extent which would de- opinion in Coles v. Kelsey, 2 Tex. 541, prive parties of any relief to which 658, 47 Am. Bee. 661, and the remarks they may be entitled nnder the rules ariie, in note under § 34S. and principles of either law or equity. § 356 EQUITY JURISPRUDENCB. 480 mitted by the courts; but their necessary connection with the general effects produced by the reformed procedure has not always been clearly perceived and announced. I shall describe the most important of these instances, which must be regarded as exceptions to or limitations upon the general propositions contained in the last pre- ceding paragraph. § 356. On Certain Equitable Interests. — The first and most palpable of these necessary changes is the complete abrogation of a certain class of equitable primary rights, and the transformation of them into strictly legal rights. This result may not, under the circumstances, be of much practical importance, but it certainly exists. Prior to the codes, the assignment of a thing in action conferred upon the assignee only an equitable primary right, an equi- table demand. It is true that the courts of law had, in the course of time, come to recognize and protect this right, by permitting the assignee to sue at law in the name of his assignor, to control the action and judgment, and to receive the proceeds; but still the right was no less equitable; the assignee could not assert his own claim by an action at law brought in his own name. In all the states where it prevails, the reformed procedure not only permits but requires the assignee of a thing in action to sue upon it in his own name in any legal action brought for its recovery. This statutory rule removes the last vestige of thee quitable nature of the assignee's interest, and transforms his claim into a purely legal one, and thus at one blow abolishes a well-defined division or portion of the equity jurisprudence.' The courts have * It is idle to say, as has been said equitable interest upon the assignee hy some judges, that the codes merely prior to the codes, so that the provision adopt a rule of practice and extend to of the codes does not create his equi- legal actions the rule as to parties table right; and 2. The doctrine of which had prevailed in courts of equity was not a mere rule regulating equity, and that the right of the as- the parties to a suit; it treated the as- signee given by the codes is only an signee as editable owner, as clothed equitable one (as, for example, in Mc- with all the rights of his assignor, and Donald v. Kneelaud, 5 Minn. 352, 365), therrfore permitted him to sue in his because, — 1. The assignment of a own name; but 3. The sole remaining thing in action conferred a complete reason why the assignee did not obtain 481 JUDICIAL INTERPRETATION OF JURISDICTION. § 357 recognized this effect of the legislation in changing the assignee's right from an equitable into a legal one; but they have not perceived, or at least pointed out, its bear- ing upon the general mode of describing the results pro- duced by the new system. It is hardly necessary to say that this effect is confined to direct.assignments of legal , things in action. The equitable results arising from the assignment of equitable demands, and from the equitable assignment of funds, and the like, are, of course,- unmod- ified. § 357. On Certain Equitable Remedies. — But there is another and still more important limitation of the general proposition. While it is undoubtedly true that with the exception just mentioned of the right conferred upon the direct assignee of a legal thing in action, all the equitable estates, interests, property, liens, and other primary rights* recognized by the equity jurisprudence, and all the prin- ciples, doctrines, and rules of that jurisprudence which a legal right of ownership was found in the purely technical rule which for- bade him to sue at law in his own name. When this arbitrary rule was abolished, his right of necessity be- came a legal one. The origin of the rule at law is found in the ancient com'mon-law doctrines concerning maintenance; but these had long ceased to be operative in the United States. The true effect of the reformed proce- dure was perceived and stated by that most able and learned judge Mr. Jus- tice Denio, in Petersen v. Chemical Bank, 32 N. Y. 21, 45; 88 Am. Dec. 298: "The law of maintenance .... prohibited the transfer of the legal property in a. chose in action, so as to give the assignee a right of action in his own name. But this is now abrogated; and such a demand .... may be sold and conveyed, so as to vest in the pur- chaser all the legal as well as the equi- table rights of the original creditor." [See also § 1273.] ' It might perhaps be said that the case of one of two or more joint debtors dying, and the equitable claim of a creditor against the estate of such decedent, was also an exception. At the common law no indebtedness exists 1 Eq. Jde.— 31 against the estate of a deceased joint debtor; but in equity the creditor has a demand still continuing wliich he can enforce by an equitable suit, under certain restrictions. In several of the states the creditor is permitted to sue the representatives of the deceased debtor at law, either alone or jointly with the survivors, and without having exhausted his remedies, or even taken any steps against the survivors. In short, the ancient common-law doc- trine is ndioUy abrogated, and the demand against the estate of the de- ceased joint debtor is transformed into an ordinary legal claim; the original legal debt is unaffected by the death. Great as is this change, I do not in- clude it among those described in the text, because it is not a part of the re- formed procedure as an entire system. This particular result is confined to a few of the states, and depends upon pe- culiar and express clauses of their own codes. In the states where such legis- lation has been adopted, the effect undoubtedly is a change, as above described, in equitable primary rights, by transforming them into strictly legal rights. § 357 EQUITY JTJRISPB0DENCB. 482 define them, determine their existence, and regulate their acquisition, transfer, and enjoyment, are untouched and unaffected, it is no less true that some of the equitable remedies and remedial rights belonging to the equity juris- prudence, and coming within the equity jurisdiction, are materially modified,* if not indeed destroyed as equitable remedies and remedial rights, by the reformed procedure. The union of legal and equitable causes of action in the same suit, and the granting of legal and equitable reliefs by the same judgment, and above all, the granting of ulti- mate legal relief by the judgment as though some prior auxiliary equitable relief which was a necessary prere- quisite had actually been granted, have very much les- sened the instances in which it is proper, or even possible, for a party to maintain distinctively equitable suits, en- force purely equitable remedial rights, and obtain strictly equitable remedies according to the settled course of the equitable jurisdiction.* The same consequences must re- sult in even a still more marked manner, from the setting up of equitable defenses and counterclaims, and the ob- taining afiirmative equitable relief against the plaintifi"s in actions which at their inception are purely legal. "While these provisions of the new system do not abso- lutely take away the jurisdiction to entertain suits for the enforcement of equitable rights, and, in connection therewith, for the Restraining of pending or threatened actions at law, yet they certainly modify that jurisdiction, and in a great number of instances render its exercise unnecessary, improper, and even impossible.* * One example will sufficiently il- auxiliary equitable relief had been lustrate this point. A plaintiff sues in terms granted. See Bidwell v. As- upon a written agreement, setting tor Ins. (Jo., 16 N. Y. 263, 267; Phil- forth the facts entitling him toarefor- lips v. Gorham, 17 N. Y. 270; Caswell mation, and seeking to recover the v. West, 3 Thomp. & C. 383. amount due upon the instrument as 'I cannot at present enter into any reformed. The judgment actually discussion of this most important rendered is merely a legal judgment question; it will be examined in a sub- for the recovery of debt or damages, sequent chapter which deals with in- the equitable relief of a reformation junction. It is sufficient now to cite not being actually decreed, but being a few oases which illustrate the subject assumed; the purely legal relief is mentioned in the text: Erie R'y Co. awarded exactly as though the prior V.Ramsey, 45 N.Y. 637, per Folger, J.; 483 JUDICIAL INTBKPKBTATION OF JURISDICTION. § 358 § 358. On the Inadequacy of Legal Remedies. — Finally, if the true spirit and intent of the reformed procedure were fully carried out by the courts, I think that in all the states where it prevails the question whether or not an adequate remedy can be' obtained at law would cease to have the slightest importance in the actual decision of causes. One of the plainest purposes of the new system is, that if a cause of action is stated in the pleading, the relief to which the plaintiff is entitled should be granted, whether that relief be legal or equitable. A suit should never be dismissed on the ground that a court of equity has no jurisdiction of the matter because the plaintifiF has an adequate remedy at law; it should be retained and decided as an action at law, and the adequate legal relief should be awarded.' The correctness of this theory is generally admitted, but the courts too often fail to carry the theory into practice. Platto v. Deuster, 22 Wis. 482, per > Mr. Chief Justice Hemphill clearly Dizon, C. J.; Rogers v. Gwinn, 21 apprehended this necessary result of Iowa, 68; Uhlfelder v. Levy, 9 Cal. the system in Smith r. Clopton, 4 Tex. 607; Anthony v. Dunlap, 8 CaL 26; 109, 113, quoted above, ia the note Bickett V. Johnson, 8 Cal. 31. under § 354. PABT SECOND. PART SECOND. THE MAXIMS AND GENERAL PRINCIPLES OF EQUITY JURISPRUDENCE, AND THE EVENTS WHICH ARE OCCASIONS OF EQUITABLE PRI- MARY OR REMEDIAL RIGHTS. PRELIMINARy SECTION. ANALYSIS. § 359. Objects, qneationa, and divisions stated, § 360. Equitable principles described. § 361. Equitable doctrines described. § 362. Occasions of equitable rights. § 359. Questions and Divisions Stated. — Thus far the discussion has been" confined to the equity jurisdiction, or the power of courts to entertain and determine contro- versies involving equitable estates, interests, and rights, or to award remedies, in pursuance of the doctrines, methods, and procedure of equity. I now proceed to the examination of the doctrines and rules which make up the equity jurisprudence. In the introductory chapter it was shown that equity jurisprudence, considered as a department of the municipal law, as a collection of prac- tical rules administered by the courts, is separated by a natural line of division into two parts, namely, equitable estates, interests, and primary rights, which are all either equitable rights of property or rights analogous to prop- erty, and equitable remedies and remedial rights. There are, however, certain elements underlying and running through the entire body of equity jurisprudence, which must be explained and described in all their fullness and force, before either of these two great divisions can be § 360 EQUITY JURISPRUDENCE. 488 dealt with in a complete and accurate manner. As clearly appears in our preliminary historical sketch, the doctrines and rules of equity jurisprudence are not arbitrary; they are, to a very great extent, based upon and derived from those essential truths of morality, those unchangeable principles of right and obligation which have a juridical relation with and application to the events and transac- tions of society. These ethical truths do not, however, appear in equity jurisprudence in their purely abstract form. As they must be applied by the courts to juridical relations alone, they have been made to assume a con- crete and juridical character, without losing at the same time any of their inherent ethical nature. In fact, these juridical precepts of right and duty are the broad foun- dations upon which the superstructure of equity juris- prudence has been constructed; they are the sources from which most of those doctrines and rules have been drawn which define and regulate equitable estates, interests, and rights, and control the administration of equitable reme- dies. A careful examination and full comprehension of these sources — these fundamental principles — are plainly a prerequisite to any complete and accurate knowledge and understanding of the doctrines and rules which result from them. § 360. Equitable Principles. — The juridical principles ' of morality which thus constitute the ultimate sources of equitable doctrines and rules are of two classes or grades. Underlying the entire body of equity jurispru- dence, extending through every one of its departments, and shaping to a greater or less extent its doctrines con- cerning almost every important subject, are certain broad comprehensive precepts which are commonly denomi- nated maxims of equity. These maxims are in the ' It is important to obtain an accn- principia, the beginnings or starting- rate notion of the distinction between points of evolution, out of which any "principles" and doctrines. "All system of truth ia developed": De principles are doctrines, but all doc- Quincey. "Rules" are still more trines are not principles. Those prop- particular in their application and erly are principles which contain the narrow in their scope than doctrines. 489 PBELIMINAKY SECTION. § 361 strictest sense the principia, the beginnings out of which has been developed the entire system of truth known as equity jurisprudence. Thpy are not the practical and final doctrines or rules which determine the equitable rights and duties of individual persons, and which are constantly cited by the courts in their decisions of judi- cial controversies. They are rather the fruitful germs from which these doctrines and rules have grown by a process of natural evolution. They do not exclusively belong either to the department which treats of equitable estates, property, and other primary rights, nor to that which deals with equitable remedies; their creative and molding influence is found alike throughout both of these departments. Among the most important of these principia which have been crystallized into the pithy form of maxims are the following: Equity regards that as done which ought to have been done; equity looks at the intent, rather than the form; equality is equity; he who seeks equity must do equity; he who comes into equity must come with clean hands. While it cannot be said that these and other similar principles have all pro- duced the same or equal effects upon the development of equity jurisprudence, yet it is undeniable that a vast proportion of the actual doctrines and rules which make up the system of equity are necessary inferences from or direct applications of some one or more of these funda- mental maxims. It is evident, therefore, that any full and accurate discussion of the doctrines and rules which constitute the two main divisions of equity jurisprudence as heretofore described must be preceded by an exami- nation into the nature, meaning, extent, and effects of these few germinal principles. § 361. Equitable Doctrines. — In addition to these true principia, these principles which run through and affect all parts of equity jurisprudence, there are also certain other comprehensive doctrines which are purely equitable, and largely serve to distinguish the system § 362 EQUITY JUEISPEUDBNCE. 490 from the "law." The doctrines to which I refer are neither equitable estates, nor property, nor remedies, nor - are they exclusively concerned either with equitable es- tates and other similar rights, or with equitable remedies; on the contrary, they affect to a greater or less extent both the equitable rights of property and the administration of equitable remedies. It seems expedient, therefore, in or- der to avoid unnecessary repetition, — even if this arrange- ment is not essential in any scientific method, — that the investigation of these peculiar doctrines should precede the discussion of equitable estates, interests, and other primary rights, and of equitable remedies. The following are illustrations of the doctrines which constitute this special class: The equitable doctrines concerning penalties and forfeitures; the doctrine concerning priorities; the doctrine concerning notice; the doctrine of election. All of these are very comprehensive in their nature and effects, and are the immediate sources of numerous rules in all branches of equity jurisprudence. § 362. Occasions of Equitable Rights. — Finally, there are certain facts or events which are the occasions of nu- merous equitable rights, both primary and remedial, and which thus give rise to important doctrines and rules in every branch of equity jurisprudence. These facts and events have sometimes been described as forming a part of the concurrent jurisdiction; but this view, as has already been shown, is superficial and erroneous. The facts and events which are thus peculiarly the occasions of equitable rights are fraud, mistake, and accident. Under the system of classification which I have adopted, these subjects do not exclusively belong either to the de- partment of equitable estates and other primary rights, nor to that of equitable remedies. Although not the sources of rules, like the principles and doctrines men- tioned in the foregoing paragraphs, they are the occasions which give rise to a large number of rules, and their ex- amination should, in any proper order, precede the dis- 491 PRELIMINARY SECTION. § 362 cussion of equitable property and equitable remedies. This second part will therefore be separated into three chapters, of which the first will be devoted to the funda- mental maxims of equity, the second to the group of peculiarly equitable doctrines above described, and the third to the special facts and events which are the occa- sions of many equitable rights and remedies. §363 SQUITY JUKISFSUDSNCB. 492 CHAPTER L THE FUNDAMENTAL PRINCIPLES OR MAXIMS OF EQUITY. SECTION I. EQUITY REGARDS THAT AS DONE WHICH OUGHT TO BE DONE. ANALYSIS. §363. §364. §§ 365-377. §§ 366-369. §366. §367. §368. §369. §§ 370-376. §371. §372. §373. §374. §375. §376. §377. List of equitable maxims. Equity regards as done what ought to be done; its importance. Its true meaning, and its effects upon equitable doctrines. Is the source of equitable property and estates. Sources of legal property or titles described. Etfect of an executory contract at law. Effect of an executory contract in equity. Sources of all kinds of equitable property described. The equitable estates which are derived from this principle. Conversion. Contracts for the purchase and sale of lands. Assignments of possibilities; sale of chattels to be acquired in the future; assignments of things in action; equitable assign- ments of moneys; and equitable liens. Express trusts. Trusts arising by operation of law. Mortgage; equity of redemption. Conclusions. § 363. List of Maxims. — Those principles which are so fundamental and essential that they may with propriety be termed the maxims of equity are the following: Equity regards that as done which ought to be done; equity looks to the intent, rather than to the form; he who seeks equity must do equity; he who comes into equity must come with clean hands; equality is equity; where there are equal equities, the firsJ in time shall prevail; where there is equal equity, the law must prevail; equity aids the vigi- lant, not those who slumber on their rights, or Vigilantibiu 493 REGARDS THAT DONE WHICH OUGHT TO BB DONE. § 364 non dormiethtibus, sequitas subvenit; equity impijites an in- tention to fulfill an obligation; equity will not suffer a wrong without a remedy; and equity follows the law. It must not be supposed that all these maxims are equally important, or that all have beed equally fruitful in the development of doctrines and rules; but it is not an exag- geration to say that he who has grasped them all with a clear comprehension of their full meaning and effects has already obtained an insight into whatever is essential and distinctive in the system of equity jurisprudence, and has found the explanation of its peculiar doctrines and rules. I purpose, in the successive sections of this chapter, to discuss them in the order given above. § 864. First Maxim; Its Importance and General Operation. — The first maxim in the list has been stated in somewhat varying language by different text-writers, but without any substantial variation in the meaning.* I think the following form is both strictly accurate and suf- ficiently comprehensive in expressing the equitable prin- ciple : Equity regards and treats that as done which in good conscience ought to be done. Some writers have failed to apprehend the full significance of this maxim, and have described its effects in altogether a teo narrow and partial riianner.^ Others have correctly looked upon it as the very foundation of all distinctively equitable property rights, of all equitable estates and interests, both real and personal.' It is in fact the source of a large part 1 "Equity looks upon that as done parties had been executed exactly as which ought to have been done ": they ought to have been, not as they Story's Eq. Jur., sec. 64 g; Snell's might have been, executed The Equity, 37 (10). "What ought to be most frequent cases of the application done is to be considered as dona": of the rule are nnder agreements." 2 Spence's Eq. Jur. 253; Adams's This description is merely the snbsti- Equity, 135. tuting one practical result of the prin- ' Thus Mr. Justice Story (1 Eq. ciple in the place of the principle Jur., sec. 64 g), and Mr. Snell (Snell's itself. Equity, 37) following him, say: "The ' Adams's Equity, 135 (6th Am. ed., true meaning of this maxim is, that p. 295): " 'What ought to be done is equity will treat the subject-matter of considered in equity as done '; and its a contract, as to collateral consequen- meaning is, that whenever the holder ces and incidents, in the same manner of property is subject to an equity in as if the final acts contemplated by the respect of it, the court will, as between 364 BQUITY JUKISPBUDBNCB. 494 of that division of equity jurisprudence which is con- cerned with equitable property; the doctrines and rules which create and define equitable estates or interests are in great measure derived from its operation. So far from the maxim being confined to express executory contracts, and to those dispositions of property which give rise to an equitable conversion, it has been applied by the most eminent courts to all classes of equities; to every instance where an equitable ought with respect to the subject-mat- ter rests upon one person towards another; to every kind of case where an affirmative equitable duty to do some positive act devolves upon one party, and a correspond- ing equitable right is held by another party.* Whenever the parties to the equity, treat the 8abject-ma,tter as if the equity had been worked out, and as impressed with the character which it would then have borne. The simplest opera- tion of this maxim is found in the rule that trusts and equities of redemption are treated as estates; but its effect is most obvious in the constructive change of property from real to per- sonal estate, and vice versa, so as to introduce new laws of devolution and transfer." The examples given of trusts and equities of redemption plainly sho^ that Mr. Adams's defini- tion was intended to include all equi- table property as resulting from this single principle. This is also the view of Mr. Spence. He expressly repre- sents all trust and other eqaitable estates, whether growing out of execu- tory contract creating the trust, or out of a will, or otherwise, as the con- sequences of this fruitful maxim. See 2 Spence's Eq. Jur. 253 et seq., and also the titles Trusts and Equitable Estates. ' Frederick v. Frederick, 1 P. Wms. 710. A person had contracted to be-- come a citizen of London, but died before he had carried this agreement into effect by taking up his freedom. His widow thereupon brought a suit to procure his personal estate to be distributed in accordance with the customs of London, which applied to citizens only, and which prescribed a very different mode of distribution from that which prevailed under the statute in other parts of England. The court, invoking the maxim, held that the deceased should be regarded as though he were actually a citizen at the time of his death, and that his estate should be distributed in pur- suance of the cnstom. This decision clearly exhibits the universality of the maxim: Burgess v. Wheate, 1 W. Black. 123, 129; 1 Eden, 177; Lech- mere v. Earl of Carlisle, 3 P. Wms. 211; Brewer v. Herbert, 30 Md. 301; 96 Am. Dec. 582; McCaa v. Woolf, 42 Ala. 389; Jordan v. Cooper, 3 Serg. & R. 585; Gardiner v. Gerrish, 23 Me. 46; Peter v. Beverly, 10 Pet. 534, 563; Taylor v. Benham,'5 How. 234, 269; Commonwealth v. Martin, 5 Munf. 117, 122; Pratt V. Taliaferro, 3 Leigh, 428; [Ames v. Richardson, 29 Minn. 330; Newkirk v. Marshall, 35 Kan. 77;] Coventry v. Barclay, 3 De Gex, J. & S. 320, 328, per Lord Chancellor Westbury, In this case the question in dispute was, whether a partner — Bevan — was bound by certain ac- counts settled with his copartners, or whether he could disregard them, and have a general accounting gone into. By the partnership articles it was stipulated that on a certain day eacli year the accounts of the whole past year should be made up, presented to all the partners, settled, and signed by each. At the appointed day in one year the accounts were thus made up, and laid before all the firm, except Bevan, settled and signed by them. Bevan was not present, on account of 495 REGARDS THAX DONE WHICH OUGHT TO BE DONE. § 365 courts of high authority have dealt with the principle in a narrower manner, and have given to it a more restricted operation and effect, their language, although perhaps very general in its terms, should be taken as confined, and as intended by the court to be confined, to the par- ticular application of the maxim then under judicial investigation.' § 865. Its Meaning and Effects. — What is the true meaning of the principle, taken in its most comprehensive and generic sense? and what are its true effects upon the system of distinctive doctrines and rules which constitute the equity jurisprudence? In the first place, it should be observed that the principle involves the notion of an equitable obligation existing from some cause; 'of a present relation of equitable right and duty subsisting between two parties, — a right held by one party, from whatever cause arising, that the other should do some act, and the corresponding duty, .the ought, resting upon the latter to do such act. Equity does not regard and treat as done what might be done, or what could be done, but only what ought to be done. Nor does the principle operate in favor of every person, no matter what may be his situation, and relations, but only in favor of him who holds the equita- ble right to have the act performed, as against the one illness, and never signed these ac- done, although in fact it never was counts, but afterwards saw them, and done, because it ought to be done. verbally assented or agreed to their The case is in exact harmony with correctness. The same took place on Frederick v. Frederick, 1 P. Wms. another year. On these facts Lord 710. Westbury said (p. 228): "It ia the 'This is the universal rule for the rule of a court of equity to consider interpretation of judicial dicta, and it that aa done which ought to be done; is the only mode of avoiding irreoon- and if, therefore, I find that the cilable conflict of opinion. The nar- accounts and valuation of July, I860, row and restricted effect given to the at the making of which Mr. Sevan maxim ia most frequently found in was not present, were afterwards decisions concerning equitable cornier- accepted and agreed to by him, I shall gion; and it has no other legitimate hold that the account was in equity meaning than that of defining the signed by him at the time when it was limits within which the principle can so accepted." Here, it will be seen, operate in such cases. See Burgess v, this most able judge applied the Wheate, 1 W. Black. 123, 129; 1 Eden, maxim, not to the title and property 177; Craig v. Leslie, 3 Wheat. 563, in land or chattels, but to a purely 577, per Washington, J.; Douglas personal act, and held that equity Co. v. Union Pacific R. R., 5 Kan. would regard auch a personal act as 615. §865 EQUITY JURISPRUDBNCB. 496 upon whom the duty of such performance has devolved.' Wherever between two parties, A and B, an " equity " ' This true meaning of the principle was admirably stated by Sir Thoinaa Clarke, M. R., in Burgess v. Wheate, 1 W. Black. 123, 129; 1 Eden, 177: "Nothing is looked npon in equity as done but what ought to have been done, not what might have been done. Nor will equity consider things in that light in favor of everybody; but only of those who had a right to pray it might be done. The rule is, that it shall either be between the parties who stipulate what is to be done, or those who stand in their place." In the last sentence the judge is merely speaking by way of illustration of the case where the right and duty arise from an express executory contract; he has no intention of confining the operation of the maxim to such con- tracts. While this passage presents the maxim in its true meaning and with its true limitations under all cir- cumstances of its application, there are some other judicial dicta which must be carefully confined to the par- ticular facts of the case in which they were uttered, or else they would be quite misleading, and some, perhaps, which do not even admit of this ex- jjlauation, but must be regarded as essentially erroneous. Thus in the leading American case of Craig v. Leslie, 3 Wheat. 563, 577, a testator, citizen of the United States, devised all his lands to trustees, vi'ith direc- tions to convert the same into money and pay the proceeds to the testator's brother, who was an alien. The at- torney-general of Virginia, in which state the lands were situated, claimed that the lands of the testator had es- cheated to that state. The only ques- tion for decision was, whether, by the doctrine of equitable conversion, the real estate devised by the testator was to be regarded as money, so that the alien legatee could claim and hold the bequest, or whether it remained real estate, and so was liable to an escheat. The court, with a, very elaborate examination of the authori- ties and discussion of the rules upon the subject, held that an equitable conversion had taken place, and the gift was therefore valid as a bequest of personal property. In his opinion Mr. Justice Washington said: "The principle upon which the whole of this doctrine is founded is, that a court of equity, regarding the sub- stance, and nob the mere form and cir- cumstances of agreements and other instruments, considers things directed or agreed to be done as having been actually performed, where nothing has intervened to prevent a perform- ance. This qualification of the more concise and general rule that equity considers that to be done wliich is agreed to be done will comprehend the cases which come under this head of equity." It is evident that the judge is here speaking of the maxim solely in its connection with the par- ticular doctrine of " equitable conver- sion." He shows no intention of narrowing it, or of stating any qualifi- cation upon it, in its application to or effect upon the equity jurisprudence in general. In Douglas Co. v. Union Pac. R. R., 5 Kan. 615, the only question was, whether lands held by the railroad were liable to be taxed for county purposes. The company was in possession of the land under a statute or contract with the United States, but their ultimate right and title to the land depended upon their performance of numerous stringent conditions, none of which were yet performed. By the terms of the con- tract, all these conditions must be fully performed at the very times specified, and a failure to perform any one within the time forfeited the com- pany's whole right. The county ofiB- cers invoked the maxim, and claimed that the railroad were equitable own- ers. The court held that the interest of the company was so conditional, contingent, and uncertain that it was not property susceptible of taxation. This disposed of the whole case. The maxim under discussion plainly had no application, for as yet there was no obligation upon the United States to convey. Equity could not regard any- thing as done, because there was noth- ing yet which ought to be done. Not- withstanding this, the court went on as follows: "In equity there is a maxim that equity will consider as done that which ought to \>e done. 497 EBGARDS THAT DONE WHICH OUGHT TO BE DONE. §365 exists with respect to a subject-matter held by one of them, B, ill favor of the other, A, then as between these two a court of equity regards and treats the subject-matter and the real beneficial rights and interests of A as though the " equity " had actually been worked out, and as impressed with the character and having the nature which they then would have borne.' When in this proposition it is said that an " equity" exists between the two parties, the meaning is, that some equitable obligation to do some positive act with respect to the subject-matter, arising from a cause recognized by the rules of equity jurispru- ' dence, rests upon B, and a corresponding equitable right to have the act done by B with respect to the same subject- matter springing from the same efficient cause, is held by A. This active relation subsisting between the two parties, a court of equity, partly acting upon its funda- mental principle of going beneath the mere external form and appearance of things and dealing with the real fact, the real beneficial truth, and partly for the purpose of making its remedies more complete, treats the resulting rights of A as though the obligation of B had already been performed; regards A, in fact, as clothed with the same ultimate interests in the subject-matter which he would receive and hold if B had actually fulfilled his ob- ligation by doing the act which he ought to do. Of and that it will look upon all things being performed; for there is no ne- agreed to be done as actually per- cessity in such a case for courts of formed. As an application of this equity to resort to any mch Jiction," maxim, equity generally considers etc. I only wish to notice this very that when land is sold on credit, and remarkable expression of the court, the deed is to be made when the which represents the operation of this purchase-money is to be paid, that fundamental principle of equity juris- the land at the time the sale is made prudence as a fiction. If the equita- becomes the vendee's and the pur- ble estate of the vendee in an execu- chase-mouey the vendor's; that the tory contract for the sale of land is a vendor becomes at once the trustee fiction, then every other species of of the vendee with respect to the equitable property and interest must land, and the vendee the trustee of be equally a fiction, for they all stand the vendor with respect to the pur- upon the same principle, and in fact chase-money. But this maxim never the greater partof equity jurisprudence applies where time is of the essence must be fictitious: See Daggett v. Ran- of the contract, and where the land kin, 31 Cal. 321, 326, per Currey, J. is subject to absolute forfeiture on ' See Adams's Equity, 135 (6th Am. failure of some condition of the sale ed.,p. 295). 1 Eq. Jue.— 32 § 366 EQUITY JUKIBPRUDENCK. 498 course this interest thus possessed by A is and must be a purely equitable one, recoguized by courts of equity alone, since no legal interest in the subject-matter could become vested in A except by the complete performance of his obligation on the part of B, — his really doing the act which his duty bound him to do. § 366. Is the Source of Equitable Property — Sources of Legal Property or Titles. — All kinds of equitable property, as distinguished from legal ownership, are, with perhaps one or two particular exceptions, derived from this fruitful and most just principle. Its full oper- ation can best be understood and appreciated from a brief comparison of the modes in which absolute property — that is, the perfect right of ownership, dominium — arises or is acquired at law, withthe modes in which the analo- gous right of property arises according to the doctrines of equity. In the earliest and rudest periods of the common law absolute property could only be acquired inter vivos by the accurate observance of certain' arbitrary, external forms, or symbolic acts and gestures.* Although with an advancing civilization these external and symbolic acts have disappeared, still, down to the present time the only absolute property or right of ownership which the law recognizes, and which courts of law protect by their legal actions and remedies, whether in land or in things per- sonal, must arise and be acquired in certain fixed, de- terminate methods, which alone constitute the " titles " known to the law, — using that word in its strict and true sense as means of acquiring property. Without following some one of these certain modes, no legal property can be obtained or transferred as between persons in their private capacities.* The most important of these com- ' Thia is true of every system of alone be transferred in the primitive national law in its earliest, serai-bar- Roman law, — the early /u« diiile. baroua, and purely customary stage. ' As I am speaking only of private The "livery of seisin" of the Saxon relations, I purposely omit all men- and ancient common law was identical tion of the public modes in which in principle with the " mancipation " property might be asquired by the by which complete dominion could state, — escheat, forfeiture, eminent 499 REGARDS THAT DONE WHICH OUGHT TO BE DONE. § 366 mon-law methods which must be pursued in order that a legal property may be acquired in land are: A conveyance under seal whereby the seisin was transferred; a will; in- heritance; marriage whereby a freehold estate for life might be vested in one of the spouses; actual disseisin with an adverse possession during the period prescribed by the statute of limitations; and under very special cir- cumstances, accession.' The important modes of acquir- ing a legal property in things personal are: A true present sale or bailment where the chattel is in existence and capable of immediate manual transfer; a will; a succession in case of intestacy as regulated by the statute of distri- butions; marriage; adverse possession aided by the statute of limitations; occupancy; and the various acts which are included under the generic term " accession."* Unless a person has obtained the legal property in a specific tract of land through some one of the foregoing modes, he cannot as demandant maintain a real action to recover such land, or as lessor of the plaintiff under the ancient practice, or as plaintiff under the modern, maintain an action of ejectment for the same purpose. A legal estate acquired by some legal title is indispensable. Upon the same principle, unless a person has a legal property in a specific chattel, obtained through some mode recognized by the law, he cannot as plaintiff maintain any of the pro- prietary actions at law for the purpose of recovering the article itself, or its value in money, or damages for an in- vasion of his ownership, replevin or detinue, trespass or trover. While he may have legal rights with respect to the thing, which courts of law will protect, and for the domain, and the like, — and also those the agency of Bome administrative semi-public methods allowed by stat- officer, — e. g., a sheriff acting in pur- ntes in which property is rested in suance of a judicial authority, — the certain official persons, such as as- final means of transfer and of acquisi- signees in bankruptcy or insolvency, tion is a sale in case of chattels, and a and the like. conveyance in case of land. The only I The case of "alluvion, "where the real distinction between these cases proprietor's laud grows, as it were. and those of ordinary sales and con- ' In all the instances where property veyancea lies in the person who aa is divested and transferred through vendor or grantor makes the transfer. § 367 EQUITY JUBISPKUDENCE. 500 violation of whicli he may be entitled to appropriate legal remedies, his legal right of property can only arise and exist upon the .occasion of certain, determinate acts or events.* § 367. Effect of an Executory Contract at Law. — What is the effect at law of a contract whereby the owner agrees to sell and convey a designated tract of land, but which is not a true conveyance operating as a present transfer of the legal estate and the legal seisin? It is wholly, in every particular, executory, and produces no eflfect upon the respective estates and titles of the parties, and creates no interest in nor lien or charge upon the land itself. The vendor remains, to all intents, the owner of the land; he can convey it to a third person free from any legal claim or encumbrance; he can devise it in the same manlier; on his death intestate, it descends to his heirs. The contract in no manner interferes with his legal right to and estate in the land, and he is simply subject to the legal duty of performing the contract, or to the legal liability of paying such damages for its non-per- formance as a jury may award, which are collectible from his property generally. On the other hand, the vendee acquires no interest nor property right whatever; he can maintain no proprietary nor possessory action for its re- covery; his right is a mere thing in action to recover compensation in damages for a breach from the vendor, and his duty is a debt, — an obligation to pay the stipu- lated price; on his death both this right and this duty * The Koman law furnished a com- exact analogue to onr legal property plate analogy to this condition in onr or legal estates; while the property own juriaprudenoe. The absolute do- in bonis — the " bonitary property " — minium, or property ex jure quiriium, gradually permitted by the pretorian the " quiritary property " of the early legislation, which could be acquired law, which could only be held by a in derogation of these modes, as, for Roman citizen, and could only be ac- example, by an ordinary sale and de- quired by certain arbitrary modes, as livery without the symbolism of a by the symbolic process of mancipa- mancipation, or by a testament exe- tion in case of res mancipi, or by usu- cuted without a compliance with the caption, or by a testament executed in ancient forms, or by a succession t» strict compliance with the prescribed the cognates, etc., was substantially formalities, or by succession to the identical with onr equitable property agnates in case of intestacy, was the or equitable estates. 501 EKGAEDS THAT DONE WHICH OUGHT TO BE DONE. § 368 pass to Ms personal representatives, and not to his heirs. In short, the vendee obtains at law no real property nor interest in real property. The relations between the two contracting parties are wholly personal. No change is made until, by the execution and delivery of a deed of conveyance, the estate in the land passes to the vendee. It is unnecessary to describe the similar legal eflfects pro- duced by agreements to sell chattels, sales of articles to be acquired by the vendor in the future, and all other con- tracts which are executory in their nature. § 868. Effect of an Executory Contract in Equity. — The full significance of the principle that equity regards and treats as done what ought to be done throughout the whole scope of its effects upon equity jurisprudence is disclosed in the clearest light by the manner in which equity deals with executory contracts for the sale of land or chattels, which presents such a striking and complete contrast with the legal method above described. While the legal relations between the two contracting parties ave -wholly personal, — things in action, — equity views all these relations from a very different stand-point. In some respects, and for some purposes, the contract is executory in equity as well as at law; but so far as the interest or estate in the land of the two parties is concerned, it is re- garded as executed, and as operating to transfer the estate from the vendor and to vest it in the vendee. By the terms of the contract the land ought to be convej'ed to the vendee, and the purchase price ought to be transferred to the vendor; equity therefore regards these as done: the vendee as having acquired the property in the land, and the vendor as having acquired the property in the price. The vendee is looked upon and treated as the owner of the land; an equitable estate has vested in him commensurate with that provided for by the contract, whether in fee, for life, or for years; although the vendor remains owner of the legal estate, be holds it as a trustee for the vendee, to whom all the beneficial interest has § 368 EQUITY JURISPRUDENCE. 502 passed, having a lien on the land, even if in possession of the vendee, aa security for any unpaid portion of the pur- chase-money.* The consequences of this doctrine are all followed out. As the vendee has acquired the full equi- table estate, — although still wanting the confirmation of the legal title for purposes of security against third per- sons, — he may convey or encumber it; may devise it by will; on his death intestate, it descends to his heirs, and not to his administrators; in this country, his wife is en- titled to dower in it; a specific performance is, after his death, enforced by his heirs; in short, all the incidents of a real ownership belong to it. As the vendor's legal estate is held by him on a naked trust for the vendee, this trust, impressed upon the land, follows it in the hands of other persons who may succeed to his legal title, — his heirs and his grantees, who take with notice of the vendee's equitable right. In other words, the vendee's equitable estate avails against the vendor's heirs, devisees, and other voluntary assignees, and his grantees with notice; it is only when the vendor has conveyed the land to a third person who is a bona fide purchaser for value without notice that other equitable principles come into play, and cut off the vendee's equitable estate. It follows also, as a necessary consequence, that the vendee is entitled to any improvement or increment in the value of the land after ' It is a great mistake, opposed to the contract, even before any portion the fundamental notions of equity, to of the price is paid. It is true that suppose that the equity maxim does the vendee's equitable estate ia en- not operate, and the vendee does not cumbered or charged witb a lien as become equitable owner until and as security for the unpaid price, and he, far as he has actually paid the stipu- therefore, may, by the enforcement lated price. This erroneous view haa of this lien upon his final default in sometimes been suggested, and some- making payment, lose his whole es- times even held, in a few American tate, in the same manner as a mort- decisions; but it shows a miscoucep- gagor may lose his interest by a tion of the whole equitable theory, foreclosure. But this lien of the ven- 3ee, merely aa an example, some of dor is not inconsistent with the veo- the dicta in Douglas Co. v. Union dee's equitable estate, any more than Pac. R. R., 5 Kan. 615. In truth, the equitable lien of an ordinary mort- the vendee becomes equitable owner gage is inconsistent witb the mort- of the land, and the veador equitable gagor's legal estate. See cases cited m owner of the purchase-money, at once, note at end of this paragraph, upon the execution and delivery of 503 REGARDS THAT DONE WHICH OUGHT TO BE DONE, g 368 the conclusion of the contract, and must liimself bear any and all accidental injuries, losses, or wrongs done to the soil by the operations of nature, or by tortious third per- sons not acting under the vendor. The equitable interest of the vendor is correlative with that of the vendee; his beneficial interest in the land is gone, and only the naked legal title remains, which he holds in trust for the vendee, accompained, however, by a lien upon the land as secu- rity when any of the purchase price remains unpaid. This lien, like every other equitable lien, is not an inter- est in the land, is neither a _/ms ad rem nor a jus in re, but merely an encumbrance. The vendor is regarded as owner of the purchase price, and the vendee, before actual payment, is simply a trustee of the purchase-money for him. Equity carries out this doctrine to its conse- quences. Although the land should remain in the pos- session and in the legal ownership of the vendor, yet equity, in administering his whole property and assets, looks not upon the land as land, — for that has gone to the vendee, — but looks upon the money which has taken the place of the land; that is, so far as the land is a rep- resentative of the vendor's property, so far as it is an element in his total assets, equity treats it as money, as though the exchange had actually been made, and the vendor had received the money and transferred the land. Although the legal title to the land would still descend to the vendor's heirs upon his death, still when the ven- dee afterwards completes the contract, takes a convey- ance of the legal title from the heirs, and pays the price, the moniey, being all the time an element of the vendor's assets, and being, therefore, all the time a part of his personal and not of his real property, goes to his admin- istrators or executors, to be by them administered upon with the rest of his personal assets, and does not go to the heirs.' ' The following are a few out of the are fully sustained: Farrar v. Win- very many authorities by whioh all terton, 5 Beav. 1, 8, per Lord Lang- tbe foregoing propositions of the text dale, M. R. A testatrix made a will 369 EQUITY JUEISPRUDENCK. 504 §369. Sources of All Equitable Property.^ — In the foregoing description is shown how, in one particular devising oertaia real estate. After making the will she entered into a contract to sell the same land. The contract was not fully carried into ef- fect by conveyance and payment of the price nntil after her death, and the only question presented by the case was, whether the purchase-money thus paid belonged to the executors as part of the general assets of her estate, or whether it belonged to the devisees. Lord Langdale said (p. 8): "The ques- tion whether the devisees can have any interest in that part of the pur- chase-money which was unpaid de- pends on the rights and interests of the testatrix at the time of her death. She had contracted to sell her bene- ficial interest. la equity, she had alienated the land, and instead of her beneficial interest in the land, she had acquired a title to the purchase- money. What was really hers in right and equity was not the land, but the money, of which alone she had the right to dispose; and though she had a lien upon the land, and might have refused to convey until the money was paid, yet that lien was a mere security, in or to which she had no right or interest except for the pur- pose of enabling her to obtain the pay- ment of the money. The beneficial interest in the land which she bad devised was not at her disposition, but was by her act wholly vested in another at the time of her death." This opinion is a very clear and accu- rate statement of the doctrine, and the passage which I have italicized shows how erroneous is the notion, advanced by way of dictum or as ground of decision in a few American oases, that the equitable estate of the vendee only arises when and as far as he makes actual payment of the pur- chase price: Haughwout v. Murphy, 22 N. J. Eq. 531. "In equity, upon an agreement for the sale of lands, the contract is regarded for most pur- poses as if specifically executed. The purchaser becomes the equitable owner of the lands, and the vendor of the purchase-money. After the con- tract, the vendor is the trustee of the legal estate for the vendee: Crawford V. Bertholt, 1 N. J. Eq. 460; Hoagland V. Latourette, 2 N. J. Eq. 254; Huff- man V. Hummer, 17 N. J. Eq. 264; King T. Ruckman, 21 N. J. Eq. 599. Before the contract is executed by conveyance, the lands are devisable by the vendee, and descendible to his heirs as real estate; and the personal representatives of the vendor are enti- tled to the purchase-money: Story's Eq. Jur., sees. 789, 790, 1212, 1213. If the vendor should again sell the estate, of which, by the first contract, he is only seised in trust, he will be considered as selling it for the benefit of the person for whom, by the first contract, he became a trustee, and therefore liable to account; or the second purchaser, if he had notice at the time of his purchase of the pre- vious contract, will be compelled to convey the property to the first pur- chaser: Hoagland v. Latourette, 2 N. J. Eq. 254; Downing v. Rialey, 15 N. J. Eq. 94. A purchaser from a trustee, with notice of the trust, stands in the place of his vendor, and is as much a trustee as he was : I Eq. Cas. Abr. 384; Story V. Lord Windsor, 2 Atk. 631. The cesttii que trust may follow the trust property in the hands of the pur- chaser, or may resort to the purchase- money as a substitute fund: Murray V. Ballou, 1 Johns. Ch. 566, 581. It is upon the principle of the transmis- sion by tlie contract of an actual equi- table estate, and the impressing of a trust upon the legal estate for the ben- efit of the vendee, that the doctrine of the specific performance of contracts for the sale and conveyance of land mainly depends. " See also Fletcher v. Ashburner, 1 Brown Ch. 497; 1 Lead. Cas. Eq., 4th Am. ed., 1118, 1123, 1157; Yates v. Compton, 2 P. Wms. 308; Green v. Smith, 1 Atk. 572, 573; Trelawny v. Booth, 2 Atk. 307; Pol- lexfen v. Moore, 3 Atk. 273; Mackreth V. Symmons, 15 Ves. 329, 336; Rose v. Cunynghame, 11 Ves. 554; Kirkman V. Miles, 13 Ves. 338; Peters v. Bev- erly, 10 Pet. 532, 533; Taylor v. Ben- ham, 5 How. 234; Champion v. Brown, 6 Johns. Ch. 403; 10 Am. Dec. 343; Wood V. Cone, 7 Paige, 472; Wood v. Keyes, 8 Paige, 365; Worrall v. Mann, 38 N. y. 139; Thompson v. Smith, 63 N. y. 301, 303; Seaman t. Van Reus- 605 REGARDS THAT DONE WHICH OUGHT TO BE DONE. § 369 manner, by the operation of the fundamental principle, the equitable estate in land, the beneficial property, the real ownership, arises, although no one of the acts or events has taken place which the common law so impera- tively demands as a prerequisite to the existence of own- ership or property. This instance is given simply as an example. An analysis of all the different equitable estates, property, and interests analogous to property, either real or personal, known to the equity jurisprudence will dis- close the fact that nearly all, if not absolutely all, arise in the same general manner, by the operation upon the par- ticular circumstances of the same fundamental principle, and with the same general results. Thus an assignment or conveyance of that peculiar interest in land called a " possibility " is at the common law a mere nullity, so far at least as it attempted to create or transfer any owner- ship. At the time when the instrument is executed there is no present, certain, vested property right in the as- signor upon which its granting language can attach; and if at some future time the contingency happens, the pos- sibility changes into a certainty, and a property right becomes vested in the assignor, the arbitrary and techni- cal rules of the common law concerning conveyances of real estate did not allow the words of assignment to act upon this newly arisen and vested interest so as to trans- fer it to the assignee. The effect of such a transaction in equity is wholly different. Although when the assign- ment is executed there is no present certain right of prop- erty in the assignor which can be transferred, yet in the selaer, 10 Barb. 86; Kerr v. Day, 14 not from time of payment of the pur- Pa. St. 112; 53 Am. Deo. 526; Eobli chase-money, but from time of the V. Mann, 1 Jones, 300; 51 Am. Deo. contract); Keep v. Miller, 42 N. J. Eq. 551; Richter v. Selin, 8 Serg. & R. 100; Wilson v. Fairchild, 45 Minn. 425, 440; Brewer v. Herbert, 30 Md. 203; Whittier v. Stege, 61 Cal. 238; 301; 96 Am. Dec. 582; Lindsay v. White v. Patterson, 139 Pa. St. 429; Pleasants, 4 Ired. Eq. 321; Phillips v. Cross v. Bean, 83 Me. 62. In regard Sylvester, L. R. 8 Oh. 173, 176, per to the rights of parties under contracts Lord Selborne; [Woodbury v. Gard- with option to purchase, see §§ 1161, ner, 77 Me. 68; Wiseman V. Beck with, 1163. In regard to the vendor's lien 90 Ind. 185; Young v. Guy, 87 N. Y. under the contract and before convey- 462 (vendee obtains equitable title, ance, see §§ 1260, 1261.] § 369 EQUITY JURISPRUDENCB. 506 view of equity the instrument operates at least as an executory agreement on the part of the assignor, and creates a present obligation resting upon him with refer- ence to the land, which obligation, though now contin- gent, may in future become absolute. If, therefore, at a subsequent time the contingency happens, and a certain present property thereupon vests in the assignor, the obligation, now become absolute, at once attaches to it. By virtue of that obligation this property or estate of the assignor ought to be conveyed to the assignee by an effi- cient legal assurance; and equity, regarding what ought to be done as done, treats the property as transferred, and the assignee as vested with the complete beneficial own- ship. In this manner equity, in pursuance of the funda- mental principle under discussion, gives full effect to an assignment or conveyance of a " possibility," and makes it the source of an equitable property in land. Again, a sale of a chattel not yet in existence, or not yet in the pos- session of the vendor, but to be acquired in future, passes no property in the thing to the buyer at law, even when it subsequently comes into the seller's ownership and possession. Such contract gives to the buyer a right of action for damages, but no property; he can maintain an action of assumpsit, but not replevin, or trover, or tres- pass.* But as such a contract, although using language in praesenti, is, in effect, an executory agreement, and creates a definite obligation upon the vendor, . equity, upon the same principle and in the same manner as last above explained, regards it as an assignment; and when the thing comes into existence, or into the owner- ship of the seller, the real, beneficial property in it is at once transferred to and vested in the buyer, and he is the equitable owner. It is in consequence of the same prin- ciple that an assignment of a thing in action, completely nugatory at the common law as a transfer, and indeed ^ I am stating, of course, the general " potential existence," such as on ex- mle, and need not describe the special pected crop, etc excepted case of things having a 507 REGARDS THAT DONE WHICH OUGHT TO BE DONE. § 370 opposed to the ancient theories of the law, is regarded in equity as clothing the assignee with all the rights of his assignor. These illustrations have all been taken from express contracts. The principle also extends to cases where the legal relations arise from conveyances inter vivos, or wills in which one of the parties is a volunteer and even to transactions in which the legal relations arise' from no such definite cause, but are merely implied from the prior conduct of the parties. In all express active trusts to convey the corpus of the trust property directly to the cestui que trust, and in all express passive trusts to hold the land for the use of the cestui que trust, created either by deed or by will, an equity exists between the beneficiary and the trustee, an obligation rests upon the latter, and this equity is treated as worked out, the obli- gation as performed, and the beneficiary as clothed with an equitable estate, depending in kind, quality, and degree upon the special provisions of the instrument. Finally, in trusts arising by operation of law, implied, construct- ive, and resulting trusts, the equity subsisting between the cestui que trust and the holder of the legal title, and the obligation resting upon the latter, are treated as though worked out, by regarding the beneficiary as vested with an equitable but no less real ownership. § 870. The Equitable Estates Derived from This Prin- ciple. — Having thus examined the meaning of the grand principle, — equity regards that as done which ought to be done, — and explained the rationale of its operation upon equity jurisprudence in giving rise to various kinds of equitable property and rights analogous to property, I shall finish the discussion by very briefiy enumerating the most important of these equitable estates, interests, and property rights which are the immediate effects of the principle. As has already been shown, the maxim ap- plies whenever an equity exists between two determi- nate parties with reference to some subject-matter; that is, an obligation rests upon one, and a corresponding § 371 BQUITY JURISPRUDENCE. 508 right is held by another. Such a right and duty may arise from a contract between the parties, and by the doctrines of equity a contract must be made upon an actual valuable consideration, in order that any equitable right and obligation may be created by it; ' or from the dispositions contained in a deed or a will, where the party clothed with the right is a volunteer; or from the con- duct and relations of the parties, where the equity neither grows out of any express contract, conveyance, or will, as in trusts arising solely by operation of law. The various estates and interests resulting from the maxim might therefore be arranged in classes according to this threefold division; but it will be much more convenient to state them under their accepted names and titles as separate species of equitable property. § 371. Conversion. — One of the most direct and evi- dent results of the principle is the equitable property which arises from the doctrine of conversion, — when real estate is treated by equity as personal property, or personal estate as real property; land as money, or money as land, — "nothing is better established than this principle, that money directed to be employed in the pur- chase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which th^y are directed to be converted; and this in whatever manner the direction is given, whether by will, by way of contract, marriage articles, settlement, or other- wise, or whether the money, is actually deposited, or only covenanted to be paid; whether the land is actually con- veyed, or only agreed to be conveyed; the owner of the fund or the contracting parties may make land money or ' A seal alone is not enough to show 497; Bnrling v. King, 66 Barb. 633; a consideration in equity: Jefferys v. Shepherd v. Shepherd, 1 Md. Ch. Jefferys, Craig & P. 138; Hervey v. 244; Yasser v. Vasser, 23 Miss. 378; Audland, 14 Sim. 531; Meek v. Ket- Kekewioh v. Manning, 1 De Gex, M. tlewell, 1 Phill. Ch. 342; 1 Hare, 464; & G. 176; Jones v. Lock, L. R. 1 Ch. Ord V. Johnston, 1 Jnr., N. S., 1063; 25; Wason v. Colburn, 99 Mass. 342; Wycherley v. Wycherley, 2 Eden, 177; Pomeroy on Specific Performance, seo. Estate of Webb, 49 Cal. 541, 545; 57, notes 2, 3. Minturn v. Seymour, 4 Johns. Oh. 509 REGARDS THAT DONE WHICH OUGHT TO BE DONE. § 372 money land." ' A conversion may thus take place where, by a will, a deed, or family settlement, land is actually devised or conveyed, or money or securities are actually assigned to trustees, with directions in the one case to sell the land, and pay over the proceeds to the bene- ficiary, and in the other to invest the fund in the pur- chase of the land to be then conveyed to him; or it may in like manner take place where, by marriage articles or other executory agreement, land is covenanted to be con- veyed, or money is covenanted to be assigned, in like manner and for like purposes. The effect of the conver- sion is a direct consequence of the principle in question. Personal estate becomes, to all intents and purposes, in the view of equity, real, and real estate personal. Money directed to be invested in land descends to the heir of the original beneficiary, or passes under a general de- scription of real property in his will, while land directed to be converted into money goes to his personal repre- sentatives, or is included in a residuary bequest of his " personal property." These are some of the incidents of a conversion, and are sufficient at present to illustrate its nature and results.' § 872. Contracts for the Purchase and Sale of Lands. — Another immediate and evident consequence of the 'Per Sir Thomas Sewell, M. K., in and cases cited; Dunseomb v. Duns- Fletcher V. Ashbnrner, 1 Brown Oh. comb, 1 Johns. Ch. 508; 7 Am. Dec. 497; 1 Lead. Cas. Eq., 4th Am. ed., 504; Lorillard v. Coster, 5 Paige, 173, 1118, 1120. 218; Gott v. Cook, 7 Paige, 523, 534; 'Fletcher v. Aahbumer, 1 Brown Kane v. Gott, 24 Wend. 641, 660; 35 Oh. 497; 1 Lead. Oas. Eg., 4th Am. Am. Dec. 641; Allison v. Wilson's ed., 1118, 1123, 1157; Kettleby v. Ex'r, 13 Serg. & R. 330, 332; Mor- Atwood, 1 Vern. 298; Crabtree v. row v. Brenizir, 2 Rawle, 185, 189; Bramble, 3 Atk. 680; Babington Hurtt v. Fisher, 1 Har. & G. 88, 96; T. Greenwood, 1 P. Wms. 532; Lech- Leadenham v. Kioholson, 1 Har. & G. mere v. Earl of Carlisle, 3 P. Wma. 267, 277; Siter v. MoClanachan, 2 211; Guidot v. Guidot, 3 Atk. 254; Gratt. 280; Pratt v. Taliaferro, 3 Sweetappla v. Bindon, 2 Vern. 536; Leigh, 419, 421; Tazewell v. Smith's Wheldale v. Partridge, 5 Ves. 396; 8 Adm'rs, 1 Rand. 313, .320; 10 Am. Vea. 227; Stead v. Newdigate, 2 Mer. Dec. 533; Commonwealth v. Martin's 521; Elliott v. Fisher, 12 Sim. 505; Ex'r, 5 Mnnf. 117, 121; Smith v. Mc- Harcourt V. Seymour, 2 Sim., N. S., Crary, 3 Ired. Eq. 204, 207; Peter v. 45; In re Pedder, 5 Do Gex, M. & G. Beverly, 10 Pet. 534, 563; Taylor v. 890; Ashby v. Palmer, 1 Mer. 296; Benham, 5 How. 234, 269. Craig V. Leslie, 3 Wheat. 563, 577. I 373 EQUITY JURISPRUDKNCE. 610 principle is the equitable property created by mere agree- ments to purchase and sell lands. If the contract is made upon an actual valuable consideration, and complies in other respects with the requisites prescribed by equity, then, as soon as it is executed and delivered, the vendee acquires an equitable estate in the land subject simply to a lien in favor of the seller as security for payment of the price, while the vendor becomes equitable owner of the purchase-money. There is in this case, as in the last, an equitable conversion; the vendee's interest is at once converted into real property with all its features and in- cidents, while the vendor's interest is, to the same extent, personal estate.* § 873. Assignments of Possibilities; Sales of Chattels to be Acquired in the Future; Assignments of Things in Action; Equitable Assignments of Moneys; and Equi- table Liens. — The operation of the grand principle that equity regards that as done which in good conscience ought to be done is perhaps less immediate and evident in producing these species of equitable property, or in- terest, but is no less real and certain. In all these in- stances an equity exists between the two parties, growing either out of an assignment which at law creates or trans- fers no property right, either present or future, in the subject-matter, or out of an executory, contract which at law only creates a personal demand, — a mere right of action, — and equity, laying hold of the obligation thus assumed by or imposed upon one of the parties, trans- forms it, so to speak, upon the happening of the contingent event contemplated, into the real, beneficial, equitable ' Fletcher V. Ashburner, 1 Lead. Cas. Small, 34 Ind. 241; Lewis v. Smith, 9 Eq., 4th Am. ed., 1118, 1123, 1157, N. Y. 502, 510; 61 Am. Dec. 706; in notes; Burgess v. Wheate, 1 W. Moyer v. Hinman, 13 N. Y. 180; Black. 123, 129; 1 Eden, 177; Harford V. Thomson v. Smith, 63 N. Y. 301, Punier, 1 Madd. 532; Faine v. Mel- 303; Moore v. Burrows, 34 Barb, ler, 6 Ves. 349; Kawlins v. Burgia, 2 173; Adama v. Green, 34 Barb. 176; Ves. & B. 387; Revell v. Hussey, 2 Schroppel v. Hopper, 40 Barb. 425; Ball & B. 287; Hampaon v. Edeleu, 2 [Dortch v. Benton, 98 N. C. 190; 2 Har. & J. 66; 3 Am. Deo. 530; Siter's Am. St. Rep. 331;] and see ante, Appeal, 26 Pa. St. 180; Jackson v. § 368, note. 511 REGARDS THAT DONE WHICH OUGHT TO BK DONE. § 374 ownership, property, or interest, of whatever nature and extent, absolute or qualified, it may be, according to the terms of the instrument. Thus the assignee of a possibil- ity becomes equitable owner of the estate when the event takes place; the vendee of chattels to be acquired becomes their equitable owner; the equitable assignee of a fund becomes the real owner of the money; and from a mort- gage or other transfer inoperative as such at law, or from the mere executory stipulations of an agreement, complete equitable liens upon specific lands, chattels, or funds are created.* § 374. Express Trusts. — In every particular instance of that vast section of peculiar ownerships to which the generic name of " Trusts " is given, where the legal title to the subject-matter is vested in one person, and the equi- table title is held by another, this equitable property is the direct and plain effect of the principle which we are discussing. The truth of this statement is undeniable in all those cases of express trusts which thus divide the total ownership into the legal estate of the trustee, and the equi- table estate of the cestui que trust. In express passive trusts, a naked legal title remains in the trustee, but the equitable and real property, with all its features and inci- dents, belongs to the beneficiary, so that he is treated in every sense as the true owner. Where land is given to a trustee merely upon the trust to convey the same to a speci- fied beneficiary, the principle applies with equal force, and the cestui que trust is clothed with the equitable property, ' For authorities illustrating each of in equity, or a specific [equitable] lien these species, see ante, § 369, and notes on the property intended to be mort- thereunder. In describing equitable gaged. The maxim of equity upon liens, Currey, 0. J., in Daggett v. ■which this doctrine rests is, that Rankin, 31 Cal. 321, 326, used the equity looks upon things agreed to following language: "The doctrine be done as actually performed; the seems to be well established that an true meaning of which is, that equity . agreement in writing to give a mort- will treat the subject-matter, as to gage, or a mortgage defectively exe- collateral consequences and incidents, cnted, or an imperfect attempt to in the same manner as if the final -jreate a mortgage, or to appropriate acts, contemplated by the parties, had ■pecific property to the discharge of a been executed exactly as they ought particular debt, will create a mortgage to have been," § 375 BQUITY JURISPKUDENCB. 512 although the directions of the trust have not yet been carried into effect by an actual transfer to him of the legal estate. In another class of express active trusts, where by the terms of the creation the possession of the subject- matter, and the control, management, and disposition of it during the time for which the trust is to last, are given to the trustee, to be exercised by him according to his own discretion, no such equitable property passes to the cestui que trust, and his right for the time being is only a thing in action, not an estate; no obligation rests upon the trus- tee as a part of his fiduciary duty to make a transfer of the title to the beneficiary; the "ought" required by the maxim is not present, and the principle itself does not apply as long, at least, as the trust remains alive.* § 375. Trusts Arising by Operation of Law. — The principle is no less truly and directly the source of the equitable ownership regarded as held by the beneficiary in all trusts which arise by operation of law, resulting, implied, or constructive. Although the fiduciary relation ia not created by the terms of any direct conveyance, de- vise, assignment, or agreement, yet by the settled doctrines of the equity jurisprudence, an equity exists between the parties which is treated as worked out; an obligation to convey the subject-matter rests upon the holder of the legal title, which is treated as though performed. Some mod- ern judges of great learning and ability have said that the relations commonly known as " constructive " or " result- ing " trusts are only trusts sub modo, are called trusts only by way of analogy, and for want of a better and more dis- tinctive name. Even if this criticism upon the ordinary nomenclature be well founded, it does not deny, and was not intended to deny, the existence of the real, beneficial, equitable property in the beneficiary. He is admitted to 'For fllustration, see ante, § 153, estate and title,, legal and equitable, and notes. It should be remembered shall be vested in the trustee, and th^t, according to the legislation of that the cestui que trust shall have no leveral states, in the only express estate, but only a right of action to tmsts of land which are permitted compel a faithful performiincs by the by the statutes, it is enacted that all trustee. 513 REGARDS THAT DONB WHICH OUGHT TO BE DONE. § 376 be the equitable owner, with all the incidents of owner- ship, although the legal title is vested in another person. The beneficiary may not have anything which the law requires as a " title," he may even be without any written evidence of his right, his proprietorship may rest wholly upon acts and words, but still he is the equitable owner because equity treats that as done which in good con- science ought to be done.' § 376. Mortgage; Equity of Redemption. — There remains but one important equitable estate to be con- sidered, that of the mortgagor, called his equity of re- demption; and a careful analysis will show that the existence of this as a part of equity jurisprudence can be accounted for upon no principle whatever other than the one under discussion. By a mortgage in fee the legal estate is vested in the mortgagee, and upon the condition being broken, this legal estate becomes absolute. Never- theless an equity with respect to the land exists between the two parties, a right in the mortgagor and an obliga- tion upon the mortgagee. "Equity of redemption" is only an abbreviation of " right in equity to have a re- demption." The mortgagor is clothed with this equita- ble right to a redemption, or in other words, this right to 'See illnstrationa, ante, % 155, and testator therefore had a devisable in- notes. The opinion of the lord chau- terest. " Now, where, as in this case, oellor, Lord St. Leonards, will apply the legal title had vested in the to all such cases. A man had conveyed grantee, upon what principle was the his land in fee by a deed which waa grantor still regarded as the equitable fraudulent as against himself, so that owner, with all the incidents of the he could have procured the deed to beneficial ownership? Plainly because be set aside in equity; still the legal from the fraud an eqnlty with respect estate was wholly conveyed to the to the land existed between the grantee grantee. Afterwards the grantor de- and the grantor, and an obligation vised the same land, and the question rested upon the former to reconvey. was. What interest did he have in the Since the grantee in good conscience land, and was it devisable? See Stump ought to recohvey, equity treated the V. Gaby, 2 De Gex, M. &. Or. 623, 630. parties as though this had been done. Lord St. Leonards said: "What, then, and the grantor as holding the equita- is the interest of a party in an estate ble property. Upon the same prin- which he has conveyed under circum- ciple is based the notion of equitable itanees which would give a right in property in the beneficiary in all con- this court to have the deed set aside? structive and other implied trusts. In the view of this court he remains See also Gresley v. Mousley, 4 De the owner, and the consequence is, that Gex & J. 78; Uppingtou v. Bullen, 2 he may devise the estate, not as a legal Dru. & War. 184. estate, but as an equitable estate. The 1 Eo. JUR.— 3S § 377 BQTJITY JUEISPBUDENCB. 514 compel a reconveyance and redelivery of possession at any time upon payment of the debt secured and interest, while the corresponding obligation rests on the mort- gagee to make the conveyance and delivery. Upon the universal principle of treating everything as done which in good conscience ought to be done, equity regards this right of the mortgagor, not as a mere thing in action, but as property, as an estate, as the real, beneficial ownership of the land, subject, however, to the lien created by the mortgage as a security to the mortgagee for the payment of his demand. The mortgagor's equitable property is, in this respect, exactly analogous to the equitable estaie of a vendee subject to a lien in favor of the vendor as security for payment of the purchase price.* § 377. Conclusions. — In the foregoing discussion I have shown, in the most conclusive manner, that every species of purely equitable property, and of equitable interests analogous to property, except those which are intentionally created by the direct and affirmative opera- tion of some instrument similar in its action to a con- veyance at law,'' is a certain and necessary result of the principle, that equity treats that as done which in good conscience ought to be done. It is no exaggeration, therefore, to say that the principle lies at the very foun- dation of the department of equity jurisprudence which deals with equitable estates, property, and interests anal- ogous to property. * For authorities and illuatrationa, created by the affirmative operation ■ee ante, §§ 162, 163, and notes. of the mortgage, and some other eqoi- ' The lien held by the mortgagee, table liens, are examples of this class. &15 LOOKS TO INTENT BATHEK THAN TO FOEM. § 378 SECTION IT. BQUnr LOOKS TO THE IKTENT RATHER THAN TO THB FORM. ANALTSIS. § 378. Its meaning and eJEect. § 379. Legal requirements of mere form. §S 380-384. Is the source of equitable doctrines. § 380. Of equitable property. § 381. Of penalties and forfeitmeg, § 382. Of mortgages. § 383. Effect of the seal. § 384. Other special instances. § 378. Its Meaning and Effect. — The principle in- volved in this maxim, which is one of great practical im- portance, pervades and affects to a greater or less degree the entire system of equity jurisprudence, and is insep- arably connected with that which forms the subject of the preceding section. In fact, it is only by looking at the intent rather than at the form, that equity is able to treat that as done which in good conscience ought to be done. In explaining the meaning and operation of the one maxim, and the effects produced by it, I have necessarily de- scribed the significance and workings of the other. The two principles act together and aid each other, and it is by their universality and truth that much of equity juris- prudence which is peculiar and distinctive, in contrast with the law, has been developed. Equity always at- tempts to get at the substance of things, and to ascertain, uphold, and enforce rights and duties which spring from the real relations of parties. It will never suffer the mere appearance and external form to conceal the true pur- poses, objects, and consequences of a transaction. This principle of looking after the intent and giving it effect was fully recognized and distinctly formulated at an early day. In one leading case Lord Chancellor Macclesfield said; " The true ground of relief against penalties is from § 379 EQUITY JUBISPKUDJiNCB. 516 the original intent of the case, where the penalty is designed only to secure money, and the court gives the party all that he expects or desired." ' In another case Lord Thurlow said: " The rule is, that where a penalty is in- serted merely to secure the enjoyment of a collateral object, the enjoyment of that object is considered as the principal intent of the deed, and the penalty only as occasional." * It is true that in both of these cases the court was dealing with penalties; but the principle stated in them is of universal application, that equity always seeks for the real intent under the cover of whatever forms and appearances, and will give effect to such intent unless prevented by some positive and mandatory rule of the law. §379. Legal Requirements of Form. — The ancient common law paid great deference to matters of pure form, as, for example, in the symbolical process called "livery of seisin," by which alone a freehold estate in land could be transferred. Although such observances have long been abandoned, still the present rules of the law permit property in land or chattels to be created, transferred, or acquired only in certain defined modes, by means of the certain specified acts or events which constitute all the possible legal titles.* It was also one characteristic feature of the ancient law that it held contracting parties to a most rigid observance of aU the stipulations of their valid agreements; performance to the very letter of every covenant or promise was the in- flexible rule.* Still another purely formal element of the ' Peaeliy v. Dnke of Somerset, 1 the money was paid on the specified Strange, 447; Free. Ch. 568; 2 Eq. day, and in default of snch payment Caa. Abr. 227, 228. to be absolute, and for any reason the ' Sloman v. Walter, 1 Brown Ch. debtor suffered the pay day to pass 418; and see 2 Lead. Cas. Eq., 4th without performance, the ancient law Am. ed., 2014, 2022, and notes. would no more relieve the debtor from ' See an enumeration of these modes, the onerous provisions of his convey- ance, § 366. ance, or modify their rigor, than it ' For example, if A borrowed one would discharge him from his obliga- hundrej pounds to be repaid in six tion to pay the debt of one hundred months, and as security gave his pounds; both would be regarded as creditor a conditional conveyance in standing upon exactly the same foou- fee of an estate worth one hundred dation of express contract, thousand pounds, to become void if 517 LOOKS TO INTENT KATHER THAN TO FORM. § 380 law consisted in the extreme importance which it at- tached to the seal. The momentous and often most arbitrary results which flowed from the presence or ab- sence of a seal, and its effect upon private rights of prop- erty and of contract, rendered many of the rules of the early law peculiarly rigid and almost barbarous. The equity jurisprudence, in all these respects, differed widely from the common law; from the very beginning it was distinguished by an entire absence of these arbitrary and purely formal incidents. That they have now, in a great degree, disappeared from the law itself, which has in consequence become more enlightened and more just, is wholly due to its gradual adoption of equitable princi- ples, to its acceptance of doctrines originating in the court of chancery. § 380. Is the Source of Equitable Doctrines— Of Prop- erty. — I shall now state, by way of illustration, some of the most important instances in which the principle has been applied, and the settled doctrines of equity juris- prudence which are its immediate results. The first, and by far the most important consequence of the prin- ciple, reaching through a large part of the equity juris- prudence, is found in every species of equitable property, estate, or interest, and of equitable lien, so far as these exist by the doctrines of equity, but not by those of the law. While, as is shown in the last section, all these purely equitable property interests and liens arise from the direct operation of the grand principle, equity treats that as done which in good conscience ought to be done, still this maxim could only produce such effects in con- sequence of the other principle, that equity looks at the intent rather than at the form. In every kind of equita- ble property, or interest analogous to property, the external acts or events peremptorily required by the law in order to the existence of any property are wholly wanting; so that if the external form of the transaction hkd been regarded, no property, nor right resembling property, § 381 EQUITY JURISPEUDENCE. 