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CORNELL UNIVERSITY LIBRARY 
 
 3 1924 085 500 928 
 
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 Cornell University 
 Library 
 
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 the Cornell University Library. 
 
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 the United States on the use of the text. 
 
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Juridical Equity 
 
 ABRIDGED, 
 FOR THE USE OF STUDENTS. 
 
 PART I 
 
 FAESEKTIITG AN OUTLINE OF EQUITY PKOCBDTJKB, AS USED IN THE COUBTB 
 
 OP THE United States and of the State or Maryland. 
 PART II 
 
 BEINQ lilHITED TO THE FlEST PRINCIPLES OV EQUITY JURISPEUDBNCE, 
 
 Historically and Practically Illustrated. 
 
 BY 
 
 Cl^arlejsi C. pi^elpsi^ 
 
 Professor of Jmrldical Equity i/n the University of Maryland, and Associate 
 Judge of the Supreme Bench of Baltimore. 
 
 BALTIMORE: 
 
 M. CURLANDER, 
 
 Law Bookseller, Publisher and Importer. 
 
 1894. 
 
Copyright, 1894, 
 
 BY 
 
 CHARI.B5 E, Phelps. 
 
 PRESS OF 
 
 QUQQENHEIMER, WEIL & CO. 
 
 BALTIMOHE, MO. 
 
TO The 
 I/AW GRADUATES 
 
 OP THE 
 
 UNIVERSITY OF MARYLAND, 
 
 AI,READY PAMII,IA.R WITH 
 
 "THESE PRESENTS,"; 
 
 AND SOMEWHAT RESPONSIBLE 
 
 FOR THEIR EXISTENCE, 
 
 TH3 SAME ARE NATURAI,I,V 
 
 DEDICATED. 
 
* * * "JVot so much to endeavor to f«acft tliege things fully to you, as 
 to induce you to Uam them for yourselves— to point out what you are to Iodic 
 for, and how you are to find It. It raust depend upon yourselves whether you 
 wUl look for it, whether you will find it, and what uses you, vAU make of the 
 information." 
 
 Judge Curtis, Lect. Jwrisd. V. S. Courts, 3. 
 
 "Most of aU is needed a disposition in the profession, not to take things on 
 tnat, but for every man to look and see fob himself." 
 Bishop, Crim. Lam, Preface. 
 
PEEFAOE, 
 
 The scope of, this work is sufficiently indicated 
 by its title. Upon the voluminous subjects of equity 
 procedure and equity jurisprudence it does not pro- 
 fess to be an exhaustive treatise. It does not offer 
 to compete with any existing work. It may be called 
 a horn-book, nothing more. It has not been prepared 
 by contract. It is the gradual outgrowth of many 
 years experience and reflection in the work of prac- 
 tical instruction. 
 
 There are two ways of teaching equity. One is to 
 take up in succession, with more or less of technical 
 detail, the practical topics treated in some approved 
 text-book, until the time limited for that department 
 expires. The other method is more elementary. It 
 assumes that what the young lawyer especially wants 
 is the faculty and the habit of original investigation. 
 Give him that, and he will have no trouble in finding 
 what he wants in the books, as occasion requires. 
 It therefore aims to put the student in complete 
 possession of those few central principles which 
 command the whole field. Thorough mastery of 
 those princi'ples is given by historical explanation, 
 by copious illustration and by systematic drill. 
 
Ti PREFACE. 
 
 " Some of these principles are so comprehensive and 
 fruitful, that one who has grasped them in their 
 fulness of conception has already mastered the sys- 
 tem of equity. All else is the application of these 
 grand truths to particular circumstances." (Pom- 
 feroy.) 
 
 The more elementary method is the one reflected 
 in these pages. 
 
 For the illustration of principle the main reliance 
 is, of course, upon adjudged cases. The student 
 should be frequently called on to state from memory 
 their substance in connection with propositions illus- 
 trated. This exercise in the presence of a class gives 
 accuracy of thought, clearness of statement, self- 
 confidence. It is a discipline to prepare the candi- 
 date for his profession, not simply for his examina- 
 tion. 
 
 In order to apprehend with ease decided cases, the 
 learner must first be made familiar with the mould 
 or form in which they are cast. For that reason, 
 and also because the distinction between law and 
 equity grows mainly out of the essential difference 
 of procedure, that subject is first presented in brief 
 outline, preceded by a chapter on courts. The effort 
 here has been to avoid as much of technical detail 
 as is not inextricably involved with a fair outline of 
 procedure. 
 
 Passing thence to the complex subject of equity 
 jurisprudence, its master principles are reached by 
 two stages. The more fundamental ones, those upon 
 
PREFACE. Vll 
 
 the ground floor, so to speak, are grouped into a 
 definition, and afterwards maxims are considered 
 with their illustrations. The definition is simply a 
 piece of temporary scaffolding to aid the student 
 while he is building up a fuller conception for him- 
 self, after which he will have no further use for it 
 except to refresh his memory and c<j-ordinate his 
 results. It is short enough to be remembered, and 
 comprehensive fenough to furnish the analytical basis 
 for a sufl&ciently full discussion. The maxims of 
 equity are so classified and arranged as to present 
 the form and substance of a connected system. 
 Their contrasted functions are exhibited in two oppo- 
 site tables, under the respective heads of "enabling" 
 and "restrictive" maxims. This is merely another 
 device to aid the understanding and memory. 
 
 With these general principles and their practical 
 illustrations, the course closes. If proper use is made 
 of the cases cited, or even of a moderate selection, 
 there will be no time for more. As these citations 
 are drawn from the whole field of juridical equity, 
 the student will have incidentally learned much of 
 its practical doctrines. 
 
 Imperfect as the execution of the plan may be, the 
 plan itself, that is to say, the elementary method of 
 instruction, has received the weighty approval of the 
 American Bar Association. In the report of the 
 committee on legal education, submitted at the Sara- 
 toga meeting in 1892, the professedly technical method 
 of instruction is condemned upon the ground that 
 
VUl PKEFACB. 
 
 "the entire time spent in the study of the law is too 
 brief and precious to be wasted in merely committing 
 to memory what the learner can find in the books as 
 he wants it." On the other hand, they recommend 
 that process by which "the student's memory is 
 charged only with those fundamental principles which 
 he must always -carry there in order to make any use 
 of them," and by which he is given a " complete and 
 thorough comprehension of the nature of the sub- 
 ject, under which all his subsequent acquisitions will 
 arrange themselves according to the very law of 
 thought." 
 
 The substance of the same idea was concisely 
 stated in a recent address to English law students 
 by Sir Edward Fry: — "Learn in order to know; not 
 in order to answer questions." (Law Q. Kev. for 
 April, 1893.) 
 
 An American jurist of international reputation, in 
 his latest publication, issued from the press since 
 the following pages were printed, has placed his 
 unqualified endorsement upon the report above cited, 
 which seems also to have made a powerful impres- 
 sion upon the Council of Legal Education of the Inns 
 of Court. (Dillon on the Laws and Jurisprudence 
 of England and America, 82.) Himself a former 
 professor of equity jurisprudence in the Law School 
 of Columbia College, Judge Dillon further criticises 
 the "course of instruction in our law schools as too 
 intensely practical and technical," and suggests that 
 "the great drawback to-day, alike of the teacher 
 
PREFACE. IX 
 
 and the student, is the non-existence of elementary 
 works written by lawyers of competent learning and 
 experience, designed for the specific purpose of en- 
 abling the teacher to teach and the student to learn 
 the elements, the great primordial and essential prin- 
 ciples of our jurisprudence." {Ibid. 86, 87.) 
 
 This text-book is easily perceived to be designed 
 primarily for the Maryland law student. In the 
 absence of any ofrher book on a similar plan, it may 
 be found helpful to instructors and students else- 
 where. It will be seen that there are liberal citations 
 of recent federal and state decisions, as well as from 
 the latest English reports. The references, generally, 
 are of a character to be serviceable to the equity 
 practitioner, to whom it may also be suggested that 
 among old things for young heads there may perhaps 
 be found some new things for old heads. 
 
 For valuable assistance in the compilation of the 
 table of cases, acknowledgment is due to C. Hopewell 
 Warner, Esq., and in the preparation of the index to 
 the same gentleman, in connection with Ealph Rob- 
 inson, Esq., both members of the Baltimore bar, and 
 Maryland University graduates of 1893. 
 
 For whatever notice he may receive of errors dis- 
 covered, whether of omission or commission, the 
 writer will be grateful, and he will also be grateful 
 to the mind which coined the consoling reflection, 
 that "the man who never makes a mistake, never 
 makes anything." 
 
 C. E. P. 
 March, 1894. 
 
TABLE OF CONTENTS.* 
 
 PART ^.—COURTS : PROCEDURE. 
 
 Chapter. Section. 
 
 I. Courts of Equity, 1-19 
 
 II. Equity Peoceduek, Paetibs, 20^8 
 
 III, Pleading and Evidence, 49-71 
 
 IV. The Decree and its Incidents, . . . 72-85 
 V-VI. Practice, 86-112, 113-128 
 
 PART II.— EQUITY JURISPRUDENCE. 
 
 VII. Equity Jurisprudence ; Its Genesis and Evo- 
 lution; Definition, 129-143 
 VIII. Its Nature j^nd Extent; The Definition 
 
 Expanded, . . . 144-156 
 IX. The Definition further Expanded, . 157-173 
 
 X. Principles of Equity, 174-181 
 
 XI. Maxims, 182-191 
 
 XII-XIII. Enabling Maxims, 192-219, 220-235 
 
 XIV. Resteictive Maxims, 236-272 
 
 *To avoid duplication, reference is suggested to the tables at the 
 heads of chapters, and for further detail to the index, title "Jurid- 
 ical Equity." 
 
TABLE OF CASES. 
 
 References are to Pages. 
 
 Abel! V. Abell, 158, 226, 284. 
 
 V. Brown, 262, 329. 
 Abernethy ®. Hutchinson, 130. 
 AboulofE V. Oppenbeimer, 350. 
 Abraham v. Myers, 62. 
 Adams t). Adams, 37. 
 
 V. Edmunds, 199. 
 V. Kepler, 101. 
 V. Manning, 318. 
 «. Messinger, 308. 
 V. Newbigging, 286. 
 Addison, 321: 
 Adkins v. Edwards, 68. 
 Agens V. Agens, 353. 
 Akerly o. Vilas, 95. 
 Alabama State Bank v. Barnes, 
 
 198. 
 Albert, 288. 
 
 V. Hamilton, 63. 
 Aldridge b. Weems, 282. 
 Alexander v. Leakin, 260. 
 
 ■D. Ghiselin, 282, 329. 
 V. Walter, 341. 
 Allcard v. Skinner, 364. 
 Allen V. Buchanan, 308. 
 V. Pullman, 79, 259. 
 V. Withrow, 286. 
 Allore V. Jewell, 358. 
 Ambler c. Choteau, 76. 
 Am. C. I. Co. V. Simpson, 185. 
 Amelung v. Seekamp, 27, 133. 
 American o. Heft, 63. 
 Ames V. Richardson, 295. 
 Amey «. Oockey, 359, 360. 
 Amis 0. Myers, 259. 
 Anderson v. Dunn, 153. 
 
 V. R. R. Co., 62. 
 
 Andreas «. Hubbard, 54. 
 Andrews v. Bank, 234. 
 
 «. Barnes, 100, 221. 
 
 V. Roes, 352. 
 
 V. Scotton, 120. 
 Andriessens Appeal, 318. 
 Ankeny ». Hannon, 79, 294. 
 Annapolis &E.R.R. Co. v. Gantt, 
 
 280. 
 Anthony d. Fritts, 199. 
 Appold V. Prospect, 151. 
 Armstrong «. Bittiuger, 236. 
 Arnd v. Amling, 280. 
 Arndt v. Griggs, 41. 
 Arrowsmith v. Gleason, 25, 79. 
 Ashley «>. Jennings, 241. 
 V. Little Rock, 61. 
 Ashurst V. Leman, 220. 
 Asylum ■c. Miller, 369. 
 Atlantic Co. v. James, 269. 
 
 v. Maryland Co , 
 314. 
 Attrill V. Huntington, 279. 
 Avory «. Andrews, 135. 
 Bacon v. Ins. Co., 355, 358, 359. 
 Badger, 368. 
 Bailey v. Knapp, 199. 
 Baker ®. Kunkel, 320. 
 Balls, 258, 320. 
 
 V. Dampman, 320. 
 Baltimore «. Gill, 45. 
 
 V. Grand Lodge, 358. 
 
 V. Ketchum, 98. 
 
 V. Keyser, 133. 
 
 v. Baymo, 285. 
 
 B. Warren, 133. 
 
 V. AVeatherby, 136,138. 
 
XIV 
 
 TABLE OF CASES. 
 
 Beferences are to Faeres. 
 
 Baltimore ». Whittington, 329. 
 Belt Co. •». Baltzell,36. 
 
 v. Lee, 133. 
 Chem. Co. b. Dobbin, 
 
 239 
 & Drum Point R. E. 
 
 V. Pumplirey, 45. 
 & Ohio R. R. V. Can- 
 ton Co., 167,220,353, 
 362, 364. 
 & O. B. R. v. Strauss, 
 
 358 
 & Ohio R. R, ®. Trim- 
 ble, 353, 360, 361, 363 
 & Ohio R. R. V. Wil- 
 
 kens, 262. 
 Retort Co. ■». Mali, 52 
 Bauaher v. Merryman, 281. 
 Bank of Harlem v. Bayonne, 
 
 294, 296. 
 Banks ®. Haskie, 222, 361. 
 Bannon ». Comegys, 47, 148. 
 
 «. Lloyd, 320, 353, 355. 
 Barnes ®. Crain, 320. 
 Barney v. Baltimore, 53. 
 
 V. Latham, 37, 57, 220. 
 ». Saunders, 158. 
 Barnum, 92, 291. 
 Barrett ». Forney, 220. 
 V. Hinckley, 280. 
 V. Nealon, 260. 
 Barry, 59. 
 
 Bartel ». Matot, 285. 
 Barth a. Rosenfeld, 104, 131, 
 
 170, 171, 216. 
 Bartlett v. Hipkins, 137. 
 Barton b. Barbour, 144. 
 Basey ». Gallagher, 186. 
 Bassett «. Nosworthy, 257. 
 Basshor v. Stewart, 288. 
 Bates «. Babcock, 186. 
 Baxter, 46. 
 
 V. Moses, 260. 
 «. Proctor, 52. 
 Bayly, 163. 
 
 Baynard v. Norris, 282. 
 Bayne ». State, 48, 119, 284. 
 Beauclerk, 370. 
 
 Beard v. State, 232. 
 
 Bechtolds. Read, 366. 
 
 Bel Air Socials. State, 23S. 
 
 Bell Telephone Cases, 138. 
 
 Belt ». Bowie, 60, 355, 
 
 Beck, 318. 
 
 V. Colorado Co., 312. 
 
 Beecher v. Lewis, 261, 262, 318. 
 
 Benefit Asso. v. Parks, 215. 
 
 Ben. Franklin Ins. Co. v. Gil- 
 let, 260, 314. 
 
 Beningfield «. Baxter, 361, 362. 
 
 Benson v. Christian, 261. 
 
 ®. Yellott, 39, 44, 106, 
 109, 121. 
 
 Bentley v. Cowman, 78. 
 
 Bernstein, 372. 
 
 ■0. Hableman, 286. 
 
 Berry v. Convention, 363, 368. 
 
 Betz V. Snyder, 283. 
 
 Biays v. Roberts, 79, 355, 364. 
 
 Bickerton «. Walker, 333. 
 
 Biddinger «. Willord, 79, 259, 
 329. 
 
 Binney's Appeal, 327. 
 Case, 66. 
 
 Birchall ®. Ashton, 284. 
 
 Birmingham Appeal, 69. 
 
 V. Leson, 278. 
 
 Black «. Cord, 284, 328. 
 
 Blaine r>. Brady, 133, 258. 
 
 Blaisdell v. Ladd, 47. 
 
 Blake v. Bank, 361. 
 
 Bland y •». Widmore, 302. 
 
 Bleckley v. Branyan, 239. 
 
 Blondheim v. Moore, 140, 141. 
 
 Board «. Columbia Goilege, 320. 
 
 Bdlander v. Peterson, 347. 
 
 Bolles, 60. 
 
 Bonaparte, 352. 
 
 V. B. R. Co., 126. 
 
 Bond v. Doreey, 314, 315. 
 V. Hopkins, 195, 3S1. 
 
 Bone ». Chapman, 221. 
 
 Bonnard e. Perryman, 138. 
 
 Boon V. Kent, 324^, 344. 
 
 Boone «. Chiles. 257. 
 
 Co. V. Railroad, 327. 
 
TABLE OF CASES. 
 
 XV 
 
 References are to Pages. 
 
 Booream v. North, 32. 
 Booth V. Bobinson, 45, 281. 
 
 V. V. S., 369. 
 Boozer v. Teague, 360. 
 Boswell V. Cooks, 362. 
 Bouland «. Carpin, 261. 
 Boulden v. Lanahan, 64. 
 Bowen «. Gent> 39, 44, 52. 
 
 ■». Lewis, 247. 
 Bowie «. Berry, 300. 
 
 V. Stonestreet, 362. 
 Boyee ». Wilson, 199, 541, 245. 
 Boyle V. Parker, 288. 
 Bradford v. Williams, 153. 
 Brady v. Johnson, 181. 
 Brakaw, 52. 
 Brant c. Va. Iron & Coal Co., 
 
 389, 342, 364. 
 Brawner «. Staup, 363. 
 Brewer v. Herbert, 18P, 298, 318. 
 Brian ». Thomas, 37, 46, 57, 59, 
 
 60, 320. 
 Bridge Co. ». Bannon, 53, 65. 
 Bridges v. McKenna, 50. 
 Britton v. Royal, 276. 
 Broadbent «. State, 58, 290. 
 Broderick's Will, 860, 361. 
 Bronson v. La Crosse B. Co., 62. 
 Brooking v. Madslay, 238. 
 Brooks «. Brooke, 54. 
 
 v. Ahrens, 296. 
 V. Cooper, 852. 
 «. Dent, 154. 
 ». Martin, 351,352. 
 Brotzman's Appeal, 260. 
 Brown v. Buck, 168, 170, 185, 233. 
 
 ■B. Burdette, 361, 373. 
 
 V. Guarantee Co., 57, 59, 
 60, 220, 285. 
 
 «. Haif , 164. 
 
 V. Hazlehurst, 262. 
 
 n. Insurance Co., 263,333, 
 341. 
 
 ». Iron Co. 45. 
 
 ®. Lake, 320, 324. 
 
 «. Norman, 342. 
 
 V. Bank, 26. 
 
 Brown «. Eeilly, 345. 
 
 V. Smoot, 320. 
 
 «. Stewart, 336. 
 
 V. Sutton, 247, 863. 
 
 V. Thomas, 62, 65. 
 Brownlee v. Martin, 216. 
 Brumbaugh i). State, 62. 
 Brundige ®. Deschler, 216. 
 
 V. Poor, 282. 
 Bryant v. Sweetland, ,316. 
 
 «. Wilson, 285, 313. 
 Bryson ». Petty, 163. 
 Buchanan «. Bordley, 362. 
 V. Lloyd, 100. 
 «. Tprrence, 51. 
 Buffington v. Harvey, 103. 
 Bundy v. Cocke, 69. 
 Burch 1). Scott, 99. 
 Burger ». Greil, 161, 320. 
 Burgess*. Souther, 309. 
 
 V. Vinnecourt, 44. 
 Burkenshaw v. NicoUs, 340. 
 Burns v. Scott, 185, 199. 
 Burroughs?!. Gaither, 107, 143. 
 Burrows®. Klunk, 263, 350. 
 Buschman v. Hanna, 320. 
 Bush V. Linthicum, 78. 
 Butler ■B. Sisson, 43. 
 
 i>. Bahm, 298. 
 Buzard v. Houston, 26, 258. 
 Byers v. McAuley, 26. 
 Byles V. Tome, 280. 
 Byrne, 47. 
 Cable®. Alvard, 163. 
 Cadigan ®. Brown, 58. 
 Cadman v. Peter, 281. 
 Cahill, 197. 
 Cain®. Warford, 100. 
 Caldwell ®. Taggart, 36. 
 Callaghan ®. Myers, 133. 
 Callard v. Marshall, 138. 
 Calvert ®. Carter, 125, 146, 165. 
 Camden ®. Mayhew, 62. 
 Campbell, 151. 
 
 ®. Digges, 262. 
 ®. Holt, 239. 
 Canal Co., 330. 
 
XVI 
 
 TABLE OF CASES. 
 
 Beferences are to Pages. 
 
 Canfieid v. Andrews, 318. 
 Canton ». McGraw, 46, 60, 61, 76, 
 
 356. 
 Canton v. Weber, 245. 
 Carpenter v. Longan, 262. 
 
 0. Strange, 308,309. 
 Carr «. Hamilton, 237. 
 Carroll v. Kershner, 54. 
 
 V. State, 232. 
 Carson w Phelps, 101, 123, 125, 
 
 247, 283, 298, 360. 
 Carswell «. Welch, 312. 
 Carter «. Dennison, 324, 335. 
 V. Woolfork, 132, 258. 
 Cary v. Brown, 43. 
 Case ».Fant, 289. 
 Casey v. Cavaroc, 300. 
 
 V. Inloes, 372. 
 Cassidy ». Myers, 288. 
 Castle burg «. Wheeler, 320, 339. 
 Castleden, 359. 
 
 CatesD. Allen, 25, 171, 184, 185. 
 Cavender, 298. 
 Cavendish, 288. 
 Central Bank v. Copeland, 41. 
 «. Ins. Co., 304. 
 Co. v. Arctic Co., 331. 
 R. R. ■». Collins, 347. 
 R. R. «. Pettus, 45, 101. 
 Chafee». Quid neck, 287. 
 Chamberlain «. Lynde, 363. 
 ». Public, 63. 
 Chamberlin«. Estey, 221. 
 Chambers V. Church, 352. 
 Chancellor «. Gummere, 279. 
 Chapman v. Goodnow, 339. 
 Chappell V. Funk, 61, 80. 
 Chase «. Winans, 168, 169, 215, 
 
 359, 370. 
 Cheatham v. Pearce, 82. 
 Cheney v. Libby, 312. 
 
 V. Roodhouse, 299. 
 Chenoweth v. Smith, 62, 65. 
 Chesapeake & Ohio r>. Blair, 54, 
 
 199, 314. 
 Chetwynd ®. Morgan, 299. 
 Chew v. Bank, 56. 
 
 Chew ». Farmer's Bank, 327, 352, 
 
 366, 370. 
 Chicago V. McCoy, 45. 
 
 ®. R. Co. Bank, 260. 
 v. Sutton, 259. 
 Chickering, 62, 316. 
 Chilton e. Brooks, 54, 119, 120. 
 Choctaw Nation ®. U. S., 287. 
 Christian «. R. R., 36, 49. 
 Christie t. Davey, 348. 
 Christopher, 320, 329, 332. 
 Church V. Kelsey, 23. 
 
 V. U. S. 288. 
 Clark «. Killian, 103. 
 Clarke ■b. Hart, 359. 
 Clay V. Freeman, 283, 324. 
 Clayton v. Shoemaker, 185, 258. 
 Cleland ». Casgraive, 61, 339. 
 Clements ®. Tillman, 307. 
 Plough, 372. 
 Coates v. Legard, 220. 
 Cocks «. Varney, 59. 
 Cohen ®. Gray, 126. 
 Cole s. Cunningham, 308, 369. 
 
 V. M. I. Co.. 277. 
 
 V. Merryman, 314. 
 
 «. O'Neill, 132. 
 Coleman v. Applegarth, 285. 
 Coleston v. Gardner, 325. 
 CoUyer ■». Isaac, 293. 
 Colton, 284. 
 
 Columbus «. Humphries, 60. 
 Comins v. Culver, 361. 
 Commissioners «. Gellatley,44, 46 
 v. School Com'rs 
 126, 127, 136. 
 Commonwealth v. Perkins, 69, 
 
 162. 
 Conaway «. Wright, 285. 
 Cone «. Russell, 351. 
 Connelly v. Baall, 171. 
 Conner v. Long, 296. 
 Conway ». Fenton, 284. 
 V. Green, 240. 
 Cooke ®. Husbands, 288, 314. 
 Coomber's Case, 2. 
 Coombs v. Jordan, 336. 
 
TABLE OF CASES. 
 
 XVll 
 
 Beferenoes are to Pages. 
 
 Cooper V. <p<tiBes> 284. 
 Cornell «.'^WfcCaiin, 151. 
 Corner v. Gifinan, 59. 
 Cornwall «;rS;wift, 58. 
 Corser v. Cartwright, 298. 
 Coulbourn v. Flemtng, 234. 
 Covert V. Rhodes, ,333. 
 Cowman «. ColquhQuq, 44. 
 Cowdrey v. Galveston, 101. 
 Oowell V. Taylor, 50. 
 Cowper V. Cowper, 248.. 
 Cox ■». Ledward, 23. 
 
 V. Scott, 163. 
 Craig V. Leitensdorfer, 2. 
 
 V. Leslie, 291. 
 
 V. Wroth, 234. 
 Crain v. Barnes, 260. 
 Cralle, 221. 
 
 Cranmer «. McSwords, 363. 
 Creath ». Sims, 345. 
 Creasy v. Meyers, 369. 
 Crisfleld v. State, 245. 
 Crocker v. Hop^s, 293. 
 Cromwell v. Owings, 36, 166. 
 Cronise v. Clark, 137. 
 Crook V. Brown, 37, 38, 47, 59. 
 
 11. Glenn, 353, 360. 
 Croply V. Cooper, 257, 291. 
 Cross V. Hecker, 320. 
 
 ». McClanahan, 278. 
 Crump V. Ingersoll, 261. 
 Caddy, 161. 
 Culbreth «. Smith, 207. 
 Cumberland Co. v. Sherman, 363. 
 Cunliffl «. Brancker, 207, 247. 
 Cunningham ». Browning, 27. 
 
 ». Schley, 262. 
 Curlett V. Newman, 358. 
 Currie v. Clark, 261. 
 Curtnera. U. S., 369. 
 Daggett «. Rankin, 282. 
 Dalzellt). Dueber, 84, 313. 
 Daniel v. Ferguson, 135. 
 Darby v. Rouse, 125. 
 Darling ». Osborn, 64. 
 Dashiells. Atty. Gen., 246. 
 Davenport v. Dows, 48. 
 David ®. Sabin, 350. 
 
 Davis V. Gaines, 109. 
 
 1). Gemmell, 101, 287, 333. 
 
 v. Gray, 143. 
 
 V. Simpson, 358, 361. 
 
 ». U. S. Electric 140, 142. 
 Davison v. Davis, 359. 
 
 V. Hutchinson, 348. 
 ■». Von Lingen, 286. 
 DawJJ.R. R. Co.,299. 
 Day V. Cummings, 51. 
 ». Hathaway, 355. 
 V. Postal, 142, 152. 
 Deakiu v. Lakin, 294. 
 Deale, 245. 
 Dean ». Smith, 164. 
 De Bussche v. Alt, 340, 371, 372, 
 
 373. 
 DefEerback«. Hawke, 290. 
 De Geof roy v. Riggs, 287. 
 De Graw ®. Mechan, 356. 
 Delaware Ins. Co. v. Gillett, 259, 
 
 314. 
 Dempsey ». McNabb, 296, 361. 
 Dennis ®. Dennis, 125. 
 Dennisori D. Wantz, 107. 
 
 V. Yost, 85. 
 Dent V. Ferguson, 345, 352. 
 Denton, 198. 
 Derrett v. Bowman, 285. 
 Devries v, Shumate, 133. 
 Dewey ». St. Albans, 36. 
 Dewing*. Perdicaris, 48. 
 DeWolf V. Sprague, 60, 220. 
 Dexter v. Joins, 148. 
 Dias V. Chickering, 263. 
 Dickerson v. Colgrove, 340. 
 V. Small, 119. 
 V. Winslow, 61. 
 Dickey v. Land Co., 353. 
 Dickinson ». Durfee, 349. 
 Diffenderferj). Winder, 367. 
 Diggs V. McCullough, 44. 
 Dilley v. Love, 272, 319, 321. 
 Dillon V. Barnard, 79. 
 
 V. Conn. Mutual, 104, 154. 
 Daily ». Barnard, 344. 
 Dirks «. Humbird, 321. 
 Dixon V. Brown, 342. 
 
XVtll 
 
 TABLE OF CASES. 
 
 References are to Pages. 
 
 Dodd V. Una, 162. 
 
 V. WilBon, 290. 
 Dodge V. Stanhope, 100. 
 
 ®. Wolsey, 45. 
 Doggett». R. E. Co., 44. 
 Donelsoni). Polk, 199, 276, 278. 
 Dorsey, 2, 166. 
 
 ». Hammond, 121, 123. 
 e. Thompson, 109. 
 Dougherty «. Piet, 137. 
 Doughten v. Vandever, 284. 
 Dowler ■». Oushwa, 333. 
 Downin v. Sprecher, 39. 
 Dragoo, 360. 
 
 Drexel «. Berney, 258, 287. 
 Druid «. Oettinger, 241. 
 Drummondv. Green, 353. 
 Drury «. Eoberts, 132. 
 Dudley v. Easton, 333. 
 
 V. Hunt, 133. 
 Dugan V. Baltimore, 337. 
 
 «. Capner, 52. 
 
 «. Gittings, 354. 
 Duke of Cleveland, 291. 
 Dulany v. Middleton, 288. 
 
 ®. Rogers, 314. 
 Dungan v. Ins. Co. , 286, 360, 361. 
 Dunphy i>. Newspaper, 362. 
 v. Ryan 238, 356. 
 «. Traveller, 60. 
 Duvall V. "Waters, 133. 
 Dyson ». Simmons, 282, 333. 
 Eakle v. Smith, 135. 
 Earl of Oxford's Case, 17, 181, 307 
 Earl V. Circuit Judge, 258. 
 Early's Appeal, 259. 
 Eastman v. Bank, 57, 260. 
 ®. Thayer, 221. 
 ■». Wright, 47. 
 Eaton v. Davidson, 263. 
 Ebert, 166, 286. 
 
 Edes «. Garey, 79, 258, 305, 339. 
 Edward ». Wigginton, 186, 278, 
 
 286. 
 Edwards i>. Peterson, 293. 
 Eichelberger ■». Hawthorn, 235. 
 Eilenbecker «. Plymouth, 229. 
 Ela, 360. 
 
 Ela V. Brand, 221. 
 
 EUicott «. EUicott, 47, 54. 
 
 «. U. S. Insurance Co., 
 142. 
 
 Ellisons. Water Co., 372. 
 
 Elmendorf v. Taylor, 37, 354. 
 
 Elwell V. Fosdick, 43. 
 
 Embrey «. Jemison, 289. 
 
 Emerick v. New York Life, 131. 
 
 Emerson «. Townsend, 131, 351. 
 
 Emery ®. Candle Co., 352. 
 •v. Owings, 166. 
 
 Englar v. OfEutt, 304. 
 
 Equit. Gas Co. «. Bait. Coal Co., 
 130, 134, 295, 312, 350. 
 
 Erdman v. Rosenthal, 340. 
 
 Erlanger v. New Sombrero Phos- 
 phate Company, 53,362,366,^73. 
 
 Eschbach v. Lightner, 165. 
 
 Esdale v. Payne, 239. 
 
 Essex V. Day, 278, 363. 
 
 Evans «. Evans, 247. 
 V. Iglehart, 299. 
 
 Eversole v. MauU, 262. 
 
 Ewing «. Orr, 308. 
 
 Express Co. •». Seibert, 276. 
 
 Fairfax v. Brown, 327. 
 
 Farley v. Kitson, 83, 84. 
 
 Farmer «. Rogers, 69. 
 
 Farmers ■». Postal, 309. 
 
 Bank v. Markell, 300. 
 ■B. Thomas, 839. 
 & M. Bank v. Wayman, 
 362. 
 
 Farmville Ins. Co. v. Butler, 247, 
 314. 
 
 Farrand v. Bank, 330, 331. 
 
 Farrar, 220. 
 
 Farrel «. Baltimore, 244, 290. 
 
 Farrow «. Hayes, 199. 
 
 Fearey ». Hayes, 69, 146. 
 
 Fechheimer v. Baum, 101. 
 
 Feigley, 84, 163. 
 
 Felix ». Patrick, 76, 79, 354, 360, 
 368. 
 
 Fermor's Case, 325. 
 
 Ferrall v. Farnen, 234. 
 
 Ferris, 45. 
 
TABLE OF CASES. 
 
 XIX 
 
 References are to Pages. 
 
 Fidelity v. Mobile, 62. 
 Fiery v. Emmart, 47. 
 Filtz V. Walker, 263. 
 Fishburne v. Ferguson, 215. 
 Fisher v. McNulty, 355. 
 
 V. Shropshire, 55, 220. 
 Fisk, 161. 
 
 V. Henarie, 153. 
 Fitzsimmons «. Ogden, 328. 
 Flanagin c, Hambleton, 280, 341. 
 Fleischman s. Gottschalk, 320. 
 Fletcher v. Ashburner, 291. 
 Flickinger a. Hull, 298. 
 Flook «. Hunting, 72. 
 Fogg ®. Blair, 79. 
 Foley ®. Bitter, 44, 65, 152. 
 
 i>. Crow, 338, 342, 358. 
 
 ». Smith, 262. 
 Folwell V. State, 232. 
 Foos V. Scarf, 52, 61. 
 Fornshill v. Murray, 33, 229. 
 Fosdick V. Schall, 143, 216, 220, 
 
 269, 343. 
 Foster v. Bailroad, 365. 
 
 ■v. Beeves, 186, 236. 
 
 V. Ulman, 238. 
 Fowler d. Black, 326. 
 
 c. Jacob, 295. 
 Fox V. Eeynolds, 42, 103. 
 V. "Wharton, 23, 280. 
 Frank v. Morrison, 142. 
 Franklin «. Ayre, 281. 
 
 v. Waters, 199. 
 Franklin Co. v. Harrison, 313. 
 Frazier ». Gelston, 341, 358. 
 Freeholders s. Bank, 259. 
 Freeman v. Sedwick, 345, 351. 
 Frichnecht v. Meyer, 338. 
 French v. Gapen, 62. 
 Freydenhall b. Baldwin, 237. 
 Friedlander v. Railway, 263. 
 Friend v. Hamill, 288. 
 Frost «. Spitley, 132, 258. 
 Frostburg B. Ass. v. Stark, 142. 
 Fry V. Lane, 361, 373. 
 Fuller 7). Brewster, 220. 
 Fullwood, 354, 372. 
 Fulton V. Graecen, 47. 
 
 Funk V. Newcomer, 340. 
 
 G. •». M., 362. 
 
 Gable B.Scott, 237,262. 
 
 B. Williams, 107, 151. 
 Gape V. Kaufiman, 132. 
 Gaines v. Chew, 76. 
 Gaither ». Clark, 281. 
 
 V. Stockbridge, 28, 139, 
 142. 
 Gandy «. McCaulay, 358, 363. 
 Gardner «. Dick, 165. 
 Garritee v. Popplein, 106. 
 Garsed ■». Beall, 215. 
 Geehter, 117. 
 Gee V. Pritchard, 195, 219. 
 Gemmell b. Bichardson, 239, 
 
 264, 359. 
 German v. Hammerbacker, 295. 
 German Bank «. U. S., 345. 
 Gibbs V. Claggett, 151, 152. 
 
 «. Gas Co., 352. 
 Gibson, 28. 
 
 V. Finley, 294. 
 V. McCormick, 63, 68. 
 Gilbert v. Arnold, 161. 
 Gilston V. RuUman, 137. 
 Gisborn ®. Charter Ins. Co., 288, 
 
 354. 
 GittingsD. Worthington, 248. 
 Given, 260, 309. 
 Glenn v. Clapp, 64. 
 
 V. Clark, 146, 149. 
 V. Davis, 138. 
 ». Garth, 46, 299. 
 V. Hebb, 361. 
 ». Liggett, 45. 
 ». Eeid, 107. 
 ®. Williams, 45, 277. 
 Glenny v. Langdon, 44. 
 Goldsmith v. Gilliland, 79. 
 Golson v. State, 232. 
 Goodman ti. Jedidjah Lodge, 348. 
 
 v. Wineland, 168. 
 Goodrich ®. Houghton, 352. 
 Goodwin v. Stevens, 286. 
 V. White, 239. 
 Gordon, 160. 
 
 V. Small, 43, 354. 
 
XX 
 
 TABLE OF CASES. 
 
 References are to Pages. 
 
 Gormly ». Clark, 261. 
 Gorsuch V. Briscoe, 276. 
 ■0. Thomas, 234. 
 Gottschalk «. Smith, 237, 320, 
 
 339. 
 Gottschalk «. Stein, 136, 259, 312 
 Gough «. Crane, 311. 
 
 V. Manning, 339. 
 V. Pratt, 351. 
 Gould i>. Baltimore, 354. 
 Graham v. Railroad, 364. 
 Grand v. Merklin, 51. 
 Gravely, 43. 
 Gray ». Baynard, 221. 
 V. Kerr, 354. 
 V. Lynch, 156, 262, 367. 
 Great Berlin 8. Co., 346. 
 Great "Western, 288. 
 Green v. Keene, 276. 
 V. Rick, 263. 
 «. Thompson, 363. 
 Gregg V. Baltimore, 62, 63. 
 Gregory «. Commonwealth, 220, 
 370. 
 V. Lenning, 103. 
 ■B. Stetson, 36, 79. 
 Griflee v. Mann, 296. 
 Griffinj). Fries, 261. 
 t. Merril, 59. 
 Griffith ®. Hammond, 121. 
 GriswOld «. Hazard, 163. 
 Grove v. Rentch, 68. 
 ®. Swartz, 167. 
 Grymes ». Sanders, 359. 
 Guarantee Co. ■». R. R. Co., 41. 
 Guerand v. Daudelet, 134. 
 Gurnbee®. Pitkin, 62, 234. 
 Gunstonu. Carroll, 361. 
 Haacker «. Knights, 351. 
 Hagan v. Walker, 54. 
 Hagerty v. Mann, 353, 361, 368. 
 Hagthorp «. Hook, 257. 
 Haines ». Pearce, 371. 
 Hale V. R. R. Co., 52. 
 Hall, 282. 
 
 «. Alcock, 321. 
 
 V. Bank, 321. 
 
 ■B. Claggett, 89, 359. 
 
 Hall B. Eccleston, 283. 
 ■». Hurlbut, 237. 
 V. Jack, 62, &\. 
 «. Law, 353. 
 ®. McCann, 345. 
 «. Ridgely, 63, 297. 
 ■D. U. S. Insurance Co., 142. 
 Hallett v. Collins, 361. 
 Hambleton v. Railroad, 263. 
 Hambrick v. Russell, 52, 54. 
 Hamilton ■». Conine, 185, 245. 
 V. Halstead, 345. 
 V. Schwar, 58, 151. 
 V. Traber,50, 79, 121. 
 Whitridge, 56,133,222. 
 Hammond, 45, 156, 319. 
 
 •B. Hopkins, 355, 
 357, 358, 359, 362, 
 363. 
 V. "Warfield, 296,297. 
 Hampden v. Wallis, 164. 
 Hand ®. R. R. C, 101. 
 Handley «. Heflin, 59. 
 Handy v. Waxter, 36, 37, 52,121. 
 Hanner v. Moulton, 356. 
 Hanson v. Worthington, 35, 298, 
 
 354, 360, 367. 
 Hardin v. Boyd, 69, 76, 146, 148, 
 
 220. 
 Harding v. Allen, 262. 
 Hardisty, 361. 
 
 Hardy v. Bank, 340, 341, 350. 
 Harkens, 163. 
 HarknesB v. Scammon, 220. 
 V. Underbill, 359. 
 Harmon v. Bannon, 243. 
 Harrigan «. Bacon, 220. 
 Harrington «. Grant, 351. 
 Harris ». Alcock, 262. 
 «. Hooper, 54. 
 Harrison v. Railroad, 341. 
 Harryman, 167. 
 
 «. Starr, 341. 
 Hart ■». Sansom, 309. 
 Hartsock «. Russell. 247, 315. 
 Haskie «. James, 32. 
 Haslett c. Glenn, 361. 
 Haugh ». Maulsby, 44. 
 
TABLE OF CASES. 
 
 XXI 
 
 References are to Pages. 
 
 Hawbecker, 288. ' 
 
 Hawes «. Chaille, 305. 
 
 v. Oakland, 45, 48. 
 Hawkins, 346. 
 
 V. Chapman, 43, 359. 
 V. Glenn, 45. 
 Hayden «. Phillips, 316. 
 Hayes v. Brotzman, 142. 
 
 V. Fischer, 161. 
 Hay ward, 104. 
 Hazard v. Durant, 239. 
 Heaps V. Hooper, 234. 
 Hecht «. Colquhoun, 258. 
 Heck B. VoUmer, 137. 
 Hedges v. Dixon County, 79, 
 
 246, 276, 325, 326. 
 HefEron ». Gore, 57. 
 Hetiebower«. Buck, 141. 
 Hefner b. Northwestern Ins. Co., 
 
 54, 57, 61, 78. 
 Heine©. Commissioners, 276. 
 Helfrich «. Water Co., 133. 
 Hemingway v. Coleman, 239. 
 Henderson, 347. 
 Hendrickson 363, 370. 
 Henshaw v. Bissell, 341. 
 Herbert v. Bowles, 104. 
 Herman i). Bran, 229. 
 Hervey v. Rhode, 289. 
 Herzberg v. Warfield, 121. 
 Herzog v. Sawyer, 242, 244. 
 Hess V. Callander, 216. 
 Hewell V. Coulbourn, 280. 
 Hewitt, 359. 
 Hewitts Appeal, 236. 
 HeyderB. Excelsior 220, 333. 
 
 V. Loan, 263. 
 Heryford v. Davis, 281. 
 Hier e. Kauflman, 234. 
 HigginsB. Lodge, 329. 
 Highbergerc. Stiffler, 361. 
 Hill«). Keif snider, 107. 
 
 II. R. E. Co.,98, 
 Hinkley v. Wheelwright, 281. 
 Hindman fl. State 236. 
 Hoaglands. See, 260. 
 Hoffman Co. v. Cumberland Co., 
 
 287,363. 
 
 HoSman«. Gosnell, 283. 
 Holgate «. Eaton, 285, 312, 359. 
 Hollingshead ■». Webster, 327. 
 Hollingaworth v. McDonald, 103. 
 HoUinsD. Brierfield Co., 277. 
 Hollis V. Burton, 154. 
 HoUoway «. Turner, 320, 35 
 Holt «. Wilson, 360. 
 Holthaus «. Nicholas, 62, 151. 
 Homer®. Grosholz, 341. 
 Hopkins®. Hinkley, 238. 
 Home V. Lyeth, 207. 
 Horsey®. Chew, 339. 
 Hoepe ®. Car Co., 277, 345. 
 Hospital®. Foreman, 241. 
 House ®. Mullin, 47, 56. 
 Hovenden®. Annesly, 362. 
 Howard®. Still well, 92. 
 
 ®. Waters, 107, 119. 
 Hower v. Smith, 286. 
 Hoye ». Johnston, 50. 
 
 V. Swan, 239. 
 Hoyt ®. Latham, 358. 
 
 ®. Sprague, 365. 
 Hudson ®. Warner, 282. 
 Huff, 156. 
 
 Hughes®. Nicklas, 326. 
 Humphrey, 16. 
 Hunt V. Hunt, 258. 
 
 ®. Evans,, 48. 
 
 ®. Stewart, 359. 
 Hunter®. Carroll, 348. 
 Hunting ®. Walter. 315. 
 Huntington ®. Attrill, 79, 279. 
 
 ®. Emory, 234. 
 Hurtado ®. California, 213. 
 Hutchins ®. Hope, 364. 
 Hutton, 308. 
 
 ®. Marx, 371, 372. 
 Huyett®. Slick, 364. 
 Hyde®. Ellery, 130. 
 
 ®. Greuch, 232. 
 Idaho Land Co., ®. Bradbury, 
 
 168, 216. 
 Ind ®. Emerson, 22, 184. 
 Inloes V. Harvey, 64. 
 Insurance Co. ®. Brune, 83. 
 Interstate ». Maxwell, 79. 
 
XXll 
 
 TABLE OF CASES. 
 
 Beferences are to Pages. 
 
 Iowa V. Illinois, 88. 
 lyinson v. Hutton, 199. 
 Jackson v. Hodges, 98. 
 
 «. Lawrence, 281. 
 «. Wilson, 123, 320. 
 Jacobson v. Munn, 220. 
 Jaeger «. Hardy, 262. 
 JafEray, 101. 
 
 Jamison v. Chestnut, 44. 
 Jarndyce ». Jarndyce, 19. 
 JefErey v. Flood. 68, 75, 148. 
 Jencks v. Quidnicks, 313. 
 Jenkins v. Jackson, 307. 
 V. State, 99. 
 v. Whyte, 36, 41. 
 Jenkintown Bank, 234. 
 Jennings v. Jordan, 336. 
 Jerome v, McCarter, 54. 
 Jewett «, Tucker, 36. 
 Johnson v. Canby, 282. 
 
 ®. Christian, 130, 198. 
 V. Clendenin, 163. 
 ». Dorsey, 120. 
 «. Hambleton, 54, 262, 
 
 320. 
 V. Hoover, 62. 
 «. Robertson, 41. 
 ®. Waters, 45, 320. 
 Johnston «. Standard, 355, 359, 
 
 365. 
 Johns Hopkins Univ. «. Middle- 
 ton, 52. 
 
 v. Williams, 281. 
 Jones ». Badley, 296. 
 
 «. Building Soc, 240. 
 V. Horsey, 339. 
 V. Keating, 339, 368. 
 ■o. Van Doren, 148. 
 Jordan, 63. 
 
 V. Money, 341. 
 Joy «. St. Louis, 151, 152, 183, 
 
 276. 
 Joyce V. Electric, 269, 347. 
 Juillard s. Orem, 361. 
 Junker «. Busk, 353. 
 Kansas v. Cross, 342. 
 Karberg, 361. 
 Katz «. Brewington, 141. 
 
 KaufEman v. Walker, 119. 
 Kavanaghv. Bailroad, 318. 
 Kay B. Kirk, 133. 
 Keating ■». Price, 315. 
 Keedy i>. Nally, 315, 358. 
 Keep V. Miller, 292. 
 Keighler «. Savage Co., 86, 107. 
 
 V. Wood, 112. 
 Keith, 59. 
 
 Kellam v. Sayre, 47. 
 Keller v. Harper, 257, 291, 299. 
 Kelly v. Baltimore, 137. 
 Kemper v. Campbell, 343. 
 Kendall «. Hamilton, 22, 185. 
 Kendig v. Dean, 48, 53. 
 Kennedy v. Creswell, 320. 
 «. Hazleton, 294. 
 Kenny b. Gillett, 133, 347. 
 Kent«. Canal Co., 79. 
 
 «. Waters, 123. 
 Keplinger®. Maccubin, 236, 297. 
 Kerchner «. Kempton, 39. 
 Kerrison*. Stewart, 43. 
 Keyser v. Kice, 308, 309. 
 Kieley ®. McGlynn, 360, 361. 
 Kilbourn v. Sunderland, 220, 
 
 258, 356, 365. 
 Killian«. Elbighaus, 131, 258. 
 King®. Pillow, 308.. 
 Kinnan v. Eailroad, 260. 
 Kirby ®. Slate, 298. 
 Kirk®. Hamilton, 243. 
 Kitts i>. Wilson, 186, 345. 
 Klein®. Richardson, 221. 
 Knapp B. Bailey, 221. 
 Knatchbull®. Hallet, 183, 213, 
 
 277, 304, 305. 
 Kneeland®. American Loan Co. 
 
 68, 144. 
 Knickerbocker Insurance Co. v. 
 
 Dietz, 286. 
 Knight ®. Brawner, 360. 
 
 V. Watts, 360. 
 Knippendorf v. Hyde, 62. 
 Knowles ®. Roberts, 69. 
 Knox ®. Spratt, 359. 
 Koch V. R. R. Co., 133. 
 Kohn ®. McNulta, 216. 
 
TABLE OF CASES. 
 
 XXHl 
 
 Beferenoes are to Pages. 
 
 Eoontz V. Nabb, 27. 
 Kraft B. Egan, 313. 
 Krone v. Linville, 262. 
 Kulp «. Bowen, 23. 
 Kunkel v. Fitzhugh, 2'50. 
 Laclede Bank «. Schuler, 332. 
 Lacombe ». Forstall, 359. 
 Laeber v. Langhor, 281. 
 Lamar «. Micou, 156. 
 Lamb v. State, 233. 
 Lamerson v. Vroom, 52. 
 Lamm «. Burrell, 75, 136^ 188. 
 Lamott V. Bowly, 372. 
 Lamotte v. Wisner, 372. 
 Lanahan v. Latrobe, 339. 
 Lancy v. Randlett, 316. 
 Langdon ©. R. R. Co., 57. 
 
 V. Sherwood, 198, 307. 
 Langley, 135. 
 
 Lansdale «. Smith, 359, 370. 
 Larmour ®. Rich, 220. 
 Latrobe v. Herbert, 120. 
 Lawrence v. Nelson, 25. 
 Learned o. Foster, 368. 
 Leather Mfrs. Bank v. Morgan, 
 
 340, 341, 350. 
 Lee V. Pindle, 101. 
 V. Stone, 262. 
 Lefew B. Hooper, 46. 
 Legendre v. Byrnes, 363. 
 Leggett V. Standard, 362. 
 Lehigh Co. v. Bamford, 341. 
 Leib V. Stribling, 297, 321. 
 Leishton v. Young, 25, 260, 278. 
 Leiman's Estate, 101. 
 Lembeck b. Nye, 318. 
 Lemen v. McComas, 327. 
 Lemoine u. Dunklin, 354. 
 Lenderking v. Rosenthal, 109. 
 Le Neve, 329. 
 Lenz vs. Prescott, 59. 
 Leonard v. Diamond, 198. 
 
 V. Groome, 54. 
 
 V. Poole, 352. 
 Lester d. Baltimore, 367. 
 
 V. Bank, 361. 
 Le Strange v. State, 119. 
 Levering, 235. 
 
 Lewis V. Loper, 59. 
 
 V. Welch, 240, 364. 
 Life Association v. Siddal, 373. 
 Liggett «. Glenn, 83. 
 Lincoln v. Judd, 363. 
 
 V. Quynn, 278, 329. 
 Lindley v. O'Reilly, 199,280,309. 
 Lindsay Petroleum Co. v. Hurd, 
 
 364. 
 Lingan v. Henderson, 76. 
 Lippincott v. Barton, 318. 
 Lisle «. Tribble, 372. 
 Lister v. Allen, 263. 
 Litch «. Clinch, 86, 361. 
 Litchfield n. Goodnow, 63. 
 Littles. Cushing, 43. 
 
 V. Price, 130, 260, 269, 361. 
 Livingston v. Hail, 99, 132. 
 Locking v. Parker, 280. 
 Lock wood v. Lawrence, 60. 
 Lodorw. McGovern, 261. 
 Loeber ». Eckes, 120. 
 London R. Co. v. S. E. R. Co., 295. 
 Loney v. Bayly, 339. 
 Long, 39, 43, 44, 52, 259, 284, 297, 
 339, 353, 362, 364, 368. 
 V. Long, 381. 
 Loring v. Palmer, 361. 
 Louisville, etc. B. R. v. Palmes, 
 
 79. 
 Lowry «. Bank, 329. 
 Lumley o. Wagner, 134. 
 Lurman v. Hubner, 107, 119, 121. 
 Lasby«. Carr, 320. 
 Lycoming v. Langley, 45. 
 LyellB. Kennedy, 298, 354. 
 Lynn v. Gephart, 289. 
 Lyon D. Stanford, 63. 
 Madigan v. Workingmen, 78. 
 Madison v. Alderson, 341. 
 Magruder v. Peter, 44, 362. 
 Mahoneyv. Mackubin, 120. 
 Mallow V. Hinds, 88. 
 Mandeville«. Welch, 294. 
 Manfrs. Bank®. Swift, 367. 
 Manhattan v. Wood, 344, 347. 
 Mannix v. Purcell, 316. 
 Marlow®. McCubbin, 288. 
 
XXIV 
 
 TABLE OF CASES. 
 
 References are to Pages. 
 
 Marrey v. Stout, 221. 
 Marsh b. WMtmore, 359. 
 Marshall, 60. 
 
 s. Cooper, 333. 
 Martins. Gray, 359. 
 
 V. Osborn, 221. 
 
 «. Purnell, 36. 
 Maryland Brick Co. ». Spilman, 
 320. 
 
 Ins. Co. V. Gusdorf, 
 243, 340. 
 Mason, 362. 
 
 «i. Equitable League, 134, 
 
 142. 
 s. Hoyle, 221. 
 Maughlin ®. Perry, 285. 
 Maulsby, 158, 161. 
 Maxwell v. State, 290. 
 May v. Buckhannon, 330. 
 Mayer®. Coley, 318. 
 
 V. Tyson, 151. 
 McAleer v. Horsey, 238. 
 McAndrews v. Bassett, 312. 
 McArthur«. Scott, 36, 39, 43, 44, 
 
 259. 
 McBride v. Mclntire, 236. 
 McCall V. Pixley, 345. 
 McCarty v. Ball, 327. 
 McConihay v. Wright, 26, 339. 
 McConkey d. Cockey, 361, 363. 
 McCoy «. Horwitz, 156. 
 
 ®. Johnson, 99, 258. 
 
 V. Poor, 359, 362, 363, 364. 
 McCuUoch ». Maryland, 53. 
 McCurley, 111; 
 McDonald v. Work, 107. 
 McDonnell v. Milholland, 314, 
 
 359. 
 McElrath 7>. Railroad, 308. 
 McFadden «. Hef ley, 291. 
 McGean ®. Railroad, 261, 316. 
 McGinn v. Tobey, 330. 
 McGivney, 359. 
 McGraw v. Canton, 101. 
 McGuire e. Devlin, 362. 
 Mclntire n. Miller. 199. 
 McKaig «. Hebb, 353. 
 McKeesick v. Seymour, 316. 
 
 McKim V. Odom, 42, 48, 243. 
 
 ®. Thompson, 149. 
 McLaughlin v. Barnum, 337. 
 McLean «. Fleming, 369. 
 McMechen v. Maggs, 282. 
 McMicken®. TJ. S., 46. 
 McQuery «. Gilliland, 308. 
 McEae, 291, 293. 
 McShane 'b. Hazlehurst, 269. 
 Mears d. Moulton, 45, 107. 
 Medford v. Levy, 348. 
 Mellen n. Moline, 62, 65, 259. 
 Meeks v. Olpherts, 360. 
 Mendenhall v. Hall, 57. 
 
 V. Steckel, 314. 
 Menendez v. Holt, 327, 333, 354, 
 
 369 372 
 Mercantile v. E. E. Co., 152. 
 
 Bank v. Carpenter, 
 355. 
 Merrill ». Comrs., 288. 
 Metcalf «. Gilmore, 244. 
 Metropolitan Bank v. St. Louis 
 
 Despatch Co., 353. 
 Meyer n. Johnston, 144. 
 
 D. Steuart, 107. 
 Middaugh «. Fox, 363. 
 Miles «. State, 235. 
 Milholland v- Tiffany, 333. 
 Miller v. Baltimore Co. Marble 
 Co., 60, 79. 
 
 i>. Murray, 106. 
 Milligan v. Pleasants, 315. 
 Mills V. Seed Company, 318. 
 Miltenberger v. Logansport E. 
 
 Co., 52, 54, 144. 
 Milward e. Weldon, 88. 
 Milwaukee R. Co. v. Soutter, 34S, 
 
 367. 
 Minnesota. Co. v. St. Paul Co. 51. 
 Mississippi Mills Co, s. Cohn, 25, 
 151. 
 
 E. R. s. Cromwell, 
 
 313. 
 & Missouri R. Co. v. 
 Cromwell, 269. 
 Mitchell V. Comrs., 269. 
 u. Colburn, 339. 
 
TABLE OF CASES. 
 
 XXV 
 
 Beferenoea are to Pages. 
 
 Mitchell cTarrish, 60, 331. 369. 
 Moale V. Buchanan, 312, 339. 
 Mobile e. Burke, 60. 
 
 e. R. R. Co., 229. 
 Montague ». Sewell, 281. 
 Montgomery & Fla. R. Co. e. 
 
 Mackenzie, 261. 
 Moore v. Crawford, 294, 295, 361. 
 
 V. Green, 361. 
 Moran v. Clark, 221. 
 Morgan e. R. B., 340. 
 Morganstern v. 8huster,^59. 
 Morrill, 282. 
 Morse «. Hill, 220, 356. 
 Morton e. Grafflin, 48, 136, 308, 
 
 320, 321 
 Moser v. Lower, 220. 
 Mount V. Manhattan Co., 64. 
 Mugler V. Kansas, 229, 287. 
 Muller c. Dow, 308. 
 Mundorf d. Wickorsham, 263. 
 Munnikhuysen «. Magraw, 359. 
 Murguiondo ®. Hoover, 60. 
 Murray v. Feinour, 155, 156. 
 Mutter o. Railwav, 347. 
 Mutual 'L. I. Co. v. Everett, 285. 
 Myers 'B. Fenn, 62. 
 
 B. Silljacks, 286, 361, 364. 
 Naddo V. Bardon. 356, 361, 362, 
 
 364, 368. 
 Nally o. Long, 235. 
 National Bank v. C^penter, 79. 
 v. Insurance Co., 
 
 89 
 V. Kimball, 343. 
 e. Lanahan, 107, 
 
 131. 319, 320. 
 of England v. 
 Jackson, 263. 
 Nat'l Mechanics Bank of Balto. 
 
 V. Nat'I Bank of Balto., 241. 
 Neal V. Rathell, 54, 57, 58, 220. 
 Neale v. Hagtborp, 86. 
 Needles e. Martin, 354. 
 Negro Charles v. Sheriff, 135. 
 Nelson v. Bank, 283, 359. 
 
 V. Hill, 56, 59. 
 Nesbitt V. Dallam, 149. 
 
 Neves v. Scott, 25. 
 Nevin e. Gillespie, 284. 
 Ne wbold v. Peabody H eights Co. , 
 28P, 313. 
 V. Scblens, 44, 121. 
 Newcomer v. Kline, 199. 
 New Hampshire v. Louisiana, 49. 
 New Orleans v. Gaines, 329. 
 
 r>. Louisiana C. Co., 
 
 ^5. 
 V. Paine 126. 
 New Y. Mutual Life Ins. Co. v. 
 
 Armstrong, 349. 
 Nickerson, 220, 239. 
 Nichols V. McCarthy, 345. 
 
 V. Pitman, 130. 
 Niles V. Edwards, 95. 
 Noble ®. Ahier, 31. 
 
 V. Turner, 79, 220, 227,294, 
 
 354, 356, 358, 359, 368. 
 v. TJnion, 259. 
 Nolan u. Snodgrass, 354. 
 Norrington ». Wright, 286. 
 Norris v. Haggin, 79, 353, 364. 
 North Baltimore Pass. R. C. v. 
 
 R. R. Co., 133. 
 North'n Pac. R. R. v. Paine, 25, 
 199. 
 V. Walker, 60 
 Norton e. Ray, 199. 
 Nudd V. Powers, 363. 
 Nyce V. Horwitz, 367. 
 Ober V. Keating, 282, 283. 
 O'Brien «. Fowler, 245. 
 
 V. B. R. Co., 133. 
 Odell, 281. 
 
 Odd Fellows «. Merklin, 281. 
 Odd Fellows Appeal, 236, 261. 
 Oehm V. Ruckle. 139. 
 Ogle v. Tayloe, 340, 362. 
 Ohio R. v. Trust Co.^ 78. 
 Oliver e. Caton, 51. 
 r. Piatt, 56. 
 Onward v. Smithson, 340. 
 Oregon v. Rocca, 99. 
 Orem v. Wrightson, 236, 289, 320. 
 O'Rorke v. Bolingbroke, 220, 362. 
 Orrick v. Boehm, 151. 
 
XXVI 
 
 TABLE OF CASES. 
 
 Beferenoes are to Pages. 
 
 Osborn «. Missouri, 133. 
 Oswald «. Hoover, 335, 362. 
 Otis «. Gregory, 344. 
 Otta «. Newton, 278. 
 Overmire>«. Haworth, 259. 
 Owen V. Homan, 220. 
 
 ■B. Weston, 234, 243. 
 Owens ®. Crow, 47, 354, 360, 373. 
 
 V. Owens, 349. 
 Owings, 106. 
 Pacific K. Co. o. Missouri E. Co., 
 
 361. 
 Page V. Whidder, 61. 
 Paget V. Gee, 248, 
 Palro «. Vickery, 281, 356, 368, 
 
 363, 372. 
 Parker v. Dacres, 25, 359. 
 
 V. Winnipiseogee Co., 26. 
 Park Heights Co. e. Oettinger, 
 
 262, 284. 
 Farlett v. Guggenheimer, 347. 
 Parr v. State, 63. 
 Patterson v. Caldwell, 293. 
 
 V. Wilson, 100. 
 Paul V. Gloucester, 2. 
 
 B. Locust Point Co., 237. 
 Paulsen ®. Portland, 36. 
 Payne v. Hook, 37. 
 Peake v. New Orleans, 305. 
 Penn «. Ingles, 261. 
 
 v. Lord Baltimore, 308. 
 V. McCullough, 312, 313. 
 Penn R. Co. Appeal, 358. 
 Pennington, 99. 
 Ponnoyer ®. McConnaughy, 49. 
 
 V. NefE, 41. 
 Pennsylvania ®. Wheeling, 48. 
 Peoples Bank v. Shryock, 199. 
 Peoria v. Chicago, 62. 
 Percy ». Cockrill, 327, 329. 
 Peters n. Van Lear, 58. 
 Peugh v. Davis, 281. 
 V. Porter, 294. 
 PfeaS D. Jones, 123. 
 Pfeltz, 102. 
 
 Philadelphia's Appeal, 221. 
 Phillippi V. Phillipe, 35^, 362. 
 
 Phillips D. Negley, 234. 
 V. Shipley, 166. 
 Phoenix Ins. Co. ■». Ryland, 260, 
 
 262. 
 Piedmont R. Co. «. Speelman, 
 
 347; 
 Pillow i>. King, 308. 
 Pilzer B. Hughes, 269. 
 Pinckney v. Lanahan, 296, 320. 
 Piper B. Hoard, 276. 
 Pitney v. Everson, 297. 
 Plitt, 101. 
 
 Poindexter v. Burwell, 284, 309. 
 Poland V. R. R. Co., 68, 260, 269, 
 
 280 282 
 Polk 'v. Pendleton, 132, 258. 
 V. Reynolds, 289. 
 V. Rose, 132. 
 Pope Mfg. Co. V. GormuUy, 313. 
 Popplein V. Foley, 247, 314. 
 PorrettB. White, 154. 
 Porter «. Dubuque, 220. 
 
 V. Sabin, 48. 
 Post v. Mackall, 321. 
 Postal B. Snowden, 62. 
 Potter, 236. 
 
 Poullain v. Brown, 235. 
 Poulter V. Shackel, 335. 
 Powers App., 216. 
 Prentices. Stearns, 199. 
 Presstman v. Mason, 102, 339. 
 Preston, 313, 353. 
 Preteca v. Maxwell, 259, 317. 
 Price ». Coleman, 61. 
 ®. Hobbs, 321. 
 «. McDonald, 282. 
 Procter v. Bank, 308. 
 Providence Ins. Co. ®. Adler, 
 
 349. 
 Provost V. Abercrombie, 246. 
 Prunty v. Basshor, 240, 352. 
 Pullman v. Stebbins, 59. 
 Queen v. Tolson, 232. 
 Quincy v. Humphreys, 28, 139. 
 Quintini v. Board, 229. 
 Rachel Colvin's Will, 245. 
 RaSerty v. Central, 58. 
 
TABLE OF CASES. 
 
 XXVll 
 
 References are to Pages. 
 
 Railway Company «. Ailing, 45. 
 V. Iron Com- 
 pany, 367. 
 Ramskill v. Edwards, 320. 
 Eatclifle v. Stretch, 234. 
 Re Boyes, 238. 
 Re Cawley, 186. 
 Reckef us v. Lyon, 59, 60. 
 Reddington «. Lanahan, 79. 
 Bedfield v. Parks, 296. 299. 
 Reed «. Axtell, 216. 
 
 ®. McConnell, 69. 
 Rees V. Watertown, 276. 
 Reeside v. Peter, 262. 
 Reeves s. Morgan, 260. 
 Rehner v. Dumont, 259. 
 Reid V. Gordon, 283. 
 «. Mayer, 46. 
 v. McGowan, 186. 
 V. StoufEer, 151. 
 Reif; v. Horst, 241. 
 Re Lytton, 220. 
 Reno V. Moss, 23. 
 Republic of Liberia v. Eoye, 156. 
 Re Sawyer, 229. 
 Respass v. Jones, 345. 
 Re Vernon, 365. 
 Reyner v. Dumont, 317. 
 Reynolds v. Stockton, 299. 
 Re Young, 43. 
 Rice, 330. 
 
 V. Edwards, 69, 109. 
 
 V. Rockefeller, 347. 
 
 Richards v. Mackall, 359, 368. 
 
 Richardson v. Billingslea, 359. 
 
 Richmond v. Irons, 44, 220, 297, 
 
 319, 320, 339, 353. 
 Riddle v. Wliitehill,:353. 
 Rider v. Morrison, 277. 
 
 v. Risley, 86. 
 Ridgely v. Bond, 68, 324, 343. 
 Ridgway, 362. 
 Ridings i>. Johnson, 26. 
 Bigden v. Marten, 166. 
 Riggs V. Johnson Co.,' 258. 
 V. Palmer, 288, 349. 
 RUey V. Carter, 79, 109, 276, 296, 
 320. 
 
 Ringgold, 104, 105, 107. 
 Riverdale «. Westcott, 133. 
 Rhode Island v. Massachusetts, 
 
 258. 
 Rhodes v. Amsinck, 65, 320. 
 Robard v. Lamb, 43. 
 Robbins v. Chicago, 63. 
 V. Conley, 316. 
 Robertson ®. Berry, 347. 
 
 «. Carson, 51. 
 
 ■0. Mowell, 360, 362. 
 
 V. Parks, 125, 238. 
 Robinson, 158. 
 Roby V. Colehour, 354. 
 
 V. Eggers, 316. 
 Rohrback, 100. 
 Roman v. Mali, 345, 351, 358. 
 Rooney v. Michael, 260. 
 Root ®. Railway Co., 221. 
 ■B. Woolworth, 353. 
 Ross B. Railroad, 371. 
 Rouse V. Bank, 277. 
 Rouskulp ®. Kershner, 78, 81, 83, 
 
 84, 89, 281. 
 Rowland ». Prather, 257. 
 Royston ». Horner, 83, 88, 96, 98, 
 
 100. 
 Ruckman v. Cory, 362. 
 Ruppertsberger v. Clark, 368. 
 Russell V. WAtts, 372. 
 RuBsman v. Wanser, 282. 
 Rust ®. Lynch, 78. 
 Ryan «. Mutual, 220, 269. 
 Sadler v. Whitehurst, 60. 
 Sage V. B. R. Co., 220. 
 St. Johnsbury v. Morrill, 63, 263. 
 St. Louis V. Wilson, 48. 
 St. Romes v. Levee, 53. 
 Salmon r>. Clagett, 126, 130. 
 Salsbury v. Black, 359. 
 Sanchez v. Dow, 370. 
 Sanford v. Lancaster, 199. 
 Sanger v. Nightingale, 354. 
 Sangston v. Hack, 368. 
 Savary v. DaCamara, 42, 53, 103. 
 Savin, 161. 
 Savings Bank v. Creswell, 263. 
 
 V. Nat. Bank, 221. 
 
XXVIU 
 
 TABLE OF CASES. 
 
 Bef erences axe to Pages. 
 
 Sawyer, 33, 259. 
 
 e. Hoag, 277. 
 Saxton V. Seiberling, 220. 
 Scarborough v. Scotten, 258, 276. 
 Scarlett v. Academy of Music, 146 
 Schadt «. Blaul, 342, 372. 
 SchaefCer a. Bond, 320. 
 Schaferman «. O'Brien, 64. 
 Scbantz v. Kearney, 234. 
 Scbindel b. Keedy, 119. 
 School Directors, 316. 
 Schroeder v. Loeber, 75, 259. 
 Schultz V. McLean, 263. 
 Schuman v. Peddicord, 345. 
 Scott V. Amos, 151. 
 v. McCann, 93. 
 V. Neely, 25. 
 Sebring, 355. 
 Second Nat. Bank «. Wrightson, 
 
 315. 
 Sedgwick v. Taylor, 220, 362. 
 Seebold v. Lockner, 83. 
 Seldner v. McCreerV, 125, 313, 
 
 329. 
 Sellm'an, 46, 79. 
 Semmes r>. Worthington, 129,220, 
 
 247, 269, 313. 
 Sergeant ®. Baldwin, 52. 
 Sewell V. Slingluff, 295, 363. 
 Seymour v. Freer, 291. 
 Shafer v. O'Brien, 61. 
 Shaffer v. Fetty, 57. 
 Shakespeare «. Lambert, 88, 180, 
 
 279. 
 Sharon v. Turner, 131. 
 Sharp V. Taylor, 351. 
 Sharps, 362. 
 ShawB. E.R. Co., 43. 
 Sheats «. Evans, 285. 
 Sheffield «. Witherow, 80. 
 Shertzer v. Insurance Co., 245. 
 Shields v. Barrow, 36, 62. 
 Shipley «. Fox, 289, 341. 
 Shoemaker v. Cake, 220, 238. 
 Short V. Kieffer, 220. 
 Shotwell «. Moore, 269. 
 Shreve c. Shreve, 39. 
 
 Shriver v. Seiss, 269. 
 
 v.. State, 165. 
 Shryock v. Morris, 79, 96, 104, 
 
 259. 
 Siegert i>. Abbott, 347. 
 Simmons ®. Doran, 221, 260, 329, 
 
 362. 
 Simms «. Lloyd, 45, 63, 68, 355. 
 Sims V. Everhart, 360. 
 Sitler V. McComas, 283. 
 Sixth V. Wilson, 44. 
 Slim «. Croucher, 215. 
 Sloan V. Safe Deposit Co., 257. 
 SloBS V. Mcllvane, 163. 
 Small «. Marburg, 291, 313.- 
 Smethurst v. Hastings, 373. 
 Smith V. Bourbon Co., 290. 
 
 V. Clay, 227, 359. 
 
 v. Combs, 354. 
 
 V. Craft, 220. 
 
 V. Darby, 302, 303. 
 
 V. Devecmon, 296. 
 
 V. Essex, 185. 
 
 V. Express Co., 63. 
 
 V. Gaines, 52. 
 
 v. Gale, 61. 
 
 V. McCann, 185. 
 
 V. Profltt, 285. 
 
 «. Railway, 361. 
 
 1). Scribner, 60. 
 
 V. Shafer, 54. 
 
 V. Shaffer, 100. 
 
 «. State, 234, 245. 
 
 v. Stephen, 48. 
 
 V. Swormstedt, 45. 
 
 v. Townshend, 337, 338. 
 
 «. Wood, 353. 
 Smoot D. Rea, 285. 
 Snook V. Pearsall, 67. 
 
 V. Snetzer, 308. 
 Snowden, 41. 
 
 V. Dispensary, 226,276, 
 
 317. 
 B. Preston, 234. 
 Snyder, 351. 
 Soar V. Ashwell, 354. 
 Somerville v. Johnson, 163. 
 
TABLE OF CASB8. 
 
 XXIX 
 
 Keferences are to Pages. 
 
 Sommers v. Boyd, 296. 
 Southern Express Co. e. Western, 
 
 312. 
 Sparhawk ®. Yerkes, 334. 
 Speidel v. Henrici, 354, 355. 
 Speights V. Peters, 141. 
 Spencer, 361. 
 
 o. Turnpike, 358. 
 Splane, 2. 
 
 Spiigg o. "Western, 136. 
 Stacfaelberg D. Ponce, 133. 
 Stafford «. ScropgiBS, P6. 
 Stanhope v. Dodge, 283. 
 Stansbury v. Inglehart, 8, 363, 
 
 370. 
 State V. Baltimore & Ohio R. Co., 
 351. 
 
 e. Banks, 125. 
 V. Brown, 146. 
 «. Buchanan, 213. 
 V. Burpee, 232. 
 «. Cheston, 298. 
 V. Dieley, 320. 
 V. Humbird, 245. 
 o. Irwin, 162. 
 o. Reigart, 361. 
 V. R. R. Co., 137. 
 V. Weiskittle, 234. 
 V. Williams, 166. 
 Tax Cases, 343. 
 Stebbins v. St. Anne, 47. 
 Steiger v. Hillen. 356. 
 Steinau v. Gas. Co., 186. 
 Sterling v. Garritee, 245. 
 Steuart e. Meyer, 132. 
 Stevens v. Bond, 119. 
 V. Fuller, 161. 
 V. Gage, 236. 
 Stewart e. Canal, 101. 
 T. Codd, 107. 
 c. Firemens Ins. Co., 52, 
 
 329 
 V. Flint, 290. 
 Stiles V. Brown, 359. 
 V. Willis, 314. 
 Stillman v. Dougherty, 142. 
 gtockett «. Goodman. 62, 64. 
 Stokes V. Detrick, 125. 
 
 Straughan «. Hallwood, 148. 
 Straus V. Rost, 104. 
 Strike, 91, 183. 
 
 «. McDonald, 63. 
 Stryker v. Goodnow, 63. 
 Stuart 0. Boulware, lul. 
 
 «. Palmer, 36. 
 Sturm «. Boker, 345. 
 Sumter v. Mitchell, 61, 221. 
 Sunflower c. Wilson, 260. 
 Sullivan v. Howard, 155. 
 
 u. RaUroad, 357,359,364. 
 Swan e. Dent, 319. 
 
 V. Frank, 46, 48. 
 Swartz V. Chickering, 107. 
 Swift V. Bank. 107. 
 Sykes v. Beadon, 352. 
 Tabler ®. Castle, 102. 
 Tailby d. Official Receiver, 268, 
 
 293. 
 Tarn v. Turner, 222, 280. 
 Taylor v. Holmes, 359. 
 V. Mallory, 79. 
 V. Russell, 331. 
 s. State, 99, 125, 185, 235. 
 «. Todd, 268. 
 V. Von Schraden, 345. 
 V. Watson, 288. 
 Teackle c. Gioson, 353. 
 Terney o. Wilson, 333. 
 Terra Cotta Co., 215. 
 Terry, 159, 161. 
 
 V. Fontaine, 358. 
 Texas v. Hardenberg, 278. 
 Texas R. R. «. Marshall, 313. 
 Texas R. R. Co. v. S. R. Co., 352. 
 Thayer d. Life Asbo., 52. 
 Third National Bank v. Lange, 
 133. 
 V. Lana- 
 han, 237. 
 Thomas ^. Bank, 63, 123. 
 D. Brown, 151. 
 B. Brownville R. R. Co., 
 
 324, 338, 344. 
 V. Doub, 149. 
 0. Farmers' Bank, 339. 
 
XXX 
 
 TABLE OF CASES. 
 
 Eeferencea are to Pages. 
 
 Thomas «. Frederick, 149. 
 V. Gregg, 284, 287. 
 V. Musical Union, 186. 
 ®. Watson, 351. 
 Thompson o. Allen Co., 276. 
 V. Ballard, 284. 
 ■». Hudson, 279. 
 ®. McKim, 99. 
 V. Ogle, 236. 
 V. R. R. Co., 162. 
 ». Sheppard, 278, 318. 
 Thomson v. Wooster, 78. 
 Thorndike, 308. 
 Throckmorton «. Finch, 16. 
 Tiernan v. Poor, 282. 
 
 9. Bescaniere, 353. 
 Tilton V. Cofield, 64. 
 Timanus «. Dugan, 39. 
 Timms 'b. Shannon, 280. 
 Timson v. Wilson, 33, 216. 
 Titman «. Thornton, 368. 
 Todd V. Gallego, 221. 
 
 V. Grove, 163, 164. 
 Toledo B. Co. v. P. R. Co., 276. 
 Tome V. King, 52, 62, 140. 
 Tongue \>. Nutwell, 342, 343. 
 Torrent v. Hamilton, 61. 
 Townsend «. Duncan, 121. 
 •B. Shaflfer, 278. 
 Trageser v. Gray, 287. 
 Trego V. Skinner, 58, 59, 226. 
 Trevelyan v. Loft, 220. 
 Triebert ■». Burgess, 282. 
 Trimble «. Woodhead, 44. 
 Trotter ». Hecksher, 69, 221, 344. 
 Trustees v. Greenough, 45, 100, 
 101. 
 V. Heise, 58, 121, 123, 
 151. 
 Tubman «. Lowekamp, 263. 
 Tucker b. Sum wait, 280. 
 Tulford V. Keerl, 281. 
 Tullar V. Baxter, 59. 
 Turner ». Sawyer, 296. 
 
 V. Dillard, 359, 370. 
 Twin Lick Oil Co. ■». Marbury, 
 
 359 
 Tyler's. Savage, 258. 
 
 Tyson ». Applegate, 52. 
 
 v. Mickle, 120, 262. 
 Ulman v. Baltimore, 36, 133. 
 Underwood «. Dugan, 356. 
 Union Association «. Morrison, 
 337, 344. 
 Bank v. Kerr, 153. 
 
 of London v. Kent, 
 330. 
 Ins. Co. D.Wilkinson, 340. 
 R. K. Co. V. Dull, 269. 
 Pae. R. Co. v. Durant, 351. 
 ®. McAlpine, 
 285. 
 Pass. E. Co. V. Baltimore, 
 226, 260. 
 Uiiited Lines Co. v. Stevens, 99, 
 
 104, 155. 
 U. S. V. Beebe, 358, 369, 370. 
 
 B. Bell Telephone Co., 2, 25 
 
 59, 60, 76. 
 V. Des Moines Co., 79, 389. 
 ■B. Hudson, 158. 
 V. Insley, 369. 
 ■B. Mining Co., 859. 
 V. McRae, 344. 
 V. Stowell, 297. 
 «. U. P. R. R. Oo.,57. 
 ®. Wilson, 258. 
 Trust Co. v. Wabash R. R. 
 139. 
 United Telephone Co. v. Dale, 
 
 134. 
 Vadala v. Lawes, 350. 
 Valentine v. Lunt, 340. 
 Vance «. Motley, 363. 
 Vaught B. Cain, 286. 
 Vetterlein v. Barnes, 43. 
 Virginia v. Canal Co., 48, 151. 
 Vreeland, 60. 
 
 Wade®. Pulsifer, 58, 71, 220, 360, 
 364. '. ' ' ' 
 
 Wagner v. Shank, 109. 
 Wagoner, 80, 83, 146, 149, 269. 
 Wailes v. Smith, 129. 
 Walden v. Skinner, 50. 
 Walker ». Powers, 47, 60, 61, 320. 
 Wall V. Bissell, 298. 
 
TABLE OF CASES. 
 
 XXXI 
 
 Beferences are to Pages. 
 
 "Wallace «. DuBois, 272, 302. 
 V. Johnstone, 281. 
 V. Loomis, 143, 144. 
 V. Smith, 359. 
 Wallingford v. Mutual, 76. 
 Walsh ®. Preston, 312. 
 Walter v. Kiehl, 37, 38, 51, 54. 
 Walters u. Chichester, 63. 
 Wanger v. Aspell, 220. 
 Warden v. Union Pacific R. Co.; 
 
 338. 
 Warehime o. Carroll, 284. 
 Warfield v. Gambrill, 86. 
 Warner v. Sprigg, 207, 247, 297,' 
 
 326. 
 Warren v. Bunch, 216. 
 V. Twilley, 149. 
 Wartman, 154, 155, 160, 161. 
 Wasatch v. Crescent, 314. 
 Washington ®. Opie, 359, 362. 
 
 Bank v. Hume, 220. 
 
 «. Thornton, 
 
 57, 60, 220. 
 
 Washington Co. d. Davison, 92. 
 
 Washington TJniversity e. Green, 
 
 127. 
 Waterman v. Alden, 300. 
 
 V. Sprague, 220, 363. 
 Watkins ®. Holman, 309. 
 
 «. State, 298. 
 Watson, 289. 
 
 V. Murray, 303. 
 V. Sutherland, 258, 276. 
 Watt V. Starke, 168, 216. 
 Weaver v. Gore, 262. 
 
 D. Leiman, 50, 353, 354, 
 360, 361. 
 Webb V. Jonas, 366. 
 Webber ©. Clark, 333. 
 Webster v. Cooper, 99. 
 Weikel v. Cate, 131, 315. 
 Welch V. County Court, 221. 
 Wells D. Robinson, 281. 
 
 V. Sewell, 60. 
 Wenstrom Co. v. Purnell, 76. 
 West of England Bank ■». Murch, 
 
 298. 
 Westmoreland v. Fielder, 69. 
 
 Whelan v. Cook, 150. 
 White, 327. 
 
 ®. Davidson, 135. 
 
 V. Davis, 66. 
 
 V. Malcolm, 119, 150. 
 
 V. Neaylon, 247. 
 
 v. White, 308. 
 Whitehead ». Shattuck, 25. 
 Whiting, 43. 
 
 V. Bank, 102. 
 Wlytley ®. Challis, 186. 
 Whitman «. Robinson, 141. 
 Whitridge, 358, 363. 
 Wickersham v. Crittenden, 276. 
 Wiest V. Gorman, 238. 
 Wiggins V. Railway, 68. 
 Wilcocks V. Wilcocks, 302. 
 Wilde «. Attix, 263. 
 
 ». Scotten, 129, 269. 
 Wilkes ®. Burns, 285. 
 Wilkins v. Thome, 47. 
 Willard v. Ramsburg, 194. 
 Williams, 216, 221. 
 
 V. Bankhead, 36, 51. 
 V. Morgan, 62. 
 V. Peters, 235. 
 V. Savage, 149. 
 V. U. S., 76. 
 Williamson v. Williams, 139. 
 
 «. Wilbon, 141. 
 Wilson, 58, 286. 
 
 V. Herbert, 285, 312. 
 
 V. Insurance Co., 372, 
 
 v. Joseph, 308. 
 
 V. Kelly, 101. 
 
 V. McCarty, 360. 
 
 v. Riddle, 168, 216, 244. 
 
 B. Watts, 351. 
 Wilmot «. Barber, 371. 
 Wimer, 309. 
 
 Winder v. DifEenderffer, 91, 93. 
 Windsor v. McVeigh, 86, 69, 259. 
 Wingert «. Gordon, 62. 
 Winn V. Eaton, 199. 
 Winsor v. Pettis, 60. 
 Wisconsin v. Insurance Co., 49. 
 Wolf «. Baureis, 50. 
 Wolmershausen ». Gullick, 320. 
 
XZZII 
 
 TABLE OF CASES. 
 
 BefeTences are to Pages. 
 
 Wolverton «. Taylor, 171, 258. 
 Wood «..Dummer, 277. 
 