618 could possibly exist. It is by disregarding these forms and looking at the real relations involved in the acts of the parties, at the real substance and intent of the trans- action, that the court of chancery has built up its mag- nificent structure of ecLuitable property, estates, and proprietary interests. The same is true of a large part of equitable liens. The external form is either an as- signment, •which at the law is wholly nugatory, or an executory agreement, which at law only creafes a mere personal right of action, — at most a claim for damages; but equity, going below this mere appearance, and seeing the real intent, gives efifect thereto by treating the assign- ment or agreement as creating a definite lien upon specific lands, or chattels, or securities, or other kind of fund, as the case may be.* The discussions of the last preceding section fully illustrate and demonstrate the correctness of this conclusion. § 381. Penalties and Forfeitures. — It was an inflexible doctrine of the ancient common law that parties must be held to a strict performance of all the stipulations of their valid agreements; that is, unless the agreement was wholly void from its illegality. Whenever, therefore, a contract provided for a penalty or a forfeiture, the full penalty or forfeiture would be enforced by a court of law without the slightest regard to the amount of damages actually sustained by the obligee or promisee from the default. ' As a single illustration: An in- ont notice: See Love v. Sierra Ke- strument purporting to be a mortgage vada etc. Co., 32 Cal. 639, 653, 654; of law, but imperfectly executed by 91 Am. Dec. 602, and cases cited. [A the omission of a. seal, or in some deed defective in form will generally other manner, so as to be defective in be treated in equity as a contract to form, is wholly nugatory at law as a convey, speoifio performance of which valid mortgage, or as giving any in- may be decreed when that remedy is terest in or claim upon the parcel of not inequitable: See Munds v. Cas- land described. Equity, however, not sidey, 98 N. C. 558 (lack of seal); saying that the instrument is a true Sparks v. Woodstock Iron etc. Co., legal mortgage, declares that it is an 87 Ala. 294 (defective attestation); efficient agreement to give a mort- Dreutzer v. Lawrence, 58 Wis. 594 gage, and, as such, that it creates an (same); Wood v. Rayburn, 18 Or. 3; equitable lien upon the laud, valid for JPike v. Martindale, 91 Mo. 268; Hyne all purposes, and as against all par- v. Osbom, 62 Mich. 235. Aa to the ties, except a purchaser of the land equitable lien created by defeotrre for a valuable consideration and with- mortgages, see § 1237.] 519 LOOKS TO INTENT KATHER THAN TO FORM. § 381 The action of equity in such cases affords a most striking illustration of the principle which we are discussing. It was at first confined to contracts for the payment of some definite sum of money, in which the debtor also bound himself, in case of his default, to pay a larger sum by way of penalty, or that the creditor might become absolute owner of specific property of a larger value by way of for- feiture, where the intent was plain that the penalty or forfeiture was added simply as a security for the payment of the real indebtedness. This action of equity with reference to purely money contracts was soon extended to other agreements in which a party undertook to per- form some act, to render some service, to transfer some property, to surrender some right, and a penalty or for- feiture was added. The general doctrine was finally set- tled that, wherever a penalty or forfeiture is inserted merely to secure the payment of money, or the perform- ance of some act, or the enjoyment of some right or benefit, equity regards such payment, performance, or enjoyment as the real and principal intent of the instrument, and the penalty or forfeiture as merely an accessory, and will therefore relieve the debtor party from such penalty or forfeiture, whenever the actual damages sustained by the creditor party can be adequately compensated. The appli- cation of the principle in such cases, and the relief against penalties or forfeitures, must always depend upon the question whether compensation can or cannot be made. If the principal contract is merely for the payment of money, there can be no difficulty; the debtor party will always be relieved from the penalty or forfeiture upon paying the amount due and interest. If the principal contract is for the performance of some other act or un- dertaking, and its non-performance can be pecuniarily compensated, the amount of such damages will be ascer- tained, and the debtor will be relieved upon their pay- ment.* But the principle, in this scope of its operation, ' Peachy v. Duke of Somerset, 1 Brown Ch. 418; 2 Lead. Cas. Eq., 4th Strange, 477; Sloman v. Walter, 1 Am. ed., 2014, 2023, 2044; Elliott r. § 382 EQUITY JURISPKUDENCB. 520 is not confined to agreements; it has been extended so as to prevent the forfeiture of a tenant's estate under a clause of re-entry for the non-payment of rent, or for the breach of some, though not of all, the covenants contained in a lease;' and to prevent the enforcement of a forfeiture for the non-performance of conditions subsequent.^ As equity will often interfere in this manner to relieve against a penalty or forfeiture which perhaps would be entirely valid at law, it follows as a matter of course that a court of equity will never, by its affirmative action, or by the affirmative provisions of its decree, enforce a penalty or forfeiture; or any stipulation of that nature, but will always leave the party entitled to prosecute his claim in a court of law according to legal rules.* § 382. Mortgages. — Another most remarkable appli- cation of the principle, from which arose an entire de- partment of equity jurisprudence, was the equity of redemption, — the equitable right and estate of the mort- gagor, after the legal title of the mortgagee had become absolute by a non-performance of the condition. Look- ing at the real intent of the parties, and considering the Turner, 13 Sim. 477; Rogan V. Walker, Warner v. Bennett, 31 Conn. 468; 1 Wis. 527; Grigg v. Landis, 21 N. J. Robinson v. Loomis, 51 Pa. St. 78; Eq. 494; Giles v. Austin, 38 N. Y. Regan v. Walker, 1 Wis. 527; Hagar Sup. Ct. 215; Hagar v. Buck, 44 Vt. v. Buck, 44 Vt. 285; 8 Am. Rep. 368; 285; 8 Am. Rep. 368. Orr v. Zimmerman, 63 Mo. 72. ' The tenant will be relieved from ' Livingston v.JTompkins, 4 Johns, a forfeiture incurred by his breach of Ch. 415, 431; 8 Am. Dec. 598; McKim a condition for a non-payment of rent, v. Whitehall Co., 2 Md. Ch. 510; Shoup because the extent of the lessor's real v. Cook, 1 Cart. 1 35; Warner v. Ben- claim, the amount of rent due, can nett, 31 Conn. 468, 478; Lefforge v. easily be ascertained, and satisfied by West, 2 Ind. 514, 516 (will not decree a, payment. The relief may be given forfeiture of an estate on account of on the breach of some other covenants, waste) ; Smith v. Jewett, 40 N. H. but is not generally extended to cov- 530, 534; Clark v. Drake, 3 Chand. enants to repair, to insure, etc. See 253, 259; Eveleth v. Little, 16 Me. 2 Lead. Cas. Eq., 4th Am. ed., 2014, 374, 377; Gordon v. Lowell, 21 Me. 2023, 2044, and notes; Hill v. Bar- 251, 257 (will not enforce a penalty clay, 16 Ves. 402; 18 Ves. 56, 62; created by statute); Fitzhugh v. Max- Reynolds V. Pitt, 19 Ves. 134; White well, 34 Mich. 138 (will not enforce a V. Warner, 2 Mer. 459; Ex parte forfeiture for non-performance of a Vaughan, Turn. & R. 434; Green v. condition subsequent in a contract for Bridges, 4 Sim. 96; Elliott v. Turner, the sale of land); Beecher v. Beecher, 13 Sim. 477; Gregory v. Wilson, 9 43 Conn. 556 (same rule); Palmer v. Hare, 683; Croft v. Goldsmid, 24 Beav. Ford, 70 111. 369 (forfeiture for non- 312; Palmer v. Ford, 70 111. 369. payment of rent); Orr v. Zimmerman, » Smith y. Jewett, 40 N. H. 530; 63 Mo. 72. 521 LOOKS TO INTENT SATHKB THAN TO FORM. § 383 debt as the substantial feature, and the conveyance as a security, only, for its payment, the court of chancery de- clared that a breach of the condition was in the nature of a penalty which ought to be relieved against, and that the mortgagee had an equity to redeem on payment of the debt and interest, notwithstanding the forfeiture at law; and furthermore, that this right of redemption could not be given up, waived, or parted with by any stipula- tion or covenant in the deed.' The whole system of equity jurisprudence presents no finer example of the triumph of equitable principles over the arbitrary and unjust dogmas of the common law than this. § 383. Effect of the Seal. — The important part played by the seal in the early common law, and the intensely technical and arbitrary effects produced by it according to the legal rules, are too well known to require any statement. Equity has applied its principle of looking at the intent rather than at the form, in some instances, by treating the presence of a seal as a matter of no con- sequence, as producing no effect upon rights and duties of parties; in other instances, by disregarding its absence where such absence would be fatal at the law. Although the common law, in theory, required a valuable considera- tion in order to render any agreement valid and binding, yet it declared that a seal was conclusive evidence of such a consideration, and under no circumstances would it per- mit this arbitrary effect to be removed by evidence show- ing, no matter how clearly, the absence of any considera- tion. Equity, disregarding such form and looking at the reality, always requires an actual consideration, and per- mits the want of it to be shown, notwithstanding the seal, and applies this doctrine to covenants, settlements, and ex- ecutory agreements of every description.* Another appli- ' Casborne v. Soarfe, 1 Atk. 603; » In Ord v. Johnston, 1 Jur., N. S., Howard V. Harris, 1 Vern. 190; 2 Lead. 1063, 1065, Stuart, V. C, said: "This Gas. Eq., 4th Am. ed., 1945, 1949, court never interferes in support of a. 1952, 1983; see also ante, §§ 162, 163, purely voluntary agreement, or where And notes. no consideration emanates from the § 383 EQUITY JUEISPKUDENCE. 622 cation of the principle is still more striking and just. The early common law attributed such an efficacy to the seal that a written obligation under seal could only be discharged by an instrument of the same high character, — that is, by a writing under seal. A subsequent written but not sealed agreement, revoking or modifying the terms of the prior specialty, or a parol accord, or even payment in full unaccompanied by a technical release, or any other matter in pais, could not alter the rights and liabilities arising from the sealed instrument; it could still be en- forced against the obligor by an action at law, and such acts furnished him no legal defense whatever. Such a doctrine was abhorrent to the spirit of equity. Paying no attention to the form of the transaction, if the act done was, in substance, a discharge, the court of equity treated it as equivalent in its effects to a technical release, and would relieve the obligor in any manner required by the circumstances of the case, even by a decree for a delivery up or cancellation of the sealed undertaking.' One most individual seeking the performance of but these decisions and dicta have long the agreement." In Houghton v. Lees, since been overruled; as, for example, 1 Jur., N. S., 862, 863, the same judge see Beard v. Nntthall, 1 Vern. 427; said: "Of the general doctrine of the Wiseman v. Roper, 1 Ch. Cas. Ch. 84; court on this subject, there is no doubt Tyrrell v. Hope,2Atk.562;EdwardBV. whatever. This court will not perform Countess of Warwick, 2 P. Wms. 176. a voluntary agreement, or what is ' Of course the discharge must be more, avoluntary covenant under seal, upon a valuable consideration in order Want of consideration is a sufficient that equity might enforce it: Cross v. reason for refusing the assistance of the Sprigg, 6 Hare, 552; Tuf nell v. Con- court." See also Jefferys v. Jefferys, stable, 8 Sim. 69; Yeomans v. Wil- Craig & P. 138, 141, per Lord Chan- liams, L. R. 1 Eq. 184; Taylor v. cellor Cottenham, who says the doc> Manners, L. R. 1 Ch. 48; Hurlbnt v. trine extends to contracts, covenants, Phelps, 30 Conn. 42; Campbell's Es- and settlements, and in other cases it tate, 7 Pa. St. 100; 47 Am. Dec. 603; is applied to voluntary executory trusts; Kidder v. Kidder, 33 Pa. St. 268. [See the seal produces no effect whatever also Williams v. Uncompahgre Co., 13 in such voluntary undertakings: Coch- Col. 477; McCreery v. Day, 119 N. Y. rane v. Willis, 34 Beav. 359; Meek v. 1; 16 Am. St. Rep. 793.] The early Kettlewell, 1 Fhila. 342; 1 Hare, 464; common law was so monstrous in its Her vey v. Audland, 14 Sim. 531 ; Shep- adherence to this rule, that if the herd v. Shepherd, 1 Md. Ch. 244; Vas- debtor on a bond or other specialty ser V. Yasser, 23 Miss. 378; Minturn had paid the demand in full, and had V. Seymour, 4 Johns. Ch. 497; Bur- even taken a written receipt therefor, ling V. King, 66 Barb. 633; Estate of but had failed to procure a surrender Webb, 49 Cal. 541, 545; Stone v. up of the instrument or a release of his Hackett, 12 Gray, 227. In a few early liability, the creditor might still sue cases it was held that voluntary agree- at law and recover the full amount ments,(/'un<^raea2, should be enforced; again, and the law gave no redress or 523 LOOKS TO INTENT BATHER THAN TO FORM. § 384 important consequence of this principle is seen in the legal and equitable liabilities of sureties. Where the surety's contract is under seal, he is not, by the strict common- law rules, discharged by any conduct of the creditor towards the principal debtor, by an alteration of the principal debtor's undertaking, or by an agreement with the principal debtor extending his time of payment, since the surety's liability could only be discharged by an instrument under seal.' Equity was therefore com- pelled to interfere under these circumstances, and re- lieve the surety by restraining the creditor from suing at law, and compelling him to surrender and cancel the guaranty.'' There are other instances of the disregard shown by equity to the presence or absence of a seal in determining the rights of parties. If, for an example, an instrument, from its imperfect execution in wanting a seal, is inoperative at law as a conveyance or as a mort- gage of land, equity may treat it as an agreement to con- vey or to give a mortgage, and as therefore creating an equitable interest in or lien upon the land.' § 384. Other Special Instances. — Other doctrines of equity, by which the strict terms of contracts, and the somewhat arbitrary rules of law relating thereto, are dis- regarded in order to promote the ends of justice, may also be referred, at least partly, to this principle of look- ing at the real intent rather than at the form. As a mere illustration, I mention the doctrtne which generally treats as joint and several the rights and liabilities arising from contracts which are regarded by the law as strictly joint, defense. One of the first steps by ■ Archer V. Hale, 1 Moore & P. 285; which equity broke in upon the rigor Aldridge v. Harper, 3 Moore & S. 518; of the law was the remedy which it Brooks v. Stuart, 1 Beav. 512. In gave to the obligor under these circum- moat of our states, if not indeed in all, stances, aa stated in the text. It is this particular rule of the common law a fact that the common-law lawyers does not prevail. vehemently inveighed against the ^Rees v. Berrington, 2 Ves. 540; 2 court of chancery for this alleged in- Lead. Cas. Eq., 4th Am. ed., 1867, vasion of legal rules. The equitable 1870, 1896. ' doctrine long ago became a part of the ^ [See § 1237; as to imperfectly exe- law, but it should not be forgotten that cuted deeds, atite, § 380, note.] it originated in the court of chancery. § 385 EQUITY JUKISPEUDENCB. 524 and the many important consequences which flow from this difference. Enough has been said, however, to show that the principle is one of very extensive application, and from it, either alone or in connection with others, are derived large portions of equity jurisprudence. SECTION III. HE WHO SEEKS EQUITY MUST DO EQUITY. S 385. General meaning of the principle. §§ 386, 387. In what cases applicable. § 388. Is a general rule regulating the administration of reliefs. S§ 389-393. Illustrations of the principle. § 389. The wife's equity. § 390. Equitable estoppel. § 391. Belief against usury. §§ 392, 393. Other special instances. §§ 394-396. Is also the source of certain equitable doctrines. § 395. Of election. § 396. Of marshaling securities. §385. Its Meaning. — This maxim expresses the gov- erning principle that every action of a court of equity, in determining rights and awarding remedies, must be in accordance with conscience and good faith. In its broadest sense it may be regarded as the foundation of all equity, as the source of every doctrine and rule of equity jurisprudence; since it is undeniable that courts of equity do not recognize and protect the equitable rights of liti- gant parties, unless such rights are, in pursuance of the settled juridical notions of morality, based upon con- science and good faith. But as a practical principle, guiding the equity courts in their administration of justice, the maxim is only used in a much narrower and more special meaning. Even in this narrow significa- tion it is a principle of most extensive application; it may be applied, in fact, in every kind of litigation and to every species of remedy. The meaning is, that whatever be 525 HE WHO SBBKS EQUITY MUST DO EQUITY. § 385 the nature of the controversy between two definite parties, and whatever be the nature of the remedy demanded, the court will not confer its equitable relief upon the party seeking its interposition and aid, unless he has acknowl- edged and conceded, or will admit and provide for, all the equitable rights, claims, and demands justly belonging to the adversary party, and growing out of or necessarily involved in the subject-matter of the controversy. It says, in effect, that the court will give the plaintiff the relief to which he is entitled, only upon condition that he has given, or consents to give, the defendant such correspond- ing rights as he also may be entitled to in respect of the subject-matter of the suit. This meaning of the princi- ple was more definitely expressed by an eminent judge in the following terms: " The court of equity refuses its aid to give to the plaintiff what the law would give him if the courts of common 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 the court would not otherTs^ise enforce." In this narrow and particular sense the principle becomes a universal rule governing the courts of equity in administering all kinds of equita- ble relief, in any controversy where its application may be necessary to work out complete justice.* ' In the two following quotations stract that the court, giving the plain- this aspect of the principle is stated in tiff the relief to which be is entitled, the most accurate manner: Hanson v. will do so only upon the terms of his Keating, 4 Hare, 1, 4, per Wigram, submitting to give the defendant V. C. : "The argument in this case such corresponding rights (if any) as for the defendant was founded upon he also may be entitled to in respect the well-established rule of this court, of the subject-matter of the suit, that a plaintiff who would have equity What those rights are must be deter- mnst do equity, a rule by which, prop- mined aliunde by strict rules of law erly understood, it is at all times sat- [meaning, of course, rules of equity, not isfactory to me to be bound. But it of common law], and not by any arbi- is a rule which, as it was used in the trary determination of the court. The argument of this case, takes for granted rule, in short, merely raises the ques- the whole question in dispute. The tion what those terms, if any, should rule, as I have often had occasion to be. If, for example, a plaintiff seeks observe, cannot per ae decide what an account against a defendant, the terms the court should impose upon court will require the plaintiff to do the plaintiff as the price of the decree equity by submitting himself to ac- it gives him. It decides in the ab- count in the same matter in which he 386 EQUITY JURISPKUDENCE. 526 § 386. When Applicable. — If we analyze this general formula, we shall obtain a more accurate notice of the asks an account; the reason of which is, that the court does not take ac- counts partially, and perhaps ineflfec- tually, but requires that the whole subject be, once for all, settled be- tween the parties: Clarke v. Tipping, 4 BeaV. 594, 595. It is only (I may observe as a general rule) to the one matter which is the subject of a given suit that the rule applies, and not to distinct matters pending between the same parties: Whitaker v. Hall, 1 Glyn & J. 213. So, in the case of a bill for specific performance, the court will give the purchaser his oou- veyanoe, provided he will fulfill his part of the contract by paymg the purchase-money; and e converso, if the vendor were plaintiff, the court will assist him only upon condition of his doing equity by conveying to the purchaser the subject of the contract upon receiving the purchase-money. In this, as in the former case, the court will execute the matter which is the subject of the suit, wholly, and not partially. So, if a bill be filed by the obligor in an usurious bond, to be relieved against it, the court, in a proper case, will cancel the bond, but only upon terms of the obligor refund- ing to the obligee the money actually advanced. The reasoning is analo- gous to that in the previous cases. The equity of the obligor is to have the entire transaction rescinded. The court will do this so as to remit both parties to their original positions; it will not relieve the obligor from his liability, leaving him in possession of the fruits of the illegal transaction he complains of. I know of no case which cannot be explained upon this or an- alogous reasoning; and my opinion is, that the court can never lawfully impose merely arbitrary conditions upon a plaintiff, only because he stands in that position upon the record, but can only require him to give the de- fendant that which by the law of the court, independently of the mere posi- tion of the party on the record, is the right of the defendant in respect of the subject of the suit. A party, in short, does not, by becoming plaintiff in equity, give up any of his rights, or submit those rights to the arbitrary disposition of the court. He submits only to give the defendant hia rights in respect of the subject-matter of the suit, on condition of the plaintiff obtaining his own. Cases may per- haps be suggested in which a question never can arise except against a plain- tiff; but as a general proposition, it may, I believe, be correctly stated, that a plaintiff will never, in that character, be compelled to give a de- fendant anything but what the de- fendant might, as plaintiff, enforce, provided a cause of suit arose: Lady Elibank v. Montolieu, 5 Ves. 737; Sturgis V. Champneys, 5 Mylne & C. 102." It will appear subsequently that this last proposition of the learned judge is expressed in somewhat too strong terms, and requires important limitations upon its generality. See also the same view expressed by the same judge in Neesom v. Clarkson, 4 Hare, 97, 101; Sturgis v. Champneys, 5 Mylne & C. 97, 101, per Lord Cotteu- ham: "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 di- rectly opposed to its own principles as administered between parties having equitable interests only, such as in cases of subsequent encumbrancers without notice gaining a preference over a prior encumbrancer by procur- ing the legal estate. It may be to be regretted that the rights of property should thus depend upon accident, 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, though applied to subjects without its own exclusive jurisdiction, not having, in many cases, been extended to control mat- ters properly subject to the jurisdic- tion of the courts of common law. Hence arises the extensive and bene- ficial 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 common law had jurisdiction to enforce it, without im- posing upon him conditions which the 527 HE WHO SEEKS EQUITY MUST DO EQUITY. § 386 real scope and effect of the principle. In the first place, the rule only applies where a party is appealing as actor to a court of equity in order to obtain some equitable re- lief; that is, either some relief equitable in its essential nature, as an injunction or a cancellation, or equitable because it' may come within the power of the court to administer by virtue of its concurrent jurisdiction, as an accounting, or a pecuniary recovery; and it is necessarily assumed that the party would, but for the operation of the rule, be entitled to all the relief which he demands. Unless the party were otherwise so entitled, there would plainly be no occasion for invoking the rule. With re- spect to the terms which may be imposed upon the party as a condition to his obtaining the relief in accordance with the rule, — that is, the "equity" which he must do, — it is undoubtedly true, as said by Vice-Chancellor Wig- ram, that the court obtains no authority from this principle to impose any arbitrary conditions not warranted by the settled doctrines of equity jurisprudence; the court cannot deprive a plaintiff of his full equitable rights, under the pretense of awarding to the defendant something to which he has no equitable right, something which equity juris- prudence does not recognize. The principle only requires the plaintiff to do " equity." According to its true mean- ing, therefore, the terms imposed upon the plaintiff, as the condition of his obtaining the relief, must consist of the awarding or securing to the defendant something to which he is justly entitled by the principles and doctrines of equity, although not perhaps by those of the common law, — something over which he has a distinctively equi- table right. In many cases, this right or relief thus se- cured to or obtained by the defendant, under the operation court considers he ought to comply covering the property of the wife, with, although the subject of the condi- without securing out of it for her a thn should be one which this court proper maintenance and support, it would not otherwise enforce. If, not only does not violate any princi- therefore, this court refuses to assist a pie, but acts in strict conformity with husband who has abandoned his wife, a rule by which it regulates its pro- or the assignee of an insolvent hns- ceedings in other eases." band who claims against both, in re- §387 EQUITY JUBISPBUDBNCB. 528 of the rule, might be recovered by him, if he as plaintiff, the parties being reversed, had instituted a suit in equity for that purpose. But this is not indispensable, nor is it even always possible. The rule may apply, and under its operation an equitable right may be secured or an equi- table relief awarded to the defendant, which could not be obtained by him in any other manner, — that is, which a court of equity, in conformity with its settled methods, either would not, or even could not, have secured or con- ferred or awarded by its decree in a suit brought for that purpose by him as the plaintiff.' § 387. Finally, the principle will not apply so as to compel the plaintiff to do equity, where the relief sought by the plaintiff, and the equitable right or relief secured or awarded to the defendant, belong to or grow out of ' Upon this point the laat proposi- tion of V. C, Wigram, in his opinion quoted ante, under § 385, is stated in much too strong terms, without the necessary qualifications. Indeed, one of the examples cited by him in a, preceding sentence shows the incor- rectness of his conclusion In this par- ticular. The statement of the principle by Lord Cottenham is more accurate in this respect. One or two simple examples will illustrate. One of the most familiar applications of the rule is the " wife's equity," so called, the securing to her a portion of her own property, to which her husband be- comes legally entitled by the marriage; whenever her husband or his assiguee comes into a court of equity and seeks its aid to reach her property, the court may, under certain circumstances, compel the plaintiff, as a condition of his obtaining relief, to secure a por- tion of the property to the separate use of the wife by a settlement, al- though at law she has no right over it. This is sometimes done in a case where the wife herself could, by means of her own suit, have obtained the same re- lief; but it may also be done where, under the settled doctrines of equity, no such suit could be maintained by the wife. Under statutes against usury, which make void all usurious debts and obligations, the debtor may maintain a suit in equity for the pur- pose of procuring the usurious bond or other security to be surrendered up and canceled; but this relief will only be granted upon the condition that the plaintiff does equity by repaying to his creditor the amount which was actually loaned upon the security. In this instelnce, by the operation of the principle, the defendant obtains a relief which he could not possibly have obtained in any other manner; for if he had sned the debtor either at law or in equity to enforce the security and recover the debt, the defense of usury would be a complete bar. Again, in many of the states a tax-payer may maintain a suit in equity and restrain the collecting o£Scer from enforcing payment of illegal taxes; but the relief of injunction will not be granted nnless the plaintiff pays in full all that part of the tax assessed against him which is legal. Here also the defendant obtains a relief, nnder the operation of the principle, which be could obtain from the conrt of equity in no other manner; for the court would not sustain a suit in equity brought by the collecting offi- cer to enforce payment of the tax; his only affirmative remedy would be either at law or by speciiJ statutory proceedings. 529 HB WHO SEiKKS EQUITY MUST !0O EQUITY. § 387 two entirely separate and distinct imatters. The true meaning of the rule in this respect is, that the equitable right or relief seeiired to or conferred upon the defend- ant must be something connected with the subjeeit-rmiatter of the very suit or controversy for the pioper decision of which the principle is invoked. Or, to state the same doctrine in more detailed and particular terms, " the rul-e is applied where the adverse equity to be secured or awarded to the defendant grows out of the very contro- versy before the court, or out of such transactions as th© record shows to be a part of its history, or where it is so connected with the cause in litigation as to be presented in the pleadings and proofs, with full opportunity afforded to the party thus recriminated to explain or refmte the charges." ' If th© conduct of the plaintiff, growing out ' Gorastodk T, Jobnson, 46 N. T. 615. Plaintifif and defendajita were owners of adjoining milla. Plaintiff had the xigkt to draw water for his mill from a dam belonging to defend- ants. Plaintiff, wiithout >any m^t, as it was held, erected a buzz-saw on an open space in front of defendants' mill, and propelled it by water from defendants' dam. Defendants there- upon shut off all the water supply to the plaintiff's works, 4hat to the mill as well as that for the saw. Plaintiff brought a suit to restrain them from depriving him of the water. He was held to be entitled to the relief, but only upon condition that lie discon- tinued the use o£ the saw. Church, 0. J.,, said: "The rule of equity is, that he who asks equity must do equity. The plaintiff was in fault in using the buzz-saw on the defendants' preniises. It ds said that this was an independent transaction, for which the defendants might have an action,; and this was fhe view of the court below. The rule referred to will be applied where the adverse equity grows out of the very transaction be- fore' the court, or out of such circum- stances aa the record sbows to be a part of its hi^ory, or where it is so connected with the cause in litigation as to be "presented in the pleadings and proofs, with full opportunity af- forded to the party thus recriminated 1 Eq. Jub.— 34 to ■explain or refute fhe niharges: Tripp V. Cook, 26 Wend. 143; McDonald y.. Neflson, 2 Cow. 139; U Am. Dec. 431; Caaler 05 Maaa. 328; Mo- Kempner, 35 Ark. 505; Peckhann v. Goon V. Shirk, 54 111. 408. Millikan, 99 Ind. 352; Alexander v. "Board of Comm'rs v. Elston, 32 Merrick, 121 111. 606. A mortgagor Ind. 27; 2 Am. Kep'. 327; Smith v. seeking to quiet title againat an illegal Auditor-General, 20 Mich. 398; Mer- sale under the mortgage must offer to rill V. Humphrey, 24 Mich. 170; Mor- do equity by paying what is equita- rison V. Hershire, 32 Iowa, 271; Dean My due: Loney v. Courtnaiy, 24 Ifeb. V. Charlton, 23 Wis. 590; 99 Am. Dee. 580; Johuaton v. S. F. Sav. Union, 75 205. Cal. 1'34; 7 Am. St. Rep. 129; even ' Richardson v. Linney, 7 B. Mon. though the statute of limitations has 674. barred the debt: Booth v. Hoskina, 75 * An invalid tax deed of the plains Cal. 271; De Cazara v. Orena, 80 Cal. tiff's land waia set aside as a cloud 132; Hall v. Arnott, 80 Cal. 348. The upoa his title, only upon condition same is true of relief against other voiid! tha* he refunded all the taxes which judicial sales: Robertson y. Bradford^ had been advanced or paid by the 73 Ala. 116; Galveston etc. R. R. Co. party to whom the' deed was given; v. Blakeney, 73 Tex. 18Q.] A co- Reed V. Tyler, 55 111. 288; [Stouart v. surety, asking to be relieved from a 537 HB WHO SEBKa EQUITY MUST DO EQUITY. § 394 § 394. Is the Source of Certain Equitable Doctrines. — Thus far I have discussed the principle in the view taken of it by the great majority of judicial opinioms, namely, as a universal rule: guiding the court of equity in its ajd- ministration of every kind of relief, and to be applied in practice according to the circumstances of the particular case before the court for decision. In this aspect of the principle it is not regarded as the source of any special doctrine of the equity jurisprudence, nor as the floiunda- tion of any special, eqiaitable interest or primaiary right. There is, however, another phase of the principle; it may be looked upon in another light. It is not wholly a rule for the: guidance of the equity judge in measuring out and apportioning reliefs among litigants. It has exercised a molding influence- in the development of important branches of tke equity jurisprudence; certain doctrines are plainly derived from it as their cMef, though not per- judgment against him for the whole demand secured, can only obtaim thei relief by paying his own contributory portion of the' debt: Creed v. Soruggaj 1 Heiak. 590. A widow suing for her dower must account for the use, rent, andj profitst of the land which she has; occupied in excess of her third: Mo- Eaughlin V. MeEaugJilin, 20 N. J. Bij. 190. On the other hand, if the heir sues to set aside his deed to the widow, audi for an accounting, he: must allow to her one third of the income in re- spect of her dower right: Ame» v. Ames, 1 Cin. Bep.. 559., A plaintiff suing in equity for a, partition must comtjoibute his proportion of a mort- gage on the land which had been paid off by the defendant: Campbell' v. Campbell„ 21 Mich. 438; and see. Corn- stock V. Johnson, 46 N. Y. 615 {ante, §.387, in m)te); Phillips v. PhiUips,. 50 Mo. 603^ Kinney v. Con. Virginia M. Co., 4 Saw. 383; Boskowitz v. Dlsvis, 12 Nev. 446j Scammon v. Kimball,, 5 Btss: 431; Anderson v. Little, 26' N. J. Eq^ 144; Lohman v. Crouch, 19 Gratfe 331;.Lanningv. Smith, 1 Ears. Cas. 16. It is held that the principle' also- ap- plies, to a defeudanji who sets up an affirmative equitable defense claiming some affirmati\Fe reliief . since he! is thaa. in exactly the same position' as a plaintiff: See Tongue v. Kut.well, 3:1 Md. 302. This, must be the true lim- itation of the principle- in its applica- tion to defendants;, ,it certainly does not and cannot apply to defendants generaEy,. who merely seek to delea* the plaintiff's demand, and ask no affirmative relief for themselves, either directly or indirectly. For example,, the borrower, when sued upon a usuri- ous obligation, may set up the defense- of usury, without 'paying anything, [One who seeks the- reformation- of a deed in his own favor will be denied relief, unless he is willing that other Biistaltes in the deed agaiuat his inter- ests, should also be corrected: Morisey V. Swinson, 104 N. C. 555. For the important application of the maxim to parties seeking rescission or cancella- tion of transactions on tlie ground of fraud, mistake, etc., and the equitable theory of res-boring all the parties to their original position,, see §.910. For its application to the cancellation of deeds, etc., of insane persons, see: § 946. For its application in behalf of persons- holding under defective title- who in good^faith hava made, improve- ments, see §■ 1241, note.] § 395 EQUITY JURISPRUDENCE. 538 baps their only, source. The full scope and effect of such doctrines can only be understood by a clear perception of the relations which connect them with this their common origin. I shall therefore conclude the discussion of the present section by a brief mention of the doctrines which are thus, as it seems to me, directly referable to the prin- ciple that he who seeks equity must do equity. § 395. Of Election. — The relation which plainly con- nects- all these doctrines with the principle in question is the fact that the equitable right or interest of one party, recognized and protected by each of them, always grows out of, or is necessarily connected with, the recognition and maintenance of the equitable right or interest of another party prising from the same transaction or sub- ject-matter. In other words, the equity of one exists by the operation of the doctrine only because the equity of another is admitted and provided for. The doctrine itself is thus based upon the preservation of reciprocal or correlative equities. The first of the doctrines which I shall notice is that of election. This doctrine involves the notion that no man can claim inconsistent rights with regard to the same subject, and that any one who asserts an interest under an instrument is bound to give full effect to that instrument; he cannot both accept and reject it, or avail himself of its benefits as to a part, and defeat its provisions as to other parts. Election then originates in inconsistent or alternative donations, — two gifts, with the intention, express or implied, that one shall be a substitute for the other. The donee is entitled, not to both, but to the choice of either. The doctrine is applied under two somewhat difi'ering states of circum- stances, but the principle is the same in each. If the individual to whom, by an instrument of donation, a benefit is offered possesses a previous claim on the donqr, and an intention appears that he shall not both receive the donation and enforce the claim, he is required by the doctrine to elect between his original and his substituted 539 HE WHO SEKKS EQUITY MUST DO EQUITY. § 396 rights; the gift being designed as a satisfaction of the claim, he cannot accept the former without renouncing the latter. In the second case, the owner of an estate having, in an instrument of donation, applied to the property of another expressions which, were that prop- erty his own, would amount to an effectual disposition of it to a third person, and having by the same instrument disposed of a portion of his own estate in favor of the proprietor whose rights he assumed, the doctrine imposes upon that proprietor the duty of electing either to relin- quish the benefit conferred upon him by the instrument, if he asserts his own inconsistent proprietary rights, or if ha accepts that benefit, to complete the intended dis- position by conveying, in conformity to it, that portion of his own property which it purports to affect." It is very evident that this doctrine is based upon the princi- ple that the party who, under such circumstances, asserts his equitable claim to one of his rights must also do equity by relinquishing the other to the persons who in that case are entitled to it, and to that end he is compelled to make an election between the two. § 396. Of Marshaling. — The second doctrine which I shall notice is that known as the marshaling of securities. " If a person who' has two real estates mortgages both to one person, and afterwards only one estate to a second mortgagee, the court, in order to relieve the second mort- gagee, has directed the first to take his satisfaction out of that estate only which is not in mortgage of the second mortgagee, if that is sufficient to satisfy the first mort- gage, in order to make room for the second mortgagee." ' The same rule applies wherever one has any lien or > Snell's Equity, 178, 179; Gretton v. Williana, 3 Macn. & G. 690; Tidd V. Haward, 1 Swanst, 43.3, and note; v. Lister, 10 Hare, 157; 3 De Gex, M. Noys V. Mordannt, 2 Vern. S81; & G. 857; Heyman v. Dubois, L. R. Streatfield v. Streatfield, Gas. t. Tal- 13 Eq. 158; Evertaon y. Booth, 19 bot, 176; 1 Lead. Caa. Eq. SOS, 610, Johns. 486; Dorr v. Shaw, 4 Johns. 641. Ch. 17; Kendall v. New England Co., ' Per Lord Hardwicke, in Lanoy ▼. 13 Conn. 384; House T. Thompson, 3 Duks of Athol, 2 Atk. 446; Haghea Head, 612. §, 397 KQDITY JXJEISPBUDKHCB. 640 security on two funds, and another has a subsequent lien on only one of them. This doctrine is plainly referable to the principle. The holder of the security on two funds is compelled to shape his own remedy, so as to preserve, if possible, the equity of the one whose lien extends to but one fund- In fact, the whole theory with respect to the marshaling of assets seems to be derived, in part at least, from the same source. A few other doctrines might, I think,, be specified as thus related by a common descent; but enough has already been said to show the great im- portance of the principle. He who seeks equity must do equity, both as a practical rule governing the adminis- tration of remedies, and as the germ of equitable doc- trines. SECTION IV.- HE WHO COMES INTO EQUITY MUST COMB WITH CLEAlf HANDS. § 397. General meaning of this principle. § 398. Is based upon conscience and good faith. § 399. Limita/tlions' u thur Average Ass'n, L. R. 10 Ch. 542: In re South Wales etc. Co., L. R. 2 Ch. Div. 763; Sykes v. Beadon, L. R. 11 Ch. Div. 170, 183, 197; Thomson v. Thomson, 7 Vea. 470; Regby v. Con- nol, L. R. 14 Ch. Div. 482, 491; Carev V. Smith, 11 Ga. 539, 547. In the first two cases above named it was held that an association, illegal because not organized in conformity with certain mandatory statute, cannot be "wound up" by a court of equity. In Sykes v. Beadon, L. R. 11 Ch. Div. 170, a company had been formed for- the purpose of making investments and dealing in securities, all the members^ having signed articles of assouiation. This association was held illegal, be- cause it violated certain statutes, and, among others, the acts against lot- teries. A large amount of capital had been sunk, and the managers or- trustees had committed some gross breaches of their trust. This suit was. brought by a share-holder against some of the trustees, to compel them to carry out the trusts, and to mak& them liable for the sums lost through their breaches of trust. The questions were very fully discussed by Jessel, M. R., who held that the suit could not be maintained. He said (p. 193)t "Now, the authorities on the sul)ject seem to be quite plain when you come to examine them. They are really to- this effect, that you cannot ask the aid of a court of justice to carry out an illegal contract; but in cases where the contract is actually at an end, or is put an end to, the court will inter- fere to prevent those who have, under- the illegal contract, obtained money belonging to other persons on the rep- resentation that the contract was legal, from keeping that money." Again, he- said at page 197: "I think the princi- ple is clear that you cannot directly enforce an illegal contract, and you cannot ask the court to assist you in carrying it out. You cannot enforce it indirectly; that is, by claiming damages or compensation for the breach of it, or contribution from the- persons making the profits realized from it. It does not follow that yoa 549 MUST COME INTO EQUITY WITH CLEAN HANDS. § 402 in order to avoid any misapprehension and seeming incon- sistency in the decisions, that there are agreements which appear, at first blush, to be founded upon an immoral con- sideration, or which would at one time perhaps have been regarded as contrary to public policy, which courts of equity do not consider to be illegal, and which they will therefore enforce, if properly coming within their jurisdiction. Of this kind are some contracts made upon the consideration of an improper cohabitation being ter- minated, and those providing for children born from such cohabitation.' cannot, in some cases, recover money paid over to third persons in. pursu- ance of the contract; and it does not follow that you cannot, in other cases, obtain, even from the parties to the contract, moneys which they have be- come possessed of by representations that the contract was legal, and whioh belonged to the persons who seek to recover them; but I am bound to say I think there is no pretense for saying that an illegal contract will in any •way be enforced or aided by a court of law or equity." In Regby v. Con- nol, L. R. 14 Ch. Div. 482, 491, a member of a " trades union " hail been «xpelled for violating certain rules of the society which were stringently in restraint of trade, and he brought this «uit to be restored to his riglits of membership and the property rights belonging thereto. Trades nnions had \>eeu legalized by an act of Par- liament for certain specified purposes, but not for all purposes. The court held that, independent of the statute, the society and the articles of agree- ment between its members were clearly illegal, because contrary to public pol- icy; that the suit did not come within the operation of the statute; and there- fore a court of equity could give the plaintiff no relief. In Carey v. Smith, II Ga. 539, 547, both parties had been engaged in transactions violating the 43tatutes concerning banking. See also Johnson v. Shrewsbury etc. R'y, S De Gex, M. & G. 914, per Knight Bruce, L. J.; Aubin v. Holt, 2 Kay & J. 66, 70, per Page Wood, V. 0. ' With respect to contracts upon the consideration mentioned in the jtezt, see the following cases, cited in the last note: Sismey v. Eley, 17 Sim. 1; Knye v. Moore, 1 Sim. & St. 61; Matthew v. Hanbury, 2 Vern. 187; Robinson v. Cox, 9 Mod. 263; Clark V. Periam, 2 Atk. 333; Marchioness of Annandale v. Harris, 2 P. Wms. 432; Hall v. Palmer, 3 Hare, 532. It is now settled that an agreement of separation between a huaband and wife is not illegal, not against public policy, and if drawn in a proper form, so that there are two parties capable of contracting, will be specifically en- forced at the suit of either spouse: Besant v. Wood, L. B. 12 Ch. Div. 605, 620-624; Wilson v. Wilson, 1 H. L. Cas. 538; Hunt v. Hunt, 4 De Gex, F. & J. 2-n, 233; Marshall v. Marshall, 27 Week. Rep. 399; Flower v. Flower, 20 Week. Rep. 231. The earlier decisions were undoubtedly the other way. See Aylett v. Ashton, 1 Mylne & C. 105; Duke of B .Itou V. Williams, 2 Ves. 138. In Besant V. Wood, L. R. 12 Ch. Div. 605, Jes- sel, M. B., reviews the authorities, and discusses at length the legal mean- ing and effect of "public policy." In Fisher v. Apollinaris Co., L. R. 10 Ch. 297, 302, 303, it was held by the court of appeal, as a general rule, that where an offense is of such a nature that the offender may be proceeded against either criminally or civilly, or both, and he is prosecuted criminally, there is nothing illegal nor imprbper in a compromise of the whole proceed- ings: such agreement of compromise is valid, and will be enforced by equity,, if coming within the equitable juris- diction. It should be observed, how- ever, that this rule is confined to those wrongs which are capable at the conii^ § 403 EQUITY JURISPRUDENCE. 550 §403. Limitations — Parties not in Pari Delicto. — Upon the general doctrine stated in the preceding para- graphs concerning the effect of fraud and illegality upon the remedial rights of parties seeking the aid of equity, there are certain limitations, founded mainly upon mo- tives of policy, which require a brief mention. Wherever a case falls within the limitation, and not within the gen- eral rule, the court may give relief against the improper transaction, or may even enforce the obligation arising from the tainted agreement, at the suit of one of the par- ties thereto. The first of these limitations may be given in the following general formula, and all the others may be regarded as merely particular deductions or corollaries from it. Assuming that a contract is fraudulent, or against public policy, or illegal, still, where the parties to it are not in pari delicto, and where public policy is con- sidered as advanced by allowing either, or at least the most excusable of the two, to sue for relief, relief may be given to him, either against the transaction by setting it aside and restoring him to his original position, or even, in some cases, by enforcing the contract, if executory.^ mon law of being prosecuted both tion, relief is given to him, as wa civilly and criminally; it does not, of know from various authorities. " I coarse, extend to offenses for which cannot at present entes into any dis- modern statutes hare given an action cussiou of the rule, nor describe tha at law for damages, such as homicide, kinds of contracts in which the par- [It was held, however, in Windhill ties are not in pari delicto, so that tha Local Board v. Vint, 45 Ch. Div. 351, court may aid the one who is compar- that any agreement to compromise or atively innocent. The whole subject postpone a prosecution for a. public is discussed in a most able and ex- offense — as an interference with a hanstive manner, the authorities ara public highway — is illegal; and Fisher reviewed, and the contracts to which V. Apollmaris Co., L. R. 10 Ch. 297, the rule applies are described and so far as it holds otherwise, is over- classified by Selden and Comstock, ruleil. See further, last note, under JJ., in Tracy v. Talmage, 14 N. Y. § 936.] 162, 67 Am. Dec. 1.32, and by some of ' This general limitation is thus the opinions in the great case of Curtis stated by Knight Bruce, L. J., in the v. Leavitt, 15 N. Y. 9. See also Oa- great case of Reynell v. Sprye, 1 De borne v. Williams, 18 Ves. 379; Prea- Gex, M. & G. 660, 679: "But where cott v. Norris, 32 N. H. 101; White the parties to a contract against public v. Franklin Bank, 22 Pick. 186; Low- policy, or illegal, are not in pari delicto ell v. Boston etc. R. R., 23 Pick. 32; (and they are not always so), and 34 Am. Dec. 33; Bellamy v. Bellamy, where public policy is considered as 6 Pla. 62, 103. Among tha ordinary advanced by allowing either, or at instances where equity will set aside least the most excusable of the two, a fraudulent or illegal transaction at to Bue for relief against the transac- the suit of the party supposed to b» 651 MUST COME INTO EQUITY WITH CLEAN HANDS. § 403 The second limitation I cannot better state than in the carefully considered language of the present master of rolls, Sir George Jessel, in a very recent case: " You can- not ask the aid of a court of justice to carry out an ille- gal contract; but in cases where the contract is actually at an end, or is put an end to, the court will interfere to prevent those who have, under the illegal contract, ob- tained money belonging to other persons, on the repre- sentation that the contract was legal, from keeping that money It does not follow that you cannot, in some cases, recover money paid over to third persons in pur- suance of the contract; and it does not follow that you cannot, in other cases, obtain, even from the parties to comparatively innocent, wholly on grounds of public policy, is the famil- iar case of a borrower suing to have the usurious contract and securities surrendered up and canceled, and where, in a composition purporting to be effected on terms of equality by an insolvent with all his creditors, secret bargains are made with some of them by which they are to obtain more fa- vorable terms than the others, or where, in an assignment by an insol- vent, a secret arrangement is made with the assignee in order to secure benefits out of the property to the debtor or his family, such agreements, being in fraud of creditors, will be set aside by a court of equity, even at the suit of the insolvent himself. Such relief, however, is plainly not fiven out of consideration for the ebtor, but solely for the purpose of protecting the creditors: See Easta- brook v. Scott, 3 Yes. 456; CuUing- worth V. Loyd, 2 Beav. 385, 390, notej McNeill V. Cahill, 2 Bligb, 228; Bel- lamy v. Bellamy, 6 Fla. 62, 103, and cases cited. The following are some particular illustrations: In Benyon v. Nettlefold, 3 Macn. & G. 94, a gen- tleman had given a deed containing covenants binding him to pay an an- nuity to trustees for the benefit of a certain woman during her life. The real consideration of this deed was continued furtive cohabitation with the woman as his mistress; but an- other consideration was stated in the deed, so that it was valid OQ Voorbig V. Child's Ex'rs, 17 N. 7. Hun, 313; Bradley v. Burwell, 3 561 EQUALITY IS EQUITY. §409 modern decisions is still broader and more efficient. The creditor is entitled to sue the personal representatives 'of the deceased debtor in equity at once, without attempting, much less exhausting, any legal remedy against the sur- vivor. In other words, the creditor has at all times the option to sue the survivor at law or the representatives of the deceased in equity, whether the survivors are solvent or not; and this rule has been adopted in some of the American states.* In certain of the states, the common- law dogma concerning joint debtors has been wholly ab- rogated. Special provisions of their codes of procedure, or of other statutes, expressly authorize a legal action to Denio, 61; Maples v. Geller, 1 Nev. 233, 237, 239; Fowler v. Houston, 1 Nev. 469, 472; Barlow v. Scott's Adm'r, 12 Iowa, 63; Pecker v. Cannon, 11 Iowa, 20; Marsh v. Goodrell, 11 Iowa, 474; Williams v. Scott's Adm'r, 11 Iowa, 475; People v. Jenkins, 17 Cal. 600; Humphreys v. Crane, 5 Cal. 173; May V. Hanson, 6 Cal. 642 (but see Bank of Stockton v. Howland, 42 Cal. 129); Hamersley v. Lambert, 2 Johns. Ch. 509, 510; Hunt v. Rousmaniere, 8 Wheat. 212, 213; 1 Pet. 16; Devaynes V. Noble, 1 Mer. 538, 539; Ex parte Kendall, 17 Ves. 514, 526, 527; Ex parte Euffin, 6 Ves. 125, 126; Gray v. Chiswell, 9 Ves. 118; Campbell v. MuUett, 2 Swanst. 574, 575; Cowell v. Sikes, 2 Russ. 191 ; Towers v. Moor, 2 Vern. 98; Simpson v. Vaughan, 2 Atk. 31. ' yVilkinson v. Henderson, 1 Mylne &, K. 582; Braithwaite v. Britain, 1 Keen, 219; Brown v. Weatherby, 12 Sim. 6, 11; Devaynes v. Noble, 2 Russ. & M. 495; Thorpe v. Jackson, 2 Younge* 0. 55.3, 561, 56J; Freeman V. Stewart, 41 Miss. 138. In Indiana it has been held that the Code of Pro- cedure, by abolishing the distinctions between legal and equitable actions, and introducing the equitable doctrines concerning parties, and providing for the severance of the judgment, has, without any special provision on the subject, introduced this equitable rule into the law. In other words, it is settled in that state, upon a just in- terpretation of the code, that npon the death of one joint or joint and 1 Ed. Job.— 36 several debtor, a legal action will lie at once against the survivors and the administrators or executors of the de- ceased as co-defendants: Braxton v. State, 25 Ind. 82; Eaton v. Burns, 31 Ind. 390; Klussmann v. Copeland, 18 Ind. 306; Voris v. State ex reL Davis, 47 Ind. 345, 349, 350; Myers v. State ex rel. McCray, 47 Ind. 293, 297; Owen v. State, 25 Ind. 371. In Brax- ton V. State, 25 Ind. 82, the action was against the three survivors and the administrators of the deceased obligors on a bond. After stating that there were no special provisions on the subject in the Indiana code (as there are in some of the states), and after quoting the sections concerning forms of action and parties defend- ant, Elliott, J., proceeds: "It was manifestly the intention of the legis- lature, in the adoption of these pro- visions, to afford as far as possible a simple and direct means of bringing all the parties having an interest in the controversy before the court, and of settling all their rights in a single litigation, and thereby to avoid a mul- tiplicity of suits." The decision in Voorhis v. Child's Ex'rs, 17 N. Y. 354, was expressly disapproved. In these cases the Indiana court has, in my opinion, interpreted the Code of Pro- cedure in accordance with its true spirit and intent. The same construc- tion has been given to similar sections of the code, and the same rule adopted by the supreme court of California in the very recent case of Bostwick v. McEvoy, 55 Cal. 496. § 410 EQUITY JURISPEUDKNCB. 562 be brought in the first instance against the survivors and the personal representatives of the deceased joint debtor, or even against some, any, or one of them, at the option of the creditor who sues.* There is one important excep- tion, as established by the courts in England and in many of the United States, to the doctrine that equity will re- gard and treat a joint obligation arising from contract as joint and several, so as to render the estate of a deceased debtor liable to a suit in equity brought by the creditor; and that is, where the deceased debtor is a surety. It is well settled, " that if the joint obligor so dying be a surety, not liable for the debt irrespective of the joint obligation, his estate is absolutely discharged both at law and in equity, the survivor only being liable. In such case, where the surety owed no debt outside and irrespect- ive of the joint obligation, the contract is the measure and limit of his obligation. He signs a joint contract and incurs a joint liability, and no other. Dying prior to his CO maker, the liability all attaches to the survivor."* § 410. Settlement of Insolvent Estates — Marshaling of Assets. — Another remarkable and most just applica- tion of the principle, often leading to results very differ- ent from those produced by the operation of legal rules, may be seen in all those instances where a court of equity acquires jurisdiction, from any cause, to wind up, distrib- ' Iowa: Code, sec. 2550; Sellon v. v. Fank, 51 Mo. 98; Simpson t. Field, Braileii, 13 Iowa, 365. The Iowa oases 2 Cas. Ch. 22; Sumner v. Powell, 2 cited in the preceiling note under this Mer. 30, per Sir William Grant, paragraph were decided before the M. R. ; affirmed on appeal, 1 Turn, k provision referred to was enacted. R, 423, per Lord Eldon; Other v. Ive- Kentud-y: Code, sec. 39. Missouri; son, 3 Drew. 177; Richardson v. Hor- Code, art. 1, sec. 7; I Wagner's Stats., ton, 6 Beav. 185; Jones v Beach, 2 De p. 269, sees. 1-4. Karmas: Gen. Stats. Gex, M. & G. 886; Wilmer v. Currey, 1868, c. 21, sees. 1-4. Ohio: Swann's 2 Ue Gex & S. 347. In some of the Rev. Stats. 378; Biirgoyne v. OhioLife states, however, either from the effect Ins. etc. Co., 5 Ohio St. 586, 587. of special statutes or from a different ' Getty V. Binsse, 49 N. Y. 385, 388, view of equity taken by the courts, 389; 10 Am. Rep. 379; Wood v. Fisk, 63 this exception has not been adopted, N. Y. 245; 20Am. Rep. 528; Pickersgill and the estate of a deceased joint V. Lahens, 15 Wall. 140; United States surety is liable in the same manner as v. Price, 9 How. 92; Harrison v. Field, that of any other deceased joint debtor. 2 Wash. (Va.) 1 36; Weaver v. Shryock, See Voris v. State, 47 Ind. .345, 349, 6 Serg. & R. 262, 264, 265; Missouri 850; Myers v. State, 47 Ind. 293, 297. 663 EQUALITY IS EQUITY. § 411 lite, or settle an estate, property, or fund against which there are a number of separate claimants. One example is that of settling the affairs of an insolvent partnership, cor- poration, or individual debtor in a creditor's suit brought by one on behalf of all other creditors, where the assets are not suflBcient to satisfy all demands in full; the court always proceeds upon the principle that equality is equity, and of apportioning the property pro rata among all the creditors. The principle is carried to such an extent in the settlement of insolvent partnerships, and partnerships where one of the members has died, that firm creditors are compelled in the first instance to resort to the firm assets, and creditors of the individual partners to indi- vidual assets, before either class can have recourse to any balance left remaining of the other kind of fund. A second example is that of marshaling the assets in the administration of the estates of deceased persons. At the common law certain classes of creditors enjoyed a prece- xience over others, and were entitled to be paid in full, «ven to the exclusion of the inferior orders, by the admin- istrator or executor out of the legal assets of the decedent's «state, according to their established priority of right. But a court of equity, having obtained jurisdiction over an administration, regards all debts, in general, as stand- ing upon an equal footing, and as entitled to payment pro rata out of the equitable assets, if the estate is not sufficient to pay them all in full, without any reference to their legal right of priority. In order to attain this result, and to carry out the principle pf equality is equity in administrations, the doctrine of marshaling assets was «stablished. § 411. Abatement of Legacies; Apportionment of Liens; Appointment under Trust Powers; and Coutri. hution among Co-contractors and Co-sureties. — Among the other doctrines derived from the principle that equal- ity is equity as their source are the following: The abate- ment of legacies, whereby a pro rata deduction is made § 411 EQUITY JURISPRUDKNCB. 564 from all legacies of the same class when the assets are insufficient to pay all in full. It is true that the princi- ple is not carried out with absolute rigor in the case of legacies, since two different classes are admitted, — the "general" and the "specific," the latter being entitled to priority of payment. But the deduction is applied to^ all those which belong to the same class, and the leaning is strongly in favor of placing any particular legacy in the "general" class.' The apportionment of the money secured by mortgages or other encumbrances among the various owners of the different parcels into which the mortgaged premises have been divided: Whenever a mortgage or other encumbrance has been placed upon a tract of land, and the tract is subsequently conveyed, sub- ject to the mortgage, in parcels to different owners, or liens or other interests in distinct portions of the land are sub- sequently acquired by different persons, in adjusting the payment of the whole mortgage debt, either voluntarily by way of redemption, or forcibly by way of foreclosure, equity applies, unless some other controlling equitable consideration interfere, the principle of equality; in other words, equity makes a pro rata apportionment among all the owners of parcels and holders of liens or interests. It should be observed, however, that this par- ticular application of the principle is not universal; for in several of the states, on account of other assumed equi- table considerations, a different rule has been adopted. The whole subject is examined in the subsequent chapter on mortgages.* The execution of a power in trust when the donee has failed to act under it : A power in trust partakes so much of the nature of an express active trust, that if the donee upon whom it was conferred fails to make any appointment under it, a court of equity will not suffer the power to wholly fail, but will carry it into effect, in accordance with its own principle of equality.* • [Seeposi, §§ 1135-1143.] 495; 4 Ves. 708; Harding v. Glyn, 1 » [See jmst, §§ 1221-1226.] Atk. 469; Salusbury v. Denton. 3 Kay • Brown V. Higgs, 8 Vea. 570; 5 Ves. & J. 529. 565 EQUALITY IS EQUITY. § 412 Where a power in trust is given to appoint among the members of a designated class, as among "the children" of the donee, and the like, the donee upon whom the power is conferred can appoint in favor of any one of the class, and a court of equity will not interfere with his discretion.' Where the donee, however, fails to make any appointment, and of course makes no selection of a par- ticular beneficiary out of the class, a court of equity will <;arry out the power, under the principle of equality, by dividing the fund subject to the power in equal shares among all the persons composing the designated class.* Finally, the most important doctrine, perhaps, which re- sults from the principle, Equality is equity, is that of con- tribution among joint debtors, co-sureties, co-contractors, and all others upon whom the same pecuniary obligation arising from contract, express or implied, rests. Thjs •doctrine is evidently based upon the notion that the burden in all such cases should be equally borne by all the persons upon whom it is imposed, and its necessary •effect is to equalize that burden whenever one of the par- ties has, in pursuance of his mere legal liability, paid or been compelled to pay the whole amount, or any amount greater than his proportionate share. No more just doc- trine is found in the entire range of equity; and although it is now a familiar rule of the law, it should not be for- gotten that its conception and origin are wholly due to the creative functions of the chancellor.' § 412. Conclusion. — The preceding paragraphs give a sufficient illustration of the principle. Equality is equity; and they demonstrate the fact that a court of equity en- deavors to carry the maxim into operation in the admin- istration of remedies whenever jurisdiction is for any cause obtained over the subject-matter of a controversy. The various doctrines which I have mentioned as origi- ' See cases last cited, and Willis v. 529. [See post, § 1002, as to powers in Kymer, L. R. 7 Ch. Div. 183. trust.] » Willis V. Kymer, L. R. 7 Oh. Div. » [See § 1418.] 183; Salusbury r. Deutou, 3 Kay k J, §§ 413, 414 EQUITY JURISPKUDENCB. 566 nating from this principle, and the cases selected as examples of its operation, will he fully examined in th» Buhsequent chapters of this work. SECTION VI. WHERE THERE ARE EQUAL EQUITIES, THE FIRST IN ORDER OF TIME SHALL PREVAIL. ANALYSIS. S il3. Its application, § 414. Its true meaning; opinion in Rice v. Rice, % 415. Its effect upon equitable doctrines. § 413. Its Application. — The " equities " spoken of in this maxim embrace both equitable estates, interests, and primary rights of property, such as the cestui que trust's estate in any species of trust, the. mortgagee's equi- table interest, equitable liens, the interest of the assignee under an equitable assignment, and the like, and also the purely remedial rights, or rights to some purely equita- ble remedy, to which the distinctive name "equity" has been given by modern judges and text-writers; such, for example, as the equitable right to a reformation. With respect to " equities " considered in this comprehensive manner, and to many legal interests, the maxim, Qwi prior est tempore, potior est jure, is of wide and important appli- cation both in equity and at law. § 414. Its True Meaning — Rice v. Rice. — The true meaning and effect of the principle. When there are equal equities, the first in order of time shall prevail, have often been misunderstood; and its correct signification cannot be better explained than by employing the exact language used by a very able English equity judge, in a recent case,' as follows: " What is the rule of a court of equity * Rice ▼. Rice, 2 Drew. 73. A and the title deeds were delivered t» grantor conveyed land without re- the grantee. Of course a vendor's, eeiving his purchase-money, but the lien at once arose as security for the receipt of it was indorsed on the deed, unpaid price, which was at least valid 567 FIRST IN OBDBR OP TIMB SHALL PREVAIL. § 414 for the determining the preference as between persons having adverse equitable interests? The rule is some- times expressed in this form, As between persons hav- ing only equitable interests, qui prior est tempore, potior est jure. This is an incorrect statement of the rule, for that proposition is far from being invariably true. In fact, not only is it not universally true as between persons having only equitable interests, but it is not universally true even where their equitable interests are of precisely the same nature, and in that respect precisely equal; as in the common case of two successive assignments for a valuable consideration of a reversionary interest in stock standing in the names of trustees, where the second as- signee has given notice [to the trustee] and the first has omitted it.' Another form of stating the rule is this, As between persons having only equitable interests, if their equities are equal, qui prior est tempore, potior est jure. This form of stating the rule is not so obviously incor- rect as the former. And yet, even this enunciation of the rule, when accurately considered, seems to me to involve a contradiction. For when we talk of two persons hav- ing equal or unequal equities, in what sense do we use the term 'equity '? For example, when we say that A has a better equity than B, what is meant by that? It means only that according to those principles of right and jus- tice which a court of equity recognizes and acts upon, it will prefer A to B, and will interfere to enforce the rights of A as against B; and therefore it is impossible (strictly speaking) that two persons should have equal between the grantor and the grantee, of the price indorsed on the deed of and was prior to any equity thereafter conveyance, operated to make the created by the grantee. The grantee latter lien superior to the former, and afterwards borrowed money, and to thus overcame the effect of priority, secure its payment made an equitable The two equities were not equal. In mortgage of the land by a deposit of his opinion the vice-chancellor used the title deeds with the creditor, the language quoted in the text. Held, that as between the vendor's ' Here the second assignee would lien and the lien of the equitable obtain priority over the first: See mortgage, the possession of the title Loveridge t. Cooper, 3 Buss. 30. deeds by the grantee, and the receipt § 414 EQUITY JUKISPEUDENCE. 568 equities except in a case in which a court of equity would altogether refuse to lend its assistance to either party as against the other. If the court will interfere to enforce the right of one against the other on any ground what- ever, say on the ground of priority of time, how can it be said that the equities of the two are equal? i. e., in other words, how can it be said that the one has no better right to call for the interference of a court of equity than the other? To lay down the rule, therefore, with perfect accuracy, I think it should be stated in some such form as this: As between persons having only equitable interests, if their interests are in all other respects equal, priority in time gives the better equity; or, Qui prior est tempore, potior^ est jure. I have made these observations, not, of course, for the purpose of mere verbal criticism on the enunciation of a rule, but in order to ascertain and illus- trate the real meaning of the rule itself. And I think the meaning is this: that in a contest between persons having only equitable interests, priority of time is the ground of preference last resorted to; i. e., that a court of equity will not prefer the one to the other on the mere ground of priority of time, until it finds, upon an exami- nation of their relative merits, that there is no other suffi- cient ground of preference between them, or in other words, that their equities are in all respects equal; and that if the one has on other grounds a better equity than the other, priority of time is immaterial. In examining into the relative merits (or equities) of two parties having adverse equitable interests, the points to which the court must direct its attention are obviously these: the nature and condition of their respective equitable interests, the circumstances and manner of their acquisition, and the whole conduct of each party with respect thereto. And in examining into these points, it must apply the test, not of any technical rule, or any rule of partial application, but the same broad principles of right and justice which 669 FIRST IN ORDER OF TIME SHALL PREVAIL. § 415 a court of equity applies universally in deciding upon contested rights." * § 415. Its Effect. — It follows from this explanation of the principle that when several successive and con- flicting claims upon or interests in the same subject- matter are wholly equitable, and neither is accompanied by the legal estate, which is held by some third • person, and neither possesses any special feature or incident which would, according to the settled doctrines of equity, give it a precedence over the others wholly irrespective of the order of time, — under these circumstances the principle applies, and priority of claim is determined by priority of time.* There are, however, many features ' I add to the foregoing the follow- ing language of another most able •equity judge, Lord Westbury, in the celebrated case of Phillips v. Phillips, 4 De Gex, F. & J. 208, 215: "I take it to be a clear proposition that every conveyance of an equitable interest is an innocent conveyance; that is to say, the grant of a person entitled merely in equity passes only that which he is justly entitled to, and no more. If, therefore, a person seised of an equi- table estate (the legal estate being out- standing) makes an assurance by way of mortgage, or grants an annuity, and afterwards conveys the whole estate to a purchaser, he can grant to the purchaser that which he has, viz., the «state subject to the mortgage or annuity, and no more. The subse- quent grantee takes only that which is left in the grantor. Hence grantees and encumbrancers claiming in equity take and are ranked according to the dates of their securities; and the maxim applies, Qui prior est tempore, potior est jure. The first grantee is potior; that ia, polentior. He has a better and superior — because a prior — equity. The first grantee has a right to be paid first, and it is quite immaterial whether the subsequent encumbrancers, at the time when they took their securities and paid their money, bad notice of the first encum- brance or not." See also Cory ▼. Eyre, 1 DeGex, J. & S. 149, 167, per Turner, L. J.; Newton v. Kewton, L, B. 6 Eq. 135, 140, 141, per Lord Romilly, M. R. ' Brace v. Duchess of Marlborough, 2 P. Wms. 491; Beckett v. Cordley, 1 Brown Ch. 353, 358; Mackreth v. Symmons, 15 Vea. 354; Loveridge v. Cooper, 3 Russ. 30; Peto v. Ham- mond, 30 Beav. 495; Cory v. Eyre, I De Gex, J. & S. 149; Case v. James, 3 De Gex, P. & J. 256; Newton v. Newton, L. R. 6 Eq. 135; Fitzsim- mons tV. Ogden, 7 Cranch, 2; Berry v. Mut. Ins. Co., 2 Johns. Oh. 603; Muir v. Sohenok, 3 Hill, 228; 38 Am. Dec. 633; Cherry v. Monro, 2 Barb. Oh. 618; Van Meter v. McFaddin, S B. Mon. 435; Rexford v. Rexford, 7 Lans. 6; Rowan v. State Bank, 45 Vt. 160; Rooney y. Soule, 45 Vt. 303; Tharpe v- Dunlap, 4 Heisk. 674. One or two simple illustrations of this principle may be proper. If a credi- tor, B, holding a thing in action due from A, should assign the same, for a valuable consideration paid by each, to successive assignees, neither of whom notified the debtor, A, nor the other assignees, as long as such thing in action remained unpaid, the first assignee, as between himself and the debtor. A, on the one side, and the subsequent assignees on the other, would be entitled to compel payment by reason of his priority, since the equities of all the assignees, irrespect- ive of time, would be equal. But it, before receiving notice of any prior assignment, the debtor. A, should be § 416 EQUITY JUKISPRUDENCB. 670 and incidents of equitable interests which prevent the operation of this rule, and which give a subsequent equity the precedence over a prior one, as will be fully shown in the next chapter. The principle embodied in this maxim lies at the foundation of the important doc- trines concerning priorities, notice, and the rights of purchasers in good faith and for a valuable considera- tion, which so largely affect the administration of equity jurisprudence in England, though to a less extent in the United States, and which are discussed in the following chapter. SECTION VII. WHEEE THERE IS EQUAL EQUITY, THE LAW MUST PREVAIL. § 416. Its application. § 417. Its meaning and effects. § 416. Its Application. — This maxim and the one ex- amined in the last preceding section must be taken in connection, in order to constitute the enunciation of a complete principle. The first applies to a certain condi- tion of facts; the other supplements its operation by ap- plying to additional facts by which equitable rights and duties may be affected. The two are in fact counterparts of each other, and taken together, they form the source of the doctrines, in their entire scope, concerning priori- aotified of a subsequent assignment, not the statutes concerning recording and should pay the claim to that interfered with the operation of this assignee, the one thus paid would doctrine, and enabled a subsequent thereby obtain a precedence, since, in mortgagee to obtain a preference by addition to his equitable claim, he means of the record. The doctrine would have obtained the legal title, would still prevail if all the mortgages Again, since in a very large number should be unrecorded. Other illus- of the states the interest of a mort- trations might be given, but these will gagee of lands is purely equitable, sntfice. It is plain that in this coun- unaocompanied by any legal estate, if try the statutory system of recording in those states an owner of land. A, has greatly interfered with the appli- should give successive mortgages upon cation of the principle in cases where it, each for a valuable consideration, it would operate, in England, to de- ■uch mortgages would be entitled to termiue the rights of the parties, a priority in the order of time, had 571 WHBRK THERB IS EQUAL EQUITY. § 417 ties, notice, and purchasers for a valuable consideration and without notice. Any full examination of these two maxims, and explanation of their effects, would, of neces- sity, be a complete discussion of those doctrines, and will, therefore, not be attempted at present, but will be post- poned to a subsequent chapter.' §417. Its Meaning and Effects.— The meaning of the maxim is, if two persons have equal equitable claims upon or interests in the same subject-matter, or in other words, if each is equally entitled to the protection and aid of a court of equity with respect of his equitable in- terest, and one of them, in addition to his equity, also obtains the legal estate in the subject-matter, then he who thus has the legal estate will prevail. This precedence of the legal estate might be worked out by the court of equity refusing to interfere at all, and thereby leaving the parties to conduct their controversy in a court of law, where of course the legal estate alone would be recog- nized.* One of the most frequent and important conse- ' See the next chapter, sections on ing with the order of the court, by "priorities " and "notice." fraudulently misappropriating certain ' Thorndike v. Hunt, 3 De Gex &; J. funds which he held under the other 563, 570, 571; Caldwell v. Ball, 1 trust in favor of B. On discovery of Term Eep. 214; Fitzaimmong v. Ogden, this fact, B. brought a second suit for 7 Oranch, 2, 18; Newton v. McLean, 41 the purpose of reaching snch moneys; Barb. 285. Thorndike v. Hunt, 3 and the only question was, whether B. De Gex & J. 563, 570, 571, is a very could reach the money which had instructive case, illustrating this prin- thus been paid into court. The court ciple; the facts were as follows: A held that he could not, because, the certain person, H., was trustee of two equities of T. and of B. being otherwise entirely distinct trusts, — one in favor equal, T. had obtainsd the benefit of of Thorndike, the other in favor of the legal title on his side. The rea- Browne. In a suit brought by the sons given for the decision were as C6s Buch intention was expressed. In the leading case which illustrates this rule a person in marriage articles cove- nanted to purchase lands of the annual value of two hun- dred pounds, and to settle them upon his wife for her life^ and then upon his first-born son in tail, etc. He pur- chased lands of greater value, but made no settlement of them, and on his death they descended to his eldest son as heir at law. This son then brought suit against his father's representatives, to compel other lands to the value of two hundred pounds per annum to be purchased with the personal property of the estate, and to be set- tled upon him in pursuance of the covenant. It waa held, however, that the lands which were purchased by the father, and suffered to descend to the son, should be regarded as a satisfaction of the covenant; that a court of equity would act upon the presumption that the purchase was made by the father with the intent of performing the duty laid upon him by his covenant.' § 422. Trust Resulting from Acts of a Trustee. — Another and far more important application of the prin- ciple that equity ingputes an intention to fulfill an obliga- tion is seen in the following well-settled rule concerning the creation of a resulting trust, under certain circum- stances, by the acts of the trustee or other person stand- ing in fiduciary relations: Whenever a trustee or other person in a fiduciary position, acting apparently within 'Wilcooks V. Wilcooks, 2 Vern. Smith,.'? Atk. 323; Wellesleyv.Wellea- SSS; 2 Lead. Cas. Eq., 4th Am. ed., ley, 4 Mylne & C. 681. Where th» 833. This rnle is applied in the same lands thus purchased are of less valu» manner where a person having no than those covenanted to be pur- real estate covenants to convey and chased or to be conveyed and settled, settle, and he afterwards purchases, they will be considered as purchased but does not convey nor settle, the in part performance of the covenant: purchase will be presumed made with Lechmere v. Earl of Carlisle, 3 P. the intent to fulfill, and the lands V7ms. 211; Lechmere v. Lechmere^ thus purchased will be treated as sub- Cas. t. Talb. 80; Snowdeuv. Snowden, ject to the covenant, and dealt with 1 Brown Ch. 582; 3 P. WmB. 228^ 10 as to carry it into effect: Deacon T. note, [See §§ 578 et seq.] 577 IMPUTES INTENTION TO FULFILL OBLIGATION. § 422 the scope of his powers, — that is, having authority, by virtue of his trust or other fiduciary relation, to do what he does do, — purchases land or personal prop- erty with trust funds, or funds in his hands impressed with the fiduciary character, and takes the title to such property in his own name, without any declaration of a trust, a trust with respect to such property at once results in favor of the original cestui que trxist or other benefici- ary; the purchaser becomes with respect to such property a trustee. Equity regards such a purchase as made in trust for the person beneficially interested, independently of any imputation of fraud or fraudulent design, because it assumes that the purchaser intended to act, and was acting, in pursuance of his fiduciary duty, and not in violation thereof. This doctrine is one of wide opera- tion, and is used by courts of equity with great efficiency in maintaining and protecting the beneficial rights of property. It has been applied to trustees proper, to executors, and administrators, directors aud managers of corporations, guardians of infant wards, guardians or committees of lunatics, agents using moneys of their principals, partners using partnership funds, husbands purchasing property with funds belonging to the separate estate of their wives, and to all persons who stand in fiduciary relations towards others.' In order that this rule may apply, however, it must be made to appear with reasonable certainty that trust or other fiduciary funds were actually used in making the purchase. A court of • As applied to trttslea: Deg v. Deg, y. Dougherty, 4 N. J. Eq. 406; Ban- 2 P. Wms. 4Uj Lane v. Dighton, croft v. Couaen, 13 Allen, 50. Ta Amb. 409; Perry v. Phelips, 4 Yea. committees of lunalice: Reid v. Pitch, 107; 17 Ves. 173; Schlarfer v. Corson, 11 Barb. 399. To agents: Robb's Ap- 32 Barb. 510; Ferris v. Van Vechten, peal, 41 Pa. St. 45; Bridenbacker v. 73 N. Y. 113; McLaren v. Brewer, 51 Lowell, 32 Barb. 10. To partners: Me. 402; Hancock v. Titus, 33 Miss. Smith v. Burnham, 3 Sum. 435; Oli- 224. To executors and administrators; ver v. Piatt, 3 How. 401; Homer v. White v. Drew, 42 Me. 561; Stow v. Homer, 107 Masa. 85; Settembre v. Kimball, 28 111. 93; Barker v. Barker, Putnam, 30Cal. 490; Jenkins v. Frink, 14 Wis. 131. To directors or managers iSQ Cal. 586; 89 Am. Dec 134.' [Se» ^corporations: Church v. Sterling, 16 also §§ 687, 1049.J Conn. 388. To guardians: Jobuaou 1 Bq. Jan.— S7 §§ 423, 424 EQUITY JURISPRUDENCE. 578 equity, in order to raise a resulting trust, will not assume, from the mere fact that the purchaser had or might have had trust moneys in his hands, that he used them in paying for the property purchased, in the absence of evidence clearly showing such use by him.' SECTION X. EQUITY WILL NOT SUFFER A WRONG WITHOUT A REMEDY. ANALYSIS. § 423. Its general meaning and effects. § 424. Limitations upon it. § 423. Its General Meaning. — This principle, which is the somewhat restricted application to the equity juris- prudence of the more comprehensive legal maxim, Uhi jus ihi remedium, — wherever a legal right has been in- fringed, a remedy will be given, — is the source of the entire equitable jurisdiction, exclusive, concurrent, and auxiliary. A full treatment of it, including an explana- tion of its scope and meaning, with its various applica- tions and illustrations, would simply be a restatement of all the doctrines and rules concerning jurisdiction which have already been discussed in the first part of this work. No such unnecessary repetition will be attempted. It is enough that the principle finds its development in the whole body of doctrines and rules which define and regu- late the equitable jurisdiction as distinguished from the jurisdiction at law. § 424. Its Limitations. — There are, however, certain important limitations upon the generality of the maxim which may properly be stated here, although they have all been referred to in the Introductory Chapter, where the nature of equity is described, or in the chapters of •Ferris y. Van Vechten, 73 N. Y. settled, but showing the necessity of 113. This is a very instructive decis- proof clearly showing the appropria- ion, admitting the doctrine as well tion of the fiduciary funds. 579 WILL NOT SUFFER WRONG WITHOUT EEMEDT. § 424 Part First, where the doctrines concerning the exclusive and concurrent jurisdiction are explained. The first of these limitations is, that equity cannot interfere to give any remedy, unless the right in question, the invasion of which constitutes the wrong complained of, is one which comes within the scope of juridical action, of juridical events, rights, and duties. The right must belong to the purview of the municipal law, — must be one which the municipal law, through some of its departments, recog- nizes, maintains, and protects. Equity does not attempt, any moTe than the law, to deal with obligations and cor- responding rights which are purely moral, which properly and exclusively belong to the tribunal of conscience.^ The second limitation is, that equity does not interfere to rem- edy any wrong where the right and the remedy, assuming that the right falls within the purview of the municipal law, both completely belong to the domain of the law. In order that the principle may apply, one of three facts must ' It is upon this ground that where of bonds issned by the city alleged a right, undoubtedly belonging to the in his bill that he had obtained judg- domain of the municipal law, is strictly ment thereon against the city, and legal, equity will not interfere merely had also obtained a writ of mandamtts because, under the particular ciroum- to compel the city officers to raise and stances of any case, every legal means apply funds to satisfy the judgment, and instrument of obtaining relief has but had wholly failed of obtaining any been tried and exhausted without redress. He prayed that the taxable avail. It is plain that if equity should property of the citizens, which he interfere in any such case, it could claimed was a fund for the payment only be on the ground that the party of municipal debts, might be subjected had a moral right; that he was morally to the payment of his judgment, and entitled to redress; because on the that the marshal might be empowered assumption, the right, being strictly to seize and sell so much of such prop- legal, comes within no recognized head erty as should be necessary for that of the equitable jurisdiction, and the purpose. The court refused relief on only possible reason for interference the ground that the demand was by a court of equity would be that, wholly a legal one, and that the proper the legal remedies proving absolutely remedy was by mandamus, and the fruitless, and the party having no mere fact that the mandamus had other means of redress, he has a claim failed under the particular circum- upon a court of equity based upon the stances of this case did not give a, intrinsic righteousness of his demand, court of equity any jurisdiction. The To such a purely moral claim equity court said a court of equity " cannot does not and cannot respond. See Fin- assume control over that large class of negan v. Fernandina, 15 Fla. 379; 21 obligations called impe9/ec< obligations. Am. Eep. 292; Rees v. City of Water- resting upon conscience and moral town, 19 Wall. 121; Heiue v. Levee duty only, unconnected with legal ob- Comm'rs, 19 Wall. 658. In Rees v. ligations." The decisions in the other Watertown, 19 Wall. 121, a holder cases above cited are to the same effect. § 425 EQUITY JUKISPRUDENCB. 580 exist, viz., either, — 1. The right itself must be one not rec- ognized as existing by the law; or 2. The right existing at the law, the remedy must be one which the law cannot or does not administer at all; or 3. The right existing at the law, and the remedy being one which the law gives, the remedy as administered by the law must be inadequate^ incomplete, or uncertain. Of these three alternatives, the first and second denote the exclusive jurisdiction of equity;, the third, the concurrent jurisdiction. The third limita- tion upon the principle is, that it does not apply where a party, whose case would otherwise come within one of the three alternatives above mentioned, has destroyed or lost or waived his right to an equitable remedy by his own act or laches. With these limitations upon its operation, the principle has been developed into the vast range of the equitable jurisdiction, which, considered in its entirety, gives, — 1. Legal remedies for the violation of legal righta in a more certain, complete, and adequate manner than the law can give; 2. Equitable remedies for the violation of legal rights, which the law has no power to give with its means of procedure; and 3. Remedies, either equitable or legal in their nature or form, for the violation of rights of which the law takes no cognizance, — rights which the law does not recognize as existing, and which it either cannot or does not protect and maintain. SECTION XI. EQUITY FOLLOWS THE LAW. ANALYSTS. S§ 425, 426. Twofold meaning of the principle. S 425. First, in obeying the law: Heard v. Stamford, per Lord Chancel- lor Talbot. S 426. Second, in applying certain legal rules to equitable estates: Cow- per y. Cowper, per Sir J. Jekyll, M. B. f 427. Operates within very narrow limits. § 425. Twofold Meaning — First. In Obeying the Law. — This. maxim in its Latin form, ^quitas sequitur legem. 681 EQUITY FOLLOWS THE LAW. § 425 was frequently quoted by the earlier chancellors before the extent of the equitable jurisdiction had been fully ■determined, and an importance, even a supreme and con- trolling efficacy, has been attributed to it by some writers which it does not and never did possess. So far as it can truly be called a general principle, guiding and regulat- ing the action of equity courts, its meaning and effect are now, settled within well-defined and narrow limits. As a practical rule, and not a mere verbal theory, it is wholly restrictive in its operation, and its only object is to keep the jurisdiction of equity from overstepping the boun- daries which have been established by the prior course of adjudication. With this respect the maxim has a double import and operation: First. Equity follows the law, in the sense of obeying it, conforming to its general rules and policy, whether contained in the common or in the statute law. This meaning of the principle was very clearly stated by Lord Chancellor Talbot in the following passage: " There are instances, indeed, in which a court of equity gives a remedy, where the law gives none; but where a particular remedy is given by the law, and that remedy bounded and circumscribed by particular rules, it would be very improper for this court to take it up where the law leaves it, and to extend it further than the law allows." ' It should be observed, however, that equity had not, in developing its jurisdiction, invaded the par- ticular doctrine of the common law which was involved in this case; but it had certainly disregarded other rules as positive and well settled, in its previous course of decision. ' Heard v. Stamford, Cas. t. Talb. and left with her husband. This rule 173. In this case the chancellor was was grossly unjust in both of its asked to disregard a well-settled doc- branches. Defendant's wife was in- trine of the common law. By the then debted at the time of the marriage, existing law, if a man married he at and brought her husband a large for- once became personally liable for all tune, but died soon after. One of her his wife's antenuptial debts; but this creditors brought this suit against the liability ceased upon the wife's death, husband, urging that he should be If the creditor had not recovered judg- held liable in equity, under the circnm- meat at the time the wife died he was stances. The chancellor held that he remediless, no matter how large a for- was not liable, and refused to decree tone the wife may have brought to against a settled rule of the lav § 426 EQUITY JURISPEUDENCE. 582 § 426. Secondly. In Applying Legal Rules to Equitable Estates. — Equity follows the law in the sense of applying to equitable estates and interests some of the same rules by which at common law legal estates and interests of a similar kind are governed. Equity, having by the exer- cise of its creative power called into existence the system of equitable estates, determined that these estates should partake, to a certain extent, .of the quality of the corre- sponding legal estates. Thus a use in fee was held to descend according to the same rules as a legal estate in fee, and the husband was entitled to curtesy in such a use. It should be carefully observed, however, that courts of equity carried out the principle in this its second sense only to a partial and quite limited extent. A care- ful examination will show, I think, that the only impor- tant rules of law adopted by the early chancellors to regulate equitable estates were those concerning descent and inheritance} The feudal incidents of legal estates were held not to apply to uses; equitable estates in fee could be conveyed without livery of seisin, and could be devised by will, and were not subject to dower. It is an evident error to say that equitable estates were regulated by all the rules of the law applicable to the corresponding legal estates. This second sense in which the principle is understood was admirably stated in a celebrated opinion of Sir Joseph Jekyll, of which the following is the im- portant passage: "The law is clear, and courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and con- fusion 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 consuUa patrum, qui leges juraque servat. And as it is said in ' The early chancellors, in dealing that equitable estates in fee were not with uses and other equitable estates, subject to dower, although they were plainly shrank from interfering with to curtesy; perhaps this distinction the legal rules of descent and inheri- was not displeasing to the bodr of tance, which were so dear to the land-owners, landed proprietors. Yet they held 583 EQUITY FOLLOWS THE LAW. § 427 Rooke's Case* that discretion is a science not to act ar- bitrarily according to men's wills and private affections, so the 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, follows 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 grounds or principles thereof, as has been sometimes ignorantly im- puted to this 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 in- trusted with."* Some of the sentences of this often- quoted passage must, I think, be accepted only with considerable modification. Taken literally, they certainly contradict a large portion of the established equitable jurisdiction, and of the settled doctrines of the equity jurisprudence. The same twofold import of the principle has also been expressed in the following formulas: 1. Equity is governed by the rules of the law as to legal estates, interests, and rights. 2. Equity is regulated by the analogy of such legal interests and rights, and the rules of the law affecting the same, in regard to equitable estates, interests, and rights, where any such analogy clearly § 427. Operates within Very Narrow Limits. — The maxim is, in truth, operative only within a very narrow range; to raise it to the position of a general principle would be a palpable error. Throughout the great mass of its jurisprudence, equity, instead of following the law, either ignores or openly disregards and opposes the law. As was shown in that portion of the Introductory Chapter ' Rooke's Case, 6 Coke, 99 b. estate in fee descended to a cousin of ' Cowper V. Cowper, 2 P. Wms. 720, the whole blood, instead of to a 752. In this case the court reluctantly brother of the half-blood of the de> adhered to the legal canon of descent ceased owner. ■which prefers the whole to the half • Snell'g Equity, 14. blood, and held that an equitable § 428 EQUITY JUEISPKUDENCB. 584 which deals with the nature of equity, one large division of the equity jurisprudence lies completely outside of the law; it is additional to the law; and while it leaves the law concerning the same subject-matter in full force and efficacy, its doctrines and rules are constructed without any reference to the corresponding doctrines and rules of the law. Another division of equity jurisprudence is directly opposed to the law which applies to the same subject-matter; its doctrines and rules are so contrary to those of the law, that when they are put into operation the analogous legal doctrines and rules are displaced and nullified. As these conclusions cannot be questioned, it is plain that the maxim, Equity follows the law, is very partial and limited in its application, and cannot, like all the other maxims discussed in this chapter, be regarded as a general principle. SECTION XII. EQUITY ACTS IN PERSONAM, AND NOT IN REM. ANALYSIS, I 8 428. Origin and original meaning of this principle, § 429. In what sense equitable remedies do operate in rem. {§ 430, 431. The principle that courts of equity act upon the conscience of a party explained. § 431, The same, per Lord Westbury. • § 428, Origin and Original Meaning. — I have already had occasion, while describing the nature of equity and of equitable remedies in a former chapter, to explain the origin of this maxim, and the leading conception which it originally embodied. In the infancy of the court of chancery, while the chancellors were developing their system in the face of a strong opposition, in order to avoid a direct collision with the law and with the judg- ments of law courts, they adopted the principle that their own remedies and decrees should operate in personam upon defendants, and not in rem. The meaning of this 685 EQUITY ACTS IN PERSONAM, AND NOT IN REM. § 428 simply is, that a decree of a court of equity, while de- claring the equitable estate, interest, or right of the plain- tiff to exist, did not operate by its own intrinsic force to vest the plaintiff with the legal estate, interest, or right to which he was pronounced entitled; it was not itself a legal title, nor could it either directly or indirectly trans- fer the title from the defendant to the plaintiff. A decree of chancery spoke in terms of personal command to the defendant, but its directions could only be carried into effect by his personal act. It declared, for example, that the plaintiff was equitable owner of certain land, the le- gal title of which was held by the defendant, and ordered the defendant to execute a conveyance of the estate; his own voluntary act was necessary to carry the decree into execution; if he refused to convey, the court could en- deavor to compel his obedience by fine and imprisonment. The decree never stood as a title in the place of an actual conveyance by the defendant; nor was it ever carried into effect by any officer acting in the defendant's name. It has also been shown that this original character of equi- table remedies and decrees has been greatly modified by statute in the United States. Under this legislation de- crees are made to operate of themselves, wherever neces- sary, as a sufficient title; they either transfer the estate by their own force, without any actual conveyance from the defendant, or they are carried into execution by offi- cers purporting to act in the defendant's name and stead. Side by side with this most important statutory change, the original personal character of the remedies is still left wherever the alteration would be impossible, as, for example, wherever a decree simply restrains the defend- ant from doing any specified act, and wherever the juris- diction is exercised with reference to a subject-matter situated beyond the territorial cognizance of the court.* ' See Penn v. Lord Baltimore, 1 that equity acta in personam, and not Ves. Sr. 444; 2 Lead. Cas. Eq., 4th in rem, especially with reference to its Am. ed., 1806, and notes. [For a mora effect upon the different kinds of equi- •detailed exposition of the doctrine table remedies, see j)os<, §§ 1317, 1318.] §§ 429, 430 EQUITY JURISPRUDENCE. 586 § 429. In What Sense Equitable Remedies do Operate in Rem. — It has also been shown, when explaining the nature of equitable remedies, that they generally are, in another special sense, essentially in rem, and not in per- sonam. Equitable remedies very seldom consist of per- sonal judgments, general recoveries payable out of the defendant's assets. The fundamental theory of the reme- dial action of equity is, that it deals with specific and identified land or chattels, or specific funds, whether con- sisting of securities and other things in action or of money, and it seeks to determine, declare, and maintain the estates, interests, and rights of the litigant parties in and to such identified lands, chattels, or funds. § 430. Operation of Equity upon the Conscience of a Party. — There is still a third aspect of the remedial ac- tion of equity which should be accurately understood, since it lies at the foundation of much of the dealing of the court of chancery with legal estates and rights, and especially those conferred by the positive provisions of statutes. I mean the most important principle, that equity acts upon the conscience of a party, imposing upon him a personal obligation of treating his property in a manner very diff"erent from that which accompanies and is permitted by his mere legal title. Whenever a legal estate is, by virtue of some positive rule of either the common or statute law, vested in A, but this legal estate in A is of itself a violation of some settled equi- table doctrines and rules, so that B is equitably entitled to the property or to some interest in or claim upon it, equity grants its relief, and secures to B his right, not by denying, or disregarding, or annulling, or setting aside A's legal estate, but by admitting its existence, by recog- nizing it as wholly vested in A, and then by working upon A's conscience, and imposing upon him the duty of holding and using his legal title for B's benefit, so that, in the ordinary language of the courts, he is treated as a trustee for B. One or two familiar examples will illus- 587 EQUITY ACTS IN PERSONAM, AND NOT IN REM. § 430 trate the working of this fundamental principle. A tes- tator has given certain lands to A by a will properly executed; but A procured the devise by wrongful repre- sentations made to the testator, and the lands should, by the doctrines of equity, belong to B. The statute of wills, however, is peremptory in its prescribed mode of execut- ing a will; there can be no will without conforming to the statutory requirements. Equity does not attempt to over- rule the statute; it admits the validity of the will, and the legal title vested in A, but on account of A's wrongful conduct in procuring the devise to himself, it says that he cannot conscientiously hold and enjoy that legal title for his own benefit, and imposes upon his conscience the obligation to hold the land for B's benefit, as the equi- table owner thereof; and then arises the further obliga- tion upon his conscience to perfect and complete B's equitable ownership by a conveyance.' In exactly the same manner the equity of a party is worked out in all those cases where the peremptory provisions of the stat- ute of frauds stand in the way of any legal right or claim, as in the specific enforcement of a verbal contract for the sale of land, which has been part performed by the plain- tiff. Another illustration of the principle may be seen in the doctrine established by courts of equity concerning the effect of the registry or recording acts. These stat- utes declare, in general terms, and without any exception,, that a subsequent grantee or mortgagee who first puts his deed or mortgage upon record shall thereby acquire the precedence over a prior unrecorded conveyance. Courts of equity have added the rule that if the subsequent party, who thus obtains the legal benefit of a record, has notice, his recorded instrument shall still be subordinate to the prior unrecorded conveyance of which he was charged with notice. In giving this effect to a notice, the courts of equity do not assume to nullify the provis- ions of the recording act; they admit that a subsequent » [See post, §§ 919. 1054.] § 431 EQUITY JURISPRUDENCE. 588 grantee has, by means of his record, obtained the com- plete legal title, which cannot be directly set aside nor disturbed; but they say that the notice of the prior con- veyance makes it unconscientious for him to hold and enjoy that legal title for his own benefit, and they impose upon his conscience the obligation of holding it for the benefit of the prior unrecorded grantee.' § 431. This principle which I have attempted to explain and illustrate in the preceding paragraph, and which underlies a very large part of the remedial action of equity, was stated with his usual clearness and accu- racy by Lord Westbury in the following passage: " The court of equity has, from a very early period, decided that even an act of Parliament shall not be used as an in- strument of fraud; and if in the machinery of perpetrat- ing a fraud an act of Parliament intervenes, the court of equity, it is true, does not set aside the act of Parliament, but it fastens on the individual who gets a title under that act, and imposes upon him a personal obligation, because he applies the act as an instrument for accomplishing a fraud. In this way the court of equity has dealt with the statute of wills and the statute of frauds."* Although Lord Westbury here speaks only of a case where the equi- table rights of one person arise from the fraud of another who has thereby obtained the legal estate, yet the prin- ciple applies, whatever be the grounds and occasion of the equitable interests and claims which are asserted in opposition to the one having the legal title.* ' [See §§ 659-665.] a man having an estate agrees to sell ' MoCormick v. Grogan, L. B. 4 it, or undertakes to grant an interest H. L. 82, 97. This case was oonoern- in it, or a charge upon it, for a valu- ing a devise which had been obtained able consideration, and afterwards, by fraud. disregarding the bargain he has made, ' In the very recent case of Grreavea conveys to a third person, or so deals V. Tofield, L. R. 14 Ch. Div. 563, 577, with it by bargain with a third per- which arose upon the effect of a re- son that he is incompetent to convey cording act, and of actual notice to a the estate or grant the interest to the subsequent encumbrancer who ob- first which he had agreed to do, and tained the first registry, Bramwell, the third person has all along had L. J., stated the principle as follows: notice of the first contract, the con- "I understand the authorities to have science of the second purchaser is af- established this beyond dispute, that if fected, and he cannot retain the estate 589 EQUITY ACTS IN PERSONAM, AND NOT IN REM. § 431 without giving the person who en- tered into the tirst contract that right in it for which he had stipulated, and if necessary, he mast join in a convey- ance of the estate, if the first person was a purchaser, or he must join in executing a charge, if it was a charge that was to be executed, or a lease, if it was a lease to be granted. I under- stand the authorities further to estab- lish this, that that principle is not affected by those acts of Parliament which require registration in order to give or to prevent a priority, but that the conscience of the second pur- chaser, as I haTe called him, is equally affected, and that the intention of the legislature in such acts as those I have reterred to was to afford a protection to persons whose consciences were not affected, and not to give the second purchaser whose conscience was af- fected an opportunity of joining in the commission of that which was a breach of contract and a wrong to the first person who made the bargain." This is a clear statement of the principle, •nd one would have supposed that the very statement would have carried conviction of its essential justice. But the observations added by Mr. Justice Bramwell, in which he ex- presses a strong dissent from thia principle, and condemns other famil- iar principles of equity which have been so long and so firmly established that they may be regarded as the foundations of its jurisprudence, show very clearly the danger to be appre- hended from associating purely law judges in the administration of equity. His criticisms are trivial, and his reasoning is weak, but even such criticism and reasoning coming from the bench may, in time, undermine the whole system of equity. The danger was pointed out at the time when the judicature act was passed in England; it tias been realized in some of the states of our own country, where equity and law have been com- bined, in which, beyond a doubt, equity, as a system, is being sap- planted by the law as administered from the bench. §432 EQUITY JUBISPKUDENOB. 590 CHAPTER 11. CERTAIN DISTINCTIVE DOCTRINES OF EQUITY JURISPRUDENCE. §432. £§ 433-447. §433. §434. §§ 435, 436. §436. §§ 437-445. §437. §438. §439. §§ 440-445. §440. §§ 441-445. §441. §442. §443. §444. §445. §446. §447. i 448-460. i 449-458. §450. §451. §452. SECTION I. CONCERNING PENALTIES AND FORFEITURES. ANALYSIS. Questions stated. Penalties; equitable relief against. General ground and mode of interference. Form of relief; when given at law. What are penalties. To secure the payment of money alone. Stipulations not penalties. Stipulations in the alternative. Ditto, for the reduction of an existing debt npon prompt payment. Ditto, for accelerating payment of an existing debt. Ditto, for "liquidated damages." "Liquidated damages " described in general. Rules determining between liquidated damages and penalties. 1. Payment of a smaller sum secured by a larger. 2. Agreement for the performance or non-performance of a single act. 3. Agreement for the performance or non-performance of several acts of different degrees of importance. 4. The party liable in the same amount for a partial and for a complete default. 5. Stipulation to pay a fixed sum on default in one of several acts. Specific performance of a contract enforced, althongh a penalty is attached; party cannot elect to pay the penalty and not per- form. Otherwise as to stipulation for liquidated damages. Of forfeitures. When equity will relieve against forfeitures. General ground and extent of such relief. Relief when forfeiture is occasioned by accident, fraad, mistake, surprise, or ignorance. No relief when forfeiture is occasioned by negligence, or is will* ful. 591 CONCERNING PENALTIES AND FORFEITURES. § 433 §§ 453, 434. Relief against forfeitures arising from covenants in leases. § 455. Ditto, from contracts for the sale of lands. § 456. Ditto, from other special contracts. § 457. Ditto, of shares of stock for non-payment of calls. § 458. Ditto, when created by statute. §§ 459, 4ti0. Equity will not enforce a forfeiture. § 432. Questions Stated. — In this chapter I purpose to discuss certain peculiarly equitable doctrines which, to a greater or less extent, run through and affect the en- tire system of equity jurisprudence. As neither of them is confined in its operation to any single equitable estate or interest, nor to any one equitable remedy, it seems expedient, in order to avoid unnecessary repetitions, that they should be treated of in a preliminary division by themselves. Each of them may be, and is, applied to . several different equitable estates or interests, and may be carried into effect by means of several different equitable remedies; and they may all, therefore, be considered as general, although not perhaps universal. Furthermore, all these doctrines are distinctively equitable in their nature; they are peculiar to the equity system of jurisprudence, and, so far as they go, serve to distinguish it from the law. The particular doctrines which will be treated of in the sections of this chapter are those concerning pen- alties and forfeitures, election, satisfaction, priorities, no- tice, performance, and the like. In the present section I shall examine the doctrine concerning penalties and forfeitures, and shall treat, in order, first, of penalties, and second, of forfeitures. § 433. Penalties — Ground and Mode of Interference. — The true ground of equitable interposition and relief in cases of penalties and forfeitures which might be en- forced at law was stated by Lord Macclesfield, in the leading case of Peachy v. Duke of Somerset, to be "from the original intent of the case, and the court can give a party, by way of recompense, all that he expected or desired." He confined the interference of equity, however, to those cases in which the penalty is intended only to secure the § 433 EQUITY JUlilSPRUDENCB. . 592 payment of money.' The doctrine was soon extended, sa that it embraces cases where the penalty ia used not merely to secure a money payment, but as a security for the performance of some collateral act.' In its most gen- eral scope and operation the doctrine may be stated as follows: Wherever a penalty or a forfeiture is used merely to secure the payment of a debt, or the perform- ance of some act, or the enjoyment of some right or benefit, equity, considering the payment, or perform- ance, or enjoyment to be the real thing intended by the agreement, and the penalty or forfeiture to be only an accessory, will relieve against such penalty or forfeiture by awarding compensation instead thereof, proportionate to the damages actually resulting from the non-payment, or non-performance, or non-enjoyment, according to the. stipulations of the agreement. The test which deter- mines whether equity will or will not interfere in such cases is the fact whether compensation can or cannot be adequately made for a breach of the obligation which is thus secured. If the penalty is to secure the mere pay- ment of money, compensation can always be made, and a court of equity will relieve the debtor party upon his paying the principal and interest. If it be to secure the performance of some collateral act, and compensation for a non-performance can be made, a court of equity will ascertain the amount of damages, and relieve upon their payment." It is a familiar doctrine, therefore, that if the • Peachy v. Duke of Somerset, 1 some one of these heads, it may have- Strange, 447. been claimed that the jurisdiction over ' Sloman v. Walter, 1 Brown Ch. penalties belonged to the head of acci- 418, per Lord Thurlow. The doctrine dent. But it is evident that this i» of equitable interference to relieve not the true source of the jurisdiction; against penalties and forfeitures has there can be no pretense of any acci- been described and discussed by some dent in the execution of agreement* ivriters as a branch of the jurisdiction containing penalties. The doctrine in cases of accident. In very ancient has n deeper foundation in universal times, when the powers of the court principles of right, as shown in the of chancery were restricted by the preceding chapter, section II. language of the royal decree to certain '2 Lead. Ca-s. Eq., 4th Am. ed., specified heads, as good faith, con- 2014, 2023, 2044, and notes; Key- science, fraud, mistake, and accident, nolds y. Pitt, 19 Ves. 140, and cases and it was necessary that every new cited in the two following notes; Bow- •xercise of power should be referred to ser v. Colby, 1 Hare, 128; Gregory T. 693 CONCERNING PBNALTIES AND FORFEITURES. § 434 penalty is inserted to secure the payment of a pecuniary obligation, relief against it will be granted to the debtor upon his payment of the real amount due and secured, together with interest and costs, if any have accrued.' Where the penalty is to secure the performance of some collateral act or undertaking, equity will interpose, if adequate compensation can be made to the creditor party. The original practice in such cases was for the court of equity to retain the bill, direct an issue to ascer- tain the amount of damages, and to grant relief upon payment of the damages thus assessed by the jury.* By the more modern practice the court of equity would doubtless determine the amount of damages itself, with- out the intervention of a jury. §434. Form of Relief. — While the two jurisdictions at law and in equity were kept distinct, although perhaps given to the same tribunal, the form of the remedy in which relief was obtained against a penalty was that of a suit brought by the debtor party to procure the agree- ment to be surrendered up and canceled, or the forfeiture perhaps to be set aside, upon payment of the debt or damages; and this decree would often be accompanied by an injunction restraining an action at law upon the agreement brought or threatened by the creditor party. Under the modern legislation, and especially under the reformed procedure, the rights of the debtor party would Wilson, 9 Hare, 683; Bracebridge v. N. Y. Sup. Ct. 215; Bowen v. Bowen, Buckley, 2 Price, 200; Nokea v. Gib- 20 Conn. 126; Carpenter v. Westoott, bon, 3 Drew. 681; Bargent v. Thorn- 4 R. I. 225; Walling v. Aiken, 1 Me- son, 4 Giff. 473; Hagar v. Buck, 44 Mull. Eq. 1; Moore v. Platte, 8 Mo. Vt. 285; 8 Am. Eep. 368; Hancock v. 467; Bright v. Rowland, 3 How. (Miss.) Carlton, 6 Gray, 39; Thompson v. 398. Whipple, 5 B^ I. 144; Walker v. « Hardy v. Martin, I Brown Ch. 419, Wheeler, 2 Conn. 299; Michigan St. note; 1 Cox, 26; Benson y. Gibson, 3 Bank t. Hammond, 1 Doug. (Mich.) Atk. 395; Errington v. Arnesly, 2 527; Giles v. Austin, 38 N. Y. Sup. Brown Ch. 341, 343; Skinner v. Dayton, Ct. 215; [62 N. Y. 486.1 2 Johns. Ch. 534, 535; Bowen y. Bowen, » Elliott V. Turner, 13 Sim. 477; In 20 Conn. 127; Gould y. Bugbee, 6 re Dagenham Dock Co., L. R. 8 Ch. Gray, 371, 375; Hagar v. Buck, 44 Vt. 1022; Skinner v. Dayton, 2 Johns. Ch. 285; 8 Am. Rep. 368; Pittsburg R. R. 635; 17 Johns. 357; Deforest v. Bates, v. Mt. Pleasant R. R., 76 Pa. St. 481, J Edw. Ch. 394; Giles v. Austin, 38 490; Haekett y. Alcock, 1 Call, 463. 1 Eq. Jub.— S8 §§ 435, 436 EQUITY JURISPKUDENCB. 694 be protected, and the relief obtained, without any sepa- rate suit in equity, but by an equitable defense set up in the action at law by which the creditor sought to enforce the literal terms of the agreement. It has, however, be- come unnecessary, in many instances, to invoke the purely equitable jurisdiction in order to avoid penalties. The equitable doctrine, as above described, has to a consider, able extent been incorporated into the law, partly as the result of statute, and partly from the gradual develop- ment of equitable principles in the common law. What- ever be the true explanation, the rule is now very general, even if not universal, that a recovery in actions at law upon contracts which contain an express stipulation for a penalty is limited to the actual debt due, or the actual damages sustained.' The law courts have not, however, gone to the same length in adopting the equitable prin- ciple in cases of forfeiture. §435. Penalties Defined. — Such being the general doctrine, the important and practical inquiry in the vast majority of cases is, What are the distinctive features of a penalty? or. What kind of stipulation or provision in an agreement amounts to a penalty, so that it may come within the scope of the equitable doctrine? When the stipulation is intended to secure merely the payment of money, the test is easy and plain, and well established. When it is designed to secure the performance of some collateral act, the question is much more difficult to answer, and involves a statement of the differences be- tween penalties and provisions for the payment of " liqui- dated damages." The question what is and what is not a penalty I now proceed to examine. § 436. To Secure the Payment of Money Alone. — Where the act secured to be done is merely the payment ' Tn most of the states the jndg- whole sum mentioned in the penalty, ment at law is limited to the amount but with a provision that it is to be of debt or damages actually due or satisfied by a payment of the actual sustained; in a few, however, the debt or damages, judgment is formally entered for the S95 CONCERNING PKNALTIE3 AND FORFEITURES. § 436 •of money, the test is simple and well established. It may be regarded as a rule of universal application, that if a party for any reason is liable to pay, or binds himself to pay, a certain sum of money, and adds a stipulation to the effect that in case such sum shall not be paid at the time agreed upon he shall then be liable to pay, or be- come bound to pay, a larger sum of money, the stipulation to pay the larger sum is invariably and necessarily a penalty. Of course, in this proposition it is understood that the " larger sum " is not simply the lawful interest accruing upon the principal actually due. The same L. E.. 2 Eq. 221, 224, 225, after the passage quoted in the note- per Lord Romilly, M. R. under the preceding paragraph, pro- ' Thompson V. Hudson, L. R. 4H. L. ceeded as follows: "It is equally clear, 1; reversing L. R. 2 Eq. 612; L. R. 2 upon the other hand, that where ther» Ch. 255. The agreement in this case is a debt due, and an agreement is en- was the same as described in the text; tered into at the time of that debt hav- a certain sum was due, and the cred- ing become due, and not being paid, itor agreed to take a, less sum in satis- in regard to further indulgence to b» faction if it was secured by mortgage conceded to the debtor, or further time in a specified manner and was paid on to be accorded to him for the payment a specified day; otherwise the original of the debt, or in regard to his payin? sum was to become due. The mort- it immediately, if that be a portion of gage for the leaser sum was given, but the stipulations of the agreement, or was not paid. The master of rolls, at some future time which may be- Lord Romilly, held the provision a named, and the creditor is willing to penalty, and that the creditor could allow him certain advantages and de- only recover the smaller sum. This ductions from that debt, as well as to decision was affirmed on appeal by a extend the time of its payment, if divided court, Lord Chancellor Chelms- adequate and satisfactory security i» ford agreeing with the view taken by afforded him as a consideration, then the master of rolls, and Lord Justice it is perfectly competent to the cred- 599 CONCERNING PENALTIES AND FORFEITURES. § 439 § 439. For Acceleration of Payment of an Existing Debt. — The third instance of what is not a penalty is that of a contract, not that the amount of a debt should be increased, but that in a specified event the time for the payment of a certain sum due shall be accelerated. It is therefore settled by the overwhelming weight of authority that if a certain sum is due and secured by a bond, or bond and mortgage, or other form of obligation, and is made payable at some future day specified, with interest thereon made payable during the interval at fixed times, annually, or semi-annually, or monthly, and a fur- ther stipulation provides that in case default should occur in the prompt payment of any such portion of interest at the time agreed upon, then the entire principal sum of the debt should at once become payable, and payment thereof could be enforced by the creditor, such a stipula- tion is not in the nature of a penalty, but will be sustained in equity as well as at law. In exactly the same manner, if a certain sum is due and is secured by any form of in- strument, and is made payable in specified installments, with interest, at fixed successive days in the future, and a further stipulation provides that in case of a default in the prompt payment of any such installment in whole or in part at the time prescribed therefor, then the whole principal sum of the debt should at once become payable, itor to Bay that if the payment ia not don, there could be no doubt at all made modo et forma, according to the that he would aay that it is reasonable, stipulation, the right to the original and accordant with common sense, debt reverts. " Lord Westbury, in the Bu t if he was told that it was requi- same case, said (p. 27): "It is right site to go to those tribanals before and rational for a creditor to say to you could get that plain principle and his debtor, ' Provided you pay me half conclusion of common sense accepted of the debt or two thirds of the debt as law, he would undoubtedly hold up on an appointed day, I will release his hands with astonishment at the yon from the rest, and will accept the state of the law." See also Ford v. money so paid in discharge of the Lord Chesterfield, 19 Beav. 428; Davis whole debt; but if you do not make v. Thomas, 1 Russ. & M. 506; Ex parte payment of it on that day, then the Bennet, 2 Atk. 527; Herbert v. Salis- whole debt shall remain due to me, bury etc. R'y, L. R. 2 Eq. 221, 224, and I shall be at liberty to recover per Lord Romilly; and see cases cited it '; and this ia the view which a court under the next paragraph. [See also of equity will adopt It you U. S. Mortgage Co. v. Sperry, 138 were to put that proposition to any U. S. 313, 348; S. 0. below, 24 Fed. plain man walking the streets of Lou- Kep. 838; 26 Fed. Rep. 727.] §439 EQUITY JURISPRUDENCE. 600 and payment thereof could be enforced by the creditor, Buch stipulation has nothing in common with a penalty, and is as valid and operative in equity as at the law.' » Sterne v. Beck, 1 De Gex, J. & S. S95; 11 Week. Rep. 791; Stanhope V. Manners, 2 Eden, 197; People v. Superior Court of New York, 19 Wend. 104; Noyes v. Clark, 7 Paige, 179; 32 Am. Dec. 620; Ferris v. Fer- ris, 28 Barb. 29; Baldwin v. Van Vorst, 10 N. J. Eq. 577; Martin v. MelvjUe, 11 N. J. Kq 222; Robinson V. Loomis, 51 Pa. St. 78; Schooley v. Remain, 31 Md. 574, 579; 100 Am. Dee. 87; Ottawa Plank Road Co. v. Murray, 15 111. 337; Basse v. Galleg- ger, 7 Wis. 442; 76 Am. Deo. 225; Marine Bank v. International Bank, 9 Wis. 57, 68; Berrinkottv. Traphagen, 39 Wis. 219; Bennett v. Stevenson, 53 N. Y. 508; Malcolm v. Allen, 49 N. Y. 448; Mallory v. West Shore etc. R. R., 35 N. Y. Sup. Ct. 175; Willis v. O'Brien, 35 N. Y. Sup. Ct. 536; Gul- den V. O'Byrne, 7 Phila. 93; Mobray v. Leckie, 42 Md. 474; Wilcox v. Allen, 36 Mich. 160; Ha^r v. Ely, 56 111. 179; Meyer v. Grafber, 19 Kan. 165; Pope V. Hooper, 6 Neb. 178; Howell V. Western R. R., 94 U. S. 463; [Magnusson v. Williams, 111 111. 450; Hoodless V. Reid, 112 111. 105.] In Malcolm v. Allen, 49 N. Y. 448, the doctrine was carried to its utmost pos- sible length. The mortgage provided that upon non-payment of interest for thirty days after it became due, the mortgagee might elect to treat the whole principal sum as due. An in- stallment and interest fell due and were not paid. Before the thirty days were ended in which to make his elec- tion, the mortgagee commenced a fore- closure suit based only upon the in- stallment and interest then due and payable. The thirty days having ex- pired while this suit was pending, and the installment and interest not hav- ing been paid, the mortgagee elected to treat the whole as due; the court held that, having thus made his elec- tion, he could not be compelled to ac- cept the installment and interest and waive the stipulation; also, that he did not estop himself from enforcing the stipulation by commencing the suit before the thirty days had ex- pired, in order to foreclose merely for the installment and interest then be- coming payable, nor even by receiving •payment of the inatallment of principal after the thirty days had ended. [See also Moore v. Sargent, 112 Ind. 484.] In Howell v. Western R R, 94 U. S. 463, it was held that where a railroad company was authorized by statute to issue its bonds which should not ma- ture for thirty years, to be secured by a mortgage of its property, a provis- ion in the mortgage, that on default in the payment of any interest coupon the whole principal sum mentioned in the bond should become payable, was void, as being contrary to the statutory authority. But the mortgage was held otherwise valid. Notwithstanding this array of authority, a few of the earlier oases pronounced such a pro- vision in a bond or mortgage to be a penalty, and therefore contrary to the well-settled doctrine of equity juris- prudence. See Mayo v. Judah, 5 Munf. 495. It has also been held in at least one case that where a certain sum is due and payable by install- ments, teithmit interest, a stipulation, that upon default in the prompt pay- ment of any installment the whole principal shall at once become pay- able, is, in effect, a penalty, or rather a forfeiture of the interest which the debtor would be entitled to have dis- counted or rebated upon his payment of the debt before it was due and pay- able, and therefore such a stipulation should be relieved against by a court of equity: Tiernan v. Hinman, 16 111. 400. [See also Whelau v. Reilly, 61 Mo. 565; post, % 833, note.] I will add that in Sterne v. Beck, 1 De Gex,' J. & S. 595, 600, 601, the lords justices, while laying down the rule which they approve, state, apparently with great care, that the debt is payable in installments, with interest; and this expression is repeated by them on every occasion when the terms of the agreement to which the rule applies are mentioned. It is hardly possible to avoid the inference that they re- garded the payment of interest with the installments as an important ele- ment of the rule which they adopt. 601 CONCERNING PENALTIES AND FORFEITUl-iES. § 440 The stipulation is sometimes to the effect that if a default in payment continues for a specified number of days, and sometimes that the creditor may elect to treat the whole debt as payable; but the same rule applies to all such forms. The provision for accelerating the time of pay- ment of the whole debt in this manner may, of course, be waived by the creditor, especially when it is made to depend upon his election/ It seems also that a court of equity may relieve against the effect of such provision, where the default of the debtor is the result of accident or mistake,. and a fortiori when it is procured by the fraud or other inequitable conduct of the creditor himself.* § 440. Liquidated Damages Described in General. — The fourth instance to be mentioned of a stipulation which is not a penalty within the scope and meaning of the equitable doctrine is that for " liquidated damages." If the stipulation is one properly for liquidated damages, and not for a penalty, equity will not interfere with its enforcement, but if the case was one coming within the equitable jurisdiction, it would be treated as binding, and carried into effect by a court of equity. In general, where the contract is for the performance or non-performance of some act other than the mere payment of money, and there is no certain measure of the injury which will be sustained from a violation of the agreement, the parties may, by an express clause inserted for that purpose, fix upon a sum in the nature of liquidated damages which ' Langridge v. Payne, 2 Johns. AH. a married woman, relied upon the at> 423. sence of her husband and her own ig- 'la Martin v. Melville, 11 N. J. norance as the reasons for the default, Eq. 222, it was held that equity may and as excusing it, the stipulation was relieve where the default of the debtor nevertheless enforced. Bennett v. in such a case is the result of accident Stevenson, 63 N. Y. 508, clearly inti- or mistake; and in Wilcox v. Allen, mates and concedes that fraud or im- 36 Mich. 160, it was held that the for- proper conduct on the part of the feiture from such a clause should not creditor in procuring the default be enforced where the cause of the would operate as an excuse, and be a delay in payment was that the mort- sufficient ground for a court of equity gagor in good faith, though erroneous- to interfere and restrain an euforce- ly, denied his liability. But, on the raent of the clause. [See also Adams other hand, in Ferris v. Ferris, 28 v. Rutherford, 13 Or. 78, and post, §§ Barb. 29, where the party, who was 826, 833.] § 440 EQUITY JURISPKUDENCB. 602 shall be payable as a - compensation for sucb violation.' The question whether a sum thus stipulated to be paid is a " penalty " or is " liquidated damages " is often difficult to determine. It depends, however, upon a construction of the whole instrument, upon the real intention of the parties as ascertained from all the language which they have used, from the nature of the act to be performed, or not to be performed, from the consequences which nat- urally result from a violation of the contract, and from the circumstances generally surrounding the transaction. It has been repeatedly held that the words "penalty" or "liquidated " damages, if actually used in the instrument, are not at all conclusive as to the character of the stipula- tion. If upon the whole agreement the court can see that the sum stipulated to be paid was intended as a penalty, the designation of it by the parties as "liquidated dam- ages" will not prevent this construction; if, on the other hand, the intent is plain that the sum shall be " liqui- dated damages," it will not be treated as a penalty because the parties have called it by that name. It is well set- tled, however, that if the intent is at all doubtful, the tendency of the courts is in favor of the interpretation which makes the sum a penalty.* The mere largeness of " Rolfe v. Peterson, 2 Brown Pari. 6 Blackf. 206; 38 Am. t)eo. 136; Yen- C, Tomlins's ed., 436; Lowe v. Peers, 4 ner v. Hammond, 36 W^ia. 277; [Keeble Burr. 2225; Astley v. Weldon, 2 Bos. & v. Keeble, 85 Ala. 552; Fasler v. Beard, P. 346; Jones v. Green, 3 Younge & J. 39 Minn. 32.] 298; Woodward v. Gyles, 2 Vern. 119; ^ Dimeoh v. Corlett, 12 Moore P. 0. Sainter v. Ferguson, 1 Maon. & G. C. 199; Jones v. Green, 3 Younge & J. 286; Bagley v. Peddie, 16 N. Y. 469; 304; Green v. Price, 13Mees. & W. 701; 69 Am. Deo. 713; Mott v. Mott, 11 16 Mees. & W. 346; Betts v. Bnrch, 4 Barb. 127; Dakin v. Williams, 17 Hurl. &N. 511, per Bramwell, B.; Chil- Wend. 447; 22 Wend. 201; Smith v. liner v. Chilliner, 2 Ves. 528; Coles v. Ooe, 33 N. Y. Sup. Ct. 480; O'Don- Sims, 5 De Gex, M. & G. 1; Gushing nell V. Rosenberg, 14 Abb. Pr., N. S., v. Drew, 97 Mass. 445; Shute v. Tay- 69; Shute v. Hamilton, 3 Daly, 462; lor, 5 Met. 61; Wallis v. Carpenter, Wolfe Creek etc. Co. v. Sohultz, 71 13 Allen, 19; Lynde v. Thompson, 2 Pa. St. 180; Streeper v. Williams, 48 Allen, 456; Streeper v. Williams, 48 Pa. St. 450; Pierce t. Fuller, 8 Mass. Pa. St. 450; Hatch v. Fogarty, 33 N. Y. 223; 5 Am. Dec. 102; Gushing v. Drew, Sup. Ct. 16B; Hahn v. Horstman, 12 97 Mass. 445; Tingley v. Cutler, 7 Bush, 249; Yenner v. Hammond, 36 Conn. 291; Gammon V. Howe, 14 Me. Wis. 277 (the word "penalty" used, 250; Peine v. Weber, 47 111. 41; Low but construed to be liquidated dam- V. Nolte, 16 111. 478; Brown v. Mauls- ages); White v. Arlith, 1 Bond, 319; by, 17 Ind. 10; Hamilton v. Overton, Hamaker r. Schroers, 49 Mo. 406; 603 CONCEKNING PENALTIES AND FOKFEITUEES. § 441 the sum fixed upon for the doing or not doing a particu- lar act — that is, the fact of its being disproportioned in amount to the damage which results therefrom — will not of itself be a sufficient reason for holding it to be a penalty.* § 441. Rules Determining Liquidated Damages and Penalties. — While it is impossible to formulate one uni- versal criterion by which the question of penalty or liqui- dated damages can be determined in every instance, certain particular rules have been well settled by the decisions, which apply to many important and customary forms and kinds of agreements, although there are, of course, Shuts V. Hamilton, 3 Daly, 462; Gil- lis V. Hall, 7 Phila. 422; 2 Brewet. .^42; [Little v. Banks, 85 N. Y. 266; Ward V. H. R. B. Co., 125 N. Y. 230 (word "penalty" construed as liqui- dated damages).] See also the cases cited in the next succeeding note. In Gushing v. Drew, 97 Mass. 445, the rule was thus stated by Chapman, J. : " The tendency and preference of the law is to regard a sum stated to be payable if a contract is not fulfilled as a penalty, and not as liquidated' dam- ages. Yet courts endeavor to learn from the subject-matter of the con- tract, the nature of the stipulations, and the surrounding circumstances, what was the real intent of the parties, and are governed by such intent. " In Gillis V. Hall, 7 Phila. 422, 2 Brewst. 342, it was said that when a person has bound himself in a certain sum to do or not to do a certain thing, the court will look at the language of the contract, the intention of the piirties as gathered from all its provisions, the subject-matter of the contract and its surroundings, the ease or difficulty of measuring the breach in damages, and the sum stipulated; and from the whole decide whether equity and good conscience require that said sum shall be treated as liquidated dam- ages or only as a penalty. It does not seem possible to formulate the rule in any more comprehensive and accurate a manner than this. In White v. Ar- lith, 1 Bond, 319, it was held that if a sum stipulated to be paid on a breach is termed in the instrument a "penalty,"' it will always be treated only as a penalty; but if it is termed "liquidated damages," it may be treated as a penalty, if that appears to be the intent. This attempted dis- tinction between the effect of using the word " penalty," and that of using the words "liquidated damages," is not only unsupported by authority, but is directly opposed to the whole current of authority, English and American. ' Astley V. Weldou, 2 Bos. & P. 351; Chilliner v. Chilliner, 2 Ves. 528; Roy V. Duke of Beaufort, 2 Atk. 190; Lo- gan V. Wienholt, 1 Clark & P. 611; Clement v. Cash, 21 N. Y. i253; Shiell V. Mc'Nitt, 9 Paige, 101; Dwinel v. Brown, 54 Me. 468; Morse v. Rath- burn, 42 Mo. 594; 97 Am. Dec. 359; Gower v. Saltmarsh, 11 Mo. 27; Peine V. Weber, 47 111. 41; Gamble v. Liu- der, 76 111. 137; Williams v. Green, 14 Ark. 313; Hodges v. King, 7 Met. 583; [Keeble v. Keeble, 85 Ala. 552.] Still the amount of the sum may always be taken iuto consideration as an aid to the court in determining the intention of the parties; and if it be altogether excessive, this may turn the scale in favor of declaring it intended as a penalty: Barry v. Wisdom, 5 Ohio St. 241; Perkins v. Lyman, 11 Mass. 76; 6 Am. Dec. 158; Lynde v. Thompson, 2 Allen, 456, 459; Hodgson v. King 7 Met. 583; Streeper v. Williams, 4« Pa. St. 450; Curry v. Larer. 7 Pa. St. 470; 49 Am. Dee. 486; Colwell v. Lawrence, 38 Barb. 643: 38 N. Y. 71. §442 EQUITY JUKISPEUDENCE. 604 numerous cases which carniot easily be brought within the operation of either of them. The following are the rules which have thus been established by judicial authority. First. Wherever the payment of a smaller sum is se- cured by a larger, the larger sum thus contracted for can never be treated as liquidated damages, but must always be considered as a penalty.* § 442. Second. Where an agreement is for the perform- ance or non-performance of only one act, and there is no •Aylett V. Dodd, 2 Atk. 239; Astley V. Weldon, 2 Bos. & P. 353- 354; Lampmau v. Cochran, 16 N. Y. 275; Clement v. Cash, 21 N. Y. 253, 260; Bagley v. Peddie, 16. N. Y. 469, 471; 69 Am. Dec. 713; Oakin v. Wil- liams, 17 Wend. 447; 22 Wend. 401; Tiernan v. Hammau, 16 111. 400. The stipalation creates a penalty within this rule, whatever be the form of the contract secured, if it be in effect one for the payment of money; that is, where it may not in express terms provide for the payment of money, but its performance results in such payment. As examples: In an agree- ment to stay the enforcement of a decree of mortgage foreclosure for a specified time, a stipulation to pay a, fixed sum upon default in performing the decree was held to be a penalty: Kuhn V. Meyers, 37 Iowa, 351; and in an agreement to pay the plaintiff's debts, and to save him harmless from any suit which might be brought upon such demands, a stipulation to pay a fixed sum upon default was held to be a penalty: Morris v. McCoy, 7 Nev. 399. The stipulation is held to be a penalty, not only .when it thus cer- tainly provides for the payment of a larger sum upon a default in paying a smaller amount, but also where it may possiljly lead to such a result: Spear V. Smith, 1 Denio, 465; Hoag v. Mc- Ginnis, 22 Wend. 163; Niver v. Rossman, 18 Barb. 50; Gregg v. Crosby, 18 Johns. 219, 226; Curry v. Larer, 7 Pa. St. 470; 49 Am. Dec. 436. In Spear v. Smith, 1 Denio, 465, there was an agreement to comply with the decision of arbitrators to whom a con- troversy had been submitted, or else to pay one hundred dollars, and the latter sum was held to be a penalty, because the award might be for the payment of a sum of money, as in fact it was. It is partly for this reason that where a contract contains several stipulations, some for the payment of money, and others for the doing or not doing of specified acts, an additional provision binding a party to pay a fixed sum in case of his default in any of these matters is necessarily a penalty: Whitfield v. Levy, 35 N. J. L. 149; Shiell V. McNitt, 9 Paige, 101, 106; Niver v. Rossman, 18 Barb. 50. In Whitfield V. Levy, 35 N. J. L. 149, the purchaser of a grocery promised to pay one thousand three hundred dol- lars as the price, and the seller prom- ised not to engage in the same business for ten years, and the contract added that the parties "bound themselves to each other under the penalty of five hundred dollars, to be paid by him who should fail to carry out this agree- ment." The five hundred dollars was held to be a penalty as to both the parties, since it Was necessarily so with respect to the purchase's cove- nant to pay the price. Although this rule with respect to penalties intended as a security for payment of money is generally adopted and enforced by courts of law as well by those of equity, yet it seems that a contract in express terms to pay a larger sum, exceeding the interest, as compensation for delay in paying a smaller amount, may bo valid and operative at law, when not contrary to the statutes against usury: See Davis v. Hendrie, 1 Mont. Ter. 499; Hardee v. Howard, 33 Ga. 533; 83 Am. Dec. 176; Sutton v. Howard, 33 Ga. 536; Goldsworthy v. Strutt, 1 Ex. 659, 665; Lynde v. Thompson, 2 Allen, 456, 459. Every such contract would, however, be relieved against in equity. 605 CONCBRNING PENALTIES AND FOEFEITOKES. § 442 adequate means of ascertaining the precise damage which may result from a violation, the parties may, if they please, by a separate clause of the contract, fix upon the amount of compensation payable by the defaulting' party in case of a breach; and a stipulation inserted for such purpose will be treated as one for "liquidated damages," unless the intent be clear that it was designed to be only a pen- alty .V ' The leading case under this rale is Rolfe V. Peterson, 2 Browu Pari. C, Tomlins's ed., 436, where a lessee cove- nanted not to plow up any of the ancient meadow or pasture land, and if he did he was to pay an additional rent of five pounds per acre. This additional rent was held by the house of lords to be liquidated damages. The same has been held in other eases with respect to similar covenants by lessees: Woodward v. Gyles, 2 Vern. 119; Jones v. Green, 3 Younge & J. 298. This rule has been applied in many cases, where a party, either in connection with a sale of his stock in trade and good-will, or under other circumstances, covenants that he will not carry on his trade or business within certain limits, and adds a clause making himself liable to pay a specified sum upon any violation of the covenant; such sum is liquidated damages: Green v. Pr!je, 13 Itlees. & W. 695; 16 Mees. & W. 35i; Atkins V. Kinnier, 4 Ex. 776; Rawlinson v. Clarke, 14 Mees. & W. 187; Gales- worthy V. Strutt, 1 Ex. 659; Streeter v. Rush, 25 Cal. 67; Gushing v. Drew, 97 Mass. 445. [Contra, Heatwole v. Gorrell, 35 Kan. 692.] In the leading case of this class (Green v. Price, 13 Mees. & W. 695) defendant had covenanted not to carry on the busi- ness of a hair-dresser or perfumer within sixty miles of London, and bound himself in the sum of five thou- sand pounds in case of a, violation. Having violated the contract, he was held liable in that sum, whether it did or did not exceed the actual damage sustained by the plaintifiT. In Gushing V. Drew, 97 Mass. 445, the plaintiff had sold his business as an express- man to the defendant for six hundred dollars, and agreed not to carry on the same business within specified limits, and if he failed to observe this agree- ment, he was to pay the defendant nine hundred dollars. This sum was held to be liquidated damages. The test was stated by the court as fol- lows: "The stipulation is for a simple thing, namely, to abstain from inter- ference with the business which the plaintiff had sold to the defendant, and it is difiicult to ascertain the damages that may result from the breach of such a contract." An- other not uncommon instance under this rule, in which the sum i^ liqui- dated damages, is found in contracts for the sale and purchase of land, where the vendor agrees to execute a deed by a specified day, or if not, that he will be liable to pay a certain sura: Chamberlain V. Bagley, 11 N. H. 234; Durst v. Swift, II Tex. 274; or the vendee agrees to accept the deed and complete the purchase at a day named, or else that he will pay a certain sum: Mundy v. Culver, 18 Barb. 336; Holmes v. Holmes, 12 Barb. 137; Gammon v. Howe, 14 Me. 250; Williams v. Green, 14 Ark. 315; Yenner v. Hammond, 36 Wis. 277; or in a contract for the exchange of lands, the parties insert a similar stipulation; Gibb v. Linder, 76 111. 137. The rule has been applied in like manner to the stipulation in a lease by which the lessee is to be lia- ble in a certain amount if he violates some single specified covenant on his part; as where a lessee covenanted that he would not, before a day named, negotiate for, or accept, or be interested in any lease of certain premises, except from the plaintiff, under a. forfeiture of ten thousand dollars, and this was held to be liqui- dated damages, so that defendant was liable for that amount: Smith v. Coe, 33 N. Y. Sup. Ct. 480; uul where a, 443 EQUITY JUKISPKUDENCE. 606 § 443. Third. Where an agreement contains provisions for the performance or non-performance of several acts of lessee stipulated to pay five hundred dollars if he failed to surrender up the premises l^^ a certain day: Peine v, Weber, 47 111. 41. The following are further examples of the rule, the cer- tain sum of money stipulated to be paid for a violation of the main agree- ment being in each case liquidated damages. In a building contract con- taining clauses fixing the days for completing various parts of the work, a stipulation that for a,c.y failure by the builder to comply with these pro- visions and to finish the work as agreed, the employer might claim compensation at the rate of ten dol- lars per day for every day of such detention: O'Uonnell v. Rosenberg, 14 Abb. Pr., N. S., 59; and in a con- tract to furnish a coal company all the timber needed for their mine during a year, to be paid for at the rate of eighteen cents on each ton of all the coal mined during the year, but if the amount mined during the year should not equal seventy-tive thou- sand tons, then the company were "to pay the difference between the amount mined and seventy-five thou- sand tons, at the rate of eighteen cents per ton": this eighteen cents per ton on the difference, etc., was held liqui- dated damages: Wolf Creek etc. Co. ▼. Schultz, 71 Fa. St. 180; and see a similar contract in. Powell v. Bur- roughs, 54 Pa. St. 329, 336; an agree- ment to improve land on which the other party has a mortgage or lien: Pearson v-. Williams, 24 Wend. 246; 26 Wend. 630; an agreement guaran- teeing the validity of a patent right: Brewster v. Elgerly, 13 N. H. 275; an agreement to perform certain work and labor, or to furnish certain ma- terials, within a specified time: Curtis V. Biewer, 17 Pick. 513; Faunce v. Burke, 19 N. J. L. 469; 55 Am. Deo. 519; an agreement for the punctual payments of an annuity: Berrikott v. Traphagen, 39 Wis. 220; [an agree- ment by a business manager to wholly abstain from the use of intoxicating liquors: Keeble v. Keeble, 85 Ala. 652.] In applying this second rule of the text, it is important to observe that a contract may come within its scope and operation, which includes various particulars differing in kind and importance, provided they are in. effect one; all taken together only make up one whole, the violation of which is to be compensated by the fixed sum. In other words, a con- tract of this kind does not necessarily fall under the third rule given in the text; but the sum made payable may be liquidated damages. The intention of the parties, however, as ascertained from the whole instrument, would guide the court: Clement v. Cash, 21 N. Y. 253; Bagley v. Peddie, 16 N. Y. 470; 69 Am. Dec. 713; Cotheal v. Talmage, 9 N. Y. 551; 61 Am. Deo. 716; Leary v. Laflin, 101 Mass. .S.34. In Clement v. Cash, 21 N. Y. 253, Wright, J., applied the rule as fol- lows: "The contract in question, in legal effect, provided but for the per- formance of a single act on each side, and at the same period of time, viz., the execution and delivery of a deed of the land by the defendant, and payment therefor by the plainti£ That the defendant agreed to receive in payment for his deed, and tha plaintiff to pay simultaneously with its delivery, the consideration in money and other pi'opertt/, cannot divest what was to be done of the character of a single transaction. If the defendant failed to convey, or the plaintiff to make payment in the way covenanted, there was a total non- performance. The consideration to be paid was nine thousand dollars, of which four thousand was to be in cash, and five thousand dollars in securities, the cash and transfers of the securities to be passed over to the defendant on receipt of the deed. " In Cotheal V. TalmagR, 9 N. Y. 551, 61 Am. Dec. 716, the defendant and others had severally covenanted that they would diligently devote them- selves to obtaining gold and other precious metals by mining in Califor- nia, under regulations specified in the agreement; that a certain portion of the earnings of each should be paid to the plaintiff; and that any of them who failed to keep his engagement should pay five hundred dollars. The defendant had violated the agreement by absenting himself from the mining 607 CONCBBNINQ PENALTIES AND FORFEITURES. § 443 different degrees of importance, and then a certain sum is stipulated to be paid upon a violation of any or of all such provisions, and the sum will be in some instances too large and in others too small a compensation for the injury thereby occasioned, that sum is to be treated as a penalty, and not as liquidated damages. This rule has been laid down in a somewhat different form, as follows: "Where the agreement contains provisions for the per- dlatriot, and refusing to devote him- self to the search for gold. The five hundred dollars was held to be liqui- dated damages, since all the particulars agreed to be done virere not indepen- dent stipulations, but together consti- tuted a single undertaking which the defendant was bound to perform. In Leary v. Laflin, 101 Mass. 334, the lessee of a livery-stable bound him- self for the payment of one thousand dollars, if he, the lessee, " should not keep the stable during the demised term in a manner as satisfactory to all reasonable parties as the lessor had done, and at the end of the term sur- render said premises and good-will in as jiood repute and run of custom as now thereto pertain"; and the one thousand dollars was on the same ground held to be liquidated dam- ages. Does this second rule of the text in- clude in its operation contracts for the purchase and sale of goods and chattels or securities ? It has been said that it does not, and that a stip- olatiou to pay a fixed sum on the vio- lation of such a contract must neces- sarily be a penalty, since the legal measure of damages can always be ex- actly ascertained, being in fact pre- scribed by the law, namely, the dif- ference between the market price and the price agreed to be paid: Jem'mison V. Gray, 29 Iowa, 537; Lee v. Over- street, 44 Ga. 507; Shreve v. Brere- ton, 51 Pa. St. 175, 186; Burr v. Todd, 41 Pa. St. 209; Taylor v. The Mar- eella, I Woods, 302. It is plain that there are many cases in respect of which this reasoning is sound and this sonclnsion ia jnst. It is equally plain that there is another class of cases to which neither this reasoning nor con- clusion can apply. In many contracts for the purchase and sale of personal property, there is no such means of accurately measuring the damages which result from a violation. If the agreement is for the sale generally of things of a certain kind or description, on a default the vendee can, as a rule, go into the market and purchase other articles answering to the description; the measure of his loss is then fixed by the law at the difference between the market price which he pays, and the agreed price; and any certain sum stipulated to be paid him by way of compensation would be a penalty. But where the agreement is for the sale and delivery of certain speeijled things, there may not be any mode of ascertaining the amount of loss re- sulting from a non-performance, and the certain sum fixed upon by the contract may be liquidated damages, and not it penalty. This would clearly be so in all those contracts for the delivery of personal property, which a court of equity would specifi- cally enforce: Lynde v. Thompson, 2 Allen, 460, per Bigelow, C. J.; Gam- mon V. Howe, 14 Me. 2.'50; Chamber- Iain V. Bagley, 11 N. H. 234; Mead V. Wheeler,' 13 N. H. 351; Tingley v. Cutler, 7 Conn. 291; Shiell v. McNitt, 9 Paige, 101, 103; Clement v. Cash, 21 N. Y. 253; Knapp v. Maltby, 13 Wend. 587; Streeper v. Williams, 48 Pa. St. 450; Hise v. Foster, 17 Iowa, 23; Morse v. Rathburn, 42 Mo. 594; 97 Am. Dec. 359; Williams v. Green, 14 Ark. 315, 327. If, however, the stipulated sum should be excessive in amount, and greatly exceed the value of the property, this would be a strong, even if not conclusive, reason for a court of equity to treat it as a penalty See Spencer v. Tilden, 5 Cow. 144: Haldeman v. Jennings, 14 Ark. 329 Williams v. Green, 14 Ark. 315, 326: Burr V. Todd, 41 Pa. St. 206. §443 EQUITY JURISPRUDEXCB. 608 formance or non-performance of acts which are not measurable by any exact pecuniary standard, and also of one or more other acts in respect of which the damages are easily ascertainable by a jury, and a certain sum is stipulated to be paid upon a violation of any or of all these provisions, such sum must be taken to be a penalty.* • Snell's Equity, 288; Kemble v. Far- ren, 6 Bing. 141; Davies v. Penton, 6 Barn. & C. 216, 223; Horner v. Flin- toff, 9 Mees. & W. 678, 681; Diniick v. Corlett, 12 Moore P. C. C. 199; Trower v. Elder, 77 111. 452, and cases cited; First Orthodox Church v. Wal- rath, 27 Mich. 232; Cook v. Finch, 19 Minn. 407; Morria v. McCoy, 7 Nev. 399; DuUaghen v. Fitch, 42 Wis. 679; Lyman v. Babcook, 40 Wis. 503; Sa- vannah R. R. V. Callahan, 56 Ga. 331; Shreve v. Brereton, 61 Pa. St. 175, 180; Niver v. Rossman, 18 Barb. 50; Jackson v. Baker, 2 Edw. Ch. 471; Cheddick r. Marsh, 21 N. J. L. 363; Whitfield V. Levy, 35 N. J. L. 149; Berry v. Wisdom, 3 Ohio St. 244; Basye v. Ambrose, 28 Mo. 39; Long v. Towl, 42 Mo. 548; 97 Am. Dec. 355; [Hooper v. Savannah etc. R. R. Co., 69 Ala. 529; Carter v. Strom, 41 Minn. 622; Heatwole v. Gorrell, 35 Kan. 692.] In the leading case upon this rule (Keinblev. Farren, 6 Bing. 141) the de- fendant had agreed to act as principal comedian at the plaintiff's theater for four seasons, conforming in all things to the rules of the theater. The plaintiff was to pay the defendant three pounds every night the theater was open, with other terms. The agree- ment contained a clause that if either of the parties should neglect or refuse to fulfill the said agreement, or any part thereof, or any stipulation there- in contained, such party should pay to the otiier the sum of one thousand pounds, to which sum it was thereby agreed that the damages sustained by such omission should amonnt, and which sum was thereby declared by the parties to be liquidated and ascer- tained damage.s, and not a penalty or penal sum, or in the nature thereof. , The breach alleged was that defendant refused to act during the second season. The court held that the sum of one thousand pounds must be taken to be a penalty, as it wag not limited to those breaches which were of an un- certain nature and amount. The mere fact, however, that an agreement con- tains two or more provisions differing in kind and importance does not of itself necessarily bring it within tha operation of this rule. If the variona acts stipulated to be done are but minor parts of one single whole, — stepa in the accomplishment of one single end, — so that the contract is in reality one, then it may properly come under the operation of the second rule as given in the text. See the cases illus- trating this position, ante, in the note under § 442. A series of decisions by the New York court of last re- sort deny the correctness of the rule in the form as given in the text and as adopted by the great majority of cases; and insist that the following is its true reading, as derived from tha early authorities, viz. : Where a party binds himself to do several things of different degrees of importance, a cer- tain sum of money made payable upon the non-performance of either or any is necessarily a penalty only when one of these several things agreed to be done it the payment of a sum of money. Thus in Cotheal v. Talmage, 9 N. Y. 551, 61 Am. Deo. 716, the facts of which are briefly stated in a pre- vious noie, Ruggles, J., after quot- ing the rule in its usual form, and as given in the text, said: "This doctrine, in the cases in which it is asserted, is traced to the cases of As- tley V. Weldon, 2 Bos. & P. 346, and Kemble v. Farren, 6 Bing. 141, but I do not understand either of these cases as establishing any such rule. The principle to be deduced from them is, that where a party agrees to do several things, one qf which is to pay a sum of money, and in case of » failure to perform any or either of the stipulations, agrees to pay a larger sum as liquidated damages, the larger 609 CONCERNING PENALTIES AND POKPBITUEES. § 444 § 444. Fourth. "Whether an agreement provides for the performance or non-performance of one single act, or of several distinct and separate acts, if the stipulation to pay a certain sum of money upon a default is so framed, is of such a nature and effect that it necessarily renders the defaulting party liable in the same amount at all events, both when his failure to perform is complete, and when it is only partial, the sum must be regarded as a penalty, and not as liquidated damages. This rule plainly rests upon the same grounds as the third, and may be considered a particular application thereof.* gum is to be regarded in the nature of a penalty; and being a penalty in re- gard to one of the stipulations to be performed, is a penalty as to all. " To the same effect are Clement v. Cash, 21 N. Y. 253, 259j Bagley v. Peddie, ]6N. Y. 470; 69 Am. Dec. 713. [See alsoWallis v. Smith, L. R. 21 Ch. Div. 243, where the English cases are re- viewed by Jessel, M. R., and the first form of the rule as given in the text appears to be rejected. Cotton, L. J., announces the rule (p. 268) very nearly in the language of Cotheal v. Talmage, 9 N. Y. 551; 81 Am. Deo. 716.] ' Jemmison v. Gray, 29 Iowa, 537; Lee V. Overstreet, 44 Ga. 507; Ha- maker v. Schroera, 49 Mo. 406; Taylor V. The Marcella, 1 Woods, 302; Lyman V. Babcook, 40 Wis. 503; Dallaghen v. Fitch, 42 Wis. 679; Ex parte Pol- lard, 17 Bank. Reg. 228; Savannah R. R. f. Callaghan, 56 Ga. 331; Shreve v. Brereton, 51 Pa. St. 175; Curry v. Larer, 7 Pa. St. 470; 49 Am. Dec.. 486; Perkins v. Lyman, II Mass. 76; 6 Am. Deo. 158; Lampman v. Cochran, 16 N. Y. 569, 277; Heatwole v. Gor- rell, 35 Kan. 692. In Jemmisou v. Gray, 29 Iowa, 537, the contract was to deliver sixty thousand railroad ties, to be paid for as delivered, but ten per cent of the monthly estimates were to be retained by the buyer as a security for the final completion. This ten per cent was held to be a penalty, and not liquidated damages. In Lee v. Overstreet, 44 Ga. 507, de- fendant contracted to deliver all the turpentine made on his plantation in lots of forty barrels each, to be paid for on delivery, at the rate of five dol- lars per barrel, and eithef party fail- 1 Eq. Jur. — S9 ing was to forfeit one thousand dollars. This sum was held to be a penalty. In Shreve V. Brereton, 51 Pa. St. 175, the contract was similar, to deliver one thousand barrels of petroleum, to be paid for in a specified manner, and the parties bound themselves in the sum of ten thousand dollars, not as a penalty, but as liquidated damages. The court said that the intention could not have been for the vendor to be liable for that large sum when he failed to deliver only one barrel, as much as when he failed to deliver the whole one thousand barrels, and the sum must therefore have been meant as a penalty. In Hamaker v. Sohroers, 49 Mo. 406, defendant agreed to sell and deliver one hundred grain-drills of a specified kind in a certain time, or be liable to pay sixteen hundred dol- lars. The court held that to regard this sum as liquidated damages would subject the defendant to the same lia- bility upon failing to deliver only one of the machines as upon failing to de- liver them all, and the sum must be treated as a penalty. It should be observed that this rule must always be taken into account in every case where it is sought to apply the second rule of the text, for its efi^eot is neces- sarily to modify the operation of that rule. In other words, there are many agreements which would otherwise come under the second rule because there is no means of accurately fixing the legal measure of damages resulting from a violation, but which are pre- vented from so doing, since the lia" bility to pay a certain sum is made to be the same, whether the failure to perform is complete or only partial. § 445 EQUITY JURISPRUDENCE. 610 § 445. Fifth. Finally, although an agreement may contain two or more provisions for the doing or not doing different acts, still, where the stipulation to pay a certain sum of money upon a default attaches to only one of these provisions, which is of such a nature that there is no certain means of ascertaining the amount of damages resulting from its violation,' or where all of the provisions are of such a nature that the damages occa- sioned by their breach cannot be measured, and a certain sum is made payable upon a default generally in any of them,^ — in each of these cases, the sum so agreed to be paid may be considered as liquidated damage, provided, of course, that the language of the stipulation does not bring it within the limitations of the preceding fourth rule. It is evident that this proposition, in both its branches, is identical in substance with the second rule, heretofore given, and rests upon exactly the same grounds. The foregoing rules may be considered as settled by the strong preponderance of judicial authority, and they serve to explain large and important classes of cases. There are undoubtedly numerous instances which cannot be easily referred to either of these rules; and this must be so almost as a matter of necessity. Since agreements are of infinite variety in their objects and in their pro- visions, and since the question of penalty or liquidated damages is always one of intention, depending upon the terms and circumstances of each particular contract, there must be many agreements which cannot be brought within the scope of any specific rule, and with which a ' Green v. Price, 13 Meea. & W. Galsworthy v. Strutt, 1 Ex. 659; Hall 695; 16 Mees. & W. 354; Rawlinaon v. v. Crowley, 5 Allen, 304; SI Am. Dec. Clarke, 14 Mees. & W. 187; Shute T. 745; Chase v. Allen, 13 Gray, 42; Hamilton, 3 Daly, 462; Mott v. Mott, Young v. White, 5 Watta, 460; Pow- 11 Barb. 134; Dakin v. Williams, 17 ell v. Burroughs, 54 Pa. St. 329, 336; Wend. 447; 22 Wend. 201; Pearaon v. O'Donnell v. Rosenberg, 14 Abb. Pr., Williams, 24 Wend. 244; 26 Wend. N. S., 59; Leary v. Laflin, 101 Mass. 630; Mead v. Wheeler, 13 N. H. 301; 334; Dwinel v. Brown, 54 Me. 458; Hodges V. King, 7 Met. 583; Lange v. Clement v. Cash, 21 N. Y. 253; Co- Week, 2 Ohio St. 519; Watta v. Shep- theal v. Talmage, 9 N. Y. 561; 61 Am. pard, 2 Ala. 425, 445. Deo. 716; Bagley v. Peddie, 16 N. Y. ' Atkyns v. Kinnier, 4 Ex. 776-783; 470; 69 Am. Dec, 713. 