 V. Fulton, 282. 
 
 V. Patterson, 314. 
 
 ®. Trust Co., 220, 28?. 
 Woodbury «. Gardner, 23, 52, 292. 
 Wooden «. Kerr, 298. 
 Woodruff 1). Apgar, 198. 
 Woods V. Fuller, 320. 
 Woodward, 350. 
 Woodyear v. Schaef er, 36^i 
 Woolen ®. Hillen, 321. 
 WooUey v. Pemberton, 60. 
 Wootten V. Burch, 68. 
 Wormley v. Wormley, 50. 
 Worthington v. Hiss, 337. 
 
 9. Lee, 41, 76, 78, 
 219,220,309,361. 
 Yates v. Donaldson, 199. 
 Yearley v. Cockey, 359, 368, 370. 
 
 Yeaton v, Lenox, 58. 
 Yelverton v. Coley, 235. 
 Yingling v. Miller, 246. 
 Yoe D. Howard Mutual Associa- 
 tion, 238, 286. 
 Young, 282. 
 
 V. Bradley, 284. 
 ». Lyons, 51, 58, 152. 
 V. Mackall, 353. 
 V. Omohundro, 92, 107. 
 V. Thrasher, 298. 
 V. Twigg, 87. 
 Zebley v. Farmers Co., 355. 
 Zihlman, 131. 
 
 v. Cumberland Glass 
 Co., 86. 
 Zimmer v. Miller, 107. 
 Zimmerman v. Fraley, 155, 158, 
 262, 284, 361, 362, 363, 364, 371, 
 373. 
 
9!urftitcal tanitv* 
 
 ^avi I. 
 
 Courc£ of equity. 
 
CHAPTER I. 
 
 COURTS O'F EQUITY. 
 
 1. Curia Regis. 
 
 2. Courts of Westminster Hall. 
 
 3. High Court of Chancery — its ordinary jurisdiction. 
 
 4. Writ. 
 
 5. Chancellor — his extraordinary jurisdiction. 
 
 6. Ecclesiastipal Courts. 
 
 7. Their specific operation. 
 
 8. Their influence upon Chancery. 
 
 9. A hybrid product. 
 
 10. The war between the Courts. 
 
 11. Other Courts of Equity. 
 
 12. House of Lords. 
 
 13. Organization of the Court of Chancery. 
 14-15. Its abuses — reform and abolition. 
 
 16. Judicature Acts. 
 
 17. Courts of Equity in the United States. 
 
 18. Federal Courts. 
 
 19. Courts of Equity in Maryland. 
 
 § 1. Curia Reg^s. All courts of equity, as to 
 their jurisdiction, principles and procedure, are sub- 
 stantially modelled after the late high court of chan- 
 cery in England. To find the place in history of this 
 venerable court it will be necessary to go back to the 
 Curia or Aula Regis of the early Norman kings, and 
 trace the successive formation of the historic tribu- 
 nals which eventually came to supersede it.* While 
 
 n Bl. Com. 147; 3 Bl. Com. 46-55, 426-455; 1 Spence, Eq. 78, 328, 
 &c. ; Parke's Hist. C. C; Haynes' Outlines, Lect. II; Maitland's J. 
 and P., ch. IV; Hallam, M. A., ch. 8; Reeves' Hist. Com. Law; 
 Bisph. Pr. Eq., ch. I; 1 Pom. Eq. Jur., sees. 31-35; Barton's Suit in 
 Eq., by Ingersoll. 
 1 
 
5 
 
 2 COCKTS OF EQUITY. 
 
 making this inquiry, it is to be remembered that the 
 strict separation of the three great branches of 
 gOTernment between the executive, legislative and 
 judicial departments, which has been found so essen- 
 tial to constitutional liberty,* is an idea of modern 
 growth.^ All these attributes of sovereignty were 
 in very early times confounded and concentrated in 
 the crown. The Agora of primitive Greece was the 
 "scene in which justice was administered, and the 
 king is spoken of as constituted by Zeus, the great 
 judge of society."' JEneas, on his arrival in Car- 
 thage, finds the queen engaged as legislator and 
 judge.* The judges of Israel were de facto rulers; 
 and the "judgments" of Solomon were highly 
 esteemed, although hardly available as precedents." 
 In like manner, the kings of old England claimed 
 and exercised both judicial and legislative power.' 
 Shakespeare, in the first act of king John, drama- 
 tizes a suit involving the title to real estate, heard 
 and decided by the king in person. 
 
 iDorsey, 37 Md. 79; V. S. vs. Bell Telephone Co., 128 U. S. 358; 
 Craig vs. Leitensdorfer, 123 U. S. 211, Paul vs. Gloucester. 50 N. J. 
 Law, 585, 610; Splane. 123 Pa. 540. 
 
 ^Montesquieu, Esprit des Lois, XI, 6. 
 
 ^Grote's Greece, II, 99; Horn. II., I, 238. 
 
 *Jura dabat legesque niris., Mo., I, 507; evidently a Boman, not 
 less than a Punic picture. 
 
 ^Judges, 111,10; X, 22; Ruth, I, 1. 
 
 «I Kings, III, 25, 28. 
 
 'In theory, the administration of justice in England, both civil 
 and criminal, still belongs of common right to the crown. Coomber's 
 Case, 9 App. Ca. 67. 
 
CURIA REGIS. 3 
 
 This was not, however, a despotism of the oriental 
 type, as, with a standing army, it might have been. 
 It was a despotism tempered by the feudal system, 
 and by an alien hierarchy. The king was only 
 primus inter pares. It was his policy to conciliate 
 his peers, temporal and spiritual, who, united by a 
 common grievance, could at any- time have arrayed 
 against him the physical force of the realm, and 
 aroused the "thunders of the Vatican." Practically, 
 barons and bishops were recognized as an advisory 
 council in all matters of administration. This "Great 
 Council," which at the Norman conquest took the 
 place of the Saxon Witenagemot, was the germ of 
 the Parliament. It does not fall within present 
 limits to show when or how the Commons were called 
 in by representation as a financial expedient, nor 
 how the Great Council divided into two houses of 
 legislation. Attention is rather to be given to a 
 lesser council, formed out of the Great Council, of a 
 select number of peers, including the chancellor and 
 other dignitaries of the palace. This was the Curia 
 Regis, par excellence, (the same term being sometimes 
 applied to the Great Council,) the germ of the privy 
 council, and of the higher courts of justice. The 
 limits of its jurisdiction were not accurately defined, 
 being mainly appellate, but sometimes original, exer- 
 cising apparently the broad powers of a board of 
 arbitration. It has been called, a "Supreme Court 
 of Judicature." administering equal justice, accord- 
 
4 COURTS OF EQUITY. 
 
 ing to law or equity, as the case required.' But its 
 functions were not wholly judicial.^ 
 
 § 2. Courts of Westminster Hall. The first 
 court of original jurisdiction which grew out of the 
 Curia Begis appears in its infancy to have been 
 simply a board or committee of barons to audit 
 matters of revenue. By the aid of fictitious allega- 
 tions, these barons of the exchequer came at length 
 to constitute a court of general jurisdiction, both at 
 law and in equity, called the Court of Exchequer. 
 
 These were the days of sparse population, bad 
 roads, travel on horseback, and sumpter mules. It 
 was easier for the king and his retinue' to pack up 
 and travel to find their supplies, than for supplies to 
 be hauled. After exhausting one region of country, 
 they merrily saddled up and rode off to "fresh fields 
 and pastures new." Hence we read of old statutes 
 passed at different places, and hence justice, like 
 legislation, was ambulatory. After a while suitors 
 tired of chasing justice on horseback, and the clamor 
 for a stationary tribunal became loud enough to be 
 heard in Magna Charta,^ which provided that "com- 
 mon-pleas," (suits between subjects,) should be held 
 
 13 Bl. Com. 37, 49. 
 
 ^Our associations of courts of justice will mislead if applied to 
 the "courts" of the early kings. They were more like publicmeet- 
 ings for the transaction of public business generally, whether 
 judicial, financial or military. 1 Step. Hist. Cr. Law, 77. 
 
 ,^Cohort=court. ' 
 
 *A. D., 1215. 
 
COURTS OF WESTMIKSTEK. 5 
 
 in some certain place, afterwards established at 
 Westminster. Hence the origin of the Court of 
 Common Pleas, the second court of original jurisdic- 
 tion which grew out of the Curia Begis. 
 
 Finally, the Curia Regis itself, or what was left 
 of it, the king in person being supposed to be actually 
 present, assumed, or rather, retained, the name of 
 the Court of King's Bench. The times when the 
 king undertook to dispense justice himself were 
 naturally crude. Commerce was rudimentary, con- 
 tracts few. Tedious disputes about land he was glad 
 to delegate to his judges of the common pleas ; per- 
 plexing revenue matters to his barons of the exche- 
 quer. Like a father settling disputes in his family, 
 or a patriarch in his tribe, the king as judge would 
 naturally find his attention most attracted to simple 
 cases involving a breach of the peace. Hence we 
 find the primary jurisdiction of the Court of King' s 
 Bench limited to criminal cases and to such civil 
 causes as savored of a criminal nature. In the general 
 scramble among the courts for civil business, as 
 cases multiplied, the king's bench managed to get 
 its share, and enlarged its jurisdiction by means 
 similar to those used by the Court of Exchequer, so 
 as to include civil common-law causes generally. 
 The justices of this court, besides their duties in 
 banc, also rode the circuit of the counties, presiding 
 over the trial of issues at nisi-prius,^ and thus the 
 functions of the old county courts, presided over by 
 
 ^Assizes. 
 
6 COURTS OF EQUITY. 
 
 the sheriff, which had come down from Saxon times, 
 were gradually absorbed, and those courts finally 
 superseded. 
 
 There was also an intermediate appellate court 
 called the Court of Exchequer Chamber, consisting, 
 in certain cases, of all the judges, and, in certain 
 other cases, of a majority of them. As this was a 
 tribunal of later and statutory origin,^ nothing more 
 need be said of it here, except to note its co-ordinat- 
 ing influence in securing some degree of uniformity 
 in legal procedure. 
 
 § 3. High Court of Chancery — its ordinary 
 jurisdiction. While the common-law courts of 
 Westminster Hall were in process of evolution from 
 the Curia Regis, the lord chancellor, who, next to 
 the king, was its most conspicuous figure, and who 
 happened to be assigned to neither of them, was 
 building up a court of his own. This was also a 
 common-law court, when exercising what was called 
 its "ordinary jurisdiction." The ordinary jurisdic- 
 tion was the issuing of writs under the great seal, of 
 which the chancellor was, ex officio, the "keeper." 
 It also included the cancellation of royal patents, to 
 which the great seal had been unduly obtained, the 
 adjudication of claims against the crown, or by or 
 against officers of the court, and some other matters 
 not now of much interest. Although the Court of 
 Chancery, when exercising this ordinary jurisdiction. 
 
 13 Bl. Com. 55. 
 
WRIT. 7 
 
 was a court of common law, all issues of fact had to 
 be tried elsewhere, as the chancellor never claimed 
 the power of summoning a jury. The most important 
 of these functions was the issuing of writs under 
 the great seal. 
 
 § 4. Writ. These indispensable writs were the 
 means by which the king delegated his judicial 
 power to the several courts of law, and were sup- 
 posed to confer jurisdiction in each particular case. 
 No case could be instituted without such a writ, 
 purchased out of chancery.' All the mystery which 
 envelopes these august formalities, leading some 
 writers to contemplate their potency with a sort of 
 reverence,- vanishes at the touch of a practical con- 
 sideration. The fees and fines exacted for the pur- 
 chase of writs represented an important source of 
 revenue, the amount of extortion varying with the 
 needs and rapacity of the king or his favorites. 
 Apart from feudal assumptions and the exigencies 
 of the royal exchequer (substantially equivalent" 
 expressions), there never was practically any use 
 for the writj and it has long since been superseded 
 by summons.' 
 
 There was an original and fundamental distinction 
 between the jurisdiction of the chancellor and that 
 
 ^ Officina brevium. 
 
 = Co. Litt. 73 b. 
 
 n Reeves, Hist. C. Law, Finlason's note, 286-7; 3 Bl. Com. 273-4. 
 For precedents of writs in various forms of action, see app. to 3 
 Bl. Com. 
 
8 COUETS OF EQUITY. 
 
 of the common-law courts. The latter acquired 
 jurisdiction in each particular case by virtue of the 
 writ, which could only be issued in cases already 
 provided for and found in the registry of writs, or, 
 by statute of Westminster II, in consimili casu.^ 
 
 On the other hand, the chancellor, originally by 
 usage, finally sanctioned by express general writ of 
 22 Edward III, A. D. 1348, acquired general juris- 
 diction "over all such matters as were of grace," 
 i. e., such as required an exercise of the prerogative 
 jurisdiction, formerly lodged in king and council, 
 for the granting of such special remedies as the law 
 courts were unable or unwilling to give.^ The dis- 
 pensation of discretionary royal "grace" in such 
 cases was closely analogous to the grace still dis- 
 pensed by the crown in the exercise of the pardoning 
 power.^ Of course, no such distinction has ever 
 existed in this country, where all courts, whether of 
 law or equity, derive their jurisdiction from the 
 same constitutional or statutory source.* 
 
 § 5. Chancellor— his extraordinary jurisdiction. 
 The office of lord chancellor was pne of the 
 greatest antiquity, and, after the abolition of the 
 office of chief justiciary, first in dignity and power. 
 It was at the same time, ecclesiastical, political and 
 
 13 Bl. Com. 51, 273 ; 1 Poe, PL & Pr. sec. 54, 55. 
 
 n Spence, Eq. 337-8 ; Stansbury vs. Inglehart, 20 D. C. 134, 148. 
 
 ^Maitland, Just. & Police, 36. 
 
 ^1 Pom. Eq. Jur. sec. 35 ; Lang. Eq. PI. sec. 88. 
 
CHANCELLOR. 9 
 
 judicial. His influence and patronage were enor- 
 mous, and his influence was increased by the com- 
 parative immunity from secular control which he 
 enjoyed as an ecclesiastic. Down to the time of the 
 English reformation, one hundred and sixty prelates, 
 in almost unbroken succession, held the great seal 
 under the mitre. It has been well observed that no 
 one, in such an age, but a "dignified ecclesiastic, 
 would ever have thought of establishing a court, 
 constituted in effect of one man, for the correction 
 of the law, when there was a legislature, consisting 
 of king, lords and commons, existing for that express 
 purpose."^ By a narrow construction of the statute 
 of Westminster II, already referred to, the writs 
 issued by his clerks failed to give adequate remedy 
 in many cases of palpable injustice. Perhaps it was 
 not always intended that they should. That meant 
 simply a residuum of judicial power remaining in 
 the king, not as yet delegated to any of his courts. 
 Hence, applications for relief directly to the king, or 
 what amounted to the same thing, to his chancellor.^ 
 "The courts tell me that the writ issued by your 
 clerk does not suit my case. Your clerk says he has 
 no other writ to sell me. Writ or no writ, I appeal 
 to you for justice." This was in substance the 
 petition addressed to this powerful oflBcial, who, 
 
 ^1 Spence Eq. 355. 
 
 ^When the chancellor was himself a party, the bill was addressed 
 directly to the sovereign in his or her high court of chancery, 3 
 Dan. Ch. Pr. 4th Am. ed. 1878. 
 
10 COUETS OF EQUITY. 
 
 besides being the keeper of the king's seal and his 
 secretary, was also the keeper of his conscience, and 
 the constant attendant upon his person. 
 
 In what way the relief thus prayed was originally 
 granted, and what sort of a system was, in process 
 of centuries, developed from this beginning, remains 
 to be considered. That system was, in short, the 
 equity jurisprudence which will engage our atten- 
 tion, and the exercise of it by the chancellor was 
 called his "extraordinary jurisdiction." The funda- 
 mental requisite for it has been from the first, as it 
 is now, the want of remedy at law, that, is, either 
 no remedy at all or no adeqate remedy. 
 
 § 6. Ecclesiastical Courts. Alongside of, but 
 altogether foreign to, the judicial system thus rap- 
 idly sketched, other tribunals claimed equal, if not 
 superior, authority. These were the courts ecclesi- 
 astical of the bishops and their derivative officers, 
 every bishop being judex ordinarius within hia dio- 
 cese.^ They claimed spiritual jurisdiction over the 
 conscience, wholly independent of the crown, derived 
 in fact from the pope.^ Exclusive jurisdiction came 
 to be asserted over all ecclesiastical persons and 
 causes, including within the latter the religious opin- 
 ions, morals and fiduciary contracts of the laity.' 
 The procedure followed that of the canon law, based 
 
 iHale, Hist. Com. Law, 34, 35. 
 
 '3 Bl. Com. 62. 
 
 ^Eeport of the Eng. Ecc. Courts Com. 1883. 
 
ECCLESIASTICAL COURTS. 11 
 
 on that of the Roman civil law. They administered 
 the oath of purgation, employed informers, took secret 
 depositions, tried questions of fact without a jury, 
 and admitted appeals to Rome. Methods so alien to 
 the national sentiment, enforcing such a jurisdiction, 
 could not fail to bring these courts into constant col- 
 lision with the common law and its trial by jury. 
 The struggle, in fact, continued through centuries, 
 and its vicissitudes varied with the temper and ability 
 of successive popes and kings. After furnishing 
 some of the most notable incidents of English his- 
 tory, it resulted at length in restricting the cogni- 
 zance of the English ecclesiastical courts to causes 
 testamentary and matrimonial (probate, administra- 
 tion and divorce), to which were added some few 
 special causes of a pecuniary nature.' 
 
 § 7. Their specific operation. In no respect was 
 the contrast of method between these foreign judica- 
 tories and the king's courts so pronounced as in the 
 matter of the judgment and its incidents. The great, 
 the almost universal, common-law remedy was com- 
 pensation in damages. It rarely provided measures 
 of specific relief. The sentence of the spiritual 
 courts, on the other hand, was always in personam, 
 operating upon the conscience, and always specific, 
 that is to do, or to refrain from doing, some specific 
 act. The mode of enforcing sentence was by excom- 
 
 13 Bl. Com. 88. 
 
12 COURTS OF EQUITY. 
 
 munication, followed up, in cases of contumacy, by 
 corporal imprisonment.^ 
 
 § 8. Their influence upon Chancery. It was this 
 operation in personam or upon the conscience, or, in 
 plain English, this personal _ coercion, familiar to the 
 ecclesiastical chancellors from their practice in the 
 spiritual courts, that they imported and improved as 
 the basis of their extraordinary or equitable juris- 
 diction.2 The typical illustration is the doctrine of 
 specific performance, both in its direct or enabling 
 form, and in its inverted or restrictive form of injunc- 
 tion. Sequestration was also imported into chancery 
 procedure from the ecclesiastical courts, where it was 
 used to preserve the profits of a vacant living for a 
 future incumbent.^ From that process, and the idea 
 it suggested of taking charge of the subject of con- 
 troversy pending suit, was naturally evolved the re- 
 ceiver. 'Jurisdiction over fiduciary contracts, wrested 
 from the^ ecclesiastical courts, reappeared in the 
 court of chancery as the great doctrine of trusts. 
 The borrowed notion of a direct operation upon con- 
 science likewise assumed the varied forms of equit- 
 able interference in cases of fraud, accident, mistake, 
 penalties and forfeitures. The titles mentioned, 
 together with that of administration, and its inci- 
 
 ^Hale, Hist. Com. Law, 39; Lang. Eq. PI., § 42. Sentences of 
 divorce and deprivation seem to have been the only judgments in 
 rem, operating upon status. 
 
 ^Lang. Eq. PL, sees. 43, 44. 
 
 '3 Burns, Ecc. Law, 321. 
 
COURT OF CHANCBKT. 13 
 
 dent, account, also reflected from the same source, 
 cover nearly the entire field of equitable cognizance. 
 The subject of divorce and its incidents, retained by 
 the English ecclesiastical courts, has in this country 
 been generally assigned to courts of equity, with or 
 without trial by jury, according to the legislation of 
 the various states. 
 
 § 9. A hybrid product. The extraordinary or 
 equitable jurisdiction of the court of chancery may 
 thus be roughly conceived, as a cross between the 
 spiritual and temporal courts. Its heterogeneous 
 origin is disclosed, not only in its history, but in the 
 diverse elements combined in its blended character. 
 It has been seen that excrescences lopped from the 
 ecclesiastical courts by the national spirit of resistance 
 to a foreign establishment, were adopted and adapted 
 by the chancellors to supply the deficiencies of the 
 common law. While it is an approved maxim that 
 "equity follows law,''^ equity also followed, and to some 
 extent still follows conscience, as something above 
 and beyond law. While equity is bound by fixed 
 rules it also is much influenced by special circum- 
 stances. The procedure of equity is a common law 
 graft upon a canon law stock. While equity pleading 
 is fairly simple and free from unreasonable techni- 
 cality, in at least one department of it, that of pleas, 
 the learning was, and is, sufficiently artificial for a 
 black-letter lawyer. Taking the system as a whole 
 it presents a phenomenon whose counterpart has 
 been seen nowhere else than in England and her 
 
14 COUETS OF EQUITY. 
 
 colonial off -shoots, although analogies have been 
 traced in the jurisprudence of ancient Rome. 
 
 § 10. The war between the Courts. No sooner 
 was the nature and extent of this extraordinary 
 jurisdiction of the chancellor, with its possibilities, 
 comprehended, than it began to encounter strenuous 
 opposition, at first from Parliament, and afterward 
 from the law courts. The old struggle for jurisdic- 
 tion between the laws of England and Eome, aroused 
 by the pretensions of the ecclesiastical courts, was 
 continued against this new "upstart and usurper," 
 the Court of Chancery. ^ The royal ordinance of 22 
 Edward III, referring to the chancellor all such 
 matters as were of " grace, "^ was soon followed by 
 the act of Parliament of 27 Edward III, c. 1, de- 
 nouncing with severe penalties those "which do sue 
 in any other court to defeat or impeach the judg- 
 ments given in the King's Court." This was the 
 famous statute of preinunire, so called from the lead- 
 ing word in the writ by which the sheriff was 
 charged to summon delinquents, and was afterwards 
 much relied on by the common-law judges in their 
 opposition to the equity jurisdiction of restraining 
 judgments by injunction.' 
 
 In the succeeding reign of Richard II, the intro- 
 duction into chancery procedure of the writ of sub- 
 poena, attributed to John Waltham, master of the 
 
 'Lord Cairns in debate in the House of Lords, 30 April, 1872. 
 
 'Ante. sec. 4. 
 
 »3 Inst. 119, 122; 4 Inst. 83. 
 
WAR BETWEEN THE COURTS. 15 
 
 rolls, and the interference of the chancellor in cases 
 of violence cognizable at common law, but which 
 could not be efficiently redressed through the ordi- 
 nary tribunals, (where the jury would often be 
 packed in the interest of the oppressor) called forth 
 repeated remonstrances from the Commons. The 
 chancellor was sustained by the king and his council, 
 and Parliament, finding it impossible to suppress this 
 encroachment enacted a statute for its regulation.^ 
 
 In the succeeding reigns of Henry IV, Henry V 
 and Henry VI, the growing power of the chancellors 
 was again supported by the royal authority against 
 the renewed opposition of Parliament, the most im- 
 portant of whose measures was the statute of prohi- 
 bition, 4 Henry IV, declaring that judgments at law 
 should not be annulled excepting by attaint or for 
 error, and the act of 16 Henry VI, requiring, among 
 other things, that all plaintiffs in equity should give 
 security. In the despotic reign of Edward IV (1461- 
 1483), the court of chancery was firmly in the saddle, 
 no further opposition was made in Parliament, and 
 the struggle was transferred to the courts of law. 
 The long controversy was narrowed down to a single 
 issue, the power of the chancellor to restrain judg- 
 ments at law by injunction. The judges took the 
 ground that they would not respect such injunctions, 
 and would release on habeas corpus any suitor who 
 should be imprisoned by the chancellor for violation 
 
 m Rich. II., Ch. 6; 1 SpenceEq. 343-5. 
 
16 COtJETS OF EQUITY. 
 
 of them.' Indictments under the statute of premu- 
 nire were repeatedly found against parties suing out 
 such injunctions. One of these indictments against 
 a well known barrister named Heal, in 1588, caused 
 a storm which brought down upon the judges the 
 wrath of Queen Elizabeth.^ 
 
 In^ 1597, a case in which Queen Elizabeth was per- 
 sonally interested in maintaining an iniquitous judg- 
 ment obtained by her grantee, was brought into chan- 
 cery upon a bill to restrain the judgment by injunc- 
 tion. The case being referred to the twelve judges 
 of England by the order of the queen, they unani- 
 mously decided that the injunction could not issue, 
 upon the broad ground that after judgment at ,law 
 there could be no relief in equity.' 
 
 ^3 Inst., 123; Cro, Jac, 344. An instance of the kind occurred in 
 1571, in the case of Humphrey, reported by Crompton on Courts, 60. 
 
 ^Lord Bacon's letter to the king. Cabala, Montague's Bacon, vol. 
 12, pp. 36, 41; 3 Inst. 124. 
 
 ^Throckmorton vs. Finch, 3 Inst., 124; 4 Inst., 86; Cro. Jac, 344. 
 In its preliminary stages in the courts of law, this case is reported 
 with unusual fulness by nearly all the contemporary reporters. 
 Popham, 25 and 53; 1- Anderson, 303; Moor, 291; 2 Leonard, 134; 
 Cro. Eliz., 221. In view of the importance and historical signifi- 
 cance of this case, it is not apparent why it should have been slighted 
 by modern text writers. An anonymous version of the same case, 
 to be found in the appendix to 1 Eep. Chan., also printed in 1 Col- 
 lect. Jurid., 71, so far as it varies from Coke'l report,.and the other 
 reports above cited, may be regarded as of no authority. The sup- 
 position of Mr. Spence that its author was Lord Ellesmere (1 Sp. Eq. 
 683, note), is a palpable error. Not only is the death of Ellesmere 
 distinctly referred to, butHhe death of . Coke also, nekrly twenty 
 years later. 
 
WAR BETWEEN THE COURTS. 1? 
 
 Several years later, the chancellor, Lord EUes-' 
 mere, nothing daunted by this array of authority, 
 because certain of the royal support, took occasion 
 to lay down the doctrine which has ever since pre- 
 vailed, that "when a judgr^ent is obtained by 
 oppression, wrong and a hard conscience, the chan- 
 cellor will frustrate and set it aside, not for any 
 error or defect in the judgment, but for the hard 
 conscience of the party."^ 
 
 In 1616, through the efforts of Bacon and EUes- 
 mere, this doctrine was finally established by a 
 prerogative order of James I,- and shortly afterwards 
 Lord Coke, the most active champion of the common 
 law side of the controversy, was removed from the 
 chief-justiceship of the Court of King's Bench. 
 
 Later in the seventeenth century the appellate 
 jurisdiction of the House of Lords over the Court 
 of Chancery became firmly settled, thus removing 
 all occasion for further dispute. 
 
 § 11. Other Courts of Bquity. Besides the Court 
 of Exchequer, whose functions were peculiarly con- 
 nected with the royal authority, certain counties 
 palatine (Chester, Lancaster and Durham), the prin- 
 cipality of Wales, the Universities, the city of Lon- 
 don, the Cinque Ports, and even great lords in their 
 several manors, silently assumed extraordinary judi- 
 cial powers like those of the Court of Chancery, 
 
 'Earl of Oxford's Case, 1 Ch., Rep. 1., 2 Lea. Ca. in Eq. 601. 
 ^Gary's Rep. 163. 
 2 
 
IS COURTS OF EQUITY. 
 
 ' most of which have been extinguished by Parliament. 
 The equitable jurisdiction of the Exchequer was in 
 course of time exercised by the barons severally, and 
 was finally transferred, in 1841, to the Court of Chan- 
 cery. 
 
 § 12. House of I/Ofds. The original jurisdiction 
 of the Curia Begis having been parcelled out among 
 the courts mentioned, its appellate jurisdiction 
 .finally, but not until after a struggle, devolved upon 
 the House of Lords. The fact that the decisions of 
 the chancellor were open to review by an assemblage 
 of laymen, practically controlled by lawyers ad- 
 vanced by their ability to the peerage, had its efifect 
 in preventing encroachments of equity upon the 
 province of law. The appellate jurisdiction of the 
 House of Lords was not finally settled until late in 
 the seventeenth century. Earlier, as has been seen, 
 the chancellors were held in check, in a measure, by 
 opposition in Parliament and from the law courts. 
 
 § 13. Organisation of the Court of Chancery. 
 
 Returning to the Court of Chancery, it must be 
 understood that the clerks, to whom reference has 
 been made in connection with the issuance of writs, 
 were officers whose duties corresponded with those 
 of masters in chancery, and who were afterwards 
 known as such. The chief of these clerks was the 
 master of the rolls, whose functions gradually 
 ripened into those of a judge, and were often admin- 
 istered by jurists of eminence, like Sir Joseph Jekyll, 
 
COUKT OF CHANCERY. 19 
 
 Sir William Grant and Sir George Jessel. The 
 ojBttcer whose duties corresponded to those of the clerk 
 of the court in our system, was known as the regis- 
 trar. Then there was the accountant-general and 
 his staff, who had charge of the trust funds under 
 the control of the court.* Besides these officers and 
 the examiners, whose duties concerned the taking of 
 testimony out of court, there was a host of inferior 
 functionaries and supernumeraries, many of them 
 created for no other purpose than to swell the 
 patronage of the chancellor. 
 
 § 14. Its abuses. Their vexatious interference 
 at every stage of a suit, with their incessant exac- 
 tions, was one of the principal causes of ruinous 
 expense and heart-breaking delays to suitors, so 
 graphically portrayed in Jarndyce vs. Jarndyce.- 
 At the close of Lord Eldon's "conservative" ad- 
 ministration, the Court of Chancery resembled a 
 ship built for high speed, with engines of enormous 
 power and corresponding appetite, but so fouled with 
 barnacles and weeds as to be slow beyond endurance. 
 The popular cry for reform was, of course, obsti- 
 nately resisted by "vested rights." Every abuse 
 had its tap root in "influence." Every sinecure was 
 backed by a "family." In opposing Mr. Burke's 
 bill to reform the civil list expenditure, Lord Thur- 
 
 'Tbese moneys paid into the Bank of England to the credit of 
 the accountant-general sometimes amounted to over £50,000. 
 2 "Bleak House." 
 
20 COUKTS OF EQUITY. 
 
 low gravely argued in the House of Lords that some 
 of the sinecure places sought to be abolished were 
 so ancient and illustrious "that to annihilate them 
 was in fact an attempt to destroy the constitution. " ^ 
 
 § 15. Its reform and abolition. Reform was, 
 therefore, at first compelled to take the direction of 
 building new ships, instead of cleaning the old one. 
 The accumulated arrears of business were, to some 
 extent, relieved by the appointment of a vice-chan- 
 cellor, in 1813, by the appointment of two more in 
 1841, and by the creation, in 1850, of three "lords 
 justices." Reinforced by these accessions, by an 
 enlargement of the functions of the master of rolls 
 in 1833, and still further assisted by the Chancery 
 Amendment Act of 1852,^ the Court of Chancery, as 
 thus reorganized and partially reformed in its pro- 
 cedure, was enabled in great measure to keep pace 
 with its ever-increasing business, when it was finally 
 abolished by the Judicature Acts of 1878 and 1875.' 
 
 § 16. Judicature Acts. By this radical and sweep- 
 ing legislation, the entire jurisdiction of the Court 
 of Chancery, together with that of all the other 
 principal courts, was transferred to the whole corps 
 of judges, consolidated as the "Supreme Court of 
 Judicature in England," consisting of two perma- 
 
 '7 Campbell's Lives, Chan. 73, chap. 48. 
 
 n5 and 16 Vict., c. 86. 
 
 »36 and 37 Vict., c. 66; 38 and 39 Vict., c. 77. 
 
JUDICATURE ACTS. 21 
 
 nent divisions, the "High Court of Justice," of 
 original jurisdiction generally, with certain appellate 
 jurisdiction from inferior courts, and the "Court of 
 Appeal, "of appellate jurisdiction only, with such 
 original jurisdiction as may be necessary to the 
 determination of any appeal.' For the more con- 
 venient despatch of business the judges of the high 
 Court of Justice are assigned to five divisions, 
 entitled respectively, the Chancery, Queen's Bench, 
 Common Pleas, Exchequer, and Probate, Divorce 
 and Admiralty Divisions. The Chancery Division 
 has specially assigned to it matters of administra- 
 tion, partnership, account, mortgages, portion, liens, 
 charges, trusts, rectification or cancellation, specific 
 performance, partition, infants. But in every cause 
 in the High Court of Justice, law and equity are 
 administered according to certain rules which secure 
 to plaintiffs equitable relief for equitable rights, to 
 defendants, equitable defenses, and also equitable 
 relief with power to make new parties, and generally 
 calculated to avoid multiplicity of proceedings, with 
 a sweeping provision that "in all matters in which 
 there is any conflict or variance between the rules 
 of equity and the rules of the common law, the rules 
 of equity shall prevail." In short, in all the divi- 
 sions of the High Court of Justice, and in the Court 
 of Appeal, law and equity are now administered 
 concurrently, with a preference for equity, in any 
 case of conflict between the two. This was practi- 
 
 'Morg. Ch. Acts, 248-260. 
 
22 COURTS OF EQUITY. 
 
 cally an adoption by Parliament of the reformed 
 procedure, long established in New York and other 
 States, by which all distinction between legal and 
 equitable suits is abolished, and all forms of action, 
 as well as bills in equity, are superseded by one 
 judicial instrument, the civil action; by which both 
 legal and equitable remedies are enforced, singly or 
 in combination. 
 
 The abolition in England of the dual system 
 of judicature was put upon the ground of its 
 habitual violation of justice in two of its cardinal 
 principles. It wafe charged that it sacrificed sub- 
 stance to form, and that it promoted multiplicity of 
 litigation. The special evils of its practical work 
 were said to be the failures of justice in cases, 
 where, upon a doubtful point of jurisdiction, litigants 
 were made to discover that much time and money 
 had been expended in the wrong court, and also the 
 delays of justice in cases where suits had to be 
 brought in one court merely to facilitate, or to sup- 
 press, actions in another.' 
 
 § 17. Courts of l^quity in the United States. The 
 growing power of the chancellor in England was 
 from an early day viewed with suspicion and alarm. 
 Among the English common people there was a 
 deeply-rooted sentiment of attachment to the Saxon 
 trial by jury, and of aversion to the "one man 
 
 'Kendall vs. Hamilton, 4 App. Ca. 530, 531; Ind vs. Emerson, 12 
 App. Ca. 306. 
 
IX THB UNITED STATES. 23 
 
 power" of adjudication. The colonists who settled 
 America largely brought this sentiment with them. 
 They regarded the common law as their safe- guard 
 from oppression, and feared the Court of Chancery 
 as a possible engine of arbitrarj'^ power. In colonial 
 New England, no similar court was tolerated, and 
 no equity jurisdiction existed.' In Pennsylvania, 
 the courts of law measurably supplied the want of a 
 chancery court by various devices, ingeniously 
 adapting common law forms to secure both specific 
 and preventive relief.- Other colonies recognized 
 that the principles of equity were the birthright of 
 Englishmen as well as those of the common law.' 
 In some of them the governors alone, in others, 
 with their councils, acted as courts of equity; in 
 others, the legislature, usually by committee; in 
 others, equity judges were appointed.* But in the 
 American colonies generally, there was little im- 
 
 ^Woodbury vs. Gordon, 77 Maine, 68; 1 Sto. Eq. Jur., sec. 56. 
 
 ^An "equitable ejectment" was allowed as a means of enforcing 
 specific performance. Beno vs. Moss, 120 Pa. 49. The obsolete writ 
 of esirepennent was used as a substitute for injunction. Kulp vs. 
 Bowen, 122 Pa. 78. "Between the date when provincial simplicity 
 put an end to Gov. Keith's Court of Chancery, (1739,) and the time 
 when the legislature waked up to the fact that equitable powers 
 and process are a necessary part of legal machinery, in the com- 
 plicated civilization of the present century, the early lawyers of 
 Pennsylvania, by a series of make-shifts, administered equity 
 under the forms of the common law." Cox vs. Ledward, 124 Pa. 
 448; see Church vs. Kelsey, 121/ U. S. 282. 
 
 'Fox vs. Wharton, 5 Del. Ch. 211. 
 
 *Barton's Suit, by Ingersoll, 20. 
 
24 COURTS OF EQUITY. 
 
 portance attached to the cultivation of equity juris- 
 prudence until after the revolution, and the first real 
 impetus was given to the study by the labors of 
 Chancellor Kent and the works of Justice Story. 
 Separate chancery courts still exist in a num- 
 ber of states,* subordinate, however, to appellate 
 courts, which review both judgments of the law 
 courts, and decrees in chancery. Another and 
 larger class is composed of those states in which 
 full equity powers are devolved upon co m mon law 
 judges, preserving, however, the distinction between 
 the two systems, with a law side and an equity side 
 to the same court, and a separate docket for each.^ 
 The remaining states are those which have adopted 
 the code procedure, abolishing both commpn law 
 forms of action, and the bill in equity, and providing 
 one civil action for all judicial controversies.* 
 
 'New Jersey, Delaware, Tennessee, Alabama and Mississippi. 
 Maryland has separate local courts of equity lor the city of 
 Baltimore.' Virginia, Kentucky and Arkansas have similar local 
 arrangements. 
 
 ^To this class belong the New England states, (except Connec- 
 ticut, which, in 1879, took its place among the code states,) and 
 also Pennsylvania, Maryland, (outside of the city of Baltimore,) 
 the two Virginias, Georgia, Florida, Michigan, Illinois," Arkansas 
 and Texas. The federal courts assimilate with this class. 
 
 'The state of Louisiana may be assigned to this group, its civil 
 code being based mainly upon the Roman law. The term "code 
 states" is applied for convenience to those states which have sub- 
 stantially adopted the New York code of .procedure, and not to 
 states whose revised statutes are called "codes." The code states 
 represent about one-half the entire population of the United 
 States, and the states in which equity prevails as a separate 
 system, whether administered by exclusive courts or not, represent 
 the remaining half. 
 
FBDEKAL COURTS. 25 
 
 § 18. Federal Courts. The judicial power of the 
 United States extends "to all cases in law and 
 equity," arising under its Constitution in any of the 
 modes therein enumerated.' The reference here is 
 to the distinction, at the time of the adoption of the 
 Constitution, between law and equity, the latter 
 being modelled after the methods and jurisdiction of 
 the High Court of Chancery in England.^ In the 
 courts of the United States the distinction between 
 law and equity is regarded as matter of substance, 
 and not merely of form and procedure.^ The system 
 of federal equity is uniform throughout the Union, 
 and is not controlled either by state legislation,^ or 
 by the decisions* or practice* of the state courts.' 
 Hence, federal courts in New York, Ohio and other 
 code states do not recognize any fusion of law and 
 equity.* 
 
 ^Cons. TJ. S. Art, III, sec. 2. 
 - ^U. S. vs. Bell Telephone Company, 128 U. S. 360; U. S. Eq. 
 Bules, <jO. 
 
 ^Cates vs. Allen, H9 TJ. S. 459. 
 
 ^Hollins vs. Brierfield, 150 TJ. S. 371; Gates vs. Allen, 149 
 TJ. S. 451 ; Lawrence vs. Nelson, 143 U. S. 215 ; Scott vs. Neely, 
 140 U. S. 106; Leighton vs. Young, 10 U. S. App. 312; Whitehead 
 vs. Shattuck, 188 TJ. S. 146; Arrowsmith vs. Gleason, 129 U. S. 99. 
 
 ^Neves vs. Scott, 13 How. 272. 
 
 «New Orleans vs. Louisiana C. Co. 129 TJ. S. 46. 
 
 'Although TJ. S. courts will administer equitable rights as en- 
 larged by state legislation, when constituting a rule of property. 
 Parker vs. Dacres, 130 TJ. S. 43, 48 ; 1 Foster's Fed. Pr. sec. 7. 
 
 * Mississippi Mills vs. Cohn, 150 TJ. S. 202; Northern Pacific 
 R. Rr^-vB. Paine, 119 TJ. S. 561. Thus an equitable title or an 
 equitable defence, though allowed to be set up in a state court. 
 
26 COUKTS OF EQUITY. 
 
 In the courts of the United States parties have a 
 constitutional right to trial by jury in suits at com- 
 mon law.i In addition, the judiciary act of 1789 
 provided that "suits in equity shall not be sustained 
 in either of the courts of the United States, in any 
 case where plain, adequate and complete remedy 
 maybe had at law."^ This provision was m^erely 
 declaratory of the pre-existing rule,^and was intended 
 to emphasize it.* The "remedy" referred to is that 
 which existed when the Judiciary Act was adopted, 
 unless subsequently changed by Congress, and not 
 the existing remedy in a state by virtue of local 
 legislation.^ 
 
 The jurisdiction of the federal courts within the 
 states is a limited one, depending upon either the 
 existence of a federal question, or diverse citizen- 
 ship of the parties. When these elements of juris- 
 diction are wanting, the court cannot proceed, 
 even with the consent of parties. ° This of course 
 does not apply to the territorial courts, nor to the 
 
 cannot be set up in an action at law in the same state in the 
 federal courts, but must be made the subject of a suit in equity. 
 Ridings vs. Johnson, 128 U. S. 217. By Act of Congress of 7th 
 April, 1874, a different rule was applied to the territorial courts. 
 Brown vs. Bank, 132 U. S. 218. 
 
 'When the value in controversy exceeds 120. Cons. U. S. Amt. 
 An. VII. 
 
 ^U. S. Eev. Stat., sec. 723. 
 
 'Parker vs. Winnipiseogee Co., 2 Black, 551. 
 
 *Buzard vs. Houston, 119 U. S. 352. 
 
 sMcConihay vs. Wright, 121 U. S. 201, 206. 
 
 i«Byers vs. McAuley, 149 U. S. 608; Empire, 150 U. S. 159. 
 
COURTS OF EQUITY IN MARYLAND. 27 
 
 District of Columbia.* The equity procedure of the 
 federal courts is governed by general rules, pro- 
 mulgated by the Supreme Court under authority 
 of law.^ Also by rules and orders of the several 
 Circuit and District Courts, and of the several 
 Circuit Courts of Appeals and of the courts of the 
 District of Columbia.^ 
 
 § 19. Courts of Equity in Maryland. "The judges 
 of the several judicial circuits and the judge of the 
 Circuit Court of Baltimore city shall each, in his 
 respective circuit, have and exercise all the power, au- 
 thority and jurisdiction which the Court of Chancery 
 formerly held and exercised, except in so far as the 
 same may be modified by this Code."* The reference 
 here is to the old Court of Chancery, established by 
 the Constitution of 1776, and abolished by the Con- 
 stitution of 1851, whose principles and powers were 
 the same as those of the English chancery, at the 
 time of the revolution, except where altered by 
 statute or inapplicable to our political institutions.'^ 
 Prior to the revolution the functions of chancellor 
 devolved upon the proprietary governors or their 
 appointees.* Since 1851, they have been exer- 
 
 n Foster's Fed. Pr. sec. 13. 
 
 ^U. S. Eev. St. sec. 917. 
 
 ^2 Foster's Fed. Pr. 1253,1311. 
 
 *Md. Code, Art. 16, sec. 70. 
 
 'Cunningham vs. Browning, 1 Bland, 299, 301; Amelung vs. See- 
 kamp, 9 G. & J. 468; Koontz vs. Nabb, 16 Md. 555. 
 
 "The governor was allowed to commission a substitute to act 
 during his absence. Md. Archives, Proc. of Council, 50, 231, 439t 
 541, 545. 
 
28 COURTS OF EQUITY. 
 
 cised by the common law courts throughout the 
 state, sitting, quoad hoc, as courts of equity, 
 keeping separate terms and dockets, and with 
 jurisdictions as distinct as if exercised by diflfer- 
 ent functionaries. The only courts of exclusive 
 equity jurisdiction in Maryland are those required 
 for the larger population and business of its chief 
 city. The Circuit Court of Baltimore city derives 
 its exclusive jurisdiction in equity directly from the 
 Constitution.^ Circuit Court nuinber two of Balti- 
 more city was established by the legislature in 1888, 
 under constitutional authority,^ and has concurrent 
 jurisdiction.^ The pecuniary limit of the jurisdiction 
 in equity is the sum of $20.' Besides the judge or 
 judges, the officers of courts of equity in Maryland, 
 are the clerk, sheriff, solicitors, auditors, examiners, 
 and bailiffs.^ In addition, are occasional and tem- 
 porary officers, such as trustees, receivers, commis- 
 sioners, committees, prochein ami, guardian ad 
 litem.^ The pressure of business in the city of Bal- 
 
 'Md. Cons., Art. IV., sec. 29. 
 
 ^Md. Cons., Art. IV., sec. 39. 
 
 »1888, ch. 194; P. L. L., IV, 176-178. The name "circuit" as 
 applied to these stationary and local courts is a curious case of the 
 liieus a non lucendo. 
 
 *Md. Code, Art. 16, sec. 91. .This is exclusive of costs. 
 
 '^ Generally, the duties of these several oflBcers are carefully- 
 defined by statute, and may readily be found by reference to the 
 Code under the appropriate heads. 
 
 'Gibson's case, 1 Bland, 139; Gaither vs. Stockbridge, 67 Md. 224; 
 Quincy vs. Humphrey, 145 U. S. 82, 98; Sto. Eq. PI., sec. 57, Md. 
 Code, Art. 16, sec. 124. Also, executors, administrators and guar- 
 dians, when exercising their several trusts under the jurisdiction 
 of equity. 
 
COURTS OF EQUITY IN MARYLAND. 29 
 
 timore has required that some of the functions of 
 masters in chancery should be superadded to those of 
 two of the auditors. General rules of procedure in 
 equity have been promulgated by the judges of the 
 Court of Appeals, which have the force of law/ and 
 are incorporated in the Code.^ Subordinate to these 
 gener al rules, each court haa^articular rules of its 
 own, founded orjginSiTiy upon those of the old 
 chancery court. For the two equity courts in the 
 city at Baltimore, as well as for the four law courts, 
 ■^Sies^'^ules are prpinulgated by the Supreme Bench, 
 under constitutional authority.^ 
 
 iMd. Const. IV, 18. 
 
 ^Md. Code, Art. 16, sees. 117-127, 131-150, 159-166, 184-186, I'lfi- 
 226, 20-23. 
 
 'Md. Const. Art. IV, sec. 33. 
 
OHAPTEE II. 
 
 EQUITY PROCEDUEE. PARTIES. 
 
 20. Procedure in general. 
 
 21. Sources of equity procedure. 
 
 22. Distinguishing features. 
 
 23. Comprehensive requirements as to parties. 
 
 24. General rule as to parties — its rationale. 
 
 25. Its difficulty and importance. 
 
 26. Its exceptions. ' 
 
 27. The rule and its exceptions consolidated. 
 
 28. Classification of parties. 
 
 29. Real and quasi; actual and constructive. 
 
 30. Representation — quasi parties. 
 
 31. Representation of multitudes. 
 
 32. Parties as plaintiff and defendant. 
 
 33. Corporations. 
 
 34. States. 
 
 35. Infants and non compotes. 
 ?>6. Married women. 
 
 37. Formal, proper, necessary and indispensable parties. 
 
 38. Proper and necessary parties. 
 
 39. Misjoinder and non-joinder. 
 
 40. Multifariousness. 
 
 41. By misjoinder of plaintiffs. 
 
 42. By misjoinder of defendants. 
 
 43. By misjoinder of claims. 
 
 44. How remedied. 
 
 45. Intervention. 
 
 46. Abatement and revivor. 
 
 47. Assignment. 
 
 48. Process and appearance. 
 
 § 20. Procedure in general. Procedure is a general 
 term, including pleading, practice and evidence. It 
 comprises the entire system of rules for setting and 
 
PAETIES. 31 
 
 keeping in motion the machinery of a court. In all 
 procedure thei'e are certain well-defined stages — the 
 preliminary process by which the defendant is brought 
 before the court; the pleadings, by which the parties 
 formally notify the court and each other of their re- 
 spective grounds of claim and defence; the trial or 
 hearing, at which the issues made by the pleadings, 
 whether of fact or law, are maintained by the liti- 
 gants;' the decision by the tribunal; the rehearing, 
 re-trial, review or appeal, at the instance of the dis- 
 satisfied party; and finally, process of execution, 
 whereby the physical force of the state is, if neces- 
 sary, brought to bear upon the property or person of 
 the defendant. 
 
 These are the typical stages, in varied form com- 
 mon to all systems of jurisprudence, and, in addition, 
 the special requirements of particular cases may in- 
 troduce, at any stage, incidental proceedings of great 
 variety, and in courts of equity, especially, of fre- 
 quent occurrence.^ 
 
 § 21. Sources of equity procedure. Equity proce- 
 dure is derived in part from the practice of the Eng- 
 lish ecclesiastical courts (which was the procedure of 
 the canon law and was based upon the civil law of 
 Eome), and in part from the common law of Eng- 
 land. Thus, the bill in equity follows the libel of the 
 
 'In the one case by adducing their proofs, documentary or oral; 
 in the other, by citing authority; generally supplemented, in either 
 case, by argument of counsel. 
 
 ^Holland on Jurisp., ch. 15; Noble vs. Ahier, 11 P. D., 161. 
 
32 EQUITY PROCEDUEE. 
 
 civilian and canonist, and the answer may be traced 
 to their responsive allegations, while the demurrer 
 and plea, are borrowed, with some change, from the 
 common law.* As under the civil law and the eccle- 
 siastical system, issues of fact are determined by the 
 court, without jury.^ 
 
 Equity procedure is mainly governed by written 
 regulations to be found in statutes and rules of 
 court. But besides these there is an important 
 system of unwritten rules, constituting settled usage 
 or established precedent. Many of these are em- 
 bodied in judicial decisions, while others are pre- 
 served only in oral tradition or approved treatises. 
 When these sources fail, new questions are deter- 
 mined by analogy to existing precedent, and where 
 no light can be obtained from either statute, rule, 
 usage, analogy, or conflicting analogies, the discre- 
 tion of the court is guided to a decision by general 
 principles of justice, necessity or convenience. Even 
 a long established practice contrary to these princi- 
 ples may be overthrown.^ 
 
 'Lang, Eq. PL, sees. 1-7. 
 
 ^Although such issues may be sent to a court of law for trial by 
 jury, and, by modern legislation, trial by jury has been, in some 
 jurisdictions, and to a limited extent, imported into courts of equity. 
 
 'Booraem vs. North, 44 N. J. Eq. 70, where many cases are cited 
 to show that the maxim eommunia error facit jus has its exceptions. 
 In this case a practice of thirty years' standing was turned down, 
 viz : to tax maps filed as exhibits upon the basis of affidavits 
 requiring the same time to prepare. See also Haskie vs. James, 
 75 Md. 572. 
 
PARTIES. 33 
 
 § 22. Distinguishing features. The absence of 
 a jury is the feature which especially differentiates 
 the typical or normal equity procedure from that 
 of the common-law. 1 This a_cci?unts f or the limited 
 jurisdiction of eauitv, which is confi^pgd to matters, 
 of property? crimes and personal torts! [^xGJfuaed It 
 also accounts for the absence of scientific pleading 
 to issue, for the absence of set forms of action, for 
 the suppression of alternate pleadings later than the 
 replication, and for the more comprehensive require- 
 ments of equity as to parties. 
 
 Careful separation of issues of fact from those of 
 law is required at some stage of a common-law trial 
 by the dual nature of the tribunal. Hence the rules 
 of common-law pleading all relate to an issue of fact 
 to be determined by a jury, and therefore an issue 
 which is to be material, certain, single and clear. 
 While this is still true in theory, it was found in 
 practice that the scientific rules of special pleading 
 designed to develop a clear-cut issue, favored over- 
 subtlety and chicane at the expense of substantial 
 justice. The science of special pleading fell into 
 disrepute and gave place to the convenient vagueness 
 of the general issue. Hence the necessity for hypoth- 
 . etical instructions, and for requests or prayers for in- 
 structions, a supplementary system of special plead- 
 
 1 Timson vs. Wilson, 38 Ch. D. 77; Alex. Hamilton in 83d Feder- 
 alist ; Pomeroy on Rem. sec. 59 ; Bliss, Code PI. sec. 10. 
 
 ''Sawyer 124 U. S. 210; Fornshill vs. Murray, 1 Bland 484; 1 Bl. 
 Com. 92; Bispham Principles Eq., fifth ed., sees. 453, 465, p. 584, 
 note 2. 
 
 3 
 
34 EQUITY PKOCEDUBE. 
 
 ing resorted to after the evidence is taken, and 
 designed to accomplish the same object, the separa- 
 tion of issues of fact from those of law.^ 
 
 In equity there is no such dual judicature, and 
 therefore no necessity for formal separation of issues. 
 With a professional judge or chancellor there is more 
 time, and with the important aid of counsel, pre- 
 sumably more aptitude, for discriminating in a min- 
 gled mass of allegation and proof the real questions 
 in dispute, whether of fact or law. Hence equity 
 procedure is not dependent upon special pleading 
 under scientific rules, and has no place ^ f o^ auY 
 stibstitafted system under the form of requests or 
 prayers for instructions. For a similar reason 
 there are in equity no set forms of action, such 
 as were once supposed essential to apprise the 
 jury in advance of the precise nature of the con- 
 troversy, but the bill or pptition may be moulded ^ 
 to suit any state of facts or equitable remedy. 
 And for a like reason the series of pleadings in 
 equity is not indefinitely drawn out, but closes with 
 the bill, answer and general replication. The 
 plaintiff is not only permitted, but expected, to antic- 
 ipate and meet the defense, either in his original or 
 amended bill.^ " Thus the bill contains within 
 itself the entire series of pleadings on the part 
 of the plaintiff, as the answer does on the part of 
 
 11 Poe, PI. & Pr. sees. 636, 691 ; Bliss, Co. PI. sec. 139. 
 "U. S. Equity Eule 21; Md. Code, Art. 16, sec. 133. 
 
PARTIES. 35 
 
 the defendant."* There is no special replication 
 and no rejoinder. 
 
 § 23. Comprehensive requirements as to parties. 
 Trial by jury requires that controversies should be 
 simple, not complicated, easily understood and 
 quickly determined. To secure simplicity and 
 despatch, that mode of trial is necessarily limited to 
 bi-lateral controversies, cases between two parties 
 or sets of parties, only.^ 
 
 No such considerations restrict the ampler func- 
 tions of courts of equity, which are well adapted to 
 complicated and multilateral controversies.' It is one 
 of the maxims of equity that it prevents multiplicity 
 of suits. A court of equity is enabled to act upon 
 this principle by the facility with which, not only 
 the immediate parties, but all those parties and all 
 those interests (within reasonable limits), incidentally 
 involved in the controversy, may be subjected to its 
 
 'Lang. Eq. PI. sec. 53. 
 
 -In attachment cases of garnishment, where there are generally 
 three parties at least, and may be more, in the persons of claimants 
 of the property attached, the several parties are not brought 
 together in the same action, but separate suits are docketed as 
 between plaintiff and defendant, between plaintiff and garnishee, 
 and between plaintiff and each claimant. 
 
 ^Lang. Eq. PI. sec. 41. An executor and trustee, for instance, 
 who has erroneously overpaid certain legatees, to the prejudice of 
 others, may be decreed reimbursement by the overpaid legatees in 
 the same decree which establishes his own liability. And in such 
 a case, in order to prevent the necessity for a second suit, it would 
 be proper to make the overpaid legatees co-defendants with the 
 executor and trustee. Hanson v. Worthington, 12 Md. 418. 
 
36 EQUITY PBOCBDUKE. 
 
 decree, and saved the necessity for ulterior litiga- 
 tion. What Ji court has the power to do. it is its djiJ g 
 to ^ , if- ii»4;}ve interest of private individua ls-aLHie 
 public. Hence, the general rule as to parties, to be 
 next considered, with its exceptions. 
 
 § 24. The general rule as to parties — its 
 rationale. "All persons are to be made parties who 
 are legally or beneficially interested in the s_ubject 
 matter and result of the suit.'" This rule is based 
 upon two distinct principles of justice, one natural 
 and universal, the other conventional. Natural jus- 
 tice demands that in order to bind any person by any 
 judicial proceeding whatever, that person must 
 have due notice and due opportunity to be heard. ^ 
 The principle of conventional justice or expediency 
 upon which the general rule as to parties is also 
 based has already been referred to as the maxim of 
 
 1 Caldwell vs. Taggart, 4 Peters, 190, 202; Cromwell vs. O wings, 6 
 H. & J., 10, 14; 'Gregory vs. Stetson, 133 U. S., 579, 586, citing bto. 
 Eq. PL, sec. 72; Christian vs. E. R., 133 U. S., 233, 241; Shields 
 vs. Barrow, 17 How., 130, 139; Williams vs. Bankhead, 19 Wall. 
 563; M' Arthur vs. Scott, 113 U. S., 340. Jewett vs. Tucker, 139 
 Mass. 566, 578; Dewey vs. St. Albans, 60 Vt. 12; Martin vs. Pur- 
 nell, 4 Del. Ch. 252. 
 
 ^Windsor vs. McVeigh, 93 U. S., 274, 277; Jenkins vs. Whyte, 62 
 Md., 427, 435; Handy vs. Waxter, 75 Md., 517,. 523; Stuart vs. Pal- 
 mer, 74 N. Y., 183; Ulman vs. Baltimore, 72 Md., 587, 593; Balti- 
 more Belt B. R. Co., vs. Baltzell, 75 Md., 94; Paulsen vs. Portland 
 149 U. S., 30. It is an elementary principle that a court cannot 
 adjudicate directly upon a person's right without having him either 
 actually or constructively before it. This principle is fundamental. 
 Gregory vs. Stetson, 133 U. S., 579, 586. 
 
PARTIES. 37 
 
 equity that "prevents multiplicity of suits." It is 
 inexpedient, and, in a conventional • sense, unjust 
 that a party affected by a decree should be left in a 
 position either to sue, or to be sued by, a stranger to 
 the proceeding. Every concurrent or incidental 
 
 right or liability should, if possible, be deter- 
 mined together with the principal, and therefore 
 expediency requires that the persons representing 
 such rights or liabilities should be parties to be 
 bound by the decree. The object of the rule is to 
 do complete and not fractional justice, to make the 
 performance of the decree safe to those compelled 
 to obey it, and to prevent future litigation. ^ To the 
 extent that the rule is founded on natural justice, it 
 is inflexible, and its violation in that respect is not 
 a mere irregularity, but a jurisdictional defect.^ To 
 the extent that the rule is founded upon policy, 
 as distinguished from natural justice, it is the 
 creature of courts of equity, is flexible in its appli- 
 cation, and is controlled by important exceptions.' 
 Much ' must be left to the discretion of the court 
 (subject, however, to appeal,) in view of the charac- 
 ter of the suit and its object, the nature of the 
 interest in question and its extent, and other special 
 circumstances of particular cases. ^ In the exercise 
 
 ^Sto. Eq. PI. sec. 72 ; 1 Pom. Eq. Jur. sec. 186 ; Walter vs. Riehl, 
 38 Md. 211, 215 ; Brian vs. Thomas, 63 Md. 476, 483, 
 
 2 Handy vs. Waxter, 75 Md. 517, 523; Adams, 50 N. J. Eq. 751. 
 
 'Elmendorf vs. Taylor, 10 Wheat. 152, 166. 
 
 •'Barney vs. Latham, 103 U. S. 205; Payne vs. Hook, 7 Wall. 425; 
 Crook vs. Brown, 11 Md. 171. 
 
38 EQUITY PKOCBDUKB. 
 
 of this discretion, the court will require the plaintiff, 
 if practicable, to bring every person concerned in 
 interest before it. But if the case be such as to 
 admit of a suflScient decree as between the parties 
 actually litigant, the circun^stance that an interest 
 exists in some other person whom the process of the 
 court cannot reach will not prevent a decree upon 
 its merits. But such decree cannot, of course, bind 
 the absent interest.^ 
 
 § 25. Its diflB.culty and importance. This ele- 
 ment of convenience, discretion and flexibility 
 accoi»nts for the doubt and difficulty so often 
 experienced in the practical application of the general 
 rule as to parties.^ 
 
 Notwithstanding the admitted difficulty, the correct 
 application of the rule is often of vital importance, 
 not only to the immediate suitors, but to those who 
 come 'after them as purchasers or incumbrancers. 
 Very few properties are offered for sale or mortgage 
 that have not, at some time or other, been sold 
 under the decree of a court of equity. As a. sale 
 under s uc h a decree passes only the title of thp 
 parties to the cause, and to such sales, althoug]^ 
 judicial, the rule caveat emptor in gen eral.j,gplies, 
 the question as to whether all the necessary parties 
 have been properly made is a vital one to a purchaser 
 and his assigns. Even the running of the statute 
 
 iMallow vs. Hinds, 12 Wheat. 198, 
 
 2 Walter vs. Riebl, 38 Md. 215; Crook vs. Brown, 11 Md. 171; Sto. 
 Eq. PI. sec. 76. 
 
PARTIES. 39 
 
 of limitations for their protection may be prevented 
 by the intervention of a protracted life-estate, and 
 cases may be found where they have been dispos- 
 sessed by remaindermen born after the sale was 
 made.^ 
 
 § 26. Its exceptions. These exceptions fall under 
 two general heads; parties beyond the jurisdiction of 
 the court, and parties within what is called the doc- 
 trine of representation. When a person who would 
 ordinarily be made a party is beyond the jurisdiction 
 of the court and therefore omitted, an objection will 
 not prevail if the decree sought would not prejudice 
 his interests, and if the merits of the controversy can 
 be sufficiently adjusted in his absence.^ This excep- 
 ition is especially important in the federal courts, 
 whose jurisdiction within states is ousted by placing 
 persons of the same citizenship upon opposite sides 
 of a suit. It is of less practical moment in st9,te 
 courts, which are enabled by legislation to make 
 non-resident or unknown owners of property within 
 the state, without regard to citizenship, parties, upon 
 constructive notice by publication. This subject 
 
 willbe more fully considered under the head of 
 
 ^McArtliur vs. Scott, 113 U. S. 340; Long vs. Long , 62 Md. 33 
 Bowen vs. Gent, 54 Md. 555; Kerchner vs. Kempton, 47 Md. 591; 
 Timanus vs.- Dugan, 46 Md. 402; Shreve vs. Shreve, 43 Md. 382; 
 Downin vs. Sprecher, 35 Md. 481; 2 Dan. Ch. Prac. 1275, 1276. 
 But when all parties in esse, having any interest, are before the 
 court, those not in esse are also bound hff the decree. Benson vs: 
 Yellott, 76 Md. 159, 169; Md. Code, Art.)[|) sec. 198. 
 
 ^Sto. Eq. PI. sec. 78-90; 1 Foster's Fed. Pr., sec. 50. 
 
40 EQUITY PROCEDUKE. 
 
 constructive parties, and cases within the doctrine 
 of representation will be mentioned under the head 
 of quasi parties. 
 
 § 27. The rule and exceptions consolidated. 
 
 It may tend to simplify a somewhat involved subject 
 to so formulate the rule as to comprehend the excep- 
 tions. We will then have the following : - ^11 persons 
 interested in the obj ect of the suit must be^j nade 
 pa rties, eithe r actually, constructively , or by repne- 
 sentation. In this consolidated form the rule will 
 
 I I III ^^a— — i— fc 
 
 be subject to but one important qualification, to 
 be considered under the head of multifariousness. 
 Owing, however, to the limited jurisdiction of the 
 federal courts in cases of diverse citizenship, the 
 exception as to parties beyond the jurisdiction will 
 still obtain therein in those cases where the making 
 of constructive parties by publication does not 
 relieve the constitutional difficulty. The rule as 
 thus framed may perhaps suggest a more simple 
 and practically useful classification of parties than 
 that hitherto followed by text- writers. 
 
 § 28. Classification of parties. This will consist 
 of cross divisions, the same party being found in 
 several classes at once. 
 
 § 29. Real and quasi parties— actual and con- 
 structive. The first division is that between real 
 and quasi parties. Real parties again may be either 
 actual or constructive parties. Actual parties are 
 
P4.BTIES. 41 
 
 those only over whom the court has acquired plenary 
 jurisdiction in personam, by service of process within 
 the state, or by voluntary appearance. Constructive 
 parties are of two descriptions : 
 ■^ First. Non-resident, or unknown persons, interested 
 in property within the state, over which property the I 
 court has acquired by due publication a statutory 
 jurisdiction competent to bind the interests of such 
 persons in rern.^ " 
 
 A decree against a nor^-resident founded upon an 
 ^order of publication can only affect his interest in 
 ^property within the state, and cannot hind \t\rY\ 
 in personam.^ The requirements of publication stat- 
 utes must be strictly followed.^ The publication 
 will be of no effect if the party be not in fact a 
 non-resident,' although he may be temporarily ab- 
 
 iMd. Code, Art. ]6, sees. 55, 105, 115; Worthington vs. Lee, 61 
 Md. 530; Jenkins vs. Whyte, 62 Md. 4'27; U. S. Eev. Stat. sec. 738, 
 as amended by Act 3d March, 1875, ch. 137, sec. 8, ISlStat. L. 412. 
 Mitford, Story and Daniel, and the text-writers fo-llowing them, 
 are silent as to constructive parties. Publication process was no 
 part of English chancery practice until partially introduced by 
 statute in 1832, 2 Wm. IV c. 33, nor was it part of federal equity 
 procedure until 1872, when introduced by_the Acts of Congress 
 referred to above. It was in Maryland first applied to non-resident 
 mortgagors by 1785, ch. 72, sec. 30, and has been by subsequent 
 legislation extended to other non-resident interests. Alex. Ch. 
 Prac. 34. Similar legislation exists in all the states, whose pro- 
 cedure, in this respect, is binding upon the federal courts. Arndt 
 vs. Griggs, 134 U. S. 316. 
 
 ^Worthington vs. Lee, 61 Md. 530 ; Pennoyer vs. Neff, 95 U. 
 8. 714. 
 
 2 Guaranty Co. vs. R. E. Co., 139 U. S. 137; Bank vs. Copeland, 
 18 Md. 305; Johnson vs. Robertson, 31 Md. 476. 
 
 ^Snowden, 1 Bland 550. 
 
42 EQUITY PEOCBDUBB. 
 
 sent.* Nor will it be of any effect for purposes not 
 stated in the bill and in the order of publication.^ It 
 is but a substitute for a subpoena, its object simply 
 is notice,, and if the notice is to "unknown heirs" 
 of a decedent who had himself no interest, the 
 publication will not avail to support a decree.^ 
 
 Second. Non-resident persons married to a resident 
 husband or wife, over whose marital status the 
 court has acquired by due publication a statutory 
 jurisdiction in rem, competent to decree a valid 
 divorce.* V^^^j^x ^'^ lO^iSj^ — - 
 
 Jurisdiction thus acquired is limited to status, and 
 cannot be enforced in personam. It is valid as to 
 the divorce, and probably as t o custodY, af. ch ildr o n ^ -j- 
 but invalid as to alimony, costs, or prohibitio n of 
 
 §30. Representation— quasi parties. Quasi par-^ 
 ties, or parties by representation, are interested per-.:, 
 sons, not named as parties, beiiig neither served with< 
 process, nor warned by publication, but deemed to be 
 sufficiently represented for certain purposes of the. 
 suit by real parties holding special relations to them.^ 
 
 The special relations referred to are the varieties 
 of privity, community or identity of interest existing 
 
 iMcKim vs. Odom, 3 Bland 407. 
 J ^Fox vs. Reynolds, 50 Md. 564. I 
 
 \ ^Savary vs. DaCamara, 60 Md. 139, 148^-^. 
 *Md. Code, Art. 16, sec. 35, 38 ; Stewart, M. & D. sec. 338. 
 ^Stewart M. & D.. sec. 217 a. 
 ^Calvert on Parties, 62, 65, 428. 
 
PARTIES. 43 
 
 between executors, administrators, and in certain 
 cases trustees, arid their several beneficiaries; be- 
 tween life tenants and remainder men ; and between 
 individuals of a numerous class, such as creditors, 
 legatees, taxpayers, stockholders and members of 
 associations. 
 
 Executors and administrators, in all suits by or 
 against them to recover claims for or against the 
 estate, are deemed, in equity as at law, to represent 
 all persons beneficially interested therein. In such 
 suits legatees, distributees, next of kin and creditors 
 ( except in cases of coUusionl . are neither necessary 
 nor proper to be made real parties to the record.^ 
 
 Trustees do not in general represent their cestuis 
 que trust in suits respecting the trust property, and 
 beneficiaries as well as trustees are necessary par- 
 ties thereto.^ But when trustees have full power 
 
 sale and receipt, they represent their beneficiaries, 
 who, however, may be made parties on application. ^ 
 Trustees under railroad mortgages, and others having 
 large powers, often represent their beneficiaries.^ 
 
 ^Md. Code, Art. 93, sec. 104; Gordon vs. Small, 53 Md. 550, 556; 
 Little vs. Gushing, 62 Md. 416, 418; Whiting, 64 Md. 157, 160; Eobard 
 & Lamb, 127 U. S. 58, 62; McArthur vs. Bcott, 113 U. S. 340, 396; 
 Re Young, 30 Ch. D. 421; Gravely, 84 Va. 153; Butler vs. Sisson, 49 
 Conn. 580 (a strong case.) 
 
 ^Sto. Eq. PL, sec. 207; 1 Foster's Fed. Pr., sec. 45; Hawkins vs. 
 Chapman, 36 Md. 83, 98; Long vs. Long, 62 Md. 33, 66; Gary vs. 
 Brown,' 92 U. S. 171, 172; Vetteriein vs. Barnes, 124 V. S. 169, 172. 
 
 3Md. Code, Art. IH, sec. 160; Rule 49, U. S. These rules follow 
 the English chancery prder of 1841, 1 Dan., Ch. Pr. 222 (4th Am. 
 Ed.) ' 
 
 *Shaw vs. R. R. Co. 100 U. S. 605; Kerrison vs. Stewart, 93 U. S. 
 155; Elwell vs. Fosdick, 134 U. S. 500, 512; McArthur vs. Scott, 113 
 
44 EQUITY PROCEDUKB. 
 
 § 31. Representation of multitudes. When par- 
 ties having a common or identical interest are too 
 numerous to be conveniently joined, that is, too 
 numerous to be joined without the inconvenience and 
 delay arising from frequent change of parties by 
 death, birth, marriage or insolvency, one or more of 
 the class may sue or defend iji behalf of all, provided 
 they fairly represent the absent interests.* This 
 principle is often applied, so far as plaintiffs are con- 
 cerned, to creditors' bills, although, the number of 
 creditors in the particular case may be quite limited. 
 Whether the object of the creditors' suit be to vacate 
 a fraudulent conveyance, or to compel administration 
 of the assets of a deceased debtor, it is common prac- 
 tice for the bill to be filed by one or more of the cred- 
 itors in behalf of the rest.^ 
 
 U S. 340, 396; Long vs. Long, 62 Md. 33, 68. Both debtors and 
 creditors are often represented by an assignee in bankruptcy, 
 Glenny vs. Langdon, 98 U. S. 20; Trimble vs. Woodhead, 102 U. S. 
 647; by a trustee in insolvency, Diggs vs. McCullough, 69 Md. 
 609; Haugh vs..Maulsby, 68 Md. 423; Magruder vs. Peter, 11 G. & J. 
 217, 246; Jamison vs. Chestnut, 8 Md. 34, 39, by a conventional 
 trustee for creditors. Sixth vs. Wilson, 41 Md. 506, 513; Cowman 
 vs. Colquhoun, 60 Md. 127, 131, 136, and by a receiver, Doggett 
 vs. E. E. Co., 99 U. S. 72. As to representation of remainder men, 
 whether in being or after born, by life tenants or holders of other 
 particular -estates, see Md. Code, Art. 16, sec. 198; Benson vs. Yel- 
 lott, 76 Md. 159, 169; Long vs. Long, 62 Md. 33; Newbold vs. Schlens, 
 66 Md. 587; McArthur vs. Scott, 113 U. S. 340, 401. 
 
 ^Sto. Eq. PI., sec. 94; IFoster'sFed. Pr., sec. 46; M'Arthurvs. Scott. 
 113 U. S. 340,394; Bowen vs. Gent, 54 Md. 555, 571; Commissioners 
 vs. Gellatley, 3 Ch. D. 615-617. • 
 
 2Md. Code, Art. 16, sec. 46, 188; Foley vs. Bitter, 34 Md. 649; Eich - 
 mond vs. Irons, 121 U. S. 27; Burgess vs. Vinnicourt, 31 Ch. D. 668; 
 
PARTIES. 45 
 
 The same principle applies to tax-payer's bills, to 
 restrain municipal corporations from illegal tax, 
 contract or appropriation.' 
 
 Stockholders and creditors of a corporation are 
 in general sufficiently represented by the directors,- 
 but sty^kholders , do rnit renicsmit ■tha.cq rT^ prf^ , | , inTi.? 
 In those exceptional cases where suits may be main- 
 tained by stockholders, the same principle applies as 
 in creditors' bills.* And it has also been applied 
 to railroad bondholders' bills.^ And also to members 
 
 ■ » ■ ■ ■■ III II I IIIIIIBIII M I * H | - i|« Wfn M Wn" *.* 
 
 oi. Yolunta ry or .jmiaGmaimated sQQieJtjgs.' 
 
 The most important modern application of the 
 doctrine of representation to defendants is that the 
 general liability of stockholders may be fixed in 
 suits against the corporation.' The decree, although 
 passed in their absence, will establish their liability, 
 
 Hammond vs. Hammond, 2 Bland 306; Brian vs. Thomas, (i3 Md. 
 476, 483; Johnson vs. Waters, 111 U. S. 641, 674; Simms vs. Lloyd, 58 
 Md. 477; Brown vs. Iron Co. 134 U. S. 530, 533. 
 
 'Pom. Eq. Jar., sec. 260; E. B. Co. vs. Pumphrey, 74 Md. 86, 104; 
 Baltimore vs. Gill, 31 Md. 375, 393j Chicago vs. McCoy, 136 111. 344. 
 
 2E. R. Co. vs. Ailing, 99 U. S. 463, 472; Ferris, 56 Conn. 396; 
 Booth vs. Robinson, 55 Md. 419, 435; Glenn vs. Williams, 60 Md. 
 93, 115. 
 
 'Swan vs. Frank, 148 U. S. 603, 610. 
 
 *Dodge vs. Woolsey, 18 How. 331, 345; Hawesvs. Oakland, 104 
 IT. S. 450. 
 
 'Trustees vs. Greenough, 105 U. S. 527; R. E. Co. vs. Pettus, 113 
 U. S. 116. 
 
 *Mears vs. Moulton, 30 Md. 142. Smith vs. Swormstedt, 16 How. 
 288. 
 
 'Glenn vs. Williams, 60 Md. 93, 115; Lycoming vs. Langley, 62 
 Md. 196, 214; Hawkins vs. Glenn, 131 U. S. 319; Glenn vs. Liggett, 
 135 U. S. 633. 
 
46 EQUITY PKOCEDUEE. 
 
 but only as the foundation for a direct proceeding 
 in personam.^ In no cape, ind^gdv is ^ a YYf|"^| pf^if*^ 
 ,^? , „^r" t . ,,!> ^--^M Jlecree ..a^th,^an .exjsali^^ 
 issue agcaiijL^t Jiina. Such parties are bound only 
 sub modo, "in a sense, not absolutely." All p^^^pns 
 whom it is proposed to affect Jpy thfi-jiecree comrtul- 
 sor ily m ust be made r eal p arties.^ 
 
 § 32. Parties as plaintiflF and defendant. All 
 persons having an interest in the subject and in the 
 relief demanded, may be joined as plaintiffs, and if 
 
 ?they will not join as plaintiffs, may be made defend- 
 ants. ° Any person may be made a defendant who 
 has or claims an interest in the controyersy adverse 
 to the plaintiff, or whose presence is necessary to a 
 complete determination or settlement of the ques- 
 tions involved therein.' The plaintiff must have an 
 interest.* A son, during his father's life, has no 
 subsisting interest such as entitles him to maintain 
 a bill to vacate his father's deed for fraud or undue 
 influence.' Otherwise, when the father is dead and 
 
 'the son has an interest under the will." 
 
 'Glenn vs. Garth, 147 U. S. 360, 367. 
 
 ^Calvert on Parties, 68; Commissioners vs. Geilatley, 3 Ch. D. 615. 
 
 'Pomeroy's Rem. sec. 116. These are in substance provisions of 
 the reformed procedure of the code states, which are simply declar- 
 atory of pre-existing equity rules, and are the most concise state- 
 ments thereof. 
 
 *McMicken vs. XJ. S. 97 U. S. 204; Baxter vs. Baxter, 43 N. J. Eq. 
 82; Reid vs. Mayer, 80 Ga. 757. 
 
 ^Lefew vs. Hooper, 82 Va. 946 ; Sellman vs. Sellman, 63 Md. 520. 
 
 «Canton vs. McGraw, 67 Md. 583. 
 
PARTIES. 47 
 
 .A-aasiX^Jffillo iias-sold all, his iAterest in, land cauugrt. 
 ^ mainta in a bil l ._ for part ition or js^l.e.^^ Equity deals 
 with the real party in interest. A suit in equity can- 
 no t be maintained in the n ame oT^A^^br^ jj^^- ^Sfi. 
 of B." When several are joined as co-plaintiffs, the 
 interest of each must be shown in the bill.^ The in- 
 terests of co-plaintiffs must be p^i j|jj jggnJLap d not 
 conflicting or alternative;* although the court may 
 decree as between plaintiffs, as if they occupied posi- 
 tions of plaintiff and defendant, and may so decree as 
 between co-defendants.' The same person cannot 
 be both plaintiff and defendant, even in distinct 
 capacities. ° 
 
 § 33. Corporations- Corporations may sue and be 
 sued, as natural persons, in equity as at law, under 
 special statutory provisions as to the service of pro- 
 cess upon the agents of corporations, both domestic 
 and foreign.' In all matters affecting corporate 
 interests, the corporation must be made a party.' 
 
 ^Bannon vs. Comegys, 69 Md. 411; Fulton vs. Greacen, 44 N. J. Eq. 
 443. 
 
 ^Kellam vs. Sayre, 30 W. Va. 199. 
 
 'House vs. Mullin, 22 Wall. 42. 
 
 *Stebbins vs. St. Anne, 116 U. S. 386; EUicott vs. Ellicott, 2 Md. 
 Ch. 468; Crook vs. Brown, 11 Md. 158, 170; Walker vs. Powers, 104 
 U. S. 245. 
 
 5Md. Code, Art. 16, sec. 161. 
 
 «Byrne, 94 Cal. 576; Blaisdell vs. Ladd,14N. H. 129; Eastman vs. 
 Wright, 6 Pick. 316; Owens vs. Crow, 62 Md. 491, 497. 
 
 'Md. Code, Art. 23, sec. 295-299; 1892 ch. 601. 
 
 «3 Pom. Eq. Jur. sec. 1091-1096; Boone Corp. sec. 150, 151; Wil- 
 kens vs. Thorne, 60 Md. 253, 258; Fiery vs. Emmart, 36 Md. 464, 
 
48 EQUITY PKOCEDURE. 
 
 Although, in general, no person ought to be made 
 a defendant against whom no decree can be had, the 
 officers and members of a corporation may be joined 
 as co-defendants with the corporation for purposes 
 of discovery.^ 
 
 § 34. States: A state may sue as plaintiff in 
 equity, and the attorney-general is the legal rep- 
 resentative of the state for that purpose, and a 
 bill filed by him in the name of the state will 
 be presumed to be authorized.^ It is the function 
 of that officer to file informations in certain cases 
 of charities.' The state's attorney is required to 
 prosecute and defend on the part of the state, 
 all cases in his county in which the state may be 
 /interested.^ In a suit in equity against sureties- 
 / upon official bojids given to the state, it is erroneous 
 V to file the bill in the name of the state for the use of 
 the beneficiariesl^^ 
 
 A state cannot be sued except by its express 
 consent." A state may sue another state in the 
 
 • 475; Morton vs. Grafllin, 68 Md. 555; Smith vs. Stephen, 66 Md. 
 381, 389; St. Louis vs. Wilson, 114 U. S. 60 ; Kendig vs. Dean, 97 
 U. S. 423; Davenport vs. Dows, 18 Wal. 626; Dewing vs. Perdicaris, 
 96 U. S. 193; Hawes vs. Oakland, 104 U. S. 450; Swan vs. Frank, 
 148 U. S. 603; Porter vs. Sabin, TJ. S. Sup. Ct. Oct. Term, 1892. 
 
 »Sto. Eq. PL sec. 234, 235; McKim vs. Odom, 3 Bland 421. But 
 all the purposes of discovery can now be secured more effectually 
 by examining the officers as other witnesses. , 
 
 ^Pennsylvania vs. Wheeling, 13 Howard 560. 
 
 =Hunt vs. Evans, 134 111. 499; Barnum's case, 62 Md. 299. 
 
 *Md. Code, Art. 10, sec. 17. 
 
 «Bayne vs. State, 62 Md. 109, 
 
 ^Cons. U. S. 11th Amendment, Virginia vs. Canal Co. 32 Md. 501. 
 
PARTIES. 49 
 
 Supreme Court of the United States, but not as a 
 mere collecting agency for bondholders.^ Suits 
 against- state officers have in some cases been held 
 within the inhibition of the eleventh amendment as 
 suits in effect against the state itself, and in other 
 cases have been maintained as suits against the indi- 
 vidual officers.^ In certain cases of claims against 
 the United States, the United States District and 
 Circuit Courts liave concurrent jurisdiction with the 
 Court of Claims.^ 
 
 When a non-consenting state is an indispensable 
 partythe bill will be dismifesed.* 
 
 § 35. Infants and non-compotes. Infants and 
 parties under disability may sue in equity by their 
 guardian or committee, if any, or by their prochein 
 ami, subject to the order of court for their protec- 
 tion.' Infant and non-sane defendants, under order 
 of court, defend by legal guardian or committee, 
 if any, or the court may appoint a guardian ad 
 litem.^ No committee, trustee or guardian of a luna- 
 
 'New Hampshire vs. Louisiana, 108 U. S. 76. See Wisconsin vs. 
 Insurance Co. 127 U. S. 265. 
 
 ^See the cases reviewed in Pennoyer vs. McConnaughy, 140 U. S. 
 1; 1 Foster's Fed. Prac. sec. 37. 
 
 3Act of 1887, 24 St. at L. ch. 359; 1 Foster's Fed. Pr. sec. 36. 
 
 ^Christian vs. R. R. Co., 133 U. S. 233. 
 
 ^But the name of a next friend cannot be used without his 
 written authority filed with the bill. Md. Code, Art. 16, sec. 125; 
 Sto. Eq. PL, sec. 57, 68, 59, 60 ; see Rule 87 U. S. 7 */ "^ f{. IK"?/' 
 
 "No guardian ad litem can be appointed having an adverse inter- 
 est, and the court may also appoint a solicitor for the infant or 
 non-sane defendant. Md. Code, Art. 16, sec. 124. ^ 
 4 /f 
 
50 EQUITY PROCEDURE. 
 
 tic can be appointed until after the verdict of a jury 
 of mental unsoundness upon a writ de lunatico in- 
 quirendo.^ 
 
 § 36. Married women. A married woman having 
 no trustee may, b5»4r6fTSe«t-&i«Iidf; sue in a court of 
 law or equity in all cases for the protection of her 
 property.^ In cases of divorce and alimony she sues 
 and defends in her own name.' Husband and wife 
 may sue each other in equity. If the wife is sued 
 by a third party, the husband must ordinarily be 
 joined as a co-defendant.* 
 
 § 37. Formal, proper, necessary and indis- 
 pensable parties. Formal or nominal parties, hav- 
 ing no substantial interest,^ may readily be omitted, 
 
 ^Hamilton vs. Traber, 27 Atl. Kep. 229, 77 Md. — . "^^"h^d 1 ^ 
 2 Md. Code, Art. 45, sec. 4.- CuX, I fif ^ ^^^ $"y - / 9"^' ^33 
 ^Stewart M. & D., sec. 322. 
 
 * Notwithstanding the broad language of the proviso to Md. Code, 
 Art. 45, sec. 7, the capacity of a married woman to sue alone is not 
 extended beyond the scope of the context, viz : special business or 
 earnings, ypen the husband has abandoned the wife and abjured 
 the state, she may sue alone. Wolf vs. Baureis, 72 Md. 481. She 
 may be sued alone on her covenants in leases, Md. Code, Art. 45, 
 sees. 15, 16, and on her contracts as licensed trader, Ibid. Art. 45, 
 sec. 36. ^'TTKrf'V^ t 
 
 * Such as a husband when the suit relates only to the wife's sole 
 and separate estate ; Bridges vs. McKenna, 14 Md. 258, 270 ; Worm- 
 ley vs. Wormley, 8 Wheat. 421, 451; the state, in a suit to vacate a 
 fraudulent land patent ; Hoye vs. Johnston, 2 Gill. 291, 319 ; a 
 trustee, having the naked legal title ; Walden v^. Skinner, 101 U. 
 S. 577, 589 ; Weaver vs. Leiman, 52 Md. 708, 712 ; but see Cowell vs. 
 Taylor, 31 Gh. D. 34 ; purchasers of railroad property, acting merely 
 
 9/ U,S. 476 
 
- PARTIES. 51 
 
 although not error to join them.^ Proper parties, 
 having a substantial interest in the general subject 
 matter, may or may not be so inseparably connected 
 with the particular controversy, according to its aim 
 and object, as to be also necessary and even indis- 
 pensable parties.^ 
 
 A person directly affected by a decree is an indis- 
 pensable party, that is, the suit cannot proceed in his 
 absence. A person is affected by a decree when his 
 rights against oFliability to any of ^ the parties to the 
 suit may be thereby determined.^ Occupying ten- 
 ants, for instance, claiming title, are indispensable 
 parties.* To a suit by a surety for contribution, aU 
 Sft^yfift^ .ffMgJggg^must^be^^aEJii^ jifejy^^ 
 To a bill to vacate a sale of land, the vendee, or his 
 heirs, are indispensable parties.* To a bill for 
 
 as agents ; Minnesota Co. vs. St. Paul Co., 2 Wal. 609, 618, 634 ; see 
 Walter vs. Eiehl, 38 Md. 211, 221; an assignor when the assignment 
 is absolute ; Sto. Eq. PI. sec. 153 ; Day vs. Cummings, 19 Vt. 496, 
 499 ; Grand vs. Merklin, 65 Md. 579, 583. 
 
 ^Sto. Eq. PL sec. 229, 552 ; 1 Foster's Fed. Prac. sec. 51. 
 
 ^The difficulty in the application of the general rule as to parties 
 already adverted to (ante sec. 25), bears with full force upon this 
 ' distinction, and the difficulty has been aggravated by the loose 
 manner in which the terms "proper" and "necessary" are some- 
 times used as if convertible, and still oftener the terms "necessary" 
 and "indispensable." The statement in the text substantially 
 follows the well known classification of Mr. Justice Bradley, in 
 Williams vs. Bankhead, 19 Wal. 563, 571. 
 
 '1 Foster's Fed. Prac. sec. 53. 
 
 ^Oliver vs. Caton, 2 Md. Ch. 297; Williams vs. Bankhead, 19 
 Wall. 563. 
 
 « Young vs. Lyons, 8 Gill. 128;,, Robertson vs. Carson, 19 Wall, 94. / 
 
 «Buchanan vs. Torrance, 11 G. & J. 342, 346. 4f% "7^^ ^ , f i/ 
 
53 EQUITY PKOCEDUKB. 
 
 removal of a trustee, all the cestuis que trust are 
 indispensable parties;^ and "generally to all suits re- 
 specting the trust property;^ so also the trustees of 
 a railroad mortgage, in a foreclosure suitf so also 
 first-mortgage trustees, when the effect of the suit 
 by second-mortgage bondholders is to defeat their 
 possession by a receivership.^ In general, the trustee 
 must be a party to all suits affecting the estate." 
 
 Heirs and devisees must be parties to all suits for 
 the sale of land,^ also for the construction of a will.' 
 In a bill to enforce specific performance the only 
 proper parties are the parties to the contract and 
 their representatives.* 
 
 When the suit is to compel the transfer of stock 
 of a decedent, or to effect partition and sale of his 
 leasehold property the administrator must be a party. '' 
 
 'Baxter vs. Proctor, 139 Mass. 151. 
 
 ''Stewart vs. Firemen's, 53 Md. 564, 574; Smith vs. Gaines, 39 
 N. J. Eq.. 545; Brokaw, 41 N. J. Eq. 215, 223; Tyson vs. Applegate, 
 40 N. J. Eq. 305 ; Sergeant vs. Baldwin, 60 yt. 17. 
 
 'Hale vs. E. R. Co., 60 N. H. 333; Hambrick vs. Russell, 86 
 Ala. 201. 
 
 *Tome vs. King, 64 Md. 182 ; Miltenberger vs. R. R. Co., 106 
 U. S. 306. 
 
 "Thayer vs. Life Asso. 112 U. S. 717. 
 
 «Long, 62 Md. 33; Bowen vs. Gent, 54 Md. 555. 
 
 'Lomerson vs. Vroom, 42 N. J. Eq. 290 ; Dugan vs. Capner, 44 
 i;. J. Eq. 339 ; Handy vs. Waxter, 75 Md. 517. 
 
 "Johns Hopkins U. vs. Middleton, 76 Md. 186, 207; Woodbury 
 vs. Gardner, 77 Maine 68, 70 (vendor's devisee). 
 
 "Baltimore Retort Co. vs. Mali, 65 Md. 93 ; Foos vs. Scarf, 55 
 Md. 301, 312. 8 b 'JHdf- "2.'i3 
 
PASTIES. 53 ^ 
 
 To a partition suit, all tenants in common are 
 indispensable.' 
 
 To a bill filed by a corporation to rescind a con- 
 tract, under which property was sold by a syndicate, 
 formed to first buy the property and then sell it to a 
 company formed by them at a great overvalue, all 
 the members of the syndicate, together with repre- 
 sentatives of deceased or bankrupt members, must 
 be made parties.* A corporation is an indispensable 
 party to a bill for relief against a fraudulent transfer 
 of stock, 3 but the purchaser is not .'* When the bill 
 is filed for the sale of an equitable interest in land, 
 and it appears that since the date of the contract 
 creating such interest, the land has been sold, the 
 purchaser must be made a party." 
 
 When a person is interested in the controversy, 
 but will not be directly affected by a decree made in 
 his absence, he is a necessary party; that is, he 
 should be made a party if possible, and the court 
 will not proceed to a decree without him if he can 
 be reached.^ 
 
 'Barney vs. Baltimore, 6 Wall. 280; Savary vs. DaCamara, 60 
 
 Md. 139,145. l^TlKfr (?63 
 ^Erlanger vs. New Sombrero'Phosphate Co., 3 App. Ca. 1218, 1265. 
 ^Kendig vs. Dean, 97 U. S. 423. ^ Tytfit, S*^4,. 
 
 ^St. Romes vs. Levee, 127 TJ. S. 619. 
 
 ^Bridge Co. vs. Bannon, 47 Md. 130. 
 
 *" Necessary " here means reasonably necessary, the same sense 
 in which the term is used in the Constitution of the U. S. in Art. I, 
 sec. 8, cl. 8, as construed by the Supreme Court in McCulloch vs. 
 Maryland, 8 Wheat. 316, 413. The distinction between necessary 
 and indispensable partiesis often jurisdictional in the federal courts, 
 
54: EQUITY PROCEDURE. 
 
 When a person is not interested in a particular con- 
 troversy, but has an interest in its subject-matter 
 which may be conveniently settled in the suit and 
 thereby prevent further litigation, he is a proper 
 party, but the non-joinder of such party would not 
 be error. Thus to a bill filed against a canal com- 
 pany for re-execution, (lost bonds,) the state, a prior 
 mortgagee who had waived its lien, was held a 
 proper but not a necessary party.^ So, a prior mort- 
 gagee whose debt is not due, in a creditor's suit to 
 vacate fraudulent deeds.^ 
 
 So as to prior incumbrancers not made parties to a 
 foreclosure suit by a subsequent mortgagee.' So as 
 to junior incumbrancers.^ In a suit for the enforce- 
 
 and instances may be found collected in 1 Foster's Fed. Pr. sec. 52. 
 It is of less importance in state courts, where persons beyond the 
 jurisdiction can be made constructive parties by publication, unem- 
 barrassed by the constitutional restriction as to diverse citizenship. 
 In the language of the state decisions, the term "necessary" as 
 applied to parties, when unqualified, almost always means "indis- 
 pensable," and quite often the word "proper" may be found 
 loosely used in the same sense. 
 
 ^Chesapeake and Ohio Canal Co. vs. Blair, 45 Md. 102, 109. 
 
 "Walter vs. Eiehl, 38 Md. 211, 219. 
 
 'Ellicott vs. EUicott, 6 G. & J. 35, 48; Brooks vs.^#rooke, 12 G. & 
 J. 306, 318; Smith vs. Shaferj 46 Md. 578; Jerome vs. McCarter, 94 
 17. S. 734; Hagan vs. Walker, ifitow. 37. See Miltenberger vs. R. B. 
 Co., 106 V. S. 286, 306; Hefner vs. Northwestern, 123 U. S. 747, 754. 
 
 *Neal vs. Rathell, 70 Md. 592, 599; Leonard vs. Groome, 47 Md. 
 605; Harris vs. Hooper, 50 Md. 547; Johnson vs. Hambleton, 52 
 Md. 384; Chilton vs. Brooks, 71 Md, 445; (mortgage with power of 
 sale); Carroll vs. Kershner, 47 Md. 262, (mortgage with consent to 
 decree); Andreas vs. Hubbard, 50 Conn. 351,366; Ham brick vs. 
 Eussell, 86 Ala. 199. 
 
PARTIES. 55 
 
 ment of vendors' lien, where the vendee, pending suit, 
 conveyed to a third party, under a contract of sale, 
 with partial payment antedating the suit, the assignee 
 was held a proper, but not an indispensable party/ 
 Persons jointly and severally liable are all proper, 
 but not necessary parties defendant, and if not made 
 parties originally, may come in or be brought in by 
 a defendant.^ 
 
 § 38. Proper and necessary parties. Omitting 
 the term "indispensable," as peculiar to federal prac- 
 tice, the two remaining classes may be thus described: 
 Necessary parties are those without whom no decree 
 can be effectively made determining the principal 
 issues. Proper parties are those without whom a 
 substantial decree may be made, but not a decree 
 which shall completely settle all questions and adjust 
 all rights involved in the litigation. Or, more briefly : 
 Necessary parties are those without whom no decree 
 can be rendered. Proper parties are those whose 
 presence renders the decree more effectual.' 
 
 ^Fisher vs. Shropshire, 147 U. S. 133. 
 
 2Md. Code, Art. 16, sec. 159; U. S. Eq. Rule 51; Eng. Orders in Ch. 
 of 1841, No. 32. 
 
 'Pomeroy's Rem., sec. 329, 330. To illustrate: in a foreclosure 
 suit, the mortgagor is a necessary party, simply because no sale can 
 be made behind His back, and other incumbrancers arenot, because 
 the sale can be made subject to their outstanding liens. But if the 
 validity or extent of their liens be questioned, or if for any reason 
 the sale should be not of the equity of redemption alone, but of the 
 unencumbered title, then all incumbrancers are proper parties; that 
 is they are not necessary to a sale per se, although necessary to an 
 effectual and satisfactory sale. It is possible, although it may not 
 be convenient, for the judicial machinery to be put in motion with- 
 out them. It is not even possible without the mortgagor, or his 
 
56 
 
 EQUITY PROCEDUKE. 
 
 § 39. Misjoinder and nonjoinder — liow availed 
 of and remedied. When apparent upon the face of 
 the bill these defects are availed of by demurrer, 
 otherwise, by plea or answer. They may also be 
 suggested at the hearing, but in most cases an objec- 
 tion, not fatal, if not taken in the pleadings, would 
 be regarded as waived.* Whatever may haVe been 
 the old practice, all such objections are now usually 
 obviated by amendment.^ 
 
 When the omission of a party i s so radical as to. 
 
 amount to a l urisdictional defect, ana is hot cove red 
 
 by am ,p fLdni.ent, thg jdeg ree asjo such partv i s alwa ys 
 
 open to collateral attack, an d a sale under sucn aeCTee 
 
 "^iR^slaolRlle irom xhB omitted Darty .^ 
 
 § 40. Multifariousness. The maxim that equity 
 "prevents multiplicity of suits" has its limitation 
 
 heirs, representatives or assigns. Ibid.; Sto'. Eq. PI. sec. 193; 17 
 Am. and Eng. Ency. 649. 
 
 ^Hamilton vs. Whitridge, 11 Md. l28, 148; Chew vs. Bank, 14 
 Md. 299; Oliver vs. Piatt, 3 How. 333, 412; Nelson vs. Hill, 5 How. 
 127. Or, in such case, the court may, in its discretion, make a 
 decree saving the rights of the absent parties, or may require the 
 plaintiflE to bring in such absent party. Md. Code Art. 16, sec. 
 162; Rule 53 U. S. <f%. ^i^, (^^ 
 
 ^Md. Code Art. 16, see. 16, 17, 161. The equity rules now in force 
 provide for speedy hearing of objections for want of parties, the 
 cause to be set down for that purpose at the instance of the plain- 
 tifE, within fifteen days after answer filed (.in U. S. courts fourteen.) 
 If not so set for speedy hearing, and the objection should finally be 
 allowed, the plaintiff will not be entitled to amend, as of course, 
 and the bill may be dismissed. Md. Code, Art. 16, sec. 163; U. S. Eq. 
 Rule 52. A dismissal of the bill for want of necessary parties, or for 
 
 misjoinder, will be witho ut prejudice . House vs. Mullen, 22 Wal. 
 
 42, 46. — 1 --^li iii.H»iiiiiii«rmiw. 
 
 ^Ante, sec. 24, 25. .(i- , 
 
PARTIES. 57 
 
 in the doctrine of multifariousness. This is a tra- 
 dition of pleading, designed for convenience, to save 
 the delay, expense and unnecessary complexity 
 which have been found by experience to result from 
 the attempt to confuse in one suit remotely con- 
 nected parties or claims and thus pursue at the same 
 time two or more independent lines of investigation.* 
 The difficulty in the application of the general rule 
 as to parties, already adverted to^ is made especially 
 apparent by this limiting, but vague doctrine, which 
 offers no precise definitions and prescribes no pre- 
 cepts of universal application. "Each case must 
 depend upon its own circumstances, and much must 
 be left to the sound discretion of the court. "^ 
 
 The objection is usually raised by demurrer,* and 
 obtains in case of (first) misjoinder of parties, and 
 (second) misjoinder of claims or equities or subject- 
 matter. 
 
 § 41. Misjoinder of plaintiffs- It has been seen 
 that plaintiff s having conflicting or alternative 
 interests cannot be joined.^ But if plaintiffs' several 
 interests are not antagonistic, it matters not that 
 
 ^HefEron vs. Gore, 40 111. App. 257. 
 
 '■Ante, sec. 25. 
 
 'Barney vs. Latham, 103 U. S. 205, 215; U. S. vs. U. P. R. E. Co., 
 98 U. S. 604; Hefner vs. Ins. Co. 123 U. S. 747, 751; Brown vs. Guar- 
 antee, 128 TJ. S. 403, 411; Brian vs. Thomas, 63 Md. 476, 480; Neal 
 vs. Rathell, 70 Md. 592, 598; Eastman vs. Bank, 58 N. H. 421; Lang- 
 don vs. E. E. Co., 53 Vt. 228, 236; Shaffer vs. Fatty, 30 W. Va. 269; 
 Bank vs. Thornton, 83 Va. 157. 
 
 •*'Neal vs. Rathell, 70 Md. 592, 595; Mendenhall vs. Hall, 134 U. S. 
 559; Snook vs. Pearsall, (Mich.) 55 N. W. Eep. 459. 
 
 "Ante, sec. 32. 
 
58 EQUITY PEOCBDUEB. 
 
 they are distinct, and unconnected plaintiffs may 
 join where there is one connected interest among 
 them .all centering in the point in issue.^ 
 
 In a bill to redeem a prior incumbrance, it is not 
 multifarious to join subsequent mortgagees as co- 
 plaintiffs, even if two separate decrees should be 
 the result.^ Riparian proprietors on the same stream, 
 although holding under distinct titles, may join in 
 the same bill against a defendant who has injured 
 the common right.' On the other hand, several 
 plaintiffs asserting distinct and unconnected rights 
 against the same defendant cannot join.^ 
 
 § 42. Misjoinder of defendants. Generally, it 
 is multifarious to join in one hill Hifitinp.t, ^.\if\ liffldj^ ; , 
 
 P^^^i^.ii.^^*^^^ ^' i ?'»^ -*-^J-^-^3: c onfftttnd^tlifim.,a^j;fl. 
 demand sev eral^such matters -^?^iq{^| .RnSftmUfe.. 
 fendants.^ T he following are instances: an account- 
 
 iPeters vs. Van Lear, 4 Gill. 249, 264; EafEerty vs. Central (Pa.), 
 23Atl. 884; Hawes on Parties, sec. 96. As mechanics and material 
 men entitled to lienis, and a mortgagee upon the same property, 
 Hamilton vs. Schwer, 34 Md. 107, 117, where such claims were con- 
 solidated; (although the usual practice is for one claimant to file 
 his bill and make the other claimants co-defendants with the 
 owner, Trustees vs. Heise, 44 Md. 453 463,) Poland vs. E. E. Co., 
 52 Vt. 144, 172. Also sureties who have paid the entire debt 
 in a suit for contribution against a co-surety. Young vs. Lyon, 8 
 Gill, 162, 166. 
 
 ^Neal vs. Eathell. 70 Md. 592, 599. 
 
 'Cadigan vs. Brown, 120 Mass. 493; Cornwall vs. Swift,89 Mich. 503. 
 
 *Yeaton vs. Lenox, 8 Peters 123; Wade vs. Pulsifer, 54 Vt. 45, 72. 
 In this case the objection came too late. See farther, cases cited 
 1 Foster's Fed. Pr. sec. 72. _ 
 
 ^Wilson, 23 Md. 162, 170; Trego vs. Skinner, 42 Md. 432; Broad- 
 bent vs. State, 7 Md. 416, 428. ^ ^ «-^ V"'^ 
 
PARTIES. 59 
 
 ing with two or more distinct and independent part- 
 nerships;' unitinap separa.^^ ij-^frinp-firR nf^-na-tant. 
 
 each havin^.jiD conaero-. with. ...the other :^ i&^„8iUL. 
 for specific perfc^rman^ce^to claim relief agaii^s,t de- 
 fendants, not;^ pities to the contract ^^^ asser t iQg , .^ } ;. 
 interej|it in-the n ^r^pp-n+.p;^ to enforce in one suit the 
 individual liabilities of several stockholders in the 
 same bank;^ to include in one partition suit real 
 estate owned jointly by A and Rr and also real 
 estate owned jointly by A, B ana C;' or in a bill 
 which prays relief against executors, to claim also 
 against one of them as a mortgagee.* 
 
 On the other hand, it is not indispensable that all 
 parties should have an interest in all the matters 
 contained in the suit. It is suflScient if each party 
 has an interest in some matters, and they are con- 
 nected with the others.'' It is not multifarious to 
 join as defendants to a creditor's bill to vacate 
 fraudulent deeds, all the grantees in the several 
 deeds f nor, the bill being filed against the grantees 
 
 ^Griffin vs. Merril, 10 Md. 364, 371; Corner vs. Gilman, 53 Md. 
 364; see Nelson vs. Hill, 5 How. 127; Lewis vs. Loper, 47 Fed. Eep. 259. 
 
 ^Drewry Eq. PL 41; see U. S. vs. Telephone Co., 128 U. S. 315. 
 
 ^Crook vs. Brown, 11 Md. 158, 171; but see Barry, 64 Miss. 709. 
 
 *Bundy vs. Cocke, 128 U. S. 187. 
 
 '^Eeckefus vs. Lyon, 69 Md. 589. 
 
 "Cocks vs. Varney, 42 N. J. Eq. 514. A bill is multifarious which 
 joins distinct claims against different defendants. Keith, 143 Mass. 
 262, 264; Tullar vs. Baxter, 59 Vt. 468; Farmer vs. Bogers, (Ga.) 14 
 S. E. Eep. 188. 
 
 'Brown vs. Guarantee Co., 128 U. S. 403; Lenz vs. Prescott, 144 
 Mass. 505, 512. 
 
 «Brian vs. Thomas, 63 Md. 476, 480; Trego vs. Skinner, 42 Md. 
 426; Handley vs. Heflin, 84 Ala. 601; Pullman vs. Stebbins, 51 
 Fed. Eep. 10. 
 
60 EQUITY PROCEDURE. 
 
 of a deceased surety on a guardian's bond, was it 
 multifarious to join as co-defendants the adminis- 
 trator of the deceased guardian and the widow and 
 children of a deceased co-surety. ' A bill is not mul- 
 tifarious where one general right is claimed, though 
 the defendants have separate and distinct rights f 
 nor where the defendants are interested in all the 
 matters in suit, and the suit has a common object.' 
 
 § 43. Misjoinder of claims. To support the ob- 
 jection of multifariousness because the bill contains 
 different causes of suit against the same person, two 
 things must concur: J^^LJilifi. grounds of suit mugt..b^- 
 diff erent ; 2d , each grou n d puat Jj>j^j^feiit)Rt,itfra.id^^^ 
 to sustain a separa^|i^. lj)^i^l^^^ This objection is more 
 frequently overruled than sustained.^ 
 
 1 Brian vs. Thomas, 63 Md. 476, 480. 
 
 ^Smith vs. Scribner, 59 Vt. 103; De Wolf vs. Sprague, 49 Conn. 
 282; Murguiondo vs. Hoover, 72 Md. 9. 
 
 'Bolles, 44 N. J. Eq. 385; "Woolley vs. Pemberton, 41 N. J. Eq. 
 394, 398; Winsor vs. Pettis, 11 E. I. 506; Miller vs. Baltimore Co. 
 Marble Co., 52 Md. 642; N. P. R. Co. vs. "Walker. 47 Fed. Eep. 681. 
 See further cases cited, 1 Foster's Fed. Pr. sec. 73. 
 
 *Brown vs. Guarantee Co., 128 U. S. 403, 412. e. g.: A bill for par- 
 tition and also to enforce a mortgage. Belt vs. Bowie, 65 Md. 350; 
 Mitchell vs. Farrish, 69 Md. 239. But a bill for partition, which 
 also seeks an account of advancements, has been held not multifa- 
 rious. Marshall, 86 Ala. 383. So, a bill for partition and vacating 
 deeds. Vreeland, (N. J.) 24 Atl. Rep. 551. Similar illustrations in 
 Walker vs. Powers, 104 V. S. 245, 250; Sadler vs. Whitehurst, 83 Ya. 
 46; Columbus vs. Humphries, 64 Miss. 258; Bank vs. Thornton, 83 
 Va. 157; Wells vs. Sewell, (Va.) 17 S. E. Rep. 2; Mobile vs. Burke, 
 (Ala.) 10 So. Rep. 328; Reckefus vs. Lyon, 69 Md. 589. 
 
 ^U. S. vs. Telephone Co., 128 V. S. 315; Canton vs. McGraw, 67 
 Md. 584; Dunphy vs. Traveller, 146 Mass. 495; Lockwood vs. Law- 
 
PAETIES. 61 
 
 § 44. How remedied. Multifariousness does not 
 render a decree void or liable to collateral attack.' 
 The objection may be obviated by amendment, or by 
 dismissing the bill or petition as to such of the parties 
 or subject-matter as may be improperly joined. ^ 
 
 § 45. Intervention. The practice of allowing 
 an interested stranger to the suit to intervene therein 
 by petition is of civil-law origin, and has not been 
 fully imported into equity procedure.' The objection 
 for non-joinder must come from the defendant, or 
 from the court, and if the plaintiff refuses to amend, 
 the court may refuse to decree. The general rule is 
 
 rence, 77 Maine 297; Page vs. Whijider, 59 N. H. 507; Shafervs. 
 O'Brien, 31 W. Va. 601; Sumter vs. Mitchell,. 85 Ala. 318; Foos vs. 
 Scarf, 55 Md. 301; Chappell vs. Funk, 57 Md. 465; Cleland vs. Cas- 
 graive, (Mich.) 52 N. W. Eep. 460; Ashley vs. Little Eock, (Ark.) 19 
 S. "W. Rep. 1058; Torrent vs. Hamilton, (Mich.) 54 N. W. Rep. 634; 
 Dickerson vs. Winslow, (Ala.) 11 So. Rep. 918. 
 
 ^Hefner vs. Northwestern, 123 U. S, 747. 
 
 ^Md. Code, Art. 16, sec. 161; Canton vs. McGraw, 67 Md. 583, 
 590; Walker vs. Powers, 104 U. S. 245, 249; Price vs. Coleman, 21 
 Fed. Rep. 357. gj- y^^ 
 
 'Smith vs. Gale, 144 TJ. S. 509; Pom. Remedies, sec. 416. From 
 the Louisiana code it has passed into the "reformed procedure" 
 of the code states, to a greater or less extent. Ibid. The "third 
 party procedure" under the English judicature acts is limited to 
 the case of an outside party called in by a defendant for contribu- 
 tion or indemnity. Morgan's Ch. Acts, ^47. The English courts 
 have discretion to always admit new parties, either upon or without 
 application. IbiH. 336. The broad language of a recent Maryland 
 enactment has not as yet received judicial construction. 1892 ch. 
 654. 
 
62 EQUITY PEOOEDTTRE. 
 
 that an omitted person, although interested and 
 proper to be made a party, cannot on his own 
 application alone be admitted as such.^ This 
 rule, like all those where parties are concerned, 
 is flexible, and there are many cases where 
 intervention may be allowed: As where the 
 plaintiff consents;' where the intervenors are 
 already quasi parties f or claimants of property under 
 control of the court;* cestuis que trust, in some cases;^ 
 purchasers under decrees for sale;* assignees pendente 
 lite;'' stockholders in corporation suits where there is 
 fraud of directors;^ interveners claiming that the 
 
 ^Gregg vs. Baltimore, 14 Md. 479, 487; Holthaus vs. Nicholas, 41 
 Md. 241, 267; Postal vs. Snowden, 68 Md. 118; Shields vs. Barrow, 
 17 How. 130, 145; 1 Foster's Fed. Pr. sec. 201. 
 
 ^French vs. Gapen, 105 U. S. 509, 525; Brumbaugh vs. State, 5-t 
 Md. 641, 647. 
 
 'Fidelity vs. Mobile, 53 Fed. 850, citing Anderson vs. E. R. Co., 
 2 Woods 628; as in a creditor's bill, Myers vs. Fenn, 5 Wall. 205, 
 207; Calvert on Parties 428; Abrahams vs. Myers, 40 Md. 499, 508; 
 Chickering, 56 Vt. 82. 
 
 *Knippendorf vs. Hyde, 110 17. S. 282, 287; Gumbel vs. Pitkin. 
 124 U. S. 131, 146; Peoria vs. Chicago, 127 U. S. 201; Tome vs. King* 
 64 Md. 166, 182; Wingert vs. Gordon, 66 Md. 106. 
 
 ^Sto. Eq. PL sec. 208; Williams vs. Morgan, 111 U. S. 684; U. S. 
 Eq. Eule 49; Md. Code, Art. 16, sec. 160. 
 
 «Camden vs. Mayhew, 129 U. S. 85; Holthaus vs. Nicholas, 41 
 Md. 266-7; Johnson vs. Hoover, 75 Md. 486-7 (as parties to contracts 
 with the court). 
 
 'Mellen vs. Molina, 131 U. S. 353, 371; Brown vs. Thomas, 46 Md. 
 636, 641; Chenoweth vs. Smith, 29 Md. 18, 23; but see Stockett vs. 
 Goodman, 47 Md. 54; Hall vs. Jack, 32 Md. 253; post. sec. 47. 
 
 «Bronson vs. La Crosse E. Co., 2 Wal. 283, 302. 
 
PARTIES. 63 
 
 suit is collusive and fictitious, to their prejudice;^ 
 persons jointly and severally liable with the defend- 
 ants;'' or claimants af^er a decree and reference to a 
 master or auditor.* The filing of a petition is not 
 enough to make interveners parties; there must be 
 an order of court.^ 
 
 There may also be cases where actual kno wle^lgifi. 
 of a pending .sui t directly ^^ffgcJiSSi^taJBgJIgflflig 
 interest will conclude. his righ^^^^^ if he has th e oppor^ 
 tunity t^ i^ |( ^jve^^ ^ ^^for their nrotection. upon the 
 £rincipl^o^^toOTel,° especial ly when he partici- 
 pa tes actively in the ll tigati^ML. although underTne 
 name of a party to the |recorc 
 
 § 46. Abatement and revivor. When a sole plain- 
 tiff or defendant dies, whose interest so terminates 
 
 ^American vs. Heft, 131 U. S. XCII (appendix). 
 
 ^Md. Code, Art. 16, sec. 159. 
 
 3 Gregg vs. Baltimore, 14 Md. 479, 489. 
 
 * Walters vs. Chichester. 84 Va. 724; Jordan, 94 U. S. 248, 249. 
 Creditors, without formal petition, become real parties by filing 
 their vouchers with the clerk. Md. Code, Art. 16, sec. 189; 
 Strike McDonald, 2 H. & G. 191, 233-4; Gibson vs. McCormick, 10 
 G. & J. 65, 100; Hall vs. Ridgely, 33 Md. 310; Thomas vs. Bank, 46 
 Md. 44; Simms vs. Lloyd, 58 Md. 477, 481. 
 
 n Greenleaf Ev. sec. 522, 523; Robbins vs. Chicago, 4 Wal. 672; 
 Smith vs. Express Co. 135 111. 289; Chamberlain vs. Preble, 11 
 Allen 370; Lyon vs. Stanford, 42 N. J. Eq. 411; Litchfield vs. Good- 
 now, 123 U. S. 549; Albert vs. Hamilton, 76 Md. 304. ^|->lr7» ^ 
 
 sparr vs. State, 71 Md. 220, 235; St. .Tohnsbury vs. Morrill, 55 Vt. 
 168. But see Stryker vs. Goodnow, 123 U. S. 527, 540, where there 
 was participation without estoppel. 
 
64 EQUITY PROCEDUEB. 
 
 with his life as to leave no subject of litigation 
 remaining, the suit necessarily abates, in the common 
 law sense, that is, expires.' In other cases of death 
 of parties, pending suit, arid in some cases of mar- 
 riage, the suit was formerly deemed to have abated, 
 in the equity sense of the term, meaning simply 
 suspended until formally revived by bill of revivor.^ 
 The inconvenience of the proceeding by bill has, in 
 many states, led to enabling legislation authorizing 
 a simpler method of revival, by suggestion or peti- 
 tion, the voluntary or involuntary appearance of 
 personal representatives, and the making of new or 
 additional parties by amendment/ 
 
 § 47. Assignment. Assignees, pendente lite, need 
 not, in general, be made parties, being subject to all 
 the equities of the parties under whom they claim.* 
 Nor will they, ordinarily, be entitled to intervene in 
 the suit or claim title to the property;* but may be 
 
 iSto. Eq. PL 356. 
 
 ^Sto. Eq. PI. sec. 354; Glenn vs. Clapp, 11 G. & J. 1. The only 
 method of revival in the federal courts is by bill. 1 Foster's Fed. 
 Prac. sec. 178. 
 
 «Md. Code, Art. 16, sees. 1-13, 1892 ch. 654; 2 Am. & Eng. 
 Ency. 269-275. 
 
 *filton vs. Cofield, 93 U. S. 163; Inloes vs. Harvey, 11 Md. 519; 
 Boulden vs. Lanahan, 29 Md. 200, 210; Schaferman vs. O'Brien, 28 
 Md. 573; Mount vs. Manhattan, 43 N. .7. Eq. 25; Darling vs. Osborn, 
 51 Vt. 158. The principle is that during the pendency of an equit- 
 able suit neither party can alienate the property in dispute so as to 
 aflect the rights of his opponent. 2 Pom. Eq. Jur. sec. 633. 
 
 ^Hall vs. Jack, 32 Md. 253, 264; Stockett vs. Goodman, 47 Md. 54, 60. 
 
PARTIES. 65 
 
 admitted as parties, in the discretion of the court, 
 when other parties would not be prejudiced thereby.' 
 
 § 48. Process and appearance. These titles in- 
 dicate the means whereby parties are made. Plain- 
 tiffs always, and defendants sometimes, submit them- 
 selves personally to the jurisdiction of the court by 
 voluntary appeasance, ordinarily through their solici- 
 tors. The authority of the solicitor is presumed. A 
 general appearance i s equb 
 
 cess, anawaives^ all defects ^ I ij e rem . A ,^ ^|>^^pjLal^.aiu 
 
 pearanc e do^^jg^im No process in equity can issue 
 until after the filing of a bill. The process for de- 
 fendants within the jurisdiction of the court is the 
 subpoena, and for non-resident defendants an order 
 of publication.* Due service of subpoena gives 
 plenary jurisdiction in personam, while due pub- 
 lication gives a limited jurisdiction in rem. One 
 makes actual, the other constructive parties.' The 
 subpoena differs from the writ of summons at 
 law in two respects: 1. It c ^nr^^j. If^e^^ jj^snfid. 
 before the pl eadings. 2 It is directed _jQ_Jjife. 
 defendants personally and not to the sheriff. The 
 rules as to service and return of process do not differ 
 
 iMellen vs. Moline, 131 U. S. 353, 371; Chenowith vs. Smith, 29 
 Md. 18, 23; Foley vs. Bitter, 34 Md, 646, 649; Rhodes vs. Amsinck, 
 38 Md. 345, 350, Brown vs. Thomas, 46 Md. 636, 641; Bridge Co. vs. 
 Bannon, 47 Md. 130. fjff (/. S' ^' ^ 
 
 n Md. Code, Art. 16, sees. 105, 106, 108, 112, 114, 115; Carey's 
 forms, No. 733. 
 
 'See ante, sec. 29. 
 5 
 
66 EQUITY PBOCBDURB. 
 
 materially from those in actions at law.^ Service 
 must be made upon persons under disability, as well 
 as upon their legal representatives. There is no pro- 
 ' vision in Maryland for substituted service, but defend- 
 ants who evade service may be proceeded against as 
 non-residents,^ Merely naming a p e r so n^ in a bill ^ a,s 
 
 ii M ii lfi iififi ffit l Ml ii f l"f ^ Iff ii i iii fflf''^^ -^^ ^ P^y? unless pro- 
 cess is prayed against himT 
 ~ Ancientiy the mode~of appearance was by the par- 
 ty's actual attendance, and after service of subpoena 
 and default of appearance or answer, the defendant 
 was further pursued (1) by attachment for contempt, 
 (2) by attachment with proclamations, (3) by commis- 
 sion of rebellion, (4) by search by the sergeant-at- 
 ^ arms, and (5) by sequestration.* Of these Nos. 3 and 
 4 are abolished,^ and Nos. 1, 2 and 5 recognized by 
 statute,^ and the plaintiff has still theoretically his 
 election to resort to them.' This cumbrous chain of 
 process has in practice been altogether superseded by 
 the simpler and speedier method of at once taking 
 the bill pro confesso, after a default in either appear- 
 ing or answering.* 
 
 122 Am. and Eng. Ency. 107. 
 
 ^Md. Code, Art. 16, sec. 108. 
 
 'Binnfey's case, 2 Bland 99, 106; White vs. Davis, 48 N. J. Eq. 24. 
 
 *B1. Com. 444; Alex. Ch. Prac. 20. 
 
 ^Md. Code, Art. 16, sec. 168. 
 
 mid. sees. 172-174, 168. 
 
 ''Ibid, sec, 175. 
 
 ^Ibid. 127-130. 
 
CHAPTER III. 
 
 EQUITY PROCEDURE. PLEADING AND EVIDENCE. 
 
 49. Pleading. 
 
 50. The pleadings. 
 
 51. Special case. 
 
 52. The bill. 
 
 53. Classification of bills. 
 
 54. Contents of the bill. 
 
 55. Its allegations. 
 
 56. Filing the bill. 
 
 57. Taking pro oenfeaso. 
 
 58. The defence. 
 
 59. The demurrer. 
 
 60. Demurrer or plea. 
 
 61. The plea. 
 
 62. Plea in abatement. 
 
 63. Plea in bar. 
 
 64. Pleas in general. 
 
 65. The answer. 
 
 66. Exceptions to answer. 
 
 67. Cross-bill. 
 
 68. Proceedings upon answer. 
 
 69. Replication. 
 
 70. Evidence. 
 
 71. Exceptions to testimony. 
 
 §49. Pleading. The maxim that " equity regards 
 substance rather than form," understood within rea- 
 sonable limits, has been a controlling factor in shap- 
 ing the system of equity pleading. The substantial 
 rights of parties are not sacrificed to the letter of the 
 
68 EQUITY PROCEDUEB. 
 
 rule.' The same precision and technical exactness 
 are not required as in common law pleading.' One 
 important reason for this has been already indicated 
 in the absence of jury trial.' In this country, the 
 English chancery rules of pleading have been some- 
 what relaxed in practice." The character of a bill, for 
 instance, is determined rather by the allegations and 
 relief prayed, than the title it assumes. Thus a 
 creditor's bill will operate as such, although filed on 
 behalf of a single creditor only." When a bill is 
 filed for relief, nominally in one character, and facts 
 are alleged showing title to relief in another, relief 
 will be granted according to the allegations and 
 proof.* 
 
 When the facts of the case disclose an equitable 
 title to relief impossible to be afforded upon the alle- 
 gations of the bill, the appellate court inay remand 
 the case to the court below for an amendment of the 
 pleadings and such further proceedings as may be 
 just.' A decree, although erroneous, will not be re- 
 versed for a departure from technical rule when no 
 
 'Eneeland vs. American Loan Co., 138 U. S. 509, 512 ; Adkins vs. 
 Edwards, 83 Va. 306. 
 
 2 Grove vs. Rentch, 26 Md. 367. 
 
 ^Ante, sec. 22. 
 
 *Ridgely vs. Bond, 18 Md. 433, 450. 
 
 ^Gibson vs. McCormick, 10 G. & J. 65, 100 ; Simms vs. Lloyd, 58 
 Md. 477, 481. 
 
 «Wootten vs. Burch, 2 Md. Ch. 190; Ridgely vs. Bond, 18 Md. 
 433, 450. 
 
 » Wiggins vs. Railway, 142 U. S. 396, 415 ; Jeffrey vs. Flood, 70 
 Md. 42. 
 
PLEADING. 69 
 
 substantial harm has been done.' Many other in- 
 stances might be cited to show that in administering 
 the rules of equity pleading, the ends of substantial 
 justice are not sacrificed to mere form.^ Some of 
 the rules relating to pleas in equity are quite arti- 
 ficial, and the learning in that department is abstruse 
 and sometimes obscure, but in general the rules of 
 equity pleading are simple and liberal. Conscience, 
 good faith and reasonable diligence are the spirit of 
 the system. Sometimes, however, behind a techni- 
 cality there is substance.' Even a court of equity 
 must insist upon reasonable compliance with its es- 
 tablished forms of procedure, adopted for the general 
 purposes of justice, to prevent surprise, and for the 
 more convenient despatch of business.^ It is, for 
 instance, quite obvious that a decree of a court 
 of equity upon oral allegations, without written 
 pleadings, would be an idle act.' Even the liberality 
 of code pleading does not admit recovery upon a 
 cause of action altogether different from that claimed.* 
 The object of pleading being to give notice to the 
 court and to the adverse party of the real grounds of 
 claim and defence, its essential requisites are that 
 its matter should be true, intelligible, and pertinent. 
 
 ^Bigham's Appeal, 123 Pa. 262 ; Rice vs. Edwards, 131 TJ. S. Ap- 
 pendix, CLXXV. 
 
 2 Hardin vs. Boyd, 113 U. S. 756 ; Fearey vs. Hayes, 44 N. I. Eq. 
 425, 426. 
 
 'Westmoreland vs. Fielder, (1891) 3 Ch. 15, 26. 
 
 *Knowles vs. Roberts, 38 Ch. D, 263, 270; Trotter vs. Hecksher, 
 41 N. .r. Eq. ^8, 479; Commonwealth vs. Perkins, 124 Pa. 36. 
 
 "Windsor vs. JklcVeigh, 93 U. S. 274, 283. 
 
 "Reed vs. McConnell, 133 N. Y. 434. 
 
70 EQUITY PEOCEDUEE. 
 
 Its truth, if denied, is tested by proof, and deter- 
 mined by the court, upon issue joined by replication. 
 Vagueness, obscurity and ambiguity are, in a bill, 
 defects'that may be availed of by a demurrer for un- 
 certainty, in a plea or answer, by setting the same for 
 argument, which is equivalent to a demurrer, and by 
 exceptions to the answer for insuflSciency. Imperti- 
 nence or irrelevancy, especially when it savors of 
 scandal, or tends to prolixity, will be expunged on 
 motion, or exception.' 
 
 Besides these, there are formal requisites adopted 
 for convenience, to guaranty good faith, and to pre- 
 vent surprise and delay. Such are^ the division of 
 the bill and answer into numbered paragraphs, the 
 affidavit required to special classes of bills, and to all 
 demurrers and pleas, and the various regulations 
 as to time, manner and circumstance. The divi- 
 sion iato numbered paragraphs is simply a res- 
 toration of the pleading by "allegation" of the 
 ecclesiastical courts, based upon Roman procedure. 
 Each allegation, or separate paragraph, should prop- 
 erly contain a distinct fact with its group of subor- 
 dinate circumstances, so far as essential to color the 
 fact, omitting those minute circumstances which are 
 merely matter of evidence. = 
 
 § 50. The pleadings. All the pleadings in a 
 modern equity suit may be, and frequently are, 
 
 lU. S. Equity Rules 26, 27; Mil. Code Art. 16, Sec. 131; Sto. Eq. 
 PI. sec. 266, 862, 
 ^Pomeroy on Rem. sec. 506. 
 
PLEADING. 71 
 
 comprised in bill and answer. The formal replication 
 is simply a punctuation mark, of such value as the 
 plaintiff elects to give it; a full stop, if satisfied 
 with the answer: a colon, if proof is required. To 
 avoid prolixity and reach pr6mptly the real merits, 
 the series of allegations on the part of the plaintiff 
 which, under the old system, would fi.nd place in 
 bill, special replication, surrejoinder and so on, are 
 now incorporated? in the original or amended bill, 
 and all defences that formerly appeared in answer, 
 special rejoinder, or any of the successive pleadings, 
 open to a defendant, are now condensed in the 
 answer." Although all defences to the merits and 
 objections to de'^fect of parties, may be availed of in 
 the answer,'' demurrers are resorted to when a bill is 
 defective in form,'' or substance.* The learning of 
 pleas is at once the most diflScult and the most use- 
 less part of the system, and cases are now rare in 
 which a plea is found preferable to an answer.^ 
 
 § 51. Special case. Formal pleadings by bill and 
 answer may be dispensed with by agreement submit- 
 ting a question of construction of any statute, deed, 
 will, or other instrument of writing, or other matter 
 in controversy, to the court, in the form of a special 
 
 'Wade vs. I'ulsifer, 54 Vt. 45, 69. 
 
 2U. S. Eg. Rule, 39, 52; Md. Code, Art. 16, sec. 142, 163. 
 n Foster's Fed. Pr. sec. 110. 
 *Post, sec. 59. 
 
 ^Drewry, Eq. PI. 64; Heard, Eq. PI. 85; Beames on Pleas, 61; 1 
 Foster's Fed. Pr. sec. 143. 
 
72 EQUITY PEOCBDUEE. 
 
 case stated. In such special case, married women 
 may join with their husbands, and infants and luna- 
 tics by their guardians or committees. It is regularly 
 entitled and docketed and treated, for all purposes, 
 as if instituted by formal pleading. Such facts and 
 documents are concisely stated in numbered para- 
 graphs as may be necessary to enable the court to 
 decide the question raised, and the decree thereon 
 is enforced and appealed from as other decrees. No 
 rights are affected other than those of parties and 
 those claiming under them." 
 
 This procedure has not been adopted and is not 
 recognized in federal practice.^ 
 
 § 52. The bill. The bill in equity is • historically 
 cognate with the bill in parliament, which in its 
 early form consisted of astatemgnt^o^^^iievance^ 
 jjjda^raverfor^eljgf These are the two essentia l 
 parts of the modern bill in eauitv. with a formal 
 introduction, and a closing prayer for process.* 
 
 ^Md. Code, Art. 16, sees. 184-186, following 13 and 14 Vict. ch.'35, 
 modified by Chan. Order No. 34; Morgan, ch. 400. See Carey's 
 Forms, Nos. 634, 635. Flook vs. Hunting, 76 Md. 178. « ^7/// U ( 
 
 n Foster's Fed. Pr., sec. 296. « f ^T 
 
 *See the preamble to Stat, of Uses, 27 Henry 8, cb. 10; Alex. Br. 
 Stat. 293. 
 
 *Md. Code, Art. 16, sees. 132, 133, 134, garey's Forms. Np . 
 -g j )6 . Formerly the bill contained nine parts, in ttie following 
 order: 1, the address; 2, the introduction; (these two parts are 
 now considered as one, containing the name of the court, and the 
 names of the parties, and in the federal courts, their citizenship); 
 3, the premises, or stating part, (still retained of course, as the sub- 
 stance of the complaint); 4, charge of confederacy, (now omitted); 
 
PLEADING. 73 
 
 Suits in equity are commenced by bill, the term 
 "bill" embracing also petition or information.' Peti- 
 tions will be mentioned further on. An information 
 differs from a bill only in name and form, and is a 
 bill filed by the attorney-general, or other proper offi- 
 cer, in behalf of the state, or of those whose rights 
 are the objects of its protection.^ 
 
 § 53. Classification of bills. The most general 
 ^^rgsig^is into hillpi nr^p-^'r| f ^.l_an fl bills not original . 
 Original bills relate to matters not before litigated in 
 the same court by the same parties. Bills not origi- 
 nal relate to some matters already litigated in the 
 same court by the same parties.' Original bills are 
 again subdivided into bills praying relief and bills 
 
 5, charging part, in which evidence to sustain the complaint was 
 often set forth in detail, and hypothetical suggestions made and 
 denied of pretended defences, (now omitted, except when the 
 plaintiff really anticipates an expected defence); 6, jurisdiction 
 clause, (formal allegation of want of legal remedy, now omitted); 
 7, interrogating part, (now omitted, but special interrogations may 
 be appended); 8, prayer for relief; 9, prayer for process, (the last 
 two are retained.) Sto. Eq. PL sec. 2ii, &c; Md. Code, Art. 16, 
 sec. 143. 
 
 •Md. Code, Art. 16, sec. 119. 
 
 n Foster's Fed. Pr. sec. 63. 
 
 'Such as amended and supplemental bills, bills of revivor, bills 
 both of revivor and supplement, cross-bills, bills of review, a bill to 
 impeach a decree for fraud, a bill to suspend or avoid a decree, a bill 
 to carry a decree in a former suit into execution, and bills in the 
 nature of such bills as have just been mentioned. Sto. Eq. PI. sees. 
 16, 20, 21; 1 Foster's Fed. Pr. sec. 64; 6 Am. and Eng. Ency. 729; 
 Barton, Suit in Eq. 28. Cross bills, bills of review, &c., are other- 
 wise styled bills in the nature of original bills. 4 Minor Inst. 1126- 
 1139. 
 
74 EQUITY PROCEDURE. 
 
 not prayinpi' relie f. Of the latt.p-r filasa thftre a.re but 
 lag, bills for the perpetuatio n nf j.^stimnnv. a,Tidlp|]l.s 
 of discovery nrni per.' The sole object of these bills 
 when used, was in aid of an action at law, and, in 
 modern practice, they have been superseded by stat- 
 utory reforms in the law of evidence,^ Original bills 
 praying relief are those most frequently encountered 
 in practice, and the relief prayed may be either pre- 
 ventive, as by injunction, or remedial, as by specific 
 performance, cancellation, reformation, &c. 
 
 § 54. Contents of the bill, The essential parts of 
 the bill have been already mentioned.' All bills and 
 petitions are now divided into numbered paragraphs, 
 each containing a succinct but complete statement of 
 fact, the same requirement being applicable to special 
 prayers for relief. The bill contains simply a state- 
 ment of the facts upon which the plaintiff asks relief, 
 and, at his option, the facts which are intended to 
 avoid an anticipated defence, and such averments as 
 may be necessary to entitle the plaintiff to relief, and 
 the prayer for relief particularly specifies the relief 
 desired, and also contains the prayer for general relief. 
 An injunction, or other writ, or special order required, 
 should be specially prayed for, but need not be re- 
 peated in the prayer for process. The names of all 
 
 iSto. Eq. PI. sec. 19. 
 
 ^Making parties competent witnesses: Md. Code, Art. 35, sees. 
 1-5; providing for discovery and production of documents, Ibid. 
 Art. 75, sec. 94. 
 
 ^Ante, sec. 52. 
 
PLEADING. 75 
 
 the parties are given in the introduction , a,nH tViR 
 nraver for prn(;,fip!s or ft^v nrdar nf pi^^li gation con - 
 tains the namfts of all Hftfp.nrla.nts- with t heir nla.nes 
 gjE„re^l4ence.,-S.Q,faiLa^s..k.n.am.n.....designa,ting- such de- 
 fendants as are known to be under disability.^ To 
 every/ bill the signature of coimsel must be annexed, 
 and in a few exceptional cases the bill is supported 
 by aflSdavit.^ 
 
 § 55. Its allegations. Evervmaterial f act should 
 be stated upatL3ghiiib-i:digLia-saLiglii- The decree is 
 secundum allegata et probata, and, in general, no 
 decree can be had upon proof or admissions not 
 founded upon some allegation in the bill.^ The 
 XasiiS should be set forth with reasonable certainty.'' 
 And facts shouldbe stated, not merely conclusions 
 of law. The court must be enabled to see that the 
 condlusions are well founded.^ While the allegations 
 
 iMd. Code, Art. 16, sees. 132, 133, 134; 1 Foster's Fed. Pr. sees. 
 65-67. 
 
 ^Sto. Eq. PI. sec. 47; 1 Foster's Fed. Pr. sees. 86, 87. An affidavit 
 is generally required to a bill for injunction or receiver; to a bill for 
 relief for lost instruments; to a bill of interpleader; and in the fed- 
 eral courts, to a stockholders' bill against a corporation. Ibid, Alex. 
 Ch. Pr. 16. Signature of counsel may be dispensed with by plain- 
 tiffs' acknowledgment of his signature before a ius|ice of the pe^qeirj 
 Rule 2, Circuit Court Baltimore, and C. C. No. 2. V-> t!2tClc7 eoT^tt 
 
 "Sto. Eq. PI. sec. 257; Jeffrey vs. Flood, 70 Md., 42.^ut ckTdT 
 must be taken to except to testimony not sustained by the bill, 
 otherwise a decree may be passed upon proof not thus excepted to 
 Schroeder vs. Loeber, 75 Md. 195, 201. 
 
 *Sto. Eq. PL sec. 240; 1 Foster's Fed. Pr. sec. 69. 
 
 ^Lamm vs. Burrell, 69 Md. 272. 
 
76 EQUITY PKOCEDUEB. 
 
 should be specific and definite,^ it is not necessary to 
 set forth minute circumstappes of proof, but the alle- 
 gations will suffice if they fairly apprise the defend- 
 ant of the case made against him and of the defence 
 required.^ There are some cases in which the rules 
 as to certainty are applied with peculiar stringency.' 
 A bill must not state inconsistent grounds of relief, 
 but bills with a double aspect are allowed, when the 
 facts are of a different nature, but the relief is iden- 
 tical, and alternative relief may be prayed according 
 to the conclusion of law that the court may draw 
 from the facts stated.^ Lengthy documents are not 
 to be copied into the bill. They are filed as exhibits, 
 and their contents succinctly stated upon the plead- 
 ers' theory of their true construction and legal 
 
 eflfect. Such theory is not admitted by a demurrer. 
 
 1 
 
 iWorthington vs. Lee, 61 Md. 530, 535. 
 
 ^Canton vs. McGraw, 67 Md. 585; U. S. vs. Bell, 128 U. S. 356. 
 
 '«. g. in bills anticipating the defence of laches by the allegation 
 of recent discovery. Felix vs. Patrick, 145 U. S. 317, 332. "When 
 fraud is charged, the particulars which constitute the fraud must be 
 distinctly alleged. Wenstrom Co. vs. Purnell, 75 Md. 113, 120; Am- 
 bler vs. Chotean, 107 U. S. 586, 591; Wallingford vs. Mutual, 5 App. 
 Ca. 686, 697, 701. 
 
 *Sto. Eq. PI. sec. 254; 1 Foster's Fed. Pr. sec. 70. Thus, in a bill 
 for an account and delivery of property, the plaintiff may claim 
 either as devisee or as heir-at-law. Gaines vs. Chew, 2 How. 619, 
 643. A bill for the cancelation of a contract may pray in the 
 alternative for the enforcement of a vendors' lien. Hardin vs. Boyd, 
 113 U. S. 756, 763. A case may be stated in the alternative aspect 
 of a conveyance upon trust, or else as an absolute sale with an inci- 
 dent equitable lien. Lingan vs. Henderson, 1 Bland, 236, 252.. 
 Charges both of fraud and mistake in.the same transaction may be 
 coupled, and the bill sustained upon one, if the other fail. Wil- 
 liams vs. U. S. 138 U. S. 514, 517. 
 
PLEADING. 77 
 
 § 56. Filing the bill. The draft of the bill hav- 
 ing been settled, revised and legibly copied (prefera- 
 bly in typewriting or print), is then endorsed with 
 the names of the parties and an order to the clerk to 
 issue. process. The bill, together with all exhibits 
 mentioned therein, conveniently numbered for refer- 
 ence, is then filed at the oflBce of the clerk, who 
 endorses the date of the filing, makes the proper 
 entries upon the docket, and forthwith issues the 
 proper process. ^ This is called the "e-yhihitinar" of 
 a bill. N o process can issue until the bill and ex hibits 
 are thus filed, ^ 
 
 § 57. Taking the bill pro confesso. Upon default 
 of any adult defendant not insane in failing to 
 appear and answer, plead or demur, within the litaits 
 prescribed,' the bill may be taken pro confesso, which 
 corresponds to a judgment by default, and the case 
 is proceeded with ecc parte as against the defaulting 
 defendant. If no defence be still interposed, and 
 the bill presents a proper case for relief, a final 
 decree may be had after thirty H avs ffri m the da.te 
 of the order pro confesso.^ Or the court may order 
 
 ^Ante, sec. 48; Alex. Ch. Pr. 16. 
 
 2Md. Code, Art. 16, sec. 120; U. S. Eq. Kules, 11, 12. 
 
 'Defendants have fifteen days from the time of the return of 
 process served within which to enter an appearance, and twenty 
 days more to answer, etc., unless the time be enlarged by special 
 order. Md. Code, Art. 16, sec. 126. In the federal courts the 
 appearance is to be entered on or before the return day, and the 
 answer, etc., to be filed on or before the next succeeding rule day. 
 TJ. S. Equity Eules, 12, 18. 
 
78 EQUITY PKOCEDTTKE. 
 
 the allegations of the bill to be supported by proof.^ 
 The defendant is not precluded from contesting the 
 suflBciency of the bill, or from insisting that its 
 averments do not justify the decree. The decree 
 must be strictly in line with the matter of the bill, 
 and a departure will be available on appeal. - 
 
 § 58. The defence. The several modes of defence 
 in equity are by disclaimer, demurrer, plea, answer 
 (either with or without cross-bill), and in rare cases 
 by obiection taken at the hearing. The opportunity 
 for pure disclaimer is seldom presented, and an 
 answer is generally required in explanation. It 
 must be explicit in renouncing all claim or interest.' 
 
 § 59. The demurrer. The oflBce of a demurrer is 
 the same as at law, although, in equity it lies only to 
 the bill.^ Its object is to ^oi^^i^cgggj;^ and to 
 prevent delay and expense. It admits, for the pur- 
 poses of the demurrer, all the facts alleged in the 
 
 ^Md. Code, Art. 16, sec. 127-130; Carey's Forms, Nos. 694, 734; 
 1 Foster's Fed. Pr. sec. 103, 104; Ad. Eq. 329, note; Thomson vs. 
 Wooster," 114 U. S. 104; Hefner vs. Insurance Co., 123 U. S. 756; 
 Ohio B. E. vs. Trust Co., 133 U. S. 83; Kust vs. Lynch, 54 Md. 636. 
 
 20hio R. E. vs. Trust Co. 133 U. S. 83. 
 
 "Carey's Forms, No. 643; Sto. Eq. PI. sec. 838; 1 Foster's Fed. Pr. 
 sec. 155; Worthington vs. Lee, 2 Bland 678; Bentley vs. Cowman, 
 6 G. & J. 152. It was formerly required, like an answer, to be under 
 oath. Alex. Ch. Pr. 62; Barroll, Md. Ch. Pr. 107. 
 
 ^Madigan vs. Workingmen, 73 Md. 317; Bouskulp vs. Kershner, 
 49 Md. 521. In a somewhat anomalous case a demurrer has been 
 entertained to a motion of ne recipiaiur to a plea. Bush vs. Linthi- 
 cum, 59 Md. 354. 
 
PLEADING. 79 
 
 bill that are " well pleaded," but nothing more.* It 
 does not admit the plaintiff's conclusions of law, nor 
 his theory of th^ construction of instruments.^ A 
 
 ^ "speakinp^ demurrerL' is one which brings in facts 
 outside the bill, and^^lwaj^verrulg^' The most 
 usual grounds of demurrer are C for want of jurisdic- 
 tion, as where the remedy is at law;* for want of 
 equity on the whole merits of the casej^for want of 
 interest in the plaintiflfj^or any defect of parties 
 apparent on the billi'^^for want of certaintyijf^ f or 
 
 «rmultifariousnessf for laches or limitations." 
 . 2^ 
 
 ^Miller vs. Marble Co., 52 Md. 643, 646. 
 
 ^Eeddington vs. Lanahan, 59 Md. 429, 437; Fogg vs. Blair, 139 
 U. S. 118; U. S. vs. Des Moiiies Co., 142 U. S. 544; Kent vs. Canal 
 Co., 144 U. S. 91; Ankeny vs. Hannon, 147 U. S. 118, 130; Dillon 
 vs. Barnard, 21 Wall. 430, 437; Interstate vs. Maxwell, 139 U. S. 569; 
 Louisville, &c., R. R. vs. Palmes, 109 TJ. S. 244, 253. In Felix vs. 
 Patrick, 145 TJ. S. 317, 333, it is said that allegations are not admitted 
 which it is "very improbable" that the plaintifE could prove. 
 
 ^Sto Eq. PI. sec. 448. 
 
 *Arrowsmith vs. Gleason, 129 U. S. 86, 95. In the federal courts 
 this objection may be taken at the hearing, or by the court sua 
 sponie, even on appeal. Allen vs. Pullman, 139 U. S. 658. Other- 
 wise by Md. Code, A.rt. 5, sec. 35; Biddinger vs. Willard, 67 
 Md. 363; Shryock vs. Morris, 75 Md. 76. 
 
 'Taylor vs. Mallory, 76 Md. 1; Huntington vs. Attrill, 146 U. S. 
 657; Hedges vs. Dixon County, 150 U. S. 182; Edes vs. Garey, 46 
 Md. 24; Carey's Forms, No. 854. 
 
 "Sellman, 63 Md. 520; Hamilton vs. Traber, 27 Atl. Rep. 230, 
 77 Md. 
 
 'Gregory vs. Stetson, 133 U. S. 579, 585. 
 
 'Riley vs. Carter, 76 Md. 581, 599; Goldsmith vs. Gilliland, 22 
 Fed. 865. 
 
 'Carey's Forms, Ho. 858; Ante, sec. 40. 
 
 loBiays vs. Roberts, 68 Md. 510; Noble vs. Turner, 69 Md. 519; 
 Norris vs. Haggin, 136 U. S. 386; Bank vs. Carpenter, 101 TJ. S. 567. 
 
80 EQUITY PROCEDUKB. 
 
 Demurrers are said to be viewed with disfavor,^ 
 and are not generally advisable where the defect 
 may be readily avoided by amendnaent.^ Where the 
 defect is radical and incurable, and appears upon 
 the face of the bill, the demurrer is the proper 
 defense. Other points relating to the topic will be 
 next mentioned, in connection with pleas, to avoid 
 repetition. 
 
 § 60. Demurrer or plea. Both instruments have 
 several points in common. They are borrowed from 
 the common law. They have the same object, to 
 avoid^ discovery, and,, prevent delay, although prac- 
 tically their effect is sometimes to secure delay. 
 Both may be filed with an answer, and may be to the 
 whole bill, or to a part.^ Neither is allowed unless 
 supported by an affidavit that it is "not intended for 
 delay."^ Either may be set down for argument by 
 the plaintiff, and if he does not, by the defendant.^ 
 Upon the allowance of either, the plaintiff may ob- 
 tain leave to amend, in the discretion of the court, 
 and upon terms.* Upon the overruling of demurrer 
 or plea, the defendant is required to answer the bill, 
 or the part unanswered, and in default thereof, or if 
 
 iChappell vs. Funk, 57 Md. 465, 472. 
 
 *Md. Code, Art. 16, sec. 139; unless the amendment would be 
 of some use to the plaintiff. 
 
 «Md. Code, Art. 16, sec. 135. 
 
 *lbid. Art. 16, sec. 136, and, if a plea, that it is true in fact. 
 Sheffield vs. Witherow, 149 U. S. 574; Wagoner, 76 Md. 311. 
 
 =Md. Code, Art. 16, sees. 137,, 138. 
 
 "iMrf. sec. 139. 
 
PLEADIKG. 81 
 
 the demurrer or plea be found frivolous, and inter- 
 posed for vexation or delay, a decree may be taken 
 pro confesso.^ 
 
 Without resort to demurrer or plea, the iyrniind oi, 
 
 either. iLMJ^S^^^S^JsAhSJS^Sii^ ina.Y,.l]Pi RiYatlpd ,fll 
 bv^^ answer.^ There may be demurrer to part of the 
 bill, plea to part, and answer as to the residue.^ 
 
 § 61. The plea. This is not a frequent mode of 
 defense in modern practice.* The learning of pleas 
 is the most technical department of equity proced- 
 ure. It flourished when bills were prolix, when 
 answers entailed much expense, and when the tak- 
 ing of evidence sometimes dragged through years. 
 All this is now simplified and expedited, and the 
 utility of pleas is consequently diminished. The 
 most recent writers discourage their use, except in 
 abatement, or in rare cases. ^ There is no general 
 issue plea in equity. A plea in equity is a special 
 answer, relying upon some fact or facts tending to a 
 single point, sufficient to bar or delay the suit. An 
 affirmative, otherwise called a pure plea, sets up 
 
 ^Ibid. sec. 140. Carey's Forms No. 856. If demurrer or plea be 
 overruled, or withdrawn without leave, the defendant is liable to a 
 forfeit of ten dollars and costs, and to be in contempt until paid, 
 unless otherwise ordered. Ibid. sec. 141. 
 
 ^Ibid. sec. 142. 
 
 oibid. sec. 135. ti'^i' hlo^ 
 
 *Rouskulp vs. Kershner, 49 Md. 516, 521. 
 
 n Foster's Fed. Pr. sec. 143; Drewry Eq. PI. 64; Heard Eq 
 PL 85. /¥^V.S., 31 
 
 6 
 
83 EQUITY PEOCBD0EE. 
 
 new matter as a defense, outside the bill.^ A nega- 
 tive, by some also called an anomalous, plea, merely 
 denies some material allegation of the bill." The 
 first corresponds to the common law plea in confes- 
 sion and avoidance, and the second to the traverse. 
 Besides these there is a third form of plea, by some 
 writers called anomalous, which is a plea supported 
 by an answer.' It sets up a fact in avoidance of the 
 bill, and is so far affirmative, but the_ fact is one 
 which has been anticipated and replied to in the bill, 
 and to the extent that the plea meets and denies this 
 anticipatory allegation, the plea is also negative, 
 and to that extent must be supported by an answer.' 
 
 § 62. Pleas in abatement. Pleas in abatement 
 correspond to the declinatory and dilatory exceptions 
 of the civil law. They are to the .jurisdiction, to 
 the person and to the ^ill. Pleas to the jurisdiction 
 are That the suBjecTTF the suit is not within the 
 jurisdiction of equity, or that some other court of 
 equity has proper jurisdiction of the case, or that 
 
 > Carey's Forms No. 653. 
 
 "Carey's Forms, No. 644. 
 
 'Carey's Forms, No. 749. 
 
 *Lang. Eq. PI. sec. 101; 1 Foster's Fed. Pr. sec. 124; Sto. Eq. PI. 
 sec. 651. Upon this particular branch of the subject the learning 
 is the most subtle and not always harmonious. Unless a sworn 
 answer is required, a plea supported by an answer is no longer 
 necessary. Cheatham vs. Pearce, 89 Tenn. 679; 1 Barbour Ch. Pr. 
 128. It may be regarded as practically superseded by modern pro- 
 visions, for all such defenses being taken by answer. Md. Code, 
 Art. 16, sec. 142; U. S. Eq. R. 39. 
 
PLEADING. 83 
 
 the defendant has not been properly served with 
 process. Pleas to the person, as that the plaintiff is 
 an infant without prochein ami, or a receiver suing 
 without leave of court, or that he is not the person 
 he pretends to be, not administrator, not heir, not 
 partner, &c. Pleas to the bill, as that there is a 
 former suit in equity pending in the same state,' 
 or, that there is a defect of parties, in which case 
 the names of onritted parties must be given.^ 
 
 § 63. Pleas in bar. Correspond to the peremptory 
 exceptions of the civil law, and are founded upon 
 statute, such as the statute of frauds,'' of limitations, 
 of usury, &c. Upon matters of record, such as the 
 plea of 7^es judicata by former judgment or decree^ 
 or upon matter in pais, such as the plea of payment, 
 release, account stated, award, and of purchase for 
 valuable consideration without notice.* 
 
 § 64. Pleas in general. If the facts of the plea 
 are admitted or assumed to be true, but their legal 
 effect controverted, the plea is not demurred to,* 
 but is "set down fo r argument. "^ If the plea be 
 
 'Carey's Forms, No. 653; Insurance Co. vs. Brune, 96 U. S. 592; 
 Seebold vs. Lockner, 30 Md. 133; Liggett vs. Glenn, 4 U. S. Ap. 438. ' 
 
 n Foster's Fed. Pr. sec. 125-130. 
 
 'Carey's Forme, No. 864. 
 
 *Eoyston vs. Horner, 75 Md. 557, 560; "Wagoner, 76 Md. 311. tleT 
 
 n Foster's Fed. Pr. sees. 131, 133; Sto. Eq. PI. sees. 795-815. 
 
 *As stated in Barr. Md. Ch. Prac. 112, and inadvertently sanc- 
 tioned in 54 Md. 214. 
 
 'Sto. Eq. PL sec. 697; Eouskulp vs. Kershner, 49 Md. 516, 521; 
 Farley vs. Kittson, 120 U. S. 303, 314. 
 
84 EQUITY PBOCEDUEE. 
 
 allowed, nothing remains in issue, so far as the plea 
 extends, but its truth, which may then be denied by- 
 replication and determined by proof.* If proved to 
 be true, the facts stated in the plea "shall avail the 
 defendant as far as in law or equity they ought to be 
 available, but no farther."^ 
 
 If disproved, the plea is overruled and the defend- 
 ant ordered to answer.' 
 
 § 65. The answer. It has been already remarked 
 that in equity procedure there is no plea of the general 
 issue.'' Facts not disputed are required to be admitted 
 by an answer. Eorrnerl y an answer was invariablv , 
 required to be sworn to.° a nd could be used by the 
 defendant as evidence. Not only sa, but as the 
 plaintiff was, by reason of interest, an incompetent 
 witness in his own behalf, the answer was conclusive 
 so far as responsive to the allegations of the bill, 
 unless contradicted by two disinterested witnesses, 
 or by one witness corroborated by circumstances 
 equivalent in weight to a second witness."^ Now, 
 
 iRouskulp vs. Kershner, 49 Md. 516, 522. 
 
 n Md. Code, Art. 16, sec. 137; U. S. Eq. Kule 33. These provisions 
 modify the old English chancery practice, under which the bill was 
 dismissed without reference to other allegations of the bill than 
 those encountered by the plea. Farley vs. Kittson, 120 U. S. 303, 314. 
 
 n Md. Code, Art. 16, sec. 140; Dalzell vs. Dueber, 149 U. S. 315. ; S' 
 
 ^Ante, sec. 61. 
 
 ^The old spelling was answeare. 
 
 "Feigley, 7 Md. 537; 2 Sto. Eq. Jur. sec. 1528. Irresponsive mat- 
 ter, setting up new facts in avoidance, required independent proof. 
 Jbid. sec. 1529; St. Eq. PI. sec. 849 a. 
 
PLEADING. 85 
 
 however, an answer need not be under oath unles s 
 required by tb eplaintiff. nor is it evidence , whether^ 
 sworn toornotri j^nJj&sfcJitse^'ajs'-STrc^^ plajortitf; ^ 
 The answer is the usual, and in mos^t^cases the 
 advisable defence. Any defence to the merits which 
 could be raised by demurrer or plea can be relied on 
 in the answer. Its function is two fold, that of dis- 
 covery and defence; and it is a two fold instrument, 
 both of evidence aind of pleading.^ Its utility for pur- 
 poses of discovery and evidence is of less importance 
 than formerly, for reasons that have just been 
 explained, and also by reason of modern legislation 
 removing the disability of interest from witnesses. 
 Like the bill, it is paragraphed, and everv materiaL 
 allegation of the bill must be answered^ (that is 
 admitted or denied, or knowledge disclaimed.)' 
 But the defendant may decline to answer irrele- 
 vant matter, or anything which might subject him 
 to any punishment or penalty,* or which involves a 
 breach of professional confidence, and upon such 
 declination the matter may be set for hearing by 
 either party on short notice.^ 
 
 iMd. Code, Art. 16, sec. 146; U. S. Eq. Rule 41; U. S. Rev. St. sec. 
 858. Motions to dissolve an iniunction or to discharg " " rp^pivof ^ 
 are still under the old rule, and on such motions, and also upon 
 notions to grant an injunction or appoint a receiver, or on any 
 )ther incidental motion, an answer under oath may be used with 
 ;he same effect as heretofore. 1 Md. Code, Art. 16. sees. 146, 147. 
 |ee U. S. Rev. Stat. sec. 858; U. S. Eq. Rule 41. %^''ZMf 
 
 ^Ad. Eq. 342, 343. 
 
 n Md. Code, Art. 16, sec. 142; Carey's Forms,'No. 663. 
 
 *Dennison vs. Yost, 61 Md. 140. 
 
 ^Three dpvs. 1 Md. Code, Art. 16, sec. 144; see U. S. Eq. Rule 44. 
 Aftenhedeiendant has put in his answer, he may file interroga- 
 
86 EQUITY PEOCBDUBE. 
 
 § 66. Exceptions to answer. Contrary to the 
 rule of the common law, that every pleading is taken 
 to confess such traversable matter alleged on the 
 other side as it does not traverse/ an omission to 
 deny a material averment of a bill in the answer is 
 not an admission.'' A respondent submitting to 
 answer must answer fully, but if the answer be 
 insufficient to meet the allegations and interrogato- 
 ries of the bill, the plaintiff cannot rely upon silence, 
 but must prove his allegation, or if he desires a fuller 
 response he must except to the answer for insuffi- 
 ciency.* The exceptions must be in writing, signed 
 by counsel, specifying the particular points in the 
 answer that are objected to.* They are heard on 
 short notice,^ and if the exceptions are sustained the 
 effect is the same as if no answer had been filed,' and 
 the defendant may be pressed by exceptions until 
 he answers fully and explicitly.' The anawpirs nf 
 
 tories to be answered by any plaintiff. Answers to interrogatories 
 by either side are due within thirty days, unless the time be ex- 
 tended by special order, and such answers may be compelled by 
 attachment. 1 Md. Code, Art. M, sec. 143. 
 
 iZihlman vs. Cumberland Glass Co. 74 Md. 303, 307. 
 
 n Foster's Fed. Pr. sec. 146. 
 
 'Warfield vs. Gambrill, 1 G. & J. 503; Litch vs. Clinch, 136 111. 
 410. The cogent reasoning of Chancellor Bland to the contrary of 
 this proposition will be found instructive. Neale vs. Hagthoro, 3 
 Bland 569-578. 
 
 *Alex. Ch. Pr. 64; Carey's Forms, No. 686. 
 
 ° Five davB. Md. Code, Art. 16, sec. 144; costs and solicitor's 
 fee may be awarded to prevailing party, ibid. 158. 
 
 «Keighler vs. Savage Co. 12 Md. 412. 
 
 'Eider vs. Eisley, 22 Md. 540. 
 
PLEADING. 87 
 
 persons imr^gT rlisa.hility a,rp^ not liable to exception 
 for insnffinif^^^Y^i Exceptions should be substantial, 
 not captious. They are less important than formerly, 
 since now the defendant may be compelled to testify 
 as a witness. An answer may also be excepted to for 
 impertinence and scandal, and such exceptions should 
 be disposed of before exceptions for insufficiency. 
 Nothing is scandalous which is responsive or rele- 
 vant.^ 
 
 § 67. Cross-bill. An answer is a defensive plead- 
 ing, and if the defendant see ks affi rmative relief^, 
 
 "' I ■ i m III. I i mr^ 
 
 germane to the suit, against the plaintiff or a co-de- 
 fendant, he must in generaLfile a cross-b ill." The 
 principal exceptions, to this are in cases of anonnnt. 
 M^-afiS^iifia-PfiJcfQrJfflaru:^ .^ Cross-bills for discovery 
 only are not allowed, the defendant being at liberty 
 to file interrogatories to the plaintiff. The rules reg- 
 ulating the form of bills apply to cross-bills.^ 
 
 § 68. Proceedings upon answer. After answer 
 filed, the plaintiff has one of five alternatives. 1. 
 He may except to the answer.* .2. He may amend 
 his bill. 3. He may dismiss his bill, on payment of 
 
 'Alex. Ch. Pr. 64. 
 
 n Foster's Fed. Pr. sec. 147; Sto. Eq. PL sec. 867. 
 
 'Sto. Eq. PL sec. 389. Ssl-iTTf- ^'7t - Sf LT T'h 2. 
 
 *LaDg. Eq. PL sec. 156. 
 
 *1 Md. Code, Art. 16, sec. 145. The tendency of the modern 
 authorities is to dispense with cross-hills, and where possible to 
 make the answer serve the same purpose. Young vs. Twigg, 27 
 Md. 620, 632; Alex. Ch. Pr. 111. 
 
 "Ante, sec. 66. 
 
88 EQUITY PROCEDUEE. 
 
 costs. ^ 4. He may set the case for hearing. Or, 5. 
 He may file the general replication. There is no de- 
 murrer to an answer; the equivalent is to set the case 
 for hearing on bill and answer, the effect of which is 
 that all well-pleaded averments of the answer, 
 Ty liether a-jeapon g ive or not, are to be taken as ad- 
 mi ttarl j 
 
 § 69. Replication. Special replications were for- 
 merly used in equity, and were sometimes quite pro- 
 lix.^ They are now entirely superseded by amend- 
 ment of the bill.^ The general replication is a mere 
 form to close the pleadings and make the issue, with- 
 out rejoinder or other pleading.^ If the case is sub- 
 mitted without replication, the answer is to be taken 
 
 ^Dismissal before hearing is usually without prejudice. Other- 
 wise, when evidence has been taken and the case set for hearing. 
 1 Foster's Fed. Pr. sec. 291. Jr/-/4' 6^ •*/ ? 4» H^-U'Auj 
 
 ^Royston vs. Horner, 75 Md. 557, 566; Sto. Eq. PI. sec. 456, note. 
 When the case is set for hearing upon bill, answer and replica- 
 cation, the averments in the answer will only be taken as proved so 
 far as they are responsive to the bill. VM., Note 5. But see low^ 
 vs. Illinois, 147 U. S. 7; Lang. Eq. PI. eec. 83. &-'L"¥ 72. ^J^./< 
 
 ^For a "feinafkable ord«r~4n. a caae-of-4;hiB'^ind" see Milward vs. 
 Weldon, 1 Spence Eq. 376, note. Another interesting specimen of 
 the special replication may be found in the suit of the parents of 
 Shakespeare vs. Lambert, in Hallowell-Phillips' "Outlines," Vol. 
 II, 16. 
 
 <U. S. Eq. Rule, 45. 
 
 ^U. S. Eq. Rule, 66; Md. Code, Art. 16, sec. 148, where the form is 
 given. Upon failure to file replication within fifteen days, the de- 
 fendant shall be entitled to a "rule further proceedings " within 
 ten days after notice, and upon failure to comply with such rule, 
 the bill may be dismissed. Ibid. 
 
EVIDENCE. 89 
 
 as true, because the defendant has^not had the op- 
 portunity to supply proof. OtlWwise, when proof 
 has actually been taken. Thejoause may be at issue 
 by consent, express or imt^ed, without a replica- 
 tion.^ A replication to aj^ea, admits the plea to be 
 sufficient in laWj if t^ facts be established by 
 proof. '-- A replicatiojiitjiQ aaanswer admits its suf- 
 ficiency as regards^iscover^nly, and is a general 
 denial of its truth'ana sulKciency as a defence.' 
 
 § 70. Evidence. The rules in equity as to the 
 admissibility of evidence and competency of wit- 
 nesses are, in general, the same as at law. The 
 exceptions are : 
 
 1. As to th e m ode of taking testimony. 2. As to 
 the burden of proof in the treatment of fiduciaries . 
 3 . In the quantity of proof required in case a_Qf 
 fraud^ mistake and trusts 
 
 Evidence, or proof, is a general term, including, 
 first, judicial knowledge and presumptions; second, 
 admissions ; third, documentary testimony ; and 
 fourth, oral testimony.^ The matters of which courts 
 
 ^Hall vs. Clagett, 48 Md. 237; Bank vs. Insurance Co., 104 U. S. 
 54, 77. And a replication may be allowed to be filed nunc pro tunc, 
 but rarely after the case has been heard on bill and answer. 1 Fos- 
 ter's Fed. Pr. sec. 157. 
 
 ^Rouskulp vs. Kershner, 49 Md. 516, 522. 
 
 »Sto. Eq. PI. sec. 878; 1 Foster's Fed. Pr. sec. 158. 
 
 *3 Greenl. Ev. sec. 250-255. To these may be added, 4th, admis- 
 sibility in equity of parol testimony to vary or defeat written 
 instruments in cases of trust, accident, mistake or fraud, or to 
 avoid the statute of frauds by parol proof of part performance, or 
 to convert an absolute deed inlo a mortgage. Ibid, sec. 360-365. 
 "53 Greenl. Ev. sec. 268. 
 
90 EQUITY PEOCBDUKB. 
 
 take judicial notice are the same in equity as at 
 law.* Admissions may be express, as by the plead- 
 ings, or by agreement in writing, or orally, in open 
 court; or they may be implied, as by setting a case 
 for hearing on bill and answer, or by default in 
 allowing a pro confesso, or by a demurrer, or by a 
 plea, which is taken to admit so much of the bill as is 
 not denied.- Documentary testimony is presented in 
 the form of exhi bits, d uly proved and filed, and ^. 
 books and papers required to be produce d by the court 
 u p on appl i cation.^ Oral testimony, as distinguished 
 from documentary, includes testimony given orally, 
 but reduced to the form of written depositions. De- 
 positions may be in the form of ex parte aflfidavits, for 
 which there are special and limited uses,* or they 
 may be, and in general must be, taken under order 
 of court, by its oflScers, upon notice and under cross- 
 examination. The officer before whom such deposi- 
 tions are taken, if within the jurisdiction, is the 
 examiner; and if elsewhere, a commissioner or com- 
 missioners.' 
 
 n Greenl. Ev. chap. 2; 1 Poe, PL and Pr. sec. 553. 
 
 n Foster's Fed. Pr. sec. 264-266. 
 
 n Md. Code, Art. 16, sec. 24, 25; 1 Foster's Fed. Pr. sec. 2()7. 
 
 *Such as affidavits required to pleas and demurrers and to certain 
 classes of bills, ante, sec. 54, note, and affidavits in the matter of 
 certain interlocutory proceedings. 
 
 ^The powers and duties of examiners in the taking of testimony 
 are detailed in the Code, Art. 16, sees. 216, 223. The first step is 
 the petition to the court for an order granting leave to take testi- 
 mony. Carey's Forms, No. 612; TJ. S. Eq. Rule, 67, 69; 1 Foster's Fed. 
 Pr. sec. 284. The mode of taking testimony by commissioners is 
 
BVIDENCE. 91 
 
 The old method of taking depositions, imported 
 from the practice of the ecclesiastical courts, was 
 upon written interrogatories and cross-interrogatories, ^ 
 carefully prepared beforehand, upon which the wit- 
 nesses were examined privately. The depositions 
 were kept strictly secret until the whole were com- 
 pleted and publication passed, after which no further 
 witnesses could be examined without special leave. ^ 
 No such secresy is observed in modern practice, and 
 no formal order of publication is necessary.* Formal 
 written interrogatories are disused except in the 
 case of a commission to take testimony beyond the 
 jurisdiction, where the party or his solicitor may not 
 be able to attend,* and the testimony is taken in the 
 presence of parties and their Solicitors by viva voce 
 question and answer. 
 
 § 71. Exceptions to testimony. If the objection 
 be to the question, as leading, for instance, an excep- 
 
 preBcribed, Md. Code, Art. 16, sees. 227-232, and further regulated 
 in detail by Rules Circuit Court and C. C. So. 2 of Baltimore city, 
 Nos. 4-10; Carey's Forms, No. 618. Depositions upon interlocutory 
 applications may be taken, upon notice, after leave granted, before 
 an examiner or a justice of the peace. Md. Code, Art. 16, sec. 
 226. There is a provision for taking oral testimony in the presence 
 of the court. IMd. sec. 225; 1890 ch. 86. '' 
 
 n Dan. Ch. Pr. fourth Am. ed. 920, 945; Ad. Eq. 367; Winder vs. 
 Diffenderffer, 2 Bland 166, 184-191. 
 
 ^Strikes' case, 1 Bland 57, 96. 
 
 'Winder vs. Diffenderffer, 2 Bland 166, 190; or in those rare cases 
 where the option to file written interrogatories may still be availed 
 of. 1 Md. Code, Art. 16, sec. 218. 
 