611 CONCERNING PENALTIES AND FORFEITURES. g 446 court can only deal by applying the most general canon of interpretation.' § 446. No Election to Pay the Penalty and not to Perform. — With respect to the effect of a penalty upon the equitable rights of the parties, while a court of equity will relieve the party who has thus bound himself against a penalty, or will restrain its enforcement against him at law, it will not, on the other hand, perrnit such party to resist a specific performance of the contract by electing to pay the penalty. Where a person has agreed to do a certain act, or to refrain from doing a certain act, and has added a penalty for the purpose of securing a performance, a court of equity will, if the contract is oth- erwise one which calls for its interposition, compel the party to specifically perform, or restrain him from com- mitting the act, as the case may be, notwithstanding the penalty. If the sum stipulated to be paid is really a pen- alty, the party will never be allowed to pay it, and then treat such payment as a sufHcient ground for refusing to perform his undertaking.' Where, however, the creditor ' In the following oasea, not already Hobson v, Trevor, 2 P. Wma. 191; cited in the former notes, the sum was Kennedy v. Lee, 3 Mer. 441, 450; held to be a penalty: Colwell v. Law- Prebble v. Boghnrst, 1 Swanst. 309; rence, 38 N. Y. 71; Green v. Tweed, Jeudwine v. Agate, 3 Sim. 129, 141; 13 Abb. Pr., K. S., 427 (excessive Butler v. Powis, 2 Coll. C. C. 156; amount); Staples v. Parker, 41 Barb. Jones v. Heavens, L. R. 2 Ch. Div. 648; Wallis.v. Carpenter, 13 Allen, 636; In re Dagenham Dock Co., L. R. 19; Long v, Towl, 42 Mo. 545; 97 Am. 8 Ch. 1022; Ewins v. Gordon, 49 N. H. Dec 355; Ranger v. Great Western 444; Gillis v. Hall, 7 Phila. 422; 2 R'y Co., 5 H. L. Cas. 72. And in the Brewst. 342; Dooley v. Watson, 1 following cases the sum was held to Gray, 414; Hooker v. Pynehou, 8 be liquidated damages: Leggett v. Mut. Gray, 550; Fisher v. Shaw, 42 Me. 32; Life Ins. Co., 50 Barb. 616; Gobble y. Hull v. Sturdivant, 46 Me. 34; Dailey Linder, 76 111. 157; Ryan v. Martin, v. Lichfield, 10 Mich. 29; Whitney v. 16 Wis. '57; Hise v. Foster, 17 Iowa, Stone, 23 Cal. 275; Dike v. Green, 4 23; Morse v. Rathburn, 42 Mo. 594; R. L 288, 295; [National Prov. Bank 97 Am. Dec. 359; Streeter v. Rush, v. Marshall, 40 Ch. Div. 112; Phcenix 25 Cal. 67; Lightner v. Menzel, 35 Ins. Co. v. Continental Ins. Co., 87 Cal. 452. N. Y. 400; Day v. Hunt, 112 N. Y. ' French v. Macale, 2 Dru. & War. 194; Lyman v. Gedney, 114 111. 388; 274; Howard v. Hopkins, 2 Atk. 371; 55 Am. Rep. 871; Higbie v. Farr, 28 Chilliner v. Chilliner, 2 Ves. 528; Minn. 439.] In French v. Maoale, 2 City of London v. Pugh, 4 Brown Pari. Dru. & War. 274, Lord St. Leonards 0., Tomlins's ed., 395; Hardy v. clearly stated this doctrine: "The Martin, I Cox, 26; Logan v. Wieu- general rule of equity is, that if a holt, 1 Clark & F. 611; 7 Bligh, N. S., thing be agreed upon to be done, 1, 49, 60; Fox v. Scard, 33 Beav, 327; though there ia a penalty annexed to §§ 447, 448 EQUITY JUBISPRUDENCa. 612 party in such a contract has elected to proceed at law, and has recovered a judgment for damages, he cannot afterwards come into a court of equity, and obtain a spe- cific performance; he cannot have the remedy given by both courts.^ § 447. Otherwise with Liquidated Damages. — Where, however, the parties to an agreement have added a pro- vision for the payment, in case of a breach, of a certain sum which is truly liquidated damages, and not a penalty, — in other words, where the contract stipulates for one of two things in the alternative, the doing of certain acts, or the payment of a certain amount of money in lieu thereof, — equity will not interfere to decree a specific performance of the first alternative, but will leave the injured party to his remedy of damages at law.* This is one reason among many why courts of equity incline strongly to construe such stipulations as providing for a penalty rather than for liquidated damages. § 448. Forfeiture. — This subject includes two entirely distinct questions, namely: When will equity interfere to aid the defaulting party, and to relieve against a forfeiture seonre its performance, yet the very to pay money. When the penalty thing itself must be done. If a man, appears to be intended merely as a for instance, agrees to settle an estate, security for the performance of the and executes his bond for six hundred agreement, the principal object of the pounds as a security for the perform- parties will be carried out. ance of his contract, he will not be ' Fox v. Scard, 33 Beav. 327, per allowed to pay the forfeit for his bond. Sir 3. Romilly, M. R. and avoid his agreement, but he will ^ French v. Macale, 2 Uru. & War. be compelled to settle the estate in 269; Howard v. Hopkins, 2 Atk. 371 ; specific performance of his agreement. Jones v. Green, 3 Younge & J. 298; ^ So if a man covenants to abstain from Coles v. Sims, 5 De Gex, M. & G. 1; doing a certain act, and agrees that Sainter v. Ferguson, 1 Macn. & G. 286; if he do it he will pay a sum of Rolfe v. Peterson, 2 Brown Pari. C. money, it would seem that he will l)e 438; Woodward v. Gyles, 2 Vern. 119; compelled to abstain from doing that Magrane v. Archbold, 1 Dow, 107; act; and just as in the converse case. Ranger v. Great Western R'y Co., 6 he cannot elect to break his agreement H. L. Cas. 73; Shiell v. McNitt, 9 by paying for his violation of the con- Paige, 101 ; St. Mary's Church v. tract." In Dooley v. Watson, 1 Gray, Stockton, 9 N. J. Eq. .920; Bodine v. 414, the doctrine was laid down in Glading, 21 Pa. St. .50; 59 Am. Dec. equally plain terms by Shaw, C. J.: 749; Hokleman v. Jennings, 14 Ark. " Courts of equity have long since 329; Skinner v. Dayton, 2 Johns. Oh. overruled the doctrine that a bond for B26; City Bank of Baltimore v. Smith, the payment of money, conditioned 3 Gill & J. 265; Jaquith v. Hudson, to be void on the conveyance of land, 5 Mich. 123; Hahn v. Concordia Soo., is to be treated as a mere agreement 42 Md. 4C0. 613 CONCEKNINQ PENALTIES AND FORFEITURES. § 450 by setting it aside, or by allowing him to go on and per- form as though it had not occurred, or by restraining the other party from enforcing it? and when will equity in- terfere at the suit of the creditor party, and by its decree actively enforce and carry into effect the forfeiture against the One in default? The former of these questions will be examined first in order. § 449. When Equity will Relieve. — It has been re- peatedly assumed and asserted by numerous judicial dicta, and the statement seems to have been accepted by many text-writers as correct, that a court of equity is governed by the same doctrine with respect to relief against forfeitures and against penalties. This is true, perhaps, when considered simply as the announcement of a rule in its most general form; but in its practical application it is subject to such important exceptions and limitation that there is, in fact, a marked distinction between forfeitures and penalties, in the view with which they are respectively regarded and dealt with by equity. We have seen that wherever a certain sum is stipulated to be paid as security for the performance of some act which is capable of pecuniary measurement, so that the compensation in the nature of damages for a non-per- formance can be ascertained with reasonable exactness, the certain sum is taken to be a penalty, and that courts strongly lean in favor of a construction which shall make it a penalty, so that it may be disregarded. This is not universally true, is not the practical test in case of forfeitures, although, perhaps, the court may use the same general formula of words as applicable to both in- stances. § 450. Ground and Extent of Such Relief. — It is well settled that where the agreement secured is simply one for the payment of money, a forfeiture either of land, chattels, securities, or money, incurred by its non-per- formance, will be set aside on behalf of the defaulting party, or relieved against in any other manner made* § 450 EQUITY JURISPRUDENCE. 614 necessary by the circumstances of the case, on payment of the debt, interest, and costs, if any have accrued, un- less by his inequitable conduct he has debarred himself from the remedial right, or unless the remedy is pro- hibited, under the special circumstances of the case, by some other controlling doctrine of equity.* Where the stipulation, however, is intended to secure the perform- ance or non-performance of some act in pais, it is impos- sible to lay down any such general rule with which all the classes of decisions shall harmonize. It is certain that if the act is of such a nature that its value cannot be pecuniarily measured, if the compensation for a de- fault cannot be ascertained and fixed with reasonable precision, relief against the forfeiture incurred by its non-performance will not, under ordinary circumstances, be given.'' The affirmative of this proposition cannot be stated as a rule with the same generality. It has, in- deed, been said that equity would relieve against for- feitures in all cases where compensation can be made; but this is clearly incorrect. It is well settled that a court of equity will not, under ordinary circumstances, set aside forfeitures incurred on the breach of many covenants contained in leases, or of stipulations in other agreements, although the compensation for the resulting > Hill V. Barclay, 16 Ves. 403, 405; Zimmerman, 63 Mo. 72; Palmer t. 18 Ves. 58, 60; Reynolds v. Pitt, 19 Ford, 70 111. 369; [Noyea v. Ander- Ves. 140; W^adman v. Calcraft, 10 son, 124 N. Y. 175; 21 Am. St. Rep. Ves. 68, 69; Bowser v. Colby, 1 Hare, 657; Grassman v. Bonn, 32 N. J. Eq. 128; Gregory v. Wilson, 9 Hare, 683; 43; Sunday Lake Mining Co. v. Wake- Braoebridge v. Buckley, 2 Price, 200; field, 72 Wis. 204.] Skinner v. Dayton, 2 Johns. Ch. 535; ' Gregory v. Wilson, 9 Hare, 683; 17 Johns. 339; Hagar v. Buck, 44 Vt. Hills v. Rowland, 4 De Gex, M. & 6. 285; 8 Am. Rep. 368; Hancock v. 430; Croft v. Goldsmid, 24 Beav. 312; Carlton, 6 Gray, 39; Carpenter v. Nokea v. Gibbon, 3 Drew. 618; White Westoott, 4 R. I. 225; Thompson v. Warner, 2 Mer. 459; Skinner v. V. Whipple, 5 R. I. 144; Walker v. Dayton, 2 Johns. Ch. 526, 535; Bax- Wheeler, 2 Conn. 229; Hart v. Homi- ter v. Lansing, 7 Paige, 350; Drenk- ler, 20 Pa. St. 348; Bright v. Row- ler v. Adams, 20 Vt. 415; Clarke v. land, 3 How. (Miss.) 398; Moore v. Drake, 3 Chand. 253; Gregg v. Landis, Platte, 8 Mo. 467; Walling v. Aiken, 19 N. J. Eq. 850; 21 N. J. Eq. 494, 3 McMull. Eq. 1; Royau v. Walker, 511; Ottawa Plank Road Co. v. Mnr- 1 Wis. 527; Giles v. Austin, 38 N. Y. ray, 15 HI. 336; [Klein v. Ins. Co., Sup. Ct. 215; 62 N. Y. 486; Orr v. 104 U. S. 88.] 615 CONCERNING PENALTIES AND FORFEITURES. § 451 injury could be ascertained without difficulty;* and on the other hand, the relief is often given, as will appear from subsequent paragraphs, where the agreement se- cured by the clause of forfeiture is not one expressly and simply for the payment of money. The following propo- sition seems to be a conclusion fairly drawn from all the decisions upon the subject, and to be an accurate and comprehensive statement of the general doctrine as set- tled by them, namely: In the absence of special circum- stances giving the defaulting party a higher remedial right, a court of equity will set aside or otherwise relieve against a forfeiture, both when it is incurred on the breach of an agreement expressly and simply for the payment of money, and also on the breach' of an agree- ment of which the obligation, although indirectly, is yet substantially a pecuniary one.^ § 451. Forfeiture Occasioned by Accident, Fraud, Sur- prise, or Ignorance. — There are, as intimated above, spe- cial circumstances which will entitle a defaulting party to relief against a forfeiture in cases where otherwise it would not be granted. Although the agreement is not one measurable by a pecuniary compensation, still, if the party bound by it has been prevented from an exact ful- fillment, so ' that a forfeiture is incurred, by unavoidable accident, by fraud, by surprise, or by ignorance, not will- ful, a court of equity will interpose and relieve him from the forfeiture so caused, upon his making compensation, if necessary, or doing everything else within his power.' ' White V. Warner, 2 Mer. 459; some of the dicta. See the eases cited E;iton V. Lyon, 3 Ves. 692, 69.3; Hill in the preceding notes. V. Barclay, 16 Ves. 403, 405; 18 Vea. 'Many of the cases under this doc- 58-64; Rolfe v. Harris, 2 Price, trine are those of covenants in leases, 206, note; Bracebridge v. Buckley, 2 but the doctrine, of course, extends Price, 200; Green v. Bridges, 4 Sim. to all agreements: Eaton v. Lyon, 3 96; Hills V. Rowland, 4 De Gex, M. Ves. 693, per Lord Alvanley; Hill v. & G. 430; Germantown etc. R'y v. Barclay, 18 Ves. 58, 62, per Lord Fitler, 60 Pa. St. 131; 100 Am. Dec. Eldon; Hannara v. South London 546; Dunklee v. Adams, 20 Vt. 415; Water Co., 2 Mer. 61; Bamford v. 50 Am. Dec. 44. Creasey, 3 GifiF. 675; Wing v. Harvey, » This mode of formulating the doc- 5 De Gex, M. & G. 265; Duke of Beau- trine is in harmony with all the decis- fort v. Neeld, 12 Clark & F. 248; ions, although it does not go as far as Bridges v, Longman, 24 Beav, 27; . 452 EQUITY JURISPRUDENCB. 616 Also, in the same class of cases, and upon the same equi- table grounds, if there has been a breach of the agreement sufficient to cause a forfeiture, and the party entitled thereto, either expressly or by his conduct, waives it or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by re- lieving against it, if necessary/ For a like reason a court of equi'^y may set aside or disregard a forfeiture occasioned by a failure to comply with the very letter of an agree- ment when it has nevertheless been substantially per- formed.' § 452. Forfeiture Willful or through Negligence. — While a defaulting party may thus acquire a right to the equitable relief from the conduct of the other party, he may also lose the right, which otherwise would have ex- isted, as a consequence of his own conduct. In a case where an agreement creates a mere pecuniary obligation, so that a forfeiture incurred by. its breach would ordi- Meek v. Carter, 6 Week. Rep. 852; [Noyes V. Anderson, 124 N. Y. 175; 21 Am. St. Rep. 657; Kopper v. Dyer, 59 Vt. 477; 59 Am. Rep. 742; Mactier v. Osbom, 146 Mass. 399; 4 Am. St. Rep. 323; Hulett v. Fairbanks, 40 Ohio St. 233. See §§ 826, 833.] In Hill v. Bar- clay, 18 Ves. 58, Lord Eldon was very strongly opposed to granting relief in ordinary oases, but he expressly says that his reasoning and conclusions do not apply to cases of accident, sur- prise, fraud, etc. ; as, for example, the forfeiture arising from a lessee's breach of a covenant to repair, the effect of the weather in preventing him, or if a permissive want of repair, the land- lord standing "by and looking on and not objecting. Wing v. Harvey, 5 De Gex, M. & G. 265, is a good illus- tration. A life policy contained a, condition making it void if the as- sured went beyond Europe without a license. The assured assigned the policy and took up his residence in Canada. The assignee, on paying the annual premium to an agent of the insurance company, informed him that the assured was residing in Canada. The agent answered that this would not avoid the policy, and continued to receive the premiums without ob- jection until the assured died. Al- though no license had been given, the lord justice held that the company could not insist upon the forfeiture; the assignee had been misled by the company's agent, and to enforce the forfeiture would be a "surprise," even if not an actual fraud. ' In many such cases there would be no need of an appeal to equity, since the breach and forfeiture would be waived at law. Moat of the de- cided cases have arisen from breaches of covenants i« leases, but the rule applies as well to all other agree- ments: Bridges v. Longman, 24 Beav. 27; Croft v. Lumbly, 6 El. & B. 648; Hughes V. Metropolitan R'y Co., L. R. 2 H. L. 439; Wing v. Harvey, 5 DeGex, M. & G. 265; Lilly v. The Fifty Asso- ciates, 101 Mass. 432; Helme v. Phil- adelphia Ins. Co., 61 Pa. St. 107; 100 Am. Deo. 621; Gregg v. Landis, 19 N. J. Eq. 356; 21 N. J. Eq. 494, 507; [Hurst T. Thompson, 73 Ala. 158; Robinson v. Cheney, 17 Neb. 673. See, however, ante, % 439, note.] ' Hagar T. Buck, 44 Vt. 285; 8 Am. Rep. 368. 617 CONCBRNINO PENALTIES AND FORFEITURES. § 453 narily be set aside, a court of equity will refuse to aid a defaulting party, and relieve against a forfeiture, if his violation of the contract was the result of gross negli- gence, or was willful and persistent. He who asks help from a court of equity must himself be free from inequi- table conduct with respect to the same subject-matter.' Having thus exhibited the doctrine in its general form, I shall briefly describe the most important instances of its application, namely: to conditions and covenants in leases; to conditions in contracts for the sale of land; to particular stipulations in other contracts; to the forfeiture of shares of stock; and to forfeitures created by statute. § 453. Forfeitures Arising from CoTenants in Leases. — Where a lease contains a condition that the lessor may re-enter and put an end to the lessee's estate, or even that the lease shall be void, upon the lessee's failure to pay the rent at the time specified, it is well settled that a court of equity will relieve the lessee and set aside a forfeiture in- curred by his breach of the condition, whether the lessor has or has not entered and dispossessed the tenant. This rule is based upon the notion that such condition and for- feiture are intended merely as a security for the payment of money.* * Hancock v, Carlton, 6 Gray, 39; thus occasioned, althongh in refasing Clarke y. Drake, 3 Chand. 223; Hors- to pay he had acted under a mistaken burg V. Baker, 1 Pet. 236.. [See also view as to hia own liability. It may § 856, note.] In Hancock T. Carl- be doubted, I thiak, whether the court ton, 6 Gray, 39, land had been con- did not push the doctrine of the text veyed, subject to certain mortgages too far, since the breach was not in which the grantee assumed to pay, any true sense willful, and " on condition that the grantor ' By the original doctrine of eqnity, should be indemnified and saved harm- the relief might be granted within any less." This condition having been reasonable time after a breach, and broken and a forfeiture thereby in- even after an ejectment; by the curred, the 'grantee brought suit in English statute, the suit in equity equity to set it aside. It appeared must be brought within six months that the grantor had been compelled after the lessor has recovered a judg- by due process of law to pay the mort- ment in an action of ejectment: Bow- gages, that he had duly notified the ser v. Colby, 1 Hare, 109, 128, 130- grantee (the plaintiff) of these legal 132; Home y. Thompson, 1 Sausse St proceedings, and required him to pay S. 615; Hill v. Barclay, 16 Ves. 403, the mortgages, but the plaintiff had 405; 18 Ves. 58-64; Eaton v. Lyon, 3 refused to do so. Upon these facts it Ves. 692, 693; White v. Warner, 2 was held that the plaintiff was not en- Mer. 459; Bracebridge v. Buckley, 2 titled to relief against the forfeiture Price, 200; Reynolds v. Pitt, 19 Ves. §§ 454, 455 BQUITT JUEISPEUDENCE. 618 § 454. Equity will not, under ordinary circumstances, relieve against a forfeiture arising from the breach of other covenants contained in a lease, on the ground that no exact compensation can be made. Among these cove- nants for a breach of which no relief can ordinarily be given ia that to repair generally, or to make specific re- pairs, or to lay out a certain sum of money in repairs or erections within a specified time;* the covenantto insure;' the covenant not to assign without license;* and in other covenants of a special nature.* It should be observed, how- ever, that in all cases of this class relief may be given when the breach was the result of fraud, mistake, acci- dent, surprise, and the like, or was acquiesced in or waived by the lessor.* § 455. From Contracts for the Sale of Land. — Where an ordinary contract for the sale of land is so drawn that 140; Atkins V. ChiUon, 11 Met. 112; Sauborn v. Woodman, 5 Cuah. 360; Stone V. EUia, 9 Cush. 55; Palmer v. Ford, 70 111. 3G9; [Sunday Lake Min. Co. V. Wakefield, 72 Wis. 204.] If, however, the lessee has also broken other covenants besides the one for rent, by reason of which he would be liable to an eviction, and against which no relief could be given, then a conrt of equity will not set aside the forfeiture incurred by a violation of the condition concerning rent, since such relief would be wholly nugatory: Bowser v. Colby, 1 Hare, 109; Home V. Thompson, 1 Sansse & S. 615; Wad- man V. Calcraft, 10 Vea, 67; Davis v. West, 12 Vea. 475; Nokea v. Gibbon, 3 Drew. 693. ' Gregory v. Wilson, 9 Hare, 683, 689; Kokea v. Gibbon, 3 Drew. 681; Hill V. Barclay, 16 Ves. 403, 406; 18 Vea. 58, 61, per Lord Eldon; Brace- bridge V. Buckley, 2 Price, 215; Croft V. Goldamid, 24 Beav. 312; the earlier cases of Hack v. Leonard, 9 Mod. 90, per Lord Macclesfield, and Sanders v.. Pope, 12 Vea. 282, 290, per Lord Grskine, which laid down a different rule, have been overtnrned by the sub- sequent authorities above cited. "Gregory v. Wilson, 9 Hare, 683; Green T, Bridges, 4 Sim. 96; Rey- nolds v. Pitt, 19 Vea. 134; Bracebridge V. Buckley, 2 Price, 218; White v. Warner, 2 Mer. 459; Havens v. Mid- dleton, 10 Hare, 641. An English statute authorizes the court to relieve against forfeiture incurred by a breach of a covenant to inaure, in certain specified cases; 22 & 23 Vict., c. 35, sees. 4, 6, 7, 8. " Hill V. Barclay, 18 Ves. 36, per Lord Eldon; Wafer v. Mocate, 9 Mod. 112; Wadman v. Colcraft, 10 Ves. 67; Lovat V. Lord Ramlagh, 3 Ves. & B. 24; Bracebridge v. Bucldey, 2 Price, 200, 221; Baxter v. Lansing, 7 Paige, 350; [Barrow v. Trustees (1891), 1 Q. B. Div. 417 (covenant against nnder- letting).] But in Gregg v. Landis, 6 21 N. J. Eq. 494, 514, it was held that a clause in a contract of sale that the vendee should not assign did not come within the meaning and operation of this rule. ' To cultivate the land in a hns- bandlike manner: Hills v. Rowland, 4 Be Ges, M. & G. 430; not to carry on a particular trade: Macher v. Found- ling Hospital, 1 Yea. & B. 187; not to suffer persons to use a private way over part of the land leased: Descar- lett v. Dennett, 9 Mod. 22. [See also Munroe v. Armstrong, 96 Pa. St. 307.] ' See ante, § 451, and cases in note. 619 CONCERNING PENALTIES AND FORFEITURES. § 455 the vendee's estate, interest, and rights under it are liable to be forfeited and lost upon his failure to pay the price at the time specified, the question whether equity will relieve him ought to be a very plain and simple one; but in the face of the authorities, it is impossible to be an- swered in any general and certain manner. To examine this question in detail would require me to anticipate the full discussion of the doctrine concerning time as the es- sence of contracts in their specific enforcement. I shall therefore simply state the general conclusion derived from the decided cases. It is well settled that where the par- ties have so stipulated as to make the time of payment of the essence of the contract, within the view of equity as well as of the law, a court of equity cannot relieve a vendee who has made default. With respect to this rule there is no doubt; the only difficulty is in determining when time has thus been made essential. It is also equally certain that when the contract is made to depend upon a condi- tion precedent, — in other words, when no right shall vest until certain acts have been done, as, for example, until the vendee has paid certain sums at certain specified times, — then, also, a court of equity will not relieve the vendee against the forfeiture incurred by a breach of such condi- tion precedent. But when, on the other hand, the stipula- tion concerning payment is only a condition subsequent, a court of equity has power to relieve the defaulting ven- dee from the forfeiture caused by his breach of this con- dition, upon his paying the amount due, with interest, because the clause of forfeiture may be regarded as simply a security for the payment. It is therefore held, in a great number of cases, that the forfeiture provided for by such a clause, on the failure of the purchaser to fulfill at the proper time, will be disregarded and set aside by a court of equity, unless such failure is intentional or willful. This conclusion is in plain accordance with the general doctrine of equity in relation to relief against forfeitures; bnt it cannot be regarded as a universal rule. Under § 456 EQUITY JURISJPRUDKNCE. 620 exactly these circumstances many American decisions have treated such a clause as rendering the stipulated time of payment essential, and as therefore binding ac- cording to its letter, and have refused to give any relief.* § 456. From Other Contracts. — In all other special con- tracts containing provisions for a forfeiture, the same gen- eral principle must, of course, be applied, although there may be some doubt or difficulty in the application. It is clear that if the contract be of such a nature that a clause for the payment of a certain sum upon its violation would be pronounced a provision for liquidated damages, then a court of equity would grant no relief against a forfeiture incurred by its non-performance. On the other hand, if the obligation created by the contract is substantially, though perhaps indirectly, a pecuniary one, then a court of equity undoubtedly will aid the defaulting party by setting aside a forfeiture. Between these two extremes there is a mass of agreements with respect of which the action of the courts in giving relief may perhaps be re- garded as somewhat discretionary. The mere fact that a certain sum stipulated to be paid upon a violation would be treated as a penalty is not of itself decisive in favor of a relief from forfeiture in similar cases. The examples given in the note will serve to illustrate the action of courts in dealing with such agreements.* ' See Pomeroy on Specific Perform- 359. Such decisions as these seem to anoe, sees. .S35, 336, 379; Wells v. ignore the equitable principle of relief Smith, 2 Edw. Ch. 78; 7 Paige, 22, from penalties and forfeitures. 24; Edgerton v. Peckham, 11 Paige, "In Steele v. Branch, 40 Cal. 3, a 362,359; Sanborn v. Woodman, 5 Cush. contract for the sale of land contained 36; Decamp v. Feay, 5 Serg. & R.323, a condition that if the vendee did not 326; 9 Am. Deo. 372; Remington v. pay off a mortgage upon the premises Irwin, 14 Pa. St. 143, 145; Jones v. when it fell due, the contract should Robbins, 29 Me. 361; 50 Am. Deo. be void and the land revert to the 593; Clark v. Lyons, 25 111. 105; vendor. This condition was held to Snyder v. Spaulding, 57 111. 480, 484; be a security for the performance of McClartey v. Gokey, 31 Iowa, 505; an obligation simply pecuniary, and Steele v. Branch, 40 Cal. 3; Farley v. the vendee was relieved from the for- Vaughn, 11 Cal. 227; Royan V.Walker, feiture occasioned by its default. In 1 Wis. 527; as examples of cases where Gregg v. Landis, 19 N. 0. Eq. 850, ■court has refused to interfere, see Ben- 21 N. J. Eq. 494, 514, the question «diot V. Lynch, 1 Johns. Ch. 370; 7 was carefully examined. A contract Am. Dec. 484; Grey v. Tubbs, 43 Cal. for the sale of land stipulated that the 621 CONCJSKNINQ PENALTIES AND FOEFEITUKES. § 458 § 457. Of Shares of Stock. — A forfeiture of the shares of stock in a corporation, regularly and duly incurred by the stockholder's or subscriber's failure to pay the calls or installments thereon according to the charter or by-laws of the company, will not be set aside or relieved against by a court of equity; and the same is true of a forfeiture of public and governmental stock by reason of a failure to comply with the terms of the loan concerning pay- ment.' § 458. When Imposed by Statute. — Finally, whenever any forfeiture is provided for by a statute, to be incurred on the doing or not doing some specified act, equity can afford no relief from it, and the same is true of a statu- tory penalty. A court of equity has no power to disre- gard or set aside the express terms of statutory legislation. vendee shoald plant shade-trees in a specified manner before a certain date, should erect a house for occupation within a, year, and should bring at least two and a half acres under culti- vation every year, and in default of any of these provisions the vendor should be entitled to take back the land, etc. The court held that the forfeiture caused by the vendee's non- performance could not be set aside. In City Bank v. Smith, 3 Gill & J. 265, a contract concerning lottery tick- ets provided that no holder of a ticket should be entitled to a prize unless he presented hia claim within a year; and it was held that the presentation within a year was thus made a condi- tion precedent, and a court could not relieve a ticket-holder who had failed to comply with this requirement. See also, as to conditions precedent in con- tracts, Flagg V. Munger, 9 N. Y. 483, 500; Faunoe v. Burke, 16 Pa. St. 469; -55 Am. Dec. 519. In Henry v. Tapper, 29 Vt. 358, where a deed was conditioned for the performance of a covenant by the grantee to maintain the grantor with food and lodging, it was held that equity would relieve the grantee from a forfeiture occasioned by his unintentional non-performance. The opinion in this case is able and inBtructive, and contains an exhaustive review of the decisions, English and American. It was said that whether relief woi^ld be granted or not in such cases was discretionary with the court. See also Dunklee v. Adams, 20 Vt. 421; 50 Am. Dec. 44; Austin v. Austin, 9 Vt. 420; Hagar v. Buck, 44 Vt. 285; 8 Am. Rep. 368. [Forfeiture of an in- surance policy for non-payment of pre- miums at a stipulated time will not be relieved against: Klein v. Ins. Co., 104 U. S. 88; Kniclserbocker Life Ins. Co. V. Dietz, 52 Md. 16.] ' Sparks v. Company etc. of Liver- pool Water Works, 13 Ves. 428, 433, 434, per Sir William Grant, M. R.; Pendergast v. Turton. 1 Younge & C. Ch. 98, 110-112; Naylor v. South De- von R'y Co., 1 De Gex & S. 32; Sud- lowv. Dutch etc. R'y Co., 21 Beav. 43; Germantown R'y etc. v. Fitler, 60 Pa. St. 124, 131; 90 Am. Deo. 546; Small v. Herkimer Mfg. Co., 2 N. Y. 335; [Burham v. S. F. Fuse Mfg. Co., 76 Oal. 26.] Of course, if there is any fraud or other inequitable or illegal conduct in the proceedings by which the calls are made or the shares are condemned, equity may, on that ground, relieve the stockholder or subscriber from the forfeiture, either by enjoin- ing the proceedings of the eorportion officials, or by setting them aside if they have been completed. 459 EQUITY JUKISPRUDENCE. 622 however much it may interfere with the operation of com- mon-law rules.' § 459. Equity will not Enforce Forfeitures. — The sec- ond question which it was proposed to consider is, When will a court of equity by its decree actively enforce or carry into effect a forfeiture ? The general answer to this question is easy and clear. It is a well-settled and famil- iar doctrine that a court of equity will not interfere on behalf of the party entitled thereto, and enforce a forfeit- ure, but will leave him to his legal remedies, if any, even though the case might be one in which no equitable re- lief would be given to the defaulting party against the forfeiture. The few apparent exceptions to this doctrine are not real exceptions, since they all depend upon other rules and principles.* The reasons of the doctrine are to ' Peachy v. Duke of Somerset, 1 Strange, 447, 452-456; Keating v. Sparrow, 1 Ball & B. 373; Powell v. Redfield, 4Blatchf. 45; [Clark v. Barn- ard, 108 U. S. 436, and cases cited; State V. MoBride, 76 Ala. 51.] ' Popham V. Bainpfield, 1 Vern. 83; Carey v. Bertie, 2 Vern. 339; United States V. McRae, L. R. 4 Eq. 327; Livingston v. Tompkins, 4 Johns. Ch. 415, 431; 8 Am. Deo. 598; Baxter v. Lansing, 7 Paige, 350, 353; Gordon v. Lowell. 21 Me. 251; Smith v. Jewett, 40 N. H. 530, 534; Atlas Bank v. Na- hant Bank, 3 Met. 581; Warner v. Bennett, 31 Conn. 461, 468; Oil Creek R. R. V. Atlantic & G. W. R. R., 57 Pa. St 65; Meig's Appeal, 62 Pa. St. 28, 35; 1 Am. Rep. 372; McKim v. White Hall Co., 2 Md. Ch. 510; White V. Port Huron etc. R. R., 13 Mich. 356; Michigan Bank r. Hammond, 1 Doug. (Mich.) 527; Lawl v. Hyde, 39 Wis. 353; Eveleth v. Little, 16 Me. 374, 377; Clarke v. Drake, 3 Chand. 253, 259: Fitzhugh v. Maxwell, 34 Mich. 138; Beecher v. Beeoher, 43 Conn. 556. In Oil Creek R. R. v. Atlantic etc. R. R., 57 Pa. St. 65, Mr. Justice Sharswood explained the equi- table grounds of this universal doctrine as follows: A lease had been granted containing a condition that the lessee should build a certain railroad within a prescribed time, and the plaintiffs sought to enforce a forfeiture of the lease on account of the defendant's non-performance of this condition. It was therefore very plainly a case where the court could not, in accord- ance with the settled rule, set aside the forfeiture at the suit of the lessee. The court said: "A bill for the spe- cific enforcement of a contract is aa appeal to the conscience of the chan- cellor. He exercises upon the ques- tion presented a sound discretion, under all the circumstances of the case, for the most part untrammeled by rule or precedent. If the bargain is a hard or unconscionable one, if the terms are unequal, if the party calling for hia aid is seeking an undue advan- tage, he declines to interfere. There- fore it is that although courts of equity will not, in general, relieve against a forfeiture, unless it be in the case of non-payment of rent, where an exact and just compensation can be made by decreeing to the landlord the arrears of his rent, with interest and costs, yet they never lend their as- sistance to the enforcement of one, but leave the party to his legal remedies. More especially is this the case where the contract has been substantially car- ried out, but its literal fulfillment has been prevented by uncontrollable cir- cumstances. It is unnecessary to cite authorities in support of these posi- 623 CONCERNING PENALTIES AND FORFEITUKES. § 460 be found in the universal principle that a court of equity refuses to aid any party who, by the remedy which he . seeks to obtain against his adversary, is not himself doing equity, or who does not come before the court " with clean hands," — the same principle upon, which the court acts when it refuses to specifically enforce a contract which is unequal, unjust, or has any inequitable features and inci- dents. § 460. There are, in fact, no exceptions to this doc- trine; those which appear to be exceptions are not so in reality. Thus a court of equity may, by its restraining decree or injunction, compel the observance of stipula- tions in the nature of conditions by which some restraint is imposed upon the use or occupation of land conveyed, such as the provisions in a deed by which the grantee is forbidden to build in a certain manner, or to use the premises for certain purposes, thereby creating a servi- tude in favor of adjacent land of the grantor. Compel- ling the performance of such a stipulation, which perhaps may be" in the form of a condition, by restraining its violation, is plainly not the enforcement of a forfeiture.' Again, a provision in the form of a condition may be specifically enforced as though it was a simple covenant, but without any forfeiture. The agreement is thus treated as though it was not a condition, and its specific performance is in fact the very reverse of a forfeiture.* tions. They underlie all the cases '■ Gibert v. Peteler, 38 N. Y. 165; which abound upon the subject, and 97 Am. Dee. 785; Trustees etc. v. hare been canonized in the standard Lynch, 70 N. Y. 440; 26 Am. Rep. elementary works. They commend 615, and cases cited; Lattimer v. themselves to every man's common Livermore, 72 N. Y. 147; Badger v. sense of reason and justice, in view of Boardman, 16 Gray, 559; Whitney ▼. the special objects which courts of Union R'y, H Gray, 359; 71 Am. Dec. equity have been constituted to effec- 715; Linzee v. Mixer, 101 Mass. 512; tuate." [Birmingham v. Lesau, 77 Dorr v. Harrahan, 101 Mass. 531; 3 Me. 494; Broadnax v. Baker, 94 N. C. Am. Rep. 398. 675; 55 Am. Rep. 633; MoClellan v. " Livingston v. Sickles, 8 Paige, 398; Coffin, 93 Ind. 456; Mills v. Evans- 7 Hill, 253; Carpenter v. Catlin, 44 ville Seminary, 52 Wis. 669; Hagerty Barb. 75; Leach v. Leach, 4 Ind. 628j V. White, 69 Wis. 317; McCormick v. 58 Am. Deo. 642. Koasi, 70 Cal. 474.] §461 EQUITY JUBISFBUDBKCB. 624 SECTION II. CONCERNING ELECTION. § 461. Qaestioiis stated. i§ 462-465. Rationale of the doctrine discussed. § 463. In the Roman law. § 464. Foundation, the presumed intention of the donor § 465. The true foundation is the principle, He who seeks equity mnat do equity. :§ 466-470. Meaning, extent, and effects of the doctrine. § 466. Election in conformity with instrument of donation. § 467, 468. Election in opposition thereto; rules; compensation. § 469. No election unless compensation can be made. § 470. Applies to all instruments of donation. !§ 471-505. Applications; classes of cases in which the necessity for an eleo- tion does or does not arise. § 472. Fundamental rule; what creates the necessity for an election. i§ 473-475. Subordinate rules of interpretation. !§ 473, 474. Donor has only a partial interest; evidence of intention not ad- missible; a general gift raises ho election. § 475. Other special rules of interpretation. § 476-486. First class: Donor gives property wholly another's. § 477. Ordinary case, gift of specific property. § 478-480. Under appointments in pursuance of powers. § 481-486. Where testator has attempted to give property by a will which is ineffectual. § 482. Infancy or coverture of testator. § 483. Will valid as to personal, invalid as to real, estate. § 484. Will invalid as to property in another state or countiy. § 485. Will devising after-acquired lands. § 486. Will of copyholds. § 487-505, Second class: Donor gives property in which he has a partial interest. § 488. The general doctrine. § 489. Donor owns only an undivided share. § 490. Donor owns only a future interest. § 491. Devise of lands encumbered. I 492-502. Dower; widow's election between dower and gifts by her hoa. band's will. § 493. The general rule. § 494. Contrary legislation in various states. I 495-502. Classes of testamentary dispositions. § 496. Express declaration. S 497. Devise of a part of testator's land to the widow, and the rest ta others. 625 CONCERNING ELECTION. § 461 5 498. Devise to the widow for life. § 499. Devise in trust to sell, or with a power of sale. § 500. Gift of an annuity, etc., to widow, charged upon the landa demised to others. § 501. Devise with express power of occupying, leasing, etc § 602. Devise to widow and others in equal shares. S§ 50.3-505. Election in devises of community property. § 506. The remaining questions stated. §§ 507-510. Who may elect; married women; infants; lunatics. §§ 511, 512. Rights and privileges of persona bound to elect. § 513. Time of election; state statutes. §§ 514, 515. Mode of election, express or implied; conduct amounting to an election. §§ 516, 517. Effects of an election. §§ 618, 519. Equitable jurisdiction in matters of election. § 461. Questions Stated. — As I have already said in the preceding chapter, the equitable doctrine of election originates in inconsistent or alternative gifts, with the intention, either expressed or implied, that one shall be the substitute for the other. A court of equity, there- fore, acting upon the fundamental principle that he who seeks equity must do equity, as explained in a former section, declares that the donee is not entitled to both benefits, but to the choice of either, — to an election between them.^ There are two cases, differing in their circumstances, but depending upon this one broad prin- ciple, which are to be considered, although the first of them only is usually included under the name "election"; the second will more properly be treated of under the title of satisfaction. 1. The owner of an estate, in an instrument of donation, either will or deed, uses Ian- guage with reference to the property of another, which, if that property were his own, would amount to an effec- tual disposition of it to a third person; and by the same instrument gives a portion of his own estate to ,that same proprietor whose rights of ownership he had thus assumed to transfer. Under these circumstances, an obligation rests upon that proprietor either of relin- ' See ante, § 396; Mr. Swauston's note to Dillon v. Parker, 1 Swanst 394; Snell's Equity, 178. 1 Eq. Jur. — 40 § 462 EQUITY JUKISPRUDENCE. 626 quisMng (at least to the extent of indemnifying tliose whom he disappoints) the benefit conferred on him by the instrument, if he asserts his own incansistent pro- prietary rights; or if he accepts that benefit, of complet- ing the intended disposition, by transferring to the third person that portion of his own property which it pur- ports to effect.' There is a particular branch of this case in which the doctrine of election may arise, not because a party has attempted to transfer property not Ms own, but where a testator has attempted to dispose of some of his own property by means of a will ineS'ectual for that purpose.^ 2. If the person to whom, by an instrument of donation, a benefit is given, possesses at the same time a previous claim against the donor, and an intention appears that he shall not both enjoy the benefit and enforce the claim, the same equitable doctrine requires the donee to elect between his original and his substituted rights; the gift being designed as a satisfaction of the claim, he cannot accept the former without renouncing the latter.' It is to the first of these two cases that the doctrine of "election," technically so called, applies, which will be examined in the present section. § 462. Rationale of the Doctrine. --The essential facts presenting an occasion for the doctrine of election are: A gives to B property belonging to C, and by the same instrument gives to C other property belonging to him- self. The equitable doctrine upon these facts, briefly, is: C has two alternatives: 1. He may elect to take under the instrument, and to carry out all its provisions; he will then take A's property, which was given to him, and B will take C's property. 2. He may elect against the instrument. In that case he will not wholly forfeit the benefits intended to be conferred upon him; he must ' Mr. Swanston's note 6 to Dillon v. personal property to his heir at law, Parker, 1 Swanat. 394; Snell's Equity, and the will is valid as one of personal 178. estate, but ineffectual as one of rea) ' As where a testator, by the same estate, will, has purported to devise his land • Snell's Equity, 178, to a third person, and has bequeathed 627 CONCERNING ELECTION. § 463 surrender only so much of such benefits as may be necessary to compensate B for the disappointment he has suffered by C's election to take against the instru- ment.* The foundation of this doctrine is said by the early cases to be the intention of the donor, either ex- pressed in the instrument or implied by its terms; and the court, by requiring an election to be thus made, is said to. be carrying into effect this assumed intention.^ Whether this be the correct explanation of the rule will be considered in subsequent paragraphs. As the doctrine of election is one of the most distinctive and remarkable features of equity jurisprudence, I purpose in my further treatment of it to explain, in the first place, its general meaning, scope, and effect; and in the second place, to describe its particular applications, together with its lim- itations and exceptions as established by the course of decision. § 463. In the Roman Law. — The germ of the doc- trine of election, as above stated, is confessedly to be found in the Roman, law. The substance of a Roman testament consisted in the designation of some person who was thereby constituted the heir or universal suc- cessor to the testator> and a time was allowed him -in, which to decide whether he would accept or reject the , inheritance. If he accepted, he not only acquired a title to all the prbperty and assets of the deceased, buthe alsO' became subject to all the debts and liabilities of the tes- tator, and substantially to all the legacies and bequests to particular individuals contained in the will. Among the burdens thus assumed by the heir was that of procuring for a legatee or giving to him the value of any particu- lar subject-matter which the testator had bequeathed to him, knowing that it belonged to a third person. If a testator, besides appointing Titius his heir, had said, " I ' Gretton v. Haward, 1 Swanst. 409, and rules deduced from them are 433, and the note of Mr. Swanston, in formulated. which the prior decisions are collected, * DiHon y_ Parker, 1 Swanst 359, 394, note of Mr. Swanston. § 464 EQUITY JUKISPRUDBNCE. 628 bequeath to Claudius the house of Sempronius, situate at Tusculum," Titius, on accepting the inheritance, was bound either to purchase the house of Sempronius, and convey it to Claudius, or if that was impossible, to pay Claudius the appraised value of the house. This rule, however, only applied where the testator knew that the thing which he bequeathed was the property of another, and not if he erroneously supposed that it was his own. In that case the legacy would be simply void. This doctrine is stated in the Institutes as follows: "A testator may not only give as a legacy his own property, or that of his heir, but also the property of others. The heir is then obliged either to purchase and deliver it, or if it cannot be bought, to give its value But when we say that a testator may give the goods of another as a legacy, we must be understood to mean that this can only be done if the deceased knew that what he bequeathed belonged to another, and not if he were ignorant of it; since, if he had known it, he would not, perhaps, have left such a legacy." ' In this respect, our , equity jurisprudence differs widely from the Eoman law, since the equitable doctrine of election applies, whether the donor was or was not aware that he was dealing with property not his own. § 464. Presumed Intention of the Donor. — In seeking the origin of the doctrine, and endeavoring to ascertain its true foundation, I will quote by way of illustration one of the earliest cases in which the question distinctly arose:* "A was seised of two acres, one in fee, t'other in tail; and having two sons, he, by his will, devises the fee- ' Justinian's Institutes, lib. ii., tit. The French code entirely refuses to XX., sec. 4: "Nou solum autem tes- adopt the doctrine of election, and the tatoria vel heredis res, sed etiam aliena bequest or donation of another's prop- legari potest, ita ut heres cogatur redi- erty would be void. Code Civil, sec. mere earn et praastare; vel si non potest 1021: "Loraque le testateur anra redimere, lestimationemejuadare legue la chose d'autrui, le legs sera Quod autem diximua alienam rem posse nul, soit que le testateur ait connu, legari, ita intelligendum est, si defunc- ou non, qu'elle ne lui appartenait tus sciebat alienam rem ease, non et pas." Bi ignorabat; forsitan enim si soiaset * Anonymous, Gilb. Eq. 16. alienam, nou legaaset." 629 UONCKRNING ELECTION. § 464 simple acre to his eldest son, who was issue in tail; and he devised the tail acre to his youngest son, and dy'd; the' eldest son entered upon the tail acre; whereupon the youngest son brought his bill in this court against his brother, that he might enjoy the tail acre devised to him, or else have an equivalent out of the fee acre; because his father plainly designed him something. Lord Chancellor Cowper: This devise being designed as a provision for the youngest son, the devise of the fee acre to the eldest son must be understood to be with a tacit condition that he shall suffer the younger son to enjoy quietly, or else that the younger son shall have an equivalent out of the fee acre, and decreed the same accordingly. " The ration- ale of the doctrine, as shown by this and other decisions, plainly appears to be that a court of equity implies a con- dition where none is expressed in the will, and annexes it to the donation. As Lord Chancellor Cowper says: "The devise of the fee acre to the eldest son is understood to be with a tacit condition that he shall suffer the younger son to enjoy quietly." It should be remarked ihat this gives no real explanation, — adds nothing to the mere statement of the doctrine itself. When we say that equity implies a condition ii;i the instrument annexed to the donation, we are, in fact, only stating the doctrine of election in other words; the very obligation to elect consists in the conditional nature of the devise. Judges have therefore gone a step further back, and have said that the condition is implied, because such result — such tacit addition to the instrument — must be regarded as being in accordance with the actual intention of the testator or other ,donor. This, then, is said to be the foundation of the doctrine, — the actual intention of the donor assumed, from the na- ture of the gifts, to have existed. A disposition calling for an application of the doctrine of election may be made under two following different states of circumstances: Either the donor may know that the property which he assumes to deal with is not his own, but belongs to § 464 EQUITY JURISPRUDENCE. 630 another, and notwithstanding such knowledge he may assume to give it away; or he may give it away, not knowing that it belongs to another, but erroneously and in good faith supposing that it is his own. In the first of these two cases, the presumption of an intention on the part of the donor to annex a condition to the gift calling for an election by the beneficiary plainly agrees with the actual fact; at all events, it violates no prob- abilities. When a testator devises an estate belonging to A to some third person, and at the same time be- stows a portion of his own property upon A, he un- doubtedly must rely upon the benefits thus conferred upon A as an inducement to a ratification by A of the wliole disposition. To give A the property which the testator was able to dispose of, and at the same time to allow him to claim his own estate, which had been devised to the third person, by his own paramount title, would be to frustrate the evident intention of the testator. In the second case, where the testator, or other donor, erroneously supposes that the property which he under- takes to give away is in fact his own, the doctrine of elec- tion applies with the same force and to the same extent as in the former.* Here it is in the nature of things sim- ply impossible that the donor could actually have had the ' See Cooper v. Cooper, L. R. 6 Oh. to have thought that there was some 15, 16, 20. lu the court of first in- distinction between an invalid gift of stance, Vice-Chancellor Stuart held property which the testator believed to there was no case for an election. He be his own and an invalid gift of prop- said (p. 16, in note): " In order to raise erty which the testator knew not to be a case for election, there must be an at- his own, but which he believed he had tempted disposition of property over a power of appointment over, which he which the testator has no disposing had not. I am unable to find any power, and a, disposition of property authority or any principle on which to of his own on such a footing as shows rest this distinction. It is in both that he considered himself to have power cases in substance a disposition, or to dispose of the former properly. " The an attempted disposition, by will, of vice-chancellor thus expresses an property over which the testator has opinion that the doctrine of election no disposing power." See Ingram v. only applies in the second case men- Ingram, cited in Kirkam v. Smith, 1 tioned in the text, namely, when the Ves. Sr, 258, 259; Thellusson v. Wood- donor had acted under an erroneous ford, 13 Ves. 209, 220; Whistler v. supposition. This decision was re- Webster, 2 Ves. 367; Birmingham v. versed by the court of appeals. Lord Kirwan, 2 Schoales & L. 444; Grissell Justice James thus states the doctrine v. Swinhoe, L. R. 7 Eq. 291. (p. 20): " The vice-chancellor appears 631 CONCERNING ELECTION. § 464 intention which the theory imputes to him, since he really believes himself to have a disposing power of the property, or to be dealing with property which is his own. And yet the earlier decisions, at least, regarded the presumed intention to annex a condition to the gift as the true foundation of the doctrine in this case as much as in the other.' The course of reasoning through which the ju- dicial mind passed in reaching these conclusions is very plain, and, as I think, very natural. In an early case of the first kind, where a testator had designedly assumed to devise property over which he knew that he had no dis- posing power, the court saw, and were compelled to see, an actual intention of the testator to annex the tacit con- dition to his gift, and this intention was made the basis of the doctrine of election as applied under such circum- stances. When another case arose of the second kind, where the testator had acted under an erroneous sup- position, the court, having concluded that the doctrine of election must also be applied here, naturally, and as a part of their verbal judicial logic, gave to it the same foundation in an assumed intention of the testator, although, under the circumstances, no such intention actually existed or could exist. The doctrine, therefore, although originally springing from an actual intention, and although professing always to be based upon the ' The note of Mr. Swanston to the Streatfield, Cas. t. Talb. 176, has es- case of Dillon V. Parker, I Swanat. 359, tablished this broad principle, viz., 394, 401, has always been considered that no man shall claim any benefit as an accurate statement of the doc- under a will without conforming, as trine and of the reasons upon which far as he is able, and giving eflfect to it is based. He reaches this conclu- everything contained in it, whereby sion, as applicable under all circura- any disposition is made showing an stances: " The foundation of the intention that such thing shall take equitable doctrine is the intention, place, without reference to the circum- explicit or presumed, of the author of stance whether the testator bad any the instrument to which it is applied." knowledge of the extent of his power The opinion of Lord Alvanley in or not. Nothing can be more danger- Whistler V. Webster, 2 Ves. 367, ous than to speculate upon what he 370, has always been looked upon as would have done if he had known one a leading one. He says: "The ques- thing or another. It is enough for tiou is very short, — whether the doc- me to say he had such an intention; and trine laid down in Noys v. Mordaunt, I will not speculate upon what he 2 Vem. 581, Bq. Cas. Abr. 273, pi. would have intended in different cases 3, Gilb. Eq. 2, and Streatfield v. put." § 465 EQUITY JUEISPRUDENCB. 632 intention, is really independent of intention; while the language may still be repeated, that the court presumes an intention, no evidence would ever be admitted for the purpose of showing its existence or non-existence. In short, the doctrine of election has become a positive rule of the law governing the devolution and transmission of property by instruments of donation, and is invoked wholly irrespective of the intention of the donor, although in the vast majority of cases it undoubtedly does carry into effect the donor's real purpose and design. § 465. True Foundation. — What, then, is the real foundation? It is possible to answer this question. There is, in my opinion, a true rationale which at once relieves the doctrine of election from all the semblance of techni- cality and untruth attaching to it when it is referred to a presumed intention, which prevents it from being regarded as a stretch of arbitrary power on the part of the court, and which shows it to be in complete harmony with the highest requirements of righteousness, equity, and good faith. I venture the assertion that the only true basis upon which the doctrine can be rested is that maintained in the preceding chapter, namely, the grand principle that he who seeks equity must do equity. This principle has ordinarily been regarded simply as furnishing a guide to the courts in their apportionment of equitable re- lief among the parties in a great variety of cases; but, as I have shown, it is also the undeniable source of certain distinctively equitable doctrines. There is no doctrine more unmistakably and completely derived from this grand principle than that of election. The whole theory and process of election is a practical application of the maxim, He who seeks equity must do equity. A party asserts his claim to certain property; in order that he may obtain any relief, he must acknowledge and make provision for the equitable rights of other parties derived from the same instrument, and to that end must make his election, so that in either choice those rights shall be pre- 633 CONCERNING ELECTION. § 466 served. The very election which, he is obliged to make consists in the " doing equity" to others which the prin- ciple demands. In this principle, He who seeks equity must do equity, is found a sufficient explanation and a solid foundation for the doctrine, which is thus seen to harmonize, in all its phases and applications, with the requirements of justice and good faith.' § 466. Meaning, Scope, and Effects — Election in Con- formity with the Instrument. — Having thus ascertained the origin and foundation of the doctrine, I proceed to describe its true meaning, scope, and effect. This discus- sion will consist mainly in determining with accuracy the nature of the tacit condition imposed by the donor upon the gift which he has made to the beneficiary whose property he also assumed to dispose of to another person. What is this condition? Lord Chancellor Cowper, in the case heretofore quoted, stated it very briefly, that " the eldest son shall suffer the youngest son to enjoy quietly, or else have an equivalent out of the fee acre." The tacit condition is thus always double and alternative in its form. Its effect is, that the donee, whose own property has also been given to another person, may elect either to take under and in conformity with the will or other in- strument of donation, or else to take against it. If he elects the first alternative, and takes under the will, then the condition simply requires him to carry out all the dispositions of that instrument. In other words, he re- ceives the testator's property directly bestowed upon him as devisee, and at the same time conveys his own estate to the other person designated by the will as the recipient ' Some writers and some judges, in equity must do equity, — I have, I treating "election" as based wholly would venture to suggest, relieved it upon the notion of a presumed inten- from these criticisms, and have shown lion, have described the doctrine, in that the early chancellors, in its inven- eertain of its applications, as arbitrary tion and development, acted wisely, and technical, and as an unwarrant- and in full accordance with the con- able exercise of power by the court of ceptions of a high morality, upon chancery. In abandoning the theory which the whole system of equity of an "intention" as more formal jurisprudence is constructed. [Penn v. than real, and in placing election upon Guggeuheimer, 76 Va. 839.] a basis of principle, — He who seeks § 467 EQUITY JURISPRUDENCE. 634 of it. There is no difficulty in this case, no doubt or question concerning this alternative branch of the tacit condition; the will or other instrument of donation is carried into effect in ej;act conformity with its disposi- tions.' § 467. Election in Opposition thereto. — The only diffi- culty arises when the party upon whom the condition rests elects to take against the will. In such case he re- tains his own estate, which the will had assumed to bestow upon the other person, but of course cannot claim, to its full extent at least, the testator's property which the will had given to himself. What is, then, the import of the tacit condition? It does not say he must take in con- formity to the will, or else forfeit the testator's property given by it to him. If that were the effect of the condi- tion, the forfeited property would either descend to the testator's heir, or be embraced in the residuary clause of the will, and the third person intended by the testator to be benefited would receive nothing. The condition there- fore says that he shall confirm the will, or else, out of the testator's property given to him by the will, he shall make compensation to the third person, who is disappointed by his choice. The tacit ■ condition imposing the obligation of an election upon one party contrives a means of satis- fying the substantial rights of both parties, by compelling full equity to be done. This import of the condition im- posed upon the donee who is to make the election is well stated in the following conclusions reached by Mr. Swans- ton, after a review of the authorities, in his well-known note to Gretton v. Haward,' viz.: — ' [Penn v.Guggenheimer,76 Va.839.] ascribing to the court an equity to lay ' Gretton v. Ha ward, 1 Swanst. 409, hold on the estate thu3 taken from 433, 441. The doctrine is ably stated the devisee by the principle of elec- iu the following opinion of Sir Thomas tion, and dispose of it in favor of Plumer, M. R., in this case, which those whom he has disappointed; not has always been regarded as a leading merely taking it from one, but, such one (p. 423): "Few cases are to be is the uniform doctrine, bestowing it found on the subject, but it must be on the other,' — a doctrine not con- acknowledged that the language of fined to instances in which the heir is the great judges by whom it has been put to election, and which may be said discussed proceeds to the extent of to bring him within the operation of 635 CONCERNING ELECTION. § 468 1. That in the event of an election to take against the instrument, courts of equity assume jurisdiction to se- quester the benefits intended for the refractory donee, in order to secure compensation to those whom his election disappoints. 2. That the surplus after compensation does not de- volve, as undisposed of, but is restored to the donee, the purpose being satisfied for which alone the court controlled his legal right. § 468. Compensation the Result. — In this general ex- amination of the doctrine there remains one more ques- tion to be considered. In any case for an election, where the party upon whom the necessity devolves elects to take in opposition to the instrument of donation, and there- fore retains his own estate which had been bestowed upon the third person, does he thereby lose all claim upon or benefit of the donor's property given to himself? or does he only lose such part of it or so much of its value as may be needed to indemnify the disappointed third person? In adjusting the equities between himself and the third person, must he necessarily surrender to that person the the general principle, but prevailing the court possesses power to sequester as a universal rule of equity, by which the estate till satisfaction has been the court interferes to supply the made, not permitting it to devolve in defect arising from the circumstance the customary course. Out of that of a double devise, and the election sequestered estate so much is taken ,of the party to renounce the estate as is requisite to indemnify the dis- effeotually devised; and instead of appointed devisee; if insufficient, it permitting that estate to fall into the is left in his hands. In the case to channel of descent, or to devolve in which I have referred. Lord Lough- any other way, lays hold of it, to use borough uses the expression that the the expression of the authorities, for conrt 'lays hold of what is devised, the purpose of making satisfaction and makes compensation out of that to the disappointed devisee, — a very to the disappointed party. ' .... It singular office; for in ordinary cases, would be tqo much now to dispute where a legatee or devisee is disap- this principle, established more than pointed, the court cannot give relief, a century, merely on the ground of but here it interposes to assist the difficulty in reducing it to practice, party whose claim is frustrated by and disposing of the estate taken from election. Such is the language of the heir at law without any will to Lord Chief Justice De Grey, cited guide it; for to this purpose there is with approbation by Lord Lough- no will; the will destined to the devi- borough; 'The equity of this court see, not this estate, but another; he is to sequester the devised estate takes by the act of the court (an act quousque till satisfaction is made to truly described as a strong operation); the disappointed devisee.' I conceive not by descent, not by devise, bat by it to be the universal doctrine that decree, — a creature of equity." 468 EQUITY JURISPRUDENCE. 636 entire gift made to himself? or must he simply make ade- quate compensation? Few, if any, of the cases have re- quired a decision of this question;' and what has been said concerning it has chiefly been by way of argument and of judicial dictum. The rule may be regarded, how- ever, as settled by the weight of judicial opinion very strongly in favor of compensating the donee who is dis- appointed by an election against the instrument. If the gift which he takes by way of substitution is not sufficient in value to indemnify him for that which he has lost, he ■of course retains the whole of it." ' The reason is very plain. A per- son compelled to elect will generally be influenced, in making the election, solely by his own pecuniary interests. If the property bequeathed to himself by a will is more valuable than his ■own, he naturally elects to take under the will, and lets his own estate go to the third person. If the property be- queathed to himself be less valuable than his own, he elects to take against the will, and retains his own. It is then of no consequence whether the principle adopted with reference to the bequest made to himself be for- feiture or compensation, since the whole subject-matter is insufficient to indemnify the disappointed legatee. In other words, tlie third person takes all the bequest in question, and must be satisfied with it, for he has no right to anything more. The question would arise in such a case as the fol- lowing: A testator bequeaths fifty thousand dollars to A, and devises to B an old family estate of which A is owner in fee, and which is worth only twenty thousand dollars. A, from attachment to the family estate, elects to keep it, and thus to take in opposi- tion to the will. Is B'then entitled to the whole fifty thousand dollars? or only to twenty thousand dollars of it, — the value of the estate which he loses by the election, — so that the balance of thirty thousand dollars would still be- long to A? The latter alternative is the view taken by the weight of authority. " Gretton v. Haward, 1 Swanst. 409, 423, 433, 441. See opinion of Sir T. tlumer, M. R., and note of Mr. Swanston, quoted ante, § 467; Rogers V. Jones, 3 Ch. Div. 688; Pickersgill V. Rodger, 5 Ch. Div. 163, 173. In Rogers V. Jones, 3 Ch. Div. 688, under the peculiar circumstances of the case, the question was actually decided, and the opinion was not a dictum. Jessel, M. R., said (p. 689): "The doc- trine of election is this: that if a person whose property a testator af- fects to give away takes other bene- fits under' the same will, and at the same time elects to keep his own prop- erty, he must make compensation to the person affected by his election to an extent not exceeding the benefits he receives. " In Pickersgill v. Rodger, 5 Ch. Div. 163, 173, Jessel, M. R., speaking of a son of a testatrix to whom she had devised property, says (p. 173): "Consequently, as between his (the son's) estate and her disap- pointed legatees, her disappointed legatees are entitled to put his estate to an election; that is, any disappointed legatee is entitled to say, 'Yon shall not have the benefit given to your es- tate by the will, unless I have made up to me an equivalent benefit to that which the testatrix intended me to take.' Sometimes this is called the doctrine of compensation, which is the meaning of the doctrine of election as it now stands. The disappointed legatee may say to the devisee, 'You are not allowed by a court of equity to take away out of the testatrix^s estate that which you would otherwise be en- titled to, until you have made good to me the benefit she intended for me.' That means that no one can take the property which is claimed under the will without making good the amount; or in other words, as between the dev- isees and legatees claiming under the 637 CONCEKNING ELECTION. § 469 § 469. A Fund from Which Compensation can be Made, Essential. — As the doctrine of election thus de- will, the disappointed legatees are en- titled to sequester or to keep back from the other devisees or legatees the prop- erty so devised and bequeathed, until compensation is made. Thence arises the doctrine of an equitable charge or right to realize out of that property the sum required to make the com- pensation. If you follow out that doctrine, you will see that the person taking the property so devised or be- queathed takes it subjeotto an obliga- tion to make good to the disappointed legatee the sum he is disappointed of. The very instrument which gives him the benefit gives him the benefit bur- dened with the obligation, and the old maxim, Qui sentit commodnm sentire debet et onus, applies with the greatest force to such a case as this." The doc- trine is here explained by the able master of rolls with his usual clear- ness and precision. The concluding sentences of the passage fully sustain the view maintained by me, that the whole doctrine is derived from the principle. He who seeks equity must do equity. In Howells v. Jenkins, 1 De Gex, J. & S. 617, 619, Turner, L. J., stated this doctrine: "The true prin- ciple appears to me to be, that where a person elects to take against a will, the persons who are disappointed by ' that election are entitled to compensa- tion, out of the benefits given to him by the will, in proportion to the value of the interests of which they are disappointed. " See also the follow- ing cases, which, either by judicial dkta or by decision, sustain the rule as to compensation: Streatfield v. Streatfield, Cas. t. Talb. 176; Webster v. Metford, 2 Eq. Cas. Abr. 363; Bor V. Bor, 3 Brown Pari. C, Tomlins's ed., 167; Ardesoife v. Ben- nett, 1 Dick. 463; Lewis v. King, 2 Brown Ch. 600; Freke v. Barrington, 3 Brown Ch. 274, 284; Whistler v. Webster, 2 Ves. 367; Ward v. Baugh, 4 Ves. 623; Lady Oaven v. Pulteney, 2 Ves. 544, 560; Blake v. Bunbury, 1 Ves. 514, 523; Welby v. Welby, 2 Ves. &, B. 190, 191; Daahwood v. Pey- ton, 18 Ves. 27, 49; Tibbits v. Tibbits, Jacob, 317; Lord Rancliffe T. Parkyns, 6 Dow, 149, 179; Ker v. Wauchope, 1 Bligh, 1, 25; Padbury v. Clark, 2 Maon. & Gr. 298; Greenwood v. Penny, 12 Beav. 403; Grissell v. Swinhoe, L. R. 7 Eq. 291; Spread v. Morgan, 11 H. L. Cas. 588; Cauffman v. Cauff- man, 17 Serg. & R. 16, 24, 25; Phila- delphia V. Davis, 1 Whart. 490, 502; Stump V. Fin(ilay, 2 Rawle, 168, 174; 19 Am. Dec. 632; Lewis v. Lewis, 13 Pa. St. 79, 82; 53 Am. Dec. 443; Van Dyke's Appeal, 60 Pa. St. 481, 490; Sandoe's Appeal, 65 Pa. St. 314; Key V. Griffin, 1 Rich. Eq. 67; Marriott v. Sam Badger, 5 Md. 306; Maskell v. Goodall, 2 Disn. 282; Roe V. Roe, 21 N. J. Eq. 253; Estate of Delaney, 49 Cal. 77; Tiernan v. Roland, 15 Pa. St. 430, 451; Wilbanks v. Wil- banks, 18 111. 17. [The doctrine of compensation does not apply to the case of a person electing to take under the instrument which gives rise to the election. See Cavendish v. Dacre, L. R. 31 Ch. Div. 466, where the prin- ciples upon which the doctrine is founded is discussed at length.] Lapse of time, and the interests of third per- sons who have purchased, may render an election absolute, and prevent a payment of compensation, instead of the property itself. See Fulton v. Moore, 25 Pa. St. 468, 476. The following are the most impor- tant cases and text-writers contain- ing dicta in favor of the rule, that by an election against a will the donee loses or forfeits his right to all the property of the testator given to him: Cowper V. Scott, 3 P. Wms. 124; Cookes V. Hellier, 1 Ves. 235; Morris V. Burroughs, 1 Atk. 404; Pugh v. Smith, 2 Atk. 43; Wilson v. Mount, 3 Ves. 194; Wilson v. Townsend, 2 Ves. 697; Broome v. Monck, 10 Ves. 609; Thellusson v. Woodford, 13 Ves. 220; Villareal v. Lord Galway, 1 Brown Ch. 292, note; Green v. Green, 2 Mer. 86; also note by Mr. Jacob, in his edition of Roper on Husband and Wife, vol. 1; and Lord St. Leonards, in 2 Sugden on Powers, 7th ed., 145. [See also Hibbs v. Ins. Co., 40 Ohio St. 543.] Many of these cases are no doubt to be explained by the fajt that ordinarily when a donee elects to take against the will, and thus to retain his own property, the gift to himself made by the testator is not of sufficient value to indemnify the disappointed parties, and of course they then take it all, and there is no possible room for any compensation. § 470 EQUITY JURISPRUDENCE. 638 pends upon the principle of compensation, it follows as a necessary consequence that it will not be applicable in any case unless there is a fund given to the donee who is compelled to elect, from which a compensation can be made to the disappointed parties, or which perhaps can be transferred as & whole to such parties. Thus in a case where, under a power to appoint to children, the father made an appointment improperly, it was held by Lord Loughborough that any child, entitled in default of an appointment, might set it aside, although a specific share had been appointed to him; in other words, that no elec- tion was necessary. The lord chancellor said: "The doc- trine of election never can be applied but where, if an election is made contrary to the will, the interest that would pass by the will can be laid hold of to compensate for what is taken away; therefore, in all cases there must be some free, disposable property given to the person, which can be made a compensation for what tlie testator takes away." * This is not, however, any new and addi- tional requisite; it is merely a statement, in a somewhat different form, of the fundamental doctrine, that, in order to create the necessity for an election, the donor must give to B some property which actually belongs to A, and must at the same time give to A some property of his own. § 470. Doctrine Applies Both to Wills and Deeds. — It may be added that the doctrine of election, as generally described in the foregoing paragraphs, applies to all in- struments of donation, — to deeds, settlements, and the like, as well as to wills, — although the cases involving it ' have most frequently arisen under wills.* It .is also ap- ' Bristow V. Warde, 2 Ves. 336. See Brown Ch. 286, note; Moore v. Butler, also Ii! re Fowler's Trusts, 27 Beav. 2 Schoales & L. 266; Birmingham v. 362; Box V. Barrett, L. R. 3 Eq. 244; Kirwan, 2 Schoales & L. 450; Green Banks v. Banks, 17 Beav. 352; Blaoket v. Green, 2 Mer. 86; Bacon v. Cosby, V. Lamb, 14 Beav. 482; Langslow v. 4 De Gex & S. 261 ; Gumming v. For- Langslow; 21 Bear. 552; [Hunter v. raster, 2 Jacob & W. 345; Anderson v. Mills, 29 S. C. 72.] Abbott, 23 Beav. 457; Mosley v. Ward, * Llewellyn v. Maokworth, Barn. 29 Beav. 407; fSigmon v. Hawn, 87 Ch. 445; Bigland v. Haddleston, 3 N. C. 450; Brown v. Ward, 103 N. 0. 639 CONCERNING ELECTION. §§ 471, 472 plicable to interests which are remote, contingent, partial, or of small value, as well as- to those which are immediate, certain, complete, and of great value/ § 471. Applications — Ca?es for an Election Classified. — Having thus, according to the arrangement announced in a former paragraph, explained the origin, general scope, meaning, and effect of the doctrine, I shall now proceed to consider it with respect to its practical appli- cations, its limitations, and exceptions. In other words, I shall describe the particular cases in which the neces- sity for an election does or does not arise, and the rules which determine and regulate them. In pursuing this branch of the subject, I shall state first in order those rules which are universal in their application, and in de- termining the necessity for an election or not in all in- stances, and shall then enumerate and classify the cases which have been settled by the courts in pursuance of these rules. § 472. Fundamental Rule. — The first and fundamen- tal rule, of which all the others are little more than cor- ollaries, is: In order to create tl^e necessity for an election, there must appear upon the face of the will itself, or of the other instrument of donation, a clear, unmistakable . intention, on the part of the testator or other donor, to dispose of property which is in fact not his own- This intentibn' to dispose of property which in fact belongs to ' another, and is not within the donor's power of disposi- tion, must appear from language of the instrument which is unequivocal, which leaves no doubt as to the donor's design; the necessity of an election can never exist from an uncertain or dubious interpretation of the clause of donation. It is the settled rule that no case for an elec- 178.] The cases of election so fre- Ves. 480; Greaves v. Forman, cited 3 quently arise from wills that the gen- Ves. 67; Highway v. Banner, 1 Brown eral rules concerning it have sometimes Ch. 584; Wilson v. Townshend, 2 Ves. been laid down, especially by American 697; but see Bor v. Bor, 3 Brown Pari, courts, in laflguage which appears to C, Tomlins's ed., 178. note, per Lord confine it to those instruments. Hardwicke.' 1 Webb V. Earl of Shaftesbury, 7 §472 EQUITY JUKISPRUDENCB. 640 tion arises unless the gift to one beneficiary is irrecon- cilable with an estate, interest, or right which another donee is called upon to relinquish; if both gifts can, upon any interpretation of which the language is reasonably susceptible, stand together, then ^n election is unnecessary. The instrument may declare in express terms that the gift to A must be accepted by him in lieu of his own in- terest, which is thereby transferred to B, and then no possible doubt could exist. But this direct mode of ex- hibiting the donor's purpose is not indispensable. It is sufiicient if the dispositions of the instrument, fairly and reasonably interpreted, exhibit a clear intention of the donor to bestow upon B.some estate, interest, or right of property, which is not the donor's, but which belongs to A, and at the same time to give to A some benefits de- rived from the donor's own property.' It is immaterial, 'Forrester v. Cotton, 1 Eden, 531; Jiidd V. Pratt, 13 Ves. 168; 15 Vea. 390; Dashwood v. Peyton, 18 Ves. 27; Blake v. Bnnbury, 1 Ves. 514; 4 Brown Ch. 21; Kancli£fe v. Lady Par- kyns, 6 Dow, 149, 179; Dillon v. Parker, 1 Swanst. 359; Jacob, 505; 7 Bligh, N. S., 325;- 1 Clark & F. 30S; Jervoise v. Jervoise, 17 Bear. 566; Padbury v. Clark, 2 Maon. & G. 298; Lee V. Egremont, 5 De Gex & S. 348; Wlntour V. Clifton, 21 Beav. 447; 8 De Gex, M. & G. 641; Stephens v. Stephens, 3 Drew. 697; 1 De Gex & J. 62; Box V. Barrett, L. R. 3 Eq. 244; Dummer v. Pitcher, 2 Mylne & K. 262; Shuttle-worth ▼. Greaves, 4 Mylne & C. 35; Maxwell v. Maxwell, 2 De Gex, M. & G. 705; 16 Beav. 106; Piokersgill v. Rodger, 6 Ch. Div. 163. 170; Orrell v. Orrell, L. R. 6 Ch. 302, 304; Wilkin- sou V. Dent, L. R. 6 Ch. 339, 340; Thompson v. Burra, L. R. 16 Eq. 592, 601; WoUaston v. King, L. R. 8 Eq. 165; Maxwell v. Hyslop, L. R. 4 Eq. 407; Codringtou v. Lindsay, L. R. 8 Ch. 578; MoElfresh v. Schley, 2 Gill, 182, 201; Jones v. Jones, 8 Gill, 197; Waters v. Howard, 1 Md. Ch. 112; Hall V. Hall, 1 Bland, 130, 135; Wil- son V. Amy, 1 Dev. & B. Eq. 376, 377; Pennsylvania Life Ins. Co. v. Stokes, 61 Pa. St. 136; 2 Brewst. 590; Weeks v. Weeks, 77 N. C. 421; Havens v. Saokett, 15 N. Y. 365; Thompson v. Thompson, 2 Strob. Eq. 48; O'Reilly V. Nicholson, 45 Mo. 160; [Penn v. Guggenheimer, 76 Va. 839; Asche v. Asohe, 113 N. Y. 232; Lee v. Tower, 124 N. Y. 370; Stewart v. Stewart, 31 N. J. Eq. 398; Wooley v. Schrader, 116 111. 29; In re Durfee, 14 R. L 47; Rutherford v. Mayo, 76 Va. 117; Es- tate of Zahrt, 94 N. Y. 605.] The ground upon which the doctrine of election rests, and the condition of facts necessary to raise an election, were carefully considered in the re- cent case of Codrington v. Lindsay, L. R. 8 Ch. 578, 587, by Lord Sel- borne. He seems to reach the con- clusion that there are two grounds, and two conditions of fact quite dis- tinct from each other, which may cre- ate the necessity for an election. It was held that a married woman was bound to elect between certain bene- fits given to her by a marriage settle- ment and certain property of her own to which she was entitled indepen- dently of the settlement, but which had been embraced within its terms. Lord Chancellor Selborne thus laid down the general doctrine (pp. 586-588): "I lay aside, as not directly,relevant to the present question, the whole of that large class of cases of election upon wills, as to which Lord Eldon, in 641 CONCEKNING ELECTION. §473 however, whether the donor knew the property not to be his own, or erroneously conceived it to be his own; for in either case, if the intention to dispose of it clearly ap- pears, the necessity for an election exists.' § 473. Rule of Interpretation; Donor has a Partial In- terest; Strong Leaning against Election; Extrinsic Evi- dence of Intention. — The preceding rule is fundamental and universal. In its application the courts have settled Dash wood v. Peyton, 18 Vea. 41, and other authorities, have said that 'a clear intention on the part of the tes- tator to give that which is not his property is always required.' .... I conceive the true rule for the decis- ion of this case to be that which is so well stated by Lord Redesdale in Bir- mingham V. Kirwan, 2 Schoales & L. 444, 449, viz.: 'The general rule is, that a person cannot accept and reject the same instrument; and this is the foundation of the law of election, on which courts of equity particularly have grounded a variety of decisions in cases both of deeds and wills, though principally in cases of wills, because deeds being generally matter of contract, the contract is not to be interpreted otherwise than as the con- sideration which is expressed requires.' The application of this rule is illus- trated as to cases of voluntary deeds by Llewellyn v.Mackworth, Barn. Ch. 445, and Anderson v. Abbott, 23 Beav. 457; as to cases of contract for a valuable consideration resting in articles, by SaviU V. SaviU, 2 Coll. C. C. 721, and Brown v. Brown, L. E. 2 Eq. 481; and as to contracts for value com- pletely executed by conveyance and assignment, by Bigland.v., Huddleston, 3 Brown Ch. 285, note; Chetwynd v. Fleetwood, 4 Brown Pari. C, ed. of 1784, 435; Green v. Green, 2 Mer. 86; Bacon v. Cosby, 4 De Gex & S. 261; Mosby V. Ward, 29 Beav. 407; and WiUoughby v. Aliddleton, 2 Johns. & H. 344. In two of these cases (Green v. Green, 2 Mer. 86, and V^^illoughby v. Middleton, 2 Johns. & H. 344), the husband's father was a party to an an- tenuptial settlement, and part of the consideration proceeded from him. Another (Chetwynd ▼. Fleetwood, 4 Brown Pari. 0. 435), was a case of settlement for value, not between hus- 1 Enpiion, which may he rebutted even hy parol evidence; and it may. be rebutted by evidence showing that, under a misapprehen- sion of law, the testator believed that the property which did not be- long to him did really belong to him. " It is certainly difficult to reconcile this passage with the decisions cited above in this note. §474 EQUITY JURISPKUDENCE. 