93 EQUITY PROCEDUEE. 
 
 tion should be interposed before the question is 
 answered^ and the exception noted by the examiner.' 
 In practice, all exceptions to testimony, as "irrele- 
 vant," "hearsay," "opinion," "parol to vary written 
 instrument," etc., or to the competency of a witness, 
 are noted at the time by the examiner, at the request 
 of the objecting counsel; but this is unnecessary, 
 except as affording convenient memoranda. To be 
 available at the hearing, and especially upon appeal, 
 exceptions should be in writing, filed in the cause.^ 
 Exceptions tending to the suppression of depositions 
 for want of notice or other irregularity must be 
 taken within a reasonable time after the return, and 
 if delayed until the hearing, and when too late for 
 the defect to be remedied, they will be considered as 
 waived.' Other exceptions are made at the hearing. 
 A demurrer to evidence (inaccurately so called) is 
 where a witness refuses to answer on the ground 
 that the question requires a disclosure of professional 
 confidence, or the answer might subject him to pun- 
 ishment, loss or discredit.* The matter is at once 
 reported by the examiner (who has no judicial 
 
 'Md. Code, Art. 16, sec. 220; Washington, &c., Co. vs. Davison, 
 30 Md. 91, 105. S-6- Hf>i> 
 
 ^Md. Code, Art. 5, sec. 34; Young vs. Omoliundro, 69 Md. 424. 
 
 sBarnum vs. Barnutn, 42 Md. 251, 295; Howard vs. Stillwell, 139 
 U. S. 199, 205. The proper time for exceptions of this character is 
 during the ten days after the return of the evidence. 1 Md. Code 
 Art. 16, sec. 223; Alex. Ch. Pr. 75. ^^ - lf.f^ 
 
 *Alex. Ch. Pr. 72. 
 
EVIDENCE. . • 93 
 
 power) to the court, which hears and determines the 
 same without delay.* 
 
 ^1 Md. Code, Art. 16, sec. 220. General questions as to the 
 admissibility of testimony, its relevancy, or the competency of 
 witnesses cannot be raised in this way. Winder ys. DifEenderffer, 
 2 Bland 166, 191-195. The death of a witness before cross-examina- 
 tion does not necessarily make the testimony previously given 
 inadmissible. Scott vs. McCann, 76 Md. 47. 
 
CHAPTER lY- 
 
 EQOITY PROCEDURE, THE DECREE AND ITS INCIDENTS. 
 
 72. Hearing and submission. 
 
 73. Decree. 
 
 74. Decretal order. 
 
 75. Costs. 
 
 76. Enrollment, rehearing, review. 
 
 77. Appeal. 
 
 78. Appeal bond. 
 
 79. Record — diminution. 
 
 80. Dismissal. 
 
 81. Exceptions. 
 
 82. Rules as to appeals. 
 
 83. Execution. 
 
 84. Execution of personal decrees. 
 
 85. Execution of other decrees. 
 
 § 72. Hearing and submission. Equity cases are 
 ' not transferred, when at issue, from the docket to 
 the- calendar, by the clerk, as of course, ^ut await 
 the special order of court, upon application of either 
 side, to set the cause down for hearing on a named 
 day, whether on interlocutory matter, or for final 
 decree, notice being given to the other side,' 
 
 iSee Carey's Forms Nos. 670, 687, 710, 776. If so set before proof 
 taken, the opposite party has ten days to apply for leave to take 
 testimony. Rule 3, C. C. B. C. & C. C. No. 2. Cases set for hearing 
 are taken up in numerical order, Ibid. Ko. 1, and applications for 
 postponement are to be supported by affidavit. Ibid. No. 13. See 
 Rule 11, as to absence of counsel. 
 
THE DECEEE. 95 
 
 firing, " is a term peculiar to equity procedure, 
 referring toNjlie consideration of a cause or matter 
 by the court, a^contradistinguished^roig,^^,^,!^^ 
 the common law term appropriate to a jury.' "The 
 method of hearing causes in court is usually this. 
 The parties on both sides appearing by their counsel, 
 the plaintiff's bill is first opened, or briefly abridged, 
 and the defendant's answer also, by the junior 
 counsel on each, side, after which, the plaintiff's 
 leading counsel states the case and the matters in 
 issue, and the points of equity arising therefrom; 
 and then such depositions as are called for by the 
 plaintiff are read * * * * and the 
 plaintiff may also read such part of the defendant's 
 answer as he thinks material or convenient; and 
 after this the rest of the counsel for the plaintiff 
 make their observations and arguments." Then the 
 defendant's counsel go through the same process 
 for him, and the counsel for the plaintiff are heard 
 in reply.- From the above statement, most of 
 which is substantially applicable in this country at 
 the present time, it will appear that the reading 
 in extenso of the pleadings and evidence is by no 
 means necessary, although the time-killing process 
 is sometimes resorted to by unprepared counsel 
 in order to understand their own case. The 
 court is at the mercy of counsel in this respect, 
 
 ^Niles vs. Edwards, 95 Cal. 43; Akerly vs. Vilas, 24 Wise. 171, 1 
 Am. Rep. 166. 
 ^3 Bl. Com. 451. As to hearing on bill and answer, see sec. 68. 
 
96 EQUITY PEOCBDUKE. 
 
 and must leave very much to their discretion the 
 question of what parts of the record are material 
 and what parts are formal or superfluous or easily 
 susceptible of condensation.^ 
 
 It has been already stated that certain defenses, 
 JIQ | expres sly nleaded m^^y 1^^. Te)iP^^ unon at the 
 'Eearing,^ but in general such defenses would be 
 regarded as waived. No objection to the jurisdic- 
 tion can be thus raised. , unless i n cas es i n T^jbich jB i.o 
 j3ircumst ances_c. (;>^14 give i t.° WEenever any cause 
 is ready for hearing, and^greement is filed submit- 
 ting it for decree, theyuecree has the same effect 
 as if passed at a regular term.^ 
 
 § 73. DecreCy/Judgments at common law have 
 always been jji^arded as the sentence of the "law," 
 pronounced/by the cburt.^ A decree in equity was 
 
 'After ofnoting from 1 Dan. Ch. Pr. {5th Am. ed.) 1988, which says 
 that t^B" evidence is r^ead," Prof. Foster adds, " It is usual here, 
 r, to waive the reading, and for counsel to state merely the 
 Stance of the pleadings and testimony, which are submitted to 
 judge at the conclusion of the oral arguments, with written 
 ''arguments upon the law and the facts, called briefs or points." 1 
 Foster's Fed. Pr. sec. 297. Argument is not essential to a hearing, 
 which may be the consideration of the pleadings by the court. 
 Royston vs. Horner, 75 Md. 557, 567. 
 ^Anie, sec. 58. 
 
 'Shryock vs. Morris, 75 Md. 72, 77. 
 
 *Md. Code, Art. 16, sec. 77. In cases submitted without argu- 
 ment, the court will expect briefs. In cases submitted without 
 contest, except in ex parte mortgage suits, the papers are 
 referred to the auditor and master for report. Kules C. C. & C. C. 
 No. 2, Kule 12. Those most frequently referred in practice, under 
 this rule, are divorce and partition suits. 
 =3 Bl. Com. 395-6. 
 
THE DECREE. 97 
 
 originally the fiat of the chancellor, the expression 
 of his personal conscience.' This distinction between 
 judgments and decrees, since the principles of equity- 
 have become settled by precedent, has disappeared, 
 although the influence of special circumstances and 
 discretion is still felt to a much greater extent in 
 shaping decrees than in rendering judgments.^ 
 Judgments at law are short, simple and uniform, 
 while decrees in equity may be variously moulded to 
 meet the reciprocal and complicated adjustments of 
 multilatei;^! controyjrsies.' 
 
 Decrees are drawn up by the judge only in excep- 
 tional cases; ordinarily by the nrevailiTifr cminsel. 
 jan^^Vft-t^ sng-g-ftRt.inns-fEQm the other ..aide, and then, 
 settled and sign fi d 1)7 t^he--j.urlgfi. They are either 
 interlocutory or final. ^An interlocutory decree is a 
 decree preliminary Jo^ decree that may be executed 
 or appealed from, and yet it may determine substan- 
 tial rights. A final decree disposes ultimately of 
 the suit, anH may be executed or appealed from.^ 
 
 n Pom. Eq. Jur. sec. id, 57. 
 
 n Pom. Eq. Jur. sec. 59. 
 
 'Seton on Decrees, 1; 1 Spence Eq. 389. The word "judgment" 
 is often used in equity to denote "opinion" as distinguished from 
 decree. Thus we read of the "important judgments of Lord Not- 
 tingham," 4 Camp. Lives Chan. 205. "The elaborate judgment of 
 Lord Hardwicke in Penn vs. Lord Baltimore," Smith Prin. Eq. 11. 
 The decree is jisually, in cases of any importance, preceded by an 
 opinion, or judgment, either oral or written. See Md. Code, Art. 
 16, sec. 155. Cases are to be decided within two months, Md. 
 Cons. Art. IV, sec. 23. 
 
 *Ad. Eq. 375; 1 Fob. Fed. Pr. sec. 318. Examples of interlocu- 
 tory decrees: a decree pro confesso; Carey's Forms, No. 694; for an ^ 
 7 fi 
 
98 EQUITT PKOCED0RB. 
 
 Originally, all decrees were in personam, enforceable 
 only by fine or imprisonment for disobedience, it being 
 held that the chancellor could not bind the right, but 
 could only coerce the person.' In modern practice, 
 the powers of courts of equity have been enlarged by 
 statute so as to bind the right in many cases, and 
 pass decrees in rem.' These will be considered 
 under the head of "execution." A-JLSfilaEaJiJMy 
 decree is one ■that-_sim nLiudaclaires..<M:..^efinaa..the 
 rights of th e parties withmit jnore.^ 
 
 account, ibid. No. 646; for partition, ibid. No. 753; for^onstruction 
 of will and further administration, ibid. No. 630. Examples of 
 final decrees: A decree dismissing bill, ibid. No. 701; ratifyihg dis- 
 tribution and construing will, ibid. No. 633, on creditor's bill, ibid. 
 No. 650; divorce, ibid. No. 671; annulling deed, ibid. No. 690, reform- 
 ing contract, ibid. No. 703; making injunction perpetual, ibid. No. 
 714; for foreclosure of mortgage, ibid. 731; for partition, ibid. No. 
 757, 768; for specific performance, tJW. No. 829. From comparing 
 these and other examples the student will form a clearer idea of the 
 distinction between interlocutory and final decrees than from the 
 vague, and sometimes, discordant definitions in the books. A 
 decree for a sale is final, as determining the liabllitjr of the prop- 
 erty to be sold; it is also interlocutory, as the proceeds of sale are to 
 be distributed, Alex. Ch. Pr. 144; Carey's Forms,' Nos. 657, 735, 798, 
 805, 808. A final decree dismissing bill and discharging receiver, 
 may also dispose of monies deposited to the credit of the suit. 
 Boyston vs. Horner, 75 Md. 557, 563. A decree may be final as to 
 some defendants and interlocutory as to others, Hill vs. R. R. Co. 
 140 U. S. 52; Baltimore vs. Ketchum, 57 Md. 23. It may also be 
 final as to some subjects, and interlocutory as to others, Jackson vs. 
 Hodges, 24 Md. 468, 482. 
 
 U Spence Eq. 391. 
 
 "5 A. and E. Ency. 380. 
 
 «Md. Code, Art. 16, sec. 26-32. To obtain a declaratory decree 
 there must be an existing propriety for the immediate decision of a 
 bona fide controversy, the question must be one of strictly equitable 
 
THE DECKEE. 99 
 
 In cases where a prompt decision of the appellate 
 court is desired by all parties, i t fa i i i rog^], tiA wiihiaifc 
 to a-i>ro £pf^na^dBeca ^hu.t agr eements prescr ibing, 
 special terms for t h e^ g g^iQg.,Qa appeal a nd for th^ 
 award of costs can have no effect in the appellate 
 court.* 
 
 §74. Decretal order. A decretal order is an order 
 in the nature of § final decree, and in general sub- 
 ject to the same principles, such as an order to paj 
 money into court,* or the final order ratifying an 
 ditor's report.' 
 
 pay 
 
 au)- 
 
 § 75. Costs. The decree usually disposes of the 
 question of costs. Costs as between party and party 
 are confined to the taxed costs allowed by statute or 
 
 cognizance, and the plaintiff must be unable to seek other relief 
 than a mere declaration of title. Pennington, 70 Md. 418; McCoy 
 V8. Johnson, 70 Md. 490. Provision is made for trial by jury in suits 
 of this nature of questions as to which parties have a constitutional 
 right to such trial, 1890 Ch. 64. 
 
 'Livingston vs. Hall, 73 Md. 386. In the case of pro forma 
 decrees, as of others, the appellant has the advantage of the open- 
 ing and closing arguments, and on the other hand takes the risk 
 of affirmance by a divided court. This practice has been tolerated 
 and allowed to become well settled in Maryland, although its man- 
 ifest effect is to make the Court of Appeals practically a court of 
 first instance. The Supreme Court refuses to take jurisdiction in 
 cases certi&ed pro forma. Webster vs. Cooper, 10 How. 54; but see 
 Oregon vs. Kocca, 18 How. 570. ^TU'— V y V »l 
 
 ^Thompson vs. McKim, 6 H. & J. 302. 
 
 'United Lines Co. vs. Stevens, 67 Md. 157; Taylor vs. State, 73 
 Md. 208; Jenkins vs. State, 76 Md. 255, 259. The term had, in Eng 
 lish chancery practice, an entirely different meaning. It was ap- 
 plied to the rough minutes of a decree, before enrollment. Burch 
 vs. Scott, 1 Bland 112, 120. 
 
100 EQUITY PROCEDUEE. 
 
 rule of court.* These costs are ordinarily awarded 
 to the prevailing party,^but not necessarily, the mat- 
 ter being within the discretion of the court, accord- 
 ing to the circumstances of each case, without ap- 
 peal.' 
 
 ■ Costs as between solicitor and client are costs pay- 
 able out of a fund in coiirt, are not confined to stat- 
 utory allowances, may include counsel fees and rea- 
 sonable expenses, and are the proper subject of ap- 
 peal.^ The cases where such costs are allowed are 
 cases where it is proper to make all the parties con- 
 tribute in proportion to their respective interests in a 
 fund or estate under the control of the court. As, 
 for instance, where a doubtful will requires judicial 
 construction^ or, when executors, administrators or 
 trustees sue or defend ^or the benefit of the es- 
 
 1 Trustees vs. Greenough, 105 V. S. 527, 533. For statutory fees 
 of attorneys or solicitors, clerks, and sheriffs, see Md. Code, Art. 
 36. Of auditors, Ibid. Art. 16, sec. 19. Of examiners, Jbid. sec. 216. 
 For commissions on sales to trustees and receivers, Bule 24, C. C. 
 and C. C. No. 2, B. C. 
 
 ^Eoyston vs. Horner, 75 Md. 557, 567. 
 
 =Smith vs. Shaffer, 50 Md. 133; Dodge vs. Stanhope, 55 Md. 113; 
 Andrews vs. Barnes, 39 Ch. D. 133, 138. Provision is made by stat- 
 ute for the imposition of costs in cases of amendment. Md. Code, 
 Art. 16, sec. 16, and in other special cases; ibid. sees. 65, 95, 131, 
 141, 151, and for the enforcement of thpir payment, ibid. sees. 154, 
 169. In divorce cases, costs and counsel fees are in general allowed 
 the woman, irrespective of the result. Eohrback, 75 Md. 317. 
 
 ^Trustees vs. Greenough, 105 U. S. 527. AVhat is to be considered 
 as expeiises will depend upon the particular circumstances. Cain 
 vs. Warford, 33 Md. 23, 35. ^ 1" Hll 7-0<? ^3'? k 
 
 ^Patterson vs. Wilson, 64 Md. 194; Buchanan vs. Lloyd, 64 Md. 
 306. 
 
THE DECREE. 101 
 
 tate;^ or, in a creditor's bill, where the suit is brought 
 on behalf of the plaintiff and all other creditors who 
 come in and contribute to the expenses of the suit, 
 and a fund is created by sale or otherwise.^ With 
 respect to the allowance of fees to counsel by whose 
 services a fund has been created or preserved, the 
 rule seems to be that unless there is an equitable as- 
 signment, or some other exceptional feature, con- 
 tracts for profegfeional services are enforced like 
 other contracts, and counsel must look to their 
 own clientsfor their compensation.^ The underly- 
 ing principle is said to be the principle of re- 
 presentation or agency. The party claiming com- 
 pensation out of a common fund for expenses and 
 services in the common behalf must be the recog- 
 nized and authoritative representative of all, and 
 therefore authorized to contract for all.^ 
 
 ^ 76. Bnrollmetit, rehearing and review. De- 
 crees were formerly enrolled by engrossment on 
 parchment rolls, and the same term was employed 
 afterwards when decrees were copied in the court 
 
 'Carson vs. Phelps, 40 Md. 73, 101; see Lee va. Pindle, 12 G. & J. 
 288, 305. 
 
 ''Leiman's Estate, 32 Md. 225; Trustees vs. Greenough, 105 tJ. S. 
 527; Adams vs. Kepler, 38 Fed. 281. 
 
 'Davis vs. Gemmell, 73 Md. 530; McGraw vs. Canton, 74 Md. 554. 
 See, in general, 1 Foster's Fed. Pr. sees. 335, 336: Cowdrey vs. Gal- 
 veston, 93 U. S. 352; Central vs. Pettus, 113 U. S. 116; Stuart vs. 
 Boulware, 133 U. S. 78; Jaffray, 1 Lowell, 321; Plitt, 2 Wall. Jr. 
 453; Stewart vs. 'Canal, 5 Fed. 149; Fechheimer vs. Baum, 43 Fed. 
 719, 730; Wilson vs. Kelly, 30 So. Ca. 483. 
 
 *Hand vs. K. R. Co., 21 So. Ca. 178; cited 74 Md. 559. 
 
102 EQUITY PROCEDTJKB. 
 
 records in folio. After the lapse of the term at 
 
 whichthe ^decree. waslBMagAJtJms^ nAJnJg^^^ 
 practice still is. deemed to be e nroll e^ .,' and no longer 
 subject to correction except on review or appeal.^ 
 Before enrollment, clerical mistakes might, and still 
 may be, corrected by order of court upon petition, 
 without formal rehearing.' In Maryland, final 
 decrees and orders in the nature of final decrees, are 
 considered as enrolled from and after the expira tion 
 of thirty days fr om date, the day of date inc lu sive.^ 
 After enrollment, no rehiearing is granted." ^ ne ^ ^ i- 
 tion for a rehearing is the proper method ^ of correc t- 
 ing^ before enrollment, ^a££Q3^_not clerical or acci: 
 dp.n-ta,l.° The facts stated in siich petition, if not 
 apparent upon the record, jnu st be verified ^ by ^affi- 
 ^gvit.' A petition for a rehearing must oe filed before 
 enrollment of the decree. A bill of review may be 
 filed af ter enrollment, but within the time Ii giited 
 for appeal." 
 
 There are but two general grounds upon which a bill 
 of review can be maintained, 1, error of law apparen t 
 upon the face of the decree: 2, newly disijovered evi- 
 dence." In the former case, the bill may be filed with- 
 
 ^Tabler vs. Castle, 12 Md. 144; Pfeltz, 1 Md. Ch. 455; Whiting vs. 
 Bank, 13 Peters, 6. 
 2 Ad. Eq. 374. 
 
 ^U. S. Eq. Eule 85; Md. Code, Art. 16, sec. 165. 
 *Ibid. sec. 164. 
 ^Ibid. sec. 166. 
 n Foster's Fed. Pr. sec. 352. 
 'Md. Code, Art. 16, sec. 166. 
 'Presstman vs. Mason, 68 Md. 91. 
 "Ad. Eq. 416. 
 
THE DECREE. 103 
 
 out leave of court. The error complained of must not 
 be of a character which would render a bill of review 
 a mere substitute for an appeal, such as mistaken 
 deductions from the evidence,* but the error must be 
 clearly apparent on the face of the decree, such as 
 the finding of a fact denied in the answer when no 
 evidence was taken,^ or the disregard of a statute,' 
 or the want of jurisdiction.* 
 
 When a bill of feview is founded upon the occur- 
 rence or discovery of new matter, leave of court 
 must be first obtained upon an affidavit of facts 
 substantially equivalent to allegations which would 
 sustain a motion for a new trial at law. The new 
 matter must be material, not merely cumulative nor 
 impeaching a witness, and such as could not have 
 been, discovered by reasonable diligence.^ 
 
 D^yress entered upon a default are open to still 
 ann^p.r method of .ajjgpk upon the groug^^^^g^sgjj 
 prise, mistak e or other sufficie ntequitaM 
 stanceSj ajid iEWSl's'^ ^'^moii tox^ca te theenroU - 
 ment. The fact that the cause has never been heard 
 upon the merits, coupled with the inability of the 
 injured party in many cases to obtain relief upon 
 
 'Gregory vs. Lenning, 54 Md. 57; Buflington vs. Harvey, 95 U. 
 S. 99. 
 
 ^Clark vs. Killian, 103 U. S. 766. 
 
 'Savary vs. Da Camara, 60 Md. 139, 148. 
 
 *Fox vs. Reynolds, 50 Md. 573. 
 
 «Holling8worth vs. McDonald, 2 H. & J. 230, Brantly's note; 1 
 Foster's Fed. Pr. sec. 355. * 
 
104 EQUITY PBOCEDURE. 
 
 either of the grounds required for a bill of review, 
 has been deemed sufficient to justify this proceeding.* 
 In addition to the foregoing modes of reviewing 
 decrees without an appeal, if a decree has been 
 obtained by fraud, as for instance if it was passed 
 by consent fraudulently obtained, it may be im- 
 peached by original bill filed without leave of court.^ 
 
 § 77. Appeal. For error in decrees, either in 
 point of fact or law, the more usual naode of correc- 
 tion is by appeal. In eouitv there is no necessity as 
 at law for bills of exception , all the proceedings 
 being in writing and already spread upon the record.^ 
 The right of ajmeal is wholly statutory ,^ and in gen- 
 eral an appeal lies only from final decrees or orders.** 
 The interlocutory orders from which appeal lies are, 
 orders grantin g or refusing to ^ap t, or dissolving 
 or refusing to dissolve, an injunction: orders appoint- 
 ing receWers; orders for tne sale, conveyance or 
 delivery of property , or the payment of m oney, imless 
 such delivery or paymen t be directed to^ be made to 
 a receiver ; and orders aeTig^Mmh'g'^^TigKr'anTTi- 
 
 'Straus vs. Rost, 67 Md. 479; Herbert vs. Rowles, 30 Md. 278. - ^^ 
 
 *Ad. Eq. 419; 1 Foster's Fed. Pr. sec. 358; Shryock vs. Morris, 75 
 Md. 72, 80. And a decretal order is, in this respect, upon the same 
 footing. United Lines Co. vs. Stevens, 67 Md. 156. 
 
 'Ringgold's Case, 1 Bland 8, 14. 
 
 *Barth vs. Rosenf eld, . 36 Md. 615; Dillon vs. Conn. Mutual, 44 
 Md. 386, 394. 
 
 52 Foster's Fed. Pr. sec. 480; Ringgold's Case, 1 Bland 12-14; Hay- 
 Tiferd, 77 Md. — ; Md. Code, Art. 5, sec. 24. g-^- U yij" 
 
APPEAL. 105 
 
 recting an account.' Interlocutory orders are open 
 for revision on appeal from the final decree or order.^ 
 To stay the operation of any such previous order an 
 appeal bond must be given.' 
 
 § 78. Appeal bond. In order to stay execution 
 of any decree or order appealed from, there must be 
 an aflSdavit that the appeal is not taken for delay, 
 and a sufficient appeal bond must be given and ap- 
 proved.* The penalty of the appeal bond is double 
 the sum recovered, in the case of a decree or order 
 for 'money; or double value of movable chattels 
 recovered or decreed; to be estimated by the equity 
 court.^ On appeal from a decree for sale of lands, 
 or for the conveyance of land in specific performance 
 of a contract, or the like, the penalty of the bond 
 will be sufficient to cover costs, mesne profits and 
 possible damage by waste committed pending the 
 appeal.* If no bond is given, esecution of the decree 
 may be enforced; notwithstanding appeal taken. If 
 the decree be reversed, money paid under it may be 
 
 lArt. 5, sec. 25, 29. g-^- ^gT <f 
 
 ^Art. 5, sec. 2(i. 
 
 'iWa. sec. 28. Sr^- 6~ 3 2_ 
 
 *Md. Code, Art. 5, sec. 27, 51, 52, 53. But if the equity court 
 shall decide in its discretion that the case is not a proper one for a 
 stay of execution, an order may be passed upon such terms (as to 
 duration, keeping an acconnt, giving security, etc.,) as to the court 
 may seem fit, directing that the decree or order appealed from 
 shall not be stayed by such appeal, or only so far or on such terms 
 as the court shall therein direct. 1890 ch. 32. 
 
 'Art. 5, sec. 51. 
 
 «Einggold'8 Case, 1 Bland 23. > g*"- ^ > ^ 
 
106 EQUITY PKOCEDUEE. 
 
 recovered in assumpsit.' If a sale has been made 
 under the decree, the purchaser's title will not be 
 affected by the reversal.^ 
 
 § 79. Record— diminution. In making up the 
 transcript of the record it is the duty of the clerk to 
 avoid needless prolixity and expense by the omission 
 or abridgment of merely formal parts, and docu- 
 ments, saving to either party the right to direct any 
 part of the proceedings to be incorporated at the 
 risk of such party as to costs, if the matter should 
 not be deemed material by the Court of Appeals." 
 For omissions or defects in the transcript, the remedy 
 is by writ of diminution upon proper application to 
 the appellate court .^ 
 
 § 80. Dismissal. An appeal will be dismissed by 
 the Court of Appeals if taken too late, or if the 
 record is not sent ufTin due time;^ or if the decree 
 
 ^Owings, 10 G. & J. 267. 
 
 ^Benson vs. Yellot, 76 Md. 159. 
 
 'Art. 5, sec. 32, 33. 
 
 ^Ibid. sec. 44-46. 
 
 'The limit of time for an appeal is within two months from the 
 date of the decree or order, unless obtained by fraud or mistalse, 
 when the two months run from the time of the discovery. Art. 5, 
 sec. 30. The transcript of record must be transmitted to the court 
 of appeals within three months from the time of the appeal 
 prayed, or forthwith, in the case of orders refusing an injunction. 
 Art. 5, sec. 31. A verbal order for an appeal has no effect. Miller 
 vs. Murray, 71 Md. 61. An appeal will not be dismissed for delay in 
 sending transcript occasioned by the negligence of the clerk. Gar- 
 ritee vs. Popplein, 73 Md. 322. ^ 0'~U.^a^ r^f 
 
■\ 
 
 APPBAL. 107 
 
 or order Appealed from is not final;' or the appeal is 
 taken upon a matter within the discretion of the 
 court below;* or the appeal is taken from a decree by 
 consent;' or the appellant has no interest in the sub- 
 ject matter of the appeal;^ or fails to have his appeal 
 ready for argument.' Whether or not an appeal in 
 any given case will lie, is a question exclusively for 
 the court of appeals.' 
 
 § 81. Exceptions. In order to prevent s*irprisej 
 as well as to secure the Court of Appeals from being 
 made a court of first instance, certain objections 
 will not be entertained in that court unless it shall 
 appear by the record that the particular objection 
 was made by exceptions filed below.' Sucll— a*© 
 o bjections to the jurisdiction; to the competency of 
 
 "Swift vs. Bank, 69 Md. 232; Burroughs vs. Gaither, 66 Md. 171; 
 Meyer vs. Steuart, 48 Md. 423; Dennison vs. Wantz, 61 Md. 143; 2 
 Foster's Fed. Pr. sec. 480, p. ib23. ^ 3 ~ 9? 
 
 ^Such as the awarding of costs; Mears vs. Moulton, ';0 Md. 142, 
 145; Ante, sec. 75; or the refusal of a rehearing, Zimmer vs. Miller, 
 64 Md. 2il6, 299; or the granting an amendment. Hill vs. Reifsnider, 
 39 Md. 429; or the appointment of a trustee, Howard vs. Waters, 
 19 Md. 529; or allowing the re-examination of a witness, Swartz vs. 
 Chickering, 58 Md. ?90, 297. 
 
 ^Gahle vs. Williams. 59 Md. 46, 51. 
 
 ■•Lurman vs. Hubner, 75 Md. 268; Glenn vs. Keid, 74 Md. 238; 
 McDonald vs. Work, 60 Md. 589; Stewart vs. Codd, 58 Md. &6. An 
 attorney cannot appeal in his own name from an order against a 
 client. Bank vs. Lanahan, 60 Md. 477, 515. 
 
 'Art. 5, sec. 47. 
 
 «Keighler vs. Savage, 12 Md. 383. 
 
 'Ringgold's Case, 1 Bland 21, 22; Young vs. Omohnndro, 69 
 Md. 424. 
 
108 EQUITY PEOCBDUKB. 
 
 a witness; to the admissibility of evidence; to the 
 sufficiency of the averments of the bill or petition; 
 to any accounts stated and reported in the cause.^ 
 In federal practice, likewise, the general rule obtains 
 that no decree will be reversed on appeal upon an 
 objection not raised below.^ 
 
 § 82. Rules as to appeals. Appeals stand for 
 hearing at the first term of the Court of Appeals 
 after transmission of the record.' Briefs, containing 
 an abstract of the case, the points relied on and 
 authorities cited, are furnished to the clerk in time 
 to have them printed for use when the case is 
 reached. The argument is opened and clps^by 
 appellant s counsel. In cross-appeals the counsel 
 for the appelTanlf" pens the appeal first in order and 
 concludes after a like opening by counsel for ap- 
 pellant in the second appeal, after which the counsel 
 for the appellant in the second appeal ,will conclude. 
 No case will be re-argued after the opinion of the 
 court has been delivered,* unless a re-argument shall 
 be requested by some member of the court who 
 concurred in the opinion, and the proposition receives 
 the support of a majority of the judges who heard 
 the case. The opinions of the court are filed with 
 the clerk, and furnished to the reporter for publi- 
 cation.^ 
 
 lArt. 5, sec. 34, 35. 
 ^2 Foster's Fed. Pr. sec. 494, p. 1086. 
 
 'Md. Const. Art. IV, sec. 16. Cases of special urgency are ad- 
 vanced. Md. Code, Art. 5, sec. 42. 
 *Eules, Court of App. 
 
APPEAL. 109 
 
 The decree may be affirmed or reversed, corrected 
 or modified, or the cause may be remanded. If the 
 court is equally divided in opinion, the decree is 
 affirmed. A decree may be affirmed in part and 
 reversed in part. There will be no reversal, even 
 for apparent error, where the appellant is not in - 
 jured.' if the court has jurisdiction, a sale under 
 a decree is not affected by its reversal.^ Without 
 either affirmance -or reversal, a cause may be re- 
 manded for further proceedings, such as to amend, 
 make additional parties, take further testimony or 
 state further accounts.' 
 
 § 83. ]^xecutioii. The power of the Court of 
 Chancery to compel obedience to its decree was 
 originally confined to process of contempt, i, e., im- 
 prisonment and sequestration, which, though in- 
 tended as punishment, operated indirectly as a 
 performance of a decree for payment of money.* In 
 modern practice equity powers in this respect have 
 been greatly expanded by statute, and a variety of 
 modes of execution has been provided, adapted to 
 the nature of the decree, whether in personam or in 
 rem, or partaking of the nature of both. Whatever 
 
 iWagner vs. Shank, 59 Md. 313, 327; Rice vs. Edwards, 131 U. S. 
 CLXXV. 
 
 ^Benson vs. Yellott, 76 Md. 159, 168; Lenderking vs. Rosenthal, 
 63 Md. 28, 38; Dorsey vs. Thompson, 37 Md. 25, 45; Davis vs. 
 Gaines, 104 U. S. 391. 
 
 ^Art. 5, sec. 36; Riley vs. Carter, 76 IVTd. 581, 613. 
 
 ^Ad. Eq. 393. ^y- ^ /^ g, J- ^Tl i 
 
110 EQUITY PEOCBDtJEB. 
 
 the mode, application is made by petition, upon 
 which an order is passed, the, proper writ issued by 
 the clerk and sent to the sheriff.^ 9£*^®'^5 ^^^Jl Jfeg 
 enforced by such process as might be had upon a 
 judgment or decree to the like effect.^ A decree 
 may~be enforced by tKe^^ppropriate process at 
 any time within twelve years from its date, and 
 may within that time be renewed or revived by 
 scire facias.^ Decrees for specific performance, for 
 the conveyance or for the sale of land, may be 
 enforced in cases where the land or property lies, or 
 parties reside, in different counties from that in which 
 they were passed.^ 
 
 > § 84. i^xecution of personal decrees. 1. The or- 
 dinary money decree, or decree for the payment of 
 money, is upon the footing of a judgment. The ex- 
 ecution is by writ of fieri-facias or attachment by 
 way of execution.^ Generally in such cases there is 
 
 lAlex. Ch, Pr. 201; Barroll Ch. Pr. 209. 
 
 "Md. Code, Art. 16, sec. 169. 
 
 'Md. Code, Art. 26, sec. 20; 1890 ch. 114. The same section 
 provides for the making of new parties upon sufsgestion of death or 
 marriage, and authorizes more than one execution provided that 
 but one satisfaction be made. 
 
 *Md. Code, Art. 16, sec. 76. 
 
 =Md. Code, Art. 16, sec. 168. The court has full authority to 
 determine any question that may arise upon such attachment, sub- 
 ject to appeal, but if either party demands a jury trial the attach- 
 ment proceedings shall be transmitted to a court of law for trial as 
 in cases of attachment on judgment. Ibid. Art. 9, sec. 28. Money 
 decrees, like judgments, may be superseded within two months, 
 before the clerk, in Baltimore city, or before a justice of the peace, 
 
EXECUTION. Ill 
 
 no attachment for contempt, the constitution having 
 abolished imprisonment for debt. The exception is 
 in the case of an order or decree for the payment of 
 alimony, which is held enforceable, not as a debt, 
 but as a duty.* 
 
 2. A decree for the performance of a specific act, 
 such as the execution of a deed, the delivery of 
 papers, &c., may be enforced by attachment for con- 
 tempt.^ 
 
 3. Disobedience of an injunction is punishable by 
 fine or imprisonment, or both, and in cases of waste 
 by fine to the extent of double damage, and imprison- 
 ment for non-payment.' 
 
 4. An order or decree for the delivery of chattels 
 may be enforced by the same writs used in replevin.^ 
 
 5. The delivery of possession of lands may be en- 
 forced either by injunction or by writ in the nature 
 of a writ of habere facias possessionem.^ 
 
 6. "Attachment with proclamations" and "se- 
 questration" are antiquated but still theoretically 
 possible methods of compelling performance of a 
 
 in the counties, with stay of execution for six months. Art. 17, 
 sec. 25. Art. 52, sec. 52. The lien of a money decree may be ex- 
 tended to counties other than that of the forum by,transmitting a 
 copy of the decree or order and docket entries. Art. 16, sec. 170. 
 
 iMcCurly, 60 Md. 189; Stew. M. & D. sec. 378. 
 
 ^Art. 16, sees. 151, 168. 
 
 ^Art. 16, sees. 63, 64. 
 
 *Art. 16, sec. 171, in addition to the process provided in Art. 
 16, sees. 151, 168. 
 
 ^Art. 16, sec. 168; Art. 75, sec. 88; 1890 ch. 635. In federal practice, 
 by writ of assistance. U. S. Eq. Rule 9; 1 Foster's Fed. Pr. sec. 348. 
 
113 EQUITY PEOCBDUBE. 
 
 decree.' Both have been practically superseded in 
 modern practice by the more convenient and effica- 
 cious remedies already and hereinafter mentioned. - 
 
 § 85. Execution of other decrees. Decrees in rem 
 are decrees which operate directly upon either per- 
 sonal status or the title to property. Of the former 
 class are decrees of divorce,^ and decrees for change 
 of name.^ Decrees of this nature are self-exe- 
 cuting. Of the latter class are decrees directing 
 the execution of a deed or the renewal of a lease 
 when passed under statutes which make such decrees 
 self-executing.® To the same class belong final de- 
 
 ^U. S. Eq. Rules 7, 8; Md. Code, Art. 16, sec. 168. It was stated by 
 Mr. Alexander, in 1839, that the writ of sequestration was then ob- 
 solete in Maryland. Alex. Ch. Pr. 203. In 1855, he successfully 
 contended that it was still in force. Keighler vs. Ward, 8 Md. 254. 
 
 ^Attachment with proclamations was a writ which issued only 
 after an attachment for contempt had been returned non est inventus, 
 directing the sheriff to cause public proclamation to be made warn- 
 ing the absent defendant to appear and answer for his contempt. 
 A writ of sequestration was issued to two or more commissioners 
 empowering them to "collect, receive and sequester" into their 
 hands the rents and profits of the absconding defendant's real es- 
 tate and all his personal estate, and " keep the same under seques- 
 tration" until he cleared his contempt. 2 Dan. Ch. Pr. 1048 (4th 
 Am. ed.) ^ 
 
 »Md. Code, Art. 16, sees. 35, 36. 
 
 *Art. 16, sec. 95. 
 
 *When the execution of a deed is directed, the decree is to have 
 the same effect as the deed, and if the land is in another county 
 the decree is to be recorded there in six months. Md. Code, Art. 
 16, sec. 80. When the renewal of a lease is decreed, the decree 
 is sufficient of itself to renew title, if recorded. Art.- 16, sees. 
 93, 94. To the same class may also be referred decrees for the re- 
 
EXECUTION. 113 
 
 crees of partition, which confirm the return of the 
 commissioners, declare that each party shall hold his 
 part in severalty, and operate as a conveyance.^ Such 
 decrees are frequently of a mixed nature, adjusting 
 inequalities by provisions for owelty or pecuniary 
 compensation, which awards are simply personal de- 
 crees for so Bauch money.^ 
 
 The execution of orders and decrees for sales and 
 for the appointment of receivers will be considered 
 under the head of interlocutory proceedings. 
 
 cording of unrecorded deeds, ibid. sec. 33, and for the acknowledg- 
 ment of defectively acknowledged deeds or bills of sale. Ibid. 
 see. 3i. 
 
 lAlex. Ch. Pr. 166; Carey's Forms, No. 757. 
 
 n Sto. Eq. Jur. sec. 654; Carey's Forms, No. 768. 
 
CHAPTER V. 
 
 EQUITY PROCEDUKE. PRACTICE. (I). 
 
 86. Interlocutory proceedings. 
 
 87. Motions. 
 
 88. Petitions. 
 
 89. Orders. 
 
 90. Sale— trustee. 
 
 91. Trustee's report — exceptions. 
 
 92. Account — auditor. 
 
 93. Claims. 
 
 94. Auditor's report — exceptions. 
 
 95. Interlocutory injunction. 
 
 96. Injunction defined — mandatory — prohibitory. 
 
 97. Compared with specific performance. 
 
 98. Compared with mandamus. 
 
 99. To enforce equitable rights. 
 
 100. By restraining legal proceedings. 
 
 101. To enforce legal rights. 
 
 102. To restrain breach of contract. 
 
 103. Violation. 
 
 104. Requisites. 
 
 105. Motion to dissolve. 
 
 106. Appeal. 
 
 107. Modern legislation. 
 
 108. Receiver. 
 
 109. General rules. 
 
 110. Statutory receivers. 
 
 111. Managing receivers. 
 
 112. Receivers' certificates. 
 
 § 86. Interlocutory proceedings. The suit in 
 equity thus far traced has been, for convenience, 
 
PBACTICE. 115 
 
 supposed to proceed without special incident to in- 
 terrupt its progress. Such cases, however, are not 
 common in practice. At any stage of a suit circum- 
 stances may arise to give occasion for interlocutory 
 orders, either in furtherance of its main object or to 
 keep the suit in line with the practice of the court. 
 Such orders, or rules, as in some instances they are 
 called, are obtained upon oral application by motion 
 or upon more formal written application by petition.* 
 
 § 87. Motions. Courts of equity are deemed to 
 be always open for the transaction of business.^ 
 Motions may at any time be docketed by the clerk 
 upon the application of counsel, and if made during 
 the term may be addressed to the court ore tenus. 
 They are usually resorted to where the circumstances 
 are few and simple, and already appear in the pro- 
 ceedings.^ 
 
 3 
 
 § 88. Petitions. If new matter is to be intro- 
 duced, or if the application rests on facts to be 
 collected from different parts of the proceedings, it 
 is usual to file a petition. When the petition states 
 
 >Ad. Eq. 348; Alex. Ch. Pr. 78; 1 Foster's Fed. Pr. sec. 194. 
 
 2Md. Code, Art. 16, sec. 117; 1890 ch. 424. By this act, the 
 regular terms of courts of equity are prescribed to be of two months 
 duration, and in Baltimore city commence on the second Monday 
 of January and of each alternate month thereafter; in the counties, 
 on the first Monday of the same. See U. S. Eq. Rule 1. 
 
 ^Alex. Ch. Pr. 78. Common examples are motions for leave to 
 amend, for security for costs, for a continuance, for an order to set 
 the case for hearing, to dissolve an injunction, etc. Carey's Forms, 
 No. 699, 709. 
 
116 EQUITY PKOCEDUEE. 
 
 new matter it should be sustained by affidavit or 
 documentary evidence.^ In addition to petitions 
 interposed in a suit already begun, called "cause 
 petitions," the procedure by petition is also resorted 
 to for a variety of objects under a statutory and 
 often summary jurisdiction,^ Petitions, in form and 
 substance, are subject to the rules which govern 
 bills. They should be divided into numbered para- 
 graphs, should avoid prolixity, scandal and imperti- 
 nence, should be reasonably certain in their aver- 
 ments, should be properly addressed and entitled, 
 and should set forth distinctly the specific relief 
 prayed.' 
 
 § 89. Orders. Merely formal orders are granted 
 as of course and ex parte. Under this head are 
 included leaves, rules and orders of routine practice 
 not directly affectihg substantial rights. Such orders 
 are always understood to be taken at the risk of the 
 
 'Alex. Ch. Pr. 78. 
 
 ^Ad. Eq. 349; 1 Foster's Fed. Pr. sec. 199. Such are petitions to 
 require security of trustees appointed by will or deed: Md. Code, 
 Art. 16, sec. 203; by trustees seeking resignation of their trust, 
 ibid. sees. 211,212; Carev'H F^ yma. TJy. S49 : for inquisition de lunatico 
 inquirendo, ibid. No. 722: for change of name, Art. 16, sec. 95; 
 Carey's Forms, Sjjj|J8^ for an exparie decree for sale of mortgaged 
 premises in Baltimore city, Md. Code, P. L. L. Art. 4, sec*. 692; 
 Carey's Forms, No JJjj by feme sole between the ages of eighteen 
 and twenty-one, for leave to make a deed of trust, 1890 ch. 210 
 (amending Art. 21, sec. 1); an original petition of appeal from 
 condemnation proceedings under statute, Cherokee Nation vs. K. E. 
 Co. 135 U. S. 641, 651. (See Md. Code, P. L. L. Art. 4, sec. 710.) 
 
 'Md. Code, Art. 16, sec. 119, etc. 
 
PRACTICE, 117 
 
 applicant, and liable to be promptly rescinded in 
 case of surprise, irregularity or undue advantage. 
 Orders affecting substantial rights are never granted 
 without notice, unless in the presence of some press- 
 ing emergency. In such cases, which should ber 
 rare, opportunity is always afforded for a speedy 
 hearing. Special orders, or orders other than those 
 of routine, are preceded by a preliminary order, or 
 order nisi, stating distinctly the precise terms of the 
 order to be passed, unless cause be shown to the 
 contrary on or before a given day, provided notice 
 be served (usually by serving a copy of the order) 
 upon all parties adversely interested within a suffi- 
 cient time. In case of inability to effect service 
 within the time limited, the time may be enlarged, 
 and if parties are non-residents, not represented by 
 counsel, constructive service by publication is neces* 
 sary. But service of such orders is in general well 
 made by service upon counsel, except where a founda- 
 tion is sought to be laid for a contempt proceeding. 
 If the adverse party objects to the proposed order 
 as not called for by the premises, he sets the matter 
 for hearing upon the face of the motion or petition. 
 If he denies the facts, or has matter in avoidance, 
 he shows cause by filing an answer, supported by 
 affidavit.* If the parties are at issue on the facts, 
 proof is taken in the ordinary way. Ex parte affi- 
 davits will not be admitted.^ 
 
 ^Alex. Ch. Pr. 79. 
 ^Gechter, 51 Md. 187. 
 
118 EQUITY PEOCBDUKB. 
 
 § 90. Sale— trustee. Upon this subject the powers 
 of courts of equity have been much enlarged by 
 statute, and decrees for the sale of real and personal 
 property are authorized in a variety of cases.' A de- 
 cree for a sale is final as it determines, the liability 
 of the property to be sold. It is also interlocutory, as 
 the proceeds are to be distributed. ^ Following the 
 English chancery practice, sales in the federal courts 
 as courts of equity are made by the master.^ In this 
 state by a trustee of trustees named in the decree.^ 
 
 The trustee, before he sells, is required to, give 
 bond to the state in a penalty named in the decree, 
 with surety or sureties to be approved by the judge 
 or clerk, with condition to faithfully perform and 
 
 ^Foreclosure of mortgage, Md. Code, Art. 16, sec. 187; iMd. P. 
 L. L. Art. 4, sec. 692, &c.; creditor's suit, Art. 16, sec. 188; 
 vendor's lien, ibid. sec. 193; change of investment, ibid. sec. 198; 
 burial grounds, ibid. 92; partition suits, when the land is impartible, 
 ibid. sec. 116; of vessels or other personal property held jointly, 
 ibid. 190; of rent incident to reversion sold, ibid. 191; of the real or 
 personal property of infants, when sale advantageous, ibid. 481, 49; 
 of persons non compos on the application of creditors, ibid. 97, or of 
 committees, &c., ibid. 98; of non-residents, ibid. 75, 105; of deced- 
 ents leaving property to be sold for payment of debts or other pur- 
 poses, ibid. 79. As to what court shall have jurisdiction in cases of 
 sale of lands lying or defendants residing in different counties, see 
 ibid. sec8.^-74. A sale may be ordered before final decree, ibid. 
 sec. 192. fW - 4^ 3/ 
 
 2 Alex. Ch. Pr. 144. 
 
 n Foster's Fed. Pr. sec. 316. 
 
 *Md. Code, Art. 16, sec. 200. Nominally, the appointment is 
 that of the court, but it is always upon the recommendation of par- 
 ties in interest, and it is a matter of discretion, not reviewable on 
 appeal. Howard vs. Waters, 19 Md. 529. 
 
PKACTICE. 119 
 
 execute the trust reposed in him.' Suits at law upon 
 such bonds are brought in the name of the state, as 
 legal plaintiff. But the state, in fact, has no interest 
 in the bond, and no cause of action can arise thereon 
 until a breach of condition affecting a party inter- 
 ested. Only those can put the bond in suit for whose 
 benefit it was taken. ^ If the bond is sued upon in 
 equity, the name of the state is not used as plaintiff, 
 but the real partieg in interest.' 
 
 The trustee is next to give notice of the time, 
 place, manner and terms of sale as directed by the 
 decree. The advertisement should so describe and 
 locate the property as clearly to indicate and identify 
 it.^ But a minute description with metes and bounds 
 is not essential.' At such sale, the real vendor is the 
 court, acting in behalf of all parties interested, the 
 trustee being merely the court's agent, and the con- 
 tract not being regarded as consummated until 
 finally ratified." The trustee should be very sure of 
 his ground who takes the responsibility of deviating 
 from his directions. If a sale be made in a different 
 manner from that prescribed, and yet turn out to be 
 
 'Md. Code, Art. 16, sec. 201. 
 
 ^Le Strange vs. State, 58 Md. 26, 39. 
 
 ^Bayne vs. State, 62 Md. 109. 
 
 *Kauflman vs. Walker, 9 Md. 229; Dickerson vs. Small, 64 Md. 395. 
 
 ^Stevens vs. Bond, 44 Md. 506; White vs. Malcolm, 15 Md. 
 529. The non-observance of a custom among city auctioneers to 
 place a notice upon a house for sale, will not vitiate. Chilton vs. 
 Brooks, 69 Md. 584. 
 
 «Schindel vs. Keedy, 43 Md. 413; Lurman vs. Hubner, 75 Md. 
 268, 273. 
 
130 EQUITY PBOCEDURE. 
 
 advantageous under all the circumstances, it may be 
 sanctioned.' If substantially unfair, it will be rejected, 
 even although all modal regulations have been 
 strictly observed,^ But mere inadequacy of price, 
 without more, is not a sufficient objection.' In gen- 
 eral, a private sale will not be permitted under a de- 
 cree directing a public sale until the property has 
 been once offered at public sale.^ Even then it will 
 not be ratified, unless in all respects advantageous.' 
 The rule requiring absolute good faith is especially 
 applicable to sales under powers in mortgages, and 
 as bo such sales is strictly enforced.* 
 
 § 91. Report— exceptions. The sale is next 
 promptly reported to the court with an affidavit of 
 the truth of the report and of the fairness of the 
 sale.' Upon this report an order of ratification nisi 
 is passed, and published by advertisement.^ If 
 no cause is shown to the contrary by the time 
 limited, a final order of ratification is passed.' 
 By consent of all parties interested, in writing, 
 
 'Andrews vs. Scotton, 2 Bland, 629, 637; Tyson vs. Mickle, 2 Gill, 
 376. 
 
 "Loeber vs. Eckes, 55 Md. 1; Chilton vs. Brooks, 69 Md. 584. 
 
 ■'Johnson vs. Dorsey, 7 Gill 269; Mahoney vs. MacKubin, 52 Md. 
 357, 366. 
 
 *Alex. Ch. Pr. 146; Tyson vs. Mickle, 2 Gill 376. 
 
 ^Latrobe vs. Herbert, 3 Md. Ch. 378; Kelso vs. Jessop, 59 Md. 120. 
 
 •■Chilton vs. Brooks, 69 Md. 584, 587. 
 
 'Carey's Forms No. 812. 
 
 ^lUd. No 816. This preliminary order is usually passed by the 
 clerk, Art. 17, sec. 29. 
 
 "IMd. No. 817. 
 
PRACTICE. 121 
 
 the sale may be ratified immediately upon being 
 reported, without notice.' Exceptions to the sale 
 can only be filed by parties interested." The court 
 will not compel the purchaser to buy a law suit, 
 and if the title is fairly doubtful, his exception for 
 that reason will be sustained.' From an order set- 
 ting aside the sale, or an order of final ratification, the 
 losing party may appeal, but not the trustee himself.* 
 Upon final ratification, the case goes to the auditor 
 that an account may be stated distributing the 
 proceeds. 
 
 § 92. Account— auditor. The auditor is the cal- 
 culator and accountant of the court, and when any 
 calculations or statements are required, all the 
 pleadings, exhibits and proofs are referred to him 
 for investigation and report. His ofiice, while not 
 in all respects the same, is analogous to that of a 
 master in chancery.^ 
 
 'Alex. Ch. Pr. 146. 
 
 "Griffith vs. Hammond, 45 Md. 85. 
 
 'Handy vs. Waxter, 75 Md. 517; Benson vs. Yellott, 76 Md. 157; 
 Herzberg vs. Warfield, 76 Md. 446, 449; Newbold vs. Schlene, 66 
 Md. 585; Lurman vs. Hubner, 75 Md. 268, 272; Hamilton vs. Tra- 
 ber, 27 Atl. Eep. 229, 77 Md. 
 
 ^Liirman vs. Hubner, 75 Md. 268. 
 
 ^Alvey, J. in Trustees vs. Heise, 44 Md. 453, 464; Dorsey vs. 
 Hammond, 1 Bland 463, 467; Townsend vs. Duncan, 2 Bland, 45, 
 74. Besides the taking of accounts, other matters are referred to 
 masters in chancery, such as sales; appointment of trustees, &c.; 
 impertinence or scandal in pleadings; the question as to who are 
 entitled as heirs, &c. to a fund in court; as to whether the title to 
 real estate is good, as to the state of the law of a foreign country; 
 as to whether one of two publications is pirated from the other; as 
 
133 EQUITY PROCEDUBB. 
 
 Provision is made by statute for the appointment 
 of sworn auditors to audit, state and settle accounts, 
 with power to take testimony, and also for the tem- 
 porary appointment and qualification of special 
 auditors in certain cases. If the party, at whose 
 instance the reference is made fails to bring on the 
 matter, any other party interested may do so, and 
 the auditor is without delay to assign a time and 
 place for taking testimony and filing claims, giving 
 due notice thereof and of all adjournments. He may 
 proceed ex "parte, if parties notified fail to attend. 
 In case of his delay, he may be speeded by an order 
 of court. He has power to regulate the proceedings, 
 examine on oath parties and witnesses, require pro- 
 duction of books and papers, and report delinquents 
 for the coercive process of the court. Parties 
 accounting are to produce their accounts in the form 
 of debtor and creditor, subject to cross-examination 
 by adverse parties. In taking testimony the auditor 
 follows the mode prescribed for examiners.' 
 
 to the amount of damage suffered from the granting or withholding 
 of an injunction; the settlement of conveyances, &c. Following 
 the English chancery practice, the United States Circuit Courts in 
 equity appoint masters in chancery for the respective districts. 
 1 Foster's Fed. Pr. sec. 307, 308. In Baltimore City, besides the 
 staff of auditors, there are two " auditors and masters," to whom 
 are referred all cases submitted without argument, except ex-parte 
 mortgage suits. Const. Art. IV, sec. 9, Rule 12, C. C. and C. C. 
 No. 2. Suits for divorce and suits for partition are the cases most 
 frequently referred. 
 
 'Md. Code, Art. 16, sec. 18-23. In actions at law involving 
 accounts the court may refer the same to an auditor, whereupon 
 there shall be the same proceedings as in equity, reserving to the 
 
PRACTICE. 123 
 
 § 93. Claims. In cases of decrees for an account, 
 such as on creditors' bills, where there may be num- 
 erous claimants, it is provided by the decree that 
 notice shall be given, by advertisement, to * file 
 claims, properly authenticated, in the clerk's office, 
 on or before a given day.' By thus filing his 
 voucher, the claimant becomes a real party to the 
 suit, without formal petition. But in cases for the 
 enforcement of a special right, such as a sale under 
 mortgage or other lien, any third person interested 
 as a claimant should intervene by petition.* Uncon- 
 tested claims are allowed by the auditor upon such 
 vouchers as are required under the testamentary law 
 to pass a claim in the orphans' court.^ When full 
 proof is demanded, it must be furnished and the 
 prima facie proof is of no avail." If a witness has 
 been already examined on the merits, there can be 
 no re-examination of the same witness upon the 
 same matters, without special order of court. = 
 Claimants may come in at any time before distribu- 
 tion actually made, but the account can only be 
 re-opened at their expense.* 
 
 parties the right to a Jury trial, if demanded. Art. 26, sec. 9. 
 The procedure is defined by Eule 49, Sup. Bench. 
 
 ^Carey's Forms, No. 646, '647, 648. The suing creditor's claims 
 are established by the decree, but not as to their amount. Jackson 
 vs. Wilson, 76 Md. 567, 572. 
 
 ^Thomas vs. Bank, 46 Md. 43, 85; Carson vs. Phelps, 40 Md. 73, 
 78; Strike's case, 1 Bland, 57, 85. 
 
 'Dorsey vs. Hammond, 1 Bland 463, 470; Art. 93, seo. 84, &c. 
 
 *Kent vs. Waters, 18 Md. 53, 72. 
 
 'Trustees vs. Heise, 44 Md. 453, 466. 
 
 8Alex. Ch. Pr. 143; PfeaflE vs. Jones, 50 Md. 263, 270. 
 
134 EQUITY PROCEIlUKB. 
 
 § 94. Auditor's report— exceptions. The funb- 
 tions of the auditor are said not to be judicial, 
 because his findings are of no effect until confirmed 
 by the court. ^ But he is frequently called upon to 
 exercise judgment in the preliminary decision of 
 important questions of fact and law. He is to decide 
 in the first instance upon the sufficiency and weight 
 of the proof in view of the pleadings and of the 
 principles of equity, and his report is expected to 
 embody his conclusions in the accounts submitted 
 together with all the proofs taken. When the matter 
 is doubtful, in the auditor's opinion, he states alter- 
 native accounts, presenting the case under a variety 
 of aspects. And a dissatisfied party may require the 
 statement of an account upon his own theory of fact 
 or law. 2 In every report of an auditor two elements 
 are involved; an expense account, bringing down a 
 balance for distribution, and a distribution account, 
 auditing that balance in due proportion to recognized 
 claimants. In simple cases, these are combined in 
 one account.' The report, after being filed, remains 
 
 'Alex. Ch. Pr. 6. 
 
 2 Alex. Ch. Pr. 127. 
 
 .f^Carey's Forms, No. 822. In the expense account are included 
 the auditor's fees at a, per diem of $4.50 "for every day he shall be 
 reasonably employed." Art. 16, sec. 19. Trustees' and receivers' 
 commissions on sales are fixed by rule of court (four per cent, on 
 proceeds of sale above $3,000, with a sliding scale below that figure. 
 Rule _24, C. C. and C. C. No. 2. Auctioneers' fees are fixed by Rule 
 28). Other, and sometimes questionable allowances, figure in the 
 expense account, and to guard against surprise, the auditor, as soon 
 as he files his report, is required to give notice thereof and of the 
 day upon which it may be ratified, to parties interested, by mail, 
 
INJUNCTION. 125 
 
 open for exceptions for a limited time prescribed by 
 rule of court.* 
 
 Exceptions must be specific and in detail.* No 
 exceptions are required to accounts stated under the 
 instructions of parties.* The exceptions are set for 
 hearing by either side. In point of practice, the 
 hearing on these exceptions is frequently the final 
 hearing, inasmuch as its result determines the real 
 questions of property and title at issue in the cause,* 
 and the decretal order of ratification is in the nature 
 of a final decree.^ 
 
 ^ 
 
 95. Interlocutory injunction. An interlocutory • 
 (otherwise called preliminary, provisional, ad in- 
 terim, pendente lite, temporary) injunction may be 
 granted at the commenoeTn fint-n f a suit, upon original 
 bill, or at any stage of its progress, upon petition, 
 
 in order to give them an opportunity to object. Rule 19, C. C. and 
 C. C. No. 2, of Baltimore city. 
 
 iTen days by Eule 19, C. C. and C. C. No, 2, but exceptions may 
 be entertained at any time before final rsCtification. Calvert vs. 
 Carter, 18 Md. 73, 110. The order of ratification nm may be passed 
 by the clerk, but not of course the final order. Md. Code, Art. 
 17, sec. 28. In federal practice exceptions are due within one 
 month after the master's report is filed. U. S. Eq. Eule 83. The 
 presumption is in favor of his findings. Kimberly vs. Arms, 129 
 U. S. 512, 524; 1 Foster's Fed. Pr. sec. 315. 
 
 ^Darby vs. Eouse, 75 Md. 26; but all the reasons need not be 
 stated, Stokes vs. Detrick, 75 Md. 256. 
 
 'Dennis vs. Dennis, 15 Md. 73. 
 
 *Carson vs. Phelps, 40 Md. 73; Baumgartner vs. Haas, 68 Md. 32. 
 
 iTaylor vs. State, 73 Md. 208; Seldner vs. McCreery, 75 Md. 287, 
 293; Eobertson vs. Parks, 76 Md. 118, 134; State vs. Banks, 76 Md. 
 136, 143. 
 
126 EQUITY PBOOEDUEE. 
 
 directing a party to do, or abstain from doing any 
 act named therein.* It is granted upon a strong 
 prima facie case, and where extreme urgency is 
 apparent, ex parte. It concludes no rig hts. It merely 
 preserves or restores the status quo until investiga- 
 tion can be made, and a proper decision reached. It 
 is sometimes the main object of suit, but more often 
 ancillary thereto. It continues in force until dis- 
 solved, or until made perpetual by decree.* It 
 differs from a final (otherwise called perpetual) in- 
 junction, in that the latter is- granted after full proof 
 taken and hearing on the merits, and is an absolute 
 and conclusive adjudication. The former is a writ, 
 issued by the clerk, under the seal of the court, in 
 pursuance of an interlocutory order, while the latter 
 takes the form of a final decree.' 
 
 In England and in the code states, following New 
 Yojk procedure, the writ is no longer in use, and 
 
 'M'd. Code, Art. 16, sec. 177, which extends the right to make 
 application to "any party in interest," allows application "by 
 motion," orj without application, enables the court to order the 
 issue "of its own motion." Comrs. vs. School Comrs. 26 Atl. Rep. 
 115, 77 Md. — . The application may be made in term or vacation, 
 in or out of court hours, and may be acted on at any place within 
 the circuit. Art. 16, sec. 71. 
 
 ^Salmon vs. Clagett, 3 Bland 125, Brantly's note. Instead of 
 granting the injunction at once, the court may set a day for hearing 
 and pass a restraining order to operate meanwhile. Bonaparte vs. 
 R. R. Co., 75 Md. 340; New Orleans vs. Paine, 147 U. S. 263; Cohen 
 vs. Gray, 70 Cal. 85. 
 
 'Bispham Pr. of Eq. sec. 403; 2 Beach Mod. Eq. Jur. sec. 638; 3 
 Pom. Eq. Jar. sec. 1337; Ad. Eq. 194; Alex. Ch. Pr. 80; Carey's 
 Forms, Ntfs. 705, 707, 714. 
 
INJUNCTION. 127 
 
 temporary injunctions are granted by order.^ In the 
 other states, and in federal practice, the writ should 
 contain a concise description of the particulars 
 wherein the defendant is enjoined, and should be 
 addressed to the defendant and, where occasion 
 requires, to his attorneys, agents, servants or work- 
 men.^ A perpetual injunction may be granted for 
 the first time by the decree, or the final decree may 
 perpetuate a prior interlocutory injunction.' / 
 
 § 96. Injunction defined — mandatory— prohibi- 
 tory. Regarding effect and substance rather than 
 form, injunction may be defined as the specific 
 enforcement of an equitable right, or of a legal right 
 otherwise remediless, either by mandate,^ compelling 
 its observance, or by prohibition, restraining its 
 infringement.' It was formerly held that a manda- 
 tory injunction could not issue upon preliminary 
 hearing, before final decree.* It was also the'practice 
 to frame the decree in indirect terms, so as to ruake 
 the injunction prohibitory in form.' The tendency 
 of modern adjudication and legislation is to place 
 the mandate upon the same footing with the pro- 
 
 'Morgan's Ch. Acts and Orders, 470; 2 Beach Mod. Eq. Jur. 
 sec. 638. 
 n Foster's Fed. Pr. sec. 234. 
 ^Ibid. sec. 238. 
 
 *Md. Code, Art. 16, sec. 177; otherwise, mandatory injunction. 
 ^Prohibitory injunction. 
 
 •^Washington University vs. Green, 1 Md. Ch. 97. 
 'Comrs. vs. School Comrs., 26 Atl. Kep. 115, 77 Md. — . 
 
138 EQUITY PROCEDURE. 
 
 hibitory injunction,' subject of course to the qualifi- 
 cation, that, as greater mischief may be done by its 
 improvident exercise, it will be granted with corres- 
 ponding caution, and that no other equitable remedy 
 is more liable to be defeated by acquiescence in the 
 erections or works complained of.^ If the injury can 
 be compensated by damages, or if the balance of 
 convenience is strongly on the side of the defendant, 
 this relief will be refused.' 
 
 §97. Compared with specific performance. Spe- 
 cific performance is limited to contract. Injunction 
 deals also with tort. Specific enforcement of contract 
 is substantially a mandate. An injunction restrain- 
 ing a specific wrong is in effect specific enforcement 
 of the correlative right. An injunction restraining 
 breach of contract is in effect a negative specific 
 enforcement of contract.* Both are extraordinary 
 equitable remedies, founded upon the want of ade- 
 quate legal remedy. Both result from the maxim 
 "equity acts speeifically." Both result also from 
 the maxim "equity acts in personam,"" and can thus 
 be made to operate beyond the jurisdiction of the 
 state.^ Moreover, both remedies are ex gratia and 
 
 iMd. Code, Art. 16, sec. 177; Bisph. Pr. Eq. (5th Ed.) sec. 400. 
 
 ^3 Pom. Eq. Jur. sec. 1359; 2 Beach Mod. Eq. sec. 639. 
 
 "Smith's Pr. Eq. 620. 
 
 *3 Pom. Eq. Jur. sec. 1341. 
 
 ^Injunction, by arresting inequitable legal proceedings— specific 
 performance, by compelling the transfer of legal title to the equit- 
 able owner — in either case beyond state limits, provided the court 
 has acquired not merely constructive but actual jurisdiction over 
 
INJUNCTION. 129 
 
 not ex debito, granted, as is often said, in the exercise 
 of sound judicial discretion, in view of the special 
 circumstances; a discretion, however, guided by rule 
 and precedent, and reviewable on appeal.^ They 
 differ in this: that specific performance is in general 
 the main object of suit, and is not an interlocutory 
 proceeding. 
 
 § 98. Compared with mandamus. The legal 
 remedy of mandamus is aflSrmative, specific and 
 coercive, and therefore analogous to a mandatory 
 injunction. What has just been said as to the 
 discretionary nature of injunction and specific per- 
 formance applies as well to mandamus. Mandamus 
 is not^ like injunction and specific performance a 
 general remedy between private parties, btit is 
 founded upon some special corporate, oflBcial or min- 
 isterial duty, in which the applicant has an interest.^ 
 
 § 99. To enforce equitable rights. Equitable 
 rights imply the non-existence of legal remedy. To 
 restrain their violation, injunction is always the ap- 
 propriate remedy. Such are trusts, the equities of 
 cancellation, reformation or re-execution upon the 
 ground of fraud, mistake or accident, the equity of 
 redemption of a mortgagor, the lien of an equitable 
 
 the person of the party. See the cases cited under these maxims, 
 post. 
 
 •■ks to injunction, Wilde vs. Scotten, 59 Md. 72, 76; 10 Am. and 
 Eng. Ency. 780. As to specific performance, Semmes vs. Worth- 
 ington, 38 Md. 298, 325; 22 Am. and Eng. Ency. 910. 
 
 ^2 Poe, PI. and Pr. sec. 709; Wailes vs. Smith, 76 Md. 469. 
 9 
 
130 EQUITY PROCEDUKE. 
 
 mortgagee, the rights of co-partners and married 
 women. In suits founded on such equities, it is often 
 necessary for their protection pending the suit that 
 breaches of trust should be restrained and alienations 
 or encumbrances prevented by interlocutory injunc- 
 tion.^ 
 
 § 100. By restraining legal proceedings. An in- 
 junction may be granted to restrain an action at law, 
 at any stage, even after judgment, maintained in 
 violation of an equitable right or" title.^ Under the 
 former English chancery practice, injunctions to re- 
 strain proceedings at law were called common injunc- 
 tions, and were granted as of course, without aflBda- 
 vit. All other injunctions were special. No such 
 distinction exists here. Modern legislation enabling 
 equitable defences to be pleaded at law,' has to a 
 great extent obviated the necessity for injunctions of 
 this nature, as to domestic suits. There are still 
 
 13 Pom. Eq. Jur. sec. 1339; Bisph. Pr. Eq. sec. 425; Salmon vs. . 
 Clagett, 3 Bland 126, Brantly's note; Little vs. Price, 1 Md. Ch. 182, 
 note; 1 P'oster's Fed. Pr. sec. 206; Equitable vs. Baltimore, 63 Md. 
 285. In some cases the equitable right infringed is sufficiently 
 protected by the injunction without other relief, as in the case of 
 surreptitious reports of lectures. Abernethy vs. Hutchinson, 3 L. J. 
 Eep. Ch. 209; 2 Sto. Eq. Jur. sec. 949; 2 Beach Mod. Eq. sec. 752; 1 
 Foster's Fed. Pr. sec. 206; Nichols vs. Pitman, 26 Ch. Div. 374. In 
 other cases, injunction is auxiliary to the main object, as when the 
 principal relief sought is to set aside a fraudulent transfer. Hyde 
 vs. Ellery, 18 Md. 496. 
 
 ^Bisph. Pr. Eq. sec. 410; Johnson vs. Christian, 128 U. S. 374: 
 Brewer vs. Herbert, 30 Md. 301. 
 
 ^Md. Code, Art. 75, sec. 83-85. 
 
INJUNCTION. 131 
 
 occasions for its use, as in cases controlled by con- 
 siderations of public policy,' or other special circum- 
 stances.- <• 
 
 The maxim — equity prefents multiplicity of suits — ' 
 operates by means of injunction to restrain unneces- 
 sary or vexatious litigation. A frequent illustra- 
 tion is afforded by the ordinary bill of interpleader, 
 founded upon a conflict between two or more separate 
 claimants upon the same debtor, who is therefore 
 threatened with two or more suits in respect of a 
 subject-matter wherein he is an indifferent stake- 
 holder.^ Upon a similar principle, bills of peace 
 are brought to restrain a number of persons from 
 litigating identical or similar matters in different 
 suits, w^here there is a common right capable of be- 
 ing determined in one suit.* Formerly, a bill of 
 peace also lay to prevent the same action of eject- 
 
 ' Emerson vs. Townsend, 73 Md. 22£. 
 
 ^Brady vs. Johnson, 75 Md. 445. No injunction to stay a sale or 
 proceedings thereafter under a power in a mortgage shall be 
 granted, except at the instance of a party to the mortgage, or of 
 one claiming under auch«party an interest derived after the record- 
 ing thereof, nor unless such party shall allege on oath full or 
 partial payment not credited, or some specific fraud in obtaining 
 the mortgage. Art. 66, sec. 16. Prompt hearing shall be had on 
 motion to dissolve such injunction, and if the court finds that the 
 same was obtained through misrepresentation and for delay, inter- 
 est shall be decreed at the rate of ten per cent. Ibid. sec. 17. Bond 
 shall be given by the plaintiff to secure such mortgage debt, dam- 
 age, interest and costs. Ibid. sec. 18. 
 
 'Bank vs. Lanahan, 60 Md. 477, 514; Zihlman, 75 Md. 372; Weikel 
 vs. Gate, 58 Md. 105; Emerick vs. New York Life, 49 Md. 352; Barth 
 vs. Rosenfeld, 36 Md. 604; Killian vs. Ebbinghans, 110 U. S. 568. 
 
 *Bisph. Pr. Eq. sec. 415; Sharon vs. Turner, 144 U. S. 541. 
 
133 EQUITY PEOCBDURE. 
 
 ment from being repeated by the losing party." 
 There is no longer occasion for a bill of this nature, 
 since the legislative abolition of fictions in eject- 
 ment. ^ Certain cases of bills quia timet may also 
 be referred to this head.^ Comparing bills quia 
 timet with other injunctions, it is the office of man- 
 datory injunctions to correct past injuries and 
 restore rights; of prohibitory injunctions to prevent 
 present or imminent injuries and preserve rights; 
 and of bills quia timet to anticipate and guard 
 against future and contingent injuries, and, as it 
 were, insure rights.^ In order to maintain a bill 
 quia timet, or to remove a cloud from titlCj^^ there 
 must be clear proof of both legal title andi j^ossess jo^ 
 in the plaintiff.^ A legal title in reversion will 
 suffice." 
 
 § 101. To enforce legal rights. When injunction 
 is to enforce. a legal right, the jurisdiction is founded 
 upon the inadequacy of legal remedy. The case 
 must be one where damages are not real compensa- 
 tion, where the legal right is clear, and there is im- 
 
 »Bisph. Pr. Eq. sec. 418. 
 
 2Md. Code, Art. 75, sec. 69. 
 
 'Polk V8 Rose, 25 Md. 153; Drury vs. Roberts, 2 Md. Ch. 157; 
 Cole vs. O'NeUl, 3 Md. Ch. 174, 185. 
 
 *Bisph. Pr. Eq. 5th ed. sec. 568. 
 
 sLivingston vs. Hall, 73 Md. 386; Gage vs. Kauflman, 133 U. S. 
 471; Frost vs. Spitley, 121 U. S.552; Polk vs. Pendleton, 31 Md. 118. 
 
 «Steuart vs. Meyer, 54 Md. 454, 467; Carter vs. Woolfork, 71 Md. 
 283, 287. 
 
INJUNCTION, 133 
 
 minent danger of irreparable injury.^ In general, 
 the cases falling under this head are cases of tort, 
 the most frequent examples of which in practice are 
 as follows: injunctions to prevent destructive tres- 
 pass;^ to restrain nuisance;* to restrain waste;" to re- 
 strain infringement of patents, ^ copyright,* and 
 trade-mark;' to restrain negotiation of commercial 
 paper;* to restrain municipal corporation from levy- 
 ing illegal tax," or ffom making unlawful contract;*" 
 to restrain railroad corporation from unauthorized 
 use of street," or from injury to abutting property;*^ 
 
 '3 Pom. Eq. Jur. sec. 1346; 2 Beach Mod. Eq. sees. 641-643.\ By 
 the act of 1888 ch. 260 it is provided that an injunction shall not be 
 refused on the m ere ground that the party has an adequate remedy 
 in damages, unless the other party shall show that he has property 
 from which damages can be made, or shall give bond with approved 
 security to answer the same with costs. Md. Code, Art. 16, sec. 69. 
 
 ^Amelung vs. Seekamp, 9 G. & J. 468, note; Blaine vs. Brady, 64 
 Md. 373; Dudley vs. Hunt, 67 Md. 44; Eiverdale vs. Westcott, 74 
 Md. 311; K. E. Co. vs. Lee, 75 Md. 596; Osborn vs. Missouri, 147 
 U. S. 248. 
 
 ^Hamilton vs. Whitridge, 11 Md. 128; Baltimore vs. Warren, 59 
 Md. 96; Kay vs. Kirk, 76 Md. 41; Helfrich vs. Water Co., 74 Md. 
 269. In this case the injunction was refused, the defendant having 
 a legal right to the use of the stream for his cattle, although such 
 use might affect the purity of the water which supplied the works 
 of the water company lower down. 
 
 ^Duvall vs. Waters, 1 Bland 569. 
 
 5 Bell Telephone Cases, ]5?6 U. S. (whole volume.) 
 
 «Callaghan vs. Myers. 128 U. S. 617. 
 
 'Stackelburg vs. Ponce, 128 U. S. 686; Kenny vs. Gillet, 70 Md. 574. 
 
 "Bank vs. Lange, 51 Md. 138; Devries vs. Shumate, 53 Md. 211. 
 
 'Ulman vs. Baltimore, 72 Md. 587. 
 1 "Baltimore vs. Keyser, 72 Md. 106. 
 
 "E. E. Co. vs. E. E. Co., 75 Md. 233; Koch vs. E. E. Co., 75 Md. ' 
 222 (refused). 
 i^O'Brien vs. E. E. Co., 14 Md. 363 (refused). 
 
134 EQUITY PEOCEDUEE. 
 
 to arrest the mismanagement or misconduct of cor- 
 poration officers.* 
 
 § 102. To restrain breach of contract. , Negative 
 covenants in leases, such as covenants not to erect 
 buildings of a certain class, or not to carry on a 
 particular trade on the premises, are specifically 
 enforced by injunction, restraining their violation.^ 
 So of any other contract of such a character as to be 
 specifically enforced, and in such contracts a nega- 
 tive covenant may be implied.^ In America, it is 
 still a controverted question whether a breach of 
 contract can be enjoined, where the contract cannot 
 be specifically enforced — such as a contract for 
 personal services.* 
 
 § 103. Violation. An injunction is binding from 
 the time when it shall come to the knowledge of the 
 party, by service or otherwise.' Violation, or con- 
 
 ^Mason vs. Equitable League, 77 Md. 
 
 ^Bisph. Pr. Eq. sec. 463; Guerand vs. Dandelet, 32 Md. 561. 
 
 ^Equitable vs. Baltimore, 63 Md. 285, 300; Bisph. Pr. Eq. sec. 464. 
 
 *Burton vs. Marshall, 4 Gill 487, note; Hahn vs. Concordia, 42 
 Md. 460; Equitable vs. Baltimore, 63 Md. 285. In England the 
 aflSrmative of the proposition has been established since the leading 
 case of Lumley vs. "Wagner, 1 D.- M. & G. 604, and in this 
 country the weight of authority seems to incline in favor of Ihe 
 English doctrine, that the violation of such contracts may be 
 enjoined, whenever the legal remedy of damages would be inade- 
 quate, and the contract is of such a nature that its negative specific 
 enforcement is possible. 3 Pom. Eq. Jur. sec. 1343; 2 Beach Mod. 
 .Eq. see. 770; Bisph. Pr. Eq. sec, 462; 1 Foster's Fed. Pr. sec. 220; 
 "Brantly on Cont. 253. >:} .,^J,.«. .'rn^.i.t^riU^C-i^L \J* Uhl^,\iVi 
 
 5Md. Code, Art.l6, sec. 181; United Telephone Co. vs. |)ale, 25 
 Ch. D. 778; Eapalje on Contempts, sees. 20, 46. See Eakle vs. 
 
IN-JUNCTION. 135 
 
 nivance at a violation, is punishable as a contempt 
 of court. An attachment of contempt first issues, 
 and if on proof the party be adjudged guilty, he 
 may be fined or imprisoned, or both, in the discretion 
 of the court. 1 
 
 § 104. Requisites. A remedy so prompt, thorough 
 and effective, enforced if necessary by the whole 
 power of the stats, available in urgent cases without 
 notice, requires to be carefully guarded from 
 abuse. No interlocutory injunction will, in general, 
 be granted, unless the following requisites are com- 
 plied with: , The bill or petition must be siipported 
 by aflBdavit;^ a bond with approved security must be\l 
 given to indemnify the defendant against all costs , 
 and damages that may be occasioned, unless the 
 injunction be sustained, and to perform such decree 
 or order as may be passed;' th^ must be candid 
 
 Smith, 27 Md. 407, 482. Notice by telegram is sufficient. Mx parte 
 Langley, 13 Ch. D. 110; Avory vs. Andrews, 51 L. J. Ch. 414. If a 
 party with notice that an injunction is about to issue against him 
 goes on with the act complained of, he does so at the risk of being 
 compelled to undo what he has done. Daniel vs. Ferguson, (1891) 
 2 Ch. 27. 
 
 ^Art. 16, sec. 63. In cases of waste, the fine may be to the extent 
 of double damage. An assignee of forbidden property, with know- 
 ledge, may be required to surrender, as well as held in contempt. 
 IMd. sec. 64. If the party attached clears his contempt, the costs 
 shall be paid by the party complaining. Ibid. sec. 65. 
 
 'In very special cases the affidavit may be dispensed with. Negro 
 Charles vs. Sheriff, 12 Md. 274. 
 
 ^Md. Code, Art. 16, sec. 66; Carey's For ms, No,__706i. This is also 
 a matter within the court's d i scretioir'"'wmt?!?s^Davidson, 8 Md. 
 169. A bond is not required from a wife suing her husband. 
 
136 EQUITY PBOCEDUBB. 
 
 disclosure of all material facts and production of all 
 exhibits,* and opportunity should be offered for a 
 speedy hearing upon answer and motion to dissolve 
 the injunction.^ The writ must be specially asked 
 in the prayer for relief, but this need not be repeated 
 in the prayer for process.' 
 
 § 105. Motion to dissolve. On filing his answer, 
 the defendant may enter on the docket a motion for 
 dissolution of the injunction. Such motion may also 
 be made by "any party in interest. "^ The motion 
 wiir either stand for hearing, in regular order, or on 
 special application and due notice, a short day may 
 be assigned. Either party may thereupon obtain an 
 order for taking depositions, or for a commission, if 
 the witnesses are out of the jurisdiction of the court.^ 
 The answer, in such cases, must be sworn to, and 
 has th© effect of a sworn answer under former 
 chancery practice, that is, all responsive allegations 
 are to be taken as proved, unless countervailed by 
 two witnesses (of whom the plaintiff may be one), or 
 
 ^Sprigg vs. Western, 46 Md. 67; Baltimore vs. Weatherby, 52 Md. 
 442, 450; Morton vs. Grafflin, 68 Md. 545, 556; Gottschalk vs. Stein, 
 69 Md. 51, 58; Lamm vs. Burrell, 69 Md. 272. 
 
 ^Usually five days after notice. Carey's Forms, No. 705.. See 
 Md. Code, Art. 16, sec. 178. ' 
 
 ^Md. Code, Art. 16, sec. 133, 134. See, however, sec. 177. Comrs. 
 vs. School Comrs., 26 Atl. Rep. 115, 77 Md. 
 
 *Md. Code, Art. 16, sec. 178. 
 
 *Rule 16, C. C. and C. C. No. 2. The depositions may be taken 
 before an examiner or a justice of the peace upon such notice and 
 in such manner as the court may direct. Md. Code, Art. 16,"secs. 
 68, 226; Carey's Forms, No s. 709. 710. 
 
IKJUNCTION. 137 
 
 by on e witness with corroborating circumstances.* 
 If the hearing is on bill and answer, tjie ordinary"" 
 chancery rule does not obtain, and every material 
 allegation not denied by the answer is taken for 
 , true.^ So much of the answer as is responsive is 
 taken for true, as in other cases, and this effect of 
 the answer is not at all impaired by the filing of a 
 replication without proof.' The motion is to dissolve, 
 unless cause showh by the plaintiff, and therefore, 
 on the hearing, the matter is opened by him, then 
 the defendant is heard, and the argument is closed 
 on the part of the plaintiff.* The result may be an 
 order dissolving the injunction, or continuing it until 
 the final hearing, or modifying its terms. When 
 the answer does not deny the equity of the bill, but 
 sets up new matter of defence, the injunction will 
 be continued to the final hearing.' If the injunction 
 be dissolved, the bill will still be retained, unless the 
 injunction be, not ancillary, but the principal relief 
 prayed, in which event the bill will be then dis- 
 missed.* 
 
 § 106. Appeal. In addition to what has been 
 already offered under the head of "appeal,"' it is 
 
 'Md. Code, Art. 16, sees. 146, 147; Gilston vs. Rullman, 15 Md. 260. 
 ,2Cronise vs. Clark, iMd. Ch. 403. 
 ^Dougherty vs. Plet, 52 Md . 425. 
 *Heck vs. Vollmer, 29 Md. 507, 511. 
 'State vs. R. E. Co., 18 Md. 193. 
 
 «Kelly vs. Baltimore, 53 Md. 134; Bartlett vs. Hipkins, 76 Md. 
 5, 26, 40. 
 ''Ante, sec. 77. 
 
138 EQUITY PEOCEDUEE. 
 
 to be noted that upon appeal from an injunction 
 order the defendant must file bis answer, although 
 it will not be considered by the court, the sole ques- 
 tion being as to the sufficiency of the averments of 
 the bill.* .^Jgrjggjjjp the effect of an appeal from an 
 injunction order with approved appeal bond was to 
 convert this powerful specific remedy into a mere 
 claim for damages.^ Now, however, it is in the 
 discretion of the equity court to continue the opera- 
 tion of the injunction pending appeal.' 
 
 § 107. Modern legislation. The scope of injunc- 
 tion has been widened and its efficacy increased by 
 several enactments already mentioned.'* The power 
 to grant injunctions was first extended to courts of 
 common law in England by the Common Law Pro- 
 cedure Act of 1854, and in 1873 conferred upon the 
 High Court by the Judicature Act.^ A similar en- 
 largement of judicial power has obtained in New 
 York since 1846, and has since been adopted in 
 many states of the Union,? 
 
 § 108. Receiver. _. A receiver is an indifferent 
 person between th^-'parties appointed by a court of 
 
 . ^Lamm vs. Burrell/ 69 Md. 273-4. A demurrer to the whole bill 
 may be taken as ap answer, for the purpose of the appeal. Balti- 
 more vs. Weatljerby, 52 Md. 442. 
 
 ^Glenn vs. Davis, 35 Md. 208, 220. 
 
 '1890 ch.J^; ante, sec. 78, note. 
 
 ^AnUjj^ca. 95, 101, note, 106. 
 
 ^Bo^rd vs. Ferryman (1891), 2 Ch. 283; Collard vs. Marshall 
 (189^1 Ch. 571. 
 
 ' Code, Art. 75, secs..ll6.j!.28; Art. 47, sec. 23. 
 
BBCEIVER. 139 
 
 equity to take charge of property in controversy 
 pendente lite. He is for the time being an officer of 
 the court, and his holding is that of the court. His 
 appointment is provisional, settles no question of 
 right or title, and is made in the interest of whom it 
 •may concern.* In other words, a receiver is the 
 court's stakeholder for the parties in litigation. He 
 is required to give bond, to keep and render accounts, 
 and to refer all matters of doubt or difficulty to the 
 court for its special direction. As an officer of the 
 court, he may be coerced by attachment, as well as 
 by suit on his bond, for neglect of duty, and is 
 protected from interference by process of contempt, 
 if necessary. He collects and receives the rents and 
 profits of land, paying, when authorized, taxes and 
 necessary expenses. He takes into his custody per- 
 sonal property of every description, and holds the 
 same, or sells it, as ordered. But he is not bound, 
 as an assignee, to accept unprofitable leases or con- 
 tracts, and is entitled to a reasonable time to elect 
 whether to adopt or repudiate the same.^ For his 
 services, he is entitled to compensation as fixed by/ 
 standing rule of court, or by special order.' 
 
 ^Williamson vs. Williams, 1 Bland 419, Brandy's note; Gaither 
 vs. Stockbridge, 67 Md. 222; Quincy vs. Humphreys, 145 U. S. 97. 
 A court of law has no power to appoint a receiver, even under a 
 statute which authorizes the passing of orders for the protection of 
 property in litigation from waste, destruction or removal.' Oehm 
 vs. Buckle, 50 N. J. .Law 84. ,J?*#"tH.^' 'Si 
 
 2U. S. Trust Co. vs. Wabash R. E., 150 U. S. 287, 299; Gaither vs. 
 Stockbridge, 67 Md. 222. 
 
 'On sales under decree or order of court the same commissions 
 are allowed as to trustees. Rule 24, C. C. and C. C. No. 2; ante, sec. 
 
140 EQUITY PBOCEDUEE. 
 
 § 109. General rules. 1. The power of appoint- 
 ing receivers is a delicate one, to be exercised with 
 gfreat circumspection. 2. It must appear that the 
 claimant has a title to the property, and the court 
 must be satisfied by a ffidav it that a receiver is neces- 
 sary to preserve it. 3. The court never appoints a 
 receiver because the measure can do no harm. 4. 
 Fraud or imminent danger, if the intermediate pos- 
 session should not be taken by the court, must be 
 clearly proved. 5. Unless the necessity be of the 
 most stringent character, a receiver will not be 
 appointed ex parte} 
 
 These rules are said by Prof. Pomeroy to be too 
 strong for universal application, especially the fourth. 
 "There are classes of cases in which a receiver is 
 appointed almost as a matter of course, although no 
 fraud nor imminent danger is proved."^ He cites 
 as instances cases where owners of property are 
 incompetent, such as infants and lunatics, assigning 
 to this class the estates of decedents.' The functions 
 of guardian, committee and administrator are, how- 
 ever, ordinarily sufficient for such cases. Other 
 
 These allowances are subject to be increased in cases of extra- 
 ordinary trouble, or lessened in case of negligence or other default, 
 in the discretion of the court. Such rules are the "law of the 
 court." Tome vs. King, 64 Md. 166, 180. 
 
 ^Blondheim vs. Moore, 11 Md. 364, recognized as a "leading 
 authority in this country." Bisph. Pr. Eq. sec. 577; Beach on 
 Receivers, sec. 125; 20 Am. & Eng. Ency. 16; ,1 Foster's Fed. Pr. 
 sec. 241; Davis vs. U. S. Electric, 77 Md. 35. 
 
 23 Pom. Eq. Jur. sec. 1331, note 2. 
 
 ^'hid. sec. 1332. 
 
RECEIVER. 141 
 
 cases instanced are suits between partners and suits 
 for partition, where both parties are equally entitled 
 to the possession, but it is improper under the cir- 
 cumstances that either should retain the exclusive 
 control.' On the other hand, it has been more re- 
 cently held that the rules laid down in Blondheim 
 vs. Moore' are as applicable to suits between partners 
 as in other cases.' The exclusion, however, by one 
 partner of his co-partner from his share in the man- 
 agement is decisive in favor of the appointment of a 
 receiver.* 
 
 § 110. Statutory receivers. Statutory receivers 
 may be appointed by decree for the dissolution of 
 corporations, either when the corporation has been 
 determined by legal proceedings to be insolvent, or 
 when by vote of the directors, confirmed by the 
 stockholders, shareholders or members, a voluntary 
 dissolution is determined. They are vested with all 
 the estate and assets of the corporation. Their 
 duties are to wind up the affairs of the corporation 
 under the direction of the court, and, if necessary, 
 to sue delinquent stockholders for the balance of 
 stock unpaid. All sales, assignments, transfers, 
 mortgages or other dispositions, or conveyances of 
 
 iS{)eights vs. Peters, 9 Gill 472; Whitman vs. Robinson, 21 Md. 
 30, cited 3 Pom. Eq. Jur. sec. 1333. 
 
 ni Md. 365. 
 
 ^Ileflebower vs. B" "!^, i^ Y^j, Ift, '^i 
 
 ^jiatz vs.\ferewin^on, 71 Md. 79, 83. See Brantly's note to Wil- 
 liamson vs. Wilson, 1 Bland 392 (top paging); Beach, Beceivers, 
 chap. 15. 
 
142 EQUITY PBOCBDUEB. 
 
 any part of the assets of the corporation made, and 
 all judgments confessed, after the filing of the bill 
 for dissolution are void as against the receiver.^ 
 There are few reported cases of proceedings under 
 the statute,^ which until recently was supposed not 
 to have displaced the general jurisdiction of equity 
 to appoint receivers of corporations in a variety of 
 cases. ^ 
 
 It has, however, been recently decided that, inde- 
 pendently of the statute, a court of equity has no 
 jiirigdifiiioii to apj)oint a receiver of a corporation on 
 the ground of mismanagement, fraud, or abuse of 
 corporate powers/ . 
 
 § 111. Managing receivers. The progress and 
 growth of equity jurisdiction in this country has 
 largely expanded the functions of receivers, partic- 
 ularly in cases of foreclosure of defaulted railway 
 mortgages. A railroad is property of a peculiar 
 nature, in which the public are concerned. To pre- 
 serve it from destruction as a public highway it 
 must be kept in active operation and sold as a going 
 
 ^Md. Code, Art. 23, sees. 264-276. For the form of decrees ap- 
 pointing corporation receivers, but not under the statute, see Hayes 
 vs. Brotzman, 46 Md. 519; Frank vs. Morrison, 58 Md. 423. 
 
 "Stillman vs. Dougherty, 44 Md. 380. 
 
 'Davis vs. TJ. S. Electric, 77 Md. 35; Gaither vs. Stockbridge, 67 
 Md. 222; Day vs. Postal, 66 Md. 354; Frostburg B. Ass. vs. Stark, 47 
 Md. 338; Hall vs. U. S. Insurance Co., 5 Gill, 484, 497; Ellicottvs. 
 U. S. Insurance Co., 7 Gill. 307; 3 Pom. Eq. Jur. sec. 1334, p. 363, 
 note 5; 1 Foster's Fed. Pr. sec. 240, p. 397. 
 
 ■*Mason vs. Supreme Court of Equitable League, 27 Atl. Rep. 171 
 77 Md. — . 
 
RECEIVEE. 143 
 
 concern. Labor is to be kept employed, supplies, 
 equipment • and repairs are to be kept up, existing 
 contracts are to be complied with and new ones are 
 to be made. In the federal courts of equity and in 
 those of many states, the practice has become estab- 
 lished of appointing managing receivers charged 
 with the practical operation of railroads which are 
 the subject of litigation, until their financial embar. 
 rassments are renfoved, or they can be advanta- 
 geously sold, when such a course is found to be 
 necessary to secure the rights of creditors and 
 owners. The jurisdiction is exercised upon the same 
 principles which govern the appointment of receivers 
 in the foreclosure of mortgages generally, and inad- 
 equacy of the mortgage security, coupled with in- 
 solvency of the mortgagor, are regarded as sufficient 
 ground of relief.^ To a limited extent, the same 
 principle has been applied to other receivers, as for 
 instance, under special circumstances, to managing 
 receivers of a farm.^ 
 
 § 112. Receivers' certificates. Out of this prac- 
 tice has developed another innovation in the form of 
 receivers' certificates of indebtedness, issued under 
 special order of court for raising money upon the 
 
 'Davis vs. Gray, 16 Wall. 203; Wallace vs. Loomis, 97 TJ. S. 146; 
 Fosdick vs. Schall, 99 U. S. 235; High on Rec. sec. 376, 20 A. & E. 
 Ency. 329; 1 Foster's Fed. Pr. sec. 246. The railway property in 
 this country now under the management of receivers is said to 
 exceed in value two billions of dollars, with a mileage of more than 
 42,000. 
 
 'Burroughs vs. Gaither 66 Md. 171. 
 
144 EQUITY PEOCEDUKE, 
 
 credit of the property, when the income is found 
 inadequate for the necessary purposes Of the rail- 
 road. These evidences of indebtedness are assign- 
 able, but not negotiable, instruments, and holders are 
 chargeable with notice of the authority by which, 
 and of the specific purposes for which, they are 
 issued. In order to market these securities of an 
 embarrassed road, it is provided in the order for 
 their issue that they will be entitled to a preference 
 in payment over all prior mortgages and liens. No 
 such order can be valid without due notice to all 
 parties in interest, but notice to the trustees of the 
 mortgage is deemed, upon the principle of represen- 
 tation,^ to be notice to every mortgage bond-holder. 
 Payment of receivers' certificates can only be en- 
 forced t>v ajja,--)j; ff^| ||^ ,< | f j gOl^y}- out of the proceeds of 
 
 sale, or otherwise as may have been specially pro- 
 vided. No action lies upon them at law. 
 
 The device is an American invention, of recent 
 origin, and marks, in the language of Mr^ High, 
 " the extreme limit which courts of equity have thus 
 far attained in the exercise of their extraordinary 
 jurisdiction."^ 
 
 ^Ante, sec. 30. 
 
 ^Meyer vs. Johnston, 53 Ala. 237; Wallace vs. Loomis, 97 TJ. S. 
 146; Miltenberger vs. Logansport R. Co., 106 TJ. S. 286; Kneeland vs. 
 Am. L. & T. Co., 136 U. S. 89; Barton vs. Barbour, 104 V. S. 126, 
 137, 8. 1 Foster's Fed. Pr. sec. 247; High Rec. sec. 398, c; Beach 
 Rec. Ch. XI; Jones' R. R. Securities, 507; 20 A. & E. Ency. 392. 
 
CHAPTER VI. 
 
 EQUITY PEO.CEDURE. PRACTICE. (II.) 
 
 113. Amendment. 
 
 114. Of bill. 
 
 115. Of answer. 
 
 116. Taking off file. 
 
 117. Rule further proceedings. 
 
 118. Security for costs. 
 
 119. Consolidation. 
 
 120. Election of remedy. 
 
 121. Removal. 
 
 122. Payment into court. 
 
 123. Investment. 
 
 124. Contempt. 
 
 125. Ne exeat. 
 
 126. Production of books and papers. 
 
 127. Arbitration. 
 
 128. Issues. Jury trial. 
 
 § 113. Amendment. " Equity regards substance 
 rather than form," and courts of equity have always 
 allowed amendment with great liberality. But in 
 order to prevent surprise or abuse of the privilege, 
 leave to amend must first be obtained upon applica- 
 tion by motion or petition, and any unauthorized 
 amendment may be ordered off the file.* The mode 
 is within the discretion of the court. The correct 
 practice, when the amendments are important, is to 
 file a new and amended pleading, which should state 
 
 ^Post, sec. 116. 
 10 
 
146 EQUITY PROCBDUEE. 
 
 only so much of the original pleading as may be 
 necessary to introduce the new matter, and the two 
 are considered as one proceeding.* But amendment 
 by interlineation or erasure is frequently allowed for 
 convenience, especially in small matters.^ Granting 
 or refusal of leave to amend isi within the discretion 
 of the court, not reviewable on appeal.' The exer- 
 cise of this discretion must depend largely upon 
 circumstances, greater caution being necessary at a 
 late stage of the litigation, or when serious incon- 
 venience or expense would result to the other side. 
 It is the duty of the court to see that the pleadings 
 are put in such form that the substantial merits are 
 reached.* When an amendment is allowed, new 
 pleadings or proofs shall not be necessary, even 
 where any of the parties are non sui juris or non- 
 resident, unless required by the court, or by new 
 parties introduced. ° 
 
 § 114. Atuendtuent of bill. If a demurrer or plea 
 be allowed, or if there be matter in an. answer 
 
 '"Wagoner, 26 Atl. Bep. 284, 77 Md. — ; Alex. Ch. Pr. 110. 
 
 "Scarlett vs. Academy of Music, 43 Md. 203. 
 
 estate vs. Brown, 64 Md. 201; Glenn vs. Clark, 53 Md. 580, 602; 
 Calvert vs. Carter, 18 Md. 74, 107. Although the language of the 
 Code is very broad, and provides that upon application of either 
 party he shall have the right, upon payment of such costs as the 
 court may direct, to amend at any time before final decree any of 
 the pleadings or proceedings, so as to bring the merits of the case 
 fairly to trial. Md. Code, Art. 16, sec. 16. 
 
 *Hardin vs. Boyd, 113 U. S. 756; Fearey vs. Hayes, 44 N. J. 
 Eq. 426. 
 
 =Art. 16, sec. 17. 
 
PRACTICE. 147 
 
 requiring a reply (no special replication being now 
 permitted), in either case the bill may be suitably 
 amended, leave of court being first obtained upon 
 motion of the plaintiff, and upon such terms as tha 
 court may prescribe.^ An amendment not made 
 within the time allowed shall be considered aban- 
 doned, and the cause shaUpno^esd. as if no applica-- 
 tion had been xnade.^ /l£, ,by the amendment thus 
 made, the case should be materially varied by new 
 facts, the defendant may answer anew, plead, or 
 demur to the bill as amended, within such time as 
 may be ordered after notice of the amendment made. 
 Notice may be given by service of a copy of the bill 
 as amended upon the defendant or his solicitor, or it 
 may be by subpoena. The mode of proceeding in 
 default of answer to the matter of the amendment 
 shall be the same as that in default of answer to the 
 original bill; and the proceeding on answer, plea or 
 demurrer, filed to the amended bill, shall be the 
 same as that on similar defences to an original bill.' 
 If a case be set for preliminary hearing by the 
 plaintiff upon the defendant's objection in his an- 
 swer for want of parties to the bill, and, upon 
 hearing, the objection be allowed, the plaintiff may 
 amend by adding parties upon paying the cost of 
 amendment.^ But he may be deprived of the right 
 to amend by failing so to set the case for preliminary 
 
 'Art. 16, sees. 139, 149. 
 'Ibid. sec. 150. 
 'Art. 16, sec. 150. 
 *Art. 16, sec. 163. 
 
148 EQUITY PEOCBDUEE. 
 
 hearing, and by taking the risk of the objection 
 being allowed at final hearing.^ Parties may be 
 added on short petition and summons without formal 
 amended bill.^ An amendment to a bill will rarely 
 be permitted at an advanced stage when its effect is 
 to present substantially a new case.' New matter 
 arising since the filing of the bill should not gener- 
 ally be added to it by amendment, but should be 
 introduced by a supplemental bill,* unless the new 
 matter has occurred before answer OT other defence, 
 or unless it be some formal act necessary to perfect 
 an inchoate right, such as the obtaining probate of 
 a will or letters of administration. The introduction, 
 however, of such new matter irregularly by amended 
 instead of by supplemental bill, is a naatter not of 
 substance but form, and is waived by failure to 
 object at the proper time.' If the plaintiff's title has 
 been acquired subsequently to the filing of his bill, 
 he cannot get the benefit of the former proceedings 
 by an amended or supplemental bill, but must assert 
 his new title in a new bill.* 
 
 §115. Amendment of answer. Answers, particu- 
 larly when sworn to, are allowed to be amended with 
 
 lArt. Ifi, sec. 163. 
 
 21892 ch. 654. 
 
 'Hardin vs. Boyd, 113 U. S. 756, 761; Dexter vs.. Joins, 133 N. Y. 
 551; 1 Foster's Fed. Pr. sec. 163. But see Jones vs. Van Doren, 130 
 U. S. 690; Jeflery vs. Flood, 70 Md. 42. 
 
 *1 Foster's Fed. Pr. sec. 164. 
 
 'Straughan vs. Hallwood, 30 W. Va. 293. 
 
 «Bannon vs. Comegys, 69 Md. 422. 
 
PRACTICE. 149 
 
 more caution than bills, where the object is to change 
 essentially the grounds taken in the original answer. 
 When the effort is to let in new facts and defences 
 wholly dependant upon parol evidence, the reluctance 
 of the court is increased. Such amendments will 
 rarely be allowed, after the court has announced its 
 opinion, or after the taking of testimony has dis- 
 closed the weak point. A special and strong case 
 must be shown to* allow such amendments. The 
 facts constituting the proposed amendment must have 
 been recently discovered, and. the defendant must 
 have acted in good faith and with reasonable dili- 
 gence.i A defendant will rarely be allowed to re- 
 tract an admission in his original answer.- 
 
 There is nothing of special importance to be said as 
 to amendments of demurrers, pleas or replications.' 
 
 § 116. Taking oflF file. For irregularity in point of 
 form, any pleading or proceeding may, on motion, be 
 ordered off the file, or stricken out; such as a bill or 
 answer amended without leave;* an answer without 
 affidavit;' an answer filed too late, or by a person not 
 named as a defendant in the bill;^ a plea or demurrer, 
 filed without affidavit;" exceptions to sale, filed too 
 
 'Glenn va. Clark, 53 Md. 580; Thomas vs. Doab, 1 Md. 252, 323; 
 Waiiams vs. Savage, 3 Md. Ch. 418; 1 Foster's Fed. Pr. sec. 167. 
 
 ^McKim vs. Thompson, 1 Bland 150, 162. 
 
 n Foster's Fed. Pr. sec. 166. 
 
 *Thomas vs. Frederick, 7 G. & J. 369, 888; Warren vs. Twilley, 
 10 Md. 39. 
 
 ^Nesbitt vs. Dallam, 7 G. & J. 494, 510. 
 
 n Foster's Fed. Pr. sec. 152. 
 
 ■Ibid. Wagoner, 76 Md. 311. 
 
150 EQUITY PEOCEDUEB. 
 
 late.' Such irregularities may be considered as 
 waived, if the motion be not made in due time. 
 
 § 117. Rule further proceedings. This procedure 
 is the modern substitute for the English chancery 
 practice of motions to dismiss for want of prosecu- 
 tion.^ If. the plaintiff fails to file his replication 
 within fifteen days after answer filed, the defendant 
 shall be entitled to a rule further proceedings within 
 ten days after notice of such rule, and upon failure 
 to comply with such rule, the defendant shall be 
 entitled to have the bill dismissed.* But if the 
 answer is accompanied with a demurrer or plea, they 
 are to be first disposed of, and can be set for hearing 
 on motion of either side. 
 
 § 118. Security for costs. A rule security for 
 costs may be laid at any time before final decree, by 
 any defendant, against a plaintiff, non-resident at 
 the time of filing the bill, or becoming so afterward.* 
 When the fact of the non-residence does not appear 
 upon the face of the bill, the usual order to show 
 cause will be passed upon motion, and upon the 
 plaintiff's failure to give security or to show cause, 
 the bill will be dismissed.^ The form of the security 
 is by an entry upon the docket of the name of the 
 person who agrees to become security for the costs, 
 
 'White vs. Malcolm,'l5 Md. 529, 547. 
 ^Whelan vs. Cook, 29 Ma. 8. 
 ^Md. Code, Art. 16, sec. 148. 
 *Art. 16, sec. 152. 
 ^Carey's Forms Nos. 699, 700, 701. 
 
PRACTICE. 151 
 
 which is in the nature of a recognizance, to be 
 enforced by scire facias.^ Or, the rule may be com- 
 plied with by the deposit of an agreed sum, or by 
 the deposit of an approved specific security, such as 
 a certificate of city stock, or by furnishing a regular 
 bond, with collateral condition, in a penalty and with 
 sureties, approved by the court. ^ 
 
 § 119. Consolidation. Applying the maxim, — 
 "equity prevents multiplicity of suits' ' — cases pend- 
 ing at the same time, relating to the same subject- 
 matter, which can be conveniently determined by 
 one decree, may, upon the application of either party 
 be consolidated by order passed after due notice. 
 The practical object in view is economy of tiiue and 
 costs,^ and in cases of sales, to enable purchasers to 
 acquire title free of liens.* Consolidation cannot be 
 effected simply by arrangement between the several 
 plaintiffs; the defendant should have notice and 
 opportunity to show cause. ° Nor is it proper that 
 
 ^ Mayer vs. Tyson, 1 Bland 559, 565, Brantly's notes; Alex. Ch. 
 Pr. 56, note. 
 
 2See 2 Poe, PI. & Pr. sec. 81. 
 
 ^Gibbs vs. Claggett, 2 G. & J. 14, 28; Orrick vs. Boehm, 49 Md. 
 72, 98; as in creditor's bills, Scott vs. Amos, 73 Md. 80, 81; Virginia 
 vs. Uanal Co., 32 Md. 501, 551; Campbell's case, 2 Bland 209, 241; 
 Mississippi Mills vs. Colin, 150 U. S. 202; in cases of partnership ac- 
 counts. Gable vs. Williams, 59 Md. 46, 49; and in other cases, 
 Thomas vs. Brownj 67 Md. 51 2, 521; Reid vs. Stouffer, 56 Md. 236, 250. 
 
 *Appold vs. Prospect, 37 Md. 457, 466; Holthaus vs. Nicholas, 41 
 Md. 241, 256; Trustees vs. Heise, 44 Md. 453, 463; Hamilton vs. 
 Schwehr, 31 Md. 107, 117; Burger vs. Greif, 55 Md. 518, 525; Joy 
 vs. St. Louis, 138 U. S. 1. 
 
 ^Cornell vs. McCann, 37 Md. 89, 96. 
 
152 EQUITY PROCEDUEB. 
 
 suits should be consolidated whose objects are con- 
 flicting,^ nor where the effect would be to make the 
 proceeding multifarious,^ or to delay the suit first 
 brought.' From an order of consolidation, being in- 
 terlocutory, no appeal will lie, but it is open for 
 review upon appeal from the final decree.' 
 
 § 120. Blection of remedy. The maxim that 
 " equity prevents multiplicity of suits " entitles a 
 defendant in equity, who is also sued at law by the 
 same plaintiff for the same matter, after filing his 
 answer, to an order requiring' the plaintiff to elect 
 the court in which he will proceed.^ The two suits 
 must be ad idem, that is their objects must be iden- 
 tical. The application must be made promptly, or it 
 will be regarded as waived." A mortgagee naay pur- 
 sue his remedies at law and in equity at the same 
 time, being entitled, however, to but one satisfac- 
 tion.' The election is signified by writing filed in the 
 case. If the election is to proceed in equity an in- 
 junction will issue to stay the proceeding at law. If 
 the plaintiff elects to proceed at law, or fails to elect 
 within the time limited by the order, his bill will be 
 
 iDay vs. Postal, 66 Md. 354, 360. 
 
 ^Young vs. Lyon, 8 Gill. 162, 168; Gibbs vs. Claggett, 2 G. & J. 
 14, 28; but see Joy vs. St. Louis, 138 D. S. 1. 
 3 Mercantile vs. B. R. Co. 41 Fed. Rep. 8. 
 *Day vs. Postal, 66 Md. 354, 360. 
 5 Alex. Ch. Pr. 100; 1 Foster's Fed. Pr. sec. 295. 
 « Foley vs. Bitter, 34 Md. 646, 650. 
 '1 Dan. Ch. Pr. 815, 4th Am. ed. 
 
PRACTICE. 153 
 
 dismissed with costs, but without prejudice to a sub- 
 sequent suit.* 
 
 § 121. Removal. An equity case shall be removed 
 "to some other court having jurisdiction " upon sug- 
 gestion that all the judges are constitutionally dis- 
 qualified, that is to say, either from interest or from 
 consanguinity, or from having been of counsel.* 
 Equity cases are not removed upon suggestion that 
 the party cannot have a fair and impartial trial, 
 as in actions at law.* Such provision applies, how- 
 ever, to issues sent from a court of equity to be 
 tried at law.^ The laws of the United States provide 
 for the removal from state to federal courts of 
 suits in equity as well as actions at law, in certain 
 classes of cases arising under the federal constitu- 
 tion, laws or treaties, in controversies between citi- 
 zens of the same state claiming land under grants 
 of different states, and between a citizen of the state 
 in which suit is brought and a defendant, a citizen 
 of anothet" state, when it shall be made to appear 
 to the federal court that from prejudice or local 
 influence he will not be able to obtain justice in a 
 state court.* 
 
 ^Alex. Ch. Pr. 100; 1 Foster's Fed. Pr. sec. 295; Bradford vs. 
 Williams, 2 Md. Ch. 1. For the form of order, see Union Bank vs. 
 Kerr, 2 Md. Ch. 460, 467. 
 
 "Md. Const Art. IV, sees. 7, 8. 
 
 'Art. 75, sec. 97; Cooke, 41 Md. 362. 
 
 <Const. Art. IV, sec 8. 
 
 =2 Foster's Fed. Pr. sees. 383, etc.; 1 Desty's Fed. Procedure, sec. 
 96, etc.; Desty's Removal; 20 A. & E. Ency. 976, etc,; Fisk vs. Hen- 
 arie, 142 U. S. 459. 
 
154 EQUITY PEOCEDUKE. 
 
 §122. Payment into court. Payment of money 
 into bourt is directed where the defendant admits 
 money to be in his hands which he does not claim 
 as his own, and in which the applicant is interested.^ 
 It is one of the methods by which the court enforces 
 its jurisdiction of preserving property in dispute 
 pending litigation.^ The admission may be made in 
 the answer, or in any subsequent proceeding, or in 
 letters written before the suit.^ But there must be 
 an admission.* The mere relation of debtor and 
 creditor is not sulB&cient to sustain this application. 
 The relation must be a fiduciary one, and the money 
 must be impressed with a trust.^ Such an order can 
 properly be passed only after notice to, and hearing 
 of, the defendant.^ The order is strictly one of 
 precaution,- for the preservation of the fund until 
 the decree. It is not a final order, and no appeal 
 from it will lie.' In all decrees for sale, it is usual 
 to direct the trustee to bring the money into court, 
 and the law so provides.' All money or securities 
 brought into court under any order thereof shall be 
 deposited in such bank as may be agreed on by the 
 parties, or directed by the court, to the credit of the 
 
 'Ad. Eq. 350; Alex. Ch. Pr. 96; Wartman, Taney C. C. Dec. 362. 
 2 Dillon vs. Conn. Mutual, 44 Md. 386, 396. 
 
 «Porrettvs.White,31Ch.D. 52; Hampden vs. Wallis, 27 Ch. D. 251. 
 *Hollis vs. Burton, (1892) 3 Ch. 226, 235. 
 'Ad. Eq. 351; Dillon vs. Conn. Mutual, 44 Md. 386, 394.. 
 . ^Brooks vs. Dent, 4 Md. Ch. 473. 
 
 'Dillon vs. Conn. Mutual, 44 Md. 386. 
 «Md. Code, Art. 16, sec. 202. 
 
PRACTICE. 155 
 
 cause, and there remain subject to further order. 
 The original order signed by the judge, together 
 with the check of the clerk drawn payable to order, 
 shall be the bank's authority for payment.' A fieri 
 facias cannot properly be issued upon an order 
 directing money to be paid into court, and if issued 
 will be quashed.* Such an order is enforceable by 
 attachment for contempt.* Payment of money into 
 court may also be authorized upon the voluntary 
 applicatiqn of fiduciaries, plaintiffs in interpleader 
 suits, etc. Where money has been paid into court, 
 it may be ordered to be paid over to the party 
 entitled, even after the bill has been dismissed.* 
 
 ^§ 123. Investment. Money paid into court, if 
 the litigation promises to be protracted, is usually 
 invested, under the order of the court; and trustees, 
 for their own protection, are accustomed to invest 
 under such orders, obtained upon their own applica- 
 tion or upon that of parties interested. A trustee 
 may be held personally liable for any loss incurred 
 by the failure of an unauthorized investment, even 
 although made in good faith. ^ In several states the 
 
 'Kule 26, C. C. and C. C. No. 2. 
 
 ''United Lines Co. vs. Stevens, 67 Md. 156. 
 
 'Md. Code, Art. 16, sec. 151; Wartman, Taney C. C. Dec. 362, a 
 case arising after the abolition of imprisonment for debt, by the 
 Constitution of 1851; see the note appended to his opinion by the 
 Chief Justice on page 373. 
 
 *Eepublic of Liberia vs. Roye, 1 App. Ca. 139. 
 
 ^Zimmerman vs. Fraley, 70 Md. 561, 568; Sullivan vs. Howard, 
 20 Md. 191; Murray vs. Feinour, 2 Md. Ch. 418. 
 
156 EQUITY PSOCEDUEE. 
 
 character of investment securities is fixed by statute 
 or usage, with varying results.^ In Maryland there 
 is no statute or general rule upon the subject.^ The 
 orphans' court may authorize administrators and 
 guardians to "invest in bank or other incorpor- 
 ated stock, or any other good security.'" Similar 
 investments made by trustees have been justified by 
 analogy to this provision.^ Good bank stock, gov- 
 ernment securities and mortgages on real estate have 
 always been considered here proper investments.' 
 To these may be added well secured ground-rents, 
 whether irredeem^able or redeemable.' Of late years 
 the high price and consequent low rate of income 
 of all first-class securities has caused a pressure 
 upon courts to authorize investments of a more 
 questionable character, such as sub ground-rents, 
 
 'Lamar vs. Micou, 112 U. S. 452. Investment of trust funds in 
 private corporation stock or bonds is inhibited by the constitution 
 of Pennsylvania, Art. 3, sec. 22, and condemned by decisions in 
 New York and New Jersey, while in the New England and South- 
 ern states. such investments are allowed, and in Alabama trust 
 funds may be invested on "good personal security." Cases cited 
 in Lamar vs. Micou, 112 U. S. 452, 468, &c. 
 
 ''McCoy vs. Horwitz, 62 Md. 183, 189. 
 
 =Md. Code, Art. 93, sec. 237. 
 
 *Gray vs. Lynch, 8 Gill 419; McCoy vs. Horwitz, 62 Md. 183, 189. 
 The guarantee capital of life insurance companies deposited in the 
 state treasury is to be invested in securities either of the United 
 States, of the state of Maryland, or of the city of Baltimore. Md. 
 Code, Art. 23, sec. 116. 
 
 ^Lamar vs. Micou, 112 U. S. 452, 469; citing Hammond vs. Ham- 
 mond, 2 Bland 306, 413; Gray vs. Lynch, 8 Gill 408; Murray vs. 
 Feinour, 2 Md. Ch. 418. 
 
 <>Ex parte Huff, 2 Pa. St. 227. 
 
PEACTICE. 157 
 
 improved ground-rents in excess of the value of the 
 ground, mortgages upon leaseholds, railroad mort- 
 gage bonds, etc. Such investments are sometimes 
 authorized by special order of court, but not unless 
 the court is satisfied by proof of the entire safety of 
 the particular security. An investment on a junior 
 mortgage, or in mere personal security, would prob- 
 ably not be sanctioned under any circumstances. 
 Railroad bonds are subject to the risk of losing 
 priority of lien in case of a receivership. ^ Where 
 investment is authorized generally, without desig- 
 nating the security, it must be made in the 
 inscribed debt of the state of Maryland or of 
 the city of Baltimore.^ The certificate shall import 
 on its face that it is made by the trustee subject to 
 the order of the court. Every investment must be 
 reported to the court for ratification. The certificate 
 of investment is produced with the report, and on 
 approval by the court is deposited in bank.' All 
 trustees, receivers or other fiduciaries, administering 
 any trust in either of the equity courts of Baltimore, 
 are required to report, under oath, at stated times, 
 where and under what names the trust moneys are 
 deposited, and the nature and particulars of all in- 
 vestments. Such reports are referred to an auditor 
 or master for actual inspection of the securities, 
 which are to be produced, and for verification of 
 
 '^Ante, sec. 112. 
 
 ''Rule 27, C. C. and C. C. No. 2. 
 
158 EQUITY PEOCEDUEB. 
 
 • 
 
 deposits. On the first day of April in e^ch year the 
 names of all fiduciaries failing to comply with this 
 rule are to be reported for removal at the discretion 
 of the court.^ 
 
 Where the instrument creating the trust directs 
 the mode of investment and designates the Securities, 
 the trustee is bound to follow these directions, and 
 in general the court will not authorize any departure 
 from them.^ 
 
 ' § 124 Contempt. The maxim — aequitas agit in 
 personam — pointed originally to personal coercion as 
 the executive process of the Court of Chancery. 
 Attachment for contempt was the mode of com- 
 pelling appearance and discovery, and of enforcing 
 all orders and decrees, until altered, as already shown 
 by legislation.^ Historically, it is easy to trace this 
 procedure to the usage of the English ecclesiastical 
 courts.^ Established at an early day in the Court of 
 Chancery, it was, in some of its features, derived 
 from thence to the English courts of common law.'' 
 Irrespective of historical antecedents, the doctrine 
 has long been firmly settled that the power is inher- 
 ent in all superior courts to punish for contempt, 
 either of disorder or of disobedience.* This is a 
 
 iRule 31, C. C. and C. C. No. 2. 
 
 ^2 Pom. Eq. Jur. sec. 1073; Abell vs. Abell, 75 Md. 44, 64; Zim- 
 merman vs. Fraley, 70 Md. 561; Barney vs. Saunders, 16 How. 535. 
 
 ^Anie, sees. 48, 83. 
 
 *Anie, sec. 7. 
 
 HBl. Com. 287, 288. 
 
 •^U. S. vs. Hudson, 7 Cranch 34; Anderson vs. Dunn, 6 Wheat, 
 204, 227; ex parte Robinson, 19 Wall. 505, 510; ex parU Maulsby, 13 
 
PRACTICE. 159 
 
 power anterior to and independent of legislation, but 
 it has been defined and regulated as to the federal 
 courts by an act of Congress, substantially copied by 
 state enactments.' ' The provision is as follows: 
 "The power of the several courts of this state to ' 
 issue attachments and inflict summary punishment 
 for contempt of court, shall not be construed to 
 extend to any cases except the misbehavior of any 
 person or persons m the presence of the said courts, 
 or so near thereto as to obstruct the administration 
 of justice, or the misbehavior of any of the officers 
 of the said courts in their official transactions; or 
 the disobedience or resistance by any officer of the 
 said courts, party, juror, witness, or any other person 
 or persons to any lawful writ, process, order, rule, 
 decree or command of the said courts."^ 
 
 If a direct contempt be committed in the immedi- 
 ate presence of the court, no attachment is necessary, 
 and no proof is required. Punishment by fine or 
 imprisonment, or both, in the discretion of the 
 court, may be summarily inflicted,' For contempt 
 peculiar to courts of equity, provision is made as 
 follows: "In order to enforce obedience to the pro- 
 cess, rules and orders of the courts of equity, in all 
 cases where any party or person shall be in contempt, 
 for disobedience, non-performance or non-observance 
 
 Md. 635; 3 A. & E. Ency. 780; 4 Bl. Com. 284; Sto. Const, sec. 1774; 
 Bac. Abr. Courts, E. 
 
 'U. S. Rev. St. sec. 725; Md. Code, Art. 26, sec. 4. 
 
 ^Md. Code, Art. 26, sec. 4. 
 
 H Bl. Com. 286, 287; exparU Terry, 128 U. S. 289. 
 
160 EQUITY PEOCEDUKB. 
 
 of any process, rule or order of the court, or for any- 
 other matter or things whatsoever, whereby or 
 wherein a contempt, according to the rules, law, 
 practice or course of the said courts may be incurred, 
 such party or person shall, for every,such contempt, 
 and before he shall be released or discharged from 
 the same, pay to the clerk of the court, (to be paid 
 by him at the end of every six months to the treas- 
 urer, for the use of the state,) a sum not exceeding 
 twenty dollars, as a fine for the purgation of every 
 such contempt; and the said party or person being 
 in court upon any process of contempt or otherwise, 
 upon the order of the court, shall stand committed 
 and remain in close custody until the said process, 
 rule or order shall be fully performed, obeyed and 
 fulfilled, and until the said fine or fines for such con- 
 tempt imposed by the said court, and the* costs shall 
 be fully paid."i 
 
 When the order disobeyed is an order for alimony, 
 for the payment of money into court, or the like, it 
 is not usual to order the writ of attachmefiit until 
 after notice of an order nisi, and an opportunity to 
 show cause.^ When the contempt is by an officer of 
 the court, by a witness, and in some cases by a party, 
 the attachment may be issued forthwith." But there 
 
 'Md. Code, Art. 16, sec. 151. 
 ' ^Wartman, Taney G. C. Dec. 362, 368; 1 Foster's Fed. Pr. sec. 342; 
 Gordon, 95 Cal. 374. 
 
 ''Sheriff, Art. 87, sees. 16-19; trustee; Carey's Forms, No. 811; 
 witness. Art. 16, sec. 232; defendant, refusing to appear or answer; 
 Art. 16, sees. 172, 173, 174; or failing to perform decree or order; 
 Art. 16, sees. 168, 169; or violating injunction; Art. 16, sec. 63. 
 
PRACTICE. 181 
 
 can be no commitment for non-payment of a money 
 decree or order.^ And the state law in this respect 
 is followed by the federal courts, except in special 
 cases of officers of the court, purchasers at judicial 
 sales and costs in the Supreme Court.^ A party ar- 
 rested under an attachment is entitled to an imme- 
 diate hearing, or to be released on bail until it can be 
 had, and if he purges his contempt, he is discharged, 
 sometimes paying the costs of the attachment, and 
 in other cases at the cost of the party complaining.* 
 The question of contempt or not does not so 
 much depend upon the intent as upon the character 
 of the act. Disobedience is itself contempt, unless 
 sufficient excuse be shown. ^ Until purged of his 
 contempt, the party is not entitled to be heard on 
 any motion or to proceed in any other way.^ When 
 a court commits a party for contempt, its adjudica- 
 tion is a conviction and its commitment in conse- 
 quence is execution. No appeal lies, but the party 
 may be discharged on habeas corpus if the court had 
 no jurisdiction, or if obedience to the court's pjpocess 
 has become impossible.^ A distinction has been 
 
 'Art. 16, sec. 168. 
 
 n Foster's Fed. Pr. sec. 341; 2 IMd. sec. 370; U. S. Eev. St. sec. 990. 
 
 ^Alex. Ch. Pr. 23, 25. Art. 16, sec. 65. 
 
 *Wartman, Taney C. C. Dec. 362, 370. 
 
 'Gilbert vs. Arnold, 30 Md. 29, 35; Wartman, Taney C. C. Dec. 
 362,368. 
 
 'Ex parte Maulsby, 13 Md. 625; Hayes vs. Fischer, 102 U. S. 121; 
 Ex parte Fisk, 113 U. 8. 713; Ex parU Terry, 128 U. 8. 289; Ex parte 
 8avin, 131 U. 8. 267; Ex parU Cuddy, 131 U. 8. 280; Stevens vs. Ful- 
 ler, 136 U. 8. 468; 2 Foster's Fed. Pr. sec. 366. 
 11 
 
162 EQUITY PROCBDTJKE. 
 
 taken between proceedings for contempt to vindicate 
 public justice, and for the mere enforcement of a 
 private right.^ When for the enforcement only of a 
 private right the sentence has been held appealable, 
 and the state of mind of the party towards the 
 court is immaterial.^ Disobedience of such an order 
 is not excused by a disclaimer of intentional disre- 
 spect to the court.' 
 
 § 125. Ne Bxeat. The writ ne exeat regno issued 
 in England to prevent a defendant from leaving the 
 realm without giving security, at the instance of a 
 plaintiff having an equitable claim, or a claim for 
 alimony. The proceeding was an arrest in the 
 nature of equitable bail, and the equitable demand 
 must have been actually payable and certain, not 
 contingent or unliquidated.* Prior to the abolition 
 of imprisonment for debt by the Maryland Con- 
 stitution of 1851, the writ had been repeatedly re- 
 
 'Com. vs. Perkins, 124 Pa. 48; State vs. Irwin, 30 W. Va. 410. 
 
 ^Dodd vs. Una, 40 N. J. Eq. 714, 719. 
 
 ^Thompson vs. E. E. Co., 48 N. J. Eq. 105. 
 
 *2 Sto. Eg. Jur. sec. 1474; Bisph. Eq. gee. 581; 16 A. & E. Ency. 
 373; Beames on Ne Exeat; Alex. Ch. Pr. 94. In some of these works 
 there are learned inquiries into the antiquity of the process, but in 
 none of them is there any mention of the case of Julius Caesar. 
 "The government of Spain was allotted Caesar after his praetorship, , 
 but his circumstances were so embarrassed, and his creditors so 
 importunate, when preparing for his departure, that he was com- 
 pelled to apply to Crassus, the richest man in Borne. Crassus, there- 
 upon, became his security for eight hundred and thirty talents, 
 which procured him liberty to set out for his province." Plutarch's 
 Lives, (Harper's ed.) 499. 
 
PRACTICE. 163 
 
 cognized as available in this state.' Since that date 
 the traces of its survival are few and' inconclusive,^ 
 and it has been made a question whether a ne exeat 
 can now be validly issued in Maryland for any pur- 
 pose.^ It is equally unsettled whether the writ can 
 now issue from a federal court held in a state which 
 has abolished imprisonment for debt* In a federal 
 equity suit arising in Ehode Island for the cor- 
 rection of a mistake in a ne exeat bond, no notice 
 appears to have been taken of this question, and the 
 validity of the ne exeat proceeding was assumed 
 throughout.^ Decisions of state courts upon the 
 subject are conflicting, some holding that the writ 
 ceased with imprisonment for debt,^ and others 
 
 'Somerville vs. Johnson, 1 H. & McH. 348; Cox vs. Scott, 5 H. & 
 J. 384; Johnson vs. Clendenin, 5 G. & J. 463; Bryson vs. Petty, 1 
 Bland 182, note; Sloss vs. M'llvane, 2 Bland 72, note; Bayly, 2 Md. 
 Ch. 326; Feigley, 7 Md. 537,540. 
 
 *The writ is said to have been issued by the Circuit Court for 
 Baltimore county, in a case of alimony, Barroll's Ch. Pr. 166. It 
 was issued by the late Judge Miller on the circuit, against an 
 absconding defendant in possession of securities obtained by the 
 fraudulent abuse of confidence. Todd vs. Grove, 33 Md. 188, 201. 
 See the forms used in this case, Carey's Forms Nos. 695, 696, 697. 
 
 'Barroll, Chan. Pr. 164; Barroll, Md. Eq. 216. Mr. Barroll is 
 correct in saying that a ne exeat cannot now be used to enforce a 
 "mere money demand," but his argument that alimony is "as much 
 a debt as a decree in any other cause for the payment of money," 
 is not sustained by authority. Ante, sec. 84. 
 
 *1 Foster's Fed. Pr. sec. 261; 2 Ibid. sec. 370; U. S. Rev. St. sec. 
 990; 24 Am. Law Review 535. 
 
 ^Griswold vs. Hazard, 141 U. S. 260 (1890.) 
 
 «Cable vs. Alvord, 27 Oh. St. 654; ex parte Harken 49 Cal. 465. 
 
164 EQUITY PROCEDURE. 
 
 the contrary.* In Maryland the proceeding has 
 been incidentally recognized," but no direct adjud- 
 ication of the controverted point referred to has 
 as yet been made. There would at least be 
 arguable ground for the contention that a defendant 
 attempting to evade or anticipate by flight a decree 
 or order enforceable by attachment for contempt, such 
 as for the payment of alimony,' or for the payment 
 of money into court to the credit of a cause,* perhaps 
 an assignee with knowledge of an injunction re- 
 straining the transfer,^ would upon proper allega- 
 tions on oath be detained by the writ of ne exeat 
 until he should give bond not to go beyond the 
 jurisdiction of the court without its leave. 
 
 § 126. Production of books and papers. Original 
 books, writings pr papers, or copies certified by a 
 justice of the peace of all such parts thereof as con- 
 tain evidence pertinent to th'e matters in dispute, 
 may be ordered to be produced on the application of 
 either party, to be used as evidence, the court being 
 satisfied on aflBdavit of their materiality and neces- 
 sity as testimony. On failure to comply, the bill may 
 be taken pro confesso and the case proceeded with 
 
 'Dean vs. Smith, 23 Wise. 483, 99 Am. Dec. 198; Brown vs. Haff, 
 5 Paige 235, 28 Am. Dec. 425, cited 16 A. & E. Ency. 374, 375. Scg 
 Green's PI. & Pr. under the Codes, 537. 
 
 2Todd vs. Grove, 33 Md. 188, 201. 
 
 'Ante, sec. 84. 
 
 *Ante, sec. 122. 
 
 =Md. Code, Art. 16, sec. 64. 
 
PRACTICE. 165 
 
 ex parted The application may be by petition, as 
 well as by bill. The power is to be exerted with 
 caution, the existence of the writings called for must 
 be shown, as well as their possession or control by 
 the party. They must be designated with reasonable 
 certainty, and the facts to be proved by them must 
 be stated, so that their relevancy may appear. The 
 party requiring their production must show his inter- 
 est in them. If they relate solely to the case or de- 
 fence of the opposite party, or merely contain ac- 
 counts or entries made for his own security, their 
 production cannot be required. If separate books of 
 the transaction were kept the originals must be pro- 
 duced; if mingled with other matters, the order 
 should be in the alternative to produce the original 
 books, or certified copies of parts of their contents.^ 
 
 § 127. Arbitration. By virtue of the general 
 powers of a court of equity, a pending case may, by 
 consent of parties, be referred to arbitration.' " On 
 
 ^Md. Code, Art. 16, sees. 24, 2&; Carey's Forms, Nos. 654, 655, 656. 
 
 ^Eschbach vs. Lightner, 31 Md. 528. This provision is, in terms, 
 made available in aid of actions at law in the nature of discovery, 
 but is never used for that purpose, there being provided a more 
 convenient remedy. Art. 75, sec. 94. 
 
 'Alex. Ch. Pr. 99; Alex. British Stat. 615-632; Gardner vs. Dick, 
 2 Bland 276, note h ; Dorsey, 11 G. & J. 299; Calvert vs. Carter, 6 
 Md. 135. The statute upon the subject, although general in terms, 
 has been held to relate only to common law cases. 1778 Ch. 21, 
 sec. 8; Md. Code, Art. 75, sec. 46; Phillips vs. Shipley, 1 Bland 516. 
 The statute 9 and 10 William III, c 15, does not apply to suits pend- 
 ing or references by rule of court. Shriver vs. State, 9 G. & J. 1 ; 
 Alex. Brit. Stat. 618. 
 
166 EQUITY PEOCEDURE. 
 
 motion, a decree will be passed on any complete and 
 final award made by the person to whom a cause has 
 been referred by rule or order of court, provided the 
 said award shall have been filed and docketed, and 
 shall have remained in court four days without ex- 
 ceptions, and a copy of said award shall have been 
 served on the adverse party or his counsel, at least 
 four days before said motion shall be made."' It is 
 the duty of arbitrators to give notice of the time and 
 place of meeting to the parties or their solicitors; but 
 the fact need not be stated in the award. ^ An award 
 may be set aside, not only for want of notice, but for 
 going beyond the terms of submission or reference. 
 If an award is divisible, one part may be void as not 
 within the submission, and the other good.' An 
 award may be set aside for uncertainty,* or for 
 assigning erroneous reasons in point of law,^ but not 
 for erroneous judgment upon facts.* An award may 
 also be set aside for misconduct of arbitrators, or 
 other charges to be sustained by evidence.' When 
 exceptions to an award allege matter not apparent on 
 its face, they should be verified by affidavit, and 
 leave will then be given to take testimony, after 
 which the exceptions will be set for hearing, on mo- 
 
 iRule 21 C. C. and C. C. No. 2. 
 
 ^Rigden vs. Martin, 6 H. & J. 406; Emery vs. Owings, 7 Gill, 488. 
 
 'Ebert, 5 Md. 353. 
 
 *Dorsey, 11 G. & J. 299. 
 
 ^State vs. Williams, 9 Gill 175. 
 
 «Cromwell vs. Owings, 6 H. & J. 10; Ebert, 5 Md. 353. 
 
 'Cromwell vs. Owings, 6 H. & J. 10. 
 
PRACTICE. 167 
 
 tion of either side. If the exceptions are overruled, 
 a decree will be passed in conformity with the 
 award. If allowed, the award will be set aside, and 
 the cause may be remanded to the same or to another 
 arbitrator, or it may be re-instated and proceeded 
 with as a cause regularly in court.* Unless other- 
 wise provided for in the submission, when there is a 
 plurality of arbitrators, the award must be unan- 
 imous, and when they disagree, the reference is at 
 an end, unless renewed by consent.^ To prevent an 
 award from being set aside by reason of interest on 
 the part of an arbitrator, it must affirmatively appear 
 that the fact of such interest was known to the 
 objecting party before the award was signed, and 
 was waived or acquiesced in.* Exceptions to an 
 award are analogous to a motion in arrest of judg- 
 ment,^ bat filing a bill to vacate an award is not 
 analogous to an appeal from a decree.^ 
 
 § 128. Issues— -jury trial. A court of equity has 
 full power to decide every question of fact arising 
 in the case over which it has jurisdiction. Framing 
 issues of fact and sending them to a court of law to 
 be tried by a jury is not a necessary, nor in this 
 state, a usual incident to an equity suit. It is not in 
 general a matter of right, and as an exercise of 
 
 'Alex. Ch. Pr. 99. 
 
 "Harryman, 43 Md. 140. 
 
 ^Baltimore & Ohio R. E. Co. vs. Canton Co., 70 Md. 405. 
 
 ^Grove vs. Swartz, 45 Md. 228. 
 
 'Baltimore & Ohio K. R. Co. vs. Canton Co., 70 Md. 405, 417. 
 
168 EQUITY PBOCBDUKB. 
 
 discretion, is allowed only where the proof before the 
 judge creates doubt by reason of conflict, doubtful 
 credibility of witnesses, or where, from a mass of 
 circumstances, it may be difficult to draw a proper 
 conclusion. It is never allowed as a substitute for 
 the failure of proof, or for omitted evidence. When 
 resorted to, it is only as a means of informing the 
 conscience of the court. The verdict is advisory 
 only, and not binding upon the court. ^ The former 
 English practice of invariably directing an issue to 
 try the validity of a will as against the heir at law 
 is not recognized in Maryland.^ 
 
 There are some cases, however, in which the sending 
 of an issue is a matter of right in this state. One is 
 where the plaintiff's debt, not reduced to judgment, 
 is disputed in a creditor's bill to vacate a fraudulent 
 deed or contract.' The verdict in such case, if not 
 conclusive, is entitled to great weight, and should not 
 be disregarded upon a mere doubt.'' So also, where 
 
 iChase vs. Winans, 59 Md. 475; Watt vs. Starke, 101 U. S. 247; 
 Wilson vs. Kiddie, 123 U. S. 608; Idaho Co. vs. Bradbury, 132 U. S. 
 509; Brown vs. Buck, 75 Micli. 274; 3 Bl. Com. 452. 
 
 ^Chase vs. Winans, 59 Md. 475, 480. Such an issue, when directed, 
 must be tried in the county where the will is recorded. Md. Code 
 Art. 93, sec. 339. Other cases in which issues were commonly 
 ordered were those involving a question of forgery, and cases where 
 a sworn answer was controverted by a single witness with corrobo- 
 rating circumstances. 1 Foster's Fed. Pr. sec. 301. Issues of fraud 
 are said to be eminently suitable for such reference. Goodman vs. 
 Wineland, 61 Md. 449, 454. 
 
 'Md. Code, Art. 16, sec. 46. The order in such case is passed 
 upon application of any party. 
 
 ^Goodman vs. Wineland, 61 Md. 449, 454. 
 
PRACTICE. 169 
 
 property is attached in execution of a decree, and 
 any party to the attachment prays a jury triEi,! before 
 the attachment case is determined by the equity 
 court, such attachment proceedings shall be trans- 
 mitted to a court of law, to be tried as in cases of 
 attachment on judgment.' And likewise, where a 
 bill is filed by a judgment creditor of an insolvent 
 corporation to enforce payment from persons indebted 
 to the corporation, any of the defendants may pray 
 a trial at law of any issue of fact, which issue shall 
 be sent to a court of law for trial.^ A similar pro- 
 vision exists respecting suits for declaratory decrees 
 involving questions as to which parties may have 
 the constitutional right to a jury trial, and in 
 such cases the order granting or denying issues 
 shall be subject to appeal.' 
 
 In other cases, the application is not in order 
 until after the testimony is taken. ^ The old 
 English practice of making up feigned issues 
 upon a fictitious wager,* is obsolete, and the 
 issues, if not agreed upon by counsel, are settled 
 by the court, which also directs the position of 
 the litigants, as plaintiffs or defendants. Each 
 issue should be some single, certain and material 
 point, which cannot be aflBrmed or denied without 
 finding all other facts necessary to the conclusion, 
 
 iMd. Code, Art. 9, sec. 28. 
 
 ^IWd. Art. 23, sec. 300. 
 
 ^Ihid. Art. 16, sec. 30, amended by 1890, ch. 64. 
 
 *Cha8e ve. Winans, 59 Md. 475; 1 Foster's Fed. Pr. sec. 303. 
 
 53 Bl. Com. 452. 
 
170 EQUITY PEOCEDUEE. 
 
 such as "devisavit vel non," "was the will obtained 
 by fraud," or the like. Such issues may involve law 
 and fact, and where no objection to the forna of the 
 issues is interposed before trial, the objection will not 
 be available on appeal. The position of parties as 
 plaintiff and defendant depends upon the burden of 
 proof .^ After the issues are sent to the law court, 
 the case may still be removed to another court for 
 trial upon sworn suggestion that the party cannot 
 have a fair and impartial trial." Upon the trial, 
 exceptions may be taken to any opinion given by 
 the law court, and appeal had thereon. ' In case the 
 jury shall agree, the verdict, as already stated, is 
 not binding upon the equity court, nor is it even 
 conclusive upon the defeated party, who has a right 
 to take further testimony in support of his case, 
 notwithstanding the court, upon a motion for a new 
 trial, refuses to disturb the verdict." From the 
 inconvenience, delay and expense incident to this 
 procedure, and the inconclusive character of the 
 result, it has long ceased to be familiar practice in 
 this state.* Questions of testamentary capacity, and 
 
 iBarth vs. Rosenfeld, 36 Md. 604. 
 
 -Md. Code, Art. 75, sec. 97. 
 
 ^Art. 5, sec. 5. 
 
 *Barth vs. Eosenfeld, 36 Md. 604. 618, citing 2 Sto. Eq. Jur. sec. 
 1479, a. A statute giving finality to verdicts on issues of fact in 
 equity proceedings, has been held unconstitutional, upon the 
 ground that the right to have equitable controversies dealt with by 
 equitable methods is as sacred as the right of trial by jury. Brown 
 vs. Buck, 75 Mich. 274. 
 
 'The same observation applies to the local provision for summon- 
 ing a jury in the equity courts of Baltimore City, P. L. L. Art. 4, 
 
PEACTICB. 171 
 
 of fraud and undue influence in obtaining wills, and 
 the like, are commonly tried upon issues sent from 
 the orphans' court, upon the requirement of either 
 party.' 
 
 Where the jurisdiction of equity is extended by 
 statute to a case in which the right of trial by jury 
 exists at common law, the sending of issues, ordi- 
 narily discretionary, is presumed to be imperative.^ 
 
 sec. 174, 1890 ch. 64. Upon the trial by such jury no exceptions 
 can be taken to the rulings of the law court, and the verdict is not 
 conclusive. Barth vs. Bosenfeld, 36 Md. 604. The power given to 
 an equity court, upon occasion, to summon a jury, cannot be 
 regarded as the equivalent of the constitutional right of trial by 
 jury. Gates vs. Allen, 149 U. S. 459. 
 
 'Md. Code, Art. 93, sec. 240, 250; Connelly vs. Beall, 77 Md. 116. 
 
 ^Wolverton vs. Taylor, 43 111. App. 424, 428; Md. Code, Art. 16, 
 sec. 30, 1890, ch. 64. 
 
91wiDfcai €mitv^ 
 
 ^avt U. 
 
 (Bauitv 3Itir()SptuDence. 
 
 Wefinition anD Maxims. 
 
OHAPTEE YII. 
 
 EQUITY JURISPRUDENCE— ITS GENESIS AND EVOLUTION. 
 DEFINITION. 
 
 129. Genesis of equity. 
 
 130. Soarces of equity. 
 
 131. " Equity Vin literature. 
 
 132. Divine law. 
 
 133. Roman law. 
 
 134. Jus prsetorium. ^ 
 
 135. Primitive equity. 
 
 136. Modern equity. 
 
 187. Distinction between law and equity. Fusion. 
 
 138. Definitions that do not define. 
 
 139. An ideal definition. 
 
 140. Blackstone's dictum. 
 
 141. Faulty definitions accounted for. 
 
 142. A definition that defines. 
 
 143. A working definition; 
 
 § 129. Genesis of equity.' Research into the 
 origin of institutions, when pressed back to the 
 initial stage from which all development issues, 
 gropes in the twilight of a strange and rudimentary 
 condition, and is sometimes lost in myth.' It is so 
 
 n Bl. Com. 62, 92; 2 ibid. 159; 3 ibid. 46-55, 426-455; 4 ibid. 430; 1 
 Kent Com. 489; 1 Pom. Eq. Jur. Intro.; 1 Sto. Eq. Jur. ch. 1, 2; 1 
 Spence Eq. Jurisd.; Adams' Eq. Intro.; Haynes' Outlines, I; Bisp. 
 Pr. Eq. ch. 1, 2. 
 
 ^"All absolute beginning lies beyond the reach of our mental 
 conceptions, which comprehend nothing beyond development and 
 progress." Nieb. Rome, 1, 55. 
 
176 EQUITY JUEISPEUDENGE. 
 
 with the origin of that supplementary system of 
 English law called equity jurisprudence or juridical 
 equity.* For over a thousand years the succession 
 of English chancellors who are responsible for its 
 establishment, may be traced back to a legendary 
 saint .^ Three centuries later, the norm of primitive 
 equity is first distinctly disclosed in a rude couplet, 
 which sums up the judicial career of Thomas a 
 Becket, another saint, and a martyr.* Coming down 
 two centuries more, we are told that the "foundation 
 of equity ' ' was laid by Parnynge, the first lawyer 
 who held the office of chancellor, A. D. 1343. Again 
 we learn that the same "foundation" was laid by 
 John De Waltham, A. D. 1386, by his invention of 
 the writ of subpoena, when master of the rolls. Still 
 later, we are informed that some have ascribed the 
 "origin of equity jurisdiction" to the chancellorship 
 of Cardinal Beaufort, in the reign of Henry V, while 
 others assign that honor to Cardinal Wolsey, in the 
 reign of Henry VIII.* By this time, it might be 
 reasonably supposed that the real "founder" had 
 been found, and we are therefore inclined to be 
 somewhat surprised at the information we are next 
 to receive, that Lord Chancellor EUesmere, in the 
 
 ^The term equity jurisprudence is commonly, although not neces- 
 sarily, used in contradistinction to equity procedure. The broader 
 term juridical equity includes both. 
 ^A. D. 836, Legend of St. Swithin, Camp. Lives, Chan. 1, 34. 
 'Hie est qiii leges regni caneellat iniquas 
 
 Ei mandata pii prineipis aequa facit. 
 3 Bl. Com. 50, note; 1 Spence Eq. 335; Clark's Prac. Jur. 374. 
 *Camp. Lives, Chan. I, 233, 273, 312, 434. 
 
DEFINITION. 177 
 
 reign of Elizabeth, was considered as the ' ' earliest 
 founder of our system of equity."^ After reposing 
 upon that assurance for nearly a century, the dis- 
 covery is yet to be made that in .the reign of Charles 
 II, we at length find the real "father of equity" in 
 Sir Heneage Finch, Lord Chancellor Nottingham.^ 
 
 § 130. Sources of equity. In all this apparent 
 contradiction and real obscurity, there is no occasion 
 for surprise. The "absolute beginning" eludes our 
 grasp. The successive stages of growth are all that 
 we discover. Each new departure stands for a new 
 beginning. Without stopping to note minor and 
 subordinate steps in the march,' the first great trans- 
 formation is that from primitive to modern equity; 
 the next is the fusion of law and equity. The last 
 is a process now actually going on before our eyes. 
 For the first transition, like that from dawn to 
 daylight, no precise date can be definitely assigned. 
 For all practical purposes, a slack line may be drawn 
 A. D. 1630, when Cardinal Wolsey was succeeded in 
 the office of chancellor by Sir Thomas More.^ Until 
 
 'Camp. Lives, Chan. II, 272. 
 
 ^iWd. IV,190. 
 
 ^It has already been shown that down to the year 1616 the 
 history of the development of equity was mainly the history of its 
 struggle for jurisdiction against the opposition of parliament and 
 of the courts of common law, in which the chancellors, uniformly 
 supported by the crown, finally prevailed. Ante, sec. 10. 
 
 *More was wiser than his generation. He was of the opinion 
 that law and equity might be beneficially administered by the 
 same tribunal, and endeavored, though without success, to induce 
 12 
 
17S EQUITY JURISPRUDENCE. 
 
 that date, there had been an almost (not quite) 
 uninterrupted succession of ecclesiastics. After it, 
 the office was held, with unimportant exceptions, by- 
 lawyers, generally of eminence in the profession. 
 Beginning with the primitive conception of equity 
 as originally administered in England by the clerical 
 chancellors, (A. D. 836P-1530), two distinct sources 
 are to be independently traced, to the divine law of 
 morality, upon the one hand, and to the Roman civil 
 law on the other.* 
 
 §131. "Bqtiity" in literature. Before making 
 this inquiry, it will be found instructive to determine 
 the exact place and value in standard English litera- 
 ture of the word "equity" itself. For the sake of 
 brevity, it fortunately happens that there may be 
 gathered from the English bible and Shakespeare all 
 that is necessary for that purpose. In the Old Tes- 
 tament Scriptures'" the word rendered in the standard 
 English version, "equity" occurs in close connection 
 {noscitur a sociis) with such terms as " righteous- 
 ness," "justice," "judgment," "wisdom," "truth," 
 
 the common-law judges, his own father being one of them, to relax 
 the rigor of their rules to meet the justice of particular cases. 2 
 Camp. L. Ch. 38. 
 
 ^1 Pom. Eq. Jur. sec, 55. 
 
 *"A11 that is best in the ethics of the modern world, in so far as 
 it has not grown out of Greek thought or barbarian manhood, is 
 the direct development of the ethics of old Israel, There is no 
 code of legislation, ancient or modern, at once so just and so merci- 
 ful, so tender to the weak and poor, as the Jewish law." Huxley 
 in Nineteenth Cent. June, '89, page 940. 
 
DEFIX,ITION. 179 
 
 and in contest with " iniquity. "' Sometimes the 
 same word is rendered in one version " equity," and 
 in another "uprightness/" or "justice."' 
 
 Collation of texts exhibits "equity" in the Bible 
 use as a complex ethical conception, covering that 
 department of morals which inculcates absolute good 
 faith, integrity and impartiality, equality of right in 
 theory, and fairness in practice. Briefly, it stands 
 for justice in the bl-oad sense of the Roman law, — 
 jus suum cuique tribuere — jus being understood in 
 opposition to lex. In the Bible, the word "equity" 
 is invariably used In the same general sense. 
 
 With regard to the use of the term by Shakes- 
 peare, the case is notably different. Each time that 
 the word occurs, it appears with a distinctly varied im- 
 port. In one instance, equity is used in the Bible 
 sense, as the equivalent of justice: 
 
 " Foul subornation is predominant, 
 And equity exiled your highness' land."^ 
 
 In another "Connection, the reference is to juridical 
 
 or court equity: 
 
 " Thou robed man of justice, take thy place, 
 And thou, his yoke-fellow of equity, 
 Bench by his side."^ 
 
 'Ps. 98:9-99:4. Prov. 1:3-2:9-17:26. Ecc. 2:21. Isa. 11:4-59:14. 
 Mic. 3:9. Mai. 2:6. . 
 
 2Pa. 111:8. 
 
 sPs. 89:14. 
 
 *2 Henry VI, Act III, scene 1. Compare Isa. 59:14,—" Truth is 
 fallen in the street and equity cannot enter." 
 
 *K. Lear, Act III, scene 6. 
 
180 EQUITY JURISPRUDENCE. 
 
 In another place, we find the term nguraiiveiy used, 
 in the still more narrow and special sense of a par- 
 ticular equitable right or claim: 
 
 " For this down-trodden equity we tread 
 In warlike march these greens before your town."? 
 
 The remaining instance is the comic passage in 
 
 which' Falstaff exclaims : 
 
 "An the Prince and Poins be not two arrant 
 cowards, there's no equity stirring. "^ 
 
 § 132. Divine law. Nothing was more natural 
 than that the learned prelates who first held the 
 great seal should have taken the Bible meaning 
 of equity as their standard, and looked to the divine 
 law of morality as the basis of their system of 
 justice. Of this the evidence is pointed and clear. 
 
 In the Year Books (temp. H. 7,) Archbishop Lord 
 Chancellor Morton is thus reported: " Well do I 
 know that every law is or of right should be 
 according to the law of God, and the law of God 
 
 'K. John, Act. II, scene 1. 
 
 ^1 K. Henry IV, Act. II, scene 2. There is no note or comment 
 upon this passage in any of the editions. At the time the play was 
 produced (1597) there was active warfare between the courts of law 
 and equity (ante, sec. 10), which is enough of itself to explain the 
 local side allusion. In addition, there was probably a "gag" at a 
 ludicrous scene then recently enacted publicly in Westminster 
 Hall, in the execution of a peculiar order of the chancellor in the 
 case of Milward vs. Weldon (1 Spence Eq. 376, note h). There may 
 also have been a personal allusion, for thB benefit of the Stratford 
 people, to the case of Shakespeare vs. Lambert, then pending in 
 chancery. (See the writer's "Falstaff and Equity," Shakespeari- 
 ana, vol. ix, 159, 195; x, 63.) 
 
DEFINITION. 181 
 
 forbids that an executor should in bad faith waste 
 all the goods of his testator, and if he does so 
 without making amends to the extent of his power, 
 he shall be damned in hell."i 
 
 So profoundly stamped was the system of primitive 
 equity with this impression, that we find the divine 
 law appealed to by the earlier lay chancellors in 
 quite as emphatic terms as by their clerical predeces- 
 sors: Ld. Chan. EllSsmere (temp. Eliz): "The law of 
 God speaks for the plaintiff. By the law of God, he 
 that builds a house ought to dwell in it, and he 
 that plants a vineyard ought to gather the grapes. 
 Deut. 28:30. And equity speaks as the law of God 
 speaks."^ 
 
 § 133. Roman civil law. At the same time it is 
 to be remembered that these learned ecclesiastics of 
 the Roman church, many of them trained canonists 
 and civilians, were quite familiar with ihe Roman 
 theory of praetorian equity, and with its eclectic ^ 
 
 H H. 7, fol. 5. 1 Spence Eq. 578. 1 Camp. Lives, 401. 
 22 Lea. Ca. in Eq. 601, Earl of Oxford's Case. 
 Thus, with true historical insight, Shakespeare introduces the 
 Archbishop of Canterbury as citing the Mosaic law in confirmation 
 of the claim of Henry V. to the crown of France, through female 
 succession: 
 
 "K. Hen. May I with right and conscience make this claim? 
 Cant. ' The sin upon my bead, dread sovereign! 
 For, in the book of Numbers is it writ 
 When the man dies, let the inheritance 
 Descend unto the daughter." ■• 
 
 K. Henry V, Act. I, scene 2. 
 
182 EQUITY JUKISPEUDBNCE. 
 
 international elements of universality, impartiality 
 and good faiths 
 
 Accordingly, the famous definition in the pandects 
 of Justinian (promulgated A. D. 533, discovered 
 1137), """as adopted as their model in mitigating, as 
 they did, some of the hardships and supplying some 
 of the imperfections of the common law. 
 
 § 134. Definition of jus prsetorium. Jus prm- 
 torium est, quod Prcetores introduxerunt, adjuvandi 
 vel supplendi, vel corrigendi, juris civilis gratia, 
 propter utilitatem puhlicam.^ 
 
 The authorship of this definition is attributed to 
 Papinian, who during a portion of the three centuries 
 and a half (A. D. 43-403;) that Britain was under 
 Koman law, presided as Praitor in the forum of 
 York.* . (temp. Sep. Sev.)* 
 
 § 135. Definition of primitive equity. Importing 
 into this definition of the civil law the two elements 
 referred to, it may be paraphrased into an approxi- 
 mately adequate conception of equity as administered 
 under the ecclesiastical chancellors. It will then 
 
 'Austin's Jurisp. 293; 1 Pom. Bq. Jur. sec. 8. 
 
 ^Dig. Lib. 1, tit. 1, 1. 7; 1 Sto. Eq. Jur. sec. 5. 
 
 'Austin on Jurisp. 303; 1 Spence Eq. 2. 
 
 Note here two great revivals in the study of civil law, consequent 
 upon two important manuscript discoveries in Italy — the discovery 
 of the Pandects above referred to A. D. 1137, at Amalfl (although 
 this has been questioned by Savigny), and the discovery by Nei- 
 buhr in 1816, at Verdna, of the Institute of Oaius. I Kent's Com. 
 538, note. 
 
DEEIJimOlT. 183 
 
 read : Equity jurisprudence was that system of jus- 
 tice founded on the ethics of the Bible and of the 
 Roman law, which was introduced by the chancellors 
 for the public convenience, to assist or supplement 
 the deficiencies and to correct the rigors of the 
 common law. 
 
 — § 136. Modern equity. For more than three cen- 
 turies (1530-1875,). the administration of equity in 
 England was in the hands of chancellors, trained in 
 the schools of the common law. It was imported 
 into America, and became a distinct part of the 
 jurisprudence of many separate states, as well as of 
 the federal Union. It has been elaborated into a 
 system "of almost infinite complexity and variety."* 
 It is scarcely necessary to state that it is with 
 modern equity, and with modern equity in its present 
 state of development, that we are practically con- 
 cerned. It is not in any crude, primitive form that 
 we are to look for the essential nature of equity, but 
 rather in its maturity. Its doctrines and rules are 
 progressive, they are refined and improved by use, 
 they accommodate themselves to changed conditions 
 of society and new methods of business and inter- 
 course, and are to be found in modern rather than 
 ancient cases.^ 
 
 iSto. Life, II, 240. Opposition to courts of chancery in the colo- 
 nies, particularly in Massachusetts and Pennsylvania, has been 
 already referred to. Ante, sec. 17. 
 
 ^KnatchbuU vs. Hallet, 13 Ch. D. 696, 710; Joy vs. St. Louis, 138 
 U. S. 1, 50. "The natural development of everything is properly 
 
184 /\ nJ EQtriTT JUKISPKUDBNCB. 
 
 § 137. Distinction between law and equity- 
 fusion. It has been said that the distinction be- 
 tween law and equity is not necessary or normal, 
 but "accidental and anomalous;"^ that it is rather a 
 matter of form and history than of substance;'' and 
 that it is substantially a mere question oi. iprocedure.^ 
 In accordance with this view, the distinction between 
 law and equity, as separate systems, was virtually 
 abrogated in New York in 1848, an example which 
 has been followed by a majority of the Western 
 states and territories, as well as by a number of the 
 older states, and notably by the English Judicature 
 Act of 1873, providing for a concurrent administra- 
 tion of law and equity in every civil case, with a 
 preference for the rules of equity whenever in conflict 
 with the rules of law.* 
 
 its end. For that which is the character of each thing when its 
 growth is fully completed, that, we say, is its true nature, as in the 
 case of a man, a horse, or a house." Aristotle, Politics, Book I, 
 ch. 2. 
 
 >Aus. Jur. 296, sees. 842, 885; Clark's Prac. Jut. 370. 
 
 ^Snell's Eq. .3, following Haynes' Outlines, 7. 
 
 23 Bl. Com. 434, 436. But see Cates vs. Allen, 149 U. S. 451, 459. 
 
 *1 Pom. Eq. sec. 40; Bisp. sec. 11; anU, sec. 16. "The main 
 object of the Judicature Act was to enable the parties to a suit to 
 obtain in that suit, and without the necessity of resorting to 
 another court, all remedies to which they are entitled in respect of 
 any legal or equitable claim or defence properly advanced by 
 them, so as to avoid a multiplicity of legal proceedings." Ind vs. 
 Emerson, 12 App. Ca. 306. It was "based upon the broad principle 
 of making forms, rules and modes of procedure subordinate to the 
 prime and paramount object of reaching the justice of the case. It 
 abolished all the old forms of action, and technical forms of pro- 
 cedure, and established a new procedure for the enforcement 
 
UEFIKITION. 185 
 
 On the other hand, the separation of law and 
 equity is still strictly observed in Maryland and in 
 several other states, as well as in the federal juris- 
 prudence of the United States.^ In New Jersey, 
 legislative interference with the ancient jurisdiction 
 of the courts is expressly prohibited by the constitu- 
 tion, and in Michigan, impliedly.^ A tendency to- 
 wards fusion begins to be observable in Maryland by 
 the important legislation of 1888, conferring equity 
 powers upon courts of law in cases of account, 
 injunction and equitable defence.'^ 
 
 Experience, under the modern reformed procedure, 
 has proved that the distinction between law and 
 equity, if theoretically unphilosophical, is, to a great 
 extent, practically tenacious, if not vital. The 
 great obstacle in the way of a complete fusion is the 
 institution of trial by jury in civil cases. So long as 
 that mode of trial prevails (and it is not at all likely 
 to be abolished), there will always be a distinction 
 between two classes of cases, one class comprising 
 
 indiscriminately of both legal and equitable rights, which is inde- 
 pendent of all the old rules of law upon the subject. Particularly, 
 it did away with all objections and defences arising out of the 
 misjoinder or non-joinder of parties." Kendall vs. Hamilton, 4 
 App. Ca. 530, .'iSl. 
 
 1 Taylor vs. State, 73 Md. 209, 222; Clayton vs. Shoemaker, 67 
 Md. 219; Hamilton vs. Conine, 28 Md. 635, 641; Smith vs. McCann, 
 24 How. 398, 403; Burns vs. Scott, 117 U. S. 582, 587; Gates -vs. 
 Allen, 149 U. S. 451, 459; Insurance Co. vs. Simpson, 43 111. App. 98. ^ 
 
 ^Smith vs. Essex, 48 N. J. Eq. 637; Brown vs. Buck, 75 Mich. 
 274. 
 
 ^Md. Code, Art. 26, sec. 9; ibid. Art. 75, sees. 116-128; ibid. Art. 
 75, sees. 83-85. 
 
186 EQUITY JURISPEUDEBrCE. 
 
 all cases to which trial by jury is adapted, and 
 another class for which it is eminently unfit; and 
 here we find at once a broad line of demarcation 
 impossible to be obliterated. Hence in England and 
 in all the code states the courts continue to speak of 
 legal and equitable principles, of legal and equitable 
 titles and estates, and of legal and equitable rights 
 and remedies, actions and defences; and the term 
 "court of equity" is still applied to every court 
 dealing with questions of an equitable nature.* 
 
 § 138. Definitions that do not define. "Equity 
 jurisprudence may properly be said to be that portion 
 of remedial justice which is exclusively administered 
 by a court of equity, as contradistinguished from 
 that portion of remedial justice which is exclusively 
 administered by a court of common law."^ Definitions 
 more or less different in form, but identical in sub- 
 stance, may be found in other standard treatises.' 
 
 iBasey vs. Gallag^her, 20 Wall. 680; Re Cawley, 42 Ch. D. 229; 
 Whitley vs. Challis, (1892) 1 Ch. 68; Foster vs. Reeves, (1892) 2 Q. B. 
 (C. A.) 255; Thomas vs. Musical Union, 121 N. Y. 45; Steinau vs. 
 Gas Co., 48 Ohio St. 324; Kitts vs. Wilson. 130 Ind. 492, 500; Ed- 
 wards vs. Wigginton, 47 Mo. App. 307, 315; Bates vs. Babcock, 95 
 Cal. 479; Reid vs. McGowan, 28 S. C. 80; Smith's Pr. Eq. 3; 1 Pom. 
 Eq. Jur. sec. 84; Bliss Co. PI. sec. 10; Green PL and Pr. Co. sec. 58, 
 1085. See Alex. Hamilton in 83d Fed. It has been found in 
 En:gland that the distinction between chancery and common-law 
 barristers, since the Judicature Act, has not only not ceased, but 
 has become more marked. 1 Law Q. Rev. 320. 
 
 n Sto. Eq. Jur. sec. 25. 
 
 "Snell's Eq. 4; Smith's Pr. Eq. 9; Bouvier, Law Diet.; 1 Pom. Eq. 
 Jur. sec. 130. 
 
DEFINITION. ^ 187 
 
 All such definitions answer very satisfactorily two 
 questions: First question — What system of justice 
 is administered in courts of equity? Answer — equity 
 jurisprudence. Second question — What is equity 
 jurisprudence? Answer — That system of justice 
 administered in courts of equity. 
 
 § 139. An ideal definition. Lord Coke, speaking 
 incidentally of equity, calls it " a just correction of 
 law in some cases,'" herein following Aristotle, 
 who defined equity as "the correction of the law 
 wherein it is defective by reason of its universality."^ 
 This may be called an ideal definition,' but it is to 
 be observed that it also contemplates law, in the 
 abstract, as an ideal system, imperfect only by 
 reason of its "universality." It fails to give an 
 adequate conception of juridical equity as adminis- 
 tered in our courts for this reason: the common 
 law of England was not an ideal system, but was, 
 and is, defective for quite other reasons besides that 
 of universality, as will be shown in detail further on. 
 
 § 140. Blackstone's dictum. It was a dictum of 
 Sir William Blackstone that every definition of 
 equity which " draws a line between the two juris- 
 
 H Inst. 79; Co. Litt. 24 b. 
 
 ^Ethic. Nicom. 5, 14; 1 Spence Eq. 326; 1 Sto. Eq. .Tur. sec. 3. 
 
 2" Who would have supposed that Aristotle would have given a 
 better definition of equity than any lord chancellor of England? 
 What was the condition of Athenian jurisprudence which enabled 
 him to draw his clear line of distinction between law and equity?" 
 Sir Edward Fry, in Law Qu. Bev. for April, 1893. 
 
188 EQUITY JUEISPEUDENCE. 
 
 dictions by setting law and equity in opposition to 
 each other will be found either totally erroneous, or 
 erroneous to a certain degree."' There is a fallacy 
 here, and it lies in the use made of the equivocal 
 expression "law." If that word is understood 
 merely as law in general, there is of course no real 
 opposition between such a conception of law and 
 what we term equity, for the former will then 
 include the latter. But that is not the sense in 
 which the learned author intended his language to 
 be taken. It clearly appears from the context that 
 the proposition is meant to be applied to the common 
 law of England. Four or five examples are spe- 
 ciously offered of exceptional cases in which equity 
 had followed the common law in all its rigor, while 
 a multitude of familiar instances to the contrary are 
 judiciously suppressed.^ The mission of Sir William 
 Blackstone as a professed champion of the common 
 law was to show its superiority to other systems, 
 especially that of Rome. The natural zeal of the 
 advocate was sometimes allowed to prevail over the 
 candor of the impartial commentator.' For the 
 refutation of the faijlacy it is unnecessary to look 
 outside the same volume, where the origin of equity 
 is traced to the " harsh or imperfect judgments of 
 the law courts, requiring an appeal to the chancellor 
 who mitigated the severity or supplied the defects 
 
 13 Bl. Com. 430. 
 
 23 Bl. Com. 430. These instances will be found cited below. 
 ^Austin, Jurisp. 463; Clark's Prac. Jur. 315; 1 Spence Eq. 418; 1 
 Pom. Kq. Jur. sec. 54. 
 
DEFINITIOIT. 189 
 
 of the judgments pronounced bv the courts of law 
 upon weighing the circumstances of the case."* The 
 obvious inconsistency between this undisputed his- 
 torical fact and the dictum which boldly denied any 
 opposition between equity and law is its own com- 
 mentary. 
 
 § 141. Faulty definitions accounted for. The 
 real trouble about definitions of equity has been, not 
 so much any inherent difficulty, as (1) a reluctance 
 frankly to admit the imperfections of the common 
 law, in which Blackstone, its avowed advocate, has 
 been too closely followed by the old-school lawyers 
 and text-writers; (2) a fallacious idea that any such 
 definition must, of necessity, attempt to describe 
 equity in its content, and compress into a single 
 sentence an epitome of its doctrines. The most 
 successful attempt yet made in this direction will be 
 found embodied in the following extract: "The 
 writer believes it is impossible to give a short- defi- 
 nition of equity jurisprudence, without either failing 
 to convey any accurate and definite knowledge, or 
 else positively misleading the student. But equity 
 jurisprudence in the specific and technical sense of 
 the term, as contradistinguished from natural, ab- 
 stract and universal equity, and from law and the 
 statutory jurisprudence of the Court of Chancery, 
 may be described to be a portion of justice or natural 
 equity, not embodied in legislative enactments or in 
 
 '3 Bl. Com. 50. 
 
190 EQUITY JUEISPEUDBNCE. 
 
 the rules of the common law, yet modified by a due 
 regard thereto, and to the complex relations and 
 convenience of an artificial state of society, and 
 administered in regard to cases where the particular 
 rights in respect whereof relief is sought come 
 within some general class of rights enforced at law, 
 or may be enforced without detriment or incon- 
 venience to the community, but where, as to such 
 particular rights, the courts of law cannot, or orig- 
 inally did not. Clearly afford any relief or adequate 
 relief, at least not without circuity of action or 
 multiplicity of suits, or cannot make such restric- 
 tions, adjustments, compensations, qualifications or 
 conditions, as may be necessary in order to take due 
 care of the rights of all who are interested in the 
 property in litigation.'" (3) And finally, the appre- 
 hension (which is correct) that any reference to the 
 principles upon which equity builds its work (natural 
 justice and public policy) will disclose no inherent 
 difference from those which ought to underlie law 
 itself. A frank recognition of the ultimate identity 
 of these common fundamental principles is of course 
 the only way out of this difficulty. 
 