644 § 474. Rule of Interpretation: Donor has a Partial In- terest, and Makes a General Gift. — A second important rule of interpretation is, that where a testator has a par- tial interest in the subject-matter dealt with, a general devise of the property, or gift of the property described only in general' terms or in a general manner, will ordi- narily be construed as including and operating upon the partial interest alone or partial property held by the donor, and not as extending to and disposing of the re- siduum of interest belonging to the donee. But it should also be observed that even where the language of the gift is thus general, the donor may otherwise show an inten- tion by means of it to bestow the property or interest not absolutely his own.* ' Wintour v. Clifton, 8 De Gex, M. & G. 641, 650; Shuttleworth v. Greaves, 4 Mylne & C. 35; Dummer r, V. Pitcher, 2 Mylne & K. 262; Usticke V. Peters, 4 Kay & J. 437; Honey wood V. Forster, 30 Bear. 14; Johnson v. Telford, 1 Ruas. & M. 244; Brodie v. Barry, 2 Ves. & B. 127; Maxwell V. Maxwell, 2 De Gex, M. & G. 705, 713; 16 Beav. 106; Orrell v. Orrell, L. R. 6 Ch. 302; Havens v. Saokett, 15 N. Y. 365; Hall v. Hall, 1 Bland, 130, 135; Gable t. Daub, 40 Pa. St. 217; [In re Durtee, 14 R. I. 47; In ra Gilmore, 81 Cal. 240]; and see cases cited subsequently, under the hejid of election in case of dower; {post, §§ 492- 502.] Although the rule as stated in the text is supported by an overwhelming weight of authority, it ia sometimes very difficult of application. I shall therefore refer to a few cases by way of illustration. The language of Turner, L. J., in Wintour v. Clifton, 8 DeGex, M. &G. 641, 650, gives the rule of the text in both of its branches: " I think that if the words of a will be anch as to embrace different subjecta, the context of the will may be re- sorted to for the purpose of aaoertain- ing to which of theae subjects the words were intended to apply; and I think that the question in every case upon the coi}structiou of a will must be, What was the intention of the tes- tator? and that if the intention can be collected from the context, it is the duty of the court to give effect to it, as much as if it was in terms ex- pressed, and no less so in cases of election than in other cases. The au- thorities on this point mean no more than to point out forcibly the diffi- culty there is in raising a case of elec- tion where the testator has a limited interest in the property as to which the election is to be raised; and no doubt there is more difficulty in such cases than in the ordinary case of the disposition of an estate belonging to another person, and in which the tes- tator had no interest, inasmuch as every testator must prima facit be taken to have intended to dispose only of what he had the power to dis- pose of; and, as in order to raise a case of election, it must be clear that there was an intention on the part of the testator to dispose of what he had not the right or power to dispose of." In Maxwell v. Maxwell, 2 De Gex, M. & G. 705, 713, a testator by an Eng- lish will in terms gave "all his real and personal estate whatsoever and wheresoever," etc. This language was not sufficient by the Scotch law to embrace lands owned by the testator in Scotland, which therefore descended to his heir at law; and the only ques- tion was, whether by this general gift the testator intended to embrace the Scotch lands, or to dispose of the Eng- lish property alone. Knight Bruce, L. J., said (p. 713): "According to 645 CONCERNING ELECTION. §475 § 475. Other Particular Rules of Interpretation. — In addition to these somewhat general rules of interpreta- the principles or rules of construc- tioa which the English law applies, if not to all instruments, at least to tes- tamentary instruments liable to inter- pretation, the generality, the mere universality, of a gift of property is not sufficient to demonstrate or create a, ground of inference that the giver meant it to extend to property inca- pable of being given by the particular act. If he had specifically men- tioned property not capable of being so given, the case is not the same." Crauworth, L. J., said (p. 715): "I take the general rule to be that which was referred to by Sir John Leach, in Wentworth v. Cox, 6 Madd. 363, that a designation of the subject in- tended to be affected by an instru- ment in general words imports prima facie that property only upon which the instrument is capable of operat- ing." In Orrell v. Orrell, L. E.. "6 Ch. 302, 305, which was a similar case, the testator gave "all the rest and residue of my real estate situate in any part of the United Kingdom or elsewhere. " The court, while quoting and adopting the rule as laid down in Maxwell v. Maxwell, 2 De Gex, M. & G. 705, 713, held that the peculiar lan- guage of the testator, "in any part of," showed his intention to dispose of his Scotch lands as well as those in England, and therefore the rule did not apply. In Johnson v. Telford, 1 Russ. & M. 248, which resembled the two preceding cases, Sir John Leach thus' stated the rule: "In the case of Brodie v. Barry, 2 Ves. & B. 127, the Scotch estate was mentioned in the will, and especially intended by the tes- tator to pass thereby. In this will no notice whatever is taken of the Scotch estate, and the question is, whether it is clearly to be collected from the gen- eral words used that the testator meant to pass his Scotch estate. Wliere a testator uses only general tvords, it is to lie intended he means those general words to be applied to such property as will in Us nature pass by the will. " In Honey- wood V. Forster, 30 Beav. 14, a testa- tor owned freeholds in fee, and was tenant in tail of the copyholds. They were intermixed; part of the copy- holds were in his own occupation, and part, with parts of the freeholds, in the occupation of tenants upon leases at one rent. By his will he devised " all his real estates " to the defend- ants, and gave all the lands occupied by him to his wife for life, and con- firmed the tenants in their occupations for twenty-one years, and also gave benefits to the heir in tail of the copy- holds. The question for decision was, whether this heir in tail was put to an election between the copyholds de- scending to him as heir in tail and the benefits given by the will. Sir John Komilly, M. R., said: "If a testator says, ' I give all the property I have in the world to A B,' and he leaves a large legacy to his heir in tail, that will not raise a case of election against such heir, because the testator only gives what he has. It occurred to me at first that such was the character of the present will; but on the facts of the case being brought to my atten- tion, it became plain that such was not the case [After recapitulating the provisions of the will and the situ- ation of the property.] I think that in this state of circumstances, coupled with the fact of the nature and hold- ing of the property, there is an intention shown on the/ace of the will to dispose of these copyholds away from the heir in tail. " The heir was therefore held bound to elect. The cases of Dummer V. Pitcher, 2 Mylne & K. 262, and Shuttleworth v. Greaves, 4 Mylne & C. 35, well illustrate the rule of the text in both of its branches. In Dum- mer v. Pitcher, 2 Mylne & K. 262, the testator's will said: "I bequeath the rents of my leasehold houses and the in- terest of all my funded property or estate. " The testator had in fact no funded property at the date of his will, but there was funded property originally belonging to his wife, and standing in the joint names of her and himself. After his death, the wife claimed this funded property by right of survivorship, and as she took benefits under the will, it was con- tended that she must elect between these benefits and her own funded property, which, it was claimed, the will had given away. Lord Chancel- lor Brougham held, affirming the de- §475 EQUITY JUBISPKUDENCK. 646 tion, there are one or two particular rules which belong to this branch of the subject. No case for an election is presented if the language of donation shows that the donor is doubtful whether the property belongs to him- self or not, and that he only intends to bestow it if it is his own; for example, where he directs a different dispo- sition, in case it turns out that he has no power to make the gift, or where he, in terms, makes the disposition, if he has the power to do so, or so far as he lawfully can, and the like.' Since the necessity of an election is only created by something in the nature of a gift or disposi- tion of property, it follows that an erroneous recital in a will, and misconception of the testator as to the effect of the, rights of others, will not raise a case of election, though the testator, in consequence of his mistake as to those rights, gives more to one person than to another; the former is not bound to compensate the latter.* The doctrine of election is not applicable to cases where the testator, erroneously thinking certain property is his own, cision of the rice-chancellor, that, although the testator had no fauded property of his own at the date of his will, his words might well be construed as intended to apply to any funded property which he might havo at his death, and that therefore he was not to be regarded as intending to dispose of the funded property standing in the joint names of himself and his wife, and belonging to her, and consequently that no case for an election arose. In Shuttleworth v. Greaves, 4 Mylne & C. 3S, the will said: "I bequeath all my shares in the Nottingham Canal Navigation." At the time and down to his death he had no such shares of his own, but had certain shares of that same canal company standing in the joint names of himself and his wife, and really belonging to her. Under the like circumstances and contention as in the last case, it was held that the words of bequest showed an inten- tion to give away these very shares belonging to his wife, and therefore she was bound to elect. By compar- ing these two cases, the dividing line, though narrow, is seen to be really substantial. In the first, the words of ' gift were most general, not referring to or describing any specific property. In the second, the same words, although general with respect to amount, do apply to and describe cer- tain specific property, and so clearly identify it that there could be no doubt of the testator's intention to bequeath it, — "all my shares," etc. See also Havens v. Sackett, 15 N. Y. 365. The American cases involving and illus- trating this rule have generally been those where a testator has, in general terms, given land ia which his wife held a dower right. Many of them will be found cited under subsequent paragraphs. ' Bor v. Bor, 3 Brown Pari. C, Tom- lins's ed., 167; Church v. Kemble, 5 Sim. 525. ' Box V. Barrett, L. R. 3 Eq. 244; Dashwood V. Peyton, 18 Ves, 41; Blake V. Bunbury, 1 Ves. 515, 523; Forrester V. Cotton, Amb. 388; 1 Eden, 532, 535; and see Langslow v. Langslow, 21 Beav. 552; Clarke v. Guise, 2 Ves. 617, 618. 647 CONCERNING ELECTION. §§ 476, 477 gives it to a donee to whom in fact it belongs, and also gives him other property which is really the testator's own; for in such cases the testator intends that the devi- see shall have both, though he is mistaken as to his own title to one.' Nor does the doctrine apply unless the donee, who, it is claimed, ought to elect, is entitled in his own right to the property given to another, and not in his representative capacity; although, in effect, he may be" beneficially interested; as, for example, where he takes as his wife's administrator.' § 476. First Class of Cases. — I shall now describe and discuss the most important of the cases which have arisen, and in respect of which it has been settled that the ne- cessity for an election does or does not exist. By a line of separation which the foregoing paragraphs show not to be merely arbitrarj'^, I shall arrange these cases in two main divisions, namely: 1. Those where the donor as- sumes to give property belonging entirely to another, and in which he himself has no interest; 2. Those where the donor gives property in which he himself has a par- tial interest, \yhile a partial interest therein is also held by another. First Class. — Cases in which the aonor assuines to give specific property belonging entirely to another, where he himself has no interest in it, and no power of disposition over it. § 477. Ordinary Case: Gift of Specific Property. — The simplest case is that in which the donor, by language of description sufficient to designate the subject-matter, and by terms of donation sufficient to effect a transfer if they operated upon property of his own, bestows upon B some specific estate, interest, or fund, which in fact be- longs entirely to A, and by the same instrument confers upon A some benefit out of the donor's own property. > Cnll V. Showell, Arab. 727. 6 Ch. 15, in which Grissell v. Swinhoe, ' Grissell v. Swinhoe, L. R. 7 Eq. L. R. 7 Eq. 291, is explained. 291 ; and see Cooper v. Cooper, L. R. § 478 EQUITY JUKISPKUDENCE. 648 Under these circumstances a case for an election always arises. The whole effect depends upon the question whether there is such a gift; and if so, there is really no room for interpretation or construction. No discussion of this case is needed.* § 478. Cases of Election Arising under Appointments in Pursuance of Powers. — As cases of this description are very rare in the United States, a very brief and con- densed treatment of the subject will suffice. Cases for an election may arise under appointments made in pur- suance of powers. In the case of a void appointment by will to a stranger to the power, and a devise or bequest of the appointor's own property to the object of it, who takes also under the power as in default of appointment, such person must elect between what comes to him under the power from the default of a valid appointment, and the benefits conferred by the appointor's will.* In order to raise a case of election, where the appointor appoints the property subject to the power to a stranger, he must give some property of his own to the object of the power;' for if no property be given but what is subject to the ' Dillon V. Parker, 1 Swanst. 359, 376, from him, and the remainder of his 381, 394, and notes by Mr. Swanston, estate to his sister. This indebtedness with the cases cited; Gretton v. Ha- had in fact been transferred by the ward, 1 Swanst. 409, 413, 420, 425, testator before the execution of the 433, and notes with the cases cited; will to the sister. Held, that the Noys V. Mordaunt, 2 Vern. 581; sister was bound to elect whether to Streatfield v. Streatfield, Cas. t. Talb. confirm the will, or renounce and hold 176; 1 Lead. Cas. Eq., 4th Am. ed., the debt.] And see cases cited in pre- 503, 510, 541, and cases cited in notes vious notes. of the Englioh and American editors; ' Whistler v. Webster, 2 Ves. 3G7; Blake v. Buubury, 4 Brown Ch. 21; Tomkyns v: Blane, 28 Beav. 423; Villa Real v. Lord Galway, IBrown England v. Lavers, L. E. 3 Eq. 63; Ch. 292, note; Ardesoife v. Ben- Reid v. Reid, 25 Beav. 469. [And nett, 1 Dick. 463; Whistler v. Webster, so, also, where a testatrix by her will, 2 Ves. 367; Ward v. Baugh, 4 Ves. 623; purporting to exercise a power of ap- Lady Caven v. Pulteney, 2 Ves. 544, pointment which she erroneously sup- 560; Dashwood v. Peyton, 18 Ves. 27, posed herself to possess, appointed 49; Welby v. Welby, 2 Ves. & B. 190; property to which one J. was entitled Lord Rancliffe v. Parkyns, 6 Dow, 149, to ithird persons, and by a codicil gave 179; Ker v. Wauchope, 1 Bligh, 1, 25; J. other property, over which she had [White V. White, L. R. 22 Ch. Div. full testamentary power, J. is put to 555; Griffith-Bosoawen v. Scott, L. R. an election whether to take under or 26 Ch. Div. 358. In Fitzhugh v. against the will: Beauolerk v. James, Hubbard, 41 Ark. 64, a testator gave L. R. 34 Ch. Div. 160.] to his brother an indebtedness duo ' In re Fowler, 27 Beav. 362. 649 CONCEENING ELECTION. § 479 power, there is nothing out of which compensation can be made.' § 479. An object of two powers improperly excluded by an appointment under one is not debarred in conse- quence from claims upon the other, and no case of elec- tion arises. Thus if there are two powers, one exclusive and the other not, and there are several objects of both, an appointment of the whole fund under the exclusive power to A, who is an object of both powers, and an appointment of the whole fund under the non-exclusive power to other objects, excluding A, will not prevent A's sharing in the property disposable of by the second power, which had been defectively appointed by reason of his improper exclusion, and he is not bound to elect.^ And where there are two powers, both exclusive, chil- dren and grandchildren being the objects of one, and children only of the other, and an appointment is made under the former to children only, and under the latter to children and a grandchild (who is not therefore an object), the children are not compellable to elect, in order to give effect to the void appointment to the grandchild.' A case of election will not arise if a testator appointor merely requests or directs the appointees, who are also legatees of other property, to give the appointed property to strangers to the power.* Nor will a case of electidh ' Bristowe v. Warde, 2 Ves. 336. attempted to deal with his interest, In Coutts V. Ackworth, L. R. 9 Eq. and the husband was therefore obliged 519, a lady, on her marriage, ap- to elect between the one thousand pointed three thousand pounds to pounds given him by the will and the trustees, the interest to be paid to her interest on the three thousand pounds husband for life, and after his decease for his life given him by the original the capital was to go over. The deed deed of appointment, contained a power to revoke the trusts * In re Aplin, 13 Week. Rep. 1062. subsequent to the life estate of the • In re Fowler, 27 Beav. 362. husband. By her will, after marriage, • Blackett v. Lamb, 14 Beav. 482. she purported to revoke all the trusts The reason of this rule was thus of the deed, and gave one thousand stated by Sir John Eomilly, M. R. : pounds to her husband, and two thou- "The superadded words used by the sand pounds to another person. It testator here neither are nor profess was held that the testatrix having to be any appointment over the fund revoked all the trusts of the deed, itself, but they purport to raise an while the power of revocation only obligation on the conscience of the extended to the remainder after her person taking the benefit of the gift, husband's life estate, she had thus to transfer that benefit, after his de- §§ 480, 481 EQUITY JURISPRUDENCE. 650 arise where the appointment is absolute, with a subse- quent superadded direction or condition in favor of strangers/ But a case of election does arise where the testator directs that the legacies which he also gives to the appointees shall be forfeited if the direction as to the appointed fund is not complied with.* § 480. No case of election arises under a void ap- pointment, where the appointor declares that he makes it only in case he has the power to do so.* An appointee under two appointments, one of which becomes inoper- ative, is not bound to elect between the well-appointed fund and an interest to which he becomes entitled, as next of kin to the appointor, in the ill-appointed fund which devolves on such next of kin in consequence of the appointment of it proving to be inoperative.* § 481. Cases of Election where a Testator has At- tempted to Dispose of his Property by a Will Which is Ineffectual for That Purpose. — The cases falling under this head would arise where a testator had devised lands to a stranger, and had given a legacy to his own heir, but cease, to his children. I am of opin- out of it for all intents and purposes.'' ion that if the words had been used See W^allinger v. Wallinger, Xi. S. 9 by the testator with reference to a Eq. 301. fund which was wholly within his "King v. King, 15 Ir. Ch. 479; own control, to deal with as he might Boughton v. Bough ton, 2 Vea. Sr. 12. thinh Jit, these words would have * Church v. Kemble, 5 Sim. 525. created a trust, and that his children, 'Blaiklock v. Grindle, L. R. 7 Eq. taking the gifts under the will of the 215; Rich v. Cookell, 9 Ves. 369. [In testator, would have taken them Albert v. Albert, 68 Md. 352, A. had' charged with the duty of disposing of a power of appointment over the es- them according to that will." tate of his father, J., conferred upon ' Woolridge v. Woolridge, 1 Johns, him by J. 'a will. In his own will, 63; Carver v. Bowles, 2 Rnss. & M. A. mingled his own and his father's 301; Churchill v. Churchill, L. R. 5 estate, and created certain trusts Eq. 44; Wollaston v. King, L. R. 8 which, as to the property comprised Eq. 165; but see Moriarty v. Martin, in the J. estate, were void on account 3 Ir. Ch, 26. In Woolridge v. Wool- of perpetuities. Held, that those bene- ridge, 1 Johns. 63, the rule was laid ficiaries as to whose shares the trusts down, "that where there was an ab- were in part void would be required solute appointment by will in favor to elect whether to take, under the of a proper object of the power, and will of J., their proportion of the that appointment is followed by at- property of the J. estate, and relin- tempts to modify the interest so ap- quish all claim to participate in the pointed in a manner which the law estate of A., or to abide by the will will not allow, the court reads the of A. in its entirety. They could not will as if all the passages in which claim both against and under the such attempts are made were swept will.] 651 CONCERNING ELECTION. § 482 by reason either of the testator's personal incapacity, or of the imperfect execution of the will, or of some special legal rule, the devise to the stranger is void, so that the land included in it would descend, while the gift to the heir is valid. The question would then be presented, whether the heir may take both the land descending to him on account of the devise being void and the legacy, or whether he must elect between the two, on the ground that if he accepts the benefits given him, he must con- firm the will entirely. The various circumstances which have given rise to cases of this sort are the following: The testator's personal incapacity, through infancy or coverture; the imperfect execution of the will, as one of lands; a will leaving some lands entirely undisposed of to descend to the heir, while it gives other benefits to the heir; a will executed in one country or state, and effec- tual to carry all the testator's property therein, but which does not, on account of its not using appropriate lan- guage, carry his property situated in another country or state; afad a will which does not carry after-acquired lands. These cases will be separately examined in the order thus given. It is important to be remembered, however, in this connection, that modern legislation has removed most of the occasions upon which these cases can arise, and such questions will hereafter be infrequent. Thus in very many of the states, statutes have conferred upon infants and married women the same capacity to make wills of real and of personal estate, and have pre- scribed exactly the same mode of executing wills of real and of personal property, and have abolished the com- mon-law rule which excluded after-acquired lands from the operation of a devise. This legislation has made it impossible for most of the cases above mentioned to arise in the states where it exists. § 482. Infancy and Coverture of a Testator. — The rule applicable under these circumstances depends upon the doctrine that, in order to create the necessity of elec- § 482 EQUITY JURISPRUDENCE. 652 tion, there must be a disposition made or intended to be made by the donor by means of a valid instrument. As a universal proposition, an heir cannot be put to an elec- tion by the will of his ancestor, unless there is a disposi- tion by a valid will; and it does not arise if the testator is incapacitated by infancy or coverture, or if he attempts to dispose of property by a will not duly executed.' No case of election will be raised where there is a want of capacity to devise real estate by reason of infancy. Prior to modern statutes, therefore, where an infant, whose will was valid as to personalty, but invalid as to the realty, de- vised his real estate to a stranger, and gave a legacy to his heir at law, the heir at law was riot obliged to elect be- tween this legacy and the lands which descended to him through the invalidity of the devise; he could take both.' On the same ground, a case of election did not arise from the incapacity of the testator by reason of coverture. Un- der the old law, the only will which it was possible for a married woman to make was one executed by way of ap- pointment under a power bestowed upon her. Where, therefore, a married woman, acting under a power, made a valid appointment by will to her husband, and also in the same will bequeathed to a stranger certain personal prop- perty, over which the power did not extend, the husband was not put to an election, but could retain the fund ap- pointed to him, and also claim the personal property which his wife had attempted to bequeath, and to which he was entitled by virtue of his right of succession as husband.' Neither of these cases could readily occur at present, since an infant has the same power by statute in most states to make a will of real and of personal estate, and ' Thellusson v. Woodford, 13 Ves. 1 Dev. & B. Eq. 634; Kearney v. Ma- 223; Gardiner v. Fell, 1 Jacob & W. comb, 16 N. J. Eq. 189; Tongue v. 22. Nutwell, 17 Md. 212, 229; 79 Am. > Hearle v. Greenbank, 3 Atk. 695, Dec. 649; Jones v. Jones, 8 Gill, 197. 715; 1 Ves. Sr. 298; Brodie v. Barry, ' Rich v. Cockell, 9 Ves. 369; Blaik- 2 Ves. & B. 127; Sheddon v. Goodrich, lock v. Grindle, L. R. 7 Eq. 215; and 8 Ves. 481 ; Snelgrove v. Snelgrove, 4 see the American cases cited in the Desans. Eq. 274; Melchor v. Burger, last preceding note. 653 CONCERNING ELECTION. § 483 a married woman is generally empowered to make a will of all her own property, real or personal. § 488. Will Valid as to Personal Estate, but Invalid as to Lands. — The cases now to be considered are those in which the testator had full capacity to dispose of all his property, but by reason of his not complying with some rule of the law as to mode of execution or form of description, the will proved to be inoperative with respect to certain kinds of his property, which property therefore descended to his heir or devolved upon his successors, as in the absence of any will. Prior to statutes compara- tively modern, a will of freehold estates in land required certain formalities in its execution, which were not neces- sary to the validity of a will of personal property. Under that condition of the law, it was a well-settled rule that where a testator, by a will not executed with the formal- ities requisite to pass freehold estates in land, purported to devise such freehold estates away from his heir to a stranger, and by the same will gave a legacy to his heir, the heir was not obliged to elect, but could take both the legacy and the lands which descended to him, notwith- standing the attempted devise. In other words, the law would not, in the absence of any express condition inserted in the will by the testator himself, impose any implied condition upon the heir, and thus compel him to carry out the supposed intent of the testator by conforming to all the dispositions of the will.' This rule, however, does not apply where the legacy is given to the heir upon an express condition that if he disputes or does not comply with the whole of the will, he shall forfeit all benefit under it. In that case the condition is binding upon the » Sheddon v. Goodrich, 8 Ves. 481; Schley, 1 Gill, 181. While acknowl- Gardiner v. Fell, 1 Jacob & W. 22; edging this rule to be firmly estab- ThelluBSon V. Woodford, 13 Ves. 220, lished, able judges have expressed a 221; Wilson v. Wilson, 1 De Gex & S. strong opinion against its soundness 152; Kearney v. Macomb, 16 N. J. in principle, viz.: Lord Eldon, in Eq. 189; Tongue v. Nutwell, 17 Md. Sheddon v. Goodrich, 8 Ves. 481, 496; 212, 219; 79 Am. Deo. 649; Jones v. Sir William Grant, in Brodie v. Barry, Jones, 8 Gill, 197; Melohor v. Burger, 2 Ves. & B. 127; and Lord Kenyon, I Dev. & B. Eq. 634; McElfresh v. in Gary v. Askew, 1 Cox, 241i. § 484 EQUITY JUKISPRUDENCE, 654 heir, and if he accepts the legacy, he cannot claim the descended lands. This result, however, is not properly referable to the doctrine of election; it is merely a case of a gift with a condition annexed to it, so that unless the condition is fulfilled the gift is wholly inoperative.' The principal rule stated 'above, at the commencement of this paragraph, has become practically obsolete in the United States, as well as in England,' since by statutes the same modes of execution have been prescribed for wills of real and of personal property. § 484. Will Invalid in Another Country or State. — There is a second case which may and does arise in this country and in England, having been affected by no statute. A testator has property situated in two states or countries; he makes a will, the language of which, ei- ther by general or particular description, applies to both classes of property, by which he devises his lands away from his heir to a stranger, and at the same time gives a legacy or other benefit to his heir; the will is valid and operative by the law of the state or country in which it is made, so that all the testator's property situated therein is eff'ectively disposed of; but, either from the neglect of proper modes of execution, or of the requisite form of description or disposition, the will is not valid and operative by the law of the other state or country to carry the lands of the testator situated therein; the at- tempted devise of the lands situated in that other coun- try or state is therefore void, and the lands themselves descend to the heir at law. i The question presented upon these facts is, whether the heir is bound to elect between the gift contained in the will and the descended lands, or ' It seems also that the condition Dev. &, B. Eq. 634; Snelgrove v. Snel- may be shown from the whole tenor grove, 4 Desaua. Eq. 274, 300; Jones and form of the disposition, provided v. Jones, 8 Gill, 197; Kearney v. Ma- it shows a clear intent of the testator comb, 16 N. J. Eq. 189; McElfresh v. that the legacy depends upon the car- Schley, 1 Gill, 181; Nutt v. Nutt, 1 rying out of his other attempted gifts: Freem. Ch. 128. Boughton V. Boughton, 2 Ves. Sr. 12; * Lord Langdale's Act, concerning Sheddon v. Goodrich, 8 Ves. 481, 496, wills, 1 Vict., c. 26. per Lord Eldon; Melchor v. Burger, 1 655 CONCERNING ELECTION. § 484 t whether he may retain both. It will be seen from the numerous decisions — English and American — that the answer to this question is made to depend upon a second, namely, whether the testator, by the language of de- scription and disposition being sufficiently specific as applied to the foreign lands, has shown a clear intent to include those lands in his devise to the stranger; or, from his using more general language in describing the sub- ject-matter dealt with, the testator has shown an intent, according to the settled rules of interpretation, to con- fine the operation of his will to the property situated in the first state or country where the will was made, and which property he had the power to dispose of by means of that will. This is one of the cases to which the general rule of interpretation laid down in section 473 is con- stantly applied by the courts. The cases in England have generally arisen upon wills made in England, and valid with respect to the testator's property situated there, but invalid according to the peculiar law of Scot- land, so that they were inoperative to carry the testator's heritable property, or landed estates, lying in that coun- try. The English courts have settled the two following conclusions: If the language by which the testator de- scribes and disposes of his property is general in its terms, and makes no specific reference to his Scotch her- itable property, and contains no words or phrases which, by a reasonable interpretation, necessarily refer to such property, then the general rule of construction governs the case, that the testator must be assumed to have in- tended to confine the dispositions to the property which he had the power to dispose of by that will, — namely, the English property. The Scotch heritable property is not disposed of, and was not intended to be disposed of, and the heir is not put to an election. In short, the case falls under the familiar rule stated in the last paragraph.' ' Maxwell v. Maxwell, 2 De Gex, Anderson, 5 Hare, 163; Maxwell v. M. & G. 705; 16 Beav. 106; Johnson Hyslop, L. R. 4 Eq. 407; Lamb >. r. Telford, 1 Russ. & M. 244; Allen v. Lamb, 5 Week. Rep. 720. In Maxwell § 484 EQUITY JURISPRUDENCE. 656 If, on the other hand, the testator njakes an expresi reference to his Scotch property, or uses such specific language of description, that, upon a reasonable interpre- tation, he must have intended such a reference, and a clear intention is thereby shown to dispose of the Scotch as well as the English estate, then, although the disposi- tion is void with respect to the Scotch heritable properly, the heir at law is compelled to elect between this prop- erty thus descending to him, and the benefits conferred upon him by the will.* Similar cases have arisen in this country upon wills executed in one state, and valid for all purposes by the law thereof, but not valid as effective . devises of land by the law of another state in which was situate real property owned by the testator. The same twofold rule has been adopted and enforced by the Amer- ican courts; and it is plain that such cases may con- V. Maxwell, 2 De Gex, M. & G. 705, the language of description and gift was, "all my real and personal estate, whatsoever and wheresoever." See ex- , tract from opinion, ante, § 474, note. In Johnson v. Telford, 1 Russ. & M. 244, the testator " gave, devised, and bequeathed all and every hia real and personal estate whatsoever and wheresoever, which he was or should be seised or possessed of or entitled to." In Allen v. Anderson, 5 Hare, 163, the testator devised "all the rest and residue of his real, personal, and mixed estates, whatsoever and where- soever," etc Held, this did not apply to a Scotch " heritable bond," which, by Scotch law, descended to the heir at law, and the heir was not bound to elect between the bond and the bene- fits under the will. In Maxwell v. Hyslop, L. R. 4 Eq. 407, the testator gave "all the residue of his real and personal estate," and this was held not to apply to a Scotch estate which descended to the heir. ' Brodie v. Barry, 2 Ves. & B. 127; Orrell v. Orrell, L. R. 6 Ch. 302; Dewar v. Maitland, L. R. 2 Eq. 834; McGall V. McCall, Dru. 283, per Lord Chancellor Sugden, In Brodie v, Barry, 2 Ves. & B. 127, the language of the devise was, " all my estate. freehold, leasehold, copyhold, and other estates whatever, and whereso- ever situated, in England, Scotland, and elsewhere," and Sir William Grant held that the intent was un- mistakable to dispose of the Scotch estates as well as the English, and therefore it was a case for an elec- tion. In Orrell v. Orrell, L. R. 6 Ch. 302, the language was, "all the resi- due of my real estate, situate in any part of the United Kim/dom or else- where. " The testator left estates in England and Scotland, but none in Ireland or Wales. The court of ap- peal held that the intention to dis- pose of the Scotch property was sufficiently clear to require an elec- tion. This case unquestionably lies very near if not on the line which separates the two classes. See ante, § 474, note, where it is given more at large. In Dewar v. Maitland, L. R. 2 Eq. 834, the will, in express terms, devised estates in England and in the colony of St. Kitts, but being attested by only two witnesseg, it was not effectual to pass the land in St. Kitts by the colonial law. The rule was applied requiring the heir to elect between the lands thus descending to him, and the gifts made to him by the will. 657 CONCERNING ELECTION. § 484 stantly arise from the varying legislation of different commonwealths.' ■ Jones V. Jones, 8 Gill, 197; Kear- ney V. Macomb, 16 N. J. Eq. 189; Van Dyke's Appeal, 60 Pa. St. 481, 489. In Jones v. Jones, 8 Gill, 197, the will was made in Pennsylvania, and was valid there; but was not valid as a will of land in Maryland, because it was not executed in the presence o£ three witnesses. The court held that the heir was not bound to elect, but could claim the Maryland land inherited by him, and retain the legacy given by the will. In Van Dyke^s Appeal, 60 Pa. St. 481, 489, the opinion of Mr. Justice Shars- wood is such an able and exhaustive discussion of the doctrine as applied under these and analogous circum- stances that I shall quote from it at some length. The testator gave lega- cies to his daughters which exhausted nearly all of his property in Pennsyl- vania, and gave his real estate in New Jersey to his sons. The will was valid in Pennsylvania, but not executed so as to be an effective will of lands in New Jersey. The daugh- ters, therefore, unless compelled to elect, would receive all the Penn- sylvania property as legatees, and their proportionate shares of the New Jersey estate as heirs. The sons brought a suit in equity to compel an election, and a conveyance of the estate in conformity with the will. Sharswood, J., after holding that the case was plainly one of equitable cognizance, falling within the equi- table jurisdiction over trusts, said: "It may certainly be considered as settled in England that if a will pur- porting to devise real estate, but ineffectually, because not attested according to the statute of frauds, gives a, legacy to the heir at law, he cannot be put to hisi election: Hearle V. Greenbank, 3 Atk. 695; Thellusson V. Woodford, 13 Ves. 209; Buckeridge V. Ingram, 2 Ves. 652; Sheddon v. Goodrich, 8 Ves. 482. These cases have been recognized and followed in this country: Melchor v. Burger, 1 Dev. & B. Eq. 634; McElfresh v. Schley, 2 Gill, 181; Jones v. Jones, 8 Gill, 197; Kearney v. Macomb, 16 N. J. Eq. 189. Yet it is equally well established that if the testa- 1 Eq, Joe. — « tor annexed an express condition to the bequest of the personalty, the duty ef election will be enforced: Boughton V. Boughton, 2 Ves. Sr, 12; Whistler v. Webster, 2 Ves. 367; Ker v. Wauchop, 1 Bligh, 1; McElfresh v. Schley, 2 Gill, 181. That this distinction rests upon no sufficient reason has been admitted by almost every judge before whom the question has arisen. Why an ex- press condition should prevail, and one, however clearly implied, should not, has never been and cannot be satisfactorily explained. It is said that a disposition absolutely void is no disposition at all, and being inca- pable of effect as such, it cannot be read to ascertain the intent of the testator. But an express condition annexed to the bequest of th« person- alty does not render the disposition of the realty valid; it would be a re- peal of the statute of frauds so to hold. How, then, can it operate any more than an implied condition to open the eyes of the court, so as to enable them to read those parts of the will which relate to the realty? and without a knowledge of what they are, how can the condition be enforced! " He then quotes the language of several eminent judges, in which they express a strong dissent from the soundness of this distinction, in accordance with his own views, although admitting that it had become settled, viz., of Lord Kenyon, M. B., in Gary v. Askew, 1 Cox, 241; and of Sir Wil- liam Grant, in Brodie v. Barry, 2 Ves. & B. 127; and of Lord Eldon, in Ker V. Wauchop, 1 Bligh, 1, and Sheddon V. Goodrich, 8 Ves. 482; and then pro- ceeds: "Mr. Justice Kennedy has ex- pressed the same opinion: 'When a condition is necessarily implied by a construction in regard to which there can be but one opinion, there can be no good reason why the result or de- cision of the court should not be the same as in the case of an express con- dition, and the donee bound to make an election in one case as well as in the other': Philadelphia v. Davis, 1 Whart. 510. There is another class of cases in England wholly irreconcil- able with this shadowy distinction; §485 BQUITY JUKISPKUDENCE. 658 §485. Will Devising After-acquired Lands. — Still another case frequently arose under the former condi- for the heir at law of a copyhold was formerly put to his election, though there had been no surrender to the use of the will. This was previous to 55 Geo. III., 0. 192; 1 Lead. Cas. Eq. 239, note; yet, as Sir William Grant has remarked, 'a will, however exe- cuted, was as inoperative for the con- veyance of freehold estates ': Brodia V. Barry, 2 Ves. & B. 130. The pre- cise point can never arise in this state, for, happily, our statute of wills wisely provides that the forms and solemni- ties of execution and proof shall be the same in all wills, whether of realty or personalty. The case before us is of a will duly executed according to the laws of Pennsylvania, devising lands in New Jersey, where, however, it is invalid as to the realty, by not having three subscribing witnesses. A court of New Jersey might hold themselves, on these authorities, bound to shut their eyes on the devise of the realty, and consider it as though it were not written, and so they have held: Kearney v. Macomb, 16 N. J. Eq. 189. They might feel themselves compelled to say, with Lord Alvan- ley, however absurdly it sounds: 'I cannot read the will without the word " real " in it; but I can say, for the statute enables me, and I am bound to say, that if a man, by a will un- attested, gives both real and personal estate, he never meant to give the real estate ': Buckeridge v. Ingram, 2 Ves. 652. But a statute of , New Jersey has no such moral power over the conscience of a court of Penn- sylvania, to prevent it from reading the whole will upon the construction of a bequest of personalty within its rightful jurisdiction. We are dealing only with the bequests of per- sonalty, and the simple question is, whetlier the testator intended to an- nex to them a condition. If without making any disposition whatever of the New Jersey estates, dying intes- tate as to them, he bad annexed an express proviso to the legacies to his daughters, that they should release to their brothers all their right and title as heirs at law to these lands, it is, of rourse, indubitable that such a condi- tion would have been effectual. We are precluded by no statute to which we owe obedience from reading the whole will, and if we see plainly that such was the intention of the testator, from carrying it into effect." The learned judge then cites and quotes from the facts and opinions in the English cases upon wills of estates situate in Scotland, which are referred to in the preceding note, viz. : Brodie V. Barry, 2 Ves. & B. 127; Maxwell v. Maxwell, 2 De Gex, M. & G. 705, and McCall V. McCall, Dru. 283, per Lord Chancellor Sugden; and proceeds: "In this state of the authorities we are clear in holding that we are not pre- cluded by force of the New Jersey statute from reading the whole will of the testator, in order to ascertain his intention in reference to his be- quest of the personalty now in ques- tion. We are equally clear that it is a case for election. The intention of the testator does not rest merely upon the Implication arising from his care- ful division of his property among his children in different classes, but he has indicated it in words by the clause, 'I direct and enjoin on my heirs that no exception be taken to this will, or any part thereof, on any legal or tech- nical account.' It is true that for want of a bequest over, this provision would be regarded aa in terrorem only, and would not induce a forfeiture: Chew's Appeal, 45 Pa. St. 228. But, as has been often said, the equitable doctrine of election is grounded upon the ascertained intention of the testa- tor, and we can resort to every part of the will to arrive at it. ' The inten- tion of the donor or testator ought doubtless to be the pole-star in such eases; and wherever it appears from the instrument itself conferring the benefit, with a certainty that will ad- mit of no doubt, either by express declaration or by words that are sus- ceptible of no other meaning, that it was the intention of the donor or tes- tator that the object of his bounty should not participate in it without giving his assent to everything con- tained in the instrument, the donees ought not to be permitted to claim the gift, unless they will abide by the intention and wishes of its author ': 659 CONCERNING ELECTION. § 485 tion of the law, but which has become obsolete from the effect of modern legislation upon the construction and operation of wills, namely, that of after-acquired lands purporting to be devised by the testator, but in reality descending to the heir. Previous to the modern statutes on the subject, a will of real estate invariably spoke from the date of its execution, and not' from the testator's death. A testator could not, by any form of words, how- ever explicit and mandatory, devise any lands of which he should become seised, or which he should purchase or acquire in any other manner, after the execution of the ' will; the devise was wholly void, and the land desc&nded to his heir. A question as to election by the heir was therefore presented by such a will, and exactly the same twofold rule was established by the decisions as in the case of a will purporting to devise estates situate in an- other country, but inoperative for that purpose. If the testator showed, by the language of description and gift, a clear intention to dispose of his after-acquired lands to a stranger, and by the same will gave some benefit to his heir, then the heir was obliged to elect between these after-acquired estates which would descend to him and the benefits conferred by the will; and this rule applied both to lands actually purchased after the date of the will Philadelphia v. Davia, 1 Whart. 510, — daughters — sums equal in value to per Kennedy, J. This, however, ia the shares of the real property in New not the only mode in which the equity Jersey, which descended to the daugli- of the case can be reached. The doc- ters, but which would have vested in trine ot equitable election rests upon the sons, if the will had been oper- the principle of compensation, and not ative on such lands. This admirable of forfeiture, which applies only to the judgment of Mr. Justice Sharswood non-performance of an express condi- ia in perfect harmony with the decis- tion. Besides, no decree of this court ion of the English court in Brodie v. could authorize the guardians of the Barry, 2 Ves, & B. 127, Orrell v. minors to execute releases of their Orrell, L. R. 6 Ch. 302, and oases of right and title to the New Jersey that kind, since the devise of the New lands, which would be effectual in Jersey lands was made in express, that state. The alternative relief specific terms of descri[>tion and gift, prayed for in the bill is that which is and was not merely inferred from most appropriate to the case." It was such general words as "all my real decreed that the sons — devisees — estate, whatever and wheresoever," should receive out of the personal and the like, property bequeathed to the defendants § 486 EQUITY .TUKISPRUDENCK 660 and to those contracted to be purchased." The converse of the rule was also well settled. If the words of descrip- tion and gift were general, and not clearly pointing to after-acquired land, so that the testator's intention to dis- pose of such estates was not certain, was equivocal, there was no case for an election.* The same double rule has been adopted and enforced, under like circumstances, by the American courts.' These questions cannot hereafter arise; for the rule itself has been rendered obsolete by the English statute,* and by legislation of the American states, which have altered the common-law doctrine, and have enacted that wills of real estate as well as of personal property shall speak from the time of the testator's death, and shall therefore carry after-acquired lands. § 486. Will of Copyholds. — Finally, a peculiar case arose in the English law, growing out of the species of estate and tenure known as copyhold, which should be briefly mentioned. Previously to the act 55 Geo. III., c. 192,* devised copyholds could only pass where they had been previously surrendered to the use of the owner's will. Whenever, therefore, a testator purported to devise un- surrendered copyhold property, it descended for want of a surrender to the heir, and a question arose whether such heir could claim both a legacy under the will, and also the copyhold property. It was held, in analogy with the cases described in the last two paragraphs, that ' Churchman v. Ireland, 1 Rnss. & the few American decisions which M. 250; i Sim. 520; Abdy v. Gordon, have dealt with this question. The ."? Ru33. 278; Schroder v. Schroder, English rule was adopted, and the Kay, 571, 578; 18 Jur. 987; 24 L. J. necessity of an election was distinctly Ch., N. S., 510, 513; Hance v. Tru- affirmed, where the intent to dispose whitt, 2 Johns. & H. 216; Greenwood of after-acquired lands is clear, in V. Penny, 12 Beav. 403; Thellusson McElfresh v. Schley, 2 Gill, 181; but V. Woodford, 13 Ves. 209, 211; stib see, for contrary reasoning and dicia, nam. Rendlesham v. Woodford, 1 Philadelphia v. Davis, 1 Whart. 490. Dow, 249. . It is abundantly settled that there is '■I Johnson v. Telford, 1 Rnss. & M. no case for an election, if the intent 244; Back v. Kett, Jacob, 534; and to devise the after-acquired lands is see Plowden v. Hyde, 2 De Gex, M. & not clear: Philadelphia v. Davis, I G. 684, 687. Whart. 490, 503; Hall v. Hall, 2 Mo- ^ It must be conceded, however, Cord Eq. 269, 299, 306. that there is some conflict of opinion « 1 Vict., c. 26, sec. 24, in the reasoning and conclusions of ' Mr. Preston's Act. t)61 CONCHKNING ELECTION. §§ 487, 488 if the testator showed an intent to dispose of the copy- holds by his will, the heir was put to an election; ' but if the devise was merely general in its form, and thus did not indicate a plain intention to include the copyholds, no necessity for an election existed.* This matter has been swept into oblivion by modern reformatory legisla- tion in England, and of course never had any existence in this country.^ § 487. Second Class. — Cases where property is given to B, in which the donor has only a partial interest, and a partial interest in it is, held by A, and by the same in- strument othe,r property of the donor is conferred upon A. This class includes among others the particular cases in which the donor has only an undivided share in the property given; where he has only a future interest in it, as, for example, a remainder or reversion in fee; where it is subject to encumbrances or charges held by a party who also receives benefits; where a widow is entitled to dower, and is a devisee or legatee under her husband's will; and where a widow has an interest in " community property," and receives benefits by her husband's will. § 488. General Doctrine. — The general doctrine which governs this class of cases has already been stated and illustrated.* Where the testator has a partial interest in the propertj' devised or bequeathed by his will, the ■ Highway v. Banner, 1 Brown Ch. Many of the English and American 584; Ratnbold v. Rumbold, 3 Vea. 65; decisions cited in the foregoing para- Petti ward v. Preaeott, 7 Ves.541; Unott graphs upon wills devising land in an- V. Wilkes, Amb. 430; 2 Eden, 187. other country, or after-acquired land, ' Juddv. Pratt, 13 Ves. 168; 15Ves. or copyholds, are extremely impor- 390. tant and useful in questions of daily ' These cases, however, and espe- occurrence concerning election with cially the last named (Judd v. Pratt, respect ^to dower, undivided shares 13 Ves. 168; 15 Yes. 390) may owned by the testator, and all other be instructive upon the more im- instances of a partial interest disposed portant question, How far does of by means of general descriptive general language of description and language. It is for this reason that donation in a will show an intent on I have stated the rules in the text, the part of the testator to deal with and the principles upon which they and dispose of a subject over which were rested, although the rules them- he has no power of disposition, — e. g., selves have Iieen abrogated by modern a partial interest, wife's dower, etc., — . legislation, and thus to raise a case of election? * See ante, §§ 473, 474, and note. 488 EQUITY JURISPKUDENCE. 662 necessity of an election is always much less apparent than where he purports to bestow property in which he has no interest whatever. In such cases it is a settled rule that courts -will lean as far as possible in favor of an interpre- tation which shows an intention of the testator to give only the interest, estate, or share which he is enabled, by virtue of his own right, to deal with, or to give the property in its present condition, subject to all existing encumbrances and charges upon it. It requires a strong, unequivocal expression or indication of an intent on the part of the testator to bestow the entire property, and not simply his own interest in it, or to bestow the prop- erty freed from its encumbrances and charges, in order to raise the necessity for an election.* The affirmative ' Lord Rancliffe v. Lady Parkyna 6 Dow, 185; Birmingham v. Kirwan, 2 Sohoales & L, 444; Maddison v. Chapman, 1 Johns. & H. 470; Wintour V. Clifton, 8 De Gex, M. & G. 641, 650; Padbury v. Clark, 2 Macn & G. 298; Dummer v. Pitcher, 5 Sim. 35; 2 Mylne & K. 262; Shuttleworth v. Greaves, 4 Mylne & C. 35; Stephens V. Stephens, 1 De Gex & J. 62; Wil- kinson V. Dent, L. R. 6 Ch. 339; Gris- sell T. Swinhoe, L. R. 7 Eq. 291; Havens v. Saokett, 15 N. Y. 365; Lewis V. Smith, 9 N. Y. 502; 61 Ahi. Deo. 706; Adsit v. Adait, 2 Johns. Ch. 448; 7 Am. Dec. 539; Bull v. Church, 5 Hill, 206; Puller v. Yates, 8 Paige, 325; Sandford v. Jackson, 10 Paige, 266; Vernon v. Vernon, 53 N. Y. 351; Lefevre v. Lefevre, 59 N. Y. 435; Reed V. Diokerman, 12 Pick. 146; Morrison V. Bowman, 29 Oal. 337, 348; Peck v. Brummagim, 31 Cal. 440, 447; 89 Am. Deo. 195; De Godey v. Godey, 39 Cal. 157, 164; In re Buchanan's Estate, 8 Cal. 507; Beard v. Knox, 5 Cal. 252; 63 Am. Deo. 125; Burton v. Lies, 21 Cal. 91 ; In re Silvey's Estate?, 42 Cal. 211; [Estate of Gilmore, 81 Cal. 240; Estate of Gwin, 77 Cal. 313; Toney r. Spragins, 80 Ala. 541; Pratt v. Doug- las, 38 N. J. Eq. 517.] In the case of Havens v. Saokett, 15 N. Y. 365, the doctrine is stated in so admirably clear and accurate a manner by Denio, C. J., that I shall quote from his opinion at some length. One Havens, the testa- tor, being entitled, under the will of a deceased brother, to certain bank stocks, in case he should survive that brother's widow, bequeathed, by a codicil of his own will, to the plaintifif, " the stocks given to me by my said brother after the decease of his widow." The testator also, by the same codicil, devised certain lands which he confessedly owned to his children, the defendants. The will of the testator's brother had given those same stocks to the testator's children (the defendants), in case their father should not survive the brother's widow. In fact, the testator died before the brother's widow, so that the bequest to the plaintiff of the stocks became nugatory, and they belonged to the de- fendants under the provisions of their uncle's will. The plaintiff claimed that the defendants were bound to elect between the land given them by the will and the stocks which came to them under their uncle's will, but which their father had bequeathed to the plaintiff. The court of appeals, reversing the judgment of the supreme court, held that there was no neces- sity for an election. Denio, C. J., after stating the general rule as fol- lows: "One who accepts a, benefit under a deed or will must adopt the whole contents of the instrument, con- forming to all its provisions and re- nouncing every right inconsistent with it; for example, if a testator has 663 CONCERNING ELECTION. §488 branch of the rule is equally well settled, that if a testa- tor is oqly entitled to a partial interest in the property, as where he owns an undivided share, or a future estate, or holds the property subject to some encumbrance or charge, and uses language of description and donation, which shows an unmistakable intention on his part to dispose of the entire property, or the property free from the existing encumbrance or charge, and if the owner of the other part or holder of the encumbrance or charge also receives benefits under the will, then a case for an elec- tion by such beneficiary is presented. The grounds of the election in such cases were accurately -stated by Lord Redesdale in a decision which has since been regarded as leading: " The general rule is, that a person cannot accept and reject the same instrument, and this is the foundation of the law of election, on which courts of affected to dispose of property not his own, and has given a benefit to the person to whom that property belongs, the legatee or devisee accepting the benefit so given to him must make good the testator's attempted dis- position," — proceeded to #pply the doctrine: "If the codicil can be so read that it shall appear that the testator intended only to dispose of his own contingent interest, or in other words, to dispose of the stock on condition that it should come to him by his surviving his sister-in-law, and that he did not attempt to do more, then it cannot be said that the plaintiff is disappointed by the defend- ants claiming their share of the stock, and the rule does not apply. Among the numerous cases which I have examined, I do not find any which pre- sents this feature. It is indeed laid down that, in order to furnish a case for compelling an election, it must ap- pear clearly and certainly that the in- terest attempted to be disposed of was such as the testator did not own. A person, it is said, is not, without strong indications of such an intent, to be un- derstood as dealing with that which does not belong to him." He cites Dummer v. Pitcher, 2 Mylne & K. 262, S Sim. 35, stating the facts and decis- ion of the court, and then proceeds: " The numerous class of cases in which a provision has been made for a wife by will, and not expressed to be in lieu of dower, and where the real es- tate has been devised to another by the same will, afford some light upon this question. At the first sight, a de- vise of a piece of land, or the direction in a will that a particular parcel of real estate should be sold to raise legacies, would seem to be hostile to the idea ' of a life estate existing in another in one third of the same land; and there- fore, where in such cases the will makes a provision for the wife, it would appear to be within the rule requiring her to elect, though it should not be stated in terms that the pro- vision was in lieu of dower. But the courts have held that such a devise or direction is not inconsistent with or repugnant to the claim of dower, and hence that the husband is not in such cases to be understood to have at- tempted to dispose of the dower estate of the wife. The right of dower is a title paramount to that of the bus- band, and when he devises the land, though without any qualifying words, an exception of the wife's right to dower is implied "; citing Adsit v. Ad- sit, 2 Johns. Ch. 448; 7 Am. Dec. 539; Church V. Bull, 2 Denio, 430; 43 Am. Dec. 754; 5 Hill, 207. § 489 EQUITY JURISPKUDENCE. 664 equity have grounded a variety of decisions in cases both of deeds and of wills." ' This being the true priterion, it follows that, in order to create the necessity of an elec- tion in such cases, the dispositions of the will must so clearly indicate the testator's intention to give something more than his own partial interest, that the enjoyment by the donee of the benefits conferred upon him, without carrying out the other provisions, would be an acceptance and a rejection at the same time of the same instrument.* I shall now show the manner in which these general doc- trines have been applied to various particular conditions of fact, and the special rules which have been established with reference thereto. § 489. The Donor Owns only an Undivided Share of the Property. — If a testator owning an undivided share uses language of description and donation which may apply to and include the whole property, and by the same will gives benefits to his co-owner, the question arises ' Birmingham v. Kirwan, 2 Schoales 25 Beav. 97; Usticke v. Peters, 4 Kay & L. 444, 449. The qaestiou was, & J. 437; Fitzsimmousv. Fitzsimmons, whether a widow was put to an elec- 28 Beav.^17; Miller v. Thurgood, 33 tion between a bequest contained in Beav. 496; Bull v. Church, 5 Hill, 207; her husband's will and her dower es- 2 Denio, 430; 43 Am. Dec. 754; Fuller tate in his lands which had been de- v. Yeates, 8 Paige, 325; Sandford v. vised away. Lord Redesdale held that Jackson, 10 Paige, 266; Vernon v. it is not necessary to use express words Vernon, 53 N. Y. 351; Savage v. of exclusion, in order to put the widow Burnham, 17 N. Y. 561, 577; Leonard to an election; but that a person can- v. Steele, 4 Barb. 20; Lewis v. Smith, not both accept and reject the same 9 N. Y. 502; 61 Am. Dec. 706; Mills instrument, and if, from the whole v. Mills, 28 Barb. 454; Morrison v. will taken together, it was the mani- Bowman, 29 Cal. 348; Chapin v. Hill, fest intention that the testamentary 1 R. I. 446; Collins v. Carman, 5 Md. provision should be received in lieu 503; Stark v. Hvinton, 1 N. J. Eq. 216; of dower, it would make an election Higginbotham v. Cornwell, 8 Gratt. necessary. But the language of the 83; 56 Am. Deo. 130;J)ougla3 v. Feay, will must not ba doubtful nor am- 1 W. Va. 26; Hyde v. Baldwin, 17 biguous. Pick. 303. 308; Smith v. Guild, 34 Me. ■' Parker v. Sowerby, 4 De Gex, M. 443, 447; Weeks v. Patten, 18 Me. 42; & G. 321; Padbury v. Clark, 2 Macn. 36 Am. Dec. 696; George v. Bussing, & G. 298; Wintour v. Clifton, 8 Do 15 B. Mon. 558; Apperson v. Bolton, Gex, M. & G. 641; 21 Beav. 447; 29 Ark. 418; Ailing v. Chatfield, 42 Howells V. Jenkins, 1 De Gex, J. & Conn. 276; Brown v. Brown, 55 N. H. S. 617; 2 Johns. & H. 706; Stephens 106; Cox v. Rogers, 77 Pa. St. 160; V. Stephens, 1 De Gex & J. 62; Dum- Young v. Pickens, 49 Ind. 23; Met- mer v. Pitcher. 2 Mylne & K. 262; 5 teer v. Wiley, 34 Iowa, 214; Colgate Sim. 35; Shuttleworth v. Greaves, 4 v. Colgate, 23 N. J. Eq. 372; Worthen Mylne & C. 35; Wilkinson v. Dent, v. Pearson, 33 Ga. 385; 81 Am. Deo. L. R. 6 Ch. 339; Groavenor v. Durston, 213j [Ditoh v. Sennott, 117 111. 362.] 665 CONCERNING ELECTION. § 489 whether such co-owner is bound to elect between the ben- efits conferred by the will-and his own share of the prop- erty. Prima facie a testator is presumed to have intended to bequeath that alone which he owned, — that only over which his power of disposal extended. Wherever, there- fore, the testator does not give the whole property specifi- cally, but employs general words of description and dona- tion, such as " all my lands," and the like, it is well settled that no case for an election arises, because there is an in- terest belonging to the testator to which the disposing lan- guage can apply, and the prima facie presumption as to his intent will control.* On the other hand, if the testator devises the property specifically by language indicating a specific gift of the property, an election becomes neces- sary. It seems now to be settled by the more recent Eng- lish decisions that when the owner of an undivided share devises or bequeaths the property by words of description and donation importing an intent to give the entirety, then a case of election is raised against the other co-owner who receives a benefit under the same will.^ The conclusion * Dummer v. Pitcher, 2 Mylne 4; my freeholds in Potter Street and K. 262; Uatioke v. Peters, 4 Kay & J. South Street, and elsewhere, ' I should 437; Miller v. Thnrgood, 3.S Beav, 496, be of opinion that no case for an elec- per Lord Romilly , M. R. ; Rancliffe v. tion arose. But he specifically points Parkyns, 6 Dow, 149; [Estate of Gwin, to his cottages in South Street," etc. 77 Cal. 313; Estaie of Gilmore, 81 Cal. » Shuttleworth v. Greaves, 4 Mylne 240; Penn v. Guggenheimer, 76 Va. & 0. 35; Miller v. Thnrgood, 33 Beav. 839; Pratt v. Douglas, 38 N. J. Eq. 496; Padbury v. Clark, 2 Macn. & G. 517; Haack v. Weicken, 118 N. Y. 75; 298; Fitzsimmons v. Fitzsimmons, 28 Estate of Gotzian, 34 Minn. 159; 57 Beav. 417; Grosvenor v. Durston, 25 Am. Rep. 43.] In Miller v. Thurgood, Beav. 97; Howells v. Jenkins, 2 Johns. 33 Beav. 496, a testator owned a free- & H. 706; Grissell v. Swinhoe, L. R. 7 hold lease in Potter Street and another Eq. 291, 295; Wilkinson v. Dent, L. in Sonth Street, and an undivided R. 6 Ch. .339. [See, to the same effect, two thirds of a house and of eighteen Penn v. Guggenheimer, 76 Va. 839; cottages in South Street, the other In re Durfeo, 14 R. I. 47; Ditch v. third belonging to his wife. He' de- Sennott, 117111. 362.] In Padbury v. vised all his freehold, messuages, cot- Clark, 2 Macn. & G. 298, a testator etc., in the two streets, specifi- owned an undivided half of a certain cally mentioning them, to his wife for house, and one Mary Cox owned the her life, and after her death to his chil- other half. He devised " all that my dren in fee. Lord Romilly held that she freehold, messuage, and tenement, with was bound to elect between her one the garden and all the appurtenances, third' of the house and cottages, and situate at Tottenham, and now on the benefits given by the will. He lease to T. Upton," to the plaintiff, said: "If the testator had devised his and gave certain bequests to Mary property in these terms, 'all and every Cox. Lord Cottenham held that this §489 EQUITY JURISPRUDENCE. 666 which is plainly deducible from these recent decisions in England is, that when a person -owns an undivided interest or share in any species of property, — a house and lot, a farm, a fund of securities, or a fund of money, — and he does not use general words of gift, such as "all my estate," "all my property," and the like, but purports to give the whole thing itself, using language which, by a reasonable inter- pretation, must necessarily describe and define the whole corpus of the thing in which his partial interest exists, as a distinct and identified piece of property, then an inten- tion to bestow the whole, and not merely the testator's un- divided share, must be inferred, and a case for an election arises. The language of description may be by metes and bounds, or may be any other form of words which will serve clearly to point out and identify the entire subject-matter/ divided half of an estate. She de- vised the estate as follows: " I give and devise all and singular the estate and mines of Aroa, in Columbia, formerly the estate of Simon Bolivar," etc., upon trusts, for the benefit, among others, of the parties who were en- titled to some interest in the other half of the estate. James, L. J., said: " It appears to me utterly impossible to suppose that when she said, ' I give and devise all,' etc., she meant only to give such estate and interest as she had in the property.' A will must be construed reasonably, even where by so doing parties are put to their election. [In Wooley v. Schrader, 116 111. 29, the testator had the legal title to a piece of laud, and his son had the equitable title and a right to a conveyance. The testator devised the land to another by general de- scription, and made other provisions for his son. In determining whether the entire estate, legal and equitable, was intended to be devised, the court held that a provision in the will direct- ing that compensation be made to the son for improvements made by him was decisive in showing that the tes- tator intended to dispose of the entire fee, and not his mere legal title, and that the son was put to an election.] ' As an illustration, if a testator owns an undivided half of a certain language showed a clear intention to devise the house as an entirety, and put Mary Cox to an election. In Howells v. Jenkins, 2 Johns. & H. 706, a testator, owning an undivided half of two farms, another undivided fourth of which belonged to W., devised one of these farms to E. and W., and W. was held bound to elect. In Crosvenor v. Durston, 25 Beav. 97, a testator, having certain public funds which stood in the joint names of himself and his wife, bequeathed away his funded stock generally, and also made a pro- vision for his widow; she was put to her election. In Grissell v. Swinhoe, L. K. 7 Eq. 291, 295, a testator was en- titled to one half of a fund and a cer- tain lady was entitled to the other half. In his will, after reciting that he was entitled to the whole fund, he pur- ported to bequeath the whole and to give one half of it to the husband of the lady, who was really owner of the other half. This husband had become administrator of his wife on her death, and succeeded to her half by virtne of his administration. The court held that ordinarily under the general rule, a case for an election would have arisen, but the husband was not re- quired to elect solely because he was Qot entitled to the other half in his own right. In Wilkinson v. Dent, L. B. 6 Cb. 339, a testatrix owued an un- 667 CONCERNING ELECTION. § 490 § 490. The Donor Owns only a Future Interest. — The rule thus established with reference to present undivided interests is not applied, at least with equal strictness, to cases where the donor has only a future interest, as a remainder or reversion in fee. If a testator, owning a remainder or reversion in fee, with no power over the precedent life estates, uses general language of disposal, such as " all my estate," or even disposes of the property as a w^hole by name, he is to be regarded as intending only to dispose of his future interest, and no necessity for an election arises.' This result, however, is not universal. Although a testator must be taken prima facie to have intended only to dispose of what belongs to him, there is no such rule as that where a testator has a limited inter- est in property forming the subject of a devise or bequest, the intention to make a disposition extending beyond that interest cannot be made clear by anything short of posi- tive declaration. The context of the will, and the ap- titude of the testamentary limitations to the testator's interest, ought, to be regarded. If, from the context of the will and all the dispositions taken together, an inten- tion on the part of the testator is clear to give the antece- dent life estates as well as his own remainder or reversion in fee, then an election becomes necessary by those who, owning the life estates, have received other benefits from the will.* It has also been held that where a testator has farm, and should devise the farm itself ' Rancliffe v. Parkyns, 6 Dow, 149. as a whole, either describing it by ' Wintour v. Clifton, 8 De Gex, M. metes and bounds, or identifying it as & G. 641, 649, 650; 21 Beav. 447. The a whole by any other form of words, testator had several different estates. an election would be necessary. The Some of them he owned absolutely; cases which have arisen in the United but in one of them he owned only the States presenting the closest analogy fee in remainder, the life estates being to these recent English decisions are held by others. His will made very those which are found in the Califor- complicated dispositions, which ap- nia reports dealing with the "com- plied alike to all the estates. From munity property " of the husband and the whole scheme of the will the wife. It will be seen, in a subsequent court held the intent was clear to paragraph, that the rule as stated in dispose of the antecedent life interest the text and established by the Eng- in the last-mentioned estate, as well lish courts has not been adopted by as the remainder in fee, and an elec- the California courts under circum- tion was necessary. For an extract stances closely analogous. [See post, from the opinion, see ante, § 474, note. §§503-505.] See also Smith v. Smith, 14 Gray, § 491 EQUITY JURISPRUDENCE. 668 a contingent interest only in certain property, — an inter- est which will only vest in him upon the happening of a contingent event, — and he bequeaths the property by language of gift general in its terms and absolute in its form, without referring to the contingent character of his interest, he must be assumed to have intended to dispose only of his own contingent interest, and not to make an absolute gift. If the contingency should not happen, and the bequest therefore failed, no election would be neces- sary by the person who succeeded to property and who also took a benefit under the will.^ § 491. Devise of Lands Encumbered, where the En- cumbrancers also Receive Benefits under the Will. — Where a testator owns property which is subject to some encumbrance or charge, and he devises it, distinctly de- scribing it, but not making any provision with respect to the encumbrance, and at the same time he gives some other bequest to the encumbrancer or holder of the charge, no case for an election by the latter is thereby raised. The testator is regarded as having intended to devise only the property subject to the charge or encum- brance.* The same rule has been applied to general 532; Hyde v. Baldwin, 17 Pick. 308j brothers and sisters of the plaintiff, Smith V. Gruild, 34 Me. 443; Hamblett were not bound to elect between the V. Hamblett, 6 N. H. 333; Fulton v. benefits given to them by the will of Moore, 25 Pa. St. 468; Weeks v. Pat- their father, John S., and the benefit ten, 18 Me. 42; 36 Am. Dec. 696. of a charge for ten thousand pounds, ' Havens v. Sackett, 15 N. Y. 365. created in their favor by the will of The testator was entitled to certain their grandfather, William S., upon an bank stocks, provided he should sur- estate which the plaintiff, the elder vive his brother's widow, but in case brother, took under that will, but he died before the widow the stocks which the father, John S., had also should belong to the children. He purported to devise to him by his will, bequeathed the stocks to the plaintiff The court of appeal. Lord Chancellor as follows: "The stocks given to me Cranworth, and Lords Justices Knight by my said brother after the decease Bruce and Turner, held that under of his widow." The testator dying the settled rule applicable under such before his widow, the stocks passed circumstances, the defendants were not to his children; and they were held bound to elect. Lord Cranworth said not bound to elect between these (p. 71): "Where a testator simply stocks and the benefits given by their gives an estate, without saying more, father's will. See extract from the he is to be taken to mean the estate in opinion, ante, § 488, note. its present condition, subject to the ^ Stephens v. Stephens, 1 De Gex & existing charges upon it. Lord Chief J. 62; 3 Drew. 697. The question in Baron Eyre, in Blake v. Bunbnry, 1 this case was whether the defendants, Ves. 514 says: ' If there is an en- 6C9 CONCERNING ELECTION. §§ 492, 493 creditors, where a will contains a devise or bequest of property in trust for the payment of the testator's debts.' §492. Dower — Election by a Widow between her Dower and Benefits Given by her Husband's Will. — Where a husband devises or bequeaths property to his wife, the question arises, whether she must elect between this benefit and her dower, or whether she is entitled to claim both her dower and the testamentary gift. This is by far the most important and frequent aspect in which the doctrine of election has come before the American courts, — so important that election itself has sometimes been treated by American writers as a mere incident of dower. In considering this branch of the subject, I pur- pose, in the first place, to state the general rule for the interpretation of such wills as settled by judicial author- ity, and then to explain the most important kinds of par- ticular testamentary dispositions which have given rise to more special and definite rules. § 493. Thte General Rule. — In England and in the states where the common-law dower, or an interest of the wife analogous thereto, exists, the following general rule for the interpretation of a husband's will, and for the determination of his widow's obligation to elect, has been established by the over whelming weight of authority. If the will declares in express words that the testamentary gift is intended to be in lieu of dower, the widow is obliged, cumbrance upon the estate devised in of their legal rights against other fnnda such terms ' (i. e., in general terms ap- or assets of the estate disposed of by plicable to an estate of which the tea- the will: Kidney v. Cousmaker, 12 tator is absolute owner), 'the mere Vea. 136, 154, per Sir William Grant; language of the will affords no infer- Clark v. Guise, 2 Ves. Sr. 617; Deg enoe of an intention to dispose 6f the v. Deg, 2 P. Wms. 412, 418. The estate free from that encumbrance.'" doctrine of these cases, viz., that the An intention to devise free from the necessity of election does not extend encumbrance, so as to put the encum- to creditors, has been rejected by cer- brancer also receiving a benefit to his tain decisions of the Pennsylvania election, must appear conclusively supreme court, which seem to require from the words of the will: Sadlier an election by the creditors under v, Butler, 1 I. R. Eq. 415, 423. such circumstances. See Irwin v. ' Thus where the will contains such Tabb, 17 Serg. & E. 419, 423; Ad- a devise, it has been held that credi- lum v. Yard, 1 Rawle, 163, 171; 18 tors need not elect between the benefit Am. Dec. 608. of such provision, and the enforcement § 493 EQUITY JURISPRUDENCE. 670 even at law, to elect.' When, however, the will contains no such express words, every devise or bequest made to the wife is presumed to be intended as a provision in ad- dition to her dower right, and in general, she will not be required to elect. The duty of electing may arise even in the absence of any express declaration that the testamen- tary gift is in lieu of dower, but can only arise from a clear, unequivocal intention exhibited in provisions of the will incompatible with the right of dower. " If there is anything ambiguous or doubtful, if the court cannot say that it was clearly the intention to exclude, then the averment that the gift was made in lieu of dower cannot be supported; and to make a case of election, that is necessary, for a gift is to be taken as pure until a condi- tion appear. The only question made in all the cases is, whether an intention, not expressed in apt words, can be collected from the terms of the instrument. The result of all the cases of implied intention seems to be, that the in- strument must contain some provision inconsistent with the assertion of a right to demand a third of the lands, to be set out by metes and bounds." * "The inquiry is, whether an intention in the testator that the testamentary gift is to be in lieu of dower can be collected by clear and mani- fest implication from the provisions of the will. To en- able us to deduce such an implied intention, the claim of dower must be inconsistent with the will, and repug- nant to its dispositions, or some of them. It must, in fact, disturb or disappoint the will." * "A wife cannot be deprived of her dower by a testamentary disposition in her favor, unless the testator has declared the same to be in lieu of dower, either in express words, or by neces- sary implication. To compel a widow to elect between the dower and a testamentary provision, where the testa- tor has not in terms declared his intention on the subject, 'Nottley V. Palmer, 2 Drew. 93; & L. 444, 452, per Lord Eedea- Boynton v. Boynton, 1 Brown Ch. dale. 445. » Adsit v. Adsit, 2 Johns. Ch. 448; ' Birmingham v. Kirwan, 2 Shoales 7 Am,. Deo. 539, per Chancellor Kent. 671 CONCERNING ELECTION. 493 it is not sufficient that the will renders it doubtful whether he intended that she should have her dower in addition to the provision ; but the terms and provisions of the will must be totally inconsistent with her claim of dower in the property in which such dower is claimed." ^ It results that whatever be the dispositions of the will to the widow and to others, the presumption is strong in favor of the intention that the widow shall have both the gift and her dower; the courts lean heavily in support of this pre- sumption; nothing short of a perfect incongruity between the dispositions of the will and the widow's claim to set out her dower hy metes and bounds from her husband's lands can put her to an election. However positive and absolute the testator's language of donation, the court will, if possible, read it as meaning, "I devise and bequeath all my interest in the land subject to my wife's dower right."^ > Church V. Bull, 2 Denio, 430; 43 Am. Deo. 754, per Chancellor Wal- worth. » Dowsonv. Bell, 1 Keen, 761; Har- rison V. Harrison, 1 Keen, 765; HoU dich V. Holdioh, 2 Youngo & C. 18, 23; Parker v. Sowerby, 4 De Gex, M. & G. 321, and cases cited; Thompson v. Burra, L. R. 16 Eq. 592; Roberta v. Smith, 1 Sim. & St. 513; Roadley v. Dixon, 3 Ruas. 192, 200, 201; Villa Real V. Lord Galway, 1 Brown Ch. 292, note; Amb. 682; Pitta v. Snow- den, 1 Brown Ch. 292, note; Poster v. Cooke, 3 Brown Ch. 347; Pearson v. Pearson, 1 Brown Ch. 292; French r, Davies, 2 Ves. 572; Greatorex v. Cary, 6 Ves. 615; Birmingham v. Kirwan, 2 Schoales & L. 444; Lord Dorchester V. Earl of Effingham, Coop. 419; Dick- son V. Robinson, 1 Jacob, 503; Taylor V. Taylor, 1 Younge & 0. 727; Pep- per V. Dixon, 17 Sim. 200; Lowes V. Lowes, 5 Hare, 601; Reynolds v. Torin, 1 Russ. 129, 133. In Dowson V. Bell, 1 Keen, 761, Lord Langdale, M. R., said (p. 764): "That the testa- tor had himself no intention to leave his wife her claim for dower, when he made this will, cannot be reasonably doubted, but the question is, whether the devise is of such a nature as to te incomislent with the enjoyment of her dower by the widow. In the consid- eration of this question, when the tes- tator speaks of all his estates, he must be held to mean all his estates subject to the legal rights against them, and among these is the wife's right to dower." In Harrison v. Harrison, 1 Keen, 765, the same able judge said (p. 767): "The principle ap- plicable to cases of this kind is, that where a testator makes a provision for his widow out of his real es- tates, she will not be excluded from dower, unless the enjoyment of dower, together with the provision made b^ the will, appears to be inconsistent with the intention of the testator as it is to be collected from the lan- guage of the will." In Holdich v. Holdich, 2 Younge & 0. 18, 23, Knight Bruce, V. C, said: "To put the wife to her election on the ground that her claim to dower is inconsis- tent with the intention of the testa- tor as to some other legatee or devisee, there must be something beyond the mere gift to the legatee or devisee. There must be such circumstances attending the gift aa that, if dower be admitted, the legatee or devisee will bo disap- pointed of the enjoyment of the prop- erty in the mode pointed out by the tes- tator. " In Roadley v. Dixon, 3 Russ. 192, 200, Lord Lyudhurst said: "The law upon questiona of this kind i» §493 EQUITY JUKISPKUDENCB. 672 It must also be carefully observed, as a conclusion drawn from all the cases of authority, that it is not sufficient to very distinctly and clearly settled. The tridow will be entitled to her dower, unless in the will under which she takes a benefit there are provisions absolutely inconsistent with her claim of dower. " In Reynolds v. Torin, 1 Rus«. 129, 133, Lord Gifford, M. R., said: "To exclude the widow from her legal right, either there must be an express declaration to that effect, or it must appear clearly from the whole frame of the will that it was the testator's intention to give her some interest wholly inconsistent with her enjoyment of that legal right." The remaining cases cited above will show what dispositions of a will the English courts, in applying this rule, have regarded as sufficiently inconsistent with her claim of dower, in order to put a widow to an elec- tion. The general rule thus estab- lished in England is fully adopted by the decisions in all the states where the common-law dower, or a legal right analogous thereto, still exists not essentially altered by statute. Adsit V. Adait, 2 Johns. Ch. 448; 7 Am. Dec. 539; Smith v. Kinskern, 4 Johns. Ch. 9; Swaine v. Perine, 5 Johns. Ch, 482; 9 Am. Dec. 318; Larrabee v. Van Alstyne, 1 Johns. 307; 3 Am. Deo. 333; Van Orden v. Van Orden, 10 Johns. 30; 6 Am. Dec. 314; Jackson v. Churchill, 7 Cow. 287; 17 Am. Dec. 514; Wood v. Wood, 5 Paige, 597, 601; 28 Am. Dec. 451; Fuller v. Yates, 8 Paige, 325; Sandford v. Jackson, 10 Paige, 266; Havens v. Havens, 1 Sand. Ch. 325, 330; Bull v. Church, 5 Hill, 206; 2 Denio, 430; 43 Am. Dec. 754; Sheldon v. Bliss, 8 N. Y. 31; Lewis V. Smith, 9 N. Y. 502; 61 Am. Deo. 706; Savage v. Burnham, 17 N. Y. 561, 577; Tobias v. Ketohum, 32 N. Y. 319, 326; Vernon v. Vernon, 53 N. Y. 351, 362; Lefevre v. Lefevre, 59 N. Y. 435; Leonard v. Steele, 4 Barb. 20; Lasher v. Lasher, 13 Barb. 106; Mills V. Mills, 28 Barb. 454; Vedder v. Saxton, 46 Barb. 188; Evans v. Webb, 1 Yeates, 424; 1 Am. Deo. 308; Hamilton v. Buck- waiter, 2 Yeates, 389; 1 Am. Deo. 350; Duncan v. Duncan, 2 Yeates, 302j Webb V. Evans, 1 Biun. 565, 572; Cauffman v. Caufifman, 17 Serg. * R. 16, 25; Preston v. Jones, 9 Pa. St. 456, 460; Fulton v. Moore, 25 Pa. St. 468; Cox v. Rogers, 77 Pa. St. 160; Stark v. Hunton, 1 N. J. Eq. 217, 224; Van Arsdale v. Van Arsdale, 26 N. J. L. 404, 417; Colgate v. Colgate, 23 N. J. Eq. 372; [Pratt v. Douglas, 38 N. J. Eq. 517;] Perkins v. Little, 1 Greenl. 148; O'Brien v. Elliot, 16 Me. 125; 32 Am. Deo. 137; Weeks v. Patten, 18 Me. 42; 36 Am. Dec. 696; Smith v. Guild, 34 Me. 443; Brown v. Brown, 55 N. H. 106; Hamblett V. Hamblett, 6 N. H. 333; Reed v. Dickerman, 12 Pick. 145, 149; Hyde V. Baldwin, 17 Pick. 303, 308; Kernp- ston's Appeal, 23 Pick. 163; Smith v. Smith, 14 Gray, 532; Lord v. Lord, 23 Conn. 327, 331; Ailing v. Chat- field, 42 Conn. 276; Chapin T. Hill, 1 R. I. 446; Hall's Case, 1 Bland, 203; 17 Am. Deo. 275; Collins v. Carman, 5 Md. 503; Wiseley v. Findlay, 3 Rand. 361; 15 Am. Dec. 712; Ambler V. Norton, 4 Hen. & M. 23, 44; Hig- ginbotham v. Cornwell, 8 Gratt. 83; 66 Am. Dec. 130; Dixon v. MoCue, 14 Gratt. 540; Pickett v. Peay, 3 Brev. 545; 6 Am. Dec. 594; Gordon v. Stevens, 2 Hill Ch. 46; 27 Am. Dec. 445; Brown v. Caldwell, 1 Speers Eq. 322; Snelgrove v. Snel- grove, 4 Desaus. Eq. 274, 294; Tooke V. Hardeman, 7 Ga. 20; Wor- then V. Pearson, 33 Ga. 385; 81 Am. Deo. 213; Adams v. Adams, 39 Ala. 274; Apperson v. Bolton, 29 Ark. 418; Carroll v. Carroll, 20 Tex. 731, 744; Shaw v. Shaw, 2 Dana, 342; Timberlake v. Parish's Ex'r, 5 Dana, 346; Bailey v. Duncan, 4 Mon. 256, 265, 266; Douglas v. Feay, 1 W. Va. 26; Pemberton v. Pemberton, 29 Mo. 408, 413; Clark v. Griffith, 4 Iowa, 405; Mitteer v. Wiley, 34 Iowa, 214; Herbert v. Wren, 7 Cranoh, 370, 378; [Griggs V. Veghte, 47 N. J. Eq. 179; Stewart v. Stewart, 31 N. J. Eq. 398; Lee V. Tower, 124 N. Y. 370; Tracey V. Shumate, 22 W. Va. 474; Atkinson V. Sutton, 23 W. Va. 197; Estate of Zahrt, 94 N. Y. 605; Nelson v. Kown- dar, 79 Va. 468; Potter v. Workey, 37 Iowa, 66; Blair v. Wilson, 57 Iowa, 178; Snyder v. Miller, 67 Iowa, 261; Dougherty v. Dougherty, 69 Iowa, C73 CONCERNING ELECTION. § 494 raise a case for an election, that an intention can even bo plainly inferred from the dispositions of the will for the widow to take the testament gift in lieu of her dower; in order to put her to an election, such an intention on the part of the testator must be expressed by means of testa- mentary dispositions and provisions which are wholly and unmistakably inconsistent with the assertion of her claim to the dower. Mere intention of the tesiator gathered from the will is clearly not enough; that in- tention must have been shown, or carried into operation, by totally inconsistent gifts of the land subject to the dower. § 494. A Different Statutory Rule in Certain States. — As will more particularly appear in a subsequent par- agraph, the time and mode of electing between her dower and a will, by a widow, is very precisely regulated in many of the states by statute. Either as a result of this legislation, or of statutes changing the nature of dower, a general rule concerning the necessity of election by 679; Estate of Blaney, 73 Iowa, 114; intention which must appear, in order Howard v. Watson, 76 Iowa, 229; that the widow may hold both her Asche V. Asohe, 113 N. Y. 232; dower and the testamentary gift. The Kutherford v. May, 76 Va. 117.] general rule was stated perhaps more In the early case of Herbert v. accurately by Denio, J., in Lewis v. Wren, 7 Cranch, 370, 378, Marshall, Smith, 9 N. Y. 502; 61 Am. Dee. 706, C. J., thus stated the rule: "It is a as follows: " The courts do not inquire maxim of a court of equity not to per- whether the testamentary provision is mit the same person to hold under and adequate, or reasonably proportionate against a will. If, therefore, it be to the value of the dower Where manifest from the face of the will that there is no direct expression of inten- the testator did not intend the provis- tion that the provision shall be in lieu ion it contains for his widow to be in of dower, the question always is, addition to dower, but to be in lieu whether the will contains any provis- of it, if his intention, discovered in ion inconsistent with the assertion of other parts of the will, must be de- a right to demand a third of the lands, feated by the allotment of dower to the to be set out by metes and bounds, widow, she must renounce either her The devises in the will rrnist be so repiig- dower or the benefit of the claims un- nant to the claim of dower that they caw der the will. But if the two provis- not stand together." [In determining ions may stand well together, if it whether a testamentary disposition may fairly be presumed that the testa- was intended in place of dower, the tor intended the devise or bequest to fact of the inadequacy of the provis- his wife as. additional to her dower, ion, which was known to the testator, then she may hold both." The Ian- is considered a strong indication that guaige of Marshall, C. J., in this last such was not the intention: Traoey v. clause of the extract is open to criti- Shumate, 22 W. Va. 474; Atkiusoa cism, as not expressing correctly the v. Sutton, 23 W, Va. 197. ] 1 EQ. JuB. — 43 §494 EQUITY JUEISPKUDENCE. 674 widows, quite different from that set forth in the forego- ing paragraph, has been adopted in some of the states. By this rule, wherever a testamentary disposition in be- half of his widow is contained in the husband's will, and his intention that she is to enjoy both this gift and her dower does not affirmatively and expressly appear on the face of the instrument, she is required to elect between the two.' ' In several of these states the com- mon-law dower has been abolished, and a statutory right to a portion of her hasband'a real estate has been given to the widow in place of the dower. In many of the states men- tioned in this note it will be seen that the new statutory rule concerning the effect of a testamentary provision in favor of the widow, and the conse- quent necessity for her to elect, ex- tend not only to her dower, or to the portion of real estate given in place of dower, but also to her distributive share of her husband's personal estate. Wherever an election by the widow is required under the statutes, she is generally obliged to make it in a for- mal manner, by means of a written instrument, which is either filed with the clerk of the court, or entered iu the records of the pending proceed- ings. I arrange the states iu classes, the statutory provision of all those which constitute a class being sub- stantially the same in language, and actually the same in legal effect. First Class. — In the states of this class any testamentary provision made by the husband's will in favor of his wife, whether devise of land, or bequest of pei-sonal property, is deemed to be in lieu of her dower or statutory portion given in place of dower, and in many states of her share of the personal property, and bars her right to her dower, statu- tory portion, or share, unless it plainly appears on the face of the will that her husband intended she should have both, or unless she duly elect to waive the testamentary benefit. Where the will does not expressly show that she was to have both, she must, within a certain prescribed time, elect against "the will, and must, in a formal man- ner, waive or reject the testamentary provision, or else she will be deemed to have elected in favor of it, and will be barred of her dower, or statutory portion in place of dower, and in many states of her distributive share. Iu several of the states this formal renun- ciation of the will must be made with- in six months after probate; in some within a year. I have indicated the period in connection with each state. The following states belong to this 4lahama. — Rev. Code, sees. 1928, 1929: Extends to dower and distribu- tive share; must elect within one year from probate. See Hilliard v. Ben- ford's Heirs, 10 Ala. 977, 990; Mc- Grath v. McGrath, 38 Ala. 246; [Cren- shaw v. Carpenter, 69 Ala. 572; 44 Am. Rep. 539.] JUinois. —Kurd's Rev. Stats. 1880, p. 426 [ed. of 1889, c. 41], sees. 10, 11: Extends to dower; election must be within one year after letters testamen- tary are issued. See Haynie v. Dick- ens, 68 111. 267; Sutherlanl v. Suther- land, 69 111. 481; Padfield v. Padfield, 78 111. 16; Gauch v. St. Louis etc. Ins. Co., 88 111. 255; 30 Am. Rep. 554; Mowbry v. Mowbry, 64 111. 383; Brown v. Pitney, 39 111. 468; Jen- nings V. Smith, 29 111. 116. Kansas. — Comp. Laws 1879, p. 1005, sec. 6153 [Comp. Laws 1885, c. 117, sec. 41]: Extends to widow's statutory portion; election must be made within thirty days after service of a citation issued to her after the probate. See Allan v. Hannum, 15 Kan. 625. Maine. — Rev. Stats. 1871, p. 757, c. 103, sec. 10: Extends to dower; election must be within six months after the probate. See Allen v. Pray, 12 Me. 138, 142; Hastings v. Clifford, 32 Me. 132j Dow v. Dow, 36 Me. 211. 675 CONCEKNING ELECTION. §495 § 495. Classes of Testamentary Dispositions. — So many cases have arisen upon wills containing disposi- Massachttsetts. — Rev. Stats., o. 60, aec. 11; Gen. Stats., c. 92, see. 24; Stats. 1854, c. 428; Stats. 1861, c. 164 IPub. Stats., 0. 127, sec. 20]: Extends to dower; election must be made within six months after probate. Sea Atherton v. Corliss, 101 Mass. 40, 44; Reed v. Dickerman, 12 Pick. 146; Pratt V. Felton, 4 Cush. 174; Delay V. Vinal, 1 Met. 57; Adams v. Adams, 5 Met. 277; [Mathews v. Mathews, 141 Mass. 511. Under Public Statutes {c. 127, sec. 20), the provision that the widow shall not be entitled to dower in addition to the provisions of her husband's will is held not to apply to lands of a resident of Massachu- setts situated in a foreign state: Staigg V. Atkinson, 144 Mass. 56/.] Maryland. —Rev. Code 1878, p. 475, sees. 227-230 [Code 1888, art. 93, sees. 291-294]: Extends to dower and to distributive share; election must be made within six months after letters testamentary are issued. See Knighton V. Young, 22 Md. 359; Hilleary v. Hilleary's Lessee, 26 Md. 274; Gough V. Manning, 26 Md. 347, 366; Lynn v. Gephart, 27 Md. 547; Hinckley v. House ofc Refuge, 40 Md. 461; Pindell V. Pindell, 40 Md. 537. Michigan. — 2 Comp. Laws 1871, p. 1362, sees. 4286, 4287 [Howell's Stats. 1882, sees. 5750, 5751]: Extends to dower; widow is deemed to have •elected in favor of the will, unless within one year after her husband's •death she begin proceedings to recover her dower. Minnesota. — 1 Bissell'a Stats, at Large, p. 628, sees. 152, 153 [Rev. •Stats. 1851, 0. 49, sec. 18; Gen. Stats. 1866, e. 48, sec. 18]: Provisions same •as in Michigan; but in 1875 dower was abolished, and these provisions re- pealed. [Laws of 1875, c. 40; Estate of Gotzian, 34 Minn. 159; 57 Am. Rep. 43. By the latter statute, an estate of inheritance in lieu of dower is given to the widow, and the rules gov- erning election between this statutory estate and provisions made for the widow by the will of her husband are the same as the general rules of equity governing election in cases of dower. Unless the contrary appears from the will, the presumption is, that a legacy is intended as a bounty, and not as a satisfaction of the statutory interest of the wife.] Mississippi. — Rev. Code 1871, p. 254, sees. 1286, 1287 [Code 1880, sees. 1172, 1174]: Extends to dower and to widow's share of personal es- tate; election must be made within six months after probate. Nebraska. — Gen. Stats. 1873, p. 278, sees. 17, 18: Extends to dower; election is deemed to be made in favor of the will, unless within one year after her husband's death the widow begins proceedings to recover her dower. [Dower abolished,. 1889.] North Carolina. — Battle's Rev. 1873, p. 840, see. 6 [Code 1883, sec. 2108]: Extends to dower; election must be made within six months after probate. See Craven v. Craven, 2 Dev. Eq. 338; Bray v. Lamb, 2 Dev. Eq. 372; 25 Am. Dec. 718. OAjo. — 2 Rev. Stats. 1879, p. 1433, sec. 5963: Extends to dower; election must be made within one year after service of a citation upon the widow for that purpose. See Stilley v. Folger, 14 Ohio, 610, 646; Luigart v. Ripley, 19 Ohio St. 24; Baxter v. Boyer. 19 Ohio St. 490; Bowen v. Bowen, 34 Ohio St. 164; Thompson v. Hoop, 6 Ohio St. 480; Stockton v. Wooley, 20 Ohio St. 184; Davis v. Davis, 11 Ohio St. 386; Jennings v. Jennings, 21 Ohio St. 56. Oregon. — Gen. Laws 1872, p. 586, sees. 18, 19 [Hill's Laws 1887, sees. 2971,2972]: Extends to dower; widow is deemed to have elected in favor of the will, unless within one year after the death of her husband she begins proceedings to recover her dower. Pennsylvania. — Brightly 's Purdon's Dig., p. 362 [ed. of 1883, p. 632], sees. 4-6: Extends to dower; after one year from the husband's death a cita- tion may be issued to the widow, and she must then elect. See Anderson's Appeal, 36 Pa. St. 476; Melizet's Ap- peal, 17 Pa. St. 449; 55 Am. Dec. 573; Cauffman v. Cauffman, 17 Serg. & R. 16; Heron v. Hoffner, 3 Rawle, 393; Reed v. Reed, 9 Watts, 263; Leina- weaver v. Stoever, 1 Watts & S. 160; Borland v. Nichols, 12 Pa. St. 38; 51 Am. Deo. 576. §195 EQUITY JURISPKUBBNCB. 67& tions by the testator, similar in their operation, that the- English and American courts have been enabled to mak& Tennessee. —Coie 1871, vol. 2, p. 1077, sec. 2404. Extends to dower; election must be made within one year after probate. See Reid v. Campbell, Meigs, 378, 388; Malone v. Majors, 8 liumpb. 577, 579; McClung V. Sneed, 3 Head, 218, 223; Waddle V. Terry, 4 Cold. 51, 54; Bemoss v. Demoss, 7 Cold. 256, 258. Wisconsin. —2 Taylor's Stats. 1871, p. 1160, sees. 18, 19 [Laws of 1877, c. 106; Sanborn and Berryman's Stats. 1889, sec. 2172]: Extends to dower; widow is deemed to have elected in faror of the will, unless within one year after probate she be- gins proceedings to recover her dower. [Under the Laws of 1877 (c. 106), if a will makes provision for the widow, she is excluded from any share either to the real or personal estate of the testator left undisposed of by the will, by virtue of the right of dower or under the statute of distributions, unless she duly renounces the provis- ion so made for her in the will; Hardy V. Scales, 54 Wis. 452. In Wilber v. Wilber, 52 Wis. 298, it is held that the statutory riglit of election cannot be taken from ^the widow either by the will, or by a deed of release ex- ecuted by her to her husband during coverture. See also Leach v. Leach, 65 Wis. 291.] Second Class, — In all the states of this class, any devise of land by the husband to his widow is deemed to be in lieu of dower, and puts her to an elec- tion, unless the will expressly shows his intention that she shall receive both. A bequest of personal property is not so deemed, and does not put the widow to an election, unless it is expressly given in lien of her dower, or unless the testator's intention that it shall be instead of dower is plainly manifested from the provisions of the will. When thus required to elect, the widow's election must be made in a, formal manner, by a writing, and within certain prescribed times. The prescribed periods of time within which the election must be made are mentioned in connection with each state of the class. The following states compose this class: — Arkansas. — Gautt's Dig., sees. 2233, 2235, 2236 [Dig of Stats. 1884, sees. 2594, 2596, 2597]: Where a devise is- simply given to the widow, she must, elect against the will within eighteen months after her husband's death, or else she is regarded as having elected in favor of the will. Also, in Gantt's. Dig., sec. 2223 [Dig. of Stats. 1884, sec. 2284], when any provision is givea to her expressly in lieu of her dower, she must elect against the will withia one year after her husband's death, by commencing proceedings to recover her dower. Delaware. — Rev. Code 1852-74, p. 534, sees. 5, 6, 7: Widow must, elect against the will within thirty days after service of a citation on her. See Chandler v. Woodward, 3 Harr. (Del.) 428. Georgia. — Code 1873, p. 305, sees. 1764, 1765: Widow must elect when land is deV-ised to her, but the time- of making the election and its mode are not prescribed. See Tooke v. Hardeman, 7 Ga. 20; Raines v. Cor- bin, 24 Ga. 185; Worthen v. Pearson,. 33 Ga. 385; 81 Am. Dec. 213; Claytoa V. Akin, 38 Ga. 320; 95 Am. Dec. .S93i Gibbon V. Gibbon, 40 Ga. 562; [Ald- ridge v. Aldridge, 79 Ga. 71. In For- ester V. Watford, 67 Ga. 508, it is held that before the right to dower can be defeated, the widow must do. some act showing her acceptance of the provision of the will. As to what will amount to such election, see Churchill v. Bee, 66 Ga. 621; Johnston V. Duncan, 67 Ga. 61. The wife can- not be put to her election until after the death of her husband. Conse- quently, a deed from the husband to- his wife, accepted by her at the time, in lieu of dower, will not have that effect, unless ratified after the hus- band's death: Butts v. Trice, 69 Ga. 74.] Missouri. — 1 Wagner's Stats. 1S70, p. 541, sees. 15, 16: Widow must elect in writing within one year after probate to waive the devise, or she is. deemed to have elected in favor of the will. See Pemberton v. Pemberton, 29' Mo. 408; Brant v. Brant, 40 Mo. 266. New Jersey/. — Rev. Stats. 1877, p. 322, sec. 16: Any devise is a bar of dower, unless the widow elects to> <)77 CONCERNING ELKCTION. §§ 496, 497 a classification of wills, and to establish a number of spe- cial rules declaring wliat particular kind of testamentary •disposition is and what is not inconsistent with a fclaim of dower, so that the widow shall or shall not be put to an election thereby. The most common and important of these testamentary forms, and of the special rules con- cerning them, will now be stated. § 496. Express Declaration. — If the testator, in express terms, declares that any gift which he makes to his widow, whether legacy or devise, shall be in lieu of her dower, «he is, of course, required to elect between the will and her dower right, both at law and in equity; and the value of the gift in proportion to that of her dower, whether large or small, is entirely immaterial.' In all the subse- quent classes the will contains no such express declara- tion. § 497. Devise of a Part to the Widow and of the Rest to Others. — Where a testator simply devises to his widow A part of the lands which are subject to dower, with or without any additional pecuniary provision by way of legacy, and gives the rest of his real estate to others to be ■enjoyed by such devisees for their own benefit, — that is, not to trustees upon trust to sell such residue, — it is well settled, both in England and in this country, that the disposition made by the testator is not inconsistent with his widow's claim for dower, and no necessity for an elec- "waive it within six months after pro- ' See many of the cases cited in the Tjate. See Stark v. Hunt.on, 1 N. J. preceding notes, under § 493. I And Eq. 216; Norris v. Clarlc, 10 N. J. Eq. where the provision of the will ex- Sl ; Adiimson v. Ayres, 5 N. J. Eq. pressly provides that it shall l)e ac- 549; Colgate v. Colgate, 23 N. J. Eq. cepteil and received in lieu of dower, 372; Morgan v. Titus, 3 N. J. Eq. 201 ; and of all claims she may have against English V. English, 3 N. J. Eq.'504; 29 the testator's estate as his widow, it Am. Dec. 730; White v. White, 16 N.J. is held that the declaration wa.s not X. 202; 31 Am. Dec. 232; Thompson v. simply for the benefit of the other Egbert, 17 N. J. L. 459; Van Arsdale v. devi-ees and legatees, but was in ease Van Arsdale, 26N.J.L.404. [In Griggs of the entire estate, and barred the V. Veghte, 47 N. J. Eq. 179, it is held widow from any other share thereof, that an intention to make an equal and consequently she was not enti- ilirision of the testator's estate, not tied to share under the statute of dis- ■otherwise disposed of, between the tributions in a lapsed legacy: In re wife and other beneficiaries is iucou- BuUafd, 96 N. Y. 499; 48 Am. Kep. •latent with her taking dower.] 646.] §497 EQUITY JURISPRUDENCE. 67& tion is created.' Where the devise to a third person, after a provision made for the widow, is specific of a cer- tain tract of land specifically defined and identified, a variation from this rule has been suggested and even adopted in some American cases. Under ordinary cir- cumstances the specific nature of the devise does not prevent the operation of the rule; but when the specific devise is for the benefit of one whom the testator is bound to support, the rule may not apply.* ' Lawrence v. Lawrence, 2 Vern. 365; 2 Freem, 23i, 235; 3 Brown Pari. C, Tomlins'a ed., 483; Lemon v. Lemon, 8 Vin. Abr., p. 3G6, pi. 45; French v. Davies, 2 Ves. 572; Strahan V. Sutton, 3 Ves. 249; Lord Dorchester V. Earl of Effingham, Coop. 319; Brown V, Parry, 2 Dick. 685; Incledon V. Northcote, 3 Atk. 430, 436; Gibson V. Gibson, 1 Drew. 42; Lawrence v. Lawrence, 2 Veru. 36.5, 2 Freem. 234, 2.35, 3 Blown Pari. 0., Tomlins's ed., 483, is the leading case. The testator devised part of his real estate to his wife during her widowhood, and also gave her several legacies, both specific and general. The residue of his real estate was devised to trustees, in trust, for specified persons. Lord Soniera held that the widow was bound to elect, but his decision was reversed by Lord Keeper Wright, and that decree was contirmed by Lord Chancellor Cowper and the house of lords, and it was settled that she could claim both her dower and the benefits given by the will. The American decisions are equally unanimous and strong: Lefevre v. Lefevre, 59 N. Y. 435; Leonard v. Steele, 4 Barb. 20; Bull v. Church, 5 Hill, 207; 2 Denio, 430; 43 Am. Deo. 754; Lewis v. Smith, 9 N. Y. 502; 61 Am. Dec. 706; Mills v. Mills, 28 Barb. 454; Jackson v. Churchill, 7 Cow. 287; 17 Am. Deo. 514; Havens v. Havens, 1 Sand. Ch. 325, 329; Evans V. Webb, 1 Yeates, 424; 1 Am. Dec. 308; Pickett v. Peay, 3 Brev. 545; 6 Am. Dec. 594; Wiseley v. Findlay, 3 Kand. 361; 15 Am. Dec. 712; Brown v. Coldwell, 1 Speers Eq. 322, 325; Brown v. Brown, 55 N. H. 106; but see, per contra, Ailing v. Chatfield, 42 Conn. 276; Apperjou v. Bolton, 29 Ark. 418. In Lefevre v. Lefevre, 59 N. Y. 435, the testator gave one third of his estate, real and personal, to his widow, one third to a charitable society, then certain legacies, and the residue to his widow, to be disposed of, as she saw fit, for charitable purposes. She was not put to an election. In Leonard v. Steele, 4 Barb. 20, a husband died intestate, leaving his widow and a son. The son, dying, devised to his mother part of the real estate which thus descended to him, and the rest to others. The widow was held entitled to dower in all the real estate of her husband, and also to the land devised to her in fee by her son. In Mills v. Mills, 28 Barb. 454, the testator directed 'that one third of his estate should be set apart and invested for the use of his widow during her life, and on her death should be divided among his childrenj the residue to be divided among his children. The widow was held en- titled to her dower in addition to tha testamentary gift. In Jackson v. Churchill, 7 Cow. 287, 17 Am. Deo. 514, the testator devised to his widow his dwelling-house and part of his garden, and gave her legacies. He devised his farm to his sons. Th& widow was held entitled t6 dower itt the farm, as well as to the devise and legacy given by the will. These ex- amples amply illustrate the rule aa stated in the text. ' Under ordinary circumstances, a specific devise to a third person cer- tainly makes no difference with the operation of the rule stated in the text, that no case for an election is raised: Strahan v. Sutton, 3 Ves. 249; Jackson v. Churchill, 7 Cow. 287; 17 Am. Deo. 514; Kennedy v. Nedrow, 1 Dall. 415, 418. But if the testator, after giving a portion of his property to his widow, makes a specific devisft 679 CONCERNING ELECTION. § 498 § 498. Devise to the Widow for Life. — As a particu- lar instance of the rule stated in the preceding para- graph, a devise to the widow of a certain portion of the real and personal estate, or either, for her life, and a de- vise of the rest of the lands to third persons, clearly does not raise a case for an election between the testamentary gift and dower in the residue.'' A devise of a certain portion of the testator's lands, or of all his lands, to his widow for her life or during widowhood, presents another question: whether such a disposition is inconsistent with her claim of dower in the lands thus devised to her for life, or whether she can both accept the testamentary estate and also assert, if needful, her dower right therein. Upon this question there is a direct conflict among the American decisions. According to one class of cases, this form of gift is completely governed by the rule stated in the last preceding paragraph; no inconsistency exists, the widow is not obliged to elect, but may take the life interest given by the will, and also claim her dower in the same lands.^ Another group of cases re- to a person whom he is bound to sup- this construction of the rule in the port or maintain, — as, for example, to most positive manner. In Bull v. his infant child who is otherwise un- Church, 5 Hill, 207, 2 Denio, 430, 4.S provided for, and the devise is not Am. Dec. 754, the testator gave all more than enough for its support, — it his property, real and personal, to his has been said that such a disposition is wife during widowhood, and then to inconsistent with the widow's claim of his children. She enjoyed the pro- dower in the land so specifically be- vision made by the will for a while, stowed. See Herbert v. Wren, 7 and then married a second time. She Cranch, 370, 378, per Marshall, C. J. ; was held entitled to dower in all the Ailing V. Chatfield, 42 Conn. 276. lands, as her interest under the will • Bull V. Church, 5 Hill, 207; 2 had ended. In Lewis v. Smith, 9 Denio, 430; 43 Am. Dec. 754; Lewis N. Y. 502, 61 Am. Dec. 706, the tes- T. Smith, 9 N. Y. 502; 61 Am. Dec. tator gave his wife the use of all his 706; Mills V. Mills, 28 Barb. 454; estate, real and personal, during her Sandford v. Jackson, 10 Paige, 266; life, and empowered his executor to Jackson v. Churchill, 7 Cow. 287; 17 sell the real estate, and pay the pro- Am. Deo. 514; Havens v. Havens, 1 ceeds to his wife for her enjoyment Sand. Ch. 325. during life. The acceptance of this " Bull V. Church, 5 Hill, 207; 2 provision was held not inconsistent Denio, 430; 43 Am. Dec. 754; Sand- with her enforcement of her dower ford V. Jackson, 10 Paige, 266; Lewis right. In Sandford v. Jackson, 10 V. Smith, 9 N. Y. 502; 61 Am. Deo. Paige, 266, testator devised all his 706; Mills v. Mills, 28 Barb. 454; property, real and personal, to his Mitteer v. Wiley, 34 Iowa, 214; wife and to two others, to be held for [Howard v. Watson, 76 Iowa, 229.J her use as long as she should remain The courts of New York have adopted his widow, and until his youngest §499 EQUITY JUEISPEUDENCB. 680 jects this view, holds that the life estate under the will and the dower right in the same lands are necessarily inconsistent, and therefore that the widow must elect between the two. Her election in favor of the will by accepting its provision, according to this construction, defeats any subsequent claim for dower in the lands de- vised.' The conclusion reached by the former series of decisions seems to be in agreement with the settled doc- trines of equity jurisprudence. § 499. Devise in Trust to Sell, or with a Power of Sale. — It is also a settled rule, both in England and in the American states, where statutes have not interfered, that, after a legacy, annuity, or other provision made for the wife, a devise of lands which are subject to dower, or child should become of age, and then a division was to be made. She en- joyed the provision made by the will for a while, and then married. Held, that no case for an election had arisen, and she was entitled to dower in all her husband's lands. [In Estate of Zahrt, 94 N. Y. 605, the testator de- vised to his widow during her life "the rents, income, interest, use, and occupation of all his estate," upon . condition that she keep the buildings and personal property insured, pay all taxes and assessments, and keep the estate in good repair. This re- quirement was held to be inconsistent witli her dower right„and put her to her election. In Estate of Gotzian, 34 Minn. 159, 57 Am. Rep. 43, where the testamentary provision to the widow was practically the same as the statu- tory provision to which she would have been entitled had the testator died intestate, it was held that an election was necessary. See also Warren v. Morris, 4 Del. Ch. 289; Kelly v. Reynolds, 39 Mich. 464; 33 Am. Rep. 418; Adamsou v. Ay res, 5 N. J. Eq. U9.] ' Hamilton v. Buckwalter, 2 Yeates, 389, 392; 1 Am. Dec. 350; Stark v. Huniou, I N. J. Eq. 217, 224, 225; Smith V. Bone, 7 Bush, 367; Wilson V. Hayne, Cheves Eq. 37, 40; Caston T. Caston, 2 Rich. Eq. 1; Cunningham V. Shannon, 4 Hich. Eq. 135. Some of these cases seem to have turned. in part at least, upon local statutes. . Laying out of view the effect of any statutes, in my opinion the first- mentioned series of cases is based upon the general principle as settled by the courts, rather than the second group. There does not seem to be, in accordance with that principle, any necessary inconsistency between such a devise to the widow and her claim of dower in the same lands, which would, of course, only be made where the testamentary gift had failed. It is clear that there is no such inconsistency between her claim of dower and a devise of lands to third persons, either for their lives or in fee; that is, the gift itselF, for life or in fee, does not create the an- tagonism required by the rule. It is said that a life estate in lands directly conferred by the will precludes the notion of another legal life estate in the same lands held by the same per- son. It may be conceded that at lata two such estates in the same lands cannot exist at the same time vested in the same person. In equity, how- ever, this legal rule does not prevail. Equity admits the possibility of two estates co-existing in the same per- son, and will always keep both the simultaneous estates alive whenever such a result is necessary to protect the equitable interests and rights of the party. 681 CONCERNING ELECTION. §499 of all the testator's lands, to trustees, on trust, to sell, or with power given to the executors to sell, for any purpose, is not inconsistent with the widow's claim of dower in the lands so devised, and therefore no neces- sity for an election by her is created. The will, in such case, is to be interpreted as though it had expressed the intention for the lands to be sold subject to the widow's dower. This conclugion is the same, even although the will directs that an interest in some part of the proceeds of the sale should be given or secured to the widow.* Some special provision of the will, however, in addition ' French v. Davies, 2 Veg. 572; Ellis V. Lewis, 3 Hare, 310; Dowson V. Bell, 1 Keen, 7H1; Gibson v. Gib- son, 1 Drew. 42, 57; Bending v. Bend- ing, 3 Kay & J. 257. In Eliia v. Lewis, 3 Hare, 310, the testator de- vised all his real estate to a trustee, upon trust, to sell and to convey the same to purchasers, and to hold the proceeds, together with the residue of his personal estate, upon trust, to pay one half of the interest and income thereof to his wife during her widow- hood, and the other half (and the whole after hia widow's death or mar- riage) to his sister for her life, and finally, to pay the principal of such fund to the children of the testator's said sister. Wigram, V. C, decided that no case of election arose; that the widow was entitled to the benefit given by the will, and also to her dower in all the lands. He laid down the rule as follows: "I take the law to be clearly settled at this day that a devise of lands eo nomine, upon trust, for sale, or a devise of lands eo nomine to a devisee beneficially, does not, per ge, express any intention to devise the lands otherwise than subject to their legal incidents, that of dower in- cluded. There must be something more in the will, something inconsis- tent with the enjoyment by the widow of her dower, by metes and bounds, or the devise, standing alone, will be construed as I have stated. [Authori- ties are here referred to.] If that be 80, it is impossible, in the case of a devise of lands upon trust for sale, that any direction for the application of the proceeds of such sale can affect the case. The devise is of land sub- ject to dower. The trust to sell is a trust to sell subject to dower; and the proceeds of the sale will represent the gross value of the estate, minus the value of the dower. Whatever direction, therefore, for the mere dis- tribution of the proceeds the will may contain, that direction must leave the widow's right to dower untouched. . . . . I found myself on these two propositions: I. That a devise of land upon trusts for sale does not, per se, import an intention to pass the land otherwise than subject to the legal incident of dower; and 2. That the direction to divide the proceeds of the sale cannot decide what the subject of sale is; and there is no cir- cumstance affecting the proposition in its application to the present case." The American cases adopt the same rule, and upon the same course of rea- soning: Adsit v. Adsit, 2 Johns. Ch. 448; 7 Am. Deo. 539; Bull v. Church, 5 Hill, 207; 2 Denio, 430; 43 Am. Dee. 754; Fuller v. Yates, 8 Paige, 325; Wood v. Wood, 5 Paige, 601; 28 Am. Dec, 451; Lewis v. Smith, 9 N. Y. 502; 61 Am. Dee. 706; Whilden v. Whilden, Riley Ch. 205; Hall v. Hall; 8 Rich. 407; 64 Am. Deo. 758; Gordon V. Stevens, 2 Hill Ch. 46; 27 Am. Deo. 445; Timberlake v. Parish's Ex'r, 5 Dana, 345; Kinsey v. Woodward, 3 Harr.(Del.)459; [Konvalinka v. Schle- gel, 104 N. Y. 125; 58 Am. Rep. 494. In this last case it was held that no ne- cessity for an election existed, although the proceeds of the sale were direotedTio be divided between the testator's wife and children, "share and share alike."] 500 EQUITY JURISPRUDENCE. 682 to the mere trust, or power to sell, and to tlie direction for distributing the proceeds, may create the inconsistency which prevents this rule from applying, and requires an election by the widow.* § 500. An Annuity or Rent-charge Given to the Widow Charged upon Lands Devised to Others. — The question as to the effect of an annuity or rent-charge given to the widow, and charged upon lands subject by the law to her dower, which are at the same time devised to others, gave rise to some discrepancy among the earlier decisions, but has been completely settled by the whole current of modern authority.* The rule may be regarded as firmly ' Thus in Vernon v. Vernon, 53 N. y. 351. 362, a testator who owned an undivided half of certain land directed his executors to sell his own share therein, at a price fixed by him in the will, or else to take a convey- ance of the other half from his co- owner at the same price for which he authorized his own share to he sold. The court held that this direction showed a clear intention on the tes- tator's part to transfer, in case of a sale, the whole title to his own land, free from any claim of dower; and the widow was therefore put to an elec- tion. See also Savage v. Burnham, 17 N. Y. 5l51, 577. In Herbert v. Wren, 7 Cranoh, 370, 379, there is a dictum of Chief Justice Marshall concerning the presumption as to the testator's intention, arising from a direction to sell the residue of his real estate for the purpone of pcying his debts, which would limit the generality of the lan- guage used by Vice-Chancellor Wig- ram, quoted in a preceding note. And see, on this point, Norris v. Clark, 10 N. J. Eq. 51. ' I shall depart from the rule which I have usually observed, not to refer to or comment upon the opinions ex- pressed by other writers, for the pur- pose of making a few comments upon the doctrine laid down in a. work of great value. In the American edition of White and Tudor's Leading Cases' in Equity (4th ed., vol. 1, pp. 5(54-568), the note of the American editor draws a distinction between wills creating an annuity for the wife chargeable on per- sonal and real property both, and wills creating a rent-charge chargeable on real estate alone, maintains the doc- trine that the former kind of provision alone creates no necessity for an elec- tion by the widow, while the latter is inconsistent with a claim of dower, and puts the widow to an election, and insists that all the English cases, the most recent as well as the earliest, recognize this distinction, and make ife the foundation of their decisions. I do not purpose to examine this opinion upon principle, but simply to show th& exact position of the English cases, with reference to the alleged distinc- tion. A careful examination of the English cases will show that, so far from recognizing and upholding this distinction between an annuity and a rent-charge, they expressly reject it; not one modern decision is based upon it; the opinions uniformly treat tho effect of the two provisions aj exactly the same, and in certain of the most important and authoritative cases tho court examines the question and pro- nou[ices against the doctrine, which had been suggested in the arguments of counsel. It is true that there are a few early cases which have been sup- posed to maintain such a view, and have sometimes been regarded as au- thorities in support of the distinction, Tlipy are Villa Real v. Lord Galway, ) Brown Ch. 292, note; Amb. 682; Arnold v. Kempstead, Amb. 466; 3 Eden, 236; Wake v. Wake, 3 Brown I'll. 255; and Jones v. Collins, Amb. 730. Of these, Villa Real v. Lord Gal. 683 CONCERNING ELECTION. 500 established, that an annuity or a rent-charge created by the testator in his will in favor of his widow, and charged way, I Brown Ch. 292, note, is the leading case. It should be observed, however, that even these cases are not any authority for the particular distinction which I have described; so far as they bear upon the point, they go too far, since they purport to hold that even an annuity charged by the testator upon his property is incon- sistent with the widow's dower. But these cases, so far as they bore upon this question at all, and attempted to lay down any rule concerning the ef- fect of such a provision in the will, have been repeatedly overruled; if sup- ported as decisions, and recognized as authorities for any purpose, it is upon entirely diflferent and distinct matters and testamentary provisions. The case of Hall v. Hill, 1 Con. & L. 129, decided by Sir Eilward Sugden when lord chancellor of Ireland, has been re- garded by courts and writers as of the highest authority. He reviews tlie decision in Villa Real v. Lord Galway, 1 Brown Ch. 292, note, and says, con- cerning it, that Lord Camden evi- dently intended to put the case simply and entirely npoa the gift of an annuity, which he held was incon- sistent with dower: "It is quite im- possible to say that Lord Camden's authority has remained untouched on that point, because the abstract ques- tion is quite settled that an annuity out of the estate is now held not to have the effect of barring the wife of her dower as inconsistent with it. But it is very singular that, although •this is the perfectly settled law of the court, all the subsequent authorities have taken care to save whole the de- cision of Lord Camden in Villa Real V. Lord Galway, 1 Brown Ch. 292, note, and have endeavored and in- deed have distinguished it. In Bir- mingham V. Kirwan, 2 Schoales & L. 444, Lord Redesdale put the case upon all llie circumstances, — the directions in the will with respect to the manage- ment of the whole estate, the payment of the annuity, and the accumulation during the minority of the child — which circumstances, in his opinion, were sufficient to authorize the decis- ion. So, again. Lord Lyndhurst, in Koadley v. Dixon, 3 Russ. 192, comes to the same conclusion. Both held Villa Real v. Galway, 1 Brown Ch. 292, note, a binding authority, but both on a ground which Lord Camden cau- tiously abstained from resting his judg- ment upon. I think, myself, that Villa Real V. Lord Galway, 1 Brown Ch. 292, note, may be considered an au- thority on the grounds suggested ; but I cannot say that it is an authority on the abstract question, because I consider that the abstract question has been decided the other way. " In Roadley V. Dixon, 3 Russ. 192, the question was directly presented, and argued with great fullness. The counsel on one side, Mr. Sugden, afterwards lord chancellor, raises the exact point, and shows that no difference between an annuity charged on property . gener- ally, and a rent-charge on the real estate, has been made by the decisions. See pp. 196-198. He commented on Villa Real v. Lord Galway, 1 Brown Ch. 292, note, and the three other cases similar to it, and said: "If it be law that a widow is put to her election by the mere hequest of a rent-cliarge, almost every judge of this court lias been igno- rant of one of its most important i-ules; and if such be not the law, the decis- ion of Lord Camden cannot be sus- tained." The opposing counsel, one of the ablest equity lawyers, and after- wards a distinguished vice-chancellor, Mr. Shadwell, distinctly and expressly conceded that a mere rent-charge was not inconsistent with dower. He said (p. 198): "Villa Real v. Lord Gal- way, 1 Brown Ch. 292, note, has never been overruled; it still must be con- sidered as affording the rule of decis- ion, whenever a like state of facts occurs. The gitestion is not as to the effect of a simple bequest of a rent-charge, but on the effect of all the dispositions con- tained in the will." He then goes ou to show that in addition to the rent- charge upon a certain specified estate devised, the will contains other dispo- sitions inconsistent with dower, such as a power of management and occu- pation given to trustees, which, it had been settled, are inconsistent with dower; and in this respect the case was exactly like that of Villa Real v. Lord Galway, 1 Brown Ch. 292, note. Lord 500 EQUITY JURISPEUDENCE. 684 upon lands in which she is otherwise dowable, or upon his real and personal property, which are at the same time devised and bequeathed to others, is not of itself, and without additional provisions in the will concerning the property bestowed, inconsistent with the widow's claim to dower in the same lands, and does not of itself, there- fore, create the necessity for an election between the an- nuity or rent-charge and her dower.' Chancellor Lyndhurst examined the decisions in Villa Real v. Lord Galway, 1 Brown Ch. 292, note, and in the other similar cases(pp. 201, 202). He expressly holils that Villa Real v. Lord Galway, 1 Brown Ch. 292, note, cannot be sup- ported upon the ground which Lord Camden took in deciding it, viz., that an annuity or a rent-charge was in- consistent with dower; but neverthe- less that case should not be com- pletely overruled; the decision was correct upon all the /acts of llie case, and was a binding authority upon the same condition of facts. What were the facts? In addition to the rent- charge, the will gave the trustees power to hold and possess and manage the lands devised, to receive all the rents and profits, and to accumulate them during the minority of an infant, etc. These provisions, all taken to- gether, were inconsistent with any claim for dower. This examination demonstrates the following conclusions: 1. The English decisions do not recog- nize, and are not rested upon, any as- sumed distinction between the e£Fect of a rent-charge upon land alone, and an annuity charged upon both personal and real estate; 2. The few early cases which were once regarded as furnishing some authority for such a distinction have been expressly repu- diated, and their decisions are made to rest upon entirely different provis- ions in the wills; 3. The more recent English cases cited in the next note all lay down exactly the same rule with reference to an annuity and a rent-charge. There may be a few American cases which recognize the distinction, and which make it the basis of decision; but it will be seen that they are nearly, if not quite, all of them early cases.and expressly follow the supposed authority of Villa Real v. Lord Galway, 1 Brown Ch. 292, note, and the others of the same class. The question natu- rally has not often arisen in this coun- try, since wills creating rent-charges upon particular real estate are very infrequent. ' And a clause giving her the remedy of entry and distress in case of non- payment is not an additional provision which renders an election necessary: Pitts V. Snowden, 1 Brown Ch. 292, note; Pearson v. Pearson, 1 Brown Ch. 291; Foster v. Cook, 3 Brown Ch. 347; Birmingham v. Kirwan, 2 Schoales & L. 444, 453, per Lord Redesdale; Hall V. Hill, 1 Con. & L. 129; 1 Dru. & War. 103, per Sir Edward Sugden; Roadley v. Dixon, 3 Russ. 19 J, 201, 202, per Lord Lyndhurst; Powson v. Bell, 1 Keen, 761, per Lord Langdale; Harrison v. Harrison, 1 Keen, 765, per Lord Langdale; HoUlich v. Hol- dich, 2 Younge & C. 18, per Kniuht Bruce, V. C. The early cases of Villa Real v. Lord Galway, 1 Brown Ch. 292, note, Arnold v. Kempstead, Amb. 46B, 2 Eden, 236, Jones v. Collier, 2 Eden, 730, and Wake v. Wake, 3 Brown Ch. 255, 1 Ves. 335, so far as they lay down any different doctrine, have been repeatedly explained, limit- ed, and overruled. See Birmingliam V. Kirwan, 2 Schoales & L. 444, 453, per Lord Redesdale; Hall v. Hill, 1 Con. & L. 129; 1 Dru. & War. 103, per Sir Edward Sugden; Roadley v. Dixon, 3 Russ. 192, 201, 202, per Lord Lynd- hurst; and see the comments upon these cases in the last preceding note. The American cases are few, but the decided weight of authority is in sup- port of the rule as settled by the Eng- lish courts, and as stated in the text: Smith V. Kinskern, 4 Johns. Ch. 9j and Adsit v. Adsit, 2 Johns. Ch. 448; 7 Am. Dec. 539, opinion of Chancellor Kent; Lasher v. Lasher, 13 Barb. 106; Hatch v. Bassett, 52 N. Y. 359; but, per contra, White v. White, 16 N. J. L. 202, 211; 31 Am. Dec. 232. 685 CONCERNING ELECTION, § 501 § 501. Power of Occupying, Enjoying, Managing, and Leasing Expressly Given to Devisees. — The rule is set- tied by the English cases that where, after or in connec- tion with a provision for the widow's benefit, the testator expressly prescribes the mode in which the lands devised shall be possessed, occupied, enjoyed, or managed by the devisees, this disposition shows a clear intention on his part to give the entirety of the lands, which is inconsis- tent with any claim of dower, and therefore a case for an election is raised. It is also settled by a unanimous consent of the English authorities, as a particular in- stance of this rule, that where, after a provision is made for the widow, the lands are devised to trustees, upon trust, for any purpose, with power or directions given to the trustees to occupy, or possess, or manage, or lease, or even to cut down timber on any part of the lands, such mode of disposition is inconsistent with the claim of dower, and makes an election necessary. That a power of management and of leasing given to the trustees is inconsistent with dower is established by an overwhelm- ing array of decisions.' In connection with this form of * Birmingham v. Kirwan, 2 Solioalea the further trust to permit his daughter & L. 444; Miall V. Brain, 4 Madd. 11!); to use, occupy, and enjoy a certain Butcher v. Kemp, 5 Madd. 61; Good- other house and grounds for her life, fellow V. Goodfellow, 18 Beav. 356. and the residue was to be divided In Birmingham y, Kirwan, 2 Schoalea among his children. Sir John Leach, & L. 444, a testator devised a house M. R., held that the provision for the and grounds to trustees, upon trust, to daughter showed a plain intent to de- permit his wife to enjoy the same for vise the entirety, and was inconsistent her life, she paying a small rent per with any dower in the same premises, acre for the land, and to keep the "and that the same intention must house in repair, and not to let it, and necessarily be applied to the whole devised the residue of his lands to estate which passes by the same de- third persons. Lord Redesdale held vise." In Butcher v. Kemp, 5 Madd. that the disposition made for the 61, a testator, having devised some widow was inconsistent with her claim lands to his wife for her life, and given of dower in the house and grounds her certain legacies, devised a farm thus given for her use, but she was to trustees during the minority of his entitled to dower in the residue de- daughter, and directed them to carry viseil to the third persons. In Miall v. on the business of the farm, or let it Brain, 4 Madd. 119, a testator devised on lease during the daughter's minor- all his real and personal estate to trus- ity. Sir John Leach held that the tees, upon trust as to a certain speci- widow was put to her election. "This fied house and grounds, for his widow ease is within the principle of Miall v. during her life, and to pay her out of Brain. 4 Madd. 119, which was lately the rents and profits of the estate a before me, in which I held the claim certain annuity for her life, and upon of dower necessarily excluded by the § 502 EQUITY JURISPRUDENCE. 686 disposition the rule seems to be settled by the English courts, that where a testator devises the whole of his prop- erty together in general terms, and it is manifest that it was his intention that one part of the property should not be subject to dower, it follows that no part of the property embraced in the one general disposition should be considered as so subject.' § 502. Devise to Widow and Others in llqual Shares. — The rule is also settled in England by a current of decisions that where a testator devises lands, which are by law subject to dower, in express terms, to his widow and others, — as, for example, his children, — in equal shares, this provision for an equality among the devisees is inconsistent with a claim of dower, and creates the necessity for an election by the widow." Although this rule is sustained by the authority of several direct de- cisions, it cannot be reconciled with the general principle, which underlies all cases of election between a testamen- tary disposition for the widow and her dower, — the prin- ciple that a testator is to be presumed to have intended to devise only what belonged to him and what he was gift of a house for the personal ooou- 513; Reynolds v. Torin, 1 Ruaa. 129, pation and enjoyment of the testator's 133. [See, to the same effect, In re daughter." The following cases are Durfee, 14 R. I. 47.] In Chalmers v. authorities for the rule that power or Storil, 2 Ves. & B. 222, a testator direction given to trustees to manage said: " I give to my dear wife and my or lease, etc., is inconsistent with two children all my estates whatso- dow^r: Roadley v. Dixon, Slluss. 192; ever, to be equally divided among Parker v. Sovverby, 4 DeGex, M. & G. them, whether real or personal," and 321; 1 Drew. 4S8; Thompson V. Burra, afterwards specified the property L. R. 16 Eq. 592; Hall v. Hill, 1 Dru. given. Sir William Grant, M. R, & War. 94; 1 Con. & L. 120; Raynard held that this disposition waa totally V. Spence, 4 Beav. 103; Taylor v. Tay- inconsistent with the claim of dower, lor, 1 Yonnge & 0. 727; Lowes v. "The testator directing all his real Lowes, 5 Hare, 501; Pepper v. Dixon, and personal estate to be equally di- 17 Sim. 200; Grayson v. Deakin, 3 De vided, the same equality is intended Gex & S. 298; O'Hara r. Chaine, 1 to take place in the division of the Jones & L. 662; Holdich v. Holdich, 2 real as of the personal estate, which Younge & C. 22. It is upon this ground cannot be if the widow takes out of it that the decision in Villa Real v. Lord her dower, and then a third of the Galway, 1 Brown Ch. 292, is sustained, remaining two thirds." In the other ' Miall V. Brain, 4 Madd. 119, per cases cited, similar dispositions were Sir John Leach; Roadley v. Dixon, 3 made in the wills, and the same rea- Russ. 1 92, per Lord Ly ndhurst, soning was used and the same con- " Chalmers v. Storil, 2 Ves. & B. elusion reached by Sir Thomas Plumer, 222; Dickaon v. Robinson, Jacob, M. R., in one, and by Sir John Leach, 503; Roberta r. Smith, 1 Sim, & St. V. C, in another. 687 CONCERNING ELECTION. § 503 able to give. The correctness of the rule has been re- peatedly questioned.'' § 503. Election in Devises of Community Property. — In California and a few other states the common-law dower has been wholly abolished, and a species of interest, borrowed from the French and Spanish laws, has been introduced, called " community property." This com- munity property embraces both what at the common law would be real and personal estate, and in fact substan- tially the same rules govern the devolution of things real and things personal. The law of these states recognizes two kinds of property which may belong to the spouses in case of marriage, — the "separate property" and the " community property." The separate property of either husband or wife is what he or she owned at the time of marriage, and what he or she acquired during marriage by inheritance, devise, bequest, or gift, and the rents and profits thereof. The separate property of each spouse is wholly free from all interest or claim on the part of the ound to elect; the general language of the will must be confined in its op- eration to the share of the property which the testator could bequeath. King V. Lagrange, 50 Cal. 328, is a very strong case. A testator owning land, all of which was community property, devised it all to his wife, with a power of sale, however, given to the executor, which, of course, was ■confined in its legal effect to the half of the real estate capable of being dis- posed of by the testator. The execu- tor, in ignorance of the law concern- ing community property, sold all the land devised by virtue of hia power; the purchaser, in like ignorance, sup- posed he was buying the entire estate, and the widow, in like ignorance, re- ceived the purchase-money for the whole. Held, that the widow was not thereby precluded from setting up and enforcing a claim to the half of the land which, as community prop- erty, belonged to her of her own right, «nd that the will did not present a case for an election. Even if an elec- tion had been necessary, the acta of the willow, being done in ignorance of the true facts and of her own rights, would not have amounted to an elec- tion. [Affirmed in 61 Cal. 221.] In Morrison v. Bowman, 29 Cal. 337, an election was held to be necessary. One Smith devised to his wife, for her life, one third of the Bodega rancho, and the house and furniture thereon, which rancho and all the property thereon was hia aeparate estate, with remainder in fee to his children born from her, and the remaining two thirds of said rancho and property thereon he gave in fee to the same children. He also owned another rancho, which was all community property, called the Blucher rancho, The greater part of this he gave in specified portions for life to children, remainder in fee to grandchildren by a former wife. The will added that a, certain portion of this Blucher rancho was left undiaposed of by the foregoing provisions; that the testa- tor intended during his lifetime to sell such portion for the purpose of raising funds to pay off his debts; but if this- portion, or any of it, remained unsold, be directed his executors to sell the same and pay debts, and any surplus which should be still remaining after the debts were paid, he directed his executors to distribute,' one third to his widow and t^e other two thirds to his children in a prescribed manner. The court, after laying down the gen- eral doctrine as stated in the text, held that the assertion by the widow of her right to one half of the com- munity property would be inconsistent with and antagonistic to the disposi- tions made by the testator to herself and to his children and grandchildren, and therefore the will created the necessity for an election by the widow. While the opinion in this carefully considered case undoubtedly adopts the general doctrine as it has been es- tablished by the overwhelming weight of authority, yet it is more than doubtful whether this general doc- trine was correctly applied to the facts. Comparing the provisions of the will with those found in very many of the decisions based upon the widow's dower, there does not seem to be anything in the language used by the testator which cannot, in pursu- ance of the settled rule of interpreta- tion, be confined in its operation to the share of the community property capable of being disposed of by him, and thus no necessary antagonism arises. [For a further instance of a sufficient manifestation of intent to put to an election, see Estate of Stew- art, 74 Cal. 98.] See also the following cases, decided by the probate court of San Francisco: In re Estate of Staus, Myrick's Prob. Rep. 5; In re Estate of Mu?nford, Myrick's Prob. Rep. 133; In re Estate of Low, Myrick's Prob. Rep. 148; In re Estate of Rioaud, My- rick's Prob. Rep. 158; In re Estate of § 507 EQUITY JURISPRUDENCE. 692 equitable obligation resting upon a donee under certain circumstances, and have described at large the most im- portant instances in which the necessity for an election is created by the provisions of an instrument of donation, I shall finish my treatment of the subject by examining the various incidents which may be connected with elec- tion in any of its aspects, and by which the rights and duties of the parties who are bound to elect are affected. The most important of these incidents which remain to be considered are the following: 1. The persons who may elect, and especially persons under disabilities; 2. Rights and privileges of those who are bound or entitled to elect; 3. Time »f election; 4. Mode of election, whether express or implied; 5. Effect of an election upon third persons, and upon the parties directly concerned in the donation; and 6. The equitable jurisdiction in cases of election. It will be found that in many of the states the time, and to a certain extent the mode, of electing in cases of dower — by far the most frequent occasion for election in this country — have been definitely fixed and regulated by positive statutes; and in several of the states- the whole subject of election by widows, with reference to their dower and similar rights, is governed by precise statutory rules. The doctrine of election and questions under it are by such legislation wholly withdrawn from the domain of equity jurisprudence and jurisdiction; the rules are made strictly legal, and are applied in the ordi- nary administration of decedents' estates. These stat- utes, and the effects produced by them, do not, therefore,, properly come within the scope and purpose of a treatise upon equity jurisprudence. § 507. Who may Elect — Persons under Disabilities. — Wherever a case involves the necessity for an election^ Patton, Myrick's Prob. Rep. 243. possessed," or "of all my property," [The most recent cases in California or "of all my estate," or "of all my fully sustain the earlier decisions, to lands," will not create a necessity for the effect that a devise or bequest "of an election. See Estate of Gwiii, 77 Cal. all the property of which I may die 313; Estate of Gilmore, 81 Cal. 240.] €93 CONCEENING ELECTION. § 508 it is an elementary rule that any person who is sui juris — not under disabilities — is both entitled and bound to «lect. Thus we have seen that an heir at law, a widow, a devisee, appointee, or any other donee, if the facts of the case require an election, may and must elect. The only particular persons to be considered are those labor- ing under disabilities or incapacities of legal status. §508. Married Women. — The question has arisen where the common-law doctrines concerning the legal incapacities of married women still prevail. There has been some conflict of opinion with reference to the com- petency of a married woman to elect, so as to bind her- self and her property without the intervention of a court, or the active participation of her husband. It is now settled that a married woman is competent to elect by her own act without the intervention of the court; and although the election affects her real estate, it need not be by an acknowledged deed. There undoubtedly are cases in which a reference has been directed by the court to inquire in which way it would be most for the interest of a married woman to elect under the circumstances; but the rule is now established, that, at least prima facie, or under ordinary circumstances, she is able to elect for herself in a valid and binding manner.* If her husband ■Note of Mr. Swanston to Gretton reversionary things in action: Eobin- V. Haward, 1 Swanst. 409, 413; Bar- son v. Wheelright, 6 De Gex, M. row V. Barrow, 4 Kay & J. 409, 419; & G. 535, 546; Whittle v. Henning, 2 Ardesoife v. Bennett, 2 Diok. 463; Phill. Ch. 731; Williams v. Mayne, Willoughby v. Middleton, 2 Johns. 1 I. R. Eq. 519; but contra, Wall v. •& H. 344; Anderson v. Abbott, 23 Wall, 15 Sim. 513, 520. [In In re Beav. 457; Savill v. Savill, 2 Coll. Vardou's Trust, L. R. 28 Ch. Div. 124, 721; Griggs v. Gibson, L. R. 1 Eq. which overruled In re Wheatley, «85; Brown v. Brown, L. R. 2 Eq. L. R. 27 Ch. Div. 606, and Smith v. 481; but see Campbell v. Ingilby, 21 Lucas, L. R. 18 Ch. Div. 531, the Beav. 567; Cooper v. Cooper, L. R. rationale of the doctrine of election 7 H. Ij. 53, 67; Tiernan v. Roland, with respect to its operation in cases 15 Pa. St. 430, 452; Robinson v. of persons under disabilities was elabo- Buck, 71 Pa. St. 386; Robertson v. rately examined, and it was held that Stephens, 1 Ired. Eq. 247, 251; Mc- the doctrine was founded upon the Queen v. McQueen, 2 Jones Eq. 16; rule that a person cannot take under 62 Am. Deo. 205; but see Kreiser'a and against the same instrument, and Appeal, 69 Pa. St. 194. the equity is, not that the person elect- A married woman cannot, however, ing to take against the instrument elect BO as to deal with or cat off her shall be required to assign, but that §§ 509, 510 EQUITY jurisprudence:. . "694 also has an interest in the question, and differs in opin- ion from his wife, a difficulty would certainly exist.* In those American states where the modern legislation has destroyed all interest of the husband in his wife's prop- erty, and has clothed her, in respect to it, with the ca- pacities and powers of a single woman, and has enabled her to manage, control, and even dispose of it, it seema to follow, as a necessary consequence, that she has the same ability of electing on her own behalf which is pos- sessed by any person completely sui juris. § 509. Infants. — It is very clear that an infant can- not elect. In cases where an infant, if he had been an adult, would be bound to elect, the court has sometimes deferred the question of election, where this could be- done without prejudice to the rights of other parties,^ until the infant came of age.* The ordinary rule is for the court to direct an inquiry to be made whether it is for the infant's advantage to elect or not, and what elec- tion ought to be made. In other words, the court, as the result of a judicial examination, itself makes the election on the infant's behalf.' § 510. Lunatics. — In like manner, where the person entitled or bound to elect is a lunatic, the court will mak& the election on his behalf, after having ascertained,, through an inquiry, what action is most for his advan- he shall not be permitted to take the ed., 504; Bor y. Bor, 2 Brown ParL benetit to him thereunder. Accord- C, Tomlins's ed., 473; Houghton T. ingly, the court is not prevented from Boughton, 2 Ves. Sr. 12. enforcing this rule on account of the " Mr. Swanston's note to Gretton v. incapacity of the person so electing to Haward, 1 Swaust. 409, 413; BiglancE alienate the interest taken under the v. Huddleston, 3 Brown Ch. 285, instrument.] note; Chetwynd v. Fleetwood, 1 ' See Griggs v. Gibson, L. R. 1 Eq. Brown Pari. C, Tomlins's ed., .300; 685; Wall v. Wall, 15 Sim. 513, 521. Goodwyn v. Goodwyn, 1 Ves. Sr. 228; A wife cannot, by her election, preju- Ebrington v. Ebrington, 5 Madd. 117; dice or affect her husband's marital Ashburnhara v. Ashburnham, 13 Jur. riglits: Brodie v. Barry, 2 Ves. & B. 1111; Brown v. Brown, L. B;. 2 Eq. 127; see Lady Cavan v. Pulteney, 2 481; [Cavendish v. Dacre, L. R. 31 Ves. 544; Butter v. Maclean, 4 Ves. Ch. Div. 470;] McQueen v. McQueen^ 531. 2 Jones Eq. 16; 62 Am. Deo. 205; Ad- "Streatfield v. Streatfield, Cas. t. dison v. Bowie, 2 Bland, 606, 623; Talb. 176; 1 Lead. Cas. Eq., 4th Am. [Haack v. Weioken, 118 N. Y. 68.] 695 CONCERNINO ELECTION. §§ 511, 512 tage; and this is the rule, even though the lunatic is under the care of a committee.* § 511. Rights and Privileges of Persons Bound to Elect. — It should be carefully observed that the rules to be mentioned under this head were established in the absence of any legislation upon the subject; they assume that there are no statutes prescribing when an election is necessary, or the time within which an election naust be made, or that the suffering a certain period of time to elapse without any affirmative action shall be regarded as an election. Statutes of such a nature, at least concerning widows for whom their husbands have made testamen- tary dispositions, have been enacted in very many of tlie states, and have materially affected the equitable rights and privileges of those persons who are, under their pro- vision, bound to elect. § 512. Subject to the above-stated limitations, it is a well-settled rule of equity that a person bound to elect has a right to become fully informed of and to know all •In re Marriott, 2 Molloy, 516; be made, the conrt will make the eleo- Kennedy v. Johnson, 65 Pa. St. 451; tion for her; and in Washburn v. Van 3 Am. ilep. 650. In this latter case Steenwyok, 32 Minn. 336, it was held it was held that the committee of a that an election so made by the court lunatic — a widow — cannot elect be- for its insane ward binds her as to her tween the provisions of her husband's dower rights in lands in another state, will and her dower; that it is the duty In Crenshaw v. Carpenter, 69 Ala. 572, of the committee to apply to the court 44 Am. Rep. 539, it was held that for leave to elect, and the court will under the Alabama statutes (Code, sec. only grant permission to elect in favor 2292) the right to elect was personal of either upon a due consideration of to the widow, and must be exercised the advantages and disadvantages re- within the time limited therefor, but suiting to the lunatic from the choice, if she be insane, she cannot dissent [See, in support of the text. Wilder v. from the will; and in a suit for dower, Pigott, L. R. 22 Ch. Div. 263; Howell brought after the time limited by tha v. Tompkins, 42 N. J. Eq. 305; Van statute for her to elect to take against Steenwyok v. Washburn, 59 Wis. 483, the will, that the court could not elect 501; 48 Am. Rep. 532; Washburn v. for her. Whether the court of chan- Van Steenwyck, 32 Minn. 336; Penhal- eery had jurisdiction to elect for her, low V. Kimball, 61 N. H. 596; State v. in a suit brought within the time lim- Neland, 30 Minn. 277. In Van Steen- ited by the statute, was expressly not wyck V. Washburn, 59 Wis. 483, 501, decided. In State v. Neland, 30 48 Am. Rep. 532, it was held that the Minn. 277, it was held that the court provision of the Wisconsin statute might make the election, or direct her (Rev. Stats., sec. 2171) requiring a guardian to do it, under the instruc- widow to elect does not apply to an in- tions of the court. It was fuijthbr held Bane widow, and an election could not that the power to make the election be made by her, nor by her guardian in was within the jurisdiction of the pro- ber behalf. But it proper application bate court.] § 512 EQUITY JURISPRUDENCE. 696 the facts affecting his choice, and upon whicJi a fair and proper exercise of the power of election can depend. To this end he has a right to inquire into and ascertain all the circumstances connected with the two properties, — that is, his own and the one conferred upon him, and especially their relative condition and value; and he will not be compelled to elect until he has made, or at least has had an opportunity to make, such an examination as enables him to learn the truth.* It follows that where an election has been made in ignorance or under a mistake as to the real condition and value of the properties, or under a mistake as to the real nature and extent of the party's own rights, such a mistake is regarded as one of fact, rather than of law; the election itself is not binding, and a court of equitable powers will permit it to be re- voked, unless the rights of third persons have intervened which would be interfered with by the revocation.^ This ' Dillon v. Parker, 1 Swanst. 359, 381, and note; 1 Jacoli, 505; 1 Clark * F. 303; Wake v. Wake, 1 Vea. 335; Boynton v. Boynton, 1 Brown Ch. 445; Chalmers v. Storil, 2 Ves. & B. 222; Neuman v. Neuman, 1 Brown Ch. 186; Whistler v. Whistler, 2 Ves. 367, 371; Thurston v. Clifton, 21 Beav. 447; Wilson V. Thornbury, L. R. 10 Ch. 239, 248, 249; Douglas v. Douglas, L. R. 12 Eq. 617, 637; Dewar v. Mait- land, L. R. 2 Eq. 834, 838; Kreiser's Appeal, 69 Pa. St. 194; United States V. Duncan, 4 McLean, 99; Hall v. Hall, 2 McCord Ch. 269, 280; Snel- grove V. Snelgrove, 4 Desaus. Eq. 274, 300; Pinckney v. Pinckney, 2 Rich. Eq. 219, 237; Upshaw v. Upshaw, 2 Hen. & M. 381, 390; 3 Am. Deo. 632; Reaves v. Garrett, 34 Ala. 563; Brad- ford V. Kent, 43 Pa. St. 474, 484,; Mack- net V. Maoknet, 29 N. J. Eq. 54; Cox ▼. Rogers, 77 Pa. St. 160; Waterbury V. Netherland, 6 Heisk. 512; Dabney V. Bailey, 42 Ga. 521; Richart v. Richart, 30 Iowa, 465. In order to enable him to ascertain the facta and to make a proper election in pursu- ance of the foregoing rule, a party may maintain an equitable suit to have all the necessary accounts of the propertieB in question taken. Sea Mr. Swanston's note to Dillon v. Parker, 1 Swanst. 359, 381; citing Butricke v. Broadhurst, 3 Brown Ch. 88; 1 Ves. 171; Pusey v. Desbouverie, 3 P. Wins. 315. ' Dillon v. Parker, 1 Swanst. 359, 381, note; 1 Clark & F. 303; Pusey v. Desbouverie, 3 P. Wms. 31f5; Wake v. Wake, 3 Brown Ch. 255; Kiduey v. Coussmaker, 12 Ves. 136, 152; Snel- grove V. Snelgrove, 4 Desaus. Eq. 27; Hall V. Hall, 2 McCord Ch. 269, •J89; Adsit V. Adsit, 2 Johns. Ch. 448, 451; 7 Am. Dec. 539; [Pratt v. Douglas, 38 N. J. Eq. 539; Elbert v. O'Neil, 102 Pa. St. 302; Austell v. Swann, 74 Ga. 278; Churchill v. Bee, 66 Ga. 621; Woodburn's Estate, 138 Pa. St. 606; 21 Am. St. Rep. 932.] In Macknet V. Macknet, 29 N. J. Eq. 54, it was held that where an election by a widow of dower, instead of a legacy given in lieu of dower, was made under a mis- take as to her rights under the will, and as to the amount which she would receive from the bequest, a court of equity may allow her to revoke her election, where no prejudice would thereby be done to the subsequently acquired rights of others. Such a mis- take is of fact, rather than of law. [The same application of the rule is mad« 697 CONCERNING ELECTION. §513 particular rule must necessarily have been materially modified by the statutes in many states, which declare in positive terms that an election by widows can only be made within a certain prescribed period, and that if they suffer the time to elapse without taking any step, they shall be deemed to have elected, or to have abandoned the riglit of electing; and so the decisions seem to hold. § 513. Time of Election. — It is almost impossible to separate the matter of time from other circumstances, and from the conduct of the party, so as to arrive at any defi- nite rule. The only question involving the elernent of time is, What is the period during which the continued acts of the party originally entitled to elect will become binding upon him, either as amounting to an election by conduct, or as amounting to a waiver of the right to elect? in Evans's Appeal, 51 Conn. 435.] lu Cox V. Rogers, 77 Pa. St. 160, a widow had by her conduct uneqaivooally elected in favor of a legacy given to her in lieu of her dower in a farm which her husband devised to his son. Held, that after a considerable lapse of time the election could not be dis- turbed, even although made in igno- rance of her right. In Waterbury v. Netherland, 6 Heisk. 512, the statu- tory rule that a widow failing to dis- sent from her husband's will within the prescribed time is conclusively presumed to have elected to take under the will was held to be compulsory and binding npon a widow. Even where she had been erroneously ad- vised as to the length of the period by one of the executors, — an eminent lawyer, — and had acted upon his opin- ion in the matter, the maxim, Ignoran- tia tegis nan excusat, was held to apply. In Dabney v. Bailey, 42 Ga. 521, it was held that a widow who had elected to take a legacy instead of dower, under the erroneous supposition that her husband's estate is solvent, may, on discovering it to be insolvent, re- voke her election, and claim her dower. In Richart v. Riohart, 30 Iowa, 465, the husband's will gave his widow one third of the real estate in li^u of dower. She elected to take this gift, in con- sideration that all the heirs should agree to release and assign to her in addition one third of the personal es- tate. A part only of the heirs finally consenting' to this arrangement, she was held not bound by her election, but that she could relinquish the tes- tamentary gift and claim her dower. See also Light v. Light, 21 Pa. St. 407, and Bradford v. Kents, 43 Pa. St. 475, as to an election made under a mistake merely of the party's Ugeil rights. [In Akin v. Kellogg, 119 N. r. 441, it was held that the pro- vision of the New York statute requir- ing an election to be made within ona year, and declaring that the widow should be deemed to have made elec- tion to take under the will, unless within that time she enter upon the land to be assigned to her for dower, or commences proceedings for the as- signment thereof, has the e£Fect of a statute of limitations, and she is at once, on the death of the testator, charged with the duty of informing herself, so as to make her election, and that if she delays beyond that time, before bringing her action, the court cannot aid her, although she was igno- rant of the extent of her husband's estate, and was induced to omit to take the necessary steps to claim dower by 'reason of the representa- tions of the executor and of the prin- cipal beneficiary under the will as to the value of her dower right.] § 513 EQUITY JURISPRUDENCE. 69S Under til e purely equitable doctrines, unmodified by stat- ute, there is, as it seems, no limit in point of time to a right to elect, unless it can be shown that injury would result to third persons by delay.' Nevertheless it is clear that by the acquiescence and delay of the one entitled to elect, third persons may acquire rights in the property originally subject to an election, which equity will not sufiFer to be disturbed by means of a subsequent election.* It seems, on the other hand, that a person having the right to compel an election does not, in general, forfeit the right by a delay in its enforcement.' These purely equitable rules, at least so far as they affect widows electing between testamentary benefits and dow^er, have been greatly mod- ified by legislation in this country. In very many of the states statutes have been passed which prescribe definite periods of time within which the right of election between dower and a provision made by will must be exercised. These statutes are collected and arranged according to their several types in the foot-note.* 'Dillon V. Parker, 1 Swanst. 381, table doctrines concerning election be- 386; Brioe v. Brice, 2 Molloy, 21; tween a, husband's testamentary gift Wake V. Wake, I Vea. 335; Butrioke and dower. In the following states V. Brodhurst, 3 Brown Ch. 90; 1 Ves. the doctrines of equity seem to be left 172; Reynard v. Spence, 4 Beav. 103; unaltered, and are applied either ta Sopwith V. Maugham, 30 Beav. 235. the widow's dower, or to her statutory In Wake v. Wake, 1 Ves. 335, a widow portion given in place of dower. la had for three years received a legacy most of them, however, a certain pe- and annuity under a will, in ignorance riod is prescribed within which her of her rights, and it was held that election must be made, when such she had not thereby elected nor lost election is necessary, her right of electing. In Reynard v. Connecticut. — Gen. Stats. 1875, p. Spence, 4 Beav. 103, a widow re- 377, sec. 4 [Gen. Stats. 1888, sec. 621J: ceived, under like circumstances, an Widow must, within two months after annuity for live years, with the same the expiration of the time limited for result. I;i Sopwith v. Maugham, 30 the presentation of claims, waive the Beav. 235, a widow, in ignorance of testamentary gift by a writing. See her right of dower, had for sixteen Lord v. Lord, 23 Conn. 327; Hiokey years enjoyed a provision expressly v. Hiokey, 26 Conn. 261. given her by will in lieu of dower; Florida. — Bush's Dig., p. 292, c. 44, but even after this great lapse of time sec. 1 [MoClellan's Dig. 1881, p. 475, she was held not to have elected, nor c. 95, sec. 1]: Widow may dissent to have waived her right cf election. from the will within one year after 'Tibbitts V. Tibbitts, 19 Ves. 663; probate. —N. B. It is possible that Dewar v. Maitland, L. R. 2 Eq. 834. the statute may be so construed as to- •Spread V. Morgan, 11 H.L.Cas. 588. make an election necessary whenever ' In the note under the preceding any devise or bequest is given to the I 494 I have arranged the states ia widow. If so, this state should belong, which statutes have changed the equi- in the first class, under § 494, ante. 699 CONCERNING ELECTION. §§ 514, 515 § 514. Mode of Election, Express or Iifiplied — What Conduct Amounts to an Election. — Independently of the statutes referred to in the foregoing paragraph, which have altered the equitable rules on the subject in very many states, an election may be either express or implied. An express election is made by some single unequivocal act of the party, accompanied by language showing his intention to elect, and the fact of his electing in a positive, unmistakable manner, — as, for example, by the execution of a written instrument declaring the election. As the election becomes fixed by such a definite act, and at such precise time, no questions concerning it can arise. § 515. Implied. — An election may also be implied — that is, inferred — from the conduct of the party, his acts, omissions, modes of dealing with either property, accept- ance of rents and profits, and the like. Courts of equity have never laid down any rule determining for all cases Imoa. — 1 Miller's Rev. Code, 1880, p. 624, sec. 2452 [McLain'a Code, 1888, see. 3656]: Widow must elect within six months after notice of the provisions of the will. As to when election is or is not necessary, see Metteer v. Wiley, 34 Iowa, 215j Cor- riel V. Ham, 2 Iowa, 552; Sully v. Nebergall, 30 Iowa, 339; Clark v. Grif- fith, 4 Iowa, 405; McGuire v. Brown, 41 Iowa, 650; [Snyder v. Miller, 67 Iowa, 261; Daugherty v. Daugherty, 69 Iowa, 679; Ward v. Wolf, 56 Iowa, 465; Estate of Blaney, 14 Iowa, 400; Conn V. Conn, 58 Iowa, 747; Howard V. Watson, 76 Iowa, 229; Potter v. Worley, 57 Iowa, 66; Blair v. Wilson, 57 Iowa, 178.] Election by conduct. See Stoddard v. Cutoompt, 41 Iowa, 329. The statute requires action on her part: Kyne v. Kyne, 48 Iowa, 21, 24; and does not apply to personal property: In re Davis's Estate, 36 Iowa, 24. Kentucky. —Gen. Stats. 1873, p. 373, see. 12 [Gen. Stats. 1887, c. 31]: Elec tion against the will must be within one year after probate. See Dawson V. Hayes, 1 Met. (Ky.) 461; Earnett'a Adm'r v. Barnett, 1 Met. (Ky.) 257, 258, 259; Worsley's Ex'r v. Worsley, 16 B. Mon. 470. JVew Hampshire. — Gen. Stats. 1867, p. 358, sec. 13: Wi'Iow may elect against the will by a writing, but the time within which she must so elect ia not prescribed. [If an election is made necessary, it must be done seasonably; Hovey v. Hovey, 61 N. H. 599.] New Yorlc — l Rev. Stats., p. 741, sees. 13, 14 [4 Rev. Stats,, 8th ed., p. 2455]: Widow is deemed to have elected to take under the will, unless within one year after her husband's death she begins proceedings to re- cover her dower, or enters on the lands assigned for dower. See Lewis v. Smith, 9 N. Y. 504, 511; 61 Am. Dec. 706; Jackson v. Churchill, 7 Cow. 287; 17 Am. Deo. 514; Hawley v. James, 5 Paige, 318, 447; Bull v. Church, 5 Hill, 206; Church v. Bull, 2 Denio, 430; 43 Am. Dec. 754; Leonard v. Steele, 4 Barb. 20; [Akin v. Kellogg, 119 N. Y. 441.] Eho4e Island. — Gen. Stats. 1872, p. 374, sec. 11 [Pub. Stats. 1882, p. 472, sec. 11]: Widow must elect against the will by a writing within one year after probate, Vei-mont. — Gen. Stats. 1862-70, p. 412, sees. 5, 6 [Rev. Laws, 1880, sec. 2219]: Widow may elect within eight months after probate. § 515 EQUITY JURISPKUDENCB. 700 what conduct shall amount to an implied election, but each case must depend in great measure upon its own. circumstances.* The following rules, however, have been fairlj' settled by the courts as guides in determining the general question. To raise an inference of election from the party's conduct merely, it must appear that he knew of his right to elect, and not merely of the instrument giVf ing such right,* and that he had full knowledge of all the facts concerning the properties.* As an election is neces- sarily a definite choice by the party to take one of the properties and to reject the other, his conduct, in order that an election may be inferred, must be done with an intention to elect, and must show such an intention. The intention, however, may be inferred from a series of un- equivocal acts.* In applying these general rules, the fol- lowing particular conclusions as to what conduct may or may not amount to an election seem to have been defi- nitely reached: Where a person, bound to elect between two properties, continues in possession, or enjoyment, or receipt of the rents and profits of both, without being called upon by the other party interested to elect, thia conduct indicates no intention of taking one and rejecting ' See note to Dillon v. Parker, 1 prove an actual election; for in both Swanst. 