 § 142. A definition that defines. "By equity is 
 meant a supplemental system of law to enforce certain 
 rights either not recognized at all, or not adequately 
 remedied by law."^ 
 
 1 Smith, (J. W.) Manual of Equity, 2. 
 
 '^Maitland's Justice and Police, 38, 39, paraphrksed. 
 
DEFINITION. 191 
 
 The above is accurate, so far as it goes, and it 
 goes far enough to impart some definite information. 
 It contains, however, no reference to the peculiar 
 character of the tribunal, and none to the distinctive 
 method upon which that tribunal works. The defi- 
 nition should, in terms, exclude trial by jury, the 
 presence or absence of which procedure is, after all, 
 the great practical difference between the two juris- 
 dictions, important in itself, and still more so in its 
 consequences.' Another distinctive feature is that 
 the jurisdiction of equity is limited to civil cases, 
 without some recognition of which no definition can 
 be complete. 
 
 The definition should also refer to the broad prin- 
 ciples of natural justice and public policy upon 
 which equity works out its results, although it is 
 true that law also professes to keep the same princi- 
 ples in view. But custom and precedent had already 
 fastened their iron grip upon the law, while yet 
 equity, untrammeled by either, or, more accurately, 
 not trammeled to the same extent, was more free to 
 follow conscience and morality. The infiuence of 
 precedent and positive law was, however, ultimately 
 felt in restraining the play of crude conscience, and 
 the interaction of these conflicting forces in mould- 
 ing the modern system of equity jurisprudence 
 should be seen reflected in the definition. The term 
 "equity," itself, moreover, should be so qualified as 
 to distinguish the technical or juridical equity that 
 
 ^Ante, sees. 22, 137. 
 
192 EQUITY JUBISPEUDENCB. 
 
 is meant to be defined, from that broad natural 
 equity (righteousness), which includes it and a great 
 deal besides. 
 
 § 143. A working definition. What the student 
 wants at this early stage is not an ideally perfect, 
 but a practical working definition, which shall serve 
 as a temporary scaffolding while he is building up a 
 fuller conception of equity for himself; after which 
 he will have no further use for it, except to refresh 
 his memory and co-ordinate his results. Experience 
 has shown that the following definition sufficiently 
 answers these purposes : 
 
 By juridical equity is meant a systematic appeal 
 for relief from a cramped administration of defective 
 laws to the disciplined conscience of a competent 
 magistrate, applying to the special circumstances of 
 defined and limited classes of civil cases the princi- 
 ples of natural justice, controlled in a measure as 
 well by considerations of public policy as by estab- 
 lished precedent, and by positive provisions of law." 
 
 Comparing the above with prior definitions,^ it 
 will be observed that avoiding reference in terms to 
 the English Court of Chancery (now a thing of the 
 past), it attempts to grasp the fundamental concep- 
 tion of juridical equity whensoever and wheresoever 
 administered as a system separate from law. It 
 involves the assumption that the idea of equity, as a 
 
 '1 Sto. Eq. sec. 25; Snell, p. 4— again following Haynes' Out- 
 lines, 7; Bisp. Pr. Eq..sec. 1. 
 
DEFINITION. 193 
 
 collateral and merely incidental branch of jurispru- 
 dence, is essentially abnormal and transient. It 
 therefore, by implication, points to the ultimate 
 transfusion of equity into the corpus juris, and 
 assimilation with it, by a radical reform of legal 
 procedure — a result which has in fact been reached 
 by legislation in England and in many states of the 
 Union. It will further be noticed that the reference 
 to the principles upon which equity proceeds equally 
 applies to law as it should be, and as it is in fact 
 claimed to be by its admirers.^ 
 
 The analysis of this definition will be found to 
 furnish of itself a sufiiciently full discussion of the 
 nature and extent of equity, and as inseparably 
 connected therewith, or necessarily involved therein, 
 of the various courts in which eqijity has been or is 
 administered, with some reference to the character- 
 istic procedure of those courts. The latter subjects 
 having been anticipated, the former will now be 
 considered as the definition is expanded. 
 
 13 Bl. Com. 434, 4 ibid. 430. 
 
 13 
 
CHAPTER VIII. 
 
 EQUITY JURISPRUDENCE. ITS NATURE AND EXTENT. 
 THE DEFINITION EXPANDED. 
 
 144. "A systematic appeal." 
 
 145. "Relief." 
 
 146. "Defective laws." 
 
 147. Primitive common law. 
 
 148. Artificial methods. 
 
 149. Formalism. 
 
 150. Fictions. 
 
 151. Feudal system. 
 
 152. Value of common law. 
 
 153. "Cramped administration." 
 
 154. Rome and'England contrasted. 
 
 155. "Disciplined conscience." 
 
 156. "Competent magistrate." 
 
 § 144. "A systematic appeal." " It (chancery) 
 was to afford relief to suitors upon circumstances of 
 hardship, fraud or trust, where the king's courts 
 allowed none. This was, in effect, an appeal from 
 the ancient customs and statutes of the realm to the 
 conscience and discretion of a single person.'" 
 
 "Appeal" here means simply habitual resort to 
 one mode of obtaining justice, over the head of 
 another found inadequate in the particular case, and 
 is characterized as systematic both as to principles 
 (maxims, doctrines and rules,) and procedure. 
 
 '2 Reeve's Hist. Com. Law 600, ch. 22 (H. VI); 3 Bl. Com. 50; 
 Willard vs. Ramsburg, 22 Md. 206, 218. 
 
DEFINITION. 195 
 
 According to Lord Eedesdale, the principles of 
 equity are fixed arid certain as those of law,» while 
 Lord Eldon, with characteristic caution, qualifies 
 with an almost.^ There is in fact some apparent 
 diversity of opinion as to the absolutely fixed and 
 bounded character of equity.^ This apparent diver- 
 sity may be explained as depending very much upon 
 the observers' standpoint. Viewing equity in its 
 primitive and rudimentary stages, it seems plastic 
 and accommodating enough to justify the most 
 liberal conception. In its modern and crystallized 
 form, its principles are sufliiciently fixed to warrant 
 at least the guarded language of Lord Eldon. 
 
 It has been seen that the distinguishing features 
 of equity procedure were borrowed from the civil 
 and canon law, and may be briefly summarized 
 as follows: Absence of jury trial; absence of 
 scientific pleading to issue; anticipation by plaintiff 
 of defendant's case; comprehensive requirements as 
 to parties; written depositions for viva voce testi- 
 mony; discovery; flexibility of form; no distinct 
 forms of action; liberality of amendment.^ 
 
 'Bond vs. Hopkins, 1 Sch. & Lef. 428-9; 1 Pom. Eq. Jur. sec. 59, 
 note. 
 
 ^Gee vs. Pritehard, 2 Swanst. 414. 
 
 'The most rigid view is that presented 3 Bl. Com. 430, 1 Kent. 
 Com. 489. The most liberal, that of Lord Chancellor Hardwicke 
 (temp. G. 2), cited in Parke's Hist, of Chancery, 501-506, criticised 
 1 Sto. Eq. sec. 18, but approved 1 Pom. Eq. sec. 60, and fully sus- 
 tained by 1 Bl. Com. 62, ibid. 92. It will be observed that Black- 
 stone is found on both aides of the question. Kent also, 1 Kent's 
 Com. 490, note d. 
 
 *Ante, sec. 22. 
 
196 EQUITY JURISPEUDBKCE. 
 
 § 145. " Relief" is a term of constant use in 
 equity, and means rather more than "remedy," its 
 legal counterpart. Since it is a fundamental principle 
 that no equitable relief will be granted where the 
 legal remedy is adequate, all equitable relief, what- 
 ever its form, must be either by mitigating the rigor, 
 or by supplementing the deficiencies of the common 
 law. Some examples of rigor are as follows : 
 
 Law did not listen to defence of payment of a 
 bond, unless there was a release under seal; nor to 
 defence of payment after the day. It treated assign- 
 ments of choses in action and assignments of expect- 
 ancies as void. It refused to recognize a beneficial 
 interest as against the mere legal title of a trustee; 
 or to vacate a fraudulent conveyance; or to reform 
 a mistaken instrument; or to relieve, against an 
 accident, such as the loss of a bond or deed; or to 
 relieve against a forfeiture, such as a mortgage; or 
 against the penalty of a bond. It refused to allow 
 set-off; or to allow suit by one co-execiitor, co-part- 
 ner, joint tenant or tenant in common against the 
 other; or to allow contribution as between joint 
 debtors. No contract was enforced unless for debt 
 certain, or by writing under seal. No remedy was 
 given for a tort, unless with violence, express or 
 implied. There was the unjust fiction of unity of 
 person between husband and wife, feme covert losing 
 all civil capacity and legal identity.* 
 
 ; 1 . a^ 
 
 «The common-law disabilities of married women were not 
 founded upon any reasonable presumption against the freedom of 
 acts supposed to be done under marital control, nor were they 
 
DEFINITIOSr. 197 
 
 The following are examples of deficiencies : Law 
 gave only damages for breach of contract, no specific 
 remedy to enforce its performance; it gave damages 
 only for an injury, no preventive process of injunc- 
 tion;^ trial of fact by jury, and technical pleading to 
 issue, fitted proceedings at law for contentious, not 
 administrative, justice. The verdict and judgment in 
 the fictitious action ©f ejectment, were not conclusive 
 upon the real parties, thus inviting unnecessary and 
 vexatious litigation. Law had no means of securing 
 property pending litigation; nor of imposing conditions 
 upon a party, such as indemnity; nor of reaching prop- 
 erty nor controlling legal proceedings beyond the jur- 
 isdiction of the state; nor of i[n.ak.va.g partition between 
 co-owners of personal property; nor of winding up 
 defunct or insolvent corporations. The common-law 
 action of account was practically useless by wager of 
 law, and other embarrassments.^ Judgments at law 
 are rigid, uniform, inflexible, always between two 
 parties or sets of parties, whereas decrees in equity 
 are plastic, multiform, capable of being so moulded 
 as to adjust and settle complicated or alternate 
 
 subject to exception in tiie light of circumstances sufficient to repel 
 such a presumption. The principle is stated by Litt. (sec. 168): "A 
 man and his wife are but one person in the law." Prom this fiction 
 were logically deduced all her disabilities as to contract and 
 property, with results so unjust that equity, in later times, through 
 the medium of trusts, enabled her to acquire separate estate, and 
 to deal with it as &feme sole. Cahill, 8 App. Ca. 425. 
 
 ^ As to the old writs of estrepement and Tie injuati vexes, see 3 Bl. 
 Com. 225-227, 234. As to other preventive writs, Co. Litt. 100 a. 
 
 ^3 Bl. Com. 348; Sm. Pr. Eq. 468-9; Bisp. sec. 481. 
 
198 EQUITY JUBISPEUDENCE. 
 
 rights of numerous parties. Law refused to permit a 
 party to testify even on the call of his adversary, or 
 to require production of documents in his possession. 
 Several of the instances cited have, by means to 
 be shortly adverted to, become obsolete; but the 
 jurisdiction of equity is not ousted by expansion of 
 the legal remedy. 
 
 § 146. "Defective laws." The reference here is 
 more particularly to the state of the law and its 
 administration at the early period when equity juris- 
 diction originated, and is not so emphatically appli- 
 cable at present, after the great improvements made 
 by statutory and judicial legislation, the effect, in a 
 measure, of the reaction of equity upon law. Exist- 
 ing law, however, is still in a great measure inex- 
 orably bound by the iron trammels anciently fastened 
 upon it, and rigidly refuses remedy to its suitors in 
 all cases deemed exclusively cognizable in equity. 
 Thus a recovery in ejectment can be had upon the 
 strict legal title only, and courts of law will not recog- 
 nize an equitable title, either as a ground of action,' 
 or as a defence.^ In like manner, the equitable owner 
 of personal property has no standing in a court of law; 
 his rights can only be asserted therein by his trus- 
 tee.^ Courts of law do not recognize facts which, in 
 
 ^Langdon vs. Sherwood, 124 U. S. 83; Leonord vs. Diamond, 31 
 Md. 541. 
 
 2 Jolinson vs. Christian, 128 U. S. 382. 
 
 'Denton, 17 Md. 403; Woodruff vs. Apgar, 42 N. J. Law, 198; Bank 
 vs. Barnes, 82 Ala. 607, 621. 
 
DEFISITION. 199 
 
 equity, would afford ground of relief, as by reform- 
 ing a mistake in a deed,* or as constituting a valid 
 equitable defence.^ A mistake in a single bill 
 amounting simply to the unintentional omission of 
 the word " dollars," was held fatal to recovery in a 
 court of law, and could only be relieved in equity.* 
 Action at law lies not for breach of trust; remedy 
 exclusively in equity.^ In suit at law, not competent 
 to prove by parol that absolute deed a mortgage 
 only; that jurisdiction exclusively in equity.^ No 
 recovery at law on lost note; relief only in equity,^ 
 So, where two are jointly bound as principals, it 
 cannot be shown at law, when both are sued, that 
 one is surety for the other, and that the time of the 
 principal was extended; an equitable defence, avail- 
 able only in chancery.' No liberality on the part of 
 modern judges can accommodate the law to such 
 
 ^Prentice vs. Stearns, 113 U. S. 435; Ivinson vs. Hutton, 98 TJ. 
 S. 79; Farrow vs. Hayes, 51 Md. 505; "Winn vs. Eaton, 64 N. H. 234. 
 
 ^Burns vs. Scott, 117 TJ. S. 582; N. P. K. Co. vs. Paine, 119 U. S. 561. 
 
 "Newcomer vs. Kline, 11 G. & J. 458. And the same of an error 
 in calculation. Boyee vs. Wilson, 32 Md. 122. See also People's 
 Bank vs. Shryock, 48 Md. 427; Donelson vs. Polk, 64 Md. 501; 
 Franklin vs. Waters, 8 Gill 331. (The diflaculty in this case 
 removed by legislation, Md. Code, Art. 57, sec. 13.) 
 
 ■* Norton vs. Ray, 139 Mass. 230; Sanford vs. Lancaster, 81 Maine 435. 
 
 'Lindley vs. O'Reilly, 50 N. J. Law, 639; Bailey vs. Knapp, 79 
 Me. 6. 
 
 ° Adams vs. Edmunds, 55 Vt. 352. But see Md. Code, Art. 13, sec. 
 11; Ches. & O. Can. Co. vs. Blair, 45 Md. 102, 112. 
 
 'Anthony vs. Fritts, 45 N. J. Law, 1; Yates vs. Donaldson, 5 Md. 
 389. , "If the defendants have an equity, they must go into equity. 
 Such considerations have no place in a court of law." Molntyre 
 vs. Miller, 13 M. & W. 472. But see, as to equitable defence in 
 Maryland, Code, Art. 75, sec. 83. 
 
200 EQUITY JUEISPBUDBN'CB. 
 
 cases until the whole system is radically altered by 
 legislation like the English Judicature Act of 1873. 
 The definition is therefore strictly, although less 
 significantly, applicable to the present state of the 
 law. 
 
 §147. Primitive common law. The "wisdom-of- 
 our-ancestors " fallacy was exploded by Lord Bacon. 
 " These times are the ancient times, when the world is 
 ancient, and not those which we account ancient by 
 computation backward from ourselves.'" "That 
 reverence for existing usages, which is always 
 strong in human nature, was far stronger in anti- 
 quity than it is now. The belief in the wisdom of 
 ancestors which seems to be caused by the curious 
 delusion that ancestors must needs be old and there- 
 fore deeply experienced men, was stronger among 
 the ancients than among the moderns, because their 
 impression of their ancestors was derived, not from 
 history, but from poetry. They traced their institu- 
 tions to semi-divine or inspired legislators, and held 
 it almost impious to change what came to them 
 marked with such authority; while we, however 
 proud we may be of our ancestors, do not disguise 
 from ourselves that they were barbarians, and can 
 hardly fancy their handiwork incapable of improve- 
 ment."^ Notwithstanding the "veneration of the 
 
 'Advancement of Learning, Book I. 
 
 ■'Eece Homo, ch. 17, p. 215. Pascal, Pensfies, I, Art. 1, p. 7. For 
 ■what real wisdom they have let come down to us, we are grateful. 
 For their old wigs we have no use. H. C. Robinson, in 50 Conn. 608. 
 
DEFINITION. 201 
 
 sages," inculcated by Coke and Blackstone, it is 
 now universally admitted on both sides of the Atlan- 
 tic that "the common law was in all ways a most 
 defective system," and "a barbarous code."^ As 
 alchemy was to chemistry, astrology to astronomy, 
 magic to medicine, such was the relation of the 
 ancient common law to its modern successor. The 
 clergy monopolized all learning, and much property; 
 prelates were judges and monks lawyers; juries 
 were packed from tumultuous assemblages of re- 
 tainers. The law was a medley of semi-barbarous 
 customs, primitive British, Anglo-Saxon, Danish, 
 Norman, engrafted upon faint traditions of Roman 
 jurisprudence.^ 
 
 "The inheritance of Roman wisdom was transmit- 
 ted to the fierce barbarians of the West, and as they 
 wrought the materials of the temple and amphithea- 
 tre into their own rude fortresses, so did they occa- 
 
 H Stephen's Hist. Crim. Law, 176, 177; 1 Pom. Eq. Jur. sec. 17. 
 Miracle appealed to for decision of questions of f act— 4B1. Com. 342 — 
 ordeal — the coraiied—4: Bl. Com. 343-346 — trial by battle, 3 Bl. Com. 
 337, 4 ibid. 346— compurgators, 3 Bl. Com. 342, 4 ibid. 368, 414. "To 
 recollect a few traditionary customs, to mark out the lists of battle, 
 to observe the issue of the combat, and to pronounce whether it 
 had been conducted according to the laws of arms, included every- 
 thing that a baron, who acted as judge, found it necessary to 
 understand." Rob. Charles V 36. Yet, such as this were the 
 figures that loomed up from the dust of the dark ages as great 
 authorities, and were pointed to with pride as the "venerable 
 sages of the law." 1 Kent Com. 476, 477. Jury trial was often a 
 failure from oppression and corrupt influence, 1 Step. H. Cr. L. 
 176, 177, to say nothing of perjury and subornation. 4 Bl. Com. 368. 
 n Bl. Com. 35, 36, 64, 65, 66, 67; 4 Bl. Com. 409. 
 
302 EQUITY JUEISPEUDBSrCE. 
 
 sionally incorporate the precious fragments of Eoman 
 law into their own unformed and scanty jurispru- 
 dence."' 
 
 The codes of the barbarians, archaic as they seem, 
 were only a compound of true primitive usage with 
 half understood Roman rules. It was not the re- 
 formed jurisprudence of Justinian, but the undi- 
 gested system of Roman law which prevailed in the 
 western empire, and which the eastern Corpus Juris 
 never succeeded in displacing, that clothed with flesh 
 and muscle the scanty skeleton of barbarous usage.^ 
 
 § 148. Artificial methods. A barren and frivolous 
 logic, replete with mediaeval conceits and scholastic 
 subtleties, too often presided over the application of 
 these laws, instead of hard sense and the spirit of 
 equity. Justice was perpetually entangled "in a net 
 of mere technical jargon."' Rights were of less im- 
 portance than remedies. Form was preferred to sub- 
 stance. Statement to the thing stated.'' The phil- 
 
 iphillimore Int. to Eoman law, 11. 
 
 ^Maine's Anc. Law, 287, 288. 
 
 33 Bl. Com. 410. 
 
 *In 1821, Copley, (afterwards Ld. Chancellor Lyndhurst) said 
 facetiously to Campbell, (afterwards also Lord Chancellor) "one has 
 more pleasure from succeeding in a cause by a piece of roguery ths^n 
 upon the merits." Hardcastle'slifeof Campbell I, 405. Chief Justice 
 Taney, writing of his professional experience, says: "In that day 
 strict and nice technical pleading was the pride of the bar, and I 
 might also say of the court. And every disputed suit was a trial 
 of skill in pleading between counsel, and a victory achieved in that 
 mode was much more valued than one obtained on the merits of 
 the case." Taney's Autob. 61. 
 
DEFINITION. 203 
 
 osophy of Aristotle, as seen through the medium of 
 his Arabian commentators, was caricatured by a pre- 
 posterous dialectic, which involved both divinity and 
 law in metaphysical mazes of hopeless intricacy.' 
 
 § 149. Formalism. In the early attempts of every 
 primitive community at constructing for itself a 
 jurisprudence, there is observable a superstitious rev- 
 erence for the bald letter of the law, with correspond- 
 ing disregard of its spirit and essence. Judicial pro- 
 ceedings are governed by set phrases and formulas, 
 and, as in the case of the early Boman actions, " the 
 over-subtlety of the ancient jurists made the slight- 
 est error fatal. "| " A close adherence to the letter 
 is a mark of unripeness every where, and especially 
 so in law. The history of law might write over its 
 first chapter as a motto — In principio erat verbum."^ 
 Inherited from old Germanic custom, the primitive 
 common law of England displayed in all its iron 
 rigor this painful precision of adherence to the strict 
 letter, and minute observance of the merest externals 
 of procedure.^ From such a method, many instances 
 of gross injustice must of necessity result, and, as 
 these accumulate, new times calling for new measures, 
 relief must be found, either in legislation, in the in- 
 vention of fictions, or in a more liberal administration 
 of justice.^ The reforms introduced by legislation 
 
 H Bl. Com. 417; cf. 1 Bl. Com. 10; 1 ibid. 58. 
 'Institutes of Gaius, cited 1 Pom. Eq. Jur. sec. 3. 
 'Von Ihering, cited by Brantly, Cont. 34. 
 *Anglo-Saxon Law, 185. 
 'DeLolme, Cons, of Eng. Ch. 10. 
 
 I 
 
204 EQUITY JUKISPBUDENCE. 
 
 are slow and stinted, and thwarted by the same 
 narrow interpretation. The persistence of this ju- 
 dicial conservatism was a subject of remark by 
 Chief Justice Taney, so late as 1854. "There are 
 many technicalities in common law proceedings 
 which the courts ought to have reformed long ago. 
 The power has been given them by the legislature to 
 give judgment according to the right of the matter, 
 without regard to matter of form; and yet they have 
 obstinately, I must say, continued to treat as matter 
 of substance what evidently was nothing but form, 
 merely because it was called substance in some of 
 the old law books."^ The expedient of fictions, (to 
 be noticed presently), occasionally employed to intro- 
 duce by stealth real innovations, proves only that 
 courts were more willing to sacrifice truth than 
 form. The last alternative suggested, namely, the 
 more liberal administration of justice, is but an 
 equivalent expression for equity, which regards sub- 
 stance rather than form, the spirit and intent rather 
 than the letter. 
 
 § 150. Fictions. It has just been suggested that 
 too little regard was had for truth, as truth. Fiction, 
 indeed, was often a greater favorite than fact. Col- 
 lusive legal proceedings, fines, recoveries, fictitious 
 ejectments, pretended trovers, fictitious requests 
 and promises in assumpsit, fictitious multiplica- 
 tion of counts in declarations, such were the 
 
 ^Tyler's Memoir of Taney, 323. 
 
DBFIlSriTIOK. 805 
 
 "awkward shifts, subtle refinements and strange 
 reasoning, to which our ancestors were obliged 
 to have recourse" (these are the words of Black- 
 stone)' in order to escape the tyranny of form. 
 These things were not frowned upon by the 
 courts of law. They were encouraged by what 
 Blackstone civilly styles their "finesse. "^ These 
 courts, in fact, filched each others' jurisdiction, 
 and obliged their suitors to make and to admit 
 false allegations in pleading to color the usurpation. 
 In the King's Bench, a defendant found himself 
 compelled to admit that he had been arrested for a 
 supposed vi et armis, when he was only wanted for 
 debt. In the Exchequer, a plaintiff was encouraged 
 to commence suit upon the false surmise that he was 
 the King's personal debtor. The Court of Common 
 Pleas, the subject of these solemn frauds, joined the 
 other courts of Westminster Hall in raiding the 
 courts of Admiralty of their proper maritime juris- 
 diction by feigning that contracts, really made at 
 sea, were made on shore,' 
 
 "These fictions of law," says Blackstone, "though 
 at first they may startle the student, he will find 
 upon further consideration to be highly beneficial 
 and useful."* Elsewhere he calls them, as already 
 
 '2 Bl. Com. 360. 
 
 ^2 Bl. Com. 357. The discreditable practice of filing sham pleas 
 for delay was tolerated in England until 1832. 1 Ch. PI, 570, 16th 
 Am. Ed. 
 
 '3 Bl. Com. 43, 45, 107, 
 
 *3 Bl. Com. 43, 283; 4 ibid., 426. 
 
206 EQUITY JTJKISPEUDBNCE. 
 
 quoted, "awkward shifts," Scc.^ They are now rec- 
 ognized as the blundering devices of an unphilo- 
 sophic age, which has not yet learned from science 
 to value truth for its own sake. When base metal 
 is made a legal tender, gold disappears from circu- 
 lation. Although nobody was actually deceived by 
 these tricks, at least not after they had been once 
 introduced, and although said to be invented to 
 "promote justice," they were conspicuous object- 
 lessons in high places of the utility of falsehood and 
 craft. Their influence was sinister. Their example 
 was contrary to public policy because hostile to the 
 cultivation of good faith among men. Their reac- 
 tion upon the courts which practiced them was a 
 powerful, though indirect, agency in making a court 
 of conscience a necessity.^ 
 
 12 Bl. Com. 360. 
 
 2"AbaiI!" 
 
 "Yes, my dear sir, half a dozen of 'em here. Bail you to any 
 amount, and only charge half a crown. Curious trade, isn't it," 
 said Perker, regaling himself with a pinch of snuff. 
 
 ' ' What! Am I to understand that these men earn a livelihood by 
 waiting about here to perjure themselves before the judges of the 
 land, at the rate of half a crown a crime!" exclaimed Mr. Pickwick, 
 quite aghast at the disclosure. 
 
 "Why, I don't exactly know about the perjury, my dear sir," 
 replied Mr. Perker. "Harsh words, my dear sir, very harsh words, 
 indeed. Its a legal fiction, my dear sir, nothing more." 
 
 All this time the man in the spectacles was hard at work swear- 
 ing the clerks, the oath being invariably administered without any 
 effort at punctuation, and usually in the following terms: 
 
 "Take the book in your right hand this is your name and hand- 
 writing you swear that the contents of this affidavit are true so 
 help you God a shilling you must get change I havn't got it." 
 Pickwick Papers, Ch. 41. 
 
DEFINITION. 207 
 
 § 151. Feudal system. Such, with elaborately 
 organized oppression, under the name of the feudal 
 system, superadded, was the origin of the English 
 common law, as it hardened into arbitrary and 
 technical form in the reign of Edward I, 1272-1307.* 
 
 The abolition of the feudal tenures left many of 
 the rules composing the system of real property law 
 absolutely indefensible upon any other principle than 
 that of stare decisis. Reason for them there was 
 none.^ While some of these fossil remains have 
 been swept away by legislation, others have been 
 evaded by forced and refined distinctions, ^ and others 
 have been religiously preserved.* The result, as 
 bluntly put by Carlyle in the mouth of Oliver Crom- 
 well, was a "tortuous ungodly jingle." So he char- 
 acterizes English law as late as the seventeenth 
 century. 
 
 Its principal defects, viewed from the standpoint 
 of equity, have been in part mentioned.' 
 
 § 152. Value of the common law. Buried under 
 a mass of rubbish of the dark ages were fruitful 
 
 Another interesting phase of this subject will be found developed 
 in Maine's Anc. Law, 24, 25, where fictions are regarded as the ex- 
 pedients of an infant society for overcoming the rigidity of the law, 
 satisfying the desire for improvement, while not offending the dis- 
 relish for change. 
 
 H Bl. Com. 41&-420, 425-428. 
 
 ^Horne vs. Lyeth 4 H. & J: 435. 
 
 ^Culbreth vs. Smith, 69 Md. 455. 
 
 ^Warner vs. Sprlgg, 62 Md. 14, 20; CunlifE vs. Brancker, 3 Ch. D. 
 399, 407. 
 
 'Ante, section 145. 
 
208 EQUITY JUEISPBFDElifCB. 
 
 germs of much that was wise, just and liberal, 
 deposited in part from lingering traditions of the 
 civil law, (which for more than three centuries of 
 Roman occupation had been administered in Britain 
 by a succession of Praetors, of whom Papinian, and 
 probably Paulus and Ulpian, were the most illus- 
 trious), and in part due to the unconquerable Saxon 
 spirit of liberty, a legacy from the German forests, 
 as depicted by Tacitus. This sturdy Teutonic instinct 
 of freedom revolted against the slavish maxim of 
 the imperial law, quod principi placuit, legis habet 
 vigorem,^ imported with the Norman conquest, tamely 
 adopted into the common law by its earliest text- 
 writers/ enforced by the Plantagenets and Tudors, 
 and their servile judges, to the extent of their cour- 
 age and ability, actually enacted into law by one of 
 their pusillanimous parliaments,' and finally decapi- 
 tated and expelled with the Stuarts. The real value 
 of the common law is to be found in its free political 
 spirit. Its best legacy is trial by jury, especially in 
 state cases. 
 
 §153. "Cramped administration." There is no 
 doubt that equity as a separate system owes its ori- 
 gin principally to the narrow-minded obstinacy of the 
 early English judges, admitted even by Blackstone.^ 
 These men were such as the spirit of their time made 
 
 ilnst. I, 2 VI. 
 
 "Glanville, Bracton, Fleta. 
 
 M Bl. Com. 431. 
 
 "S Bl. Com., 51, 409, 433, 435; 4 ibid. 430; Aus. Jur., 311. 
 
{^i 
 
 DEFINITION. 309 
 
 them; to use the words of Carlyle, "narrow, more 
 or less opaque persons of the pedant species, heavily 
 pressed by traditions, formulas, antiquarian rubrics, 
 dead letters of many things. The sheep-skin record 
 failing them, and old use-and-wont ending, they can- 
 not farther." These characteristics were perhaps 
 exaggerated by some degree of personal timidity. 
 There was a tradition,, doubtless apocryphal, but 
 none the less current, that Alfred hung forty-four 
 judges for malversation and mistakes of judgment.* 
 Henry II and Edward I cashiered most of their 
 judges and confiscated their property for corruption 
 and altering records.^ These severe sentences are 
 supposed for some ages to have induced their succes- 
 sors to adhere too rigorously to forms and the letter 
 of the law.^ There is also a suggestion, for which 
 we have the authority of Sir Thomas More, that the 
 disinclination of the judges to relax the rigor of 
 their rules, was often the result of sheer indolence, 
 and a desire to shirk responsibility.* As soon as 
 they understood that there was a power elsewhere 
 to remedy their injustice, they felt the less anxiety 
 to repair it themselves." 
 
 _ r~ 
 
 § 154. Rome and i^ng-land contrasted. The an- 
 cient civil law, when its crude symbolism and rigid 
 
 'Mirror of Justices, 239; 1 Reeves, 43, 
 '2 Lingard, 231. 
 
 n Camp. Lives Ch. 365; 3 Bl. Com. 409. 
 *2 Camp, Lives Ch. 39. 
 'Clark's Pr. Jur. 378. 
 14 
 
210 EQUITY JURISPBUDENCE. 
 
 formulas were found inadequate to the demands of a 
 progressive civilization, was continuously improved 
 and developed by the Roman praetors, upon principles 
 of natural justice or equity, first made familiar 
 under the name jus gentium, by those preetors 
 specially appointed to administer justice between 
 foreigners in Rome and between Romans and foreign- 
 ers, (Prsetor peregrinus.y . 
 
 There were several causes which, in England, 
 checked the development of law in the direction of 
 equity, and necessitated resort to a separate tri- 
 bunal.^ The feudal system,' with its anomalous code 
 of laws concerning real property and personal rela- 
 tions, had nothing in common with the doctrines of 
 the Roman law, with which it refused to assimilate. 
 The national antagonism to the ecclesiastical courts* 
 was unfortunately extended to the Roman jurispru- 
 dence itself, which was finally altogether excluded 
 as an authority, thus compelling the establishment 
 of a tribunal in which its principles of universal 
 justice should be recognized and enforced. The 
 stubborn adhesion to precedent,' and especially to the 
 technical structure of a meagre supply of writs* pre- 
 scribing a limited number of fixed forms of action, 
 
 persistently thwarted all efforts at the expansion of 
 
 I 
 
 ^Maine Anc. Law, 59, 60; Aus. Jur., 280; 1 Pom. Eq. Jur,, sees. 5, 6. 
 
 n Pom. Eq. Jur. 16-29; Bisp. Pr. Eq. sec. 7. 
 
 H Bl. Com. 419. 
 
 H Bl. Com. 111-113; Ante, sec. 6. 
 
 n Kent Com. 476; Hallam Mid. Ages, 446. 
 
 «3 Bl. Com. 61, 184; Ante, sec. 4. 
 
DEFINITION. 211 
 
 the commoD law to meet the exigencies of new cases 
 as they arose. Although a statute' was passed for ' 
 the express purpose of relieving the difficulty, by 
 widening the scope of writs and thus enlarging the 
 jurisdiction of the law courts, its beneficial operation 
 was measurably defeated by the narrow construction 
 placed upon it by those courts, and the design of 
 parliament to check the further growth of chancery 
 by the infusion of equitable remedies into the com- 
 mon law, was thus frustrated. The only results of 
 this legislation which were at all important were the 
 additional legal actions known as case, trover and 
 assumpsit, applicable to an almost unlimited variety 
 of torts and contracts, and approximating equitable 
 remedies in their convenience and flexibility. The 
 statute referred to was moreover deficient in onaitting 
 any provision for equitable defences.^ Thus it hap- 
 pened that, in their insular position, remote from the 
 ancient seats of civilization, the English nation un- 
 fortunately failed to enrich their crude system of 
 customary law by the approved principles of equity 
 and good faith drawn from the ripest experience of 
 ages, and embodied in the Roman jurisprudence.' As 
 these principles were found absolutely essential to 
 the progress and even the convenience of society, a 
 new and separate judicature was required for their 
 administration. Thus the national opposition to the 
 
 ^Westminster II, 13 Edward I, A. D. 1285; AnU, sec. 4. 
 n Pom. Eq. Jur., sec. 27. 
 
 'Advocate Walton, in Juridical Rev. for October, 1893; Richard 
 Malcolm Johnston, "Studies," 34. 
 
313 EQUITY JUEISPKUDENCB. 
 
 civil law, instead of excluding it from the realm, only 
 succeeded in confining it to the court of chancery, 
 and in establishing the extraordinary or equitable 
 jurisdiction of the chancellor upon a valid basis. 
 
 § 15o. " Disciplined conscience." Under this 
 head is to be noticed an original distinction between 
 the methods of law and equity. The theory of the 
 common law was, and, to some extent, still is, that 
 every case, no matter how novel, is already decided 
 in gremio legis. There is a law for that case, and the 
 only business of the judge is to declare, not from his 
 conscience, but from his experience or his learning, 
 what the law is, not what it ought to be.^ Hence the 
 extravagant fiction that "the common law is nothing 
 else but statutes worn out by time."^ Westbury, 
 Lord Chancellor, is reported as follows: " By a legal 
 fiction it is supposed that the law contains within it- 
 self the material for the decision of every case, how- 
 ever novel the circumsances, and accordingly, when 
 the judges have a new case before them, they do 
 not profess to arrive at the law by reasoning, by 
 theory, or by philosophic inquiry, but they profess to 
 discover it by searching among the records of former 
 decisions for cases supposed to be analogous, and 
 they derive from these analogies the rule which they 
 desire for the determination of the particular case."' 
 
 ^1 Bl. Com. 45; Maine Anc. Law, ch. 2, p. 30; Bish. First Book, 
 sec. 179. See Clark's Prac. Jur. 378; Aus. Jur. 321. 
 22 Wils. 348, cited 1 Bl. Com. 74, Chitty's note 12. 
 ^Nash, Life of West., II, 59. 
 
DEFINITION. 213 
 
 " The common law is a system of principles not 
 capable of expansion, but always existing," and 
 ready to attach to circumstances as they arise.* 
 
 Equity, on the other hand, recognizes new adjust- 
 ments for new situations, not upon a dogmatic basis, 
 but upon principles which address themselves to the 
 conscience and intelligence, and therefore admit of a 
 rational and progressive development.^ 
 
 The terms of the definition here bring together the 
 ancient and modern conceptions of equity. As already 
 statedjthe first chancellors were high ecclesiastics, and 
 with few exceptions continued so down to the 16th cen- 
 tury. Their decisions, particularly the earlier ones, 
 were based upon their idea of natural justice, under- 
 stood as synonymous Avith the divine law of morality. 
 This was the " conscience " of the court, personal and 
 arbitrary, and often vacillating, justly provoking the 
 apprehension of common lawyers and judges, the 
 opposition of parliament, and sarcastic comments 
 like that of Selden:' " 'Tis all one as if they should 
 
 ^Buchanan, C. J. in State vs. Buchanan, 5 H. & J. 357. Sixty 
 years later, the progress of the law is shown by the following ex- 
 pression: " Flexibility and capacity for growth and adaptation is 
 the peculiar boast and excellence of the common law." Matthews 
 J. in Hurtado vs. California, 110 U. S. 530. 
 
 ^Knatchbull vs. Hallet, 13 Ch. D. 696, 710. 
 
 ^The antagonisms referred to at times threatened the existence 
 of the Court of Chancery. Aided by the scandalous abuses which 
 occasionally marred its administration, they would in all probability 
 have destroyed it, as a court of equity, but for the fact that the 
 chancellors themselves, whether clerical or lay, were usually the 
 most influential and successful politicians of their day, securely in- 
 trenched behind an impregnable breastwork of " patronage." 
 
314 EQUITY JURISPRUDENCE. 
 
 make his foot the standard for the measure we call 
 the chancellor's foot. * *■ * 'Tis the same thing 
 with the chancellor's conscience."^ This uncertain 
 standard was, however, steadied in a measure by 
 constant reference to the principles of the Eoman 
 civil law, in which the prelates who presided in the 
 court of chancery were versed. Such was the older 
 conception of conscience, a personal, arbitrary, and 
 somewhat capricious standard, supposed to be en- 
 lightened by divine wisdom, except when prompted 
 by the code and pandects. 
 
 With the fall of Cardinal Wolsey the cycle of the 
 clerical chancellors virtually closed, and with the 
 accession of Sir Thomas More, (A. D. 1629,) and a 
 long line of lawyer chancellors, (conspicuously Not- 
 tingham, temp. C. 2; Hardwicke, temp. G. 2; Eldon, 
 temp. G. 3,) came in the modern conception of a 
 disciplined conscience, or professionally trained sense 
 of justice.' Not the natural conscience, not the 
 
 ^Seidell's Table Talk, cited 3 Bl. Com. 432, noU, 1 Spence, 414. 1 
 Pom. Eq. sec. 57. The king's commission to his chancellor was 
 originally as extensive as that of the duke to Angelo: 
 "Your scope is as mine own, 
 So to enforce or qualify the laws 
 As to your soul seems good." 
 Meas. for Meas. I, 1 . 
 " The discretion of a judge is the law of tyrants. It is always 
 unknown. It is different in different men. It is casual, and de- 
 pends upon temperament. In the best, it is oftentimes caprice. In 
 the worst, it is vice, folly and passion." Lord Camden, cited 
 Fearne Cent. Rem. 429, note, " Juges injustes! ne faites pas des 
 ois sur I'heure; jugez par celles qui sent ^tablies." Pascal. 
 
 ^"Science is nothing but trained and organized common-sense, 
 differing from the latter only as a veteran may differ from a raw 
 
DEFINITIOIT. 315 
 
 crude impulse of an untrained mind, however honest 
 and intelligent, not even the arbitrmm boni viri,^ but 
 an artificial or judicial conscience, only to be ac- 
 quired by large experience, study and practice, and 
 only made possible of acquisition by the, accumula- 
 tion of a mass of precedent, and the evolution there- 
 from of a settled system of principles, maxims and 
 doctrines." 
 
 § 156. " Competent magistrate." The reference 
 of course is to a duly commissioned and qualified 
 judge, clothed with the requisite jurisdictional 
 authority as a separate tribunal, sole judge of law 
 and fact, without a jury. 
 
 It has been seen that although provision exists in 
 the equity system for the sending of issues of fact 
 in certain cases to be tried by a jury in a common- 
 law court, the trial by issue forms no necessary 
 incident to proceedings in equity, and the verdict 
 is advisory only, and not binding on the court or 
 chancellor.' It is also true that by statutory enact- 
 
 recruit. Its methods differ from those of common-sense, only so 
 far as the guardsman's cut and thrust differs from the manner in 
 which the savage wields his club." Huxley, Lay Serm. 77. 
 
 'Co. Litt. 97, b. 
 
 =1 Pom. Eq. Jur. sees. 49, 53, 59. Function oiprecedeni at law and in 
 equity contrasted. Ibid. sec. 60. 2 Pom. Eq., page 405. Examples 
 of jurisdiction, not the measure of jurisdiction. Slim vs. Croucher, 
 1 DeG. F. & J. 518, 528. 1 Kent. Com. 477-8. j 
 
 "Ante, sec. 128; Chase vs. Winans, 59 Md. 475, 480; Garsed vs. 
 Beall, 92 U. 8. 684, 695; Benefit Asso. vs. Parks, 81 Maine 80, 84; 
 Fishburne vs. Ferguson, 84 Va. 101; Terra Cotta Co. App. 124 Pa. 
 368, 375. 
 
316 EQUITY JUBISPEUBENCE. 
 
 ment in several jurisdictions, it is now made possible 
 for a jury to be called in for the trial of issues of 
 fact in the equity court. By the ordinary type of 
 such enactments, however, the effect of the verdict 
 is the same as already stated,* and the court may 
 not only disregard the findings of the jury, but may 
 decree in opposition thereto, upon its own estimate 
 of the testimony." It is clear beyond all question 
 that trial without a jury is the normal mode of trial 
 in equity/ and equally clear that it is the feature 
 which especially characterizes the system, and diff- 
 erentiates it from law.^ 
 
 The terms of the definition are broad enough to 
 include technical equity as a separate system in 
 either Roman, English or American jurisprudence. 
 The "Magistrate" may be a Praetor, a Lord Chan- 
 cellor, or Vice Chancellor, a Baron of the Exchequer, 
 a Lord Justice, a Master of the Rolls, or an American 
 Chancellor, or Judge.* Occasionally in England, 
 
 iBarth vs. Eosenfeld, 36 Md. 604, 614; Kohn vs. McNulta, 147 U. 
 S. 238; Watt vs. Starke, 101 U. S. 247, 250; Hess vs. Callender, 120 
 Pa. 152. 
 
 ^Idaho Land Co. vs. Bradbury, 132 U. S. 509; Reed vs. Axtell, 84 
 Va. 231; Brownlee vs. Martin, 28 S. C. 364; Brundage vs. Deschler, 
 131 Ind. 174. 
 
 ^Timson vs. Wilson, 38 Ch. D. 77; ante, sec. 22. 
 
 *Alex. Hamilton in 83d Fed.; Pom. on Bern. sec. 59; Bliss Co. 
 PI. sec. 10. 
 
 ^It is quite common to speak of any judge exercising equity 
 powers as a "chancellor," and of his court as a "court of chan- 
 cery." Wilson vs. Riddle, 123 0. S. 614; Fosdick vs. Schall, 99 U. 
 S. 253; Powers' App. 125 Pa. 186; Warren vs. Bunch, 80 Ga. 124; 
 Williams, 23 Fla. 324, 335. 
 
DEFiiriTioir. 217 
 
 when the great seal was in commission, the tribunal 
 was plural, and so it was formerly with the Court of 
 Exchequer. Appellate tribunals also consist of a 
 plurality of judges. The subject of courts has been 
 already considered.^ The first and essential part of 
 the definition ends here. What remains is no less 
 important to be known, but is descriptive rather 
 than definitory. 
 
 ^Ante, chap. 1. 
 
CHAPTEE IX. 
 
 EQUITY JURISPRUDENCE. THE DEFINITION FURTHER 
 EXPANDED. 
 
 157. "Special circumatancea. " 
 
 158. "Limited classes of civil cases." 
 
 159. Heads of equity jurisdiction. 
 
 160. Defences. 
 
 161. "Civil cases" exclusively. 
 
 162. Equity and criminal justice. 
 
 163. Their present relations. 
 
 164. Quasi equitable jurisdiction. 
 
 165. "Natural justice." 
 
 166. "Public policy." 
 
 167. Reaction of equity upon law. 
 
 168. Law reform. 
 
 169. Substance rather than form. 
 
 170. Present state of law and equity. 
 
 171. "Precedent." 
 
 172. "Positive provisions of law." 
 
 173. Recapitulation. 
 
 §157. "Special circumstances." This is a phrase 
 of constant occurrence, and is used in two different 
 applications. It may refer either to transactions and 
 events of purely equitable cognizance, common to 
 whole classes of cases, such as trust, fraud, acci- 
 dent, mistake &c., and which occasion jurisdiction 
 over them; or, it may refer to those more particular 
 circumstances which distinguish some cases from 
 others of the same general class, and finally determ- 
 
DBFIKITION. 319 
 
 ine as to the fact, mode and extent of relief. When 
 jurisdiction is once assumed upon any valid founda- 
 tion, ic will, in general, be fully exercised over the 
 whole case to the end. But the peculiar principles 
 of equity will be applied only to those features of 
 the case which are of equitable cognizance, while 
 as to the other features, the ordinary legal rules 
 will be applied in obedience to the maxim, "equity 
 follows the law.'" ""While the principles of equity 
 are fixed, they are to be applied according to the 
 circumstances of each particular case."^ "The case 
 stands upon its own special circumstances, and it 
 is with reference to those circumstances that we 
 hold that relief should be granted."^ "The great 
 and primary use of a court of equity is to give 
 relief in extraordinary cases, which are exceptions 
 to general rules. It is true that the principles by 
 which that relief is governed are now reduced to a 
 regular system, but it is not the less true that they 
 are in the main applicable to special circumstances, 
 which form exceptions to general rules. "^ "In 
 equity there is no rule so inflexible as not to bend to 
 the special circumstances of a particular case." 
 
 1 Kent Com. 490, note d. It is questionable whether this dictum 
 is not laid down too broadly, unless the term, "special circum- 
 stances," is to be taken in a conventional sense. Understood 
 literally, it would seem to throw everything open to the discre- 
 tion of the judge, which has been seen to be very far from true. 
 
 'Smith Man. Eq. 13; Ad. Eq. Int. 12; post, sec. 
 
 2 Lord Eldon in Gee vs. Pritchard. 2 Swanst, 414. 
 'Worthington vs. Lee, 61 Md. 540. 
 
 *Alex. Hamilton, in 83d Federalist. 
 
330 EQUITY JUBISPKUDENCB. 
 
 The proposition is everywhere repudiated that a court of equity 
 will always do what the justice of the particular case requires, 
 regardless of any rules. Byan vs. Mutual, (1893), 1 Ch. 116, 124. 
 But the cases in equity, which are said to be governed by their 
 own "special circumstances" are extremely numerous. The fol- 
 lowing references to recent cases will suffice to indicate something 
 of their nature and variety. Construction of Wills: Larmour vs. 
 Rich, 71 Md. 369, 384; Abell vs. Abell, 75 Md. 44, 56. Of Con- 
 tract; Moser vs. Lower, 48 Mo. App. 85; Saxton vs. Seiberling, 
 48 Oh. St. 561. Laches: Noble vs. Turner, 69 Md.; 527; B. & 0. E. 
 E. Co. vs. Canton Co., 70 Md., 415; Kilbourne vs. Sunderland, 130 
 U. S. 518; Morse vs. Hill, 136 Mass. 65; Gregory vs. Commonwealth, 
 121 Pa , 622; Heyder vs. Excelsior, 42 N. J. Eq. 408; Waterman 
 vs. Sprague, 55 Cionn. 574; Sedgwick vs. Taylor, 84 Va. 825. Par- 
 ties: Barney vs. Latham, 103 U. S. 205; Wanger vs. Aspell, 47 Oh. 
 St. 255; ante sec. 24. Negligence: Harkness vs. Scammon, 48 Mo. 
 App. 136. Multifariousness: Neal vs. Eathell, 70 Md. 598; Brown 
 vs. Trust Co., 128 U. S. 411; Coates vs. Legard, L. E. 19 Eq. 59; 
 Bank vs. Thornton, 83 Va. 166; "Wade vs. Pulsifer, 54 Vt. 70; De 
 Wolf vs. Sprague, 49 Conn. 298; ante sec. 40. Amendment of Plead- 
 ings: Hardin vs. Boyd, 113 U. 8. 761; Richmond vs. Irons, 121 
 TJ. S. 47; HarrJgan vs. Bacon, 57 Vt. 644. Appointment of Receiver: 
 Sage vs. E. E. Co. 125 U. S. 376; Fosdick vs. Schall, 99 TJ. S. 254; 
 Owen vs. Homan, 3 Mac. & G. 378, 411, aflfd. 4 H. L. 997; Ashurst 
 vs. Leman, 86 Ala. 371. Specific Performance: Worthington vs. 
 Lee, 61 Md. 640; Semmes vs. Worthington, 38 Md. 298, 325; Nick- 
 erson, 127 U. S. 675; Barrett vs. Forney, 82 Va. 276; Short vs. 
 KiefEer, 43 111. App. 575. Fraud: Bank vs. Hume, 128 U. S. 211; 
 Shoemaker vs. Cake, 83 Va. 5. Vendor^s lien: Fisher vs. Shrop- 
 shire, 147 U. S. 133, 140; Porter vs. Dubuque, 20 Iowa, 442. As 
 to the purchase of a reversionary interest: O'Eorke vs. Boling- 
 broke, 2 App. Ca. 814, 837. As to a sale to a corporation by a 
 stocJcTiolder: Farrar, 40 Ch. D. 406. As to whether a preference 
 is fraudulent: Smith vs. Craft, 123 U. S. 436. As to inadequacy 
 of consideration: Fuller vs. Brewster, 53 Md. 361. As to whether 
 a transaction was a payment, or a purchase of a security: Wood 
 vs Trust Co., 128 U. S. 425. As to allowance to a life-tenant for 
 betterments out of the corpus of an estate: Ee Lytton, 38 Ch. D. 
 23. As to what misconduct of a trustee should afEect his compensa- 
 tion: Jacobson vs. Munn, 38 N. J. Eq. 625; Trevelyan vs. Loft, 
 
DEFIKITION. 331 
 
 83 Va. 149— or justify his removal: Marrey vs. Stout, 4 Del. Ch. 
 282. As to accident or mistake: Martin vs. Osborn, 146 Mass. 401. 
 Account: Boot vs. Railway Co., 105 U. S. 216. Set off: Trotter 
 vs. Hickshe, 40 N. J. Eq. 657. OosU: Andrews vs. Barnes, 39 
 Cn. D. 133, 138; Chamberlin vs. Estey, 55 Vt. 384. Divorce: Wil- 
 liams, 23 Fla. 324. Alimony: Cralle, 84 Va. 202. As to what con- 
 stitutes constructive notice: Simmons vs. Doran, 142 U. S. 417; 
 Savings Bank vs. Natl. Bank, 53 Vt. 90; Knapp vs. Bailey, 79 Me. 
 195-204. As to what constitutes a cloud on title: Eastman vs. 
 Thayer, 60 N. H. 414. As to what is a reasonable use of a stream 
 by riparians: Mason vs. Hoyle, 56 Conn. 262. As to what is a 
 reasonable allowance for maintenance: Ela vs. Brand, 63 N. H. 
 16. As to nunc pro tunc orders: Bone vs. Chapman. 119 U. S. 597. 
 As to ratification of judicial sale: Todd vs. Gallego, 81 Va. 590; 
 Moran vs. Clark, 30 W. Va. 381. As to what encroachment on a 
 public highway amounts to a nuisance: Philadelphia's Appeal, 78 
 Pa. 33; Gray vs. Baynard, 5 Del. Ch. 504. Estoppel by conduct: 
 Klein vs. Richardson, 64 Miss. 46. In some of these cases the 
 court is simply dealing with questions of fact, as a jury w^ould 
 do. In others, such as questions of costs, amendment, &c., the 
 court exercises an absolute discretion, except in some states. Welch 
 vs. County Court, 29 W. Va. 70, 71 . While in the greater num- 
 ber of instances, (specific performance, injunction, receiver, laches, 
 multifariousness, &c.), the discretion confided to the court is said 
 to be a "sound judicial discretion," reviewable on appeal. 
 
 § 158. '%imited classes of civil cases." The 
 authority of the magistrate — in other words, the 
 equitable jurisdiction of the court, is hedged in 
 between fixed limits. The defects and omissions 
 of the law, and of its modes of procedure, are no 
 longer the criterion.' These limits are in great 
 measure determined by precedent. The principle 
 on which the precedents have been formed is, in 
 general, the want of plain, adequate and complete 
 
 '1 Pom. Eq. Jur. sec. 62; Sumter vs. Mitchell, 85 Ala. 321. 
 
Ib^ 
 
 322 EQUITY JURISPKUDENOE. 
 
 remedy at law. New cases may be and constantly 
 are brought within the jurisdiction of equity, but 
 no new class of cases, using the word "class" in 
 a generic sense. Sometimes the word is used in a 
 limited sense, as in Banks vs. Haskie,^ where a par- 
 ticular class of contracts, viz : covenants for renewal 
 of Baltimore city leases for 99 years, sought to be 
 enforced after the expiration of the term during 
 which they were expressly made renewable, was for 
 the first time. brought within an acknowledged head 
 of equity jurisdiction, but without enlarging its 
 boundaries. So where remedial equity was to be 
 applied to a new subject matter, the court said: "The 
 point is not whether an injunction has ever issued to 
 prevent the establishment of a public nuisance of 
 this kind, but whether the doctrines of equity appli- 
 cable to nuisances should be applied to the present 
 cake/ '2 
 
 § 159. Principal heads of equity jurisdiction. 
 The heads of equity jurisdiction have been long estab- 
 lished, and cover all possible cases wihich may 
 properly be brought within the cognizance of courts 
 of equity. Those of most frequent occurrence in 
 practice are as follows: Accident, mistake, fraud, 
 
 145 Md. 225. 
 
 ^Hamilton vs. Whitridge, 11 Md. 145. So, in England, prior to 
 1888, there was no authority to be found for the proposition that a 
 lessee under a mortgagor coming in after the date of the mortgage, 
 has the right to redeem, when it was so decided upon the same 
 principle which enables an assignee of the mortgagor to redeem. 
 Tarn vs. Turner, 39 Ch. D. 456. 
 
DEFINITION. 223 
 
 TRUST, specific performance, account, administration, 
 mortgages and liens, partnerships, creditors' bills, 
 partition, injunctions, receivers, interpleader, bills of 
 peace, quia timet, divorce, alimony, infants, persons 
 of unsound mind, married women. 
 
 More particularly, equity has jurisdiction: to 
 relieve against a class of unforeseen and injurious 
 occurrences, not attributable to mistake, neglect or 
 misconduct — (accident, and herein of re-execution); 
 to relieve against acts, or contracts, done, or. made, 
 from ignorance of fact, forgetfulness or inadver- 
 tence — (MISTAKE, and herein of reformation and 
 rescission); to set aside, correct, annul, or prevent 
 advantage being taken of, instruments and acts 
 induced by fraud, (and herein of cancellation); to 
 enforce a benefical interest in property against the 
 holder of the legal title — (trust, and herein of 
 trusts, active and passive, express and implied, the 
 latter including constructive and resulting trusts); to 
 compel specific performance of contracts; to adjust 
 accounts between co-owners, partners, principal and 
 agent, principal and surety, debtor and creditor, &c. 
 — (account, and herein' of set-off, contribution, exon- 
 eration, subrogation and marshalling of assets and 
 securities); to superintend, in certain cases, the 
 settlement of decedent's estates — :{administration, 
 and herein of election, conversion, satisfaction and 
 performance); to establish the true construction of 
 wills; to enforce mortages by foreclosure, or to ex- 
 tinguish them by redemption ; to enforce liens 
 generally; to provide for the dissolution and settle- 
 
224 EQUITY JURISPRUDENCE. 
 
 ment of partnerships; to entertain applications to 
 charge the real property of deceased owners, or the 
 real and personal property of living owners, beyond 
 the reach of ordinary legal process, with their debts 
 — (creditors' bills); among co-owners to make par- 
 tition; to prevent persons from enforcing judgments, 
 prosecuting suits, or setting up defences, in a court 
 of law, where the claim or defence is inequitable, 
 and to prevent the performance of acts, which, if 
 performed, would inflict an injury on a person, for 
 which he would have no adequate remedy — {injunc- 
 tion); to secure property in dispute pending litigation 
 — (receiver); to prevent vexatious litigation by pro- 
 tecting a party liable to the suit of two or more 
 conflicting claimants (interpleader), or of a numerous 
 class insisting upon the same adverse right, or of the 
 same party repeating an unsuccessful claim (bills of 
 peace); to preserve the means by which existing 
 rights may be secured from impending violations 
 (quia timet); to dissolve, either partially or abso- 
 lutely, the marriage relation, with incidental pro- 
 vision for pendente lite, or permanent, support 
 (divorce alimony); to guard and administer the estates 
 of infants, persons of unsound mind, and married 
 women; and to compel a party to a suit at law to 
 disclose facts and produce documents within his 
 knowledge and control — (discovery).^ 
 
 ^The foregoing is borrowed, witli a few slight, perhaps super- 
 fluous, alterations and additions, from Prof. Venable's abridgment 
 of the Law of Real Property, page 123. 
 
DBFINITIOK. 225 
 
 In the foregoing enumeration, the import of each 
 separate particular should be first carefully observed, 
 and then the endeavor should be to grasp the com- 
 prehensive practical significance of the whole scheme 
 in its entirety. By thus sweeping over the wide 
 range of chancery jurisdiction, and considering the 
 varied and complex functions of its courts — their 
 almost exclusive control over all fiduciary relations, 
 including not only trustees, properly so called, but 
 executors and administrators, guardians, attorneys, 
 agents, directors in corporations, and the like — their 
 exclusive control over all trust property — their pro- 
 tection over the persons and estates of infants and 
 married women, including their destructive power 
 over the status of marriage itself, and their power to 
 take children from the care of their parents — their 
 power to enforce the specific performance of con- 
 tracts, or to rescind them entirely — the large field of 
 preventive justice which they exclusively occupy in 
 restraining trespasses, nuisances, abuses of trust, 
 attempts to perpetrate fraud, unjust litigation, illegal 
 taxation, and waste — the exclusive facilities at their 
 command for analyzing and adjusting intricate 
 transactions and complicated accounts, and settling 
 the disputes of co-partners, and their joint or sepa- 
 rate creditors, principals and their agents, debtors 
 and their sureties, and all persons having mutal 
 dealings — and the relief they afford in cases of 
 accident, mistake and fraud, including the power to 
 unravel and defeat the most artful and elaborate 
 
 , 15 
 
326 EQUITY JUEISPKUDENCB. 
 
 schemes of imposition, and to strike down the most 
 solemn assurances — it will at once be seen that a 
 judiciary establishment, without such powers in 
 some of its tribunals, would not only be defective in 
 organization and cramped in administration, but 
 could really make no claim to represent a system of 
 jurisprudence for a civilized society.^ 
 
 Not much stress is now laid upon the auxiliary 
 jurisdiction, meaning by that term the power to 
 compel discovery, produce documents, and perpetuate 
 testimony de bene esse. Since those powers have 
 been conferred by statute upon the courts of law,*" 
 the necessity for the auxiliary jurisdiction, may be 
 said to be practically, almost entirely, superseded,^ 
 although still occasionally resorted to.^ Observe, 
 however, that bills for discovery, as such, are to be 
 distinguished from the ordinary applications to probe 
 the conscience of the defendant in all cases as to 
 facts within his knowledge; in other words, bills not 
 for discovery only, but for relief ,^ .wiih. incidental 
 discovery. 
 
 To the above should be added, in Maryland, a 
 number of subjects over which equity jurisdiction 
 has been extended, enlarged or modified by statute, 
 an index to which is appended.* 
 
 ^See 2 Am. Jurist, 314; 10 ibid. 227. 
 
 ^Md. Code, Art. 75, sec. 94. 
 
 n Pom. Eq. Jur. sees. 83, 124, 143, 215; Bisp. Pr. Eq. sec. 558. 
 
 *Union P. E. R. vs. Mayor, 71 Md. 238; 1 Foster's Fed. Pr. sec. 281. 
 
 n Pom. Eq. Jur. sec. 144; Snowden vs. Dispensary, 60 Md. 85; 
 Trego vs. Skinner, 42 Md. 430. 
 
 ^AbaUment, Md. Code, Art. 16, sees. 1-13; Account, Art. 26, sec. 9; 
 Alimony, Art. 16, sec. 14; Amendment, Art. 16, sees. 16, 17; Appeal, 
 

 DEFINITION. 227 
 
 § 160. Defences. Further limitations are to be 
 classified under this head, premising that nothing 
 can call forth a court of equity into activity but con- 
 science, good faith and reasonable diligence, and 
 where these are wanting the court is passive and 
 does nothing.^ 
 
 Art. 5, sees. 24-36; Attachment, Art. 1(>, sees. 172-174; Auditor, Art. 
 16, sees. 18-23; Burial Grounds, Art. 16, sec. 92; Charitable Uses, Art. 
 93, sec. 315; Corporations, Art. 23, sees. 264-276; Creditor's Bills, Art. 
 16, sees. 46, 188; Contempt, Art. 16, sec. 151; Art. 26, see. 4; Declara- 
 tory Decree. Art. 16, sees. 26-32; Dinoree, Art. 16, sees. 35-40; Dower, 
 Art. 16, sec. 41; Art. 45, sec. 5; Equitable Defence, Art. 75, sees. 83-85; 
 Examiners, Art. 16, sec. 216; Executor, Art. 93, sec. 10; Fraudulent 
 Conveyances, Art. 16, sec. 46, Inebriates, Art. 16, sec. 47; Infants, 
 Art. 16, sees. 48-62; Injunction, Art. 5, sees. 29, 42; Art. 16, sees. 63- 
 71, 177-181; Art. 17, sec. 24; Art. 23, sec. 263; Art. 66, sees. 16-18; 
 Art. 75, sees. 116-128; Invalid Deeds, Art. 16, sees. 33-34; Issues, Art. 
 16, see. 46; Art. 75, sec. 97; Jurisdiction, Art. 5, sec. 35; Art. 16, sees. 
 70-91; Lease, Art. 16, sees. 93-94; Legacy, Art. 16, sec. 82; Art. 93, 
 sees. lO.'SlS; Married Women, Art. 45; Mechanics' Lien, Art. 63, sec. 
 25; Mortgage, Art. 16, sec. 187; Names, Art. 16, see. 95; Won Compos, 
 Art. 16, sees. 96-104; Ifon Resident, Art. 16, sees. 105-115; Parties, Art. 
 16, sees. 156, 159-163; Partition, Art. 16, sec. 116, Possession, Writ of. 
 Art. 75, sec. 88; Preservation, &c., of Property, Art. 75, sec. 93, Pro- 
 cedure, Art, 16, SQCs.lVi-l.%&; Production of Books, &c.. Art. 167 see. 24; 
 Revivor, Art. 16, sees. 2-12; Sales, Art. 16, sees. 187-198; Sequestration, 
 Art. 16, sec. 168; Special Case, Art. 16, sees. 184-186; Specific Per- 
 formance, Art. 16, sees. 76, 85, 199; Testimony, Art. 16, sees. 216-234; 
 Trusts, Art. 16, sec. 81; TrmUe, Art. 16, sees. 28, 79-80, 200-215, Art. 
 79, sees. 7-9, Art. 93, sec. 286-290; Unknown Parties, Art. 16, sees. 
 111-113; Vendors' Lien, Art. 16, sec. 193; Waste, Art. 16, see. 64; 
 Wills, Art. 93, sees. 313-317. The following references are to sec- 
 tions of Art. 4 of the Public Local Laws, relating to the city of Bal- 
 timore: Charitable Uses, sec. 2; Jury Trial, sec. 174; Opinions, sec. 
 174; Circuit Court, No. 2, sees. 176-178. (As to Circuit Court of Bal- 
 timore city, see Const, of Md. Art. IV, sec. 29.) Bailiffs, die, sees. 
 223-227; Mortgages, sees. 692-704; Park Condemnations, sees. 710, 711. 
 iLord Camden in Smith vs. Clay, Ambl. 645; 3 Bro. Ch. 638, cited 
 in Noble vs. Turner, 69 Md. 527, and in many other eases. 
 
238 EQUITY JURISPRUDENCE. 
 
 The extraordinary powers of equity will not he 
 exerted in such cases as the following: Where the 
 remedy at law has always been plain, adequate and 
 complete — {no jurisdiction); where the plaintiff has 
 negligently slept upon his rights, for a period unrea- 
 sonably long, in view of all the circumstances of the 
 case — (laches); where he has permitted the period of 
 time to elapse, limited by law in similar or analogous 
 cases — (limitations); where his action or non-action, 
 with knowledge of his rights, has been such as to 
 import their voluntary waiver or abandonment — 
 {acquiescence, condonation); or such as to have in- 
 duced another party, in bona fide reliance, thereon, to 
 alter his own position — {estoppel); where he has 
 voluntarily, and with full knowledge, done some act 
 amounting to confirmation or release; where he has 
 knowingly participated in the fruits of the transac- 
 tion impeached or advisedly committed himself to an 
 inconsistent or repugnant right — {election); where he 
 has himself been guilty of inequitable, unrighteous 
 or unlawful conduct in respect of the immediate sub- 
 ject-matter — {fraud; illegality; recrimination); or 
 where the defendant is a bona fide purchaser for 
 value without actual or imputed knowledge of the 
 plaintiff's equity — {notice). Many of the foregoing 
 are strictly equitable defences, in addition to those 
 available also at law, such as the statute of frauds 
 and of usury, accord and satisfaction, pending suit, 
 and others. As already seen, the defence of multi- 
 
DEFIKITION. 229 
 
 fariousness no longer avails to dismiss the entire 
 bill.i 
 
 § 161. "Civil cases" exclusively. With criminal 
 law, equity (in its technical sense), has nothing to 
 do. Its office and jurisdiction are limited to the 
 protection of property rights, unless enlarged by 
 statute.- In ancient times the protection of the 
 chancellor was frequently invoked by the weak 
 against the powerful, but that species of jurisdic- 
 tion has long been obsolete. A curious reminis- 
 ence of it to a late day may be found in the "con- 
 federacy" clause in bills, only recently disused.' 
 The jealous vigilance with which equity guards the 
 property rights of the helpless and confiding against 
 trustees, guardians and other fiduciaries, to prevent 
 advantage being taken of influence, even to the 
 
 ^Ante, sec. 40. 
 
 -1 Bl. Com. 92; Fornshill vs. Murray, 1 Bland, 484. In Re 
 Sawyer, 124 U. S. 210. But the mere fact that an act is criminal, 
 does not divest the jurisdiction of equity to prevent it by injunc- 
 tion, if it be also a violation of property rights. Mobile vs. E. R. 
 Co., 84 Ala. 116, 126; Quintini vs. Board, 64 Miss. 483. Prohibi- 
 tion liquor laws in some states make courts of equity instrumen- 
 tal in their prompt and summary enforcement by injunction, with 
 fine and imprisonment as the penalty of disobedience. The objec- 
 tion that such statutes deprive the party of a trial by jury in a quasi 
 criminal proceeding, has been overruled by the Supreme Court. 
 Mugler vs. Kansas, 123 U. S. 623, 672; Eilenbecker vs. Plymouth, 
 134 TJ, S. 31. In England," of late years, injunctions have been 
 granted to restrain libel and even slander injurious to plaintiff's 
 business. Herman vs. Bran, 26 Ch. D. 306. Contra in XJ. S., 3 Pom. 
 Eq. Jur., sec. 1358, Bisp. Pr. Bq., 5th ed. p. 584, note. 
 
 ^1 Spence Eq. 690. 
 
230 EQUITY JUKISPRUDENCE. 
 
 extent of reversing the ordinary rules of evidence 
 as to the onus probandi, appears to be the only trace 
 left of the ancient jurisdiction referred to. 
 
 "In criminal matters the jurisdiction of the Court of 
 Star Chamber grew up side by side with that of the 
 chancellor, in civil. "^ "As the Chancery had the 
 praetorian power for equity, so the Star Chamber 
 had the censorian power for offences under the 
 degree of capital."^ In an age when juries were 
 corrupt, judges often venal, and the ordinary ad- 
 ministration of criminal justice perverted by influ- 
 ence, the Star Chamber not merely exercised a con- 
 trol over great nobles, which checked oppression, 
 "but supplied some of the defects of a system which 
 practically left unpunished, forgery, perjury, at- 
 tempts and conspiracies to commit crimes, and ipany 
 forms of fraud and force." "The tyrannical proceed- 
 ings for political offences, which ultimately caused 
 the. abolition of the court, ought not to make us for- 
 get the great service it rendered, not only to the 
 cause of good order, but to the law of the country.'" 
 
 § 162. i^quity and criminal justice. Both in 
 theory and practice, the early criminal code of Eng- 
 land habitually violated almost every principle of 
 justice now recognized as fundamental. For a series 
 
 n Steph. Hist. Cr. Law, 175. 
 
 ''Lord Bacon's Works, VI, 85. DeLolme Cons, of Eng. B. 2, c. 
 17, part 2, page 440. 
 n Steph. Hist. Cr. Law, 176, 177. 
 
DEFINITION. 331 
 
 of centuries, what my Lord Coke calls the "perfec- 
 tion of reason,"* hunted witches, roasted heretics, 
 mangled traitors, absolved intelligent crime by bene- 
 fit of clergy, and punished ignorance with death, re- 
 fused counsel to prisoners, refused the oath to their 
 witnesses, crushed them to death if they did not 
 plead,- and badgered them from the bench if they 
 did. Says Lord Macaulay: "The earlier volumes of 
 the State Trials are the most frightful record of 
 baseness and depravity in the world. Our hatred is 
 altogether turned away from the crimes and the 
 criminals, and directed against the law and its min- 
 isters. We see villanies as black as ever were im- 
 puted to any prisoner at any bar, daily committed 
 on the bench and in the jury box.'*5 
 
 With all this, equity found itself unable to inter- 
 fere directly. In fact, it must be admitted, that 
 sometimes chancellors, like Thurlow and Eldon, were 
 the most formidable obstacles to reform. At length, 
 however, the spirit of the age, catching the spirit of 
 equity, enforced legislative reforms, which have in 
 this country been embodied in our Constitutions and 
 Bills of Rights. By these provisions, and by statutes 
 like that enabling parties to testify, the rigors of the 
 criminal code have been corrected and its defects 
 measureably supplied. 
 
 'Co. Litt., 97 b. 
 
 H BI. Com. 61, 46, 93, 370, 359, 327. 
 
 ^Mac. Essays, II, 270, quoted by Lord Campbell in his life of 
 Somers, IV, 495. 
 
233 EQUITY JURISPRUDENCE. 
 
 § 163. Their present relations. Trial by jur^, 
 the principle that the jury judge law as well as fact/ 
 and that verdicts have not the slightest binding force 
 as precedents, the wide margin of discretion in the 
 court in the scale of punishments/ and the pardon- 
 ing power in the Executive, have given ample scope 
 for the equitable consideration of "special circum- 
 stances." 
 
 The presumption that every man is innocent until 
 found guilty beyond a reasonable doubt, the princi- 
 ple that there can be no conviction of crime where 
 there is not found the evil intent, and that ignorance 
 or mistake in point of fact, is generally, in criminal 
 cas-'S, a suflScient defence,' concur in giving an equit- 
 able complexion to the whole criminal code.j There 
 is also here, as in equity jurisprudence, no lack of ap- 
 propriate specific remedies and preventive appliances. 
 Habeas corpus is in effect a specific performance 
 of the absolute right of personal liberty, and 
 "security to keep the peace," or for "good behavior,"^ 
 is in effect a process of injunction to restrain the 
 commission of crime. The issues, moreover, in 
 
 'Md. Cons. A.rt. 15, sec. 5. This provision is merely declaratory 
 of pre-existing law. Beard vs. State, 71 Md. 275, 279. In some 
 states the doctrine is altogether rejected. State vs. Burpee, (Vt.) 
 25 Atl. Eep. 964. 
 
 ^GolBon vs. State, 86 Ala. 603. 
 
 'Bl. Com. 27; 1 Bish. Cr. L. sees. 288, 301; Queen vs. Tolson, 
 23 Q. B. Div. 168; Folwell vs. State, 49 N. J. Law, 31. 
 
 *Tljie few exceptions are founded in public policy, which is also 
 influential in equity jurisprudence. Carroll vs. State, 63 Md. 564. 
 
 H Bl. Com. 251; Hyde vs. Greuoh, 62 Md. 582. 
 
DEFINITION. 333 
 
 criminal cases, are invariably simple, requiring 
 no technical pleading to evolve them. There 
 are but two parties to the proceeding; the 
 state on one side, and the accused (whether in 
 the singular or plural) on the other. As was anciently 
 the practice in civil cases, the only pleading, 
 after the indictment, is delivered orally, in open 
 court, and in proper person. No complicated inter- 
 ests are to be nicely adjusted, and no relief is to 
 be granted in successive stages, or adapted to 
 varying conditions.^ The laws affecting life and 
 liberty are, and ought to be, so "plain, perspic- 
 uous, and easily apprehended by the common in- 
 telligence,"^ that there is no room here, and should 
 be none, for the "one man power" of adjudication.^ 
 In criminal jurisprudence, therefore, the fusion of 
 law and equity may be said to be approximately 
 complete. 
 
 § 164. Quasi Equitable Jurisdiction. Among the 
 classes of civil cases not usually referred to equity 
 jurisprudence, but which are to a great extent 
 within its province, may be mentioned: 
 
 1. Cases at law in certain stages where motions 
 are pending to strike out judgments, quash execu- 
 tions, to amend, to postpone, &c. These motions 
 are addressed to the equitable discretion of the 
 
 'Brown vs. Buck, 75 Mich. 274, 285. 
 ^Laiiib vs. State, 67 Md. 534. 
 
 'The privilege of waiving trial by jury (Cons. art. 12, sec. 8) in 
 criminal cases, should be restricted to cases not capital. 
 
234 EQUITY JURISPRUDEXCB. 
 
 court, are governed by equitable principles/ and are 
 granted on equitable terms. ^ 
 
 And when the principles of law and equity conflict, 
 courts of law will in such cases follow equity in 
 preference.' 
 
 Motions for new trials are also governed in great 
 measure by equitable considerations, and are fre- 
 quently granted on equitable terms.^ Their com- 
 paratively modern introduction or development in 
 courts of law has practically superseded resort to 
 courts of equity for relief against judgments in a 
 large class of cases formerly relieved only by 
 injunction.^ 
 
 2. Cases where a common law court has power by 
 statute to compel discovery, production of docu- 
 ments and perpetuation of testimony.^ 
 
 'Huntington vs. Emory, 74 Md. 69; Snowden vs. Preston, 73 Md. 
 267; Smith vs. State, 46 Md. 617-620; Craig vs. Wroth, 47 Md. 283; 
 Gorsuch vs. Thomas, 57 Md. 339; Phillips vs. Negley, 117 U. S. 677; 
 Gumbel vs. Pitkin, 124 U. S. 131, 146; 2Poe, PI. and Pr. sec. 392; 3 
 Bl. Com. 405, 406; Schantz vs. Kearney, 47 N. J. Law, 56; Hier vs. 
 Kaufman, 134 111. 226; Owen vs. Weston, 63 N. H. 602. 
 
 2 Andrews vs. Bank, 77 Md. 21; Coulbourn vs. Fleming, 27 Atl. 
 Eep. 1041, 77 Md.; Heaps vs. Hooper, 68 Md. 383; Ferrall vs. 
 Farnen, 67 Md. 76, 84; Jenkintown Bank App. 124 Pa. 345. 
 
 ^Smith vs. State, 46 Md. 620; and cases swpra. 
 
 *State vs. Weiskittle, 61 Md. 48, 52; 2 Poe, PI. and Pr. sees. 
 344, 347. 
 
 'Pom. Eq. Jur. sec. 1365; 3 Bl. Com. 392; KatclifEe vs. Stretch, 
 130 Ind. 285. 
 
 "Md. Code, Art. 75, sec. 94; Art. 35, sec. 19; Austin Abbott in 
 Harvard Law Review, VII, 82. 
 
DEFINITION. 335 
 
 3. Cases at law involving an; account, referred to 
 an auditor.* 
 
 4. Cases where the plaintiff, upon bringing an 
 action at law, or either party, after the commence- 
 ment thereof, applies to the court where the action 
 is pending, for an injunction.^ 
 
 5. Cases where the defendant in an action at law, 
 (including the plaintiff in replevin, when avowry or 
 cognizance is made), in which, if judgment were 
 obtained, he would be entitled to relief on equitable 
 grounds, is empowered to plead the facts which 
 entitle him to such relief, by way of equitable 
 defence.^ 
 
 6. Statutory proceedings for the forfeiture of a 
 charter for abuse or non-user.* 
 
 7. Cases where the orphans' court has jurisdiction 
 concurrent with courts of equity in sales of intes- 
 tates' real estate, not exceeding in appraised value 
 $2,500, with like powers to adopt rules and appoint 
 trustees.^ Decrees of orphans' court in matters 
 within its special, limited jurisdiction,^ are enforce- 
 able as decrees of courts of equity,^ and in the exer- 
 cise of such jurisdiction it applies the principles 
 
 'Art. 26, sec. 9; Rules of courts, K. 49; Yelverton vs. Coley, 
 101 N. C. 248; PouUain vs. Brown, 80 Ga. 28. 
 
 2Art. 75, see. 116. 
 
 3 Art. 75, sec. 83; Williams vs. Peters, 72 Md. 584; Taylor vs. State, 
 73 Md. 209, 222; Miles vs. State, 73 Md. 398. 
 
 *Md. Code, Art. 23, sec. 255; Bel Air Social vs. State, 74 Md. 297, 302. 
 
 =Code, Art. 93, sees. 282-287; Nally vs. Long, 56 Md. 567. 
 
 «Eichelberger vs. Hawthorn, 33 Md. 596; Levering, 64 Md. 
 410, "411. 
 
 ^Code, Art. 93, sec. 231. 
 
236 EQUITY JUEISPKUDEKCE. 
 
 of equity when applicable,^ but without intruding 
 upon chancery jurisdiction with respect to trusts.^ 
 Orphans' court has also concurrent jurisdiction 
 with courts of equity, in providing for the disposi- 
 tion and security of property retained by an executor 
 to await time or contingency.' 
 
 8. Cases for small amounts before justices of the 
 peace, to be determined "according to the laws of 
 the land, and the equity and right of the matter."'' 
 But these magistrates, not having full equity powers 
 (injunction, specific performance, &c.), have, there- 
 fore, "not the means of doing that full and ample 
 justice which the particular case may require."' 
 
 9. Cases referred to arbitration — " a scion of 
 equity engrafted on the common law."" 
 
 10. Cases before the commissioner of the land 
 office, declared to be a "court of record," with 
 power to decree according to the " principles estab- 
 lished in courts of equity."' 
 
 'Orem vs. Wrightson, 51 Md. 34; Potter, 56 Conn. 16; Stevens vs. 
 Gage, 55 N. H. 175; Odd Fellows' Appeal, 123 Pa. 357. 
 
 ^Code, Art. 16, sec. 81; Art. 93, sec. 256; Keplinger vs. Maccubin, 
 58 Md. 213; McBride vs. Mclntyre, 91 Mich. 406; Hewitt's Appeal, 
 53 Conn. 24, 37. 
 
 «Code, Art. 93, sec. 10 ; Hindman vs. State, 61 Md. 475. 
 
 *Code, Art. 52, sec. 5 ; see 3 Bl. Com. 82. 
 
 n Spence Eq. 634, note 6; Foster vs. Reeves, (1892), 2 Q. B. 
 (C. A.,) 255 ; Stafford vs. Scroggin, 43 111. App. 48 ; Thompson vs. 
 Ogle, 55 Ark. 101. 
 
 "Haynes' Outlines of Equity, 235; Code, Art. 7, sees. 1-6 ; 2 Poe 
 PI. & Prac, sec. 136, &c. Defect of arbitration is, that parties have 
 to furnish their own court room, and pay their own judge. 
 
 'Code. Art. 54, sees. 1, 15 ; Armstrong vs. Bittinger, 47 Md, 111. 
 So by U. S. Kev. Stat., sec. 2450. 
 
DEFINITION. 237 
 
 11. Cases in insolvency, as to the two features of 
 distribution and injunction.^ 
 
 12. Cases in admiralty. - 
 
 §165. "Natural justice." Justice is defined as 
 " the habitual disposition to give every one his due."^ 
 It is distinguished from law, which is defined as a 
 "rule prescribed,"* and it is said to be "natural,'^ 
 because this principle, or disposition (voluntas), is 
 supposed to inhere in man as a social being, ante- 
 dating all positive law, and properly forming its 
 inspiration.^ 
 
 Natural justice is equity in its broadest sense, 
 involving the idea of morality, and especially good 
 faith.^ Juridical equity is " that portion of natural 
 justice, which, though of such a nature as to admit 
 properly of its being judicially enforced, was omitted 
 to be enforced by the common law courts — an 
 omission which was supplied by the court of 
 chancery."' 
 
 'Co., art. 47, sees. 11. 23 ; Gottschalk vs. Smith, 74 Md. 560; 
 Paul vs. Locust Point Co., 70 Md. 288; Third Nat. Bank vs. Lana- 
 han, 66 Md. 469 ; Gable vs. Scott, 56 Md. 177, 8 ; Freydendall vs. 
 Baldwin, 303 111. 325. 
 
 ^Hawes on Juris., sec. '^3 a/ Hall vs. Hurlbut, Taney C. C. 589, 600. 
 
 ^Juttitia est constani et perpetua voluntas jus suum cuique tribuendi. 
 Inst. I, 1. 
 
 n Bl. Com. 44. 
 
 ^Montesq. Esp. des Lois, 1, 1 ; Locke, Human Und. Book 1, ch. 3. 
 How far many rules of the common-law departed from natural 
 justice has already been seen. Ante, sec. 145 ; Carr vs. Hamilton, 
 129 U. S. 255 ; Railway Co. vs. McAlpine, 129 U. S. 313, 314. 
 
 * Pom. Eq. Jur. sec. 67. 
 
 'Haynes' Outlines, 7, 8. 
 
338 EQUITY JUEISPKUDBBrCB. 
 
 §166. " Public policy." Natural justice enjoins 
 the performance of a class of duties which it would 
 be highly inexpedient to enforce judicially, and with 
 which technical or juridical equity has nothing to 
 do. Such are the duties of charity, gratitude, 
 generosity, courtesy and kindness, and of positive 
 engagements without valid consideration,^ or barred 
 by statute.^ These virtues are wisely classed among 
 moral duties of imperfect obligation, since to compel 
 their performance would destroy their very nature.' 
 
 Even good faith, as known to equity, is obliged to 
 ignore, not only some concealments, but actual 
 misrepresentations forbidden by the strict moral law, 
 or a high sense of honor or delicacy.* Nor is it 
 
 iForster vs. Ulman, 64 Md. 526. 
 
 ^Dunphy vs. Eyan, 116 U. S. 498. 
 