359, 881, 382, and cases there cases there is, as far as circumstances cited; Paclbury v. Clark, 2 Maon. & G. will admit, an equal dealing with the 298, 306, 307; Whitridge V. Parkhnrst, two properties, and therefore an ab- 20 Md. &2, 72. In Padbury v. Clark, seace of proof of any intention to elect 2 Macn. & G. 298, Lord Cottenham the one and reject the other." said: "If a party, being bound to elect ' Edwards v. Morgan, 1 Bligh, N. S., between two properties, not being 401; Briscoe v. Briscoe, 1 Jones & L. called upon so to elect by the other 334; 7 I. R. Eq. 123; Sweetman v. parties interested, continues in the Sweetman, 2 I. R. Eq. 141. receipt of the rents and profitsof both, ' Sopwith v. Maugham, 30 Beav. such receipt, affording no proof of 235; Worthington v. Wipginton, 20 preference, cannot be an election to Beav. 67; and see anfc, § 512, and cases take the one and reject the other; and cited in note, so if the other property be under oir- * Spread v. Morgan, 11 H. L. Cas. cumstancea that it does not yield rent 588; Dillon v. Parker, 1 Swanst. 359, to be received by the party liable to 380, 387; Padbury v. Clark, 2 Macn. elect, but such party, particularly if & G. 298, 306, 307; Worthington v. with the knowledge and consent of the Wigginton, 20 Beav. 67; Campbell v, one who is entitled to call for such Ingilby, 21 Beav. 582; Stratford v. election, deal with this property as Powell, 1 Ball &B. 1; Edwards v. Mor- his own, it would seem that such acts gan, McClell. 541; 13 Price, 782; 1 ought to be equally unavailable to Bligh, K. S., 401. 701 CONCERNING ELECTION. §515 the other, and does not therefore amount to an election.* Taking the interest or income of one fund or property only is, in general, an election to take the fund or prop- erty producing the interest or income.* Settling one of two funds, between which the settlor is bound to elect, is an election to take the fund so settled.' Suffering a re- covery of lands devised in tail is an election to take those lands.'' A recital in a deed may amount to an election or be evidence of an election.' I have collected in the foot- note the important cases which deal with the question of an election implied from the conduct of the party who is entitled or bound to elect.* The rule seems to be plainly deducible from the American cases which are placed in the note, that where a widow is required to elect between a testamentary provision in her favor and her dower, any ' Padbury v. Clark, 2 Maen. & G. 298, SOB, 307; Spread v. Morgan, U H. L. Cas. 688; Whitridge v. Park- hurst, 20 Md. 62, 72; [Madden v. L., N. O., & T. R'y Co., 66 Misa. 258.] » Ardeaoife v. Bennett, 2 Dick. 46.3; Dewar v. Maitland, L. R. 2 Eq. 834; [Cunningham's Estate, 137 Pa. St. 621; 21 Am. St. Rep. 901.] And CO bringing a suit for a legacy, where the will raiaea a caae for an elec- tion, is a substantial election to take it in lien of dower: Johnston v. Dun- can, 67 Ga. 61.] ' Briscoe v. Briscoe, 1 Jones & L. 334. * Giddings v. Giddings, 3 Ruas. 241. ' Dillon V. Parker, 1 Jacob, 505; I Clark & F. 303. "Dillon V. Parker, 1 Swanst. 359, 381, 382, and note; Wilson v. Thorn- bury, L. R. 10 Ch. 239, 248, 249; Dewar v. Maitland, L. R. 2 Eq. 834; Padbury v. Clark, 2 Maon. & G. 298; Brice v. Brice, 2 MoUoy, 21; Giddings V. Giddings, 3 Rusa. 241; Miller v. Thurgood, 33 Beav. 496; Fitzsimmona V. Fitzsimmons, 28 Beav. 417; Honey- wood V. Forster, 30 Beav. 14; Howells V. Jenkina, 2 Johns, & H. 706; 1 De Gex, J. 4 G. 617; Spread v. Morgan, II H. L. Caa. 588; Reynard v. Spenoe, 4 Beav. 103; Sopwith v. Maugham, 30 Beav. 235; Wake v. Wake, 1 Vea. 335; Butricke v. Brodhurst, 3 Brown Ch. 90; 1 Ves. 172j Tibbitts v. Tibbitts, 19 Vea. 663; Whitridge v. Parkhurst, 20 Md. 62, 72; Marriott v. Sam Badger, 5 Md. 306; Upshaw v. Upshaw, 2 Hen. 6 M. 381; 3 Am. Dec. 632; Caaton v. Caston, 2 Rich. Eq. 1; Binst v. Dawes, 3 Rich. Eq. 281; Bradford v. Kent, 43 Pa. St. 474, 484; Anderao/n's Appeal, 36 Pa. St. 476; Adlum v. Yard, 1 Rawle, 163, 171; 18 Am. Dec. 608; Heron v. Hofifner, 3 Rawle, 393, 396; Cauffman v. Cauffman, 17 Serg. & R. 16, 25; Wilson v. Hamilton, 9 Serg. & R. 424; O'DriscoU v. Koger, 2 Deaaua. Eq. i95, 299; Snelgrove v. Snelgrove, 4 Desaus. Eq. 274, 300; Shaw V. Shaw, 2 Dana, 342; Clay v. Hart, 7 Dana, 1, 6; Watkina v. Watkina, 7 Serg. 283; Reavea v. Garrett, 34 Ala. 563; Kinnaird v. Williams'a Adm'r, 8 Leigh, 400; 31 Am. Dec. 658; Stark v. Hunton, 1 N. J. Eq. 217, 227; Sloaa V. Whitaker, 58 Ga. 319; Sewell v. Smith, 54 Ga. 567; Stoddard v. Cut- compt, 41 Iowa, 329; Cox v. Rogers, 77 Pa. St. 160; Camden Mut. Ins. Co. V. Jonea, 23 N. J. Eq. 171; Crocker V. Beal, I Low. 416; [Mathews v. Mathews, 141 Mass. 511; Jolinaton v. Duncan, 67 Ga. 61; Churchill v. Bee, 66 Ga. 621; Forester v. Watford, 67 Ga. 508; Payton v. Bowen, 14 R. I. ,375; Estate of Stewart, 74 Cal. 98; Conn v. Conn, 58 Iowa, 747; Cunningham's Estate, 137 Pa. St. 621; 21 Am. St, Rep. 901 ; Penn v. Guggenheimer, 76 Va. 839; Cooper v. Cooper, 77 Va. 198.] I 516 EQUITY JURISPKUDENCB. 702 unequivocal act of dealing with the property given by the will as her own, or the exercise of any unmistakable act of ownership over it, if done with knowledge of her right to elect, and not through a clear mistake as to the condition and value of the property, will be deemed an election by her to take under the will, and to reject her dower.' § 516. Effects of an Election. — The effects of an elec- tion when once made are to be considered with reference to two different classes of persons, namely, those who suc- ceed, or represent, or derive title from the party making the election, and those who are originally interested in the property subject to the election by reason of being beneficiaries under the instrument of donation, and whose interests are therefore directly affected by the election. Where an election is once made by the party bound to elect, either expressly or inferred from his conduct, it binds not only himself, but also those parties who claim under him, his representatives and heirs.* Wherever the person bound to elect is entitled only to a life estate in ' [But a, widow, by executing her Guggenheimer, 76 Va. 839; Cory v. husbaail's will, will not be estopped to Cory, 37 N. J. Eq. 198.] Where the afterwards make an election: Estate of party bound to elect has not definitely Gwin, 77 Cal. 313; Estate of Frey, elected in his lifetime, his representa- 62 Cal. 658. If, however, in exe- tires who have accepted benefits un- cnting the will, she does acts which der the instrument of donation* but are inconsistent with her right of have not themselves explicitly elected, dower, and involve third persons, as may, if they can offer compensation, where she sells or mortgages the realty, and can place the other party in the and treats it as assets, such acts wdl same situation as if such benefits had be construed to manifest an election not been accepted, renounce those to take under the will, and to exclude benefits, and determine the question the right to dower; nor can she, in of election for themselves: Dillon v. Buch case, set up ignorance of the Parker, 1 Swanst. 385; Moore v. But- facts, since she was bound to know ler, 2 Schoales &, L. 268; Tysson v. them.] Benyon, 2 Brown Ch. 5. [In Yawger 'Earl of Northumberland v. Earl v. Yawger, 37 N. J. Eq. 216, a tes- of Aylesford, Amb. 540, 657; Dewar tator devised to his son a farm, for T. Maiiland, L. R. 2 Eq. 834; Strat- which the son was to pay eighty dol- ford V. Powell, 1 Ball & B. 1 ; Arde- lars per acre. He also gave to his son soife V. Bennett, 2 Dick. 463; and one seventh of his entire estate. The see, with respect to acts binding upon son died without having expressed any the representatives, Tomkyns v. Lad- intention as to his election. Held, broke, 2 Ves. Sr. 593; Worthingtou that it would be presumed that he V. Wiginton, 20 Beav. 67; Sopwith v. elected to accept of the provisions in Maugham, 30 Beav. 235, 239; Whitley the will in his behalf, because they v. Whitley, 31 Beav. 173; [Penn v. were beneficial to him.] 703 CONCERNING ELECTION. § 517 the property, or to any other prior interest, his election does not bind the one entitled in remainder to the same property.' And where several individuals constituting a class — as the next of kin — are entitled to elect, each has a separate right of election; an election by any of them does not affect the rights of others.^ § 517. The other parties interested as donees under the instrument creating the necessity for an election are afiFected by it, when made, in the following manner: -If the person on whom the duty of electing rests elects to take in conformity with the will or other instrument of donation, he thereby relinquishes his own property, and must release or convey it to the donee upon whom the instrument had assumed to confer it.' If he elects against the will or other instrument of donation, he thereby re- tains his own property, and must compensate the disap- pointed donee out of the estate given to himself by the donor. A court of equity will then sequester the benefits intended for the electing beneficiary, in order to secure compensation to those persons whom his election disap- points.* This rule is applied in many of the American • Ward V. Baiigh, 4 Vea. 623; Long 2 Brown Oh. 600; Freke v. Barrington, V. Long, 5 Ves. 445; and see Hutohin- 3 Brown Ch. 284; Whistler v. Web- ■on V. Skelton, 2 Maoq. 492, 495. ster, 2 Ves. 372; Ward v. Baugh, 4 ' Fytche v. Fvfcche, L. R. 7 Eq. 494; Ves. 627; Lady Caven v. Pulteney, 2 Ward V. Baugh", 4 Ves. 6-23. Ves. 560; Blake v. Bunbury, 1 Ves. ' [And so, also, where a beneficiary 523; Welby v. Welby, 2 Ves. & B. nnder a will is put to an election be- 190, 191; Dashwood v. Peyton, 18 tween the gift and a claim against the Vea. 49; Tibbitts v. Tibbitts, Jacob, estate, his acceptance of the gift is a 317; LordRanoliffe v. Parkyns, 6Dow, satisfaction of the claim, and it is im- 179; Ker v. Wauchope, 1 Bligh, 25;' material whether what he takes turns Padbury v. Clark, 2 Macn. & G. 298; out to be of greater or less value than Greenwood v. Penny, 12 Beav. 403; his claim: Caulfield v, Sullivan, 85 Codrington v. Lindsay, L. B. 8 Ch. N. Y. 153.] 578; Griggs v. Gibson, L. R. 1 Eq. ♦ See this rule discussed ante, in 685; Palmer v. Wakefield, 3 Beav. S§ 467, 468; Gretton v. Haward, 1 227; Giddinga v. Giddinga, 3 Rusa. Swanst. 409, 423, 433, and note by 241; Caufifman v. Cauffmau, 17 Serg. Mr. Swanston; Rogers v. Jones, 3 Ch. & R. 16, 24, 25; Philadelphia v. Davis, Div. 688, 689; Pickersgill v. Rodtjer, 1 Whart. 490, 502; Stump v. Findlay, 2 5 Ch. Div. 163, 173; Howells v. Jen- Rawle, 168, 174;19Am. Deo. 632; Lewis kins, 1 De Gex, J. & S. 617, 619; v. Lewis, 13 Pa. St. 79, 82; 53 Am. Spread v. Morgan, 11 H. L. Cas. Dec. 443; Van Dyke's Appeal, 60 Pa. S88; Streatfield v. Streatfield, Cas. t. St. 490; Sandoe's Appeal, 65 Pa. St. Talb. 176; Bor v. Bor, 3 Brown Pari. 314; Key v. Griffen, 1 Rich. Eq. 67; C, Tondins's ed., 167; Ardesoife v. Marriott v. Sam Badger, 5 Mtl. 306; Bsnuett, 2 Dick. 465; Lewis v. King, Maskell v. Goodall, 2 Disn. 282; Roe § 518 EQUITY JURISPRUDENCE. 704 cases cited below to elections made by widows in favor of their dower and against the testamentary provisions, whereby the interests of other devisees were disturbed. Such disappointed devisees are held entitled to compen- sation out of the benefits intended to be conferred by the will on the widow, but which she had rejected. § 518. Equitable Jurisdiction in Matters of Election. — In England, where the original general jurisdiction over th6 administration of decedents' estates is still preserved, the question of election under the provisions of a will usually arises as an incident of the administration, and thus comes within the cognizance of the court as a part of or a step in the administration. In the American states, the power to entertain a suit for the purpose of compelling an election may, perhaps, be sustained as one of those special matters connected with administrations which have not been surrendered to the statutory courts of probate, and which are still retained by courts of equity. Whether this be so or not, it is well settled that, wholly independent of the general power over adminis- trations, an equitable jurisdiction exists to entertain a suit oil behalf of the other parties interested as bene- ficiaries against the donee upon whom the duty of elect- ing is imposed by the instrument of donation, for the purpose of compelling him to make an election. The jurisdiction to entertain such a suit embraces the power to determine whether the necessity for an election exists, and after the election is actually made, to ascertain, ad- just, and secure the rights of all the parties interested which are affected by it, by means of compensation or otherwise. This special jurisdiction has sometimes been referred to that existing over trusts, because, when the election is made by tlie defendant, a trust in favor of the plaintiff is impressed upon the property rejected.* V. Roe, 21 N. J. Eq. 25.3; Estate of Tie- num, 15 Kan. 625; [Brown T. Brown, laney, 4!l Cal. 77; Tienian v. Roland, 42 Minn. 270.] 15 Pi! St. 4:W, 451; WiHiariks v. ' Many of the cases heretofore cited WillKinks, 18 111. 17: Jennings v. .Ten- in tliia section were suits of such a niiigs, 21 Ohio ijt, 56; AUeu v. Hau- nature brought to enforce an election: 705 CONCERNING ELECTION. § 519 § 519. Conversely, the rule has been stated in the most general manner, that the jurisdiction always exists, and will be exercised, to entertain a suit on behalf of the person bound to elect, for the purpose of having the necessary accounts taken, so that he may be informed of the real value and condition of the property and enabled to exercise his right of election in a proper manner. The latest English decision on this subject, however, while conceding that such a jurisdiction will be exercised under all ordinary circumstances, holds that in certain special cases the suit would not be maintained.' In several of the American states, wli«re the general doctrines of equity concerning the election by widows between their dower and a testamentary provision have been greatly modified by statute, and definite statutory , rules have been substituted in their stead, as shown in a previous paragraph, the courts of probate have jurisdic- tion to determine all siu:h matters of election, and to decide upon the rights of widows and other parties inter- ested, in the ordinary proceedings for administering, set- tling, and distributing the estate, or in the proceedings for assigning the widow's dower. This purely statutory jurisdiction does not, however, seem to embrace other and more general cases calling for an election. See Douglaa v. Ponglas, L. R. 12 Eq. which election is to be made. No 617, 637; Dillon v. Parker, 1 Swanst. doubt there is, in almost all cases, 381, note by Mr. Swanaton; Van jurisdiction in equity to compel a Dyke's Appeal, 60 Pa. St. 481, 489, final election, so as to quiet the title per Sharswood, J. of those interested in the objects of ' Dillon V. Parker, 1 Swanst. 381, which one is to be chosen; and the note by Mr. Swanston; Butrioke v. court, as a condition of compelling Broaiihurst, 3 Brown Ch. 88; 1 Ves. such a final election, secures to the 171, 172, per Lord Thurlow; Pusey person compelled to make it all the V. Desbouverie, 3 P. Wins. 315; information necessary to guide him in Douglas V. Douglas, ii. R 12 Eq. doing so. It is also generally, though 617, 637, per Wickens, V. C. In perhaps not universally, true that a this last case, the court said (p. 637): person for whose benefit conditions "It is perhaps too broadly stated by will be imposed by the court before it Lord Thurlow, in Butricke v. Broad- makes an order against him can en- hurst, 3 Brown Ch. 88, whose dictum title himself to the benefit of the con- has been adopted by Mr. Swanston in ditiona by filing a bill and offering by his note to Dillon v. Parker, 1 Swanst. it to submit to the order." So far as 381, that the court of chancery will these remarks tend to restrict the ju- in all cases entertain a suit by a risdiction, they are confessedly a mere person put to an election to ascertain dictum, not at all necessary to the the value of the objects between actual decision made iu the case. 1 Eq. Jub.— 46 520 EQUITY JUEISPBUDENCB. 706 SECTION III. CONCERNING SATISFACTION. ANALYSIS. S 520. Questions stated. § 521. Definition. §§ 522-525. YarioQs conditions of fact. § 523. Rationale of the doctrine. § 524, Ademption and satisfaction. § 525. Extrinsic evidence. § 526. Divisions of the subject. §§ 527-543. I. Satisfaction of debts by legacies. §§ 527-540. Legacy by a debtor to his creditor. §§ 528-536. Various circumstances which prevent the presumption of satis- faction. § 537. Direction in will to pay debts. § 538. Legacy in pursuance of agreement, or in express payment § 539. Debt owing to a child or wife. § 540. Debt to child satisfied by an advancement. §§ 541, 542. Legacy by a, creditor to his debtor. § 543. Satisfaction of debt, how enforced. §§ 544—552. H. Satisfaction of legacies by subsequent legacies, § 545. Kule first: Specific legacies. §§ 546-548. Rule second: Legacies of quantity by different instruments. § 549. Rule third: Legacies of equal amounts by the same instrument. §§ 550, 551. Rule fourth: Legacies of unequal amounts by the same instru- ment. § 552. Extrinsic evidence. §§ 553-564. III. Satisfaction of legacies by portions and advancements. § 554. Presumption of satisfaction. § 555. Subsequent gift less than the legacy. § 556. Person in loco parentis. §§ 557-560. Circumstances which do or do not prevent the presumption. § 559. Payment to husband of a female legatee. § 560. What prevents the presumption. § 561. Effect of a codicil. § 562. Satisfaction of legacies between strangers.' |§ 563, 564. Satisfaction, when not presumed, but expressed. §§ 565-568. IV. Satisfaction of portions by subsequent legacies, or other simi- lar provisions. §§ 566, 567. Differences between the gifts which do not and which do defeat the presumption. § 568. Election by the beneficiary. §§ 669-577. V. Admissibility and effect of extrinsic evidence. § 570. General principles discussed and explained. 707 CONCHRNINQ SATISFACTION. §§ 520, 521 §§ 571-575. When the subsequent benefit is given by a writing. § 572. The writing expressly states the donor's intention. § 673. The writing silent as to donor's intention, and no presumption arises from it. S 574. The writing silent as to donor's intention, but i presumption ol satisfaction arises from it. § 575, Cases to which the foregoing rules apply, § 676. When the subsequent benefit is given verbally, § 577. Amount of evidence. § 520, Questions Stated, — In the first paragraph of the preceding section, it was stated that the equitable doctrine of election, considered in its broadest sense, originates in inconsistent or alternative gifts, with the intention, either expressed or implied, that one shall be substituted for the other. Two distinct cases were de- scribed, differing in their circumstances, but depending ultimately upon the same principle. Of these two, the first has been treated of under the name " election," while the second is usually known by the title " satisfaction." The most general condition of circumstances under which this second case arises was described as follows: If the person to whom, by an instrument of donation, a benefit is given, possesses at the same time a previous claim against the donor, and an intention appears that he shall not both enjoy the benefit and enforce the claim, then the gift being designed as a satisfaction of the claim, he can- not accept the former without renouncing the latter. The underlying principle which controls this case is the same as that which governs election; under many circum- stances the donee is required to actually elect between his original and his substituted rights; while under others the satisfaction is complete and the substitution is effected without the exercise by him of any actual choice.* § 521. Definition. — Satisfaction may be defined, in a general manner, to be the donation of a thing, with the intention, either expressed or implied, that it is to be taken either wholly or in part in extinguishment, by way ' See ante, § 461. § 522 EQUITY JUEISPRUDBNCB. 70S of substitution, of some prior claim in favor of the donee.*^ The equitable doctrine of satisfaction, considered in all its aspects, arises in four general classes of cases, namely: Satisfaction of debts by legacies; satisfaction of legacies by subsequent legacies; satisfaction of portions by lega- cies; and satisfaction of legacies by portions or advance- ments. § 522. Variotis Conditions of Fact. — Before proceed- ing with the discussion of the particular rules applicable to each of these four classes, it is very important to- obtain a clear and accurate notion of the various ques- tions involved in the subject, of the different condition* of facts and circumstancjs from which these question* may arise, and of the technical terms employed by the courts in stating and defining the rules themselves. No little confusion and uncertainty have resulted from a neglect on the part of text-writers and judges sometimes, to distinguish between these questions and circumstances, and from their improper use of these terms. The question concerning the satisfaction of portions by legacies, or of legacies by portions, has ordinarily arisen in England^ where there has been a formal settlement whereby a parent has covenanted to pay specified sums as portions for the benefit of his children, preceded or followed by a will be- queathing property to the same beneficiaries. While such formal settlements are not unknown, they are certainly infrequent in the United States; and the analogous ques- tions have ordinarily arisen in this country, where, after a will conferring bequests, the testator has, during hi& own lifetime, either formally by means of a written in- ' Note of English editor in 2 Lead, the subject of the covenant, and snb- Cas. £q., 4th Am. ed., 754, approved stituted for it; and the question always> in Lord Chichester v. Coventry, arises, Waa the thing done intended as L. R. 2 H. L. 71, 95. In Goldsmith ' a substitute for the thing covenanted V. Goldsmith, 1 Swanst. 211, the no- to be done! — a qnestion entirely of tion of " satisfaction " was thus ex- intent. But with reference to perform- plained: " An important distinction ance the question ia, Has the identical exists between satisfaction and per- act which the party contracted to do formance. Satisfaction supposes in- been donet' tentiou; it is something different from 709 CONCERNING SATISFACTION. § 523 strument, or informally by means of delivery or payment -accompanied only by verbal declarations, bestowed prop- erty upon tbe beneficiaries provided for in his will. § 523. Rationale of the Doctrine. — In considering the most important branch of the subject, — namely, the sat- isfaction of portions by legacies, and of legacies by por- tions or advancements, — two entirely distinct states of fact may exist, which are governed by entirely different rules. In the one case there is a settlement covenanting to pay a portion, followed by a will simply giving property to the same beneficiary; or there is a will bequeathing property, followed by a settlement covenanting to pay a portion, or by an actual payment, to the same benefici- ary; but in neither instance does the donor, in express terms, declare that the second gift is a substitute for or a satisfaction of the former One, or impose, in the writ- ten instrument of donation, any such restriction or con- dition upon the receipt or acceptance of his bounty. In such a condition of facts the equitable doctrine concern- ing satisfaction is based wholly upon a presumption; the intent of the donor that his second gift should be a sub- stitute for the first is inferred as a presumption from the situation of the parties, and from the nature of the donations themselves. It will be seen that the pre- sumption only arises, and the doctrine based upon it •only applies, when the donor is the parent of, or stands in loco parentis to, the beneficiary. All the subordinate rules connected with this condition of fact, and espe- cially those which regulate the admission of extrinsic evidence, flow immediately and solely from the pre- sumption which lies at the foundation of this particular branch of the general doctrine. In the second case there is likewise a settlement covenanting to pay a por- tion, followed by a will giving property to the same beneficiary; or there is a will bequeathing property, followed by a settlement covenanting to pay a portion; or by an, actual payment to the same beneficiary; but in § 523 EQUITY JUKISPRUDENCK. 710 each instance the donor, in terms sufficiently express to show his intent, declares that the second gift is made as a substitute for or in lieu of the former one, or imposes in the written instrument of donation such a restriction or condition upon the receipt and acceptance of his bounty; or else the donee expressly accepts the second gift as a substitute, and agrees to receive it in lieu of the former benefit. In this condition of fact the equitable doctrine concerning satisfaction is entirely unconnected with any presumption; the intent of the donor that his second gift shall be a substitute for the first does not depend upon and is not aided by any presumption; it is inferred, if at all, wholly from the language, either writ- ten or spoken, accompanying the donation, and indicat- ing its character and purpose; the question is' one simply of construction. It will be seen that in such a state of facts the doctrine of satisfaction will be applied without any reference to the relations existing between the donor and his beneficiaries, — alike when the donor is a parent, or in loco parentis, or a stranger. The great importance of the distinction which thus exists between these two states of fact will more fully appear in the subsequent discussion.' There are, therefore, two kinds of satisfac- ' It cannot be denied that this fun- tion arises at once In the casa damental distinction has been lost of a stranger, the presumption against sight of in several of the American double portions does not arise at all. decisions, and has not been made suf- It is wholly a question of construc- ficiently prominent in some of the tion, and no evidence is admissible English ones, and rules which are either to sustain or rebut any pre- really clear and simple have thus sumption, for the reason that none been involved in unnecessary confu- arises. In this latter case the ques- sion. The distinction which I have tion of satisfaction never arises ex- explained in the text was very clearly oept upon the express words of the stated by Lord RomiUy, M. R., in donor; and whether the gifts said to. the recent case of Cooper v. Cooper, be given in satisfaction are given by a L. R. 8 Ch. 813, 819, note: "In con- father or a, stranger is wholly im- sidering these cases, it is important to material, and it is solely n question notice, in the first instance, whether wliether the original benefactor in- the donor of the benefit which is tended that his benefit should be claimed to be satisfied by subsequent diminished or satisfied by benefits de- benefits stands in the place of a par- rived from any other source, and if ent or in the place of a stranger. If so, what other source. This may ba he stands in loco parentis, the presump- shown pointedly in a case where the tion of equity being against double gifts supposed to be a satisfaction of portions, the presumption of satisfac- the original gifts are gifts of laud. la 711 CONCERNING SATISFACTION. § 524 tion efiabraced within the general doctrine, — one which equity presumes to arise from double donations to the same beneficiary, where the instruments of donation or the language used by the donor are completely silent with respect to any such intention; the other, which arises from the very language of the donor, or from the very terms of the donation, in which the intent to sub- stitute the second gift in place of the former one is sufficiently expressed. § 524. Ademption and Satisfaction. — Another matter connected with the general subject, concerning which it is extremely important to form accurate notions, is the meaning and use of the terms " satisfaction " and " ademption." In many judicial opinions, and by sev- eral text-writers, the words " satisfaction " and " ademp- tion " are regarded as absolutely synonymous, and are used interchangeably, the rules with respect to each being stated in exactly identical terms. There is, however, a plain and necessary distinction between the two, — a distinction which is recognized by cases of the highest authority, and has been expressly pointed out and explained by some of the ablest judges. The exact legal conceptions involved' in the two terms " satisfaction " and " ademp- tion " are most clearly defined by the opinions delivered in a recent case of great importance decided by the house of lords, and by a still later decision by the high court of appeal in England. Extracts from these opinions will be found in the foot-note.^ The term " ademption " is con- the case of a parent or person in loco tance to consider, in all cases, whether parentis, land would be no satisfaction the doctrine of presumption against for a covenant to pay money. The double portions, or the doctrine of presumption against double portions construction of instruments, is that does not arise in such case. But if which applies to the case." The de- the original gift was to a stranger, the cision made by the court of appeals doctrine of satisfaction becomes ap- was also based upon the same view of plioable according to the words of the the doctrine. [See also Wallace v. original donor. Then the question is, Du Bois, 65 Md. 153.] whether the words he has used, fairly ' Lord Chichester v. Coventry, L. interpreted, meant the gifts of land K. 2 H. L. 71, 82, 86, 90, 91. Mr. as satisfaction of the benefits he has Beaven, on the marriage of his daugh- bequeathed or previously conveyed, ter, covenanted, by a settlement, to It is therefore of paramount impor- pay to the trustees, three months after §524 EQUITY JURISPRUDBNCB. 712 fined to the cases in which a benefit has been givefi by a prior will, and this benefit is subsequently taken away or demand, ten thousand pounds for the uses declared in the settlement, with interest until payment. The principal Bum was never demanded during his lifetime, but the interest was paid. He afterwards made a will, which took effect ac his subsequent death, by which he gave his property to trustees, " in the tirst place, to pay his debts and legacies," etc., and then to divide tde residue into equal moieties, and to transfer the same to his daughters. The trusts created by the will were very different from those created by the settlement. The question for de- cision was, whether the covenant in the prior settlement to pay the ten thousand pounds for the benefit of the married daughter was satisfied by the gift of a moiety of the residue contained in the will. The court held that, from a view of the great difference between the provisions of the will and the trusts of the settlement, the presump- tion that the second gift was intended as a satisfaction of the former did not arise. Lord Romilly used the follow- ing language (p. 90): "It is to be re- membered that this is a case of satis- /action, not of ademption. I think that a full view of the cases and a consideration of the doctrine on this subject do not justify the observation that there exists no distinction be- tween ademption and satisfaction. I venture to think that the distinction is marked, and that it is recounized in all the decided cases on the sub- ject. It appears to me to be accu- rately expressed by the legal terms 'ademption' and 'satisfaction.' The general question was, I think, well ex- pressed by Lord Crauworth during the argument, when he said that in cases where it arises, the second in- strument must be read as if the maker of that instrument had expressed in it that he intended the benefit thereby given to be taken in substitution for the benefit given by the former in- strument. In truth, in both cases the second gift is given in i substi- tution for the former benefit. The distinction between ademption and satisfaction lies in this: in ademp- tion the former benefit is given by a will, which is a revocable instru- ment, and which the testator can alter as he pleases, and consequently when he gives benefits by a deed sub- sequently to the will, he may, either by express words or by implication of law, substitute a second gift for the former, which he has the power of alter- ing at his pleasure. Consequently in that case the law uses the word 'ademption,' because the bequest or devise contained in the will is thereby adeemed or taken out of the will. But when a father on the marriage of a child enters into a covenant to set- tle either land or money, he is unable to adeem or alter that covenant, and if he gives benefits by his will to the same ol>ject, and states that this is to be in satisfaction of the covenant, he necessarily gives the objects of the covenant the right to elect whether they will take under the covenant, or whether they will take under the wilL Therefore this distinction is manifest. In cases of satisfaction the persons intended to be benefited by the cove- nant, and the persons intended to b« benefited by the bequest or devise, must be the same. In cases of ademp- tion they may be, and frequently are, different. The cases of Lord Durham V. Wharton, 3 Clark & F. 146, and Lady Thynne v. Lord Glengall, 2 H. L. Cas. 131, afford striking and leading instances of each of these two cases. Lord Durham v. Wharton, 3 Clark & F. 146, was a case of ademption." Lord Chancellor Chelmsford said (p. 82): "The question whether a gift in a will is to be considered as a satisfac- tion of a portion given by a settlement, or a portion given by settlement is to be taken as an ademption of a gift by will, is one of intention. It is cer- tainly easier to arrive at a conclusion as to that intention when the will pre- cedes the settlement than when th« settlement is first and the will follows. In the case when the revocable instrn- ment is first, and a portion is given by it, if the event of marriage or any other occasion for advancing a child should afterwards occur, it may very reason- ably be supposed that the parent hai anticipated the benefit provided by the will, and haa intended to substi- tute for it the new provision, eithei 713 CONCERNING SATISFACTION. §524 annulled by the testator's own act in conferring some other gift during bis lifetime. Whether the ademption entirely or pro tanto. But when an irrevocable settlement is t'ollovired by m will, it is not so easy to infer that an additional benefit was not intended by the testator, except when he ex- pressly declares his intention to be otherwise, or when the gift in the will and the portion in the settlement so closely resemble each other as to lead to a reasonable intendment that the one was meant to be substituted for the other. In determining in any particular case whether a gift by a parent, or a person in loco paretiiis, is intended to be in addition to or in satisfaction for a prior gift by the same person, it must always be borne in mind that there is a presumption, or, as Lord Eldon expressed it in Ex parte Pye, 18 Ves. 140, 'a sort of feeling upon what is called a leaning against double portions.' 'Thia presumption,' as Sir John Leach said in Weall v. Rice, 2 Russ. & M. 267, 'may be repelled or fortified by in- trinsic evidence derived from the na- ture of the two provisions.'" Lord Cranworth also said (p. 86): "Keither party disputed the rule, acted on in courts of equity, that there is a pre- sumption against double portions. It is, however, but a presumption, and is therefore liable to be met by coun- ter-presumptions showing that in any particular case it ought not to pre- vail. It is a rule much easier of ap- plication when the first provision is made by will and the second by deed, than when the first provision is by settlement and the will follows. In the former case the provision by will is under the absolute control of the person making it up to the time of his death; and when, therefore, after the date of the will, be makes a settlement for the benefit of the person provided for by the will, the only question is, whether he intends the latter to supersede the former provision. If that is - his intention, he has unlimited power to carry it into effect; he is under no obligation to obtain the con- sent of the person for whom he in- tended to provide by his wilL But where a parent provides for a daughter by settlement on her marriage, bind- ing himself to secure at his death a stipulated sum for the benefit either of her absolutely, or of her and her husband and their issue, and after- wards makes provision for her or them by his will, it is obvious that without the consent of those entitled under the settlement be cannot substitute the benefits he may have chosen to confer by his will for those which he had already secured by deed. In such a case he can only make the testamen- tary gift a substitute for what he was by deed bound to provide, in case those entitled under the settlement see fit so to accept it. The application of the rule is thus made more difficult; still there is no doubt that the rule itself is held to be applicable in the latter as well as in the former case. But the rule, as I have already noticed, is but a rule of presumption, and there is much less difficulty in supposing that it was not intended to prevail where the person to whose disposition it is to be applied had not the power to enforce it without the consent of others, than in a case where the whole was under his absolute control. When the will precedes the settlement, it is only necessary to read the settlement as if the person making the provision had said, *I mean this to be in lieu of what I have given by my will.' But if the settlement prece'des the will, the testator must be understood as saying, ' I give this in lieu of what I am already bound to give, if those to whom I am so bound will accept it. ' It requires much less to rebut the latter than the former presumption." Also, in the very recent case In re Tussaud's Estate, L. R. 9 Ch. Div. 363, 380, Cotton, L. J., delivering the opinionof the court of appeal, said: "It must be remembered that the case is one, not of ademption, but of satisfac- tion, and the two classes of cases are pointedly distinguished in Lord Chi- chester V. Coventry, L. R. 2 H. L. 71. In a case of ademption, where the will is first, that is a revocable instrument, and the testator has an absolute power of revoking or altering any gift thereby made. But where the obligation is earlier in date than the will, the testa- tor, when he makes his will, is under a liability which he cannot revoke or § 524 EQUITY JURISPRUDENCE. 714- takes place, or in other words, whether the prior testa- mentary gift is anticipated and discharged, depends solely upon the testator's own intention, wholly without refer- ence to any consent or other act of the donee; an ademp- tion operates, if at all, entirely independently of the donee's assent, and even against his will. The testator's intent to discharge the prior bequest in this manner, by substituting another donation, may be inferredj in some cases, by means of a presumption, from the very act itself, or may be inferred in other cases from the express terms which he uses accompanying and describing the act; but in all cases the ademption depends upon the testator's own intention to deal with a testamentary gift which is revocable and under his own control. In the sense in which the terms are now used, every ademption of a prior gift is a satisfaction, but every satisfaction is not an ademption. It necessarily follows that ademption cannot be correctly applied to any cases in which a party, being already under some prior legal obligation, — as, for example, any indebtedness, or an agreement to pay a por- tion contained in a prior settlement, — makes a subsequent gift by will to the person in whose favor the obligation exists, with the intent, either expressed or presumed, that the same shall be substituted for and in satisfaction of the prior obligation, since in all such cases the substitu- tion and satisfaction cannot result from the donor's in- tent alone, but require the concurrence and assent of the donee. For the same reason, the term "ademption" cannot be correctly applied to any case where the substitution for and satisfaction of a prior testamentary benefit, by means of a subsequent gift from the testator, depend upon an agreement with or assent of the beneficiary, and not solely upon the intent of the testator himself. avoid. He can only pnt an end to it tion. It is therefore easier to assume by payment, or by making a gift with an intention to adeem than an inten- the condition, expressed or implied, tion to give a legacy in lieu or in satis- that the legatees shall take the gift faction of an existing obligation." made by the will in satisfaction of [See also Wallace T. Du Bois, 65 Md. their claim under the previous obliga- 163.] 715 CONCERNING SATISFACTION. § 525 § 525. Extrinsic Evidence. — There is still another matter connected with the general doctrine of satisfac- tion wnich requires care and accuracy in distinguishing between different conditions and relations, but concern- ing which there is unfortunately no little confusion in some judicial opinions, resulting from a failure to observe these necessary distinctions. I refer to the admission of extrinsic evidence upon the question whether a subse- quent gift is or is not in satisfaction of a prior one. In all those cases where, from the relations between the parties and the nature of the two gifts, the intention of the donor to give the second in place and satisfaction of the first is presumed in accordance with a settled rule of equity, it is plain that the question of a satisfaction or not cannot primarily depend upon any extrinsic evidence of the donor's intention, because, in the absence of all evidence except that furnished by the nature of the gifts and the relations of the parties, the intention is presumed. Extrinsic evidence can, from the necessities of the case, only be used for the purpose either of rebutting or of aid- ing the presumption. The only possible questions are, whether any extrinsic evidence, either written or oral, can thus be admitted to rebut or sustain the presumption; and if so, what force and effect shall be given to any par- ticular evidence which has been admitted. In the other class of cases, where there is no presumption, and where the satisfaction results solely from the express terms em- ployed by the donor accompanying his second gift and showing his intention in making it, or upon the terms of the agreement between the donor and the beneficiary, with respect to the making and acceptance of the second gift, it is plain that the whole question of a satisfaction or not must primarily depend upon the evidence disclos- ing the intent of the donor, or disclosing the terms of the agreement between himself and the beneficiary, or dis- closing the consent of the beneficiary to accept the second gift in substitution and satisfaction of the prior gift oi §§ 526, 527 BQUITY JURISPKUDENCB. 716 obligation. In cases of this class some evidence is, of course, necessary; the important questions are as to the kind and nature of the evidence admissible, whether written or oral, and especially, when the second gift is contained or declared in a written instrument, whether the donor's intention must be discovered from the terms of such instrument alone, or whether it may be shown by evidence, either written or verbal, outside of and collateral to the instrument of donation. It is plain that the ques- tions coucerning the admissibility and effect of extrinsic evidence in these two classes of cases are quite different, and depend for their solution upon different reasons and rules. § 526. Divisions of the Subject. — Having thus ex^ plained the important matters connected with the general doctrine of satisfaction, I shall proceed at once to their examination. Adopting the order in which the more simple questions precede those which are more compli- cated and diflBcult, I shall treat the whole subject under the following heads: 1. Satisfaction of debts by legacies; 2. Of legacies by subsequent legacies; 3. Of legacies by portions and advancements; 4. Of portions by legacies; and 5. Extrinsic evidence, its admissibility and efifect. § 527. I. Satisfaction of Debts by Legacies — Legacy by a Debtor to his Creditor. — The general rule as stated by Sir J. Trevor, M. R, in the leading case of Talbot v. Duke of Shrewsbury,* is as follows: " If one, being in- debted to another in a sum of money, does by his will give him a sum of money as great as or greater than the debt, without taking any notice at all of the debt, this shall nevertheless be in satisfaction of the debt, so that ' Prec. Ch. 394; 2 Lead, Cas. Eq., yet it shall not go in satisfaction of 4th Am. ed., 751. To this statement the debt; because a debt which is of the general rule it was added: certain shall not be merged by an "But if such a legacy were given uncertain and contingent recompense, upon a contingency, which, if it I'or whatever is to be a satisfaction should not happen, the legacy would of a debt ought to be eo in its creation not take place, in that case, though and at the very time it is given, the contingency does actually^happeu, which such contingent provision ia and the legacy thereby became due, not." 717 CONCERNING SATISFACTION. §527 he shall not have both the debt and the legacy." Wher- ever this rule operates, and the presumption of satisfac- tion arises, the creditor-legatee is of course put to his election: if he claims the legacy, he cannot enforce the debt; if he enforces the debt, he cannot obtain the legacy. It is also proper to remark that a debtor-testa- tor can always thus put his creditor to an election, by ac- companying his testamentary gift, whatever be its nature or amount, with words sufficiently indicating his inten- tion that it is made and must be received in lieu and satisfaction of the debt.* This general rule, being based upon artificial reasoning, has been distinctly condemned by able judges. It is not favored by courts of equity; on the contrary, they lean strongly against the presumption, will apply it only in cases which fall exactly within the rule, and will never enlarge its operation.* ' Brown v. Dawson, Pree. Ch. 240; Fowler v. Fowler, 3 P. Wins. 353; Bichardson v. Greese, 3 Atk. 68; Oay- non V. Wood, 1 Dick. 331; Bensusaa T. Nehemiaa, 4 De Gex & S. 381; Shadbolt v. Vanderplank, 29 Beav. 405; Tolson v. Collins, 4 Ves. 483; Dey T. Williams, 2 Dev. & B. Eq. 66; Perry v. Maxwell, 2 Dev. Eq. 488, 499; Ward V. Coffield, 1 Dev. Eq. 108; Byrne V. Byrne, 3 Serg. & E. 54; 8 Am. Dec. 641; Wesco's Appeal, 52 Pa. St. 195; Horner's Bx'r v.*McGaughy, 62 Pa. St. 189; Van Riper v. Van Riper, 2 N. J. Eq. 1; Strong v. Williams, 12 Mass. 389; 7 Am. Dec. 81; Parker v. Co- bnrn, 10 Allen, 82; Allen v. Merwin, 121 Mass. 378; Eaton v. Benton, 2 Hill, 576; Harris v. Rhode Island etc. Co., 10 R. I. 313; Crouch v. Davis, 23 Gratt. 62; Gilliam v. Chancellor, 43 Miss. 437; Gilliam v. Brown, 43 Miss. 641; 2 Roper on Legacies, 1025-1052; 2 Redfield on Wills, c. 1, sec. 10. ' See Richardson v. Greese, 3 Atk. 65; Fowler v. Fowler, 3 P. Wms. 353; Mathews v. Mathews, 2 Ves. Sr. 636; Stocken v. Stocken, 4 Sim. 152; Lady Thynne v. Earl of Glengall, 2 H. L. Cas. 153; [Gillings v. Fletcher, L. R. 38 Ch. Div. 373;] and the American cases cited in the last pre- ceding note. With reference to the operation of this general doctrine, Mr. Snell sums up the following propositions as the conclusions resulting from the decided cases: "1. Words ordinarily employed to grant a legacy show an intention of favor rather than an intention to fulfill an obligation, — i. c, 'a legacy imports bounty'; 2. If the debtor bequeaths exactly the same sum, sim- pUciter, as the debt, it will be taken as satisfaction: Haynes v. Mico, 1 Brown Ch. 130; 3. If the legacy be less than the debt, it was never held to go in satisfaction, not even pro ianto: Eastwood v. Vincke, 2 P. Wms. 617; 4. The legacy of a sum, simpUci- ter, greater than a debt, will be taken as satisfaction of the debt, and only imports a bounty as to the excess of the legacy over the debt: Talbot v. Shrewsbury, Prec. Ch. 394; 5. The presumption will not be raised where the debt of the testator was contracted subsequently to the making of the will; for he could have no intention of making any satisfaction for what was not in existence: Cranmer's Case, 2 Salk. 508; 6. Equity will lay hold of slight circumstances to indicate an intention that the legacy shall not go as a satisfaction," §§ 528-530 EQUITY JUEISPKUDBNCB. 718 § 528. What Prevents the Presumption. — In conse- quence of this strong leaning against the presumption, it is well settled that courts of equity will take hold of very- slight circumstances connected with any particular case, and will regard them as sufficient to remove the case from the operation of the general rule, and to prevent the presumption of a satisfaction from arising.* In fact, the discussion of the general doctrine chiefly consists in the statement and description of these facts and cir- cumstances which prevent its application. The following are the important instances, as settled by the decisions, in which the presumption of a satisfaction is thus over- come. § 529. Legacy Less than the Debt. — A legacy less in amount than the debt does not operate, under the general rule, as a satisfaction, even pro tanto; no presumption arises in favor of a satisfaction; on the contrary, the pre- sumption is, that the legacy was not intended to be in lieu of the debt.^ Where, however, a smaller legacy is given in pursuance of a previous arrangement between the testator and his creditor that it should be a part pay- ment, it will operate as a satisfaction pro tanto? § 530. Legacy Payable at a Different Time from the Debt. — A legacy payable at a different time from the debt will not be a satisfaction thereof, even though it > Richardson r. Greese, 3 Atk. 65; Sr. 263; Atkinson v. Webb, 2 Vera. Fowler v. Fowler, 3 P. Wms. 353; 478; Cranmer's Case, 2 Salk. 508; Mathews v. Mathews, 2 Ves. Sr. Strong v. Williams, 12 Mass. 389; 636; Stocken v. Stocken, 4 Sim. 152; 7 Am. Dec. 81; Eaton v. Benton, 2 Lady Thynne v. Earl of Glengall, 2 Hill, 576. H. L. Gas. 153; Strong v. Williams, » Hammond T. Smith, 33 Beav. 452. 12 Mass. 389; 7 Am. Dec. 81; Eaton It should be remembered that the tes- V. Benton, 2 Hill, 576; Van Riper v. tator may show an intention in ex- Van Riper, 2 N. J. Eq, 1; Byrne v. press terms that his gift is to be in Byrne, 3 Serg. & R. 54; 8 Am. Dec. full or partial satisfaction of any 641; Horner v. MoGaughy, 62 Pa. St. obligation, and such intention would 191; Smith v. Smith, 1 Allen, 129; prevail by putting the beneficiary to Edelen v. Dent, 2 Gill & J. 185; Gil- an election. The rules of the text liam V.Brown, 43 Miss. 641; Crouch apply only when legacies are given V. Davis, 23 Gratt. 62; [Bradshaw v. simpUciter, or without the aoeompany- Huish, L. R. 43 Ch. Div. 263.] ing expression of any special intent ' Eastwood V. Vinoke, 2 P. Wms. by the testator. 613, 617; Graham t. Graham, 1 Ves. 719 CONCERNING SATISFACTION. §§ 531-533 may be equal in amount to or greater than the debt.' If, therefore, the debt was due and payable at the testator's death, and a legacy was made payable at any specified time after his death, there would be no satisfaction.' § 531. Legacy Contingent or Uncertain. — A legacy which is contingent, — that is, where the gift itself depends upon a contingency,' — or one which is of an uncertain amount, — as, for example, a residue, although it subse- quently turns out to be larger than the debt, — will not be regarded as a satisfaction.* § 532. Legacy of a Different Nature or for a Different Interest. — The general presumption of a satisfaction does not arise where the legacy is given for a different inter, est, or is of a different nature from the debt, — as where the debt is a specific sum, and the bequest is of an annuity. For this reason a devise of lands or bequest of specific chattels or securities will not be a satisfaction of a pecuniary liability.* § 533. Motive for the Gift Stated. — Where the tes- tator states in his will some particular motive or reason for making the gift, the legacy under these circumstances > Haynes v. Mioo, 1 Brown Ch. 129; H. L. Cas. 154; Barret v. Beckford, 1 Clark V. Sewell, 3 Atk. 96; Jeaoock v. Ves. Sr. 519; Bvrne v. Byrne, 3 Serg. Falkener, 1 Brown Ch. 295; 1 Cox, 37; & R. 54; 8 Am. Deo. 641. Atkinson v. Webb, Prec. Ch. 236; ' Eastwood v. Vinoke, 2 P. Wms. Nicholls V. Jndson, 2 Atk. 300; Halea 614; Forsight v. Grant, 1 Ves. 298; V. Darell, 3 Beav. 324, 332; Charlton Cole v. Willard, 25 Beav. 568; Bart- V. West, 30 Beav. 124, 127; Byrne v. lett v. Gillard, 3 Russ. 149; Fourdrin Byrne, 3 Serg. & R. 54; 8 Am. Deo. v. Gowdey, 3 Mylne & K. 409; Rowa 641; Eaton v. Benton, 2 Hill, 576; v. Rowe, 2 De Gex & S. 294; Edmunda Van Riper v. Van Riper, 2 N. J. Eq. v. Low; 3 Kay & J. 318; Richardson 1; Edelen r. Dent, 2 Gill & 0. 185; v. Elphinstone, 2 Vea. 463; Byde v. Perry v. Maxwell, 2 Dev. Eq. 488. , Byde, 1 Cox, 49; Edelen v. Dent, 2 » Clark V. Sewell, 3 Atk. 96, in Gill & J. 185; Partridge's Adm'r v. which the legacy was made payable Partridge, 2 Har. & J. 63; Cloud v. one month after testator's death: Cole Clinkinbeard, 8 B. Mon. 397; 48 Am. V. Willard, 25 Beav. 568; but see Dee. 397; Caldwell v. Richard, 1 B. Wathen v. Smith, 4 Madd. 325. Mon. 228; Smith v. Marshall, 1 Root, ' Mathews v. Mathews, 2 Vea. Sr. 159. Where the bequest is of an in- 635; Nicholls v. Judaon, 2 Atk. 300; terest different from the debt; as, for Crompton v. Sale, 2 P. Wms. 552; example, a bequest of the residue of Byrne v. Byrne, 3 Serg. & R. 54; real and personal estate for life was 8 Am. Dec. 641; Eaton v. Benton, 2 held not to be a satisfaction of an ob- Hill, 576; Van Riper v. Van Riper, 2 ligation to lay out a sum of money in N. J. Eq. 1. lands and convey them to the person • Deveae v. Pontet, 1 Cox, 188; in fee: Alleyu v. AUeyn, 2 Ves. Sr. Lady Thynne v. Earl of Glengall, 2 37. §§ 534-636 EQUITY JURISPKUDKNCK. 720 is not presumed to be a satisfaction of an existing debt;* unless the very motive or reason stated is that the debt »hould thereby be discharged. § 534. The Debt Contingent or Uncertain.— The gen- eral presumption of a satisfaction will not arise where the debt itself owing by the testator is contingent or uncertain; as, for example, where it is upon a running account, or is upon a negotiable instrument which is legally transferable to another holder.* But this excep- tion does not apply, so as to prevent the general pre- sumption of a satisfaction from operating, where a debt certainly exists, but the amount of it is not precisely known.* § 535. The Debt Subsequently Contracted. — Nor can a legacy, whatever be its amount, be regarded as a satis- faction of a debt contracted by the testator subsequently to the execution of the will. As the general presumption is based upon a supposed intention of the testator when he gives the legacy, the very foundation of the doctrine is wholly wanting in such a case.^ § 536. Different Interests or Rights in the Debt and Legacy. — In order that the presumption of satisfaction may apply, it may be stated as a general proposition that the same estate or interest must be given in the legacy which subsists in the debt; and the legacy must be given to the legatee in and by the same right as that in and by which he is entitled to the debt.' > Mathews v. Mathews, 2 Ves. Sr. 343; Cranmer's Case, 2 Salk. 508? 635; Charlton v. West, 30 Beav. 124, Plunkett v. Lewis, 3 Hare, 330; 127. Strong v. Williams, 12 Mass. 389; 7 » Rawlins V. Powel, 1 P. Wms. 297; Am. Dec. 81; Horner v. McGanghy, Carr v. Eastabrooke, 3 Ves. 561; 62 Pa. St. 189. Strong V. Williams, 12 Mass. 389; 7 " Bartlett v. Gillard, 3 Russ. 149; Am. Ceo. 81, per Putnam, J.; Horner Fourdriu v. Gowdey, 3 Mylne 4 K. V. McGaughy, 62 Pa. St. 189; Gilliam 409; Rowe v. Rowe. 2 De Gex & S. T. Brown, 43 Miss. 641. 294; Smith v. Smith, 3 Giff. 263; Hall ' As where it consists of a deposit v. Hall, 1 Dm. & War. 94; Pinchin of money subject to be drawn upon v. Simms, 30 Beav. 119. But a debt from time to time, and thus lessened: due to a single woman may be satis- Edmunds v. Low, 3 Kay & 1. 318; fied by a legacy to her after her sub- Smith V. Smith, 3 Giff. 263. sequent marriage: Edmunds v. Low, * Thomas v. Bennet, 2 F. Wms. 3 Kay & J. 318. 721 CONCERNING SATISFACTION. §§ 537, 538 § 537. Direction in Will to Pay Debts. — Where a tes- tator, by a clause in his will, expressly directs that debts and legacies shall be paid, such a direction, it is abun- dantly settled, shows an intention on his part that both should be paid, and overcomes any presumption of satis- faction which might otherwise arise; a legacy, therefore, in such cases will not be a satisfaction of a debt.* A majority of the English cases also hold that a direction in the will to pay debts alone will have the same effect as a direction to pay debts and legacies.* § 538. Legacy in Pursuance of Agreement or in Ex- press Payment. — The general doctrine as to a presump- tion of satisfaction, and the limitations upon it, described in the foregoing paragraphs, are based upon the bare facts of a debt and a legacy, upon their respective na- tures, and upon the relative situation of the testator and the creditor-legatee; and they assume that there is no express language in the will, accompanying the legacy, and declaring its object and effect, or no previous arrange- ment between the parties stamping a special character upon the testamentary gift. It is therefore well settled that if one person renders any services to another upon ' Chancey's Cage, 1 P. Wmg. 408, V. 0., held that ench a direction, 410; Richardson v. Grease, 3 Atk. though not safiicient as a matter of 64, 68; Jefferies v. Michell, .20 Beav. law absolutely to overcome the pre- 15; Hales v. Darell, 3 Beav. 324, 332; sumption, was to be regarded as a Hassell v. Hawkins, 4 Drew. 468; circumstance of great weight, tending Lord Chichester v. Coventry, L. R. 2 to show such an intention on the tes- H. L. 71. tator'a part. Pn Bradshaw v. Huish, » Hales T. Darell, 3 Beav. 324, 332; L. R. 43 Ch. Div. 262, this subject Jefferies v. Michell, 20 Beav. 15; Cole was again examined, and the decisions V. M^illard, 25 Beav. 568, 573; Charl- were reviewed, as the result of which ton V. West, 30 Beav. 124; Glover v. it was held that a direction to pay Hartcup, 34 Beav. 74; Pinchin v. debts is sufiBcfent, without a further Simms, 30 Beav. 119; Lord Chichester direction to pay legacies, to exclude V. Coventry, L. R. 2 H. L. 71; Daw- the presumption that a legacy equal son V. Dawson, L. R. 4 Bq. 504. The to or exceeding the debt is a satisfao- decisions are, however, not unanimous tion of the debt.] The effect of adi- on this point. In Edmunds v. Low, rection in the will to pay debts and 3 Kay & J. 318, 321, a direction to legacies, as stated in the text, is also pay debts alone was held by Page recognized by the American courts; Wood, V. C, not of itself suflBcient to Strong v. Williams, 12 Mass. 389, per rebut the general presumption of a Putnam, J.; and see other American satisfaction; but in Rowe v. Rowe, 2 cases cited in previous notes. De Gex & S. 297, 298, Knight Bruce, 1 Ed. JUB.— 4S § 539 EQUITY JURISPRUDKNCB. 722 an understanding or arrangement that he is to be re- munerated therefor by a testamentary benefit, and the party receiving the services afterwards makes a bequest or devise in his will in favor of the other, which is in its amount and value a reasonably sufficient compensation, such testamentary provision is a satisfaction, and the creditor party cannot enforce his demand as a debt by an action against the estate.' It would seem that, under these circumstances, the creditor party would not even have an election, since he had agreed to look to the tes- tamentary benefit alone for compensation. This result, however, must evidently depend upon the terms of the original agreement, in pursuance of which the services were rendered. Wherever, also, there being an existing indebtedness, it is agreed between the parties, either ex- pressly or impliedly, that it shall be paid by some benefit bestowed in the debtor's will, and a testamentary provis- ion is subsequently made in favor of the creditor, which he accepts, his demand will thereby be satisfied; he can- not both take the bequest and enforce his debt as a sub- sisting claim against the estate. In this case, however, the creditor clearly has an election either to accept the bequest in satisfaction of his pre-existing demand, or to renounce the gift and enforce the demand.* § 539. Debt Owing to a Child or Wife. — Where a father, or person standing in loco parentis, owes an ordi- nary debt, arising in any manner, to his child, or to the one occupying the position of child, and while the debt is subsisting gives a legacy to such child, or to the one so treated as a child, the case is governed in every respect, both with regard to the general presumption of a satis- faction and the facts which rebut the presumption, by the ' Eaton V. Benton, 2 Hill, 576, 578; Cow. 246; 4 Wend. 443. See also Williams v. Crary, 4 Wend. 443, 450; Eaton v. Benton. 2 Hill, 576; Clark v. Patterson v. Patterson, 13 Johns. 379; Bogardns, 12 Wend. 67; Van Biper v. Jacobson v. Lagrange, 3 Johns. 199; Van Kiper, 2 K. J. Eq. 1; Morris Morris v. Morris, 3 Houst. 568. v. Morris, 3 Houst. 668. » WUliams T. Crary, 5 Cow. 368; 8 ^23 CONCERNING SATISFACTION, § 540 same rules which apply to a debtor and creditor who are strangers to each other.* The same is true of a legacy ^ven by a husband to his wife when he is indebted to her by any ordinary species of indebtedness.* It should be carefully observed that the foregoing proposition only applies when the liability resting upon the father is that of an ordinary indebtedness. If the liability arises from an antecedent executory settlement or a covenant to settle property as a portion upon the child, and the father gives a subsequent legacy, a presumption of satisfaction thence arises which is favored by courts of equity, and is not overcome by slight features of diflFerence between the por- tion and the testamentary benefit.* § 540. Debt to Child Satisfied by Advancement. — In immediate connection with the satisfaction of indebted- ness to a child by a legacy, it is proper to present the contrasting doctrine concerning the satisfaction of debts to a child by a subsequent advancement during the pa- rent's lifetime. It is settled by the uniform current of . 3 Duer, 477; Yundt's Appeal, 13 Pa. St. 575; 53 Am. Dec. 496; Mussel- man's Estate, 5 Watts, 9; Kreider v. Boyer, 10 Watts, 54; Zeiter v. Zeiter, 4 Watts, 212; 28 Am. Deo. 698;. [Strotherv. Mitchell, 80 Va. 149; Mat- ter of Crawford, 113 N. Y. 568; Es- tate of Lyon, 70 Iowa, 375; Van, Houten v. Post, 32 N. J. Eq. 709.] As to how far entries made by the testator in his books of account, or other memoranda made by him, or his- oral declarations, are admissible as ev- idence to show such an intent on his. part, sea the same cases last above' cited. * Suisse V. Lowther, 2 Hare, 424, 434; Schofield v. Heap, 27 Beav. 93; Watson T. Watson, 33 Beav. 574; Nevin v. DrysdaleT, L. R. 4 Eq. 517. * In Holmes v. Holmes, 1 Brown Ch. 555, a legacy of five hundred pounds, to a son was held not satisfied by a, subsequent gift of the testator's stock in trade, worth.fifteen hundredpoundsv. but this case has been doubted and criticised by Lord Cottenham in Pynb V. Lockyer, 5 Mylne & C. 48; and see Grave v. Lord Salisbury, 1 Brown Ch. 425; Davys v. Boucher, 3 Youngo: & C. 411. A legacy of a certain sum will not be satisfied by an annual allowance made to the legatee by the testator during his lifetime: Watson V. Watson, 33 Beav. 574; nor by a. subsequent advancement depending, upon a contingency: Spinks v. Robins, 2 Atk. 491, 493; Cromptou v. Sale, 2 P. Wms. 553. While the rule that, the subsequent advancement must be- ejusdem generis with the legacy, in or» der to raise a presumption of satisfac^ § 561 EQUITY JURISPRUDENCE. 750 however, render it somewhat doubtful whether the rule can be accepted in all its generality.' § 561. Effect of a Codicil. — Wherever a legacy has been satisfied by a portion, advancement, or payment, in pursuance of the presumption against double portions, it will not be revived by a subsequent codicil which simply purports to confirm the will and all the bequests in it. A codicil republishes a will, and reaffirms all the existing testamentary dispositions which purport to be operative, but does not re-establish particular bequests which have been already revoked or adeemed by the testator.^ Nor can such a codicil be used as evidence tending to show that no satisfaction of the legacy was intended by the testator.' Since, however, the question whether a legacy has been satisfied by a portion or advancement depends finally upon the intention of the donor, even where the case is governed solely by the equitable presumption, it follows that a codicil subsequent to the advancement, spe- tion, has generally been enforced by ' 4 Eq. 504, a father had bequeathed to the American courts, it is still well his son B. a share of a residue; on the settled that the donor's intention will subsequent marriage of B., the father govern. If the intention that a sub- by agreement made him an annual al- sequent gift shall he in satisfaction of lowauce of £350; the legacy to B. a prior legacy is expressly declared by was held to be satisfied pro tanto by the testator, then it makes no differ- this yearly allowance, ence how unlike the two may be: a * Powya v. Mansfield, 3 Mylne & 0. conveyance of land, if the intention 359, 376, per Lord Cottenham; Paine were so expressed, would satisfy a v. Parsons, 14 Pick. 313; Langdon v. legacy of money; Gill's Estate, 1 Pars. Astor's Ex'rs, 16 N. Y. 9; Howze v. Cas. 139; Hanberger v. Root, 5 Pa. Mallett, 4 Jones Eq. 194; Miner v. St. 108; Swoope's Appeal, 27 Pa. St. Atherton's Ex'rs, 35 Pa. St. 528, 537. 58; Jones v. Mason, 5 Band. 577; 16 » Powys v. Mansfield, 3 Mylne & C. Am. Dec. 761; Moore v. Hilton, 12 359, 376; Roome v. Roome, 3 Atk. Leigh, 1; Dugan v. HoUins, 4 Md. Ch. 181; Montague v. Montague, 15 Beav. 439; Weston v. Johnson, 48 Ind. 1; 565, 571; Langdon v. Astor's Ex'rs, [VanHoutenv. Post, 33N. J. Eq. 344; 16 N. Y. 9, 37; Alsop's Appeal, 9 Simpson v. Simpson, 114 111. 603j Pa. St. 374; but see the remarks of Allen V. Allen, 13 S. 0. 512; 36 Am. Knight Bruce, L. J., in Ravensoroft v. Rep. 716.] In Jones v. Mason, SRand. Jones, 4 De Gex, J. & G. 224, 228. In 577, 16 Am. Deo. 761, parol evidence of this case, however, the court held that testator's declarations were held ad- a legacy given in the body of the will missible, although no presumption of had not been satisfied by a subsequent satisfaction arose because the two gifts payment. A codicil expressly con- were not ejnudem generis. firmed the will, but made no reference 'The necessity that the two to the legacy. The lord justice thought amounts should be ejuadem generis is that the codicil, though not decisive of hardly reconcilable with these latest the question, was a fact for cousidera- cases. In Dawson T. Dawson, L. B. tion. 751 CONCERNING SATISFACTION. §562 cifically referring to the legacy and treating it as still sub- sisting, will necessarily show that there was no intention to adeem it, and will thus defeat the presumption of a satisfaction.* § 562. Satisfaction of Leg^acies between Strangers. — If the testator is not the parent of the legatee, or does not stand to him in loco parentis, in general no presump- tion arises that a prior legacy is satisfied by a subsequent payment, or gift, or provision by way of portion or ad- vancement; the legatee is, in general, entitled to the legacy, in addition to the other benefit.* To this gen- eral proposition there is, however, one important excep- tion. If a legacy is given to a stranger for any particular purpose, and the testator subsequently makes a payment, advancement, or gift for the same purpose, such payment or advancement is presumed to be, and will operate as, a satisfaction of the legacy.' Parol evidence of the donor's ' Hopwood V. Hopwood, 22 Beav. 493; 3 Jnr., N. S., 549; and see In re Aird's Estate, L. B. 12 Ch. Div. 291. »Ex parte Pye, 18 Ves. 140, per Lord Eldon. This conclusion is either expressly or impliedly sustained by all the decisions heretofore cited which deal with the presumption as between parent-testator and child. ' This is simply the case of a testa- tor accomplishing during bis lifetime the special purpose or object which he had contemplated, in the provisions of his will, should be accomplished after his death: Monck v. Monck, I Ball & B. 303; Rosewell v. Bennett, 3 Atk. 77; Delieze v. Mann, 2 Brown Ch. 166, 519, 521; Trimmer v. Bayne, 7 Ves. 516; Wetherby v. Dixon, 19 Ves. 411; Parkhurst v. Howell, L. E. 6 Ch. 136; Sims v. Sims, 10 N. J. Eq. 158; Hine v. Hine, 39 Barb. 507; Langdon V. Astor's Ex'rs, 16 N. Y. 9; 3 Duer, 477; William's Appeal, 73 Pa. St. 249; Roberts v. Weatherford, 10 Ala. 72; Jones V. Mason, 5 Rand. 577; 16 Am. Dec. 761. In Monck v. Monck, 1 Ball & B. 303, Lord Chancellor Manners said, by way of illustrating this rule: " Suppose A bequeathed to his brother five thousand pounds to buy a house in Merrion Square, and that afterwards A bought one which he gave to his brother; are there two houses to be bought?" In Parkhurst v. Howell, L. R. 6 Ch. 136, a testator had given his wife a legacy of two hundred pounds, to be paid within ten days after his death; of this testamentary gift the wife was ignorant. During his last illness, a few days before his death, he gave his wife, at her request, two hundred pounds, so that she could have a sum of money under her con- trol upon his death. The executors claimed that this gift was a satisfac- tion of the legacy; but Lord Romilly, M. R., and the court of appeal held that there was no satisfaction intended. James, L. J., said (page 137): "The rule on this subject is, that where the testator stands neither within the nat- ural nor assumed relation »i a parent to the legatee, the legacy will be con- sidered as a bounty, and will not be adeemed by a subsequent advance- ment! unless the legacy is given for a particular purpose, and the testator advances money for the same pur- pose, or unless the intention otherwise legally appear of making the advance- ment with a view to ademption. I think this refers to a legacy given for a particular specific purpose, — as, for § 563 EQUITY JUKISPRUDENCE. 752 intention in making the payment or gift is admissible for the purpose of repelling or strengthening the presump- tion.' § 563. Satisfaction, when not Presumed, but Expressed. — Every case of satisfaction of a prior benefit or obliga- tion by a subsequent gift depends ultimately upon the intention of the donor in conferring the latter amount. If the natural or acquired relation of parent and child subsists between the giver and the beneficiary, the inten- tion of the donor is implied from the very fact of the twa benefits conferred while such relation exists, and need not be expressed either in the writing by which the sec- ond gift is bestowed, nor in any collateral declaration,, verbal or written. The rule concerning the equitable presumption of satisfaction, discussed in the foregoing paragraphs, is simply the statement of this result in a formal manner. In all other cases where the relation of parent and child does not exist, the intention of the donor to work a satisfaction of the prior benefit by a subsequent gift must be expressed, unless the case falls within the single special exception described in the last preceding, paragraph. It is a proposition generally, even if not universally, true, that, whatever be the relation between the two parties, whether that of strangers or otherwise, where a testator has conferred a legacy upon an individ- ual, he may afterwards during his own lifetime bestow a second gift of any nature upon the same beneficiary, with the intention that it shall be in satisfaction of the prior legacy; and if this intention is sufficiently expressed, and if «the second gift is consummated so that the lega- tee accepts it or receives and enjoys its benefits, the prior legacy will thereby be satisfied. As this effect depends wholly upon the expressed intention of the donor, the instance, a legacy given to purchase not appear to me to have been given an advowsoa for a son, which would for a particular purpose, within th'_ be adeemed, or perhaps it would be meaning of the rule, more correct to say satisfied, by the ' Debeze v. Mann, 2 Brown Ch. 166, father afterwards purchasing the ad- 519, 521;Trimmerv. Bayne, 7 Ves. 516j Towson for him. Here the legacy does Kicbarda v. Humphreys, 15 Pick. 135. 763 CONCERNING SATISFACTION. § 563 nature of the two gifts, their identities or differences, are entirely immaterial, — a legacy of money might thus be satisfied by the gift of a specific chattel or of a specific tract of land. As this doctrine is important, and as its treatment by text-writers and even by some courts has been confused, I shall quote the language in which it has been stated by one of the ablest modern equity judges. Lord Romilly: "If the testator stands in loco parentis, the presumption of equity being against double portions, the presumption of satisfaction arises at once, and in- cludes everything that the father gives which he intended to be in satisfaction of his previous promised benefit; and evidence is admissible for the purpose of rebutting or sus- taining the presumption against double portions, which in that case is in favor of satisfaction. In the case of a stranger, the presumption against double portions does not arise at all. It is wholly a question of construction, and no evidence is admissible either to sustain or rebut any presumption, for the reason that none, arises. In this latter case the question of satisfaction never arises except upon the express words of the donor, and whether the gifts said to be given in satisfaction are given by a father or a stranger is wholly immaterial, and it is solely a question whether the original benefactor intended that his benefit should be diminished or adeemed by benefits derived from any other source, and if so, what other source. • This may be shown pointedly in a case where the gifts supposed to be a satisfaction of the original gifts are gift^ of land. In the case of a parent, or person in loco parentis, land would be no [presumed] satisfaction of a gift. of money. But if the original gift was to a stranger, the doctrine of satisfaction becomes applicable according to the words of the original donor. There the question is, whether the words he has used, fairly interpreted, meant the gift of land as satisfaction of the benefits he has bequeathed or previously conveyed. It is therefore of paramount importance to consider in all cases whether 1 E* Joi. — 18 § 564 EQUITY JURISPRUDENCE. 754 the doctrine of presumption against double portions, or the doctrine of construction of instruments, is that which applies." * § 564, Rationale of the Rule in Such Cases. — It may be stated, therefore, as a general proposition, that wher- ever a testator has bequeathed a legacy to a child or to a stranger, and afterwards during his lifetime either ad- vances an amount of money or gives any other species of property, lands, chattels, or things in action to the same legatee, and the beneficiary in accepting the money or other property expressly assents, acknowledges, or agrees that the same shall be in partial or complete pay- ment or discharge of the prior bequest, then the legacy will be satisfied in whole or in part, as the case may be. Also, when a testator has in like manner bequeathed a pecuniary legacy, and afterwards pays to the legatee a sum of money which he expressly declares to be in dis- charge of the legacy, or gives to the legatee any other species of properly which he expressly declares shall bo in lieu of the legacy, and the legatee receives and enjoys the benefits of the payment or gift, the prior legacy is thereby^ satisfied.* Where a pecuniary legacy has been ' Cooper V. Cooper, L. R. 8 Ch. 813, payment ty the testator expressly iu 819, note, per Lord Romilly, M. R. satisfaction of a pecuniary legacy, a ''■ Hardingham v. Thomas, 2 Drew, second payment can be enforced from 35S; Richards v. Humphreys, 15 Pick, the executor The delivery by 1S3; Howze v. Mallett, 4 Jones Eq. the testator to the legatee of a spe- 194. cific thing bequeathed has always In these American cases the reasons been held to be a satftfaction or for the rule are so clearly explained, ademption of the legacy. Although and its operation so accurately de- the tenor of the will stands, yet the scribed, that I shall quote some pas- gift is ineffgctual, because the legatee, sages from the opinions. In Howze v. having got the thing intended for him, Mallett, 4 Jones Eq, 194, a grand- cannot get it again. In that respect^ father had bequeathed five hundred it must be the same with the pecuni- dollars to each of certain' grandchil- ary legacy. Express anticipated pay- dren. On the marriage of one of ment uy the testator must exclude a these granddaughters the testator claim for a. second payment of the paid over to her husband five hundred same sum, since the testator intended dollars, and took back a receipt by but one gift, and that he completed in which the husband acknowledged the his lifetime." In Richards v. Hum- payment of that sum, " to be deducted phreys, 15 Pick. 133, a testator had from the bequest to his wife." The bequeathed to his sister $500, and court held that the legacy to the wife afterwards gave her $466 to enable was thereby satisfied. Iluffin, J., said: her to purchase some land. She de- " The only question is, whether, after livered to him iu return a writing. 755 CONCERNING SATISFACTION. §564 ■given, and the testator afterwards during his lifetime ad- Tances a sum of money expressly in payment of the prior -by which she acknowledged the re- ceipt of the money, and that it was paid to her "in part of her right of ■dower in his last will," The evidence also showed that the testator ex- pressed a willingness to pay oflf the wliole legacy, and actually offered his -sister the balance, but she declined to .receive it. During all this time she had a husband, who died, however, ^before the testator. The legatee sued the execntors for the entire legacy. The court held that the testator's dec- larations were admissible in evidence, -tind that the receipt, in connection with these declarations, clearly showed his intent in advancing the $466, and that the legacy was thereby pro tanto satisfied. The reasons for this decision were set forth in an elaborate opinion, from which I make the following ex- tracts: "The ademption of a specific und of a general legacy depend upon -very different principles But when a general legacy is given, of a »ura of money out of the testator's general assets, without regard to any particular fund, intention is of the "very essence of ademption. The tes- tator, during his life, has the absolute power of disposition or revocation. If he pay a legacy in express terms dur- ing his lifetime, although the term ^'payment," "satisfaction," "release," •ox " discharge " be used, it is manifest that it will operate by way of ademp- tion, and can operate in no other way, inasmuch as a legacy during the life of the testator creates no obligation npon the testator or interest in the legatee which can be the subject of payment, release, or satisfaction. If, ■therefore, a testator, after having made his will containing a general be- ■qnest to a child or stranger, makes an advance, or does other acts which can be shown by express proof or reason- able presumption to have been in- tended by the testator as a satisfaction, •discharge, or substitute for the legacy ^iven, it shall be deemed in law to be ■an ademption of the legacy." The ■court then states and explains the -doctrine concerning the presumption -of satisfaction arising between a par- -ent and child, and proceeds: "From this view of the subject of the ademp- -tion of general legacies, it seems manifest that the ademption takes effect, not from the act of the legatee in releasing or receiving satisfaction of the legacy, but solely from the will and act of the testator in making such payment or satisfaction, or substitut- ing a different act of bounty which is shown by competent proof to be in- tended as such payment, satisfaction, or substitute. 'The question therefore is, whether, from the facts shown in the present case, it sufficiently ap- pears that the advance of money made by the testator in his lifetime to his sister was intended as a part payment and satisfaction of the legacy given to her by his will; if it was so intended, the law deems it an ademption pro tanto." The court then examined the receipt, and held that its language ac- knowledging payment of the money ' ' in part of her right of dower in his last will " must be interpreted as meaning to refer to the legacy given to her in his will, of which there could be no reasonable doubt; and also held that the testator's declarations were admissible in explanation of the am- biguity in the receipt, and in showing the testator's intention, and said, in conclusion; "As to the objection that at the time of the payment the plaintiff was a feme covert, we are of opinion that it does not vary the re- sult. The only ground is, that the plaintiff was at the time of the pay- ment under the disability of coverture. But we have seen that ademption de- pends solely on the will of the testa- tor, and not at all upon the ability of the party receiving to give a valid discharge. Had the money been paid to trustees or others for her benefit, without any act or consent of hers, if given expressly in lieu or in satisfac- tion of such legacy to her, it would have operated as an ademption. Had he purchased -a, house or other prop- erty in her name and for her benefit, with the like intent and purpose ex- pressed, it would have had the same effect. The circumstance of her dis- ability at the time of the payment, therefore, is not inconsistent with tha testator's intention in making it to advance and satisfy the legacy to her, nor does it affect the efficacy of such payment as an ademption." I 564 EQUITY JURISPRUDENCE. 766 gift, the legacy may properly be said to be " adeemed," but the result is the same whether the effect be termed " ademption " or " satisfaction," and in all the instances above described there is a satisfaction of the legacy. It is certainly not essential to a satisfaction, under any of the circumstances above mentioned, that the beneficiary should assent thereto so as to become a party to an agree- ment that the legacy shall be satisfied. A legacy, as long as the will is ambulatory, is completely under the control of the testator; a satisfaction takes place as the result of his intention and act; the consent and agreement of the legatee, in one of the cases described, is really efficacious, as it shows unequivocally the intent with which the tes- tator made his second gift. There is, unfortunately, some confusion upon this subject in the books, but the real distinction and the true rule are perfectly clear, and based upon universally accepted principles. It is not every expressed intention of a testator that a prior legacy shall be annulled, no matter how plain and unequivocal, but unaccompanied by any act of benefit to the *legatee, that can be operative. No such mere expression of an intent to annul a prior legacy can be operative unless it amounts to an actual revocation; and a general or pecuniary legacy can only be revoked either by an act which amounts to a cancellation, or by a written instrument executed with all the formalities required for a will. Satisfaction or ademption of a general legacy is not a revocation; it as- sumes that the original intention to confer the gift upon the legatee has not been changed; the testator simplv anticipates his own death by either paying to the legatee the very amount of the legacy or by bestowing upon him some other gift expressly in lieu thereof. Satisfaction or ademption, in the sense in which it is here discussed, re- quires, therefore, that some benefit should be conferred upon the legatee, in anticipation by way of payment of the amount of the legacy, or of substitution of something in place of it; but its operation and effect depend upon 757 CONCERNING SATISFACTION. § 565 the act and intention of the testator himself to make the prepayment or substitution, and not upon any active as- sent on the part of the legatee, so that he would be bound by an implied agreement to receive the present benefit instead of the future donation. All the English and American cases of real authority are agreed upon this view of the nature of the satisfaction of a prior legacy, whether it arises from the equitable presumption be- tween a parent testator and his child, or from the ex- pressed intent of the testator where there is no such presumption.