 ^Ch. Just. Parsons' Memoir, 202. — "I can only hope that they 
 (next of kin) will consider the claim which this lady, (a disap- 
 pointed legatee through technical indefiniteness of the trust,) has 
 upon their generosity." Kay, J. In re Boyes, 26 Ch. D. 537. 
 " Whatever rights the agreement set up (for a division of trustee's 
 commissions) may have given the appellant, according to the 
 courtesies of the profession, he acquired none by it which he can 
 enforce at law." Hopkins vs. Hinkley, 61 Md. 584, 590. "The 
 case baa the appearance of hardship, but that is beyond our control. 
 It may appeal to the ienemlence of the association of which the 
 deceased was so long a member." Yoe vs. Howard Mutual Associ- 
 ation, 63 Md. 93. See also. Brooking vs. Madslay, 38 Ch. D. 636, 643. 
 
 *Kerr on Fraud and Mistake, 82, cited Robertson vs. Parks, 76 
 Md. 118, 133 ; McAleer vs. Horsey, 35 Md. 439, 451 ; Wiest vs. 
 Garman, 4 Del. 133, 136, 138 ; Shoemaker vs. Cake, 83 Va. 8. "It 
 is nought, it is nought, saith the buyer ; but when he is gone his 
 way, then he boasteth." Prov. xx.. 14. "Laudat venules qui mlt 
 extrudere merces." Hor. Ep. II, 2, 11. 
 
DEFISriTION. 239 
 
 every breach of trust that can be relieved even in 
 equity .1 
 
 Nor can a court of equity relieve competent parties 
 from their deliberate contracts, however unwise and 
 improvident.^ Certain rules of presumption, also, 
 have been found necessary for the welfare of society, 
 which may work injustice in particular cases. ^ 
 
 Public policy has been found by experience to 
 require that pure ethics should, in its practical appli- 
 cation to human affairs through the medium of 
 courts, be alloyed with expediency. It is not senti- 
 
 ^In the case of a husband, 'who, before marriage, had encouraged 
 expectations in his wife respecting the disposition of his property, 
 which, after marriage, he failed to meet, she having confidingly 
 permitted the title to remain in him without securing any binding 
 agreement, the court said : " She relied upon his honor and has 
 been deceived. But those facts, however strongly they appeal to 
 our sympathy, cannot justify the court in finding, upon the meagre 
 evidence in this cause, that there was an agreement upon his part in 
 consideration of marriage." Nickerson, 127 U. S. 677. 
 
 ^Goodwin vs. White, 59 Md. 509; Hemingway vs. Coleman, 49 
 Conn. 390. 
 
 ^Campbell vs. Holt, 115 U. S. (i28. "If by these means" (20 years 
 adverse possession of a disseisor) "he succeeds in retaining what 
 he has actually grasped, he secures to himself what public policy, 
 not justice, allows." Hoye vs. Swan, 5 Md. 255. But see Bait. 
 Chem. Co. vs. Dobbin, 23 Md. 218. "A fixed rule may give rise to 
 occasional deviations from justice, but these amount to nothing 
 more than the price which every member of the community must 
 pay for the advantages of an enlightened code." Ld. Ch. Erskine, 
 8 Camp. L., Chan. 253. "Though a strict adherence to rules may 
 sometimes produce hardship, a loyal adherence to them is best for 
 the public and for litigants." Esdale vs. Payne, 40 Ch. D. 535; 
 Bleckley vs. Branyan, 28 S. C. 453; Gemmill vs. Bichardson, 4 Del. 
 Ch. 614; Hazard vs. Durant, 14 R. I. 37. 
 
240 EQUITY JUEI8PEUDENCE. 
 
 mental or abstract justice in any individual case 
 that is aimed at, so much as average justice to the 
 great mass of mankind, and practical justice to the 
 individual, so far as consistent with it. Principles 
 of public policy reach further and aim higher than 
 the apparent justice of the particular litigation, and 
 contemplate more general interests than those of the 
 immediate parties.^ 
 
 § 167. Reaction of equity upon lavr. Neither 
 does juridical equity include that portion of natural 
 equity adequately enforced by legal remedies, origi- 
 nally provided. When the result of statutory im- 
 provement, or of a more liberal and enlightened 
 administration of the modern common law a concur- 
 rent jurisdiction is, in general, retained. Blackstone, 
 over a century ago, complacently refers, although 
 prematurely, and somewhat too broadly, to "the liber- 
 ality of sentiment which (though late) has now taken 
 possession of our courts of conomon law, and induced 
 
 'A striking illustration of this is to be found in the familiar rule 
 of equity forbidding acquisitions by a trustee of the trust estate, 
 through the application of which many transactions may be an- 
 nulled, in which the purchase by the trustee was openly made, 
 with no reason to doubt the fairness of his conduct. Conway vs. 
 Green, 1 H. & J. 152; Lewis vs. Welch, 47 Minn. 193. Another is 
 the principle which forbids a judicial accounting between confed- 
 erates in crime. Prunty vs. Basshor, Cir. Ct. Bait. City, reported 
 in Daily Eecord, May 11, '89, and cases cited. Still another is the 
 principle which precludes recovery upon a contract whose consider- 
 ation is the stifling of a prosecution. "It is an extremely discredit- 
 able defence, to which we are compelled to give effect upon grounds 
 of public policy." Jones vs. Building Soc. (1892) 1 Cfi. 173, 188. 
 
DEFINITION. 241 
 
 them to adopt (when facts can be clearly ascertained) 
 the same principles of redress as have prevailed in our 
 courts of equity."^ Thus the action of assumpsit for 
 money had and received, is said to be " an equitable 
 action in which the plaintiff may prove all equitable 
 circumstances incident to his case, and recover any 
 money in the hands of the defendant which ex cequo 
 et bono belong to the plaintiff."* But this liberality 
 must be materially*^ qualified by the condition that 
 it is not to be taken as obliterating any of the well 
 defined lines of demarcation between law and equity 
 nor as abrogating settled rules of law.' And thus 
 the departments of mercantile law, of insurance, 
 evidence, bailments, &c., in fact nearly the whole 
 system of laws governing personal property, have 
 under modern judges, been brought as closely up to 
 the standard of natural justice and equity as human 
 tribunals can probably attain, with all the aid that 
 could be derived from constant reference to the 
 oracles of Roman jurisprudence. 
 
 § 168. I^aw reform. It is also true that by legis- 
 lation enlarging the legal capacity of married women,* 
 allowing set-off,^ allowing suit on lost negotiable in- 
 
 M Bl. Com. 442. Cf. 1 Bl. Com. 10. 
 
 ^Nat'l Mechanics Bank of Balto. vs. Nat'l Bank of Balto., 36 Md. 
 26. Ashley vs. Jennings, 48 Mo. App. 143. For an instance of an 
 action of assumpsit turning upon equitahle principles exclusively, 
 see EeifE vs. Horst, 52 Md. 264. See also Druid vs. Oettinger, 53 
 Md. 46; Hospital vs. Foreman, 29 Md. 532. 
 
 ^Boyce vs. Wilson, 32 Md. 129. 
 
 *Md. Code, Art. 45. 
 
 'Md. Code, Art. 75, sees. 12, 13. 
 16 
 
242 EQUITY JUEISPKUDBNCE, 
 
 struments,^ regulating the assignment of choses in 
 action,^ allowing equitable interests to be taken in 
 execution,^ or by attachment,* providing for discovery 
 and production of documents,^ and perpetuation of tes- 
 timony/ removing the disability of interest from wit- 
 nesses,'' abolishing fictions in ejectment,^ reforming 
 the law of penalty,^ joint tenancy,^" joint liability, ^^ 
 and merger, ^^ and still more notably by the legislation 
 conferring equity powers upon courts of law in cases 
 of account,^^ injunction,^* and equitable defence,^^ much 
 of the rigor and deficiency of the old law, which 
 necessitated the intervention of equity, has disap- 
 peared. Still more of it has given way under the 
 persuasive pressure of equity upon law, which has 
 compelled judges to abandon some of the more ex- 
 treme dogmas connected with the effect of a seoi!," 
 with profert, in its bearing, upon lost instruments, and 
 with penalties and forfeitures in bonds and mort- 
 
 'Md. Code, Art. 13, sec. 11. 
 
 2Md. Code, Art. 8, sees. 1-10. 
 
 «Md. Code, Art. 83, sees. 1-5. 
 
 *Md. Code, Art. 9, sec. 10. 
 
 =Md. Code, Art. 75, sec. 94. 
 
 «Md. Code, Art. 35., sec. 19. 
 
 'Md. Code,_Art. 35, sees. 1-6. ^ 
 
 «Md. Code,' Art. 75, sec. 69. 
 
 'Md. Code, Art. 75, sec. 87. 
 lOMd. Code, Art. 50, sec. 13. 
 i^Md. Code, Art. 60, sees. 1-12. 
 i^Md. Code, Art. 64, sees. 1, 2. 
 "Md. Code, Art. 26, sec. 9. 
 "Md. Code, Art. 75, sees. 116-128. 
 '^Md. Code, Art. 75, sees. 83-85. 
 "Herzog vs. Sawyer, 61 Md. 352, 353; Canal vs. Ray, 101 U. S. 527. 
 
DEFINITION-. 243 
 
 gages:^ and to enforce the liability of corporations 
 not only for parol and implied contracts, but for 
 torts.2 
 
 The same process of judicial reform has further 
 enriched the common law, and enlarged its resources 
 of effecting substantial justice, by the modern intro- 
 duction or development of equitable doctrines calcu- 
 lated to prevent needless circuity of action, and to 
 repress fraud, such as stoppage in transitu,^ recoup- 
 menPand estoppel in pais, or equitable estoppel f on to 
 protect some of the equitable rights of sureties, as- 
 signees, assignors, and parties to specialties,^ or to 
 recognize the substantial distinction between nominal 
 and real parties to suits.' 
 
 n Poe, PI. and Pr. sec. 748; ICh. PI. 398; 4 Kent, 158. 
 
 ^McKim vs. Odom, 3 Bland, 421. 
 
 ^Smith's Merc. Law by Pomeroy, sec. 635; 2 Benj. Sales, sec. 
 1230, note. 
 
 ''Harmon vs. Bannon, 71 Md. 424. 
 
 *Md. Ins. Co. vs. Gusdorf, 43 Md. 513; Kirk vs. Hamilton, 102 
 U. S. 68, 78. 
 
 62 Am. Lea. Ca. 431, •432. 
 
 '1 Tay. Ev. sec. 741. In some states which still adhere to com- 
 mon-law forms, their technical diflSculties are no longer allowed to 
 obstruct justice. Thus, in New Hampshire, counts in contract and 
 tort may be joined, either in the original declaration, or by amend- 
 ment either before or after verdict. A new party may be joined as 
 plaintifl, even after verdict, and may have judgment for his share 
 of the damages. Misjoinder of plaintiffs or defendants may be 
 cured after verdict. In an action at law, either party may file a 
 bill in equity as an amendment of his pleadings, and in a suit in 
 equity, either party may file a declaration at law. Owen vs. Wes- 
 ton, 63 N. H. 599, 603. This last result was reached as a logical de- 
 duction from the unity of judge and chancellor in the eame person. 
 " It is not the duty of the judge to consider himself two courts for 
 
3M EQUITY JUBISPKUDBNCE. 
 
 § 169. Substance rather than form. Since the ex- 
 ample set by the code states and followed in Eng- 
 land, abolishing the old forms of action and pleading, 
 and assimilating common law procedure to that of 
 equity, there has been a marked change in the ju- 
 dicial temper on both sides of the Atlantic. Artificial 
 refinements and technical subtleties are no longer 
 encouraged. MeeSon and Welsby, and the " Barons 
 Surrebutter," in whom those excellent reporters de- 
 lighted, have had their day. As a general rule, all 
 courts are now disposed to brush away formal im- 
 pediments in order to get at the real justice of the 
 case, to subordinate remedies to rights, and not 
 rights to remedies.' 
 
 § 170. Present state of law and equity. Notwith- 
 standing the modern expansion of law in the direc- 
 
 the purpose of oppressing the parties by an unnecessary suit. Legal 
 fictions are invented for the advancement of justice, but the fiction 
 that one court is two courts is not to be invented for a mere purpose 
 of injustice." Doe, C. J., in Metcalf vs. Gilmore, 59 N. H. 417, 
 431. In this connection it is to be remarked, that an action of 
 ejectment in the Circuit Court of the United States for the Southern 
 District of Georgia, was by an order of the court transferred to the 
 equity docket, and by proper amendments converted into a tuit in 
 equity. Wilson vs. Riddle, 123 U. S. 609, 610. 
 
 ^Alvey, C. J., in Herzog vs. Sawyer, 61 Md. 352, 353; Farrel vs. 
 Baltimore, 75 Md. 493. " Abolition of the many abstruse techni- 
 calities of pleading and conveyancing, which were essentially nar- 
 rowing in their tendency, has caused lawyers to take a broader 
 view. To this must be added the influence of the bench, the more 
 powerful occupants of which have endeavored to take what may 
 be termed a common sense view of the law; and the influence of 
 the new school of legal writers; such as Sir James Stephens." 1 
 Law Q. Rev. 322. 
 
DBFINITIOK. 245 
 
 tion of equity, it is still true that of the two systems, 
 equity is the one which, upon the whole, more nearly 
 approaches the standard of morality and justice.' 
 
 § 171. "Precedent." It has already been seen 
 that the function of individual conscience in the ad- 
 ministration of primitive equity has by modern equity 
 been shaped and directed under the influence of a 
 system of fixed rulQs, gradually evolved from accu- 
 mulated decisions, that these rules have been accepted 
 as the landmarks of equity, circumscribing its juris- 
 diction within settled boundaries, and that the active 
 principle upon which these precedents have been 
 established is the want of "plain, adequate and corh- 
 plete remedy at law." But it has likewise been seen 
 that the same creative energy which gave birth to 
 these precedents is still present in the system, 
 although latent, yet potential; and that even the 
 
 ^1 Pom. Eq. Jur. sec. 67. Any doubt as to this proposition will 
 be removed by reference to such survivals of ancient common law 
 as are recognized in the following cases — all good law: O'Brien vs. 
 Fowler, 67 Md. 561; Smith vs. State, 66 Md. 218, 219, based on Stir- 
 • ling vs. Garritee, 18' Md. 448, 468, and Canton vs. Weber, 34 Md. 
 669, 670; Shertzer vs Ins. Co., 46 Md. 5r6, based on Deale's case, 18 
 Md. 51; State vs. Humbird, 54 Md. 327; Crisfield vs. State, 55 Md. 
 192; Boyce vs. Wilson, 32 Md. 129; Hamilton vs. Conine, 28 Md. 
 635. And the three following cases in combination: (Rachel Col- 
 Vin's Will,) 7 Md. 582, 14 Md. 532, 20 Md. 357, from which it re- 
 sulted that the same party was, at the same moment, while execut- 
 ing the same will, sane as to her personal, and insane as to her real 
 estate, but inasmuch as the deed of the reversion to one of her 
 leasehold lots had no seal, the want of that seal made her sane as to 
 that particular lot! If Lloyd Rogers had not forgotten to seal his 
 deed, she would have been insane altogether, that is, as to her real 
 estate. She was "but mad north-north-west." Hamlet's case. 
 
346 EQUITY JtrEISPEUDElirCE. 
 
 survey of modern equity affords many instances of 
 its inventive exercise. To affirm, in the presence of 
 this two-fold proposition, that equity, even at this 
 late day, is absolutely controlled by the judgment of 
 dead men, to all intents and purposes, would be to 
 ignore its inherent vitality and capacity for develop"- 
 ment in order to keep step with the march of civil- 
 zation.i To check the .tangential force of this pro- 
 gressive tendency, the gravitating power of prece- 
 dent comes in and holds equity within its orbit. In 
 this way the "principles of natural justice" are "con- 
 trolled, in a measure," by "established precedent."^ 
 What that measure definitely and precisely is, no 
 authority professes to teach. There is an apparent 
 vagueness here, inherent in the nature of the sub- 
 ject, the reasons for which will be better under- 
 stood when we come to consider the maxims of 
 equity. 
 
 § 172. " Positive provisions of law." Equity is 
 also controlled, in its practical application, more or 
 less, by "positive provisions of law.," statutory or 
 common.' Just to what extent, or upon what precise 
 principle equity thus follows the law, it is difficult 
 to say.* On the one hand, the express terms of a 
 positive statute will often be overruled by some 
 favorite doctrine of equity, while on the other the 
 
 iBisph. Pr. Eq. sec 583; 1 Pom. Eq. Jur. sec. 60. 
 ^Yingling vs. Miller, 77 Md. 104; Provost vs. Abercrombie, 
 46 Md. 172, 180; Dashiell vs. Atty. Gen. 5 H. & J. 1, Brantly's note. 
 "Hedges vs. Dixon Co. 150 U. S. 182. 
 *Sp. Eq. 421. 
 
DEFINIXION, 247 
 
 fundamental principles of equity will occasionally 
 be waived to gratify the logic of some cherished 
 legal dogma. Thus the main object of the statute of 
 uses was defeated by the doctrine of trusts.^ Thus 
 the statute of frauds will not be allowed to obstruct 
 the specific performance of a parol contract, partly 
 performed/ nor of a mistaken written contract, as 
 reformed by parol,' nor will the registry laws be suf- 
 fered to prevent frhe enforcement of an equitable 
 lien;' and yet, the conceded intention of a testator 
 will be avowedly defeated to follow the rule in Shel- 
 ley's case,^ or some other arbitrary feudal survival of 
 the dark ages, such as the rule of law requiring that 
 in order to support a contingent remainder there 
 must be an estate of freehold in existence at the 
 time it becomes vested.* 
 
 The instances of hardship referred to by Black- 
 stone,' which equity left unrelieved, have always 
 proved a stumbling block to commentators.' Other 
 instances have been more satisfactorily accounted 
 for.' In most cases that may occur, a reference to 
 
 'Bisph. Pr. Eq., sec. 53. 
 
 ''Semmes vs. Worthington, 38 Md. 319; Brown vs. Sutton, 129 
 TJ. S. 239. 
 
 'Farmville vs. Butler, 55 Md. 237; Popplein vs. Foley, 61 Md. 
 387. 
 
 ^Carson vs. Phelps, 40 Md. 100; Hartsock vs. Kussell, 52 Md. 626; 
 White vs. Neaylon, 11 App. Ca. 171. 
 
 ^Warner vs. Sprigg, 62 Md. 20; Bowen vs. Lewis, 9 App. Ca. 890, 
 921; Evans vs. Evans, (1892) 2 Ch. 186, 187. 
 
 «Cunlifl vs. Brancker, 3 Ch. D. 399, 407. 
 
 '3 Bl. Com. 430. 
 
 '1 Pom. Eq. Jur. sec. 54. 
 
 ^Ibid. sec 53. 
 
248 JiQUITT JUEISPKUDBNCE. 
 
 precedent will be the only practical guide to deter- 
 mine how far equity is controlled by law, and how 
 far law is controlled by equity. Theoretically, the 
 diflBculty of finding any guide may be inferred from 
 the vague expression of Lord Hardwicke: "When 
 the court finds the rules of law right, it will follow 
 them, but then it will likewise go beyond them."* On 
 the other hand we find an English judge, as late as 
 the year 1886; expressing himself in the Chancery 
 Division in this wise: "But I am told that whatever 
 may be the proper view of the case according to com- 
 mon justice and common sense, the law is against me, 
 and I must decide according to law and in opposi- 
 tion to common justice and common sense. Let me 
 consider whether T am in that painful position, 
 "because, if I am, I admit that I am bound by the 
 common law. of the land."^ The still later expression 
 of a Maryland judge offers perhaps as definite a 
 proposition on this head as can be made with safety. 
 "It is undoubtedly within the power of a court of 
 equity to adapt its methods to the exigencies of jus- 
 tice, being careful, however, not to grasp at forbid- 
 den power for the purpose of relieving the hard- 
 ship of a particular case."^ 
 
 ^l>^ § 173. Recapitulation. Briefly, equity may be 
 regarded as a system which derived its elements 
 
 ^ Paget vs. Gee, Amb. App. 810. Cowper vs. Cowper, 2 P. Wms. 
 753; (Jekyl M. K.); 1 Pom. Eq. Jur. sec. 61, note. 
 ^Pearson, J., in 32 Ch. D. 42. 
 'Bryan, J., in Gittings vs. Worthington, 67 Md. 149. 
 
DEFINITIOIT. 249 
 
 from the principles of natural justice found in con- 
 science and the Koman jurisprudence. It was, how- 
 ever, controlled in its growth by "the necessity of 
 conforming to the analogies of the common law." 
 "But it has always answered the description of a 
 body of comparatively novel legal principles, claim- 
 ing to override the older jurisprudence on the strength 
 of an intrinsic ethical superiority."^ 
 
 "As Sir Henry Maine points out, it was greatly 
 owing to Lord Eldon, during his long reign in the 
 court of chancery (1801-1827), that equity became a 
 body of rules scarcely more elastic than the com- 
 mon law, A similar stage was reached in the his- 
 tory of Koman equity, when the edicts of the praetors 
 were consolidated by Julianus, in the time of the 
 emperor Hadrian. The subsequent history of both 
 systems is also not dissimilar. The work of the 
 praetors was finally adopted into the body of the 
 law by the legislation of Justinian, as were the doc- 
 trines of the chancellors into the law of England by 
 the Judicature Act of 1873. In either case, equity 
 ceased to exist as an independent system, but be- 
 queathed its principles to the system into which it 
 was absorbed."^ The same thought was distinctly 
 anticipated more than a century earlier by a shrewd 
 foreign observer, in a passage remarkable for pro- 
 found insight and prophetic sagacity. After referring 
 to the codification of the Eoman laws in the reign of 
 
 'Maine's Anc. Law, 43. 
 ^Holland's Juris., 56. 
 
250 EQUITY JUKISPEUDElirCE. 
 
 Justinian, he adds significantly: "This was an event 
 of much the same nature as that which will take place 
 in England whenever a coalition shall be effected 
 between the courts of common law and those of 
 equity, and both shall thenceforward be bound alike 
 to frame their judgments from the whole mass of pre- 
 cedents then existing, at least of such as it will be 
 possible to bring consistently together into one com- 
 pilation."* In the view taken by this suggestive 
 writer, the mission of the English chancery was that 
 of an "inferior, experimentallegislature."^ 
 
 'DeLolme, Cons, of England, B. 1, c. 11, p. 146, note, A. D. 1784. 
 ^Ibid., 149. 
 
OHAPTEE X. 
 
 PRINCIPLES OF EQUITY. 
 
 174. How exhibited. 
 
 175. Maxims. 
 
 176. Doctrines. 
 
 177. Classification of doctrines. 
 
 178. Rules. 
 
 179. Jurisdictional rules. 
 
 180. Miscellaneous rules. 
 
 181. Equities. 
 
 §174. How exhibited. Having learned something 
 of the principles of equity, in gCT^ral, of their 
 sources, nature, extent, and of the courts and pro- 
 cedure which are their instruments, it is now time 
 to examine them more closely. In their concrete 
 form they are exhibited as — 1, general maxims ; 
 2, doctrines ; and 3, particular rules.' 
 
 §175. Maxims. There are a few broad and com- 
 prehensive precepts, condensed into pithy and preg- 
 nant phf-ases, so pervading the entire structure that 
 together, they may be called the grammar of equity. 
 These maxims are of different degree^ of universality 
 and importance. They are so elementary, and there- 
 fore so general and vague, as to require many quali- 
 fications. In their proper application consists much 
 of the science of equity. It will be seen presently 
 
 n Pom. Eq. Jur. sees. 360, 361. 
 
352 EQUITT JUEI8PRUDEKCE. 
 
 that the leading maxims of equity are naturally- 
 divisible into two classes, one of an enabling, and the 
 other of a restrictive character, and one illustration of 
 each class may be given in passing, as follows : 
 Enabling maxim — equity regards that as done which 
 ought to be done ; restrictive maxim — between equal 
 equities the law will prevail. 
 
 §176. Doctrines. Those special systems of practi- 
 cal rules governing particular states of fact, or 
 branches of equity, elsewhere called " heads, "^ are 
 commonly known as the doctrines of equity. The same 
 term is also employed with a more limited applica- 
 tion. ^ Most of these doctrines are the outgrowth of 
 maxims. For instance, the doctrine of conversion, 
 * and the doctrine of notice, will be found upon 
 examination to proceed respectively from the two 
 maxims above cited. 
 
 The methodical treatment of these doctrines of 
 equity constitutes in fact the body of a professedly 
 full treatise on equity jurisprudence, and does not 
 fall within the scope of this work. Of the most 
 useful and important of these doctrines a sufficiently 
 full conception for all the purposes of elementary 
 instruction will be obtained from the study of their 
 sources in the maxims of equity and in the illustra- 
 tions of those maxims. 
 
 §177. Classification of doctrines. The older com- 
 pilations were mere digests of decided cases, 
 
 '^Ante, sec. 159. 
 
 n Pom. Eq. Jur. sec 361. 
 
DOCTRIIfES. 353 
 
 arranged under the three principal heads, accident, 
 (using that term in a very broad acceptation,) fraud, 
 trusts Attempts at a more systematic division were 
 made by Maddock, by Lord Redesdale/ by Josiah 
 Smith, Spence and Adams. Neither of these plans 
 has met with universal approbation.' 
 
 The classification until recently most familiar to 
 the profession was that adopted by Judge Story,^ 
 following Fonblaaque and Jeremy. It has the 
 advantage of a more immediate tangible connection, 
 with the history of the subject itself, and obviously 
 refers to the origin of equity as merely supplemental 
 to law." This well-known classification distributes 
 the various subjects of equity jurisdiction under 
 three heads, each referring directly to the courts of 
 law. These heads are : 1. Concurrent jurisdiction. 
 2. Exclusive jurisdiction. 3. Auxiliary jurisdiction. 
 
 For reasons already stated,* the last of these heads 
 has become of insignificant importance, if not 
 practically obsolete. The recent reforms in legal 
 procedure herein before referred to,' have- obscured 
 the distinction between the first two, by removing 
 the basis of fact— the relations between equity and 
 
 n Mad. Ch. 21. 
 
 ^Mitford's Eq. PI. 
 
 'See observations on the methods of Smith's Manual, in Haynes' 
 Outlines, 28, and strictures on the method of Adams' Equity, 1 Pom. 
 Eq. Jur., sec. 123, note, and of Snell's Equity, ibid, 122, note. 
 
 *1 Sto. Eq. Jur., sec. 75. 
 
 'Haynes' Outlines, 27. 
 
 ^Ante, sees. 53, 159. 
 
 ''Ante, sees. 16, 137. 
 
354 EQUITY JURISPEUDBNCB. 
 
 law as separate systems — upon which that distinc- 
 tion was founded, so far as concerns England and 
 h©r dependencies, and many of the most important 
 and influential of these States. 
 
 It may further be said that what remains of the 
 old classification, after the innovations in this state 
 and others that have not yet adopted the reformed 
 procedure in its entirety, is in standing conflict with 
 the tendencies of legislation therein. ^ And, finally, 
 the scheme itself, judged on its merits, was one of 
 questionable utility. The writers adopting it do not 
 agree ih their arrangement of topics under the 
 three general divisions of jurisdiction, and are not 
 even consistent with their own principles of classifi- 
 cation.- These topics or grounds of jurisdiction so 
 often overlap and run into each other, that the most 
 eminent of the writers who have attempted to follow 
 out the plan scientifically has been obliged to admit 
 that it is "impracticable and illusory."^ It is, in 
 fact, admitted that "with respect to the exclusive 
 jurisdiction exercised by courts of equity in ma,t- 
 ters of trust, etc. — it seems impossible to define 
 with exactness its boundaries or to enumerate with 
 precision its various principles.* One of the more 
 recent English authors, since the Judicature Acts, 
 rejects the division as obsolete and confusing, "by 
 treating as co-ordinate matters of substance and 
 
 '1 Pom. Eq. Jur. sees. 124, 125. 
 n Pom. Eq. Jur. sees. 122, 123. 
 n story Eq. Jur. sec. 77. 
 ^Eonb. Eq. 23. 
 
DOCTBINES. 355 
 
 matters of form, placing side by side, titles so incon- 
 gruous as trusts and injunctions, mortgages and 
 interpleaders.'" The latest American writers on 
 equity jurisprudence take the same view, and the 
 classification referred to may now be said to be 
 everywhere abandoned. It is true that the acute 
 and analytical mind of Prof. Pomeroy could not for- 
 bear the opportunity of wrestling with its diffi- 
 culties in a labored attempt to explain by its aid 
 the intricacies of equity jurisdiction as distinguished 
 from equity jurisprudence. The sections he devotes 
 to that discussion are the most ingenious and subtle, 
 but the least available for practical use of any por- 
 tion of his profound and philosophical treatise.^ 
 
 The method of classification of the most recent 
 text-writers on both sides of the Atlantic is substan- 
 tially upon the line somewhat obscurely indicated by 
 Mr. Spence,^ but since more distinctly traced as the 
 line of division between equitable rights and 
 equitable remedies, or between those doctrines where 
 the jurisdiction rests on the substantive principles of 
 equity, and those founded on its distinctive pro- 
 cedure.* 
 
 In the first division, that of equitable rights, are 
 included equitable titles under the head of trusts, 
 mortgages and assignments (of choses in action and 
 
 » Smith, Pr. Eq. 3. 
 
 n Pom. Eq. Jur. sec. 136; sees. 146-189. 
 n Spence, Eq. 430. 
 
 *1 Pom. Eq. Jur. sec. 126 ; Bisph. Pr. Eq. sec. 16 ; Smith. Pr. 
 Eq. 5. 
 
256 EQUITY JUBISPEUDENCE. 
 
 future property) ; and also equitable rights (as dis- 
 tinguished from titles) under the head of accident, 
 mistake, fraud, &c. Under the second division the 
 term " remedies " does not refer to the rules of 
 practical procedure, but to such distinctively equit- 
 able reliefs as specific performance, injunction, 
 reformation and the like. 
 
 The practical objection to this plan is that it some- 
 what awkwardly separates the right from its appro- 
 priate remedy, mistake from reformation, accident 
 from re-execution, fraud from cancellation, trust 
 from specific performance or injunction, thus requir- 
 ing much repetition to re-establish the broken con- 
 nection. The only answer to this criticism is that 
 the nature of the subject is incompatible with any 
 perfect system of logical arrangement, and that 
 " these various heads of equity jurisdiction being 
 merely the fruits of the shortcomings of the courts 
 of common law, it might be expected that what is 
 not a systenx in itself (though one is in the habit of 
 so calling it), but only a supplement to the imperfec- 
 tions of another system, should hardly allow of a 
 very methodical classification."^ 
 
 From these considerations it results that the order 
 to be observed in the treatment of the heads or 
 doctrines of equity jurisprudence should be deter- 
 mined by practical convenience, rather than by the 
 supposed requirements of scientific precision,^ and 
 
 'Haynes' Outlines, 26. 
 1 Pom. Eq. Jur. sees. 126, 127. 
 
EULES. 257 
 
 the latest treatise upon the subject seems to be 
 arranged on that plan.' 
 
 § 178. Rules. Particular rules are the compon- 
 ents of doctrine, and are to be distinguished- from 
 "rules of court." Unlike maxims, they are narrow 
 and definite in their scope, practical and pointed in 
 their application. The first example below groups 
 together a number .of rules under the doctrine of 
 conversion. The second example is a rule under the 
 doctrine of notice. 
 
 1. Conversion under a will dates from testator's 
 death; under a deed, from delivery; under a decree 
 for sale, from final ratification; and when the sale is 
 dependent upon a contingency, the conversion dates 
 from the happening of the contingency.^ 
 
 2. One who takes with notice of a prior equity may 
 resist its enforcement under cover of want of notice 
 in his immediate vendor.^ 
 
 § 179. Jurisdictional rules. Tjiere are several 
 rules relating to jurisdiction which are too general 
 to be subordinated to any particular doctrine, but are 
 not usually classed among maxims. These rules 
 have nothing to do with jurisdiction over parties, 
 
 'Beach on Modern Eq. Jnr. 
 
 ^Bisp. Pr. Eq. sec. 320; Sloan vs. SafeDep. Co., 73 Md. 239; Rowland 
 vs. Prather, 53 Md. 239; Keller vs. Harper, 64 Md. 82; Croply vs. 
 Cooper, 19 Wall. 171. 
 
 ^ Bisp. Pr. Eq. sec. 265; Hagthorp vs. Hook, 1 G. & J. 301; Basset vs. 
 Nosworthy, 2 Lea. Ca. Eq. 33; Boone vs. Chiles, 10 Peters 177, 209. 
 17 
 
258 EQUITY JURISPKUDENCB. 
 
 already referred to under the head of procedure.* 
 They relate to jurisdiction of the subject-matter. 
 Jurisdiction of the subject-matter is in general the 
 power to hear and determine,^ and more particularly 
 the power lawfully conferred to deal with the gen- 
 eral class of subjects to which the particular case 
 belongs.' 
 
 Equitable jurisdiction over the subject-matter is 
 defined negatively, and in terms of the common law, 
 by the first jurisdictional rule: 
 
 1. Equity will not assume jurisdiction where the 
 remedy at law has always been plain, adequate and 
 complete.^ 
 
 To prevent the jurisdiction of equity from attach- 
 ing, the legal remedy must be as efiicient as the 
 equitable, both in respect to the relief itself, and the 
 mode of obtaining it.^ Generally, if a proceeding be 
 
 ^Ante. sec. 24. 
 
 2 Rhode Island vs. Massachusetts, 12 Peters 718; Kiggs vs. John- 
 son Co., 6 Wall. 187. 
 
 3 Hunt vs. Hunt, 72 N. Y. 217, 228-230, cited 1 Pom. Eq. Jur. sec. 
 129, note. 
 
 ^Bisph. Pr. Eq. sec. 37, p. 59; 1 Pom. Eq. Jur. sec. 217; 1 Beach, 
 Mod. Eq. sec. 2; Carter vs. Woolfork, 71 Md. 283; McCoy vs. John- 
 son, 70 Md. 490; Balls vs. Balls, 69 Md. 388; Clayton vs. Shoemaker, 
 67 Md. 216; Blaine vs. Brady, 64 Md. 373; Hecht vs. Colquhoun, 57 
 Md. 563; Edes vs. Garey, 46 Md. 24; Polk vs. Pendleton, 31 Md. 
 118; Frost vs. Spitley, 121 U. S. 552, 556; Buzard vs. Houston, 119 
 U. 8. 347, 353; U. S. vs. Wilson, 118 U. S. 86; Killian vs. Elbighaus, 
 110 U. S. 568, 573; Watson vs. Sutherland, 5 Wall. 74; Earl vs. Cir- 
 cuit Judge, 92 Mich. 285; Wolverton vs. Taylor, 43 111. App. 424; 
 Taylor vs. Todd, 48 Mo. App. 550. 
 
 *Tyler vs. Savage, 143 U. S. 95; Kilbourn vs. Sunderland, 130 
 U. S. 189, 215; Drexel vs. Berney, 122 U. S. 252; Scarborough vs. 
 
JUKISDIOTIOir. 259 
 
 coram non judice, that is, if the court act without 
 jurisdiction, either as to parties or subject-matter, 
 the decree is void, may be attacked collaterally, an 
 attempt to enforce execution would be an actionable 
 trespass, and a sale under it would pass no title.* 
 But the assumption of an exclusively legal jurisdic- 
 tion by a court of equity does not necessarily make 
 the decree void, although erroneous and liable to 
 reversal. It cannot be questioned collaterally.'' The 
 Supreme Court of the United States hold it discre- 
 tionary whether to consider the objection or not,' 
 and may reverse a decree, sua sponte, for want of 
 equity jurisdiction, and even where no such objection 
 was made below.* It is provided distinctly otherwise 
 by statute in Maryland, that the objection to the ju- 
 risdiction, in order to be available on appeal, must 
 appear by the record to have been made below.^ 
 
 2. Equitable jurisdiction is, in general, not ousted 
 by a subsequent expansion of the legal remedy.^ This 
 
 Scotten, 69 Md. 140, 141; Gottschalk vs. Stein, 69 Md. 55, 56; Dela- 
 ware Ins. Co. vs. Gillett, 54 Md. 219; Freeholders vs. Bank, 48 N. J. 
 Eq. 54; Overmire vs. Haworth, 48 Minn. 372; Early's App. 121 Pa. 
 496, 511. 
 
 ^Noble vs. Union, 147 U. S. 173, 174; Sawyer, 124 U. S. 200; 
 Windsor vs. McVeigh, 93 U. S. 274, 277; McArthur vs. Scott, 113 
 U. 8. 340; Long, 62 Md. 62, 66; Railroad vs. Sutton, 130 Ind. 413, 
 and cases cited ante sec. 25. 
 
 ^Mellen vs. Moline, 130 U. S. 352, 367. 
 
 'Reyner vs. Dumont, 130 U. S. 355; Amis vs. Myers, 16 How. 
 492 (a remarkable case). 
 
 * Allen vs. Pullman Co. 139 U. S. 658; but see Preteea vs. Max- 
 well, 4 U. 8. App. 327. %i^^iJ^ V V.4^ 1 «r ^0» 
 
 =Md. Code, Art. 5, sec. 35; Biddinger vs.Willard, 67 Md. 359, 363. 
 
 n Sto. Eq. Jur. sec 64; i; Bisp. Pr. Eq. sec 37, p. 62; 1 Pom. Eq. 
 Jur. sec. 276; Shryockvs. Morris, 75 Md. 72, 79; Schroder vs. Loe- 
 
260 EQUITY JUEISPKUDBNCE. 
 
 rule explains the significance of the word "always" 
 in the preceding rule, and applies whethef the legal 
 rehaedy be enlarged by statute or by what is called 
 judicial legislation. The jurisdiction is not ousted 
 by statute unless by express terms or clear and nec- 
 essary implication.^ 
 
 3, Equitable jurisdiction once having attached to 
 a case, will be maintained for the fi nal adjudi cation 
 of_ all rights involved.^ 
 
 This rule is one of the many applications of the 
 maxim that equity prevents multiplicity of suits.^ 
 Its meaning simply is, that wherever jurisdiction has 
 once rightfully attached for any legitimate purpose, 
 it will be made effectual for the purposes of com- 
 plete relief, the court will determine any incidental 
 question necessarily involved, and the case will be 
 retained for the final determination of all questions 
 arising under the claim of any party interested.^ Or, 
 
 ber, 75 Md. 195; Union P. R. Co. vs. Baltimore, 71 Md. 238, 241; 
 Alexander vs. Leakiii, 72 Md. 199, 202; Grain vs. Barnes, 1 Md. Oh. 
 154, affirmed, 8 Gill. 395; Little vs. Price, 1 Md. Ch. 137, Brantly's 
 note; Simmons vs. Doran, 142 U. S. 417, 449. 
 
 'Reeves vs. Morgan, 48 N. J. Eq. 429; Givens' App. 121 Pa. 260; 
 Baxter vs. Moses, 77 Maine, 474. 
 
 ^Rooney vs. Michael, 84 Ala. 588; Brotzman's App. 119 Pa. 645; 
 Hoagland vs. See, 40 N. J. Eq. 469; Kiunan vs. Railroad, 21 N. Y. 
 S. 789. 
 
 ^Bisp. Pr. Eq. sec. 37 p. 58; 1 Pom. Eq. Jur. sec. 231; Phoenix 
 Ins. Co. vs. Eyland, 69 Md. 437; Ben Franklin Ins. Co. vs. Gillet, 
 54 Md. 218; Kunkel vs. Fitzhugh, 22 Md. 576; Sunflower vs. Wil- 
 son, 142 U. S. 313; Chicago R. Co. vs. Bank, 134 U. S. 276, Leighton 
 vs. Young, 10 U. S. App. 301. 
 
 *Post. sec. 229. 
 
 ^Eastman vs. Bank, 58 N. H. 421; Poland vs. R. R. Co. 52 Vt. 
 144, 175; Barrett vs. Nealon, 119 Pa. 170. 
 
JURISDICTION. 261 
 
 as more briefly expressed, when a court of equity has 
 jurisdiction over a cause for any purpose, it may retain 
 it for all purposes.' The rule elsewhere is held appli- 
 cable to orphans' courts when exercising equity 
 powers.^ The rule seems to have been never adopted 
 in the state of New Jersey.^ It was at one time sup- 
 posed to have lost practical importance in the code 
 states, the consolidation of law and equity in the 
 same suit having removed all danger of a party 
 being turned out of one court into another.^ It will 
 be noticed, however, from the references just given 
 to recent decisions in several of those states that the 
 rule is still practically operative therein.' 
 
 The fact that the remaining questions necessary 
 for complete adjustment are legal, or that the rights 
 to be finally established are legal rights, or that the 
 remedies required for their maintenance are legal 
 remedies, will not affect the jurisdiction of equity 
 after it has properly attached." And this principle 
 is not an infringement of the constitutional right of 
 trial by jury.' Thus, where an injunction has issued 
 to stay a sale until certain accounts have been 
 settled, the court may proceed to render a personal 
 
 'McGean vs. Railroad, 133 N. Y. 16; Penn vs. Ingles, 82 Va., 
 69; Benson vs. Christian, 329 Ind. 735; Currie vs. Clark, 101 N. 
 C. 321; Bouland vs. Carpin, 27 S. C. 239; Griffin vs. Fries, 23 Fla. 
 173; Cramp vs. Ingersoll, 47 Minn. 179, 182. 
 
 'Odd Fellows' App. 123 Pa. 357. But see Md. Code, Art. 93, sec. 256. 
 
 'Lodor vs. McGovern, 48 N. J. Eq. 279. 
 
 *Willard's Eq. Jur. 49. 
 
 "And see ante, sec. 136. 
 
 "Gormly vs. Clark, 134 U. S. 338, 349; Beecher vs. Lewis, 84 Va. 630. 
 
 'Railroad vs. McKenzie, 85 Ala. 549. 
 
262 EQUITY JURISPKUDEHCE. 
 
 decree for the balance due.' Where the jurisdiction 
 of equity has been rightfully invoked to reform a 
 mistake in a policy of insurance, full relief will be 
 administered by decree for payment,.^ 
 
 § 180. Miscellaneous rules. In addition to the 
 classes of rules referred to above, there are unclassi- 
 fied rules, not referable to any particular doctrine, 
 generally pointing the practical application of max- 
 ims. The following examples are of every day 
 application in practice: 
 
 1. A court of equity will ratify that when done, 
 which, if previously applied to, it would have ordered.^ 
 This rule will be at once rfecognized as a direct appli- 
 cation of the enabling maxim previously cited, and 
 more fully treated further on, that "equity regards 
 that as done which ought to be done." 
 
 2. That one of two innocent persons should suffer 
 the loss who has most trusted the defaulter;* or, whose 
 
 ^Beeher vs. Lewis, 84 Va. 630. 
 
 2 Phoenix Ins. Co. vs. Eyland, 69 Md. 437, 449. 
 
 ^Harding vs. Allen, 70 Md. 395, 399. (See Zimmerman vs. Fraley, 
 70 Md. 561, 570.) Gable vs. Scott, 56 Md. 181; Abell vs. Brown, 55 
 Md. 217, 226; Brown vs. Hazlehurst, 54 Md. 26, 31; Park Heights 
 Co. vs. Oettinger, 53 Md. 46, 63; Johnson vs. Hambleton, 52 Md. 
 378, 383; Reeside vs. Peter, 35 Md. 220, 223; Krone vs Linville, 31 
 Md. 138, 147; Gray vs. Lynch, 8 Gill. 404, 426; Cunningham vs. 
 Schley, 6 Gill. 208, 230; Tyson vs. Mickle, 2 Gill. 377; Harris vs. 
 Alcock, 10 G. & J. 226, 252; Lee vs. Stone, 5 G. & J. 1, 20; Campbell 
 vs. Digges, 4H. & McH. 12, 15. 
 
 *Eversole vs. Maull, 50 Md. 95, 106; B. & O. R. R. Co. vs. Wil- 
 kens, 44 Md. 11, 29; Foley vs. Smith, 6 Wall. 492, 494; Carpenter 
 vs. Longan, 16 Wall. 271, 273; Jaeger vs. Hardy, 48 Ohio St. 335, 
 342; Weaver vs. Gore, 44 N. H. 196. 
 
EQUITIES. 263 
 
 negligence enabled him to commit the fraud;^ or, who, 
 by rea sgnable care, could have protected hirnself;^ or, 
 whose conduct has misled the other.^ 
 
 This group of cognate^ules will be found upon 
 examination to proceed from the same restrictive 
 maxim which is also the basis of the doctrine of 
 laches, classified hereinafter as the sixth restrictive 
 maxim.'*'^ Several of the cases cited in the notes illu- 
 strate the extent to which the spirit of these rules 
 has been imported into the common law. ^ 
 
 §181. Equities. E quities , or eq uitable rights, are 
 pri ma-facie well-foun ded claims to specific eq uitable 
 reTief^such_as_tha_KifeIs__ec[uij^ the mortgagor's 
 equity of redemption, the equities of ref ormatio n, 
 cancellation, contribution, and the like.^ The wife's 
 quity to a settlement out of her own property which 
 the husband formerly sought to reduce to his own 
 possession by the aid of chancery, has become prac- 
 tically unimportant since her entire property has 
 been secured to her by statute.* As applied to other 
 
 ^Burrows vs. Klunk, 70 Md. 451, 460; Dias vs. Chickering, 64 Md. 
 348, 355; Freidlander vs. Railway, 130 U. S. 416, 425; Heyder vs. 
 Loan, 42 N. J. Eq. 403, 408; Schultz vs. McLean, 93 Cal. 356, citing 
 Civil Code Cal. sec. 3,543; Mundorf vs. Wickersham, 63 Pa. St. 89, 
 Wilde vs. Attix, 4 Del. Ch. 262; St. Johnsburg vs. Morrill, 55 Vt. 
 170; Filtz vs. Walker, 49 Conn. 100; Eaton vs. Davidson, 46 Ohio St. 
 355, 362; Green vs. Kick, 121 Pa. 142. 
 
 *Bank vs. Creswell, 100 U. S. 630, 643; Bank vs. Jackson, 33 Ch. 
 D. 1. 
 
 'Hambleton vs. Bailroad, 44 Md. 551, 559; Tubman vs. Lowe- 
 kamp, 43 Md. 318, 324; Brown vs. Insurance Co. 42 Md. 384, 385; 
 Lister vs. Allen, 31 Md. 543, 548. 
 
 *Bisp. Pr. Eq. sec 110; Md. Code, Art.-45. 
 
364 EQUITY JUKISPRtTDENCE. 
 
 equitable claims the term is of constant recurrence, 
 and has been imported into the phraseology of the 
 common, especially the commercial, law. I n the 
 legal sense, equities are rights incMentto.a.prpj)erty 
 or cpntraclLaS-Jbetween parties^ul not inci dent t o 
 the property^r^ contract froHi-its - own nature.^ In 
 tEe'equitablesense, equities may be regarded as of 
 two classes; one primary, that is relating to rights, 
 titles or estates, the other remedial, or relating to 
 remedies. The equity of redemption is the type of 
 the first class, and the equities of specific perform- 
 ance, reformation and others of similar nature, are 
 examples of the other.^ / 
 
 Equities may be defeated by superior, equities, by 
 balanced or equal^equities, by laches or acquies- 
 cence, by estoppel or electlOTij.by fraud or other inequi- 
 table conduct, or by transfer to a bona fide purchaser 
 without notice.* They differ from legal estates, liens 
 or charges, which can be divested only by legal 
 modes, such as the conveyance of an estate, or the 
 release or satisfaction of a lien or charge.* 
 
 "^Bapalje and Lawrence. 
 ''See 1 Pom. Eq. Jur. sec. 146, note. 
 ^Anie. sec. 160. 
 ' *Gemmill vs. Kichardson, 4 Del. Ch. 612. 
 
CHAPTEE XI. 
 
 
 MAXIMS. 
 
 182. 
 
 In general. 
 
 183. 
 
 Approximative. 
 
 184. 
 
 ifot self-evident. 
 
 185. 
 
 Their practical use. 
 
 186. 
 
 Classification. 
 
 187. 
 
 Enabling and restrictive. 
 
 188. 
 
 Primary and remedial. 
 
 189. 
 
 Combined operation. 
 
 190. 
 
 Application. 
 
 191. 
 
 Importance. 
 
 §182. In general. In all systems derived from 
 the Eoman law, maxims are of special authority.* 
 The common law having been built upon the founda- 
 tion of custom and precedent, the method of its 
 evolution has been largely empirical. Equity, while 
 not failing to avail itself of that method also, has in 
 its growth owed more to the method a priori. It 
 has been accustomed to assume certain postulates in 
 which the fundamental principles of natural justice 
 are happily blended with an enlightened public 
 policy. The union has been a fruitful one. From 
 these postulates or maxims has been deduced a 
 system of juridical regulations for adjusting the 
 relations of society in more advanced stages of 
 
 'Whart. Leg. Max. 5. 
 
266 EQUITY JUEISPEUDBNCE. 
 
 development than those for which the common law 
 was originally adapted. Hence, the value of a 
 thorough investigation of the maxims of isquity, 
 which are few in number and readily susceptible of 
 philosophical division. They are supposed to be so 
 well understood, that the reference to them in 
 discussion is more often tacit than express. They 
 will be found attractive, because "they clothe in a 
 form which is at the same time precisely expressive 
 and universally intelligible, imperishable truths that 
 experience is every day confirming afresh."' 
 
 §183. Approximative. But equity, like war, like 
 political economy, like law itself, cannot claim to be 
 an exact science. Its maxims are not like the 
 axioms of mathematics, inflexibly and universally 
 true. The blended product of ethics and expediency, 
 they cannot be expected to be more than approxima- 
 tions to the absolute truth. There is no one of them 
 which is not, in many cases, of doubtful application. 
 When it is seen, further on, how they are classified, 
 it will be found that it is the business of one set of 
 maxims to antagonize the other. 
 
 In the latest editions of a celebrated English work, 
 we find it rather broadly claimed that " equity is 
 pre-eminently a science, and like geometry, or any 
 other science, starts with or assumes certain maxims 
 which are supposed to embody and to express the 
 fundamental notions of the science."^ Equity may 
 
 1123 Ed. Kev. 235. 
 ^Snell'B Eq. 17. 
 
MAXIMS. 367 
 
 be, in a general sense, called a science, but it is not 
 " pre-eminently a science," like geometry. The 
 axiom, for instance, that " the whole is greater than 
 any of its parts," is an absolute and unqualified 
 truth, which will never yield to any change of 
 physical circumstances, or to any considerations of 
 convenience or morality. As respects its application, 
 there is never any room for doubt or difference of 
 opinion. There is not a single "maxim" of equity 
 of which so much can be said. 
 
 §184. Not self-evident. They also differ from 
 the axioms of mathematics, as well as from the more 
 general speculative maxims (such as, "what is, is," 
 and " it is impossible for the same thing to be and 
 not to be"), in that they are, none of them, self- 
 evident propositions, shining by their own light, 
 and carrying on their face their own warrant of 
 assent. Like moral principles- generally, they 
 require, in order to discover their truth, some intel- 
 lectual exercise, some process of reasoning and 
 illustration, and some previous acquaintance with 
 their subject matter. In a greater or less degree, 
 they are refined, artificial, and, in a sense, technical. 
 They are not an intuition, but an acquisition, the ripe 
 development of many ages of accumulated experi- 
 ence. Their origin is as obscure as that of juridical 
 equity itself. Take them simply for what they are, 
 generalizations of experience, epigrammatic conden- 
 sations of the world's ripest juridical attainment, crisp 
 phrases into which whole cycles of litigation have 
 
268 EQUITY JURISPaUDENCB. 
 
 been packed and made portable. But no proverb, 
 taken literally and by itself, can ever be an infallible 
 guide, since its very conciseness is a virtue 
 purchased at the expense of qualifications and 
 limitations necessary to a rounded conception of the 
 whole truth. 
 
 § 185. Their practical use. If the question then 
 be asked, of what use are these so-called maxims ? it 
 it may be candidly replied, of no practical use what- 
 ever, unless handled with judgment and experience, 
 and always with reference to the special circumstances 
 of the particular case,' The general principle that 
 equity regards special circumstances is not formulated 
 as a maxim, because it is rather a canon of constant 
 application to all maxims.^ Maxims are useful as 
 standards of weight and measure by which the bear- 
 ing and effect of circumstances in proof can be tested 
 and estimated. Having performed this office, max- 
 ims then stand for the point of view from which a 
 court will finally adjust its position to contemplate 
 and adjudge the case. 
 
 § 186. Classification. It is somewhat remarkable 
 that no classification of the cardinal maxims of equity 
 has yet been established, in response to the general 
 
 ^Ante, sec. 157. 
 
 ^'Tailby vs. Official Receiver, 13 App. Ca. 523, 547. If the ena- 
 bling maxims, as will shortly be seen, are to be regarded as the 
 motive power of equity, and the restrictive maxims as the brake, 
 the principle that "equity regards special circumstances" may be 
 called the head-light of the engine. For this apt comparison 
 credit is due to a Maryland University graduate of 1893, Eugene 
 Oudesluys, Esq. 
 
MAXIMS. 269 
 
 demand for a systematic arrangement of all scien- 
 tific, or quasi scientific, principles. No two authors 
 are found independently presenting the same cata- 
 logue of maxims, or presenting those in which all 
 agree in the same order.* 
 
 § 187. Enabling and restrictive. A natural divi- 
 sion of maxims is suggested by the contemplation of 
 equity as a. force, or system of forces. Its most familiar 
 remedies, although ordinary enough in one sense, are 
 commonly spoken of as extraordinary powers;"- that 
 is, extraordinary from a common-law standpoint. 
 Such are injunction and mandate, the appointment 
 of receivers, the cancellation or reformation of con- 
 tracts, or their specific enforcement.^ The handling 
 of such powers by one man is felt by every judge to 
 be a matter of extreme delicacy and responsibility. 
 In all doubtful cases, and there are many such, the 
 
 'The assertion was even at one time ventured by highly respecta- 
 ble authority that "nothing like a logical division of these maxims 
 is possible." Snell's Equity, 12. In later editions, the passage re- 
 ferred to has "been judiciously omitted, without, however. oflEering 
 any attempt at classification, iftid., 5th ed. 17. The arrangement 
 in the text is a development of the method hinted at by Mr. Haynes, 
 who offered, however, but four examples. Haynes' Outlines, 19. 
 
 ^Kyan vs. Mutual, (1893), 1 ^h. 116, 128; Union E. K. Co. vs. Dull, 
 124 U. S. J83; Fosdick vs. Schall, 99 U. S. 253; Atlantic Co. vs. 
 James, 94 U. S. 214; Mitchell vs. Comrs., 91 U. S., 206, cited in 
 Shotwell vs. Moore, 129 U. S. 596; Railroad vs. Cromwell, 91 IT. S. 
 645; Wagoner, 77 Md. 189, 195; Semmes vs. Worthington, 38 Md. 
 325; Wilde vs. Scotten, 59 Md. 76; M'Shane vs. Hazlehurst, 50 Md. 
 119; Little vs. Price, 1 Md. Ch, 185; Pollard vs. R. R. Co., 52 Vt. 177; 
 Pilzer vs. Hughes, 27 S. C. 416; Joyce vs. Electric, 43 111. App. 157, 
 160. 
 
 'These remedies have been spoken of as the "extreme medicine 
 of the law. Shriver vs. Seiss, 49 Md. 388. 
 
270 <^ EQUITY JUBI'SPBUDENCE. 
 
 court is called upon to weigh two sets of considera- 
 tions, one impelling or enabling it to act, the other 
 opposing or restraining its action. Looking at the 
 maxims of equity from this natural point of view, 
 they are found arranging themselves around oppo- 
 site poles into two sets, one set consisting of affirma- 
 tive, motive or positive principles, the other of neg- 
 ative, repellant or passive principles. Those aflBrma- 
 tive principles which excite, or tend to set in motion, 
 the extraordinary powers of equity, are the enabling 
 maxims. The negative principles which restrain, or 
 tend to keep those energies at rest, are the restrictive 
 maxims. By very obvious analogy to the science of 
 the physical forces,* the philosophy of the former may 
 be called the dynamics, that of the latter, the statics, 
 of equity. Moreover, between certain maxims of 
 each class will be found striking resemblances, sug- 
 gesting a further sub-division of each class into 
 groups. 
 
 As thus classified and arranged, the leading 
 maxims of equity are presented in the two following 
 
 tables : ^ 
 
 (!&naiiltns jSlaximei. 
 
 I. Tlbi jus ibi remedium. 
 II. Equity regards substance rather than form. 
 III. Equity regards that as done which ought to be done. 
 f V Equity imputes an intention to fulfil an obligation. 
 V. Equity acts in personam. 
 VI. Equity acts specifically. 
 VII. Equity prevents multiplicity. 
 VIII. Equality is equity. 
 
 ^Presque tous Us axiomes de physique correspondent d des maximea de 
 morale. De Stael, L'AUemagne III, 10. 
 
MAXIMS. 371 
 
 Eefitrtttttte ;|i[axtin0. 
 
 I. Equity follows the law. / 
 ( II. Between equal equities, law prevails, i 
 ( III. Between equal equities, priority of time prevails. ^ 
 ( VI. Who seeks, must do, equity. ^ 
 ■j V. Who seeks equity must come with clean hands. t> 
 ( VI. Equity aids the vigilant. 4 
 
 § 188. Primary and remedial. The object of clas- 
 sification is to assist the learner, and not to confuse 
 him. While, therefore, no formal cross-division of 
 maxims is deemed expedient, it may be worth while 
 to note that certain enabling maxims are sources of 
 equitable rights, titles and estates, or equities, and 
 that one of the restrictive maxims operates, when 
 applicable, to prevent their arising. These may be 
 called primary maxims. Other enabling maxims, 
 again, are sources of equitable remedies, which rem- 
 edies, under proper circumstances, it is the oflSce of 
 other restrictive maxims to defeat. Primary max- 
 ims, therefore, are those which especially relate to 
 rights, and remedial maxims those which especially 
 relate to remedies. A few partake of both characters. 
 
 § 189. Their combined operation. Cases often 
 occur in which several maxims are found co-operat- 
 ing or over-lapping. Take for instance the doctrine 
 of advancement, as connected with the ademption or 
 satisfaction of legacies. The general rule is that a 
 gift by a parent to a child is presumptively an ad- 
 vancement, and a satisfaction or ademption, pro 
 tanto, of a legacy previously given. Here equity 
 
272 EQUITY JURISPKUDENCE. 
 
 "imputes an intention" on the part of the parent 
 "to fulfill an obligation," the obligation being the 
 dictate of natural justice to give each child the 
 amount it ought to have in view of the claims of all. 
 At the same time, another maxim is also gratified, 
 which, " regards that as done which ought to be 
 done." But the effect of the rule is also to prevent 
 any child from getting a double portion, or in other 
 words, to enforce the maxim of equality. It is, 
 , however, the common law right of every man to 
 dispose of his own property, even to prefer one child 
 at the expense of another. The restrictive maxim 
 that "equity follows the law," here comes in and 
 prevents a court of equity from denying this com- 
 mon law right, even to gratify its favorite principle 
 of equality. The whole question, therefore, ultimately 
 resolves itself into one of intention, or in other 
 words, the maxim, " equity regards the intent," en- 
 ables the admission of parol evidence to show either 
 by the parent's declarations at the time, or by any 
 circumstances from which a legitimate inference 
 may be raised, that the donation was in fact and 
 substance not an advancement, but an actual gift in 
 -addition to the legacy.' Many similar instances will 
 suggest themselves as we proceed. 
 
 § 190. Application. In the application of maxims 
 
 it must be borne in mind that most of them have 
 
 primarily in view typical, average situations of fact, 
 
 struck, like a composite photograph, from a wide 
 
 'Dilly vs. Love, 61 Md. 605; Wallace vs. Dubois, 65 Md. 159. 
 
MAXIMS. 273 
 
 experience of human affairs and a vast multitude of 
 instances. From these types, the particular situa- 
 tions encountered in practice are naturally found to 
 vary, either on one side or the other, and in a greater 
 or less degree. A slight variance from the typical 
 forni does not, a wide variance does, prevent the 
 application of the maxim. Thus, in close cases the 
 controversy often resolves itself into a question of 
 degree, or in other .words, a question of fact. 
 
 § 191. Importance. Whoever has possessed him- 
 self of the philosophy of these maxims, by careful , 
 study of the cases cited to illustrate them, will find 
 it easy to master the practical details of equity ju-, 
 risprudence, under whatev er head of doctrine they 
 ma y be found . He will, at the same time, have 
 learned much of the application of principle to doc- 
 trine, much of the doctrines themselves, and much 
 of equity procedure, as the instrument of their 
 utility. On the other hand, the lawyer who ventures 
 to practice in equity without some such preliminary 
 drill in its distinctive and fundamental principles, 
 like an army attempting field manoeuvres before 
 being set up in the school of the soldier, can expect 
 nothing but blunder and disaster. 
 
 18 
 
CHAPTER XII. 
 
 ENABLING MAXIMS. (I.) 
 
 192. Im general. 
 
 193. I. No right without remedy. 
 
 194. II. Equity re^^ards substance rather than form. 
 
 195. Penalties and forfeitures. 
 
 196. Mortgages. 
 
 197. Equitable mortgages. 
 
 198. Trusts. 
 
 199. Powers. 
 
 200. Specific performance — time. 
 211. Partnership— set off. 
 
 202. Corporation. 
 
 •203. Treaties, Statutes, Wills, Contracts. 
 
 204. Other instances. 
 
 205. III. Equity regards that as done which ought to be 
 
 done. 
 
 206. Conversion. 
 
 :207. Executory contracts. 
 
 208. Assignment. 
 
 209. Fraud. 
 
 210. Constructive Trust. 
 
 211. Kelation. 
 .212. Capacities. 
 
 213. Other instances. 
 
 214. Qualification. 
 
 215. Probable origin. 
 
 216. IV. Equity imputes an intention to fulfill an obligation. 
 
 217. Performance and satisfaction. 
 
 218. Resulting trust. 
 
 219. Other applications. 
 
 § 192. In general. The enabling maxims are the 
 ■dynamics of equity. They are positive, aggressive, 
 
EifABLIKG MAXIMS. 275 
 
 generally of use to the plaintiff. It is to be noted 
 here, that in some cases, as in account, both parties 
 are actors, and in many cases a nominal defendant 
 may, for all the purposes of these maxims, occupy 
 the position of actual plaintiff toward some other 
 defendant, or even towards a nominal plaintiff.' It 
 is also to be stated here, once for all, and to be kept 
 in view throughout, that the equities raised by these 
 enabling maxims are all subject to the defences inter- 
 posed in proper cases through the operation of the 
 restrictive maxims. 
 
 As herein classified, the table of enabling maxims 
 is as follows, the order being important: 
 
 I. Ubi jus ibi remedium. 1 
 II. Equity regards substance rather than form, i 
 
 III. Equity regards that as done which ought to be do ne. 3 
 
 IV. Equity imputes an intention to fulfill an obrigationT'n 
 V. Equity acts in personam. H 
 
 VI. Equity acts specifically. ly 
 VII. Equity prevents multiplicity. // 
 VIII. Equality is equity. % 
 
 § 193. No right without a remedy.^ This maxim 
 is both primary and remedial, and was the most im- 
 portant and prolific of all the enabling maxims of 
 equity, in the earlier stages of its growth. It is, in 
 fact, the foundation of equity, which supposes the 
 absence or inadequacy of legal remedy. For reasons 
 already anticipated, its importance at this day is 
 historical and theoretical, rather than practical. 
 
 'Pomeroy, Remedies, sec. 60; Md. Code, Art. 16, sec. 161. 
 ^Bisp. Pr. Eq. sec. 37; 1 Pom. Eq. Jur. sec»423. 
 
276 EQUITY JURISPKUDENCE. 
 
 The question as to whether a remedy exists now in 
 any particular case is determined rather by precedent, 
 and by considerations drawn from other general 
 principles, than by any existing force in this maxim. ^ 
 It is held subordinate to positive institutions, and 
 cannot be applied to subvert established rules, or 
 give the courts a jurisdiction hitherto unknown.^ It 
 is, in short, to be taken subject to the limitations 
 already noticed in the definition of juridical equity. 
 " The principles of natural justice " are applied only 
 to the " special circumstances of defined and limited 
 classes of civil cases," and moreover that application 
 is to be "controlled in a measure as well by consider- 
 ations of public policy as by established precedent, 
 and by positive provisions of law.'" 
 
 Notwithstanding all this the maxim survives, with 
 vitality enough • to turn the scale in favor of 
 the intervention of equity in any fair case of doubt 
 of a civil right without other adequate means of 
 enforcement.* The separate use of a married 
 
 ^Express Co. vs. Seibert, 142 U. S. 339, 348; Rees vs. Watertown, 
 19 Wall. 107; Heine vs. Commissioners, 19 Wall. 658; Thompson vs. 
 Allen Co., 115 U. S. 550. 
 
 ^.Hedges vs. Dixon Co., 150 U. S. 182; Greene vs. Keene, 14 E. I 
 388, 395. 
 
 'Ante, sees. 142, 166-172. 
 
 *1 Beach, Mod. Eq. Jur. sec. 1; Riley vs. Carter, 76 Md. 581, 598; 
 Scarborough vs. Scotten, 69 Md. 137; Donelson vs. Polk, 64 Md. 501; 
 Snowden vs. Dispensary, 60 Md. 85; Gorsuch vs. Briscoe, 56 Md. 
 573; Joy vs. St. Louis, 138 U. S. 50; Toledo R. Co. vs. P. R. Co., 54 
 Fed. Kep. 746; Watson vs. Sutherland, 5 Wall. 74; Piper vs. Hoard, 
 107 N. Y. 73; Britton vs. Royal, 46 N. J. Eq. 102; Wickersham v 
 Crittenden, 93 Cal. 32. 
 
ENABLING MAXIMS. 377 
 
 woman, the restraint on alienation, the rule against 
 perpetuities, and the rules of equitable waste, are 
 among the modern inventions of chancellors upon 
 the line of this maxim.^ Still more recent innova- 
 tions may be cited, one of English and two of 
 American introduction. The former has been 
 already described as the negative specific enforce- 
 ment by injunction of a contract for special personal 
 services.^ One of the American inventions has also 
 been referred to as the receiver's certificate, with its 
 preference over all prior liens.'' The other is the 
 doctrine that capital stock, especially the unpaid 
 subscription, is a trust fund for corporation creditors.^ 
 The doctrine has been criticised, and a disposition is 
 manifested to retrench it.^ 
 
 To this maxim may be generally referred all the 
 enabling doctrines of equity, and especially those 
 not referable to any other particular maxim. Its 
 earliest and boldest application was in the founda- 
 tion of the great system of trusts, which constitutes 
 a large portion of equity jurisdiction.* 
 
 "KnatchbuU vs. Hallett, 13 Uh. D. 696, 710. 
 
 'Ante, sec. 102. 
 
 ^Ante, sec. 112. 
 
 ••Story, J., in Wood vs. Dummer, 3 Mason, 308, 311; Sawyer vs. 
 Hoag, 17 Wall. 610; Eider vs. Morrison, 54 Md. 429, 443; Glenn vs. 
 Williams, 60 Md. 93, 110; Cole vs. M. I. Co., 133 N. Y., 168; Kouse 
 vs. Bank, 46 Ohio St. 493, 503; Bisp. Pr. Eq. sec. 527 (5th ed.) p. 643; 
 2 Pom. Eq. Jur. sec. 1046; 2 Beach, Mod. Eq. sec. 908. 
 
 ^Hollins vs. Brierfield Co., 150 U. S. 371; Hosper vs. Car Co., 48 
 Minn. 174, 192. 
 
 'Haynes' Outlines, 19, 20; Bisph. Pr. Eq. sees. 49-148; 2 Pom. 
 Eq. Jur. sec. 975, &c. 
 
- 278 EQUITY JUEISPEUDElfCE. 
 
 § 194. :Bquity regards substance rather than 
 form. This is a strong and leading maxim, pervad- 
 ing the entire system and of constant practical 
 application. It is expressed in a variety of modes. 
 " Equity regards the substance or spirit, and not the 
 letter merely.'" " Equity looks through form to 
 substance."^ " Equity looks to the iiitent rather 
 than to the form."^ It is the germ of the two 
 enabling maxims which will be next presented in 
 their order, viz: " Equity regards that as done which 
 ought to be done;" and " imputes an intention to 
 fulfill an obligation." Taken together, the three 
 belong to the same group of primary maxims, all 
 relating to rights, and often combining to effect the 
 same result. 
 
 § 195, Penalties and forfeitures. The maxim 
 that equity regards substance rather than form is 
 the basis of the equitable doctrine of penalties and 
 forfeitures. Equity never aids in enforcing a 
 penalty* nor requires a forfeiture," because they dis- 
 regard the substantial proportion which the value of 
 the thing forfeited bears to the actual loss or injury 
 
 'Hayne's Outlines, 17. Essex vs. Day, 52 Conn. 483, 497; Thomp- 
 son vs. Sheppard, 85 Ala. 618; Edward vs. Wigginton, 47 Mo. App. 
 ■ 307, 312. 
 
 ^Texas vs. Hardenburg, 10 Wall. 89; Landis, 41 N. J. Eq. 128. 
 
 n Pom. Eq. Jur. sec. 378. 
 
 *Baumgartner vs. Haas, 68 Md. 32, 39; Cross vs. McClanahan, 54 
 Md. 21, 24; Leighton vs. Young, 10 U. S. App. 318. 
 
 'Lincoln vs. Quynn, 66 Md, 299, 306; Donelson vs. Polk, 64 Md. 
 501, 506; Birmingham vs. Lesan, 77 Maine 494; Otta vs. Newton, 
 57 Vt. 451, 467; Townsend vs. Shaffer, 30 W. Va. 178. 
 
ENABLING MAXIMS. 279 
 
 sustained.^ While equity will relieve against penalty- 
 it will not relieve against stipulated or liquidated 
 damages, but here again the substantial nature of 
 the contract and not the mere form of words em- 
 ployed, will determine the rule to be applied.^ So, 
 in the case of an agreement that the whole debt, 
 presently due, shall be enforced, unless a stipulated 
 instalment thereof be paid by a named day, such 
 payment, upon default in performing the condition 
 will not be relieved against in equity, because equity 
 will look to the substance of the transaction, and if 
 the agreement, although it may assume a somewhat . 
 penal form, be not substantially inequitable, equity 
 will enforce its performance.* 
 
 § 196. Mortg;ages. The common law, looking to 
 form only, treated a mortgage after condition broken 
 as in all respects an absolute conveyance. Equity, 
 only venturing at first to grant a timid relief in cases 
 where the default in payment was occasioned by 
 accident,* at length, considering the intent to give a 
 mere security for a money loan, boldly invaded the 
 
 ^Chancellor vs. Gummere, 39 N. J. Eq. 585; Attrill vs. Hunting- 
 ton, 70 Md. 191, 196, reversed upon a federal question in Hunting- 
 ton V8. Attrill, 146 U. S. 657. 
 
 ^Bisph. Pr. Eq. sec. 179. 
 
 'Thompson vs. Hudson, L. E. 4 H. L. 1, 15; Bisph. Pr. Eq. sec. 180. 
 
 ^It is interesting to note that Shakespeare lost his maternal in- 
 heritance because in his day equity had not advanced so far as to 
 relieve against a technical forfeiture of a mortgage caused by a 
 default in payment at the precise day appointed. Halliwell-Phil- 
 lip's Outlines, ninth ed. I, 59, 149-152: II, 14-17, 204; Shakespeari- 
 ana, X, 63. 
 
380 EQUITY JURISPKUDENCE. 
 
 domain of law by creating a new estate in the mort- 
 gagor, called the equity of redemption.* Later, the 
 recognition of this estate was forced upon the courts 
 ■ of law, in some states fully,^ in others to a qualified 
 extent.' In Maryland, the mortgagee is not con- 
 sidered as the substantial owner, even at law,* and 
 has but a dry legal title, which cannot be affected by 
 the lien of a judgment.* In equity, a mortgage is 
 regarded as a mere security for money, a chattel 
 interest, or chose in action, the debt being considered 
 as the principal, and the mortgage as the incident." 
 An assignment of the debt operates as an assignment 
 of the mortgage.' 
 
 Whether a particular instrument will be construed 
 to be a mortgage depends upon the intent of the par- 
 ties and the substance and effect of the transaction, 
 and not upon the mere form of words.' A convey- 
 
 ^1 Spence Eq. 601; Hayne's Outlines 22; Smith, Pr. Eq. 15; Tarn 
 vs. Turner, 39 Civ. D. 456, 459; Lindley vs. O'Keilly, 50 N. J. Law, 
 640; Poland vs. Ballroad, 52 Vt. 144, 171; Fox vs. Wharton, 5 Del. 
 Ch. 226; Barrett vs. Hinckley, 124 111. 32. 
 
 n Beach, Mod. Eq. sees. 395, 396. 
 
 siMd, sec. 397. 
 
 ^Annapolis & E. R. K. Co. vs. Gantt, 39 Md. 115, 139; Arnd vs. 
 Amling, 53 Md. 192, 200. 
 
 'Tucker vs. Sumwalt, 34 Md. 89. 
 
 «Timuis vs. Shannon, 19 Md. 296. 
 
 'Byles vs. Tome, 39 Md. 461; Hewell vs. Ooulbourn, 54 Md. 59, 
 63; Flanagin vs. Hambleton, 54 Md. 222, 231. By statute, however, 
 the title to the debt now follows the record title, 1892 ch. 392, an 
 act passed to prevent the fraudulent use of mortgage notes, retained 
 after a release or assignment of mortgage. 
 
 'Locking vs. Parker, L. R. 8 Ch. App. 30; 1 Beach. Mod. Eq. sec-^ 
 400, tvi^ '-V H-VV'"^'^ ^^w^vlXs >-<-^ yU--^ -N^^^^wfc^ 
 
ENABLING MAXIMS. 281 
 
 ance, absolute on its face, will be treated as a mort- 
 gage, when such is proved to be the real intention ;' 
 or a mortgage may be treated as substantially an 
 absolute deed.^ A lease may be regarded as a mere 
 security,* and the external form of a redeemable 
 ground rent will be disregarded, when the transaction 
 amounts in substance to a mortgage loan.^ An in- 
 strument, in form a contract of bailment, or condi- 
 tional sale, howev^ carefully worded to cover the 
 real intention to create a security for a debt, will be 
 held in substance a mortgage, if that be discovered 
 to be the real intention of the parties.^ A conditional 
 sale, however, is not illegal, and, whenever plainly 
 intended, will be upheld.'' In cases of doubt the in- 
 strument will be held a mortgage.' 
 
 §197. Bquitable mortgages. The maxim that 
 equity regards substance rather than form to 
 
 '1 Jones on Mort. sec. 282; Booth vs. Robinson, 55 Md. 419, 450; 
 Laeber vs. Langhor, 45 Md. 477, 481; Baugher vs. Merryman, 32 
 Md. 185; Wallace vs. Johnstone, 129 U. S. 58; Cadman vs. Peter, 
 118 U. S. 73; Jackson vs. Lawrence, 117 IT. S. 679, 681; Peugh vs. 
 Davis, 96 U. S. 332. 
 
 ^Pairo vs. Vickery, 37 Md. 467, 485. 
 
 'Johns Hopkins Univ. vs. Williams, 52 Md. 229. 
 
 *Gaither vs. (;lark, 67 Md. 18; Odd Fallows vs Merklin, 65 Md. 
 579, 580; Montague vs. Sewell, 57 Md. 407, 414; Rouskulp vs. Kersh- 
 ner, 49 Md. 516; Tulford vs. Keerl, 71 Md. 397, 401; Wells vs. Rob- 
 inson, 53 Vt. 204. 
 
 ^Heryford vs. Davis, 102 U. S. 235; exparU Odell, L. R. 10 Ch. D. 
 76. 
 
 «Bisph. Pr. Eq. sec. 154; 1 Beach Mod. Eq. sec. 413-416; Hinck- 
 ley vs. Wheelwright, 29 Md. 341. 
 
 'Ibid. Franklin vs. Ayre, 22 Fla. 662. 
 
283 EQUITY JUEISPKUDBNCE. 
 
 effectuate the real intent of the parties,^ combines in 
 its operation with the maxim next in order, that 
 equity regards that as done which was agreed to be 
 done,^ to create the doctrine of equitable mortgages 
 and liens.' A mortgage defectively executed, or 
 invalid at law for want of some prescribed formality, 
 an agreement in writing to give a mortgage of land, 
 or a mere parol agreement to give a mortgage of 
 personalty, will, if founded upon a sufficient consid- 
 eration, be enforced in equity as a specific lien upon 
 whatever property may be described with reasonable 
 certainty.^ The lien will be enforced, notwithstand- 
 ing the registrylaws, not only as against contracting 
 parties' and their personal representatives," but also 
 against subsequent purchasers and incumbrancers 
 with notice, whether actual or constructive,' and 
 against prior creditors,* although their claims are 
 reduced to judgment, subsequently to the lien,' but 
 
 » Poland vs. Railroad, 52 Vt. 144, 171. 
 
 ^Daggett vs. Kankin, 31 Cal. 327: Ober vs. Keating, 26 Atl. Rep. 
 501; 77 Md. — 
 
 n Pom. Eq. Jur. sec. 380. 
 
 ■•Alexander vs. Ghiselin, 5 Gill 138, Brantly's note; 1 Beach Mod. 
 Eq. sec. 290; 3 Pom. Eq. Jur. sec. 1233, 1235; Hall, 50 Conn. Ill; 
 Morrill, 53 Vt. 78 ; Young, 27 S. C. 210. 
 
 ^Tiernan vs. Poor, 1 G. & J. 216; Brundige vs. Poor, 2 G. & J. 1; 
 Triebert vs. Burgess, 11 Md. 452. 
 
 ^ Wood vs. Fulton, 4 H. &'J. 329; Aldridge vs. Weems, 2 G. & J. 36. 
 
 'McMechen vs. Maggs, 4 H. & J. 132; Hudson vs. Warner, 
 2 H. & G. 415; Baynard vs. Norris, 5 Gill. 468; Price vs. McDonald, 
 1 Md. 422; Johnson vs. Canby, 29 Md. 211; Russman vs. Wanser, 
 53 Md. 92. 
 
 "Alexander vs. Ghiselin. 5 Gill. 138. 
 
 "Dyson vs. Simmons; 48 Md. 207. 
 
ENABLING MAXIMS. 283 
 
 not as against subsequent creditors,^ purchasers or 
 incumbrancers without notice.^ In some states 
 equitable mortgages and liens are held inconsistent 
 with recording statutes, so far as creditors are 
 concerned.^ 
 
 Under the statutory power of a married woman to 
 " convey " her property " by a joint deed with her 
 husband,"^ a promissory note signed by the husband 
 and wife, binding their " separate and individual 
 estates," was enforced as a lien upon her separate 
 estate in the nature of an equitable mortgage, the 
 mere formality being held unimportant in view of 
 the manifest intention.^ 
 
 § 198. Trusts. The influence of the same maxim 
 that equity regards substance rather than form is 
 manifest in shaping the doctrine of trusts. The 
 equitable estate of the cestui que trust is regarded 
 as the real substantial ownership, while the corre- 
 sponding legal estate of the trustee is a mere form 
 and shadow." The duration of a trustee's estate is 
 measured by the substantial objects and purposes of 
 
 the trust, and not by, the technical form of words 
 
 t 
 
 'Hoffman vs. Gosnell, 75 Md. 577; Carson vs. Phelps, 40 Md. 73; 
 Nelson vs. Bank, 27 Md. 57; Stanhope vs. Dodge, 52 Md. 483. 
 
 *Sitler vs. McComas, 6 6 Md. 135 ; Ober vs. Keating, 26 Atl. Eep. 
 50t, 77 Md. 
 
 ?Betz vs. Snyder, 48 Ohio St. 492. 
 
 ■•Md. Code, Art. 45, sec. 2. 
 
 »Hall vs. Eccleston, 37 Md. 510, 521. 
 
 «2 Pom. Eq. Jur. sec. 975; Clay vs. Freeman, 118 U. S. 97, 108; 
 Eeid vs. Gordon, 35 Md. 174, 184. 
 
284: ZQUITY JURISPEUDENCE. 
 
 creating it.* Where land is devised to a trustee, 
 conduct which amounts to a disclaimer of the office 
 of trustee will also amount to a disclaimer of the legal 
 title. ^ A trust is never allowed to fail for want 
 of a trustee/ nor because impossible of a literal 
 execution.* 
 
 § 199. Powers. Equity never permits the mere 
 formality of a seal to supply the absence of substan- 
 tial consideration,' nor the want of that, or any 
 other formality, to defeat the execution of a power 
 which carries out the substantial intention of the 
 donor, that being the governing principle.* A power 
 to purchase real estate may be well executed in the 
 erection of buildings on property already in settle- 
 ment, that being substantially equivalent,' but a 
 trustee authorized to invest only in landed securities 
 is not warranted in purchasing land, there being ob- 
 viously a substantial difference.' Where the inten- 
 tion to execute the power is manifest, it is the duty 
 
 lAbell 75 Md. 44, 62; Thompson vs. Ballard, 70 Md. 10 17; Long 
 62 Md. 33, 65; Young vs. Bradley, 101 U. S. 782. 
 
 ^Birchall vs. Ashton, 40 Ch. D. 436. 
 
 ^Poindexter vs.- Bur well, 82 Va. 514; Doughten vs. Vandever, 5 
 Del. Ch. 65; Park Heights Co. vs. Oettinger, 53 Md. 46, 61; Colton, 
 127 U. S. 300, 320. 
 
 *Warehime vs. Carroll, 44 Md. 515, 520. 
 
 'Bayne vs. State, 62 Md. 100, 105; Black vs. Cord, 2 H. & G. 100. 
 
 "Bisph. Pr. Eq. sec. 193; Cooper vs. Haines, 70 Md. 282, 284; 
 Thomas vs. Gregg, 76 Md. 169, 175; Nevin vs. Gillespie, 58 Md. 
 320, 327. 
 
 fConway vs. Fenton, 40 Ch. D. 512, 515. 
 
 "Zimmerman vs. Fraley, 70 Md. 561, 569. 
 
ENABLING MAXIMS. 285 
 
 of the trustee to execute it, notwithstanding a mere 
 formal defect, such as a verbal instead of a written 
 request. ' A power which is given to be executed by- 
 deed will be aided in equity when the execution has 
 been by will,^ but conversely, a power to be executed 
 by will cannot be executed by deed, and equity will 
 not aid if the attempt be made, because the donor of 
 the power did not intend it to be so executed, but 
 that it should remain ambulatory during the life of 
 the donee.' A power of appointing new trustees be- 
 ing in substance fiduciary, the donee of such power 
 cannot appoint himself.* 
 
 § 200. Specific performance— time. Equity re- 
 gards the substance of the agreement, and the object 
 and intention of the parties, and will not permit 
 terms that are not essential to be set up as a reason 
 for refusing specific performance.' 
 
 Time is not deemed in equity as of the essence of 
 the contract,* except where the intention appears,' as, 
 
 ^Ineurance Co. vs. Everett, 40 N. J. Eq. 345, 350. 
 
 ^Bisph. Pr. Eq. sec. 193. 
 
 'Wilkes vs. Burns, 60 Md. 64, 72, 73. 
 