* § 565. IV. Satisfaction of Portions by Subsequent Legacies or other Similar Provisions. — In pursuance of the same principle of opposition to double portions, the general rule is equally well settled, that where a portion is made payable under a settlement, or an instrument in the nature of a settlement, by a parent, or a person in loco parentis, and he afterwards makes a provision by a legacy in favor of the one entitled to the portion, a presumption arises that such provision is intended to be in complete or partial satisfaction of the portion, according as the amount of the legacy exceeds, is equal to, or is less than that of the prior portion. If the second provision is by a subsequent settlement instead of by will, it may also be a satisfaction; although the presumption does not seem to be as strong in that case as when the second gift is a legacy.* As the rules concerning this species of satisfac- ' The opinion in Richards v. Hum- Moulaon v. Moulson, 1 Brown Ch. 82j phreys, 15 Pick. 1,33, quoted in the Byde v. Byde, 2 Eden, 19; 1 Cox, 44; last note, states this view in the clear- Duke of Somerset v. Duchess of Som- est and strongest manner, and the erset, 1 Brown Ch. 309, note; Finch v. same doctrine is laid down in many Finch, 1 Ves. 534; Sparkes v. Cator, 3 other decisions cited in preceding Ves. 530; Pole v. Lord Somers, 6 Ves. notes. 309; Bengough v. V^alker, 15 Ves. 507; " Jeason v. ' Jesson, 2 Vern. 255; Campbell v. Campbell, L. R. 1 Eq. Palmer v. Newell, 20 Beav. 32, 40; 8 383; Lady Thynne v. Earl of Glengall. De Gex, M. & G. 74; Bruen v. Bruen, 2 H. L. Cas. 131; 1 Keen, 769; Chi- 2 Vern. 4.39; Hinohcliffe v. Hincholiffe, Chester v. Coventry, L. R. 2 H. L. 3 Ves. 516; Warren v. Warren, 1 71; Dawson v. Dawson, L. R. 4 Eq. Brown Ch. 305, note; Ackworth v. 504; Paget v. Greenfell, L. R. 6 Eq. Ackworth, 1 Brown Oh. .308, note; 7; McCarogher v. Whieldon, L. R. Copley V. Copley, 1 P. Wms. 147; 3 Eq. 236; In re Tussaud'a Estate, § 566 EQUITY JURISPEUDKNCE. 75S tion are substantially the same as those which govern the- satisfaction of prior legacies by subsequent provisions^ any detailed discussion of the subject is unnecessary, and I need only state the more important phases of the doc- trine without further illustration.' § 566. What Differences do not Defeat the Presump- tion. — Since courts of equity lean strongly against double- portions, as well when the first portion is given by a set- tlement or other agreement as when it is given by a. will, it is well settled that slight differences — and as ap- pears by some decisions even considerable differences- — between the prior portion and the subsequent legacy will not be sufiicient to rebut the presumption of the- legacy being intended as a satisfaction of the portion^ These differences may be either in the times of payment^ or in the trusts and limitations contained in the settle- ment and in the subsequent will, or in the nature and amount of the two gifts. The question always is, as. stated in a leading decision, whether the two provisions are substantially the same, and this question every judge- must decide for himself from a comparison of the two- instruments, under the light of surrounding circumstances.. Thus it has been recently held that the bequest of a resi- due, or a part of a residue, will be presumed to be a sat- isfaction, in whole or pro tanto, as the case may be, of a, prior portion given to the same beneficiary.^ L. E.. 9 Ch. Div. 363; Fairer v. Park, this species of satisfaction. See Gil- L. R. 3 Ch. Div. 309; Mayd v. Field, liam v. Chancellor, 43 Miss. 437f L. R. 3 Ch. Div. 587; Bethel v. Abra- 5 Am. Rep. 498; Guignardv. Mayrant, ham, L. R. 3 Ch. Div. 590, note; Rus- i Desaus. Eq. 614; Winn's Adra'r v. sell V. St. Aubyn, L. R. 2 Ch. Div. 398; v. Wier, 3 B. Mon. 648; Taylor v. Cooper V. Cooper, L. R. 8 Ch. 813. Lanier, 3 Murph. 98; 9 Am. Deo. 599. ' For example, tha rules determin- " Lady Thynne v. Earl of Glengall, ing when a person is im. loco parentis 2 H. L. Cas. 131; 1 Keen, 769; Hinch- are exactly the same in this kind of cliffe v. Hincholiffe, 3 Ves. 516;; satisfaction as in the one described Sparkes v. Cater, 3 Ves. 630; Weall nnder the preceding subdivision. As v. Rice, 2 Russ. & M. 251, 268; Cop- family settlements, and agreements in ley v. Copley, 1 P. Wms. 147; Russell the nature of such settlements, by v. St. Aubyn, L. R. 2 Ch. Div. 398;_ which parents bestow or covenant to Campbell v. Campbell, L. R. 1 Eq. bestow portions on their children, are 383; and see the cases cited in the next, quite rare in this country, it naturally following note. [See also Lawes v. follows that comparatively a very tew Lawes, L. R. 20 Ch. 81; Vickers v.. American decisions have dealt with Vickers, L. R. 37 Ch. Div. 525; Mon— 759 CONCERNING SATISFACTION. § 567 § 567. What Dififerences Defeat the Presumption. — While the foregoing general rule is universally admitted, it is equally well settled that the presumption may be overcome by intrinsic evidence, appearing in the pro- visions of the two instruments, of the donor's intention that the legacy shall be in addition to and not in satisfac- tion of the prior portion. The most recent English de- cisions of the highest authority have established the natural and exceedingly just doctrine that the presump- tion of a satisfaction is not so strong when the settlement or agreement to bestow a portion precedes the will, as it is when the will precedes the settlement or agreement. The conclusion necessarily follows from this doctrine, that differences or variations between the two provisions will avail to overcome and destroy the presumption of a satisfaction when a prior portion is given by settlement or agreement, and a subsequent legacy is conferred by a will, which would not be sufficient to produce the same result when a legacy is first given, and is followed by a settlement or advancement. The reasons for this dis- tinction are obvious and convincing. A prior legacy is whollj' under the control of the testator; it creates no obligation upon him, nor right or interest in the legatee; taga V. Earl of Sandwich, L. R. 32 articles innat be taken in eatisfaction Ch. Div. 525. In Lawes v. Lawes, L. of the sum due under the bond. In R. 20 Ch. 81, a father bound himself Montagu v. Earl of Sandwich, L. R. to pay his reputed son ten thousand 32 Ch. Div. 525, a father, by a mar- pounds on a certain day four years riage settlement, covenanted to pay his later. A few weeks before the day of second son an annuity of one thousand payment he took his son into partner- pounds a year, and to charge the an- ship, and it was provided in the arti- nuity on a sufficient part of his real cles that the capital should consist of estate. By his subsequent will, ho thirty-seven thousand five hundred devised his real estate, "subject to the pounds, to be brought in by the father, charges and encumbrances thereon," of which nineteen thousand pounds in strict settlement on his first son, and should be considered as belonging to after other legacies, gave his second the son. He also assigned to his son son legacies, the income of which the lease of the premises on which the would be considerably more than ono business was carried on. The father thousand pounds a year. It was held died without having paid any part of on appeal, reversing the decision of the ten thousand pounds secured by Pearsons, J., that the presumption the bond. It was held by the court against double portions applied, and of appeal that the rule against double that the words " subject to the charges portions applied, and that the benefit and encumbrances thereon," used ia given to the son under the partnership the will, did not rebut it.] §567 EQUITY JURISPRUDENCE. 760 it can be adeemed by the sole act and intent of the testa- tor without any consent of the legatee; and the presump- tion of an intent to adeem or satisfy it easily and naturally arises from his subsequent bounty. A prior settlement or agreement to bestow a portion, on the other hand, does create an obligation upon the donor, and a right and interest in the donee; the donor cannot discharge or satisfy it by any act or intent of his own, — the consent of the beneficiary is essential. The distinction between the two cases is clear, and inheres in their very nature. The conclusion reached by the recent English decisions is therefore natural and just; the presumption of an in- tended satisfaction is less strong and is more easily over- come when the settlement or agreement precedes the will than when the will precedes the settlement.' The settle- ' The snbject is fully examined and the conclusions stated in the text are clearly established by the house of lords, in the case of Chichester v. Cov- entry, L. K. 2 H. L. 71. See quotations from the opinions ante, in note under § 524; also Dawson T. Dawson, L. B. 4 Eq. 504; Paget v. Grenfell, L. R. 6 Eq. 7; McCarogher v. Whieldon, L. R. 3 Eq. 236; Lethbridge v. Thurlow, 15 Beav. 334; In re Tussaud's Estate, L. R. 9 Ch. Div. 363; Russell v. St. Aubyn, L. R. 2 Ch. Div. 398. As ex- amples of the differences between the two provisions which prevent the pre- sumption from arising, a legacy given upon a contingency ia not a presump- tive satisfaction of a prior certain por- tion: Bellasis v. Uthwatt, 1 Atk. 426, 428; Hanbury v. Hanbury, 2 Brown Ch. 352; and the legacy must be ejtis- dem generis with the prior portion, in order to create a presumption of satis- faction. A devise of land will not be a satisfaction of money given as a portion, nor a legacy of money a satis- faction for a settlement of land: Oood- fellow V. Burchett, 2 Vern. 298; Chaplin v. Chaplin, 3 P. Wms. 245; Bellasis v. Uthwatt, 1 Atk. 426, 428; Savile v. Savile, 2 Atk. 458; Ray v. Stanhope, 2 Ch. Rep. 159; Grave v. Earl of Salisbury, 1 Brown Ch. 425. A direction by the testator in the will to pay all debts is a circumstance very materially affecting the presumption, even if not completely overcoming it: Lord Chichester v. Coventry, L. R. 2 H. L. 71; Paget v. Grenfell, L. R. 6 Eq. 7; Dawson v. 'Dawson, L. R. 4 Eq. 504. No presumption could possibly arise where the second gift is expressly stated in the will, either not to be in satisfaction of the portion, or to be in addition to it: Burges v. Mawbey, 10 Ves. 319, 327; Douce v. Lady Torring- ton, 2 Mylne & K. 600. On the other hand, if the will should expressly de- clare that the gift therein bestowed, whatever be its nature or amount, was intended to be in satisfaction or in lieu of a portion which the testator had before settled or agreed to pay to the same donee, such -expressed intention would necessarily control, indepen- dently of any presumption, and the beneficiary would be put to an election between the two provisions. [The fact that two documents are contem- poraneous, so that both are present in the mind of a donor when he executes each of them, is a strong reason against holding a gift in one of them to be a satisfaction of an obligation under the other to pay a like sum. So held in Horlock V. Wiggins, L. R. 39 Ch. Div. 142, of an obligation contained in a separation deed, whereby the husband covenanted ,that his executors should pay a certain sum to his wife, and a like provision in his contemporaneoni will.] 761 CONCERNING SATISFACTION. § 568 ment or agreement to give a portion may sometimes con- tain a provision to this effect: that if the parent should afterwards, during his lifetime, make an advancement to the donee, such advancement should be a complete or partial satisfaction of the portion. If, instead of making a technical advancement, the parent should afterwards, by his will, leave a legacy of a specific sum or of a residue, the legacy given under such circumstances is held to be a compliance with the provision, and to operate as a satis- faction in full or in part of the portion.' § 568. Election by the Beneficiary. — Where the former provision is by will, the satisfaction takes place, as has been shown, without any assent of the legatee, from the act and intent of the testator alone, so that no election on the part of the beneficiary is either necessary or possible. The legacy, being ambulatory, creates no obligation upon the testator, nor any right or interest in the legatee. It is otherwise, however, when the prior provision is by a settlement or other agreement for the payment of a por- tion. Such settlement or agreement, being a valid and effective contract, creates a distinct legal obligation rest- ing upon the donor, and a distinct legal right and interest belonging to the donee. The two parties, if not strictly a debtor and a creditor, stand in a relation closely analogous to that of debtor and creditor. It is evident, therefore, that the obligation resting upon one party, and the right held by the other, cannot be discharged and annulled except by the co-operation of the one in whose favor the right exists. There can be in such a case no effectual and operative satisfaction of the prior portion by the act and intent of the donor, however clearly expressed, unless the beneficiary also consents and voluntarily accepts the subsequent provision as a substitute for or satisfaction of the prior obligation. It follows, therefore, that whenever > Onslow V. Michell, 18 Ves. 490; Papillon v. Papillon, 11 Sim. 642. A Leake v. Leake, 10 Ves. 489; Noel v. share of a parent's property, when he Lord Walsingham, 2 Sim. & St. 99; dies intestate, is not such an advance. Fazakerley r. Gillibrand, 6 Sim. 591; ment: Twiaden v. Twiaden, 9 Ves, 413, §§ 569, 570 EQUITY JURISPKUDKNCE. 762 a portion is secured by a settlement or by any other agreement, and a subsequent provision is made for the same beneficiary by a legacy or otherwise, which would either operate as a satisfaction in pursuance of the equi- table presumption, or which is expressly declared by the donor to be given in satisfaction, in each case the bene- ficiary has an election between the two provisions. He may, at his option, accept the subsequent legacy and sur- render the prior portion, or he may reject the substituted legacy and claim the prior portion. By electing to take either, he necessarily renounces his claim to the other.* § 569. V. Admissibility and Effect of Extrinsic Evi- dance. — There is certainly some conflict amopg the judi- cial decisions with respect to the question, How far may extrinsic and parol evidence of the donor's intention be admitted in these four cases of satisfaction? and the treat- ment of the subject by the text-writers has sometimes been confused, inaccurate, and unsatisfactory. If, how- ever, we form and constantly keep in mind a clear con- ception of the exact circumstances under which such evidence is ofi^ered in each particular case, and the real purpose for which it is offered, and give their proper force and effect to certain elementary general rules concerning the use of parol evidence in connection with written in- struments, the question will be freed from all its apparent difficulties, and will be found to be one of very easy solu- tion. § 570. General Principles Discussed and Explained. — A few preliminary observations will be useful to clear the ' The rules which determine how an see the other cases cited under the pre- election is made, either expressly or ceding paragraphs which deal with tha impliedly, who may elect, the effect satisfaction of portions by subsequent of an election, and the like, are the legacies. The same doctrine of elec- same in this particular instance as in tion, of course, applies to the case the cases which were considered in the where the prior obligation satisfied by preceding section upon election: Cop- a subsequent legacy is an ordinary ley V. Copley, 1 P. Wms. 147; Lady debt due from the testator; the cred- Thynne v. Earl of Glengall, 2 H. L. itor-legatee has an election whether to- Cas. 131; Finch v. Finch, 1 Ves. 534; accept the testamentary gift or to en- Hincholiffe v. Hinchcliffe, 3 Ves. 516; force his prior demand. Pole V. Lord Somers, 6 Vea. 309; and 763 CONCERNING SATISFACTION. § STO ground from all irrelevant matter, to describe the real condition of circumstances from -which the questions^ arise, and to explain the exact nature of these question* themselves which are to be examined. In the first place, it is evident that the same principles must apply to and govern the admissibility of evidence in all of the four in- stances of satisfaction heretofore discussed, namely, the- satisfaction of debts by subsequent legacies, of legacies by subsequent legacies, of legacies by subsequent advances or portions, and of portions by subsequent legacies. Each of these four instances, although they differ somewhat among themselves with respect to their external form^ depends upon the same general principle of equity; in each instance the satisfaction, so far as it falls under the- control of equitable rules, arises from the one equitable- doctrine of a presumption that the donor did not intend to confer double benefits upon the single recipient of hiV bounty. How far extrinsic evidence is admissible affect- ing this intention, showing it-either 'to exist or not to exist, must plainly be regulated by the same rules in all of these four instances. In the second place, it is equally clear that in all of these four instances of satisfaction which arise from equitable doctrines, the extrinsic evi- dence of the donor's intention must refer alone to the- second gift, whatever be its form and nature.* In every case the first benefit which is claimed to have been satis- fied is either a pure gift, a legacy contained in a will, and of course still under the power of the donor; or it is a definite obligation, — either a portion secured by a settlement or some other similar written agreement, or a debt which ' The correctneas of this proposition of the testator's intent -was offered, is expressly admitted by Lord Chan- With respect to this proposed evidence- cellor Sugden in the celebrated case of Lord Chancellor Sngdea said (p. 133): Hall V. Hill, 1 Dru. & War. 94, 133. "If I admit parol evidence, it must be- A father had created a certain obliga- in connection with the will; it has noth- tion in favor of his son-in-law and ing to do with the debt. The debt was. daughter by a marriage contract; he contracted before the will was made^ afterwards gave the daughter a legacy, and the declarations of the testator, and it was claimed that the legacy which have been offered in evidence, was given in satisfaction of the prior cannot apply to the debt, but must b» contract obligation. Parol evidence used in reference to the will only, " § 570 EQUITY JUKISPEUDENCE. 764 may either be evidenced by a written instrument or may have been contracted verbally. Whatever be its external form, its nature is fixed and settled, and is always deter- mined by the terms of the will in which it is given, or of the obligation by which it is created. In some special cases a resort may be had to the express terms of the will or other instrument, which may refer to a subsequent benefit expected to be conferred by way of substitution; but extrinsic evidence can never be necessary in direct application to the first benefit for the purpose of showing whether or not it has been satisfied. The intent to sat- isfy must, from the very nature of the case, be an element connected with the subsequent benefit; and so far as ex- trinsic evidence is admissible to disclose that intention, it must relate exclusively to such subsequent benefit, whether legacy, portion, advancement, gift, or payment. It should be remembered, however, that evidence of the surround- ing circumstances, of the situation of the subject-matter, of the situation and relations of the parties, and the like, is always admissible to throw light upon and thus explain the nature of every writing or other transaction, however formal; and such evidence is therefore admissible in rela- tion to the first benefit, the will, settlement, agreement, or debt, as well as for the purpose of describing the effect and operation of the second donation. In the third place, it is clear that the subsequent benefit, claimed to be in satisfaction of the prior one, may be conferred either by a written instrument or verbally without any accompany- ing writing. Where it is a legacy or a portion, it must necessarily assume a written form; where it is an advance- ment, gift, or pecuniary payment merely, the donor's act and intention may be contained in a written instrument, or the entire transaction on the donor's part may be wholly verbal, — may wholly consist of his external acts and accompanying words. This difference between a written and a verbal form of bestowing the second bene- fit gives rise to a distinction concerning the admissibility 765 CONCKRNING SATISFACTION. § 570 of extrinsic evidence entirely unconnected with the essen- tial nature of the transaction; that is, with the equitable presumption of .a satisfaction, and depending solely upon the difference of external form. Whenever the subse- quent benefit is conferred by means of a written instrument on the part of the donor, — a will, settlement, agreement, assignment, conveyance, or other writing, — it is, of course^ subject to the universal rule, that, as between the parties thereto and their successors in interest, a written instru- ment cannot be altered, modified, added to, or subtracted from by extrinsic parol evidence 'directly showing the intention with which the writing was executed. The only extrinsic evidence generally admissible is that which dis- closes the circumstances surrounding the execution of the instrument, the nature and situation of the subject-matter, the relations of the parties, and the like, and which thus places the court in the very position which the parties occupied when the writing was executed. This rule ob- viously has no particular connection with the equitable presumption of satisfaction, but it applies to all written instruments of donation from which a satisfaction of a prior benefit may arise. Parol extrinsic evidence tend- ing to show the donor's intention that a satisfaction should or should not be wrought by his second gift, so far as it would violate this general rule, cannot, of course, be admitted. On the other hand, wherever the second benefit is wholly verbal, where it consists of an advance- ment, or payment, or gift made by the donor's acts and words alone, without any accompanying writing on his part, the transaction is clearly not subject to any such restrictive rule concerning the admissibility of extrinsic evidence; there is nothing in the policy of the law which forbids a resort to such evidence for the purpose of de- scribing all the acts and declarations of the donor, so far at least as they formed a part of the transaction in and by which the gift was bestowed. This distinction between the two cases of a written and a verbal gift, although self- § 571 EQUITY JURISPKUDENCB. 766 evident, has sometimes been overlooked in the discussiona of the question as to the admissibility of extrinsic evi- dence; and it must be employed to explain and limit some of the general statements contained in judicial opinions. Having thus described the several conditions of circumstances from which the questions as to the ad- mission of extrinsic evidence can arise, I shall proceed to state and discuss the questions themselves. What these questions are is now very clear. When may extrinsic parol evidence be admitted, and when may it not, in relation to the second or subsequent benefit, to show the donor's inten- tion, either that it should be, or should not be, in satisfac- tion of a prior gift bestowed or prior obligation conferred upon the same beneficiary? The two distinct cases, before mentioned, in which these questions can arise will be examined separately, namely: 1. Where the second or subsequent benefit is conferred by means of a written in- strument on the part of the donor; and 2. Where it is conferred verbally, without any writing by the donor.' § 571. The Subsequent Benefit Given by a Writing. — It is plain that all possible cases of a written form of con- ferring the second benefit by the donor may be reduced to the following: 1. Where the written instrument states in express terms the donor's intention that the benefit therein contained is or is not bestowed by him in lieu of or in satisfaction for the prior gift or obligation; and 2. Where the writing is wholly silent with respect to any such intention, and is merely an instrument of donation, assignment, or transfer; in other words, where it is a ' [In some of the Uniteii States stat- grants are made as advancements, it ntes have been passed on this subject, expressed in the gift or grant to be so which require that the testator's in- made, or if charged in writing by the tention should be evidenced by a writ- decedent as an advancement, or ac- ing, in order that the advancement knowledged in writing as such by the should have the effect of an ademption, child or other successor or heir." Sim- In California, the Civil Code (sec. 1351) ilar statutes have been enacted in lUi- provides that " advancements or gifts nois: Rev. Stats. 1874, c. 39, sec. 7; are not to be taken as ademptions of Kurd's Stats. 1887, p. 505, sees. 4-7; general legacies, unless such intention Wilkinson v. Thomas, 128 111. 363; is expressed by the testator in writing"; Wallace v. Reddick, Hi) 111. 151; and in section 1397 it is provided, in Simpson v. Simpson, il4 111. 603.] cases of intestacy: "All gifts and 767 CONCERNING SATISFACTION. § 572 will giving a legacy simpliciter, or a written agreement simply bestowing or covenanting to bestow a portion, or a writing simply showing an advancement or payment of money, or an instrument simply operating as an assign- ment, conveyance, or transfer of chattels, lands, things in action, or other property, in either case without any addi- tional language indicating an intention that the benefit thus given should or should not be in lieu of, or in substi- tution for, or in satisfaction of the prior gift or obligation. JFinally, this second form of the writing may occur be- tween two different classes of persons having different legal relations towards each other, namely, the donor may be the parent of, or stand in loco parentis to, the beneficiary, 60 that the equitable presumption of an intent to satisfy will arise from the naked fact of the second gift; or the ■donor may stand in the legal relation of a stranger to the beneficiary, so that no equitable presumption of a satis- faction arises from the transaction. These three classes comprise all the instances of a second benefit conferred by a writing. § 572. The Writing Expressly States the Donor's In- tention. — The first of these three cases plainly requires no discussion. It may occur either where the donor stands in the parental relation towards his beneficiary, so that the equitable presumption of a satisfaction would other- wise have arisen, or where he stands in the relation of a stranger to his beneficiary, so that no sucli presumption would arise. Under either of these circumstances, if the donor inserts into the written instrument of donation an express declaration of his intention that the benefit thereby bestowed should be in substitution for or in satis- faction of the prior gift or obligation, or on the other hand, that it should be cumulative, and in addition to the prior benefit, such express statement of the intention is conclu- sive, and must control. There is no place, under these circumstances, for anypresumption; all necessity and even opportunity for the operation of presumptions is obviated. §572 EQUITY JURISPRUDENCE. 768 No extrinsic parol evidence of the donor's declarations, nor other parol evidence showing his intention, is admis- sible. The only efifect of such evidence would be to alter, modify, vary, or add to the express terras of a written in- strument, in direct violation of the general rule applicabl© to all similar cases. The written instrument, with its ex- press statement of the donor's intention, must speak for itself, under the light, however, thrown upon it by the proof of the circumstances in which it was executed, which proof is, of course, always proper.' That no other kind of ' In Kirk ▼. Eddowea, 3 Hare, 509, 616, 517, Wigram, V. C, said, on this particular point: "Where similar questions have arisen upon gifts given by two distinct instruments, the law as to the admissibility of parol evi- dence ha.s, I believe, been long since settled. In such case, the rule of law applies, that written instruments can- not be added to or explained by parol evidence Again, if the second instrument, in terms, adeems the gift by the first, it could not, I apprehend, be contended that it would not pro- duce its intended effect; a party claim- ing under and having taken the bene- fit of it could not claim that bene- fit, and at the same time refuse to give full effect to it." This rule would plainly apply to every form of written donation made between parties standing towards each other in every legal relation. If the prior benefit was a pecuniary legacy, and the testator should in the same instrument give exactly the same sum of money, stated to be given for exactly the same motives, but ex- pressly declared in its written terms to be additional to the former legacy; or if the testator should in a subse- quent codicil bequeath to the same person a chattel or thing in action, or devise to him a piece of land, and should expressly declare that this second benefit was in lieu of or in substitution for the prior legacy, — in either case there could be no extrinsic evidence for the purpose of altering, adding to, or explaining this un- equivocal expression of the testator's intention in writing. Also, if the prior liability was a certain, fixed, legal obligation owing to a child, to any family relative, er to a stranger, in the form of an ordinary debt, a covenant, a settlement securing th» payment of a portion, and the like, and a subsequent bequest should b» stated in express terms either to ha in addition to such prior obligation, or to be in substitution for or satisfaction of the same, no extrinsic evidence of the testator's intention could be ad- mitted; in the one case the beneficiary could both claim the gift conferred by the will, and also enforce the obliga- tion against the estate, while in the other case he would be compelled ta elect between the two. Finally, if the prior benefit was a legacy bestowed either upon a child or upon a stranger, and the testator should subsequently, during his lifetime, pay or advance a. sum of money, or transfer any prop- erty to the legatee, which payment, advance, or transfer was accomplished by means of a writing expressly declar- ing the intent of the testator, either to thereby satisfy and pay off the legacy, or to bestow an additional and separate gift, the written expression of intention in either case would be final and conclusive. These proposi- tions may appear to be self-evident; tut they are important, in order to. present the real questions in their simplicity. [In Low v. Low, 77 Me. 38, a testator in his lifetime gave to a son a sum of money, and the son exe- cuted to him a writing releasing and discharging him and his representa- tives from paying " the legacy named in said will, or any sum of money or property under any other will of my said father." It was held that thera was an ademption of all legacies_in tho will to the son.] 769 CONCERNING SATISFACTION. § 57S extrinsic evidence can be resorted to in such a case for the purpose of showing the donor's intention, and of either producing or preventing a satisfaction, is a propositioii. too clear for discussion. § 573. The Writing Silent as to the Donor's Intention^ and No Presumption Arises from It. — In the second class. of instances, as above mentioned, the written instrument of donation by which the second benefit is conferred is wholly silent with respect to any intention on the part of the donor of satisfying the prior gift or obligation; it i» a mere instrument of donation, a legacy given simpUcitery a contract simply giving a portion, a simple advancement or payment of money, or assignment of property evi- denced by a writing from the donor. The relation be- tween the donor and his beneficiary, however, is of such a kind that no equitable presumption of a satisfaction arises from this subsequent benefit. With respect to this class, there are English decisions, at one time regarded as authoritative, and as settling the rule, which laid down, the broad doctrine that, although no presumption of a satisfaction arose, and no intention was expressed in the written instrument, still the intention with which th& second legacy, portion, advancement, or other gift wa» bestowed might always be proved by extrinsic parol evi- dence, even by the verbal declarations of the donor.' ' These cases in fact held that ex- child by his will, it is pHmo fade to^ trinsic evidence was alike admissible be presumed that he does not mean whether a presumption of satisfaction a double provision; but this presump- did or did not arise from the second tion may be repelled or fortified by gift, whenever the instrument of do- intrinsic evidence derived from the nation did not in express terms de- nature of the two provisions, or by clare the donor's intention one way or extrinsic evidence. Where the two the other: Weall v. Rice, 2 Euss. & provisions are of the same nature, or M. 251, 263; Booker v. Allen, 2 Russ. there are but slight diflferences, the & M. 270; Lloyd v. Harvey, 2 Rusa. two instruments afford intrinsic evi- & M. 310, 316; Lord Glengall v. Bar- dence against a, double provision, nard, 1 Keen, 769. In the leading Where the two provisions are of a- case of Weall v. Rice, 2 Russ. & M. different nature, the two instruments 251, 263, Sir John Leach, M. R., said: afford intrinsic, evidence in favor of a. " The rule of the court is, as in reason double provision. Sut in either case I think it ought to be, that if a father extrinsic evidence is admissible of the reat makes a provision for a child by set- intention of the testator." In this state- tlement on her marriage, and after- ment of the rule, the court expressly wards makes a provision for the same repudiated any distinctioa betweeQ. 1 EQ. Job.— 49 § 574 EQUITY JUEISPRUDKNCK. 770 The authority of these decisions has, however, been more than questioned, and the broad doctrine which they lay down has been very much limited by the more recent English cases. In the class of instances now under con- sideration, where the instrument bestowing the second donation is wholly silent with respect to any intention of satisfying the prior benefit, and where no equitable pre- sumption of a satisfaction arises on the face of the instru- ment from the nature of the gift, the doctrine, as settled by the more recent English cases, excludes all extrinsic €vidence of the donor's declarations, and all similar evi- dence directly showing his intention, on the ground that such evidence would alter or add to the terms of the writing. This conclusion, and the judicial opinions by which it is sustained, are fully explained in the next suc- ceeding paragraph/ § 574. The Writing Silent as to Donor's Intention, but A Presumption of Satisfaction Arises from It. — In the third class of instances, as above described, the written instrument of donation, by which the second benefit is 'the case where the prima facie pre- made. The court held that no pre- flumption agaiuat double portions and sumption of a satisfaction of a prior therefore of a satisfaction arises, and settlement arose from the terms of a "that where no such presumption exists; subsequent will; but admitted parol and declares that extrinsic evidence evidence of the testator's declarations of the donor's intention is admissible showing an intention that the legacy in both. The actual decision upon the should operate as a satisfaction, and facts of this case may have been cor- made a decree in accordance with such rect; the subsequent criticism has evidence. In Earl of Glengall v. Bar- rather been directed to this broad nard, 1 Keen, 769, 794, Lord Langdale, statement of the rule. In Booker v. M. R. , quoted and approved the gen- Allen, 2 Russ. & M. 270, a testator eral rule as laid down by Sir John had given a legacy to a young lady Leach in Weall t. Rice, 2 Russ. & M. towards whom he stood in loco parentia; 251, 263. he subsequently made a settlement The authority of these decisions by upon her; but the provisions of the Sir John Leach seems to have been will and of the settlement were so en- recognized and approved by several tirely different that the court held American cases, which seem to lay no presumption of a satisfaction could down the broad rule admitting the iihereby arise. Nevertheless, Sir John evidence both when a presumption does Leach admitted parol evidence of the and does not arise. See the American donor's declarations, for the purpose cases cited near the end of the first note of showing his intention that the prior under the next following paragraph, legacy should be satisfied by the sub- ' See Kirk v. Eddowea, 3 Hare, 509; sequent settlement, and upon such Hall v. Hill, I Dru. & War. 94; Hunt evidence decreed in favor of a satis- v. Beach, 5 Madd. 351, 360; Lee v. faction. In Lloyd v. Harvey, 2 Russ. Pain, 4 Hare, 201; Palmer v. Kewell, & M. 310, 316, a similar decision was 20 Bear. SZ 771 CONCERNING SATISFACTION, § 574 conferred, is wholly silent with respect to any expressed intention on the part of the donor to satisfy the prior gift or obligation; but still the relations between the donor and his beneficiary, and the two benefits themselves, are of such a nature that an equitable presumption of a satis- faction arises on the very face of the subsequent instrument. In this class of cases it is well settled that extrinsic evi- dence of the donor's intention, and even of his declara- tions, is admissible either to sustain and fortify, or on the other hand to rebut and destroy, the presumption which would arise and which would otherwise control; and, ac- cording to the modern English decisions, this is the only class of cases where a second benefit is conferred by a written instrument, which admit of parol evidence di- rectly tending to show the donor's intention. The follow- ing is a statement of the rule as laid down by Lord St. Leonards, when lord chancellor of Ireland: "If, by the construction of the instruments the conclusion is arrived at by the court that the second gift was or was not a satisfac- tion of the first, then parol evidence could not be admitted to show the intention. But if by the construction no such conclusion was arrived at, and the gift was of such a na- ture that a presumption arose according to the rule of equity that the latter gift was intended to be in satisfac- tion of the former, then parol evidence would be admissi- ble either to fortify or to rebut such presumption." The same rule, in slightly different language, was thus formu- lated by Vice-Chancellor Wigram: "Where the second instrument does in terms adeem the gift by the first, it will operate accordingly. Where the second gift does not ex- pressly adeem the gift or satisfy the obligation by the first, iDut the case is of such a description that, from the rela- tion between the author of the instrument and those claim- ing under it, the law raises a presumption of ademption or of satisfaction, then evidence is admissible to show that such presumption is not in accordance with the intention of the author of the gift. And where evidence is admis- §574- EQUITY JURISPRUDENCE. 72 sible for that purpose, counter-evidence is also admissible. The evidence is admissible to ascertain whether the pre- sumption is well or ill founded."' The result of the- ' The two leading authorities in sup- port of this restricted doctrine, as stated in the text, are Hall v. Hill, 1 Dm. & War. 94, and Kirk v. Eddowes, 3 Hare, 509. In Hall v. Hill, 1 Dru. & War. 9i, a father, on the marriage of his daughter, gave his bond to her hus- band for the payment of eight hundred pounds in installments, upon certain trusts; and afterwards gave his daugh- ter a legacy out and out of eight hun- dred pounds, and died leaving his will containing the bequest. Lord Chancel- lor Sugden held, — 1. That from thepe- culiar nature of the prior settlement on the husband and daughter, the subse- quent legacy to the daughter did not of itself operate as a satisfaction; that the case did not fall under the equitable pre- sumption against double portions. Pa- rol evidence was offered of the testa- tor's declarations, which, if admissible, would have shown his intention that the prior settlement should be satis- fied by the legacy; and the question chiefly discussed was in relation to the admission of this evidence: Pages 111-133. Sir E. Sugden's opinion con- tains an exhaustive review of the cases. After referring to certain decisions upon the general subject of parol evi- dence in connection with writings, he takes up those which relate to the sat- isfaction of legacies by subsequent advancements, and of portions by sub- sequent legacies, and divides them into three classes. In the first class there was first a legacy and then an advance- ment, so that a presumption of satis- faction arose, and parol evidence was held admissible, either to repel or to confirm this presumption; since such evidence would not contradict nor alter the terms of either instrument. In this class he places the cases of Rose- well V. Bennett, 3 Atk. 77; Bigglestou V. Grubb, 2 Atk. 48; Monck v. Lord Monck, 1 Ball & B. 298; Pole v. Lord Somers, 6 Ves. ii.09; Freemantle v. Bankes, 6 Yes, 79. In the second class the circumstances were the same, and parol evidence was held admissible to show that the advancement was not intended to be a satisfaction, but that the legatee should have both amounts; for such evidence merely rebuts the prima facie presumption. To this class belong Shudall v. Jekyll, 2 Atk. 516^ Debeze v. Mann, 2 Brown Ch. 165; 1 Cox, 346; Trimmer v. Bayne, 7 Ves. 508. In the third class he placed cer- tain cases where a prior portion or debt had been followed by a legacy, or where- a prior legacy had been followed by a second legacy, but without creating any prima facie presumption of a sat* isf action, namely: Fowler v. Fowler, 3 P. Wms. 353; Wallace v. Pomfret, 11 Ves. 542; Wilmot v. Woodhouse, 4 Brown Ch. 227; Coote v. Boyd, 2- Brown Ch. 521; Osborne v. Duke of Leeds, 5 Ves. 369; Hurst v. Beach, 5 Madd. 351 ; Guy v. Sharp, 1 Mylne &- K. 589; and the three cases of Weall V. Rice, 2 E.USS. & M. 251; Booker v_ Allen, 2 Euss. & M. 270; and Lloyd v. Harvey, 2 Russ. & M. 310,— all decid- ed by Sir John Leach. Lord Chancel- lor Sugden strongly disapproved of the decisions by Sir John Leach in theae- three last-named cases, but approved and adopted the rule as laid down by the same judge in Hurst v. Beach, 5- Madd. 351. The decision in this case (Hurst V. Beach) had confined the ad- missibility of parol evidence showing the donor's intention to those in- stances in which, according to equita- ble doctrines, a presumption of satis- faction arises from the mere fact of the second provision being made; such evidence is then admitted either to- rebut the presumption or to strengthen and confirm it. This doctrine Lord Chancellor Sugden very stronglv approved, and made it the basis of his decision. As the legacy of the- testator's daughter, under the circum- stances, raised no presumption that he intended thereby to satisfy the- prior portion settled upon her hus- band and herself, parol evidence of such an intention could not be re- ceived. He concluded as follows (p. 133): "If I admit parol evidence it. must be in connection with the will; it has nothing to do with the debt. The debt was contracted before the- will was made; and the declarations, of the testator which have been offered in evidence cannot apply to the debt, but must be used in reference to th» 773 CONCERNING SATISFACTION. §574 modern authorities — certainly of the modern English -authorities — is clearly as follows: In the single case of -will only. I am now asked to insert in the will a declaration by the testa- tor, which I do not find in it, namely, that he means the legacy to be a satis- faction of the debt. I am of opinion that I can do no such thing. If I ■were to admit the evidence, it would be, not with a view to extrinsic cir- xsumstances, but to the construction of the will itself." In Kirk v. Eddowea, 3 Hare, 509, Wigram, V. ■C., said (p. 516): "Where the ques- tions have arisen upon gifts given by two distinct instruments, the law «s to the admissibility of parol evi- dence has, I believe, been long settled. In such cases the rule of law applies, 4:hat written instruments cannot be added to or explained by parol evi- ■dence; and therefore, unless the second instrument, in express terms -or by presumption of law, adeems the ^ift made by the instrument of earlier date, no question can arise; both in- struments will take effect. Again, if the second instrument in terms adeems the gift by the first, it could not be contended that it would not produce its intended effect. If, how- «ver, the second instrument do not in terms adeem the first, but the case is of that class in which, from the re- lations between the author of the instrument and the party claiming vnder it (as in the actual or assumed relation of parent and child), or on •other grounds, the law raises a pre- sumption that the second instrument was an ademption of the gift by the instrument of earlier date, then evi- -dence may be gone into to show that such presumption is not in accord- ance with the intention of the author of the gift; and where evidence is admissible for that purpose, counter- •evidence is also admissible. In such cases, the evidence is not admitted on either side for the purpose of proving, in the first instance, with what intent either writing was made; but for the purpose only of ascertain- ing whetlier the presumption which the iaw Ima raised he well or ill founded. For this it will be sufficient to refer to the case of Hurst v. Beach, 5 Madd. 351, and to the cases cited in the elab- orate judgment of the lord chancel- lor of Ireland in the late case of Hall V. Hill, I Dru. & War. 94, and to Har- topp V. Hartopp, 17 Ves. 192, Powys V. Mansfield, 8 Mylne & C. 359, and numerous otlier cases." The following American cases also involve the doctrine discussed in the text. In some of them the rule seems to be laid down in the same general terms, as though applicable alike where the subsequent benefit is con- ferred by a writing^ and where it is verbal; while in several of them the broad doctrine of Weall v. Rice, 2 Kuss. & M. 251, seems to be followed, or at least no distinction is drawn between the arising or not arising of a presumption: GiUiam v. Chancellor, 43 Miss. 437: 5 Am. Rep. 498; Lang- don V. Aster's Ex'rs, 16 N. Y. 9, re- versing 3 Duer, 477; Hine v. Hine, 39 Barb. 507; Paine v. Parsons, 14 Pick. 313; Gill's Estate, 1 Pars. Cas. 139: Zeigler v. Eckert, 6 Pa. St. 13, 18j 47 Am. Dec. 428; Sims v. Siins, 10 N. J. Eq. 158, 162, 163; Jones v. Ma- son, 5 Rand. 577; 16 Am. Dec. 761; Clendeuning v. Clymer, 17 Iiid. 155; Timberlake v. Parrish's Ex'rs, 5 Dana, 346; Parka v. Parks, 19 Md. 323; Ce- cil V. Cecil, 20 Md. 153; Lawson's Ap- peal, 23 Pa. St. 85. In the recent case of Gilliam V. Chancellor, 43 Miss. 437, 5 Am. Rep. 498,^ a husband had settled five thousand dollars on his wife by a niarriai^e contract, and left her a legacy of five thousand dollars. The court (pp. 453-456) discussed the question as to the admissibility of evi- dence with some fullness, citing the modern English cases, and stating the rule which they establish; hut held that it was not necessary to decide the question, since the testator's in- tention was clear, from a construction of his will, that the legacy was to be in lieu of the sum settled by the mar- riage contract. Langdon v. Astor'a Ex'rs, 16 N. Y. 9, is by far the most instructive ease on the doctrine of sat- isfaction to be found in the American reports. The testator had given a large legacy; subsequently he gave, by a written assignment, accompanied by entries in his books of account, and by verbal declarations, certain stocks and other securities. The court laid down § 574 EQUITY JUKISPKUDENCB. 774 a subsequent benefit conferred by a written instrument which does not in terms express the author's intention that the benefit thus given shall or shall not be in ademption or satisfaction of the prior gift or obligation, but from which, by the operation of equitable doctrines, there arises the prima facie presumption that such an ademption or satisfaction was intended by the author, — in this single case extrinsic parol evidence of the donor's actual intention may be resorted to, and may be used either to rebut and destroy the presumption, or to con- firm, support, and establish it. The meaning is, not that one of the parties may produce evidence tending to rebut the presumption, and when such testimony has been re- ceived, the opposing party may, by way of answer, in- troduce contrary evidence tending to sustain the presump- tion: all the decisions show the true meaning to be that the respective parties may, in the first instance, and to support their own contention, introduce orginal evidence which tends either to overthrow or to support the pre- sumption; and this evidence maybe of the donor's decla- rations. The evidence thus admitted in pursuance of this rule does not in fact violate the general doctrine which forbids a resort to parol evidence for the purpose of adding to, taking from, or modifying the terms of a written instrument. Primarily, the second instrument of the rule in conformity with that con- on a legacy of residue. In Parks r. tained in the text, holding that all Parka, 19 Md. 323, Cecil v. Cecil, 20 declarations of the testator forming a Md. 153, and Lawson's Appeal, 23 Pa. part of the transaction may be proved; St. 85, the question arose concerning but expressed a strong doubt, and per- advancements made, not by a testator haps even a decided opinion, against to his legatee, but by an intestate to the admission of subsequent declara- his children. In each case it was held tions. In Clendenning v. Cly mer, 17 that evidence of the donor's deolara- Ind. 155, the court, after admitting ticns made at the time of the trausao- and applying the rule as to parol evi- tion of the donee's subsequent ad- dence for the purpose of rebutting or missions, and of other facts and cir- eustaining the presumption, held that cumstances showing the intent, was the doctrine of presumed satisfaction admissible for the purpose of showing does not extend to a legacy of residue, whether the gift was an advancement and therefore extrinsic evidence is not on the child's share of the father's es- admissible to show that an advance- tate, or was an additional donation ment by the testator was to apply and gratuity. 775 CONCERNING SATISFACTION. § 574 donation, if read literally, and enforced according to its very terms, would necessarily confer a distinct and sepa- rate benefit, independent of and in addition to the pre- vious gift or obligation; but from certain considerations of policy, an equitable presumption has been created which modifies the terms of this instrument, which pre- vents them from operating according to their literal im- port. Now, the parol evidence which is permitted to rebut and remove this presumption simply restores the instrument to its literal meaning; instead of contradict- ing, or altering, or taking from the terms of that instru- ment, the evidence in fact only renders the very written terms effective and obligatory according to their simple and literal signification. On the other hand, when the extrinsic evidence is admitted to strengthen and con- firm the presumption, its operation is wholly in accord- ance with the legal meaning and effect of the written instrument. It is true, the evidence does not in this case apply to and enforce the literal terms of the writing; those terms have already been modified bj' the presump- tion, and a legal effect has been given to the instrument difi"erent from that which would have resulted from the mere language in the absence of the presumption. This legal import and eflfect of the instrument are strengthened^ confirmed, and as it were ratified, bj' the extrinsic parol evidence. In neither aspect of the case does the extrinsic evidence of the donor's intention alter, add to, or take from the written instrument, and its admission violates no general rule concerning the use of such evidence. In every other case, however, where a second benefit is con- ferred by a written instrument which contains no express indication of the author's intention, and frem which no presumption arises of an intention to adeem or satisfy the prior gift or obligation, the admission of extrinsic evidence directly showing the author's intention would necessarily contradict, alter, take from, or add to the §574 EQUITY JURISPKUDENCE. 776 written terms, and would therefore violate the familiar general rule which forbidlS such evidence.' ' Monck T. Lord Monck, I Ball & B. 298; Hurst v. Beach, 5 Madd. 351, 360; Lee v. Pain, 4 Hare, 201; Palm- er V. Newell, 20 Beav. 32; Powys v. Mansfield, 3 Mylne & 0. 359; Hartopp V. Hartopp, 17 Vea. 192; Pole v. Lord SSomers, ti Vea. 321; Wallace v. Pom- fret, 11 Vea. 542; Freemantle v. Bankes, 5 Vea. 79; Bigglestou v. Crrubb, 2 Atk. 48; Eoaewell v. Ben- nett, 3 Atk. 77; Shudall v. Jekyll, 2 Atk. 516; Debeze v. Mann, 2 Brown Ch. 165; 1 Cox, 34B; Trimmer v. Bayne, 7 Vea. 508; and see alao, in this connection. Fowler v. Fowler, 3 P. Wms. 353; Wilmot v. Woodhouse, 4 Brown Ch. 227; Coote v. Boyd, 2 Brown Ch. 521; Osborne v. Duke of Leeda, 5 Ves. 369; Guy v. Sharp, 1 Mylne & K. 589. The case of Monck V. Lord Monck, 1 Ball & B. 298, is a very instructive one, although the second gift, concerning which the con- troversy arose, was conferred without any writing, so far as appears from the report. Lord Monck had given a legacy of five thouaand poanda to his brother, W. D. S. Monck, to whom he confessedly stood in loco parentis, »pon certain truata for himself and children. Afterwards Lord Monck executed hia bond for four thousand pounds, aa a portion for the same brother, upon trusts slightly differing from those contained in the will. Some time previous to this last-named settlement, but after the execution of the will, Lord Monck gave one thou- sand pounds to the same brother, to enable him to purchase a house. This gift seems to have been wholly ver- bal. Upon Lord Monck's death, his brother brought this suit to recover the whole legacy of five thousand pounds. The court held that the por- tion of four thousand pounds waa clearly a satisfaction pro tanto of the legacy. With reference to the pay- ment of the one thousand pounds, «videnoe of Lord Monck's verbal dec- larations, showing his intention, was offered by the executors, but was ob- jected to by the plaintiff as inadmis- sible. Upon this question, Lord Manners said (p. 305): "It appears from the testimony of a witness that the one thousand pounds had been paid at the desire of the plaintiff. The plaintiff objects to all thia evidence aa inadmissible, insisting that such evi- dence cannot be received to support but only to rebut a, presumption." He then quotes Roaewell v. Ben- nett, 3 Atk. 77, and Pole v. Lord Somers, 6 Ves. 321, in which he states that such evidence had been admitted by Lord Hardwicke and Lord Eldon, in order to confirm as well as to rebut a presumption, and proceeda: "Well, then, one thousand pounds is advanced by Lord Monck, and thia ia proved by the testimony of Miaa Isabella Qninn. She atates that it waa advanced between the time of making the will and the plaintiff's marriage, and that Lord Monck often declared that his brother (the plain- tiff) was very desirous of getting some of the money intended to be settled upon him; that Lord Monck had in consequence thereof advanced one thousand pounds, which he considered as part of the five thousand pounds he intended to leave or settle on the plaintiff, or as a part of what he had left by will; and deponent often heard Lord Monck say that he had given one thousand pounds to the plaintiff, and had settled four thousand pounds on his marriage; and that the five thousand pounds he intended to leave him was paid in that manner, and in lieu of the legacy; and she always heard Lord Monck say that he in- tended to provide for his brothers equally." Thia decision has been re- peatedly cited and approved, and its correctness has never been doubted. It is instructive as showing the kmd of extrinsic evidence which has been admitted, where any evidence of in- tent waa admissible. See also the following American cases: Gilliam v. Chancellor, 43 Miss. 437, 453-456; 5 Am. Rep. 498; Langdou v. Aster's Executors, 16 N. Y. 9; Hine v. Hine, 39 Barb. 507; Gill's Estate, 1 Pars. Cas. 139; Zeigler v. Eckert, 6 Pa. St. 13, 18; 47 Am. Dec. 428; Sims V. Sims, 10 N. J. Eq. 152, 153, 158; Jones v. Mason, 5 Rand. 577; 16 Am. Dec. 761; Clendenning v. Cly- 777 CONCERNING SATISFACTION. § 576 § 575. Cases to Which the Foregoing Rules Apply. — The rules formulated in the foregoing paragraphs, be- ing founded upon general doctrines concerning the effect of verbal evidence upon written instruments, and the ad- missibility of such evidence, clearly apply alike to all cases of double benefits to the same person, where the second benefit is conferred by means of a written instru- ment. They equally apply to and govern the cases of a prior legacy and a subsequent portion, advancement, pay- ment, or gift in writing; a prior portion, and a subse- quent legacy or portion; a prior legacy, and a subsequent legacy, in the same or in a diff'erent instrument; a prior indebtedness and a subsequent legacy. Although most of the decisions heretofore cited have arisen either from prior legacies and subsequent portions, advancements, or gifts, or from prior portions and subsequent legacies, yet it will be found that the same rule has been recog- nized or actually enforced in both the other classes of •double benefits. Thus in case of two legacies to the same person, if the equitable doctrine itself raises the presump- tion against double legacies, — that is, where two legacies of exactly the same amount are given simpliciter by the same instrument, — verbal evidence is admissible to rebut this presumption, and to show the testator's intention that the legatee should receive both the gifts; for such evi- •dence does not contradict but rather sustains the literal meaning of the will. If the evidence is allowed to rebut and overcome the presumption, then it is also allowable, under the rule, to support and confirm it. On the other hand, if no presumption arises from the instrument it- self, — as, for example, where legacies of the same amount are given simpliciter by different instruments, — no parol ovidence can be admitted; the decision must be made solely upon a construction of the writings.* The same mer, 17 Ind. 155; Timberlake v. Par- Md. 153; Lawson's Appeal, 2.3 Pa. St. rish's Executors, 5 Dana, 346; Paine 85. V Parsons, 14 Pick. 313; Parks v. • Lee v. Pain, 4 Hare, 216; Hurst v. Parks, 19 Md. 323; Cecil v. Cecil, 20 Beach, 5 Madd, 351. § 576 EQUITY JURISPRUDENCE. 77tJ rule must, on principle, and 'to preserve any consistency in dealing with the doctrine of satisfaction, control the case of a prior debt and a subsequent legacy, where a debtor bequeaths a legacy to his creditor.* § 576. The Subsequent Benefit Given Verbally. — In three classes of cases, — namely, a prior portion and a sub- sequent legacy or portion, a prior legacy and a subse- quent legacy, a prior debt and a subsequent legacy, — the second benefit must necessarily be conferred by a writing, and there can be no room for any other rule than those already stated in the foregoing paragraphs. In the single case of a prior legacy and a subsequent advancement^ payment, or gift, it is alone possible that the second benefit may be bestowed otherwise than by a writing, — by mere acts and words of the donor. We are to con- sider the rule concerning the admission of extrinsic parol evidence applicable to this case. In the first place, it is plain that the admission of such evidence cannot be fet- tered by the general doctrine prohibiting parol evidence to contradict, alter, or add to a written instrument, so far ' It must be conceded, however, fret, 11 Ves. 542, the testator had. that there is some conflict and incon- stated his intention in express words^ sistency among the decisions which nevertheless, Lord Eldon, in opposi- apply the rule to this class of in- tion to an argument of Sir Samuel stances. Wherever the equitable Romilly, which advocated the doc- doctrine raises a presumption of a trines as now settled, admitted parol satisfaction from the mere bequest of evidence of the testator's intention in a legacy by a debtor to his creditor, — conflict with the express terms of tha namely, where a legacy equal to or will. This decision is clearly opposed greater than the debt is given simpK- to principle, and was condemned by citer, — then on principle, and in accord- Chancellor Sugden in Hall v. Hill, 1 ance with the rule established for all Dru. & War. 94. The rule has also other cases, parol evidence is admissi- been extended to a legacy by a credi- ble both to rebut and to support the tor to his debtor. In Zeigler v. presumption. See Plunkett v. Lewis, Eckert, 6 Pa. St. 13, 18, 47 Am. Dec. 3 Hare, 361. In Fowler v. Fowler, 3 428, it was held that a legacy by a P. Wms. 353, Lord Chancellor Talbot creditor to his debtor is presumed not refused to admit evidence under such to be in discharge or release of the circumstances.andhisdecisionseemsto debt; but that this presumption may have been approved of by Lord Chan- be overcome by parol evidence of tha cellor Sugden in Hall v. Hill, 1 Dru. testator's declarations made both at & War. 94; but the decision and the and after the time of executing tha apparent approval are in conflict with will, to the effect that the debt wa» the conclusion reached and the gen- thereby discharged; and that contrary eral doctrine established by Chancellor ev idence sustaining the presumption Sugden in that celebrated case. On was also admissible, the other hand, in Wallace y. Pom- 779 CONCERNING SATISFACTION. § 576 as such evidence is directed to the second benefit itself; because the benefit is conferred without any writing, and there is no foundation in fact for the operation of the doctrine. How far such general doctrine might apply to the prior benefit — the will — is another question, and will be separately considered. In the second place, it is equally plain that the admission of the evidence is wholly independent of any presumption arising or not arising that the second benefit is intended to be in satisfaction of the prior legacy. In the rule established for the three classes of cases already discussed, the admission of parol evidence is made to depend upon the existence of the presumption solely because it is such presumption alone which prevents the evidence from altering or contradict- ing the written instrument by which the second benefit was conferred, and thus violating the general doctrine. In the present case, there being no written instrument which can be altered or contradicted, the aid of the pre- sumption is unnecessary, and the admission of evidence is wholly independent of its presence or absence. In all cases, therefore, of a prior legacy and a subsequent verbal advancement, payment, or gift, as well in those where, from the relation between the two parties, a presumption of satisfaction arises as in those where no such presump- tion exists, there is nothing in principle which should prevent a resort to parol evidence for the purpose of dis- closing the real intent of the donor, either that the second benefit was to be in lieu and satisfaction of the prior legacy, or was to be cumulative and in addition thereto. In fact, the transaction being entirely parol, the mere fact of the gift itself must be proved by verbal evidence;^ and as the whole transaction must be shown, in order to disclose its true nature and effect, a resort to verbal evidence for that purpose becomes absolutely necessary. If the donor ' [In Van Honten v. Post, 33 N. J. the fact of giving the advance is not Eq. 344, it is held that evidence of admissible, but charges in books made Darol declarations of the testator of by the testator against the child are.] § 576 EQUITY JURISPRUDENCE. 780 accompanied his parol advancement or payment by an express stipulation or declaration that it was or was not to be in lieu and satisfaction of the prior legacy, such express stipulation or declaration would have the same effect as a similar one incorporated in the instrument of donation when the second benefit is conferred by writing. ^ It is thus demonstrated that, so far as it relates directly to the second benefit itself, verbal evidence of the donor's intention is on principle admissible; the question remains, whether it is admissible so far as it relates to and affects the prior will. The answer to this is equally clear. The evidence does not in any manner contradict, alter, or add to the terms of the will. Even if it should be shown by extrinsic parol evidence that the subsequent advancement was made with an express verbal stipula- tion or declaration that it was given in lieu and satisfac- tion of the prior legacy, the will would remain untouched and unaltered in all of its terms. The effect of such a verbal stipulation or declaration would not be to revoke the legacy. On the contrary, it expressly recognizes the bequest as operative; it simply shows that the testator has resolved to anticipate the payment of his intended gift, — to pay it himself to the legatee in his own life- time, instead of postponing the payment until after his own death. These conclusions, so entirely in accordance with principle, are fully sustained by decisions of the highest authority.' From the foregoing discussion of ' Tha leading case is Kirk v. Ed- the legacy. Parol evidence was of- dowes, 3 Hare, 509. A testator had fered that after the date of the will bequeathed three thousand pounds to the testator was requested by his his daughter upon certain trusts for daughter to confer some benefit on the benefit of herself, and after her her husband, and that therefore the death for her husband and children, testator gave them the promissory After the date of the will, he verbally note, declaring that it was to be in gave to his daughter and her husband part satisfaction of the legacy, and a note for five hundred pounds, then that the testator was advised by his due and payable from a third person attorney tliat it was not necessary to to the testator. In an administration alter his will in order to give it that suit, brought after the testator's e£fect. Wigram, V. C, decided as to death, the question arose for decision, the admission and effect of this evi- whether this gift of five hundred denoe as follows (p. 517): After atat- pounds was a, partial satisfaction of iug the rules applicable when tha 781 CONCERNING SATISFACTION. §576 the principle, and from the decisions cited in the note, the following conclusions are reached: Where the rela- eecond benefit is conferred by a writ- ing, as heretofore quoted, he said: "The advance of five hundred pounds was after the date of the will. This transaction, however, is not evidenced by any writing, and the technical rule to which I have referred against ad- mitting evidence to prove what was the intention of the parties to that trans- action does not therefore apply. The question is, whether any other rule ap- plies which shall exclude the evidence. .... The defendant's evidence was not objected to, nor could it have been successfully objected to, so far as it went to show the gift of Warner's note, its amount, and other circum- stances attending it, with the ex- ception of the testator's declarations accompanying the gift; for the court which'has to decide whether the trans- action has affected a partial ademption of the legacy must know what the transaction was. But the declarations of the testator accompanying the transaction were objected to. Why should those accompanying declara- tions not be admissible? They are of the essence of the transaction, and the truth of the transaction itself can- not be known to the court without them. The rule which would exclude the evidence if the intention of the parties had been expressed in writing does not apply. I assume that if the intention of the parties as proved by the evidence had been in writing, it could not be contended on the part of Mrs. Kirk, to whom a legacy was given for her separate use absolutely, that a payment to her husband of the amount of her legacy, at her instance and at her request, would not have precluded her from claiming it under her father's will; or in other words, that the advance made under such cir- cumstances would not have adeemed the legacy. If that be not so, the argument must be, that an advance made by a testator to one of his lega- tees, under an agreement in writing that the legatee shall accept the ad- vance in full satisfaction of his legacy, would leave the legatee at liberty to claim the legacy notwithstanding the agreement; and if such an argument be not admissible, the declarations of the testator must be admissible in the case I am now considering, unless there be some rule of law which hin- ders a transaction, like that which th» defendant relies upon, from being valid unless it be evidenced by writ- ing. This, however, cannot be suc- cessfully contended for. The evidence does not touch the will; it proves only that a given transaction took placa after the will was made, and proves what that transaction was, and calla upon the court to decide whether the legacy given by the will is not thereby adeemed. Ademption of the legacy, and not revocation of the will, is the consequence for which the defend- ant contends, — a distinction which is marked by Lord Hardwicke in the case of Eosewell v. Bennett, 3 Atk. 77. The defendant does not say the will ia revoked; he says the legatee has received his legacy by anticipa- tion. In principle, therefore, I can- not see my way to reject the evidence in question. How, then, does the case stand upon authority?" He quotes, as sustaining his conclusions, and com- ments upon the cases cited below, at the conclusion of this note, and adds: "It was said that there was a distinc- tion in this case, inasmuch as the ad- vance was made, not, as in the cases cited, to the legatee herself, but to the husband of the legatee. That circumstance might be material upon the question of implied ademption, but it cannot affect the question of ad- mitting or rejecting evidence to prove what the transaction was. In more than one of the cases cited the same circumstance occurred." See also' Monck V. Lord Monck, I Ball & B. 298; Rosewell v. Bennett, 3 Atk. 77; Biggleston v. Grubb, 2 Atk. 48; Shu- dall V. Jekyll, 2 Atk. 516; Thellusson V. Woodford, 4 Madd. 420; Bell v. Coleman, 5 Madd. 22; Hoskins v. Hoskins, Prec. Ch. 263; Chapman v. Salt, 2 Vern. 646; Powel v. Cleaver, 2 Brown Ch. 499; Grave v. Lord Salis- bury, 1 Brown Ch. 425; 18 Ves. 152; Ex parte Dubost, 18 Ves. 140; [Pol- lock V. Worrall, L. R. 28 Ch. Div. 554.) In Monck v. Lord Monck, 1 Ball & B. 298, where a verbal gift of one thou- sand pounds was made to the legatee. §576 EQUITY JURISPKUDENCE. 782 tions between the testator and the legatee and the nature of the two gifts are such that a presumption of satisfaction evidence was admitted of the testa- tor's subsequent declarations showing his intention, as well as of the imme- diate transaction itself. See the facts and opinion, quoted in a former note [ante, § 574]. The American cases fully sustain the conclusions of the text, and some of them even go further than the English judges have gone in their re- cent decisions. In one of these cases the question is so directly presented, and the discussion by the court is so full, clear, and able, that I shall add an extract from the opinion. In Richards v. Humphreys, 15 Pick. 133, a testator had bequeathed $500 to his sister, and afterwards made her a verbal advancement of $466, and she gave back a written paper acknowl- edging that the money was paid and received by her, "in part of her right of dower in his last will. " There was also evidence that he wished to pay off the entire legacy, and offered her the balance, which she declined to ac- cept. Evidence of other verbal dec- larations by the testator was also given. The court, in a most able opinion, discussed the general doc- trine of satisfaction, and the admissi- bility of extrinsic evidence. After stating the rules as to satisfaction, and their applicability to this case, (which portion of the opinion has been quoted in a prior note), the court pro- ceeds: " In the present case we are of opinion that, conforming strictly to the rules of law in regard to the ad- missibility of evidence, it is quite ap- parent from the facts proved that the payment was intended by the testator as an advancement on account of this legacy, and an ademption pro tanto." It then examines and construes the peculiar language of the receipt given back by the legatee, and determines its real meaning, and adds: " But the ground upon which the court de- cides the cause is this: Whatever may be the difficulties in applying the rule which prohibits the admission of parol evidence to alter or control a written instrument, there is one modification which will sanction its admission in the present case. Whenever an act is done, the declarations of the party doing it, made at the time, are received to show the character of the act, and the pnrpose and design with which it is done. It is readily conceded that it would not be competent to give in evidence the declarations of the testa- tor showing that he intended by any clause in his will something differ- ent from the dispositions expressed, or to limit or control the legal infer- ences or presumptions arising from those expressions. Nor would it be admissible to show such declarations alone (i. e., without any gift) to prove a direct intent of the testator to re- voke or adeem a legacy. It would be, in eitlier case, to make or revoke a will by parol; which is alike con- trary to the general rule of law and to the statute of frauds. But when an act is done which, if done with one intent, will operate as an ademption, and if with a different intent, otherwise, under the rule already stated evi- dence of the declarations of the intent may be given to qualify the act, and the act operates by way of ademp- tion. Here the declarations made at the time of the advance and payment of the money, not being contradictory to the receipt, but in conformity with it, prove conclusively that they were made in part satisfaction of the leg- acy But there is another fact which it seems competent to show by parol evidence, and which leads to the same conclusion. It is stated that the testator expressed his desire to the plaintiff, at the same time, to pay off the whole legacy, and that he offered to pay her the balance of her legacy, which she declined receiving." The very broad statement of the gen- eral rule, in the sentence above indi- cated by Italics, seems to approve and adopt the view taken by Sir John Leach in Weall v. Rice, 2 Russ. & M. 251, 263, and other similar decis- ions, rather than the more restricted doctrine of the recent English au- thorities, such as Hall v. Hill, 1 Dra. & War. 94. In other words, this rule is so broad that it would seem to allow parol evidence of the donor's actual intention in conferring a sub- sequent benefit by a written instru- ment, both where a presumption of satisfaction would arise, and where 783 CONCERNING SATISFACTION, §576 arises from the subsequent verbal advancement, payment, or donation, extrinsic parol evidence may be resorted to for the purpose of rebutting the presumption, and of showing the testator's intention that the beneficiary was to receive both gifts; and his verbal declarations ac- companying the advancement or payment may be shown; and since such evidence is admissible to rebut the pre- sumption, it may also be admitted to confirm it. Where no such presumption arises, — in other words, where the testator is not a parent of or in loco parentis to the lega- tee, or where the two gifts are not ejusdem generis, if the testator confers his subsequent verbal advancement, pay- ment, or donation, with an express verbal stipulation, declaration, or condition that the same was to be in lieu no anch presumption would exist. See also Langdon v. Astor's Ex'rs, 16 N. y. 9; Hiae v. Hine, 39 Barb. 507, 512j Paine v. Parsons, U Pick. 313; Sims V. Sims, 10 N. J. Eq. 158, 162, 163; Gill's Estate, 1 Pars. Gas. 139; Jones V. Mason, 5 Rand. 577; 16 Am. Deo. 761; Clendenning v. Cly- mer, 17 Ind. 155. [To the same effect, see Van Houten v. Post, 33 N. J. Eq. 344; Dilley v. Love, 61 Md. 603; Bouse v. Slemp, 82 Va. 352; McDearmaa v. Hodnett, 83 Va. 281; Fennell v. Henry, 70 Ala. 484; 45 Am. Rep. 88; Richardson v. Eveland, 126 III. 37; Wallace v. Dubois, 65 Md. 153; Johnson v. Patterson, 13 Lea, 626; Frey v. Heydt, 116 Pa. St. ■601.] In Hine v. Hine, 39 Barb. 507, . .512, a father had mads a bequest to his son, and afterwards gave him fifteen hundred dollars, taking a re- -ceipt as follows: "Received of E. H. (the father] fifteen hundred dollars, to make payment on a farm which I have bought of A. B., which money I am to account for, without inter- est, " signed O. H. [the sonl. No written assignment or transfer was made by the testator. Declarations of the father and admissions of the flon, showing that this advance was intended to be in satisfaction pro tonto of the legacy, were received in evidence. The general rule as to the admissibility of such parol evi- dence was laid down by Allen, J., citing Williams v. Crary, 4 Wend. 443. In Paine v. Parsons, 14 Pick. 313, a father had bequeathed a legacy to his married daughter; he after- wards gave her articles and money, took a receipt from her husband for a part of the money as so much received of her portion, made charges against her of the sums in his account-books; evidence of all these facts was ad- mitted, and the legacy held to hare been satisfied. In Sims v. Sims, 10 N. J. Eq. 158, 162, 163, after a legacy bequeathed to a son, the testator de- livered him the amount thereof, as it appears, by a verbal gift. Testator's declarations and the legatee's admis- sions that the payment was in satis- faction of the legacy were admitted. The court held that such evidence was as proper to sustain the presump- tion as to rebut it. In Jones ■ v. Mason, 5 Rand. 577, 16 Am. Dec. 761, a father had made bequests to his children; he afterwards bestowed property upon some of them, partly by putting them in possession of farms and partly by verbal gifts of slaves. The court held that the pre- sumption of a satisfaction may ba rebutted by evidence of testator's in- tent; and also, when there is no pre- sumption because the legacy and the subsequent gift are not ejundem generis, evidence of the testator's intent that the gift shall be in satisfaction ia still admissible. § 576 EQUITY JUKISPEUDENCB. 784 and satisfaction of or in addition to the prior legacy, — the entire transaction, the declarations as .well as the mere act of donation, may always be proved by extrin- sic parol evidence. This would be so whether the subse- quent benefit were of equal, greater, or less value than the legacy, and whether it were a payment of money, a conveyance of land, a transfer of chattels; or an assign- ment of things in action; for in either case an express stipulation or declaration by the testator would ren.der the benefit conferred and received a satisfaction of the prior legacy. There is still a third case. Between any of the parties, and under any of the relations and circum- stances mentioned in the two foregoing cases, the testa- tor's subsequent advancement, payment, transfer, or gift might be wholly verbal, but the beneficiary might give back a written receipt, or other written instrument, ex- pressly acknowledging, declaring, or stipulating that the benefit was given and received either in lieu and satis- faction of the prior legacy or in addition thereto. In this case, also, proof of the testator's declarations, and other evidence of his intention, would be admissible, since the question whether a subsequent gift was or was not a satisfaction must depend mainly upon the testator's own intention in bestowing it. Several of the American cases in which parol evidence was admitted and relied upon by the court have presented exactly this last condi- tion of circumstances.' ' In the leading case of Kirk v. Ed- tent, are also admissible. The more dowes, 3 Hare, 509, the reasoning of the recent English cases which have pro- court is expressly directed only to those f essedly examined the general subject verbal declarations of the testator with care — e. g., Hall v. Hill, 1 Dru. which immediately accompanied the & War. 94, Kirk v. Eddowes, 3 Hare, gift, which necessarily disclosed the 509, and the like — do not seem to have nature Of the act, which formed a passed upon this particular question, part of the single continuous trans- In some of the earlier cases, like Monck action, a part of the res gestae. I v. Lord Monck, 1 Ball & B. 298, have therefore so formulated the such subsequent declarations seem to rules in the text that they only ex- have been admitted without any at- tend to and embrace such declara- tempt to distinguish between them tions. The question will naturally be and the declarations forming a part- suggested, whether subsequent declara- of the transaction itself. As illus- tions of tile testator, showing his in- trations of the text, see Richards v^ 785 CONCERNING SATISFACTION. §577 § 577. Amount of Evidence. — With reference to the sufficiency of the extrinsic evidence in all cases where it is admissible, whether the subsequent benefit be conferred by a writing or be verbal, each case must, of course, de- pend upon its own circumstances. There is no general rule applicable to all.' Hnmpbreya, 15 Pick. 133; Howze v. Mallett, 4 Jones Eq. 194; Paine v. {"arsons, 14 Pick. 313; Hine v. Hine, 39 Barb. 507. In each of these cases the donee gave back a writing ac- knowledging that the verbal gift was in satisfaction, wholly or partly, of the prior legacy; and in each of them extrinsic evidence was admitted. [In some of the American cases it is ex- pressly held that subsequent parol 1 Eq. Job. — SO declarations are admissible: McDear- man v. Hodnett, 83 Va. 281. In other cases, the evidence would seem to have been limited to the donor's conduct aud declarations at or about the time of the gift: Johnson v. Pat- terson, 13 Lea, 626; Frey v. Heydt, 116 Pa. St. 601.] ' See Trimmer v. Bayne, 7 Ves. 508; Robinson v. Whiteley, 9 Ves. 577; Powys V. Mansfield, 3 Mylne & 0. 359.