 ^Sheats vs. Evans, 42 Ch. D. 522, 526, 
 
 'Conaway vs. Wright, 5 Del.O h. 474; Union P. R. Co. vs. McAl- 
 pine, 129 U. S. 305, 313; Bryant vs. Wilson, 71 Md. 440. 
 
 ^Baltimore vs. Eaymo, 68 Md. 569, 573; Myers vs. Silljacks, 58 
 Md. 319, 329; Maughlin vs. Perry, 35 Md. 352, 359; Smoot vs. Rea, 
 19 Md. 398, 406; Brown vs. Trust Co., 128 U. S. 403, 414; Smith vs. 
 Profitt, 82 Va. 850; Vaught vs. Cain, 31 W. Va. 427. 
 
 'Wilson vs. Herbert, 76 Md. 489, 497; Coleman vs. Applegarth, 68 
 Md. 21, 28; Derrett vs. Bowman, 61 Md. 526, 528; Holgate vs. Eaton, 
 116 U. S. 33, 40; Battel vs. Matot, 58 Vt. 288. ' 
 
286 EQUITY JUBISPKUDENCB. 
 
 in stipulations for prompt payment of life-insurance 
 premiums, and the like.^ Eestrictive covenants, 
 although not technically running with the land, will 
 be enforced in equity against all parties in possession 
 with notice.^ 
 
 § 201. Partnersliip— Set off. If a partnership in 
 fact exists, no concealment of name or other indirect 
 expedient will prevent the substance of the transac- 
 tion being adjudged accordingly.' Real property of 
 a partnership is, for the substantial purposes of liqui- 
 dation, treated in equity as personal property,* while, 
 for all other purposes, it is still treated as real estate.* 
 A mortgage to a firm, as such, is substantially within 
 the provisions of the registry law, requiring the 
 names of parties to be given.' The mere fact that a 
 note is in form a partnership note does not make the 
 debt a partnership debt, if given for an individual 
 obligation.'' Although a joint debt cannot, in equity, 
 any more than at law, be set off against a separate 
 debt, yet where the debts are in reality mutual, 
 although not so in form, as, where one of the joint 
 debtors is a haere surety, equity will look through 
 
 lYoe vs. Howard, 63 Md. 86; Knickerbocker Insurance Co. vs. 
 Dietz, 52 Md. 16, 28; Dungan vs. Insurance Co., 46 Md. 469, 493; 
 Norrington vs. Wright, 115 TJ. 8. 188, 203; Davison vs. Von Lingen, 
 113 U. S. 40, 50; Howe vs. Smith, 27 Ch. D. 89, 103. 
 
 ^Newbold vs. Peabody Heights Co., 70 Md. 493, 500. 
 
 'Adams vs. Newbigging, 13 App. Ca. 308, 311. 
 
 *Allen vs. Withrow, 110 U. S. 130; "Wilson (1893), 2 Ch. 343. 
 
 ^Eberts, 5 Md. 353, 358; Goodwin vs. Stevens, 5 Gill, 2. 
 
 * Bernstein vs. Hableman, 70 Md. 29, 40. 
 
 'Edward vs. Wigginston, 47 Mo. App. 307, 312. 
 
ENABLUfTQ MAXIMS.. 287 
 
 the form, and make an adjustment according to the 
 substance of the transaction.* 
 
 § 202. Corporation. Where a single individual is 
 found holding practically the entire stock, with the 
 exception of a merely nominal amount, equity will 
 treat the individual, from a business point of view, 
 as substantially the corporation.^ A contract made 
 substantially on behalf of a corporation will be so 
 treated, although formally in the name of an indi- 
 vidual, and a judgment recovered by him for a breach 
 thereof will, in equity, be regarded as a judgment in 
 favor of the company.' Disregarding the form of the 
 dividend, equity will treat a distribution of net earn- 
 ings, either as capitg,l or income, according to the 
 substance and intent.* 
 
 § 203. Treaties, statutes, wills, contracts. In 
 its application to treaties, the maxim is the light of 
 that larger reason which constitutes the spirit of the 
 law of nations. Treaties are construed liberally ac- 
 cording to the substance of the right intended, with- 
 out regard to technicalities.^ In determining as to 
 the constitutionality of statutes, the courts are not 
 bound by mere form, but must look at the substance 
 of things.* Statutes prescribing modal regulations 
 
 'Drexel vs. Berney, 122 U. S. 254. 
 
 2 Wood vs. Trustee, 128 U. 8. 416, 425, HoflfmanCo. vs. Cumber- 
 land Co., 16 Md. 456, 510; Chafee vs. Quidneck, 14 E. I. 75. 81. 
 
 ^Davis vs. Gemmell, 70 Md. 356. 357. 
 
 ^Thomas vs. Gregg, 12 D. R. 113, 78 Md. — 
 
 'DeGeofroy vs. Biggs, 133 U. S. 258; Choctaw Nation vs. U. S. 
 119 U. S. 28. 
 
 «Mugler vs. Kansas, 123 TJ. S. 623, 661; Trageser vs. Gray, 73 Md. 
 259. 
 
288 EQUITY JUKISPKUDENCE. 
 
 require not a formal or strictly literal, but only a 
 substantial compliance/ and the same liberal con- 
 struction has been adopted by courts of law.^ That 
 principle of construction by which a legislative en- 
 actment is interpreted according to the " equity of 
 the statute " by considering the reason and spirit of 
 it,' and the cognate principles*i-cessartfe ratione cessat 
 et ipsa leXj^qui hoeret in litera hoeret in cortice, — 
 are but modes of this maxim.^ 
 
 In the construction of wills, even where technical 
 words are used, though the testator will ordinarily 
 be presumed to have used them in their legal sense, 
 a different meaning will be given to them when the 
 context clearly indicates that such technical import 
 would defeat his manifest intention.^ And this 
 intention will prevail over a strict grammatical 
 construction." 
 
 A devise of the rents and profits is, in substance 
 a devise of the land, and will be held equivalent,' 
 unless a different intention is manifest.^ With 
 
 ^Basshor vs. Stewart, 54 Md. 376; Marlow vs. McCubbin, 40 Md. 
 132, 137. 
 
 "Friend vs. Hamill, 34 Md. 302. 
 
 3 Church vs. U. S.. 143 U. S. 457; Hawbecker, 43 Md. 516, 519. 
 
 *Great Western, 118 U. S, 520, 638; Eiggs vs. Palmer, 115 N. Y. 
 506, 510; Merrill vs. Oomrs., 70 Md. 269, 271; 1 Bl. Com. 61; Co. Litt. 
 24 a; 1 Kent. 462. 
 
 'Albert, 68 Md. 353, 366; Taylor vs. Watson, 35 Md. 519, 524 ; 
 Cavendish, 30 Ch. D. 227. 
 
 «Dulany vs. Middleton, 72 Md. 67, 79. 
 
 'Cassilly vs. Meyer, 4 Md. 1, 11; Gisborne vs. Charter, 142 U. S. 
 326, 335. 
 
 «Cooke vs. Husbands, 11 Md. 492, 506; Boyle vs. Parker, 3 Md. 
 Ch. 43, 45. 
 
ENABLING MAXIMS. 389 
 
 regard to contracts, the mere form and letter will be 
 disregarded when necessary to reach the substance 
 and intent ; as when a wagering contract appears 
 disguised as a sale,^ or a conditional sale assumes 
 the outward form of a lease,^ or, when the reality of 
 a loan transaction is cloaked by a sham purchase 
 and hiring.' 
 
 The foregoing illustrations are sufficient to show 
 that all rules of interp'retation for discovering the 
 intent expressly or tacitly refer to this maxim as 
 their basis. 
 
 § 204. Other instances. Where a person becomes 
 grantee of an estate subject to a charge for his 
 benefit, a merger of the security will not be effected 
 if the intention be manifested to keep it alive. ^ 
 
 In applying the doctrine of conversion, substance, 
 and not the form of the instrument, will be regarded, 
 in order to reach the real intent.' In applying the 
 doctrine of subrogation, equity looks to the debt to 
 be paid, that being the matter of substance, and not 
 to the hand which may happen to hold it.° In all 
 cases of suretyship, whatever may be the form of 
 the instrument, or the legal obligations of the 
 parties, equity will inquire into the real nature and 
 
 "Embrey vs. Jemison, 131 U. S. 336, 344. 
 ^Hervey vs. Rhode, 93 U. S. 672. 
 'Watson, 25 Q. B. Div. 27. 
 
 *Shipley vs. Fox, 69 Md. 572, 577; Polk vs. Reynolds, 31 Md. 
 106, 111; Case vs. Fant, 10 U. S. App. 415. 
 =Lynn vs. Gephart, 27 Md. 547, 563. 
 «Orem vs. Wrightson, 51 Md. 34, 46. 
 19 
 
290 EQUITY JURISPEUDBNCB. 
 
 object of the transaction, and afford relief accord- 
 ingly.' 
 
 The influence of this maxim upon equity procedure 
 has already been noticed,* and it has also been seen 
 that the reformed code of procedure, both in this 
 country and in England, is avowedly based upon it 
 in part.^ 
 
 Finally, it has been the great enabling factor in 
 many important legislative law reforms, such as the 
 provision that judgments are to be rendered "accord- 
 ing to the very right" without regarding "matter of 
 mere form,^ and that in pleadings at law, departure 
 from form shall be no longer fatal, "so long as sub- 
 stance is expressed."^ Its liberalizing influence upon 
 common law methods generally has been already 
 remarked.* Obvious and absurd clerical mistakes in 
 legal proceedings as well as in contracts will be set 
 right by giving effect to the plain intent against the 
 letter.' 
 
 The difficulty in the application of this maxim is 
 ih determining sometimes what is really matter of 
 substance and what mere matter of form.* In this 
 
 iDodd vs. "Wilson, 4 Del. Ch. 114, 409. 
 
 ^Ante, sec. 49. 
 
 'Ante^ sees. 16, 169. 
 
 *Md. Code, Art. 26, sec. 14. 
 
 'Md. Code, Art. 75, sec. 3, 7, 9, 23. 
 
 ^Anie, sec. 169. 
 
 'Farrell vs. Baltimore, 75 Md. 493. Otherwise held as to a statute 
 in Maxwell vs. State, 40 Md. 273. 
 
 sSmith vs. Bourbon Co. 127 U. S. 105, 112; Broadbent vs. State, 7 
 Md. 416, 429; Stewart vs. Flint, 57 Vt. 216, 217. 
 
ENABLIITG MAXIMS. 291 
 
 connection, reference need only be made to what has 
 already been said as to the application of maxims 
 generally.^ 
 
 § 205. III. ISquity regards that as done which 
 ought to be done.' As otherwise expressed, "equity 
 considers that as done which was agreed to be done."' 
 
 In either mode, this maxim is an expansion or de- 
 velopment of the maxim just considered that "equity 
 regards substance rather than form." To a certain 
 extent, both maxims cover the same ground. The 
 doctrine of equitable . mortgages, as already sug- 
 gested,* may be ascribed to their combined operation, 
 and indeed is frequently attributed exclusively to the 
 maxim now under consideration. The same may be 
 said of the equity of redemption.* The doctrine of 
 conversion is another instance in point. 
 
 § 206. Conversion. Conversion is an assumed 
 change in the nature of property, by which, for cer- 
 tain purposes, real estate is considered as personal, 
 and personal estate as real, and transmissible and 
 descendible as such.* 
 
 ^Ante, sec. 185. 
 
 ^1 Pom. Eq. Jur. sec. 364; Bisp. Pr. Eq. sec. 44; Small vs. Mar- 
 burg, 77 Md. 11; McRae, 27 Atl. Rep. 1038, 77 Md. 
 
 'Seymour vs. Freer, 8 Wall. 202, 214. 
 
 *A7Ue, sec. 197. 
 
 '1 Pom. Eq. Jur. sec. 376, compare sec. 382. 
 
 ^Hayne's Outlines, 325; Fletcher vs. Ashburner, 1 Brown's Ch. 
 Ca. 497, 1 Lead. Ca. Eq.619; Bisp. Pr. Eq. sec. 307; Craig vs. Leslie. 
 3 Wheat, 563; Small vs. Marburg, 77 Md. 11; Keller vs. Harper, 64 
 Md. 74: Barnum, 42 Md. 251, 308; Cropley vs. Cooper, 19 Wall. 167, 
 174; McFadden vs. Hefley, 28 S. C. 321; Duke of Cleveland (1893), 3 
 Ch. 244. 
 
292 EQUITY JUKISPKUDENCE. 
 
 In such cases, the first step is to find in the will or 
 other instrument of trust, an expression of intention 
 that the money shall be invested in land, or that the 
 land shall be sold and turned into money. When 
 once that intention is sufficiently expressed, the ac- 
 cidental circumstance that the money has in fact not 
 been laid out in land, or the land in fact not sold, 
 can have no effect in equity, which regards that as 
 actually done which ought to be done.^ 
 
 § 207. Bxecutory contracts. Upon the same 
 principle, an executory contract for the sale of land 
 will be regarded in equity as if actually 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 conveyed to the 
 vendee, and the money ought to be paid to the 
 vendor. Upon the principle which considers "that as 
 done which the parties have contracted to do, the 
 vendor will be treated as a trustee for the purchaser 
 of the estate sold, and the vendee as a trustee for the 
 vendor of the purchase money to be paid. The 
 vendee is in fact considered as the owner of the 
 land, and although the legal title may still remain in 
 the vendor, he holds it merely as trustee for the 
 purchaser, with a lien on the estate as security for 
 any unpaid portion of the purchase money.^ The 
 
 •Haynes' Outlines, 325. 
 
 =* Robinson, C. J., in McRae, 27 Atl. Rep. 1038, 77 Md. ; 1 Pom. 
 Eq. Jur. sec. 368; Woodbury vs. Gardner, 77 Maine, 75: Keep vs. 
 Miller, 42 N. J. Eq. 106. 
 
KNABLING MAXIMS. 293 
 
 practical results of this doctrine are important to 
 both parties. In the interval between the contract 
 and the deed, the vendee, even although none of the 
 purchase money has been paid, must bear any loss, 
 such as by fire (his interest being an insurable one), 
 which may happen to the property, and is entitled 
 to any benefit which may accrue to the estate.* 
 
 § 208. Assignment. Assignments of choses in ac- 
 tion, originally void at law, were always recognized 
 as enforceable in equity, and assignments of prop- 
 erty not in esse, but to be acquired infuturo, void at 
 law now,^ are held valid and binding in equity.' An 
 assignment for value of future property operates in 
 equity by way of agreement, binding the conscience 
 of the assignee, and so binding the property from the 
 moment when the contract becomes capable of being 
 performed, upon the principle that equity considers 
 as done that which ought to be done.'' The modern 
 tendency of courts op lan^s towards adopting this 
 equitable doctrine.^ The sam^ principle applies in the 
 case of a deed made before the grantor has acquired 
 title. Though the conveyance of an expectancy, as 
 such, is impossible at law, the operation of this 
 
 'Brewer vB. Herbert, 30 Md.J Ol. 
 
 -CrocEervs. Hopps, 28^Atl.lRep: 99, 77 or 78 Md. 
 
 ^Butler vs. Eahm, 46 Md. 541, 548; Bisph. Pr. Eq. sees. 22, 165; 
 Patterson vs. Caldwell, 124 Pa. 461; Edwards vs. Peterson, 80 
 Maine 367. 
 
 *Tailby vs. OfBcial Receiver, 13 App. Ca. 523, 546; CoUyer vs. 
 Isaac, 19 Ch. D. 342; 1 Pom. Eq. Jur. sec. 369, 373. 
 
 'Bisp. Pr. Eq. 5th ed. sec. 165, note 7. 
 
294 EQUITY JURISPEUDEXCE. 
 
 maxim enables it to be enforced in equity as an ex- 
 ecutory agreement to convey, if sustained by a suf- 
 ficient consideration.^ An assignment for value of a 
 fund to be created, as from a claim in litigation, 
 stands upon the same footing.^ An assignment and 
 delivery, as collateral, of certificates of stock, not 
 perfected by transfer on the books of the corporation, 
 passes the equitable title.' But a married woman's 
 assignment does not bind her after acquired, separate 
 estate,^ and specific performance cannot be decreed of 
 an agreement to convey property which has no ex- 
 istence, or to which the defendant has no title.^ An 
 order drawn for the whole of a particular fund 
 amounts to an equitable assignment, but a partial 
 order does not, in the absence of express or implied 
 acceptance." 
 
 § 209. Fraud. The foregoing examples deal 
 mainly with things agreed or directed to be done. 
 They are very far from exhausting the enabling pow- 
 ers of this maxim, which also deals with things 
 which ought to be done. It has already been sug- 
 gested that this and the next maxim — "equity imputes 
 
 •Moore vs. Crawford, 130 U. S. 122, 131, 132. 
 
 ^Peugh vs. Porter, 112 U. S; 737; Bank vs. Bayonne, 48 N. J. Eq. 
 252. 
 
 3 Noble vs. Turner, 69 Md. 519. 
 
 ^Deakin vs. Lakin, 30 Ch. D. 169, 171; Aukeney vs. Hannon, 147 
 U. S. 118. 
 
 ^Kennedy vs. Hazelton, 128 U. S. 667. 
 
 ^Gibson vs. Finley, 4 Md. Ch. 75; Mandeville vs. Welcb, 5 Whea- 
 ton 285. 
 
EN-ABLING MAXIMS. 295 
 
 an intent to fulfill an obligation' ' — are both offspring 
 of the maxim — "substance rather than form." They 
 overlap the parent maxim to a certain extent, but 
 they go further. They dig below the crust of form, 
 below the sub- soil of intent, and strike the bed rock 
 of conscience. They inquire what intent an honest 
 person should have formed, and demand adjudica- 
 tion upon that basis. They treat the fraudulent in- 
 tent as if void and non-existent, and by enabling 
 judicial control of the act, make the party behave 
 as if he were honest. "The principle is, that a per- 
 son is not allowed to derive any advantage from his 
 own wrong-doing, and that, in. order to prevent this, 
 a court of equity will treat him as having done 
 that which he ought to have done."' "Equity will 
 not only interfere in cases of fraud to set aside acts 
 done, but will also, if acts have, by fraud, been pre- 
 vented from being done, interfere and treat the case 
 exactly as if the acts had been done."" The re- 
 sources of the maxim referred to in the promotion 
 of justice by counteracting fraud are practically un- 
 limited.' 
 
 § 210. Constructive trust. Constructive trust may 
 arise under contract, and instances have already 
 been given under the head of executory contracts* 
 
 •London E. Co. vs. S. E. R. Co. (1892) 1 Ch. 143. 
 
 ^Moore vs. Crawford, 130 U. S. 122, 128; 1 Sto. Eq. Jur. sec. 187. 
 
 'German vs. Hammerbacker, 64 Md. 575, 607; Equitable vs. Bal- 
 timore, 63 Md. 285, cited 64 Md. 607; Fowler vs. Jacob, 62 Md. 326, 
 331; Ames vs. Eichardson, 29 Minn. 330; Sewell vs. Slingluff, 62 
 Md. 592, 599, not a case of fraud, but illustrating the principle. 
 
 *Anie, sec. 207; Bisp. Pr. Eq. sec. 95. 
 
396 EQUITY JUBISPBUDENCE. 
 
 and assignments.* They may also be raised inde- 
 pendently of the intention of the parties, by actual 
 or constructive fraud, including acts in violation of 
 jfiduciary obligations.^ In all these cases of trust ex 
 maleficio, where the party holds the legal title to 
 property under such circumstances that in conscience 
 he ought to convey it or restore it to the real owner, 
 he will be treated in .equity as if the conveyance 
 had been made, so far as the power of the court 
 can reach, that is, to the extent of holding him a 
 trustee for the person beneficially entitled.* 
 
 § 211. Relation. The doctrine of relation also 
 proceeds from this m&xim, by which the thing con- 
 sidered as done shall relate back to the time when it 
 ought to have been done originally.^ Tie issue of a 
 land patent relates back to the inception of the pat- 
 entee's right.^ The title of an administrator relates 
 back to the death of the intestate,* and the title of an 
 insolvent trustee, or assignee in bankruptcy to the 
 commencement of the proceedings.' Similarly, by 
 
 '^Ante, sec. 208; Bank vs. Bayonne, 48 N. J. Eq. 252. 
 
 n Pom. Eq. Jur. sec. 155; 2 ib. sec. 105S. 
 
 3 Turner vs. Sawyer, 150 U. S. 586. 
 
 ■•3 Bl. Com. 438; Hammond vs. Warfield, 2 H. & J. 151, 158, 159; 
 Jones vs. Badley, 4 Md. Ch. 167, 168; Smith vs. Deveemon, 30 Md. 
 473, 482; Brooks vs. Ahrens, 68 Md. 212, 223. 
 
 ^Redfield vs. Parks, 132 U. S. 239, 246; Defferback vs. Hawke, 
 115 D. S. 393, 405. 
 
 «Dempsey vs. McNabb, 73 Md. 433, 439; Sommers vs. Boyd, 48 
 Ohio St. 648. 
 
 'Riley vs. Carter, 76 Md. 581, 612; Griffee vs. Mann, 62 Md. 248, 
 255; Conner vs. Long, 104 U. S. 228. See Pinckney vs. Lanahan, 62 
 Md. 447, 456. 
 
ENABLING MAXIMS. 297 
 
 statute, a mechanic's lien relates back to the com- 
 mencenaent of the building,* and a condemnation to 
 the time of the forfeiture.^ A creditor who comes in 
 and establishes his claim under a creditors' bill,' be- 
 comes a plaintiff by relation to the time of the filing 
 of the bill, and when the statute of limitations is set 
 up, the intervening time will not be counted against 
 him.^ 
 
 Some of the instances cited also illustrate the re- 
 action of equity upon law,'^ or, the impression made 
 by equitable principles upon the march of judicial 
 and statutory legislation. So long ago as 1806, in an 
 action of ejectment, it was said by the court, Chase 
 C. J.: "The relation of the patent to the certificate, 
 so as to overreach mesne grants, is founded on a 
 principle of equity, and is a fiction of law introduced 
 for the attainment of justice, and to prevent circuity 
 of action, the court doing that which a court of 
 equity would effect.'" 
 
 § 212. Capacities. In the case of several capac- 
 ities in the same person, (such as trustee and execu- 
 tor, or guardian 'and adnainistrator, or the like,) the 
 respective capacities will be regarded as if distinct 
 individuals,' and possession will attach to that 
 
 'Leib vs. Stribling, 51 Md. 285, 289. 
 
 =U. S. vs. Stowell, 133 U. S. 17. 
 
 'Ante, sees. 31, 93. 
 
 ^Richmond vs. Irons, 121 U. S. 27, 28, 52, 55. Contra, Hall vs. 
 Eidgely, 33 Md. 308, 310. 
 
 ^Ante, sec. 167. 
 
 «Hammond vs. Warfield, 2 H. & J. 158. 
 
 'Long, 62 Md. 33, 66; Warner vs. Sprigg, 62 Md. 14, 21; Keplinger 
 vs. Maccubbin, 58 Md. 203, 208; Pitney vs. Everson, 42 N. J. Eq. 361. 
 
298 EQUITY JUEISPEUDENCE. 
 
 capacity in which of right the subject ought to be 
 held,* or the act performed.^ Of this doctrine, anal- 
 ogous to retainer or transfer by operation of law, 
 the most interesting practical result to sureties on 
 the official bonds of a defaulter holding these double 
 capacities, is the release of one set of sureties at the 
 expense of the other, or at the expense of cestuis que 
 trust, if unsecured.' The origin of the doctrine, 
 which is well settled at law as well as in equity, is 
 distinctly attributed to the maxim that equity re- 
 gards that as done which of right ought to be done.* 
 A trustee, holding a double capacity, cannot act am- 
 biguously and afterwards take advantage of the 
 doubt, and claim that he acted not as trustee, but in 
 some other character.' 
 
 §213. Other instances- From the same maxim 
 obviously follows the rule which regards that as 
 done at the time at which it ought to have been 
 done. Thus, trustees will be charged with inter- 
 
 > Hanson vs. Worthington, 12 Md. 418; Carson vs. Phelps, 40 Md. 
 73, 98; Kirby vs. State, 51 Md. 383; Flickinger vs. Hull, 5 Gill. 60; 
 Cavender, 114 V. S. 464, 472. 
 
 ^State vs. Cheston, 51 Md. 352, 380; Wall vs. Bissell, 125 U. S. 
 382, 393; Bank vs. March, 23 Ch. D. 138; Corser vs. (lartwright, L. 
 B. 7 H. L. 731. 
 
 'State vs. Cheston, 51 Md. 352, and cases cited. 
 
 *Watkins vs. State, 2 G. & J. 220, 226; Young vs. Thrasher, 48 
 Mo. App. 327, 337, in which case the court held that the doctrine as 
 to executors holding the twofold capacity of creditor and debtor, 
 was abolished in Missouri by statute. As to retainer in Maryland, 
 see Art. 93, sec. 96. 
 
 'Carson vs. Phelps, 40 Md. 73, 98; Wooden vs. Kerr, 91 Mich. 
 188, 197; Lyell vs. Kennedy, 14 App. Ca. 437, 460. 
 
UNABLISO MAXIMS. 299 
 
 est from the time at which it was their duty to 
 invest, although no interest may have been actually 
 received.^ Property will be considered as converted 
 from the time when it ought to have been converted.^ 
 A mortgaged railroad company is liable to account 
 to its trustees for its earnings from the time a sur- 
 render of possession ought to have been made on 
 proper demand.' An amendment which ought to , 
 have been made to conform the pleadings to the evi^_ 
 dence may be treated as having been made.* - ' 
 
 Reference has already been made to the rule that 
 a court of equity will ratify that, when done, which 
 it would have ordered to be done.^ 
 
 An implied promise is a fiction which the law 
 raises to express the equity of a situation. It is a 
 promise which, though not made, ought to have been 
 made.* 
 
 § 214. Qualification. This maxim is not univer- 
 sally true. In cases depending on contract, it applies 
 only in favor of parties entitled to enforce the con- 
 tract, or those in privity with them, and not to mere 
 volunteers or strangers.' It is never applied to the 
 prejudice of innocent parties who have acquired in- 
 
 lEvans vs. Iglehart, 6 G. & J. 172, I87, 8. 
 
 ''Keller vs. Harper, 64 Md. 74, 82. 
 
 'Daw vs. Railroad Co., 124 U. S., 652. 
 
 *Beynold8 vs. Stockton, 140 U. S. 254, 266 {obiter), 
 /^nte, sec. 180; Cheney vs. Eoodhouse, 135 111. 265. 
 
 «Glenn ve. Garth, 133 N. Y. 43. 
 
 'Chetwynd vs. Morgan, 31 Ch. D. 596; Eedfield vs. Parks, 132 
 U. S. 239, 247, 248. 
 
300 EQUITY JUBISPRUDENCB. 
 
 tervening rights,* and operates only in favor of one 
 who holds an equitable right to have the thing done, 
 as against the one upon whom the duty of doing the 
 thing has devolved.^ 
 
 § 215. Probable origin. Reference has been made 
 to the obscure origin of maxims. Most of them, 
 doubtless, have gradually expanded from slender be- 
 ginnings. The exigencies of some special case may 
 have suggested a solution of a difl&culty, which 
 happened to fit other, difficulties occurring under 
 widely different circumstances. We have very 
 probably an example of this before us. In the Insti- 
 tutes of Justinian we find laid down a special rule, 
 applicable in terms only to the particular case of 
 suretyship. " Quodcunque scriptum sit quasi actum, 
 videatur etiam actum. "It is a general rule in all 
 fide-jussorial stipulations, (contracts of surety-ship) 
 that whatever is alleged in writing to have been 
 done, is presumed to have been actually done. 
 Therefore, if a man in writing confesses that he has 
 become a fide-jussor, it is presumed that the neces- 
 sary forms were observed.'" 
 
 Without having at hand the means of tracing the 
 successive stages of development, it is easy to find 
 in this narrow rule applicable in terms only to the 
 special case of suretyship, the embryo of the broad 
 principle referred to. 
 
 i' Bowie vs. Berry, 3 Md. Ch. 359, 362; Farmers' Bank vs. Markell, 
 3 Gill. 448; Casey vs. Cavaroc. 96 U. S. 467, 491. 
 2 Waterman vs. Alden, 42 111. App. 295, 310. 
 'Inst, iii, 21, 8; Cooper's Justinian, 269. 
 
ENABLING MAXIMS. 301 
 
 § 216. IV. Equity imputes an intention to fulfill 
 an obligation.' 
 
 Bearing in mind what has just been said in the 
 preceding section, we now come to a maxim which 
 has not as yet been generally recognized as 
 advanced beyond the rudimentary stage of a special 
 rule, applicable only to one or two doctrines of second 
 rate importance. A recent English writer, finding 
 few citations to refer to, takes rather abrupt leave 
 of it "as one of the more refined doctrines of equity."^ 
 It seems as yet to be in the infancy of its develop-^ 
 ment. Further on, its opportunities for usefulness 
 will be indicated, and it will perhaps be conceded 
 that the maxim has the "potency and the promise" 
 of being a considerable factor in the equity jurispru- 
 dence of the future. In the mean time, brief 
 reference must first be made to the twojninac^doc- 
 trines referred to. 
 
 § 217. Performance and satisfaction. The doc- 
 trine first named has no connection with the doctrine 
 of "specific performance," and is of little or no 
 practical importance in this country.' It has been 
 applied in England principally to covenants in mar- 
 riage settlements. In respect to such and similar 
 obligations, the rule has been established, that where 
 a party is bound to do an act, and he does one cap- 
 able of being construed to have been done in fulfill- 
 
 >1 Pom. Eq. Jur., sec. 420; Bisp. Pr. Eq., sec. 46. 
 »Chute, Eq. 29. 
 'Bisp. Pr. Eq. sec. 537. 
 
302 EQUITY JCKISPRUDEKCB. 
 
 ment of his Obligation, it will be construed as a 
 performance, either in whole or in part, according to 
 its extent.* 
 
 The doctrine of s^jtisfaction^ applies where a gift or 
 legacy is made with the intention, express or implied, 
 that it is to be an extinguishment of some existing 
 right or claim of the donee. It arises generally 
 under one of the two following states of fact: First, 
 when a parent, or person in loco parentis, makes a 
 double provision for a child; second, when a debtor 
 confers, by will or otherwise, a pecuniary benefit on 
 his creditor.^ In the case of the parental relation, the 
 double provision may be a legacy and a subsequent 
 advancement,' or it may be a promise and a subsequent 
 legacy.* In either case, the ordinary presumption is, 
 that the prior obligation, whether legacy or promise, 
 is extinguished by the subsequent advancement or 
 subsequent legacy, or in other words, that the subse- 
 quent advancement or legacy is in satisfaction of 
 the obligation. The intention is imputed to the 
 parent, or to the person standing in loco parentis, to 
 fulfil the moral obligation of providing for the child, 
 but not at the expense of other children.* The im- 
 puted intent may, however, be rebutted by proof, 
 
 '.Wilcouks vs. Wilcocks, 2 Vernon, 558; Blandy vs. Widmore, 
 1 P. Wms. 323; 2 Lea Ca. in Eq. 415, 833; 2 Spence Eq. 204; Smith's 
 Man. Eq. 28; Bisp. Pr. Eq. sec. 535. 
 
 ^Haynes' Outlines, 291 ; 2 Sto. Eq. Jur. sec. 1099. 
 
 3 Wallace vs. DuBois, 65 Md. 153. 
 
 *Smitli vs. Darby, 39 Md. 268, 279. 
 
 ^Haynes Outlines, 292; Ante, sec. 189, where the effect of this 
 maxim acting in combination with others is noticed. 
 
ENABLING MAXIMS. 303 
 
 either direct or circumstantial, of an actual intent to 
 the contrary.^ 
 
 Considering the limited scope and subordinate im- 
 portance of these doctrines of performance and 
 satisfaction, and the easily rebuttable character of 
 the presumption of intent, it may be said that a rule, 
 whose only oflSce it was to serve as handmaid to such 
 doctrines, could show; no title to a place among the 
 general, maxims of equity. 
 
 § 218. Resultingf trust. A much broader signifi- 
 cance has been attributed to the principle by Prof. 
 Pomeroy, who discerns in it the basis for at least one 
 class of resulting trusts, where a fiduciary buys 
 property in his own name but with trust funds. In 
 such case, an honest intention is imputed to the 
 trustee of fulfilling his fiduciary obligation, which is 
 to hold the property in trust for the real owner, 
 rather than the intention to perpetrate a fraud." 
 
 Another case of resulting trust is subject to the 
 application of the principle of imputed intent, and 
 that is when a trustee mingles the trust money with 
 his own. Where a trustee improperly deposits trust 
 funds in his own private account, and afterwards 
 checks out various sums in the ordinary manner, the 
 principle referred to will be applied rather than the 
 general rule which attributes the first drawings out 
 to the first deposits, and the trustee will be taken to 
 
 'Smith vs. Darby, 39 Md. 268, 279; Hall, 107 Mo. 101; Watson vs. 
 Murray, 54 Ark. 499. 
 n Pom. Eq. Jur., sec. 422. 
 
304 EQUITY JURISPKDDENCB. 
 
 have intended using his own money rather than the 
 trust money which he had no right to use.' 
 
 § 319. Other applications. In its broader and 
 more useful application, this maxim is closely related 
 to the two preceding ones, the object of the whole 
 group, shortly stated, being to enforce fair play. 
 Taken in this more comprehensive significance, the 
 maxim now under consideration is the basis of the 
 rule, in the case of an act capable of ^wo construc- 
 tions, that an honest, rather than a dishonest, in- 
 tention, should be attributed, whenever the circum- 
 stances admit of such a presumption. The same rule 
 may be stated in other terms: When a man does an 
 act which may be rightfully performed, he cannot 
 say that that act was intentionally and in fact done 
 wrongfuUy.- 
 
 Thus broadly stated by Sir George Jessel, M. R., 
 the rule is shown to be of universal application, 
 and not peculiar to equity. (Certainly, not one 
 of its "more refined doctrines.") Thus, a man who 
 has a right of entry, cannot say he committed a tres- 
 pass in entering. A man who sells the goods of 
 another as agent, cannot prevent the owner adopting 
 the sale, and deny that he acted as agent for the 
 owner. One who grants a loan, believing he has 
 sufficient estate to grant it, although it turns out that 
 he has not, but has a power which enables him to 
 grant it, is not allowed to say that he did not grant 
 
 'KnatchbuU vs. Hallet, 13 Ch. D., 696, 727, 743; Englar vs. OfEatt, 
 70 Md. 78, 86; Central Bank vs. Ins. Co., 104 TJ. S. 54. 
 ^Knatchbull vs. Hallet, supra. 
 
ENABLING MAXIMS. 305 
 
 it under the power. Whenever it can be done right- 
 fully, he is not allowed to say, against the person 
 entitled to the property or the right, that he has done 
 it wrongfully. And it is upon this principle, as be- 
 fore stated, that a trustee who has blended trust 
 monies with his own, cannot be heard to say that he 
 took away the trust money when he had a right to 
 take away his own money.* 
 
 Perhaps no maxinj of equity has been so little ■ 
 quoted in decisions,^ or so meagerly treated by the 
 majority of text writers.* Instances may readily be 
 found, however, where the principle has been im- 
 pliedly acted on, generally in connection with the two 
 other maxims of the same group. Thus, the city of 
 New Orleans being indebted for public works, issued 
 bonds to a larger amount, but without specifying that 
 they were issued in discharge of such debt. The 
 bonds were held to have substantially extinguished 
 the debt. The court in so holding, quoted the maxim, 
 "equity looks beyond the form to the substance of 
 things." An examination of the case will show that 
 the maxims — "equity regards that as done which 
 ought to be done," and, "equity imputes an intent to 
 fulfill an obligation," are also applicable, although 
 not expressly referred to.* 
 
 »Knatchbnll vs. Hallet. 13 Ch. D. 696. 
 
 ^Hawes vs. Chaille, 129 Ind. 435, 438. For an unsuccessful attempt 
 to have it recognized, see Edes vs. Garey, 46 Md. 27, 28. 
 
 ^It is significant of advance that the latest text-book upon 
 the general subject gives special prominence to its bearing upon 
 resulting trust. 1 Beach, Mod. Eq. Jur. sec. 24. 
 
 *Peake vs. New Orleans, 139 U. S. 342, 356-9. 
 20 
 
CHAPTER XIII. 
 
 ENABLING MAXIMS (II). 
 
 220. Enabling remedial maxims. 
 
 221. V. :]5quity acts in personam. 
 
 222. And thus acts beyond the jurisdiction. 
 
 223. Qaalification. 
 
 224. VI. Equity acts specifically. 
 
 225. Specific performance. 
 
 226. Accident — re-execution. 
 
 227. Mistake — reformation — cancellation. 
 
 228. VII. Equity prevents mnltiplicity of suits. 
 
 229. Influence upon procedure. 
 
 230. A ground of equity jurisdiction. 
 
 231. A factor in law reform. 
 
 232. VIII. i^qualityis equity. 
 
 233. Applications. 
 
 234. Qualification. 
 
 235. A factor in law reform. 
 
 § 220. H^nabling remedial maxims. Up to this 
 point we have been dealing principally with primary 
 maxims, or maxims which enable the creation of 
 equitable rights. We come now to a group of three 
 remedial maxims, or maxims which assume the ex- 
 istence of the equitable right, and enable the en- 
 forcement of the right by indicating the direction of 
 remedy, not in detail, but in general scope and effect. 
 They will now be considered in the order of import- 
 ance. 
 
ENABLING MAXIMS. 307 
 
 § 221 . Bquity acts in personam. ' By a recent Eng- 
 lish author, this maxim is ranked first in importance. 
 To its action upon conscience he ascribes the doctrines 
 of trust, fraud, accident and mistake, and the three 
 maxims, classed hereinafter as the last three restric- 
 tive maxims, which he thus makes derivative and 
 subordinate.^ Historically, this is a correct view, and 
 coincides substantially with that herein presented.^ 
 Practically, and from the modern standpoint, the 
 maxim may be now regarded as .dealing exclusively 
 with remedies. It is not necessary to repeat what 
 has already been stated as to the historical source 
 of the maxim.* It has been seen that it emphasizes 
 a marked distinction between the methods of law and 
 equity. A common-law court lays no command upon 
 the defendant, personally, but issues a writ of execu- 
 tion directed to the sheriff, commanding him to put 
 the plaintiff in possession of the property in contro- 
 versy, or, in case of a judgment for debt or damages, 
 • commanding him to seize the defendant's property.^ 
 Equity acts upon the conscience of the defendant, im- 
 poses upon him personally a personal obligation, and 
 enforces obedience against his person by attachment 
 for contempt, in other words, by fine and imprison- 
 ment." ^ 
 
 '1 Pom.^q. Jur., sec. 428; Bisp. Pr. Eq., sec. 47. 
 
 ^Smith (H. A.), Pr. E. 10-15. 
 
 "Ante, sec. 8. 
 
 *Ante, sec. 7. 
 
 'Adams' Eq. Intro. 35; Laog, Eq. PI. sec. 40. 
 
 %AnU, sees. 48, 84; Earl of Oxford's Case, 2 Lea. Ca. in Eq. 601; 
 2 Dan. Ch. P. 1031; Langdon vs. Sherwood, 124 tJ. S. 81; Jenkins 
 vs. Jackson, 40 Cti. D. 77; Clements vs. Tillman, 79 Ga. 451. 
 
308 EQUITY JURISPKUDENCE. 
 
 § 222. And thus acts beyond the jurisdiction. 
 The present practical importance of this maxim is 
 that by it the arm of equity is made long enough to 
 reach property and even control legal proceedings, 
 beyondthe jurisdiction of the state.^ "Courts of equity 
 are courts of conscience, operating in personam and 
 not in rem, and in the exercise of this personal juris- 
 diction compel the performance of contracts and 
 trusts as to subjects that are not either- locally, or 
 ratione domicilii, within their jurisdiction.' ' ^ A party 
 may be compelled to convey land situated abroad,' 
 although the conveyaijce must be according to 
 the law of the foreign country, and must be sent 
 there for record.^ The court may decree the re-exe- 
 cution of a lost deed of land outside the state.' If 
 the mortgagors and trustees of a railroad mortgage in 
 default are all within the jurisdiction of the court, it 
 may order a sale of the entire road, although part 
 thereof is outside its jurisdiction.' A party may be 
 enjoined from prosecuting a suit abroad,' for a court 
 
 'Penn vs. Lord Baltimore, 1 Vesey, 444, 2 Lea Ca. in Eq. 767; 
 Morton vs. GraflBin, 68 Md. 566; Keyser vs. Eice, 47 Md. 211, 213; 
 Wliite vs. White, 7 G. & J. 208, Brantley's note; Carpenter vs. 
 Strange, 141 U. S. 105; f)ole vs. Cunningham, 133 U. S. 107; Muller 
 vs. Dow, 94, U. S. 440; Snook vs. Snetzer, 25 Oh. St. 516; Procter vs. 
 Bank, 152 Mass. 223; Wilson vs. Joseph, 107 Ind. 490; Allen vs. 
 Buchanan (Ala.), 11 So. Rep. 803; Thorndike, 42 111. App. 491. 
 
 ^Selbourne, L. Ch. in Ewing vs. Orr, 9 App. Ca. 34, 40.* 
 }-.«McQuery vs. Gilliland, 89 Ky. 434. 
 
 *AdamB vs. Messinger, 147 Mass. 191. 
 
 «King vs. Pillow, 90 Tenn. 287; Pillow vs. King, 55 Ark. 633. 
 
 sMuller vs. Dows, 94 U. S. 444; McElrath vs. Railroad, 55 Pa. 189. 
 
 'Button, 40 N. J. Eq. 461. 
 
ENABLING MAXIMS. 309 
 
 of equity does not set aside or annul a judgment at 
 law, but simply enjoins the plaintiff.* Such injunc- 
 tions especially lie to restrain residents of the state, 
 in evasion of its exemption or insolvent laws, from 
 attachment proceedings in other states.^ 
 
 In order that such far-reaching effect may be given 
 to the decree, the defendant must be personally 
 within the jurisdiction of the court, by service of 
 process within the state, or by voluntary appearance, 
 and constructive notice by publication has no effect 
 outside the limits of the state.' 
 
 Although a court of equity, acting in personam, 
 may decree the conveyance of land in another state, 
 and enforce the decree by process against the defend- 
 ant, yet neither the decree itself nor any conveyance 
 under it, except by the person in whom the title is 
 vested, can operate beyond the jurisdiction of the 
 state.^ Hence a foreclosure in one state of a mort- 
 gage upon land in another, is of no validity in the 
 latter,^ nor a decree of partition." And in general, a 
 decree cannot operate ex propria vigore upon land 
 in another jurisdiction, either to create, transfer or 
 vest a title.' 
 
 1 Given 121 Pa. 265. 
 
 ^Keyser vs. Rice, 47 Md. 203; Cole vs. Cunningham, 133 U. S. 107, 
 
 ^Ante, sec. 29; Worthington vs. Lee, 61 Md. 542; Hart vs. Sansom, 
 110 U. S. 151. 
 
 *Watkins vs. Holman, 16 Peters, 25. 
 
 'Farmers vs. Postal, 55 Conn, 334; Burgess vs. Souther, 15 R. I. 
 202. 
 
 "Poindexter vs. Burwell, 82 Va. 507; Wimer, 82 Va. 890. 
 
 'Lindley vs. O'Reilly, 50 N. J. Law. 636, 640; Carpenter vs. 
 Strange, 141 U. S. 87, 106. 
 
310 EQUITY JUEISPBUDEKCE. 
 
 § 223. Qualification. It must not be understood 
 that equity does not protect rights in rem, or that it 
 interferes to enforce all personal rights. On the 
 contrary, it will shortly be seen that equity deals 
 with specific and identified land or specific funds. 
 The subject of its jurisdiction is property, and not 
 persons.* And when the res lies within the jurisdic- 
 tion, although the owner may be non-resident, the 
 court is now enabled by statute to enforce rights 
 concerning it.^ Modern legislation has, in other 
 ways, abridged the scope of the maxim that equity 
 acts in, personam. Decrees for the payment of 
 money are now upon the same footing as judgments, 
 with respect to their enforcement.^ Decrees for sale 
 are carried into effect by the appointment of trustees, 
 and whenever a decree directs a conveyance, the 
 decree itself has the same effect that the deed would, 
 if executed.^ A decree of divorce is a decree in rem, 
 so far as the main object is concerned. The enforce- 
 ment of a defendant's appearance and answer by 
 personal coercion, is still theoretically possible, but 
 it has been practically superseded by means already 
 explained.^ For violation of injunctions and other 
 specific orders, the remedy is still in personam.^ 
 
 n Pom. Eq. Jur. sec. 429. 
 
 ^Ante, sec. 29. 
 
 'Ante, sec. 84. 
 
 *Ante, sec. 85. 
 
 ^Anie, sec. 48. 3~n C^ (^.Ui;^i ^ e . 
 
 ^Anie, sec. 84. V 
 
EKABLING MAXIMS. 311 
 
 § 224, VI. Equity acts specifically. Much that 
 might be said under this title has been anticipated.* 
 Another contrast between the rationale of law and 
 that of equity is here sharply defined. The only 
 actions by which specific property can be recovered 
 at law are ejectment and replevin. In ejectment, 
 the only result originally was a judgment for dam- 
 ages, but afterwards specific restitution was given 
 in imitation of equitable relief.^ In replevin, specific 
 relief might be defeated by the defendant giving a 
 retorno habendo bond, upon which the property must 
 be restored to him, and the plaintiff's claim converted 
 into an action for damages.' For breach of contract 
 to convey land, the law gives compensation in dam- 
 ages, a remedy in many cases wholly inadequate or 
 incapable of ascertainment. 
 
 The method of equity is the reverse of this. Its 
 object is, in all cases of injury, to restore the 
 plaintiff to the exact position, so far as practicable, 
 that he would have occupied if the wrong had not 
 taken place. 
 
 § 225. Specific performance. Equity enforces 
 the specific performance of contracts to convey land, 
 and thus places the party in possession of the very 
 
 ^Ante, sees. 7, 8. 
 
 »3 Bl. Com. 200. 
 
 'Gough vs. Crane, 3 Md. Ch. 120, 137. But now, by 1888 ch. 269, 
 the court has power to enforce delivery of chattels eloigned by 
 attachment of the person. Md. Code, Art. 75, sec. 111. This, of 
 course, is also an imitation of equitable process. The legal remedy 
 of mandamus is also specific, sec. 98. 
 
313 EQUITY JITRISPEUDElirCB. 
 
 subject.^ It enforces also specific performance of 
 contracts with respect to articles of personal property 
 p®ssessing some peculiar quality which cannot 
 enter into the legal estimate of compensation,^ or 
 where the legal remedy is for any other reason inad- 
 equate.' Advancing upon the same line, it has gone 
 so far as to specifically enforce contracts for personal 
 services of a peculiar character, by injunction restrain- 
 ing their breach.* As already stated, time is not in 
 general of the essence of the contract,^ and the right 
 to enforce specific performance is not lost by a failure 
 to pay the money on the appointed day.' If, by the 
 terms of the contract, notice of the intention to pur- 
 chase is required, the failure to give such express 
 notice will not bar relief, if notice is suificiently 
 indicated by acts and conduct.^ But in matter of 
 substance, the plaintiff must show performance of 
 the contract or readiness to perform on his own part.' 
 He must be able to make a good, and not a doubtful 
 
 ^Moale vs. Buchanan, 11 G. & J. 314, Brantly's note; Bisp. Pr. 
 Eq. sec. 29, 361. 
 
 ^Equitable vs. Coal Co., 63 Md. 285, 300; McAndrew vs. Bassett, 
 33 Ch. D. 561, 562. 
 
 ^Gottschalk vs. Stein. 69 Md. 51; Southern Exp. Co. vs. Western, 
 99 U. S. 191. 
 
 *Ante, sec. 102. 
 
 ^Beck vs. Colorado Co., 10 U. S. App. 465. 
 
 "Wilson vs. Herbert, 76 Md. 489; Cheney vs. Libby, 134 U. S. 68. 
 
 yibid. 
 
 ^Carswell vs. Welch, 70 Md. 504; Penn vs. McCuUough, 76 Md. 
 229; Walsh vs. Preston, 109 U. S. 297; Holgate vs. Eaton, 116 V. S. 
 33; Cheney vs. Libby, 134 U. S. 68. 
 
EKABLING MAXIMS. 313 
 
 title,* but objections to the title, in order to prevail 
 must be well grounded. ^ The plaintiff must make out 
 his case by clear and satisfactory proof,' and reason- 
 able certainty is required as to the subject matter of 
 the contract, but the description is sufficient if it 
 identifies the property.^ A court of equity will not 
 enforce an unconscionable bargain,^ but if the con- 
 tract was fair at the time it was made, it will not be 
 judged in the light of subsequent events.^ A per- 
 petual contract will not be enforced, for the court 
 cannot undertake an endless duty.' 
 
 It is not necessary to repeat the suggestions 
 already offered as to the analogies an^ distinctions 
 between specific performance and injunction.* It 
 will only be added that both remedies illustrate this 
 and the preceding maxim, and that in their applica- 
 tion these maxims combine with others. 
 
 § 226. Accident— re-execution. In case of acci- 
 dent, as the loss of a note, bond or deed, accompa- 
 nied by such circumstances as call for equitable 
 
 iKraft vs. Egan, 76 Md. 243; Bryant vs. Wilson, 71 Md. 440; 
 Newbold vs. Peabody Co. 70 Md. 493. 
 
 'Seldner vs. McCreary, 75 Md. 287; Small vs. Marburg, 77 Md. 11. 
 
 'Dalzell vs. Dueber, 149 TJ. S. 315; Penn. vs. McCullough, 76 Md. 
 229; Semmes vs. Worthington, 38 Md. 298. 
 
 *Kraft vs. Egan, 76 Md. 243; Preston, 95 U. S. 200. 
 
 'Pope Mfg. Co. vs. GormuUy, 144 U. S. 224; Jencks vs. Quid- 
 nicks, 135 U. S. 457; Mississippi R. K. vs. Cromwell, 91 U. S. 643. 
 
 ^Franklin Co. vs. Harrison, 145 U. S. 459; Brewer vs. Herbert, 
 30 Md. 301. 
 
 'Texas R. B. vs. Marshall, 136 V. 8. 393. 
 
 'Ante, sec. 97. 
 
314 EQUITY JURISPEUDENCE. 
 
 relief, such relief will be specific ; that is, it will 
 place the party, so far as practicable, in the same 
 position he would have occupied had the loss not 
 been sustained. Re-execution of the lost instrument 
 will, if necessary, be decreed, and, in addition, 
 further relief may be administered by directing a 
 performance on the part of the defendant of the 
 specific duty for which he was bound thereby.^ 
 
 § 227. Mistake— reformation and rescission.^ 
 "When there has been a mistake in a written instru- 
 ment, and the mistake is merely one of expression, 
 or in terms, such as an inadvertence or omission 
 of the scrivener, equity will act specifically in 
 reforming (correcting, rectifying,) the instrument, 
 so as to place both parties in the position they would 
 have occupied, had the instrument been correctly 
 drawn.' 
 
 To warrant the remedy of reformation the mistake 
 must have been mutual, or, if unilateral, the mistake 
 must have been induced by some act or omission of 
 the defendant.* The mistake, also, if not admitted, 
 must be established by clear and satisfactory proof,^ 
 
 iBisph. Pr. Eq. sec 467; Ches. & O. vs. Blair, 45 Md. 102. 
 
 ^Wood vs. Patterson, 4 Md. Ch.. 335, Brantly's note. 
 ■ sBisph Pr. Eq. sec. 190, 469; ■ Popplein vs. Foley, 61 Md. 381; 
 Coale vs. Merryman, 35 Md. 382; Cooke vs. Husbands, 11 Md. 492; 
 Bond vs. Dorsey, 65 Md. 310; Wasatch vs. Crescent, 148 TJ. S. 293. 
 
 *Dulany vs. Bogers, 50 Md. 524, 533; Atlantic Co. vs. Maryland 
 Co., 62 Md. 135, 142; Ben Franklin Ins. Co. vs. Gillett, 54 Md. 212; 
 Delaware Ins. Co. vs. Gillett, 54 Md. 219. 
 
 sFarmville Ins. Co. vs. Butler, 55 Md. 233, 237 ; Mendenhall vs. 
 Steckel, 47 Md. 453, 465; McDonnell vs. Milholland, 48 Md. 510; 
 Stiles vs. Willis, 66 Md. 652. 
 
ENABLING MAXIMS. 315 
 
 as well as the precise form and import of the instru- 
 ment intended.^ 
 
 For a fundamental mistake, or a mistake in the 
 subject matter itself, the remedy is rescission or 
 cancellation, whether the mistake be of one or both 
 parties.' 
 
 In cases of mistake the specific remedy of injunc- 
 tion is also applied, when appropriate.* 
 
 The equities of specific performance, re-execution, 
 reformation, rescission, cancellation, injunction and 
 the like, are all, of course, subject to the various 
 defences arising under the restrictive maxims. 
 
 §228. VII. Bquityprevents multiplicity of suits. 
 
 Although restrictive in form, and in some of its 
 minor applications, this is a powerful enabling 
 maxim, in substance and effect. While its in- 
 fluence is felt throughout the entire system, it is 
 especially active in equity procedure. Like the two 
 preceding maxims, (equity acts in personam and 
 specifically) — it deals with remedies rather than with 
 rights. It has been already so often referred to that 
 little remains to be said, except in the way of re- 
 capitulation. 
 
 § 229. Influence upon procedure. Upon this 
 broad principle is based the rule as to parties in 
 
 »Keedy vs. Nally, 63 Md. 311; Milligan vs. Pleasants, 74 Md. 8; 
 Second Nat. Bank vs. Wrightson, 63 Md. 81, 84; Bond vs. Dorsey, 
 65 Md. 310. 
 
 ^Keating vs. Price, 58 Md. 532; Hunting vs. Walter, 33 Md. 60. 
 
 ^Weikel vs. Gate, 58 Md. 105; Hartsock vs. Russel, 52 Md. 619. 
 
316 EQUITY JUEISPRUDENCB. 
 
 equity suits, according to all the authorities.^ The 
 more general form of the rule, as hereinbefore stated,^ 
 involves the doctrine of representation, and the 
 statutory doctrine of constructive parties, devices by 
 means of which a multitude of separate suits, carried 
 on in different places, may be conveniently fore- 
 stalled and drawn into the compass of a single pro- 
 ceeding. It has also been seen to be the basis of 
 the rules of practice as to the election of reme- 
 dies,' and the consolidation of cases.* The con- 
 verse of consolidation, known as the splitting of 
 causes of action, is forbidden upon the same prin- 
 ciple.* The plea of a pending suit is an obvious 
 instance of its practical application,' and the cross- 
 bill is another.' The defence of set-off is referred to 
 the same principle,* and the third jurisdictional rule, 
 (as to retaining jurisdiction fbr complete relief),' is 
 simply a mode or a special case of this maxim.*" 
 
 In several of the foregoing instances the maxim 
 is used defensively, but its general enabling char- 
 
 '^AnU, sees. 23, 24. 
 
 ^AnU, sec. 27. 
 
 'Ante, sec. 120. 
 
 '^Ante, sec. 119. 
 
 =Sto. Eq. PI. sec* 287; Hayden vs. Phillips, 89 Ky. 5; Roby vs. 
 Eggers,*130 Ind. 415; Bobbins vs. Conley, 47 Mo. App. 502. 
 
 ^AnU, sec. 62; Chickering, 56 Vt. 92. 
 
 'Mannix vs. Purcell, 46 Ohio St. 102, 150. 
 
 'Bryant vs. Sweetland, 48 Ohio St. 194, 208. 
 
 ''Ante, sec. 179. 
 
 '"McGean vs. Railroad, 133 N. Y. 16; McKeesick vs. Seymour, 
 48 Minn. 158, 170; Lancy vs. Randlett, 80 Maine, 170, 175; School 
 Directors' case, 135 111. 465. 
 
EKABLING MAXIMS. bl7 
 
 acter appears as well from the main trend of its 
 affirmative movement in procedure, as also, and 
 more especially, from the two functions to be now 
 mentioned. 
 
 § 230. A ground of equity jurisdiction. The pre- 
 vention of a multiplicity of suits enables a distinct 
 and substantive ground of eqpitable jurisdiction in 
 cases of discovery,^ account^ and contribution.' It 
 also forms the sole basis of the remedial jurisdiction 
 of equity in a large class of cases wherein the juris- 
 diction is wholly attributable to the inadequacy, 
 rather than to the absence, of legal remedy. A court 
 of equity will take cognizance of a controversy to 
 prevent a multiplicity of suits, although the exercise 
 of such jurisdiction may call for the adjudication of 
 purely legal rights and confer purely legal relief.^ 
 The great instrument by which the principle is prac- 
 tically operated is the writ of injunction for the pur- 
 pose of restraining unnecessary or vexatious litiga- 
 tion. Common instances are bills of interpleader, 
 bills of peace, and bills quia timet.^ Besides 
 these well defined classes, there is a large and mis- 
 cellaneous category of torts, trespasses and nuisances, 
 cases, in a single instance of which, equity would 
 have no cognizance, but where the injury is one of 
 
 'Snowden vs. Dispensary, 60 Md. 85. 
 
 ^Bisph. Pr. Eq. sec. 484; Sto. Eq. Jur. sec. 457; Eeynes vs. 
 Dumont, 130 U. S. 354, 394. 
 ^Bisph. Pr. Eq. sec. 329. 
 *Preteca vs. Maxwell, 4 U. S. App. 326. 
 ^Ante, sec. 100. 
 
318 EQUITY JUEISPBUDENCB. 
 
 repetition or continuance, and its redress at law could 
 only be obtained by multiplicity of litigation, the in- 
 adequacy of such remedy to afford complete relief 
 furnishes an independent ground of jurisdiction.^ In 
 the Mississippi case last cited, the parties were rival 
 corporations in making cotton-seed oil, and the de- 
 fendant was charged with sharp practice in getting 
 hold of the empty sacks distributed by the plaintiff 
 among its customers for the reception of material. 
 Here a separate legal remedy for each tort might have 
 been had, but the legal remedy would be inadequate 
 to relieve the plaintiff against the vexation of bring- 
 ing numerous small suits, and the defendant was 
 accordingly restrained by injunction. 
 
 § 231. A factor in law reform. The eflSciency 
 of this maxim is to be especially remarked in con- 
 nection with recent law reforms. By the Judicature 
 Act of 1873, the English courts are expressly required 
 to grant remedies so that "all multiplicity of legal 
 proceedings" may be avoided; and the main object 
 of the reformed procedure, in both countries, is "to 
 enable the parties to a suit to obtain in that suit, and 
 without the necessity of resorting to another court, 
 all remedies to which they are entitled in respect of 
 
 'Lembeck vs. Nye, 47 Ohio St. 336; Canfield vs. Andrew, 54 
 Vermont, 1, 12; Adams vs. Manning, 48 Conn. 477; Audriessen's 
 Appeal, 123.Pa. 303, 328; Lippincott vs. Barton, 42 N. J. Eq. 272; 
 Beck vs. Beck, 43 N. J. Eq. 39, 44; Beecher vs.^ Lewis, 84 Va. 630, 
 633; Kavanagh vs. Eaiiroad, 78 Ga. 271, 273* Mayer vs. Coley, 
 80 Ga. 207; Thompson vs. Sheppard, 85 Ala. 611, 618; Mills vs. Seed 
 Company, 65 Mies. 391. 
 
ENABLIKQ MAXIMS. 319 
 
 any legal or equitable claim or defence properly ad- 
 vanced by them, so as to avoid a multiplicity of legal 
 proceedings.."^ The recent legislation in Maryland 
 conferring equity powers upon law courts in certain 
 cases already mentioned, is another instance in point.^ 
 
 § 232. VIII. ISquality is equity.^ This is the last 
 of the enabling maxims, designedly so placed from 
 the fact that its aggressive quality is the least pro- 
 nounced of any of them, and that it may some- 
 times be used defensively. It might, indeed, be 
 assigned to a class by itself, under the name of the 
 administrative maxim. It does not enable the crea- 
 tion of any substantive equitable title, but it resem- 
 bles the primary maxims in giving rise to important 
 adjustive equities. Its active agency as a potent and 
 progressive instrument of law reform is the positive 
 feature that especially classifies it with the enabling 
 maxims. No fundamental principle is broader in its 
 scope, more characteristic of the genius of equity, 
 or more universally perv asive of its jurisprudence. 
 
 § 233. Applications. The more frequent occasions 
 for its practical application are to creditors' bills,* 
 
 'Morg. Ch. Act, 257; 12 App. Ca. 306, cited ««te, sec. 137. Note 
 here the combination of this with the third enabling mazim, to 
 produce the result in question. 
 
 ^Ante, sec. 164. 
 
 'Bisph. Pr. Eq. sec. 41; 1 Pom. Eq. Jur. sec. 405; Sm. Pr. Eq. 
 487; Co. Litt. 246; 66 Md. Natl. Bank vs. Lanahan, 469; 61 Md., Dil- 
 ley vs. Love, 605; Richmond vs. Irons, 121 TJ. S. 44. 
 
 *AnU, sec. 31; Bisph. Pr. Eq. sees. 525, 528; 3 Pom. Eq. Jur. sec. 
 1415; Swan vs. Dent, 2 Md. Ch. Ill, Brantly's note; Hammond, 2 
 
320 EQUITY JUKISPEUDENCE. 
 
 and administration suits,^ to proceedings in insolv- 
 ency/ to bills for an account of partnership,' or other 
 transactions between creditors and debtors or their 
 sureties/ or to foreclose mortgages and enforce 
 liens/ In all cases of distribution of insolvent estates 
 the apportionment among creditors is made pro rata 
 upon the principle of equality. Upon the same prin- 
 ciple, contribution will be enforced among joint debt- 
 ors and co-sureties,' and also the marshaling, where 
 
 Bland 306, note; Brian vs. Thomas, 63 Md. 476 ; Bannon vs. Lloyd, 
 64 Md. 48; Christopher, 64 Md. 583, 588; Natl. Bank vs. Lanahan, 
 66 Md. 461, 2, Morton vs. Grafflin, 68 Md. 544, 563, 566; Balls, 69 
 Md. 388; Balls vs. Dampman, 69 Md. 391; Jackson vs. Wilson, 
 76 Md. 567; Kennedy vs. Creswell, 101 TJ. S. 641, 646; Walker vs. 
 Powers, 104 V. S. 245; Johnson vs. Waters, 111 U. S. 641, 674; 
 Richmond vs. Irons, 121 U. S. 27, 44; Brown vs. Lake, 134 U. S. 530. 
 
 ^Bisph. Pr. Eq. sec. 528; 3 Pom. Eq. Jur. sec. 1152; Barnes vs. 
 Grain, 8 Gill. 391, Brantly's note; Woods vs. Fuller, 61 Md. 457; 
 State vs. Dilley, 64 Md. 314; Board vs. Columbia College, 17 Wall, 
 521, 530. 
 
 2 Riley vs. Carter, 76 Md. 581; Cross vs. Hecker, 75 Md. 574; 
 Gottschalk vs. Smith, 74 Md. 560; Buschman vs. Hanna, 72 Md. 1; 
 Brown vs. Smart, 69 Md. 320; Natl. Bank vs. Lanahan, 66 Md. 461, 
 469; Pinckney vs. Lanahan, 62 Md. 448; Castleburg vs. Wheeler, 
 68 Md. 266; Baker vs. Kunkel, 70 Md. 392. 
 
 'Bisph. Pr. Eq. sec. 505; Fleischman vs. Gottschalk, 70 Md. 523; 
 HoUoway vs. Turner, 61 Md. 217; Rhodes vs. Amsinck, 38 Md. 
 345, 355, 6. 
 
 *Orem vs. Wrightson, 51 Md. 34; SchaefEer vs. Bond, 72 Md. 501 . 
 
 'Johnson vs. Hambleton, 52 Md. 378; Md. Brick Co. vs. Spilman, 
 76 Md. 337. 
 
 «Bisph. Pr. Eq. sec. 328; Lusby vs. Carr, 60 Md. 192; Burger vs. 
 Grei*, 55 Md. 518; Ramskill vs. Edwards, 31 Ch. D. 109; Wolmer- 
 shausen v. GuUick (1893), 2 Oh. 514. 
 
ENABLING MAXIMS. 321 
 
 necessary, of assets/ and securities.^ When the 
 estate of a testator is inadequate to pay the legacies 
 in full, abatement is made pro rata, and the same 
 rule of equality governs in applying the statutory 
 provisions as to advancement,^ and the analogous 
 doctrine in regard to the ademption of legacies.^ 
 
 § 234. Qualification. This maxim is not to be 
 understood as inter^ring with the diligent pursuit 
 of their legal right by creditors in obtaining liens by 
 judgment, execution, attachment, or mechanics' lien, 
 or a voluntary preference by bona fide assignment, 
 mortgage, pledge, or other security, subject, to the 
 restrictions of the insolvent system, or of the bank- 
 rupt laws, when such are in force. Herein equity 
 follows the law. Nor does it even prevent the active 
 intervention of equity to aid creditors in perfecting 
 liens, although formally defective, and therefore 
 legally insufficient, when otherwise meritorious and 
 founded on valuable consideration.^ Herein equity 
 assists and supplements the law. 
 
 'Bisph. Pr. Eq. sec. 344; Price vs. Hobbs, 47 Md. 359, 384; 
 Addison, 44 Md. 183, 202. 
 
 ^'Bisph. Pr. Eq. sec. 340; Morton vs. Grafflin, 68 Md. 545, 561 ; 
 Dirks vs. Humbird, 54 Md. 399; Hall vs. Bank, 53 Md. 120, 124; 
 Leib vs. Stribling, 51 Md. 285; Post vs. Mackall, 3 Bland, 486; 
 Woolen vs. Hillen, 9 Gill. 186, note C. 
 
 'Md. Code, Art. 46, sec. 31; art. 93, sec. 125; Dilley vs. Love, 
 61 Md. 603. 
 
 *AnU, sec. 189. 
 
 ^But although equity will aid in making an execution effective, 
 (Harris vs. Alcock, 10 G. & J. 227, Br. note/,) it will not help an 
 imperfect attaehment, that being a special and statutory proceeding. 
 Morton vs. Grafflin, 68 Md. 563-5. 
 21 
 
332 EQUITY JURISPRUDENCE. 
 
 § 235. I,aw reforms. 
 
 There has been no more active agency than the 
 maxim in question in promoting reforms embodied 
 in statutes and constitutions. Besides being the basis, 
 as already suggested, of bankrupt and insolvent 
 systems, there is a numerous category of reforms in 
 the law so plainly attributable to the principle of 
 equality that they may be allowed to speak for 
 themselves. 
 
 1. Abolition of primogeniture, and equal division 
 of an inheritance. 
 
 2. Placing real and personal assets on same foot- 
 ing for payment of debts. 
 
 3. Abolition of distinction between different classes 
 of debts as to distribution. 
 
 4. Reversing the common law presumption in favor 
 of joint tenancy, and the jus accrescendi. 
 
 5. Equality of taxation. 
 
 6. Equality of representation. 
 
 7. Removing disabilities of coverture. 
 
 8. Removing disabilities of race and color. 
 
CHAPTER XIY. 
 
 RESTRICTIVE MAXIMS. 
 
 236. In general. . 
 
 237. I. Bqaity follows the law. 
 288. Applications. 
 
 239. Qualifications. 
 
 240. II. Between equal equities the law will prevail. 
 
 241. Notice. 
 
 242. III. Between equal equities priority of time 
 
 will prevail. 
 
 243. Priorities. 
 
 244. IV. Who seeks, must do, equity. 
 
 245. Older applications. 
 
 246. Wife's equity. 
 
 247. Usury. 
 
 248. Tacking — consolidation. 
 
 249. Modern applications, partition. 
 
 250. Compensation. 
 
 251. Election. 
 
 252. Estoppel. 
 
 253. Other instances. 
 
 254. When available to the plaintiflf. 
 
 255. Qualifications. 
 
 256. V. Must come with clean hands. 
 
 257. Injunction. 
 
 258. Common law analogies. 
 
 259. Qualifications. 
 
 260. VI. :eqnity aids the vigrilant. 
 
 261. Limitations. 
 282. Laches. 
 
 263. Affirmative circumstances, 
 261. Negative circumstances. 
 265. Ignorance of rights. 
 
324 EQUITY JUKISPBUDENCE. 
 
 266. Elements of lachea. 
 
 267. Applications. 
 
 268. How available. 
 
 269. Qualifications. 
 
 270. Lapse of time. 
 
 271. Laches, apart from time. 
 
 272. Acquiescence. 
 
 § 236. In general. Of the six restrictive maxims 
 given below, the first operates to prevent the creation 
 of distinctively equitable rights, and is therefore 
 primary. The other five mainly operate to prevent 
 their eiif orcement by the appropriate equitable reme- 
 dies, and are, therefore, generally, remedial, in the 
 broad sense of relating to the remedy; more correctly 
 anti-remedial. The first is restrictive as to the sphere 
 of equity, the other five as to the exercise of the 
 power within its sphere. As these latter, and espe- 
 cially the last group of three, are by far the most 
 important, and of the most frequent application in 
 practice; and as they presuppose the prima facie 
 existence of the equity which it is their office to 
 defeat in the particular case, by reason of its special 
 circumstances, the philosophy of the restrictive max- 
 ims may be called the statics of equity. They are 
 constantly invoked by defendants, and by plaintiffs 
 occupying a defensive position.^ 
 
 >As in Clay vs. Freeman, 118 U. S. 97, 108; Brown vs. Lake, 134 
 U. S. 530; Boon vs. Kent, 42 N. J. Eq. 135; Thomas vs. Brownville 
 R. B. Co. 109 U. S. 522, 526, 7; Carter vs. Dennison, 7 Gill, 157, 174- 
 176; Eidgely vs. Bond, 18 Md. 436, 451; Baumgartner vs. Haas, 68 
 Md. 32, 38; Md. Code, Art. 16, sec. 101. 
 
RESTEIOTIVB MAXIMS. 325 
 
 Following is the table of the restrictive maxims 
 as herein classified and'^arranged: 
 
 I. jSgmtcbs aequitur legem. 
 I II. Between equal equities, law prevails. 
 ( III. Between equal equities, priority of time prevails. 
 IV. Who seeks, must do, equity. 
 V. Who seeks equity must come with clean hands. 
 VI. VigUantibus non dormieni&ms cBguiias subvenit. 
 
 § 237. Bquitas sequitur legem. ^ The manifest 
 object of this maxim is to keep equity jurisdiction 
 within bounds, or, at least, to profess to do so. The 
 same principle bounded the jurisdiction of the Roman 
 praetor.'' Unlike the Roman prdetors, the early Eng- 
 lish chancellors found themselves confronted by rival 
 courts who alone possessed the power of punishing 
 criminally, or of redressing by civil suit for dam- 
 ages, cases of homicide or assault in which the exe- 
 cution of a doubtful decree might be resisted by 
 violence. It was for the courts of law, in such 
 cases, to pronounce, in the last resort, upon the 
 jurisdictional validity of the contested decree.* 
 Hence, in doubtful questions of jurisdiction, the 
 chancellors were accustomed to take the advice of 
 the judges."* By the checks which the common law 
 
 ^ Haynes' Out. 24, followed by 1 Pom. Eq. Jur. sec. 425; Bisp. Pr. 
 Eq. sees. 38, 57, 60, 62, 66; Ante, sec. 172; Hedges vs. Dixon Co. 150 
 TJ. S. 182. 
 
 'Jvs prwtorium jus civile subaequitur. Dig. I, 1, 7; Fonb. Eq. (>; 1 
 Sp. Eq. 409. 
 
 'Coleston vs. Gardner, 2 Ch. Ca. 43; Gilbert's Forum Romanum 
 (Am. ed.), 77; DeLolme, Const, of Eng. I, ch. 11, p. 151. 
 
 ^Fermor's Case, 3 Rep. 79; 4 Inst. 85-87. 
 
336 EQUITY JtTRISPEUDBNCE. 
 
 courts were thus able to interpose, the development 
 of equity was cautiously eif ected under their vigilant 
 supervision, and, to some extent, control. Common 
 law analogies were kept in sight, and some of its 
 harshest rules were untouched. ' Historically, this is 
 what is meant by the maxim — equity follows the 
 law. Its net result is the outcome of the long 
 struggle for jurisdiction, in which, by means of the 
 royal support, the chancellors finally prevailed.^ 
 Practically, therefore, this maxim must be under- 
 stood as partial and limited in scope,^ since, as we 
 have seen, the main business of equity is avowedly 
 to correct and supplement the law. It is not, how- 
 ever, in England, considered as at all impaired by 
 the provision in the Judicature Act, that in case of 
 conflict between equity and law, with reference to 
 the same matter, the rules of equity shall prevail 
 
 4 
 
 § 238. Applications. 1st. Equity is governed by 
 the rules of law (in some cases) as to legal rights, 
 however rigorous or unreasonable,^ or even where 
 the rule, such as that in Shelley's case, defeats the 
 manifest intention of a testator.* 2d. Equity also 
 (in some cases) adopts the rules of law, by analogy, 
 
 ^Ante, sees. 140, 172; 3 Ree. Eng. Law, 75. 
 
 '^Ante, sec. 10. 
 
 n Pom. Eq. Jur. sec. 427. 
 
 *Haynes' Out. 26, note. 
 
 ^Baumgartner vs. Haas, 68 Md. 39; 3 Bl. Com. 430; 1 Pom. Eq. 
 Jur. sec. 53, 54; Hedges vs. Dixon Co. 150 U. S. 182. 
 
 ^Hughes vs Nicklas, 70 Md. 487; "Warner vs. Sprigg, 62 Md. 20; 
 Fowler vs. Black, 136 111. 363. Ante, sec. 172. 
 
RESTRICTIVE MAXIMS. 327 
 
 as to equitable rights, as in the case of the statute of 
 limitations, which does not in terms apply to cases 
 in equity;* and, also, in the case of trust estates, 
 where the same rules as to quality and devolution 
 apply as in legal estates.'' 3d. Equity follows law in 
 the construction of statutes, wills and contracts, or 
 rather, both law and equity use the same canons of 
 interpretation as the means of arriving at the in- 
 tent.' 4th. Equity -also follows law, in general, as 
 to the rules of evidenced 
 
 § 239. Qualification. The qualification of this 
 maxim is nothing less than the entire system of ju- 
 ridical equity itself, both jurisprudence and proce- 
 dure, based, as has been seen, upon the theory that 
 equity does not follow the law where the law does 
 not follow justice or the public convenience.^ The 
 reverse of the maxim is sometimes quoted, lex sequi- 
 tur cequitatem.* The reference is to the constant 
 progress of law in the direction of equity under the 
 superior attractive force of the latter.' 
 
 '69 Md. 527, Chew vs. Farmers' Bank, 2 Md. Ch. 231, Brantly's 
 note. Percy vs. Cockrill, 10 TJ.^^ App. 574; Boone Co. vs. Railroad,- 
 139 U. S. 684, 693; Menendez^PHolt, 128 U. S. 523; Hollingshead 
 vs. Webster, 37 Ch. D. 659; ^Carty vs. Ball, 82 Va. 872; Binne^'s 
 App. 116 Pa. 179; Poet. sec. 261. 
 
 »Lemen vs. McComas, 63 Md. 157; Fairfax vs. Brown, 60 Md. 55. 
 
 33 Bl. Com. 435; White. 32 Ch. D. 28. 
 
 *Ante, sec. 70. 
 
 ^Ante, sees. 145, 146, 172. 
 
 «1 Sp. Eq. 638. 
 
 ■'Anie, sees. 167, 168. 
 
328 EQUITY JUEISPKUDBMCE. 
 
 § 240. Between equal equities the law will pre- 
 vail/ 
 
 This, and the following maxim, each presupposes 
 the existence of conflicting equitable rights in and 
 to the same subject matter, which are equally honest 
 and meritorious, and equally founded upon sufficient 
 consideration. Either alone would move the court 
 to action, as against the legal title. Being equal, 
 these conflicting equities simply neutralize each 
 other, and equity declines to interfere, leaving the 
 legal title stand. The most common illustrations are 
 under what is called the doctrine of notice. 
 
 § 241. Notice. A bona fide purchaser for value 
 without notice of a secret equitable lien, or unre- 
 corded equitable title, is considered as having an 
 equal claim to the consideration of a court of equity, 
 with the holder of the equitable lien or title. His 
 legal title will therefore prevail. Any of the equities 
 heretofore referred to as raised by the operation of 
 the enabling maxims, is subject to be in this manner 
 defeated by the defence of a bona fide purchaser 
 without notice. A, through fraud obtains a deed from 
 B under such circumstances that a court of equity 
 would decree a cancellation of the deed, or, regard- 
 ing that as done which ought to be done, would 
 treat A, the holder of the legal title, as a trustee for 
 B, who would be considered as still the real owner. 
 
 '1 Pom. Eq. Jur. sec. 416; Bisp. Pr. Eq. sec. 40; Black vs. Cord, 
 2 H. & G. 100; Fitzsimmons vs. Ogden, 7 Cranch, 2; Simmons vs. 
 Ogle, 105 U. S. 271. 
 
EESTRICTIVB MAXIMS. 329 
 
 But, before any action taken by B to assert his 
 equity, A promptly records his fraudulent deed, and 
 then sells to C, who pays value before he has notice 
 of the equitable claim of the defrauded party. Here 
 is a new equity raised in C upon his payment in 
 good faith without notice, which is equal to the 
 equity of the defrauded vendor, and to such a case 
 the maxim of equal equities applies, and the legal 
 title prevails. But. if C had either actual or con- 
 structive notice before he paid the money, then B's 
 equity, being superior, would prevail over the legal 
 title.' 
 
 The doctrine of notice is one of constant applica- 
 tion. Its leading rule is that a party taking with 
 notice of an equity, takes subject to that equity. - 
 Another of its rules is that relating to constructive 
 notice: — when a party has information which puts 
 him upon inquiry, he is charged with notice of every 
 fact which that inquiry -^would have developed.^ This 
 rule does not go so far as to require a party to act 
 upon the assumption that every person with whom 
 
 ^Bisph. Pr. Eq. sec. 262, &c.; 2 Pom. Eq. Jur, sec. 591, &c; 
 LeNeve, Ambler, 436, 2 Lea. Ca. Eq. 109; Brantly's note to Alex,- 
 ander vs. Ghiselin, 5 Gill, (top p.) 104; Seldner vs. McCreery, 75 
 Md. 287, 295. 
 
 2Ad. Eq. 148; Christopher, 64 Md. 587. 
 
 'Baltimore vs. Whittington, 11 D. H. 499, 77 Md. — ; Higgins 
 vs. Lodge, 68 Md. 229; Lincoln vs. Quynn, 68 Md. 299, 305; 
 Biddinger vs. Wiland, 67 Md. 359, 362; Abell vs. Brown, 55 Md. 
 217; Stewart vs. Ins. Co., 53 Md. 564; Lowry vs. Bank, Taney 
 C. C. 310; Simmons vs. Doran, 142 U. S. 417, 438; New Orleans 
 vs. Gaines, 131 U. S. 191, 218; Percy vs. Cockrill, 10 U. S. App. 574. 
 
330 EQUITY JURISPEUDBKCB. 
 
 he deals is likely to be a knave.^ Another familiar 
 rule under the doctrine of notice has already been 
 used by way of incidental illustration.^ 
 
 § 242. III. Between equal equities priority of 
 time will prevail.' The corresponding legal maxim 
 is qui prior est tempore potior est jure* When, as 
 under the last maxim considered, conflicting equities 
 are equal, so that the court has no other means of 
 deciding, then, as a last resort, it falls back upon the 
 legal . principle of priority in the order of time. 
 Hence it is apparent that, in the mode of their re- 
 strictive operation, the two maxims relating to equal 
 equities substantially coincide. One prevents equit- 
 able interference with a legal title, the other with a 
 legal principle. As one equity is always prior in 
 date to the other, the expression '« equal equities" 
 does not refer to equality in date.^ If, upon 
 comparing the rival equities, either is found in 
 any respect defective, the preference is given to 
 the other, irrespective of the date of origin. Or if 
 any circumstance is discovered which commends the 
 junior equity to consideration as the more meritorious 
 claim of the two, that circumstance will decide the 
 question of priority, rather than the order of time.'' 
 
 ^Bank vs. Kent, 39 Ch. P. 238, 247; Canal Co., L. R. 7 H. L. 
 496, S06; McGinn v. Tobey, 62 Mich. 252, 260, 261. 
 ''Ante, sec. 178. 
 
 n Pom. Eq. Jur. sec. 413; Bisph. Pr. Eq. sec. 45. 
 *May vs. Buckhannon, 70 Md. 450. 
 'Farrand vs. Bank, 40 Ch. D. 182, 188. 
 «Rice, 2 Drew. 73. 
 
EESTEICTITE MAXIMS. 331 
 
 In fact, it seldom happens that such exact equi- 
 librium is maintained, and cases of that descrip- 
 tion are rarely met with in practice. In this country, 
 moreover, all conveyances and incumbrances are 
 required to be recorded. The effect of this system 
 here, as in Ireland, is to preclude questions on equal 
 equities, which often arise in England.* 
 
 § 243. Priorities. The two maxims relating to 
 equal equities combine in producing the doctrine of 
 priorities. The doctrine of priorities is practically a 
 branch of the larger doctrine of notice, which has 
 just been briefly adverted to.* It must be remembered 
 that both maxims relate to equities only. In the 
 absence of fraud, or of negligence amounting in effect 
 to fraud, neither of them can be used to deprive the 
 holder of the legal title of his advantage.' Priority, 
 in this connection, means priority of lien, or prefer- 
 ence in distribution, and not simply priority in point 
 of date, although the latter, as just stated, in the case 
 of balanced equities, will generally determine the 
 former. Any of the equities raised under the opera- 
 tion of enabling maxims, may come into competition 
 with each other in a struggle for preference or 
 
 ^Bond vs. Hopkins, 1 Sch. & Lef. 430. Land title registration 
 has, with local exceptions, been kept out of England, by the 
 dislike of its " inquisitorial " character, on the part of the landed 
 aristocracy. 
 
 ^AnU, sec. 242; 2 Pom. Eq. Jur. sec. 677; Central Co. vs. Arctic 
 Co. 77 Md. 202; Taylor vs. Russell (1891), 1 Ch. 8. 
 
 'Mitchell vs. Farrish, 69 Md. 235, 241; Farrand vs. Bank, 40 
 Ch. D. 182, 188. 
 
332 E#ITY JUEISPRUDENCE. 
 
 priority, such as the equity of a defrauded vendor, 
 an equitable mortgage or other lien, the equity of an 
 assignee of a chose in action, or of an expectancy. 
 
 One of the leading rules for determining priority 
 is, that an equity founded on a valuable considera- 
 tion is superior to an equity founded on mere volun- 
 tary transfer.^ Thus a vendor's lien will be enforced 
 against the grantee of the purchaser, the considera- 
 tion for the conveyance being "natural love and 
 affection."" It results from this rule, that when both 
 the competing equities stand upon a valuable con- 
 sideration, without other circiimstances, the equi- 
 ties are equal, and the one prior in time is prior 
 in right. Thus, under a general assignraent for 
 the benefit of creditors, the creditors have an 
 equity equal to that of the holder of an unpaid 
 check upon the insolvent assignor's bank, and, 
 when notice of the assignment precedes the presen- 
 tation of the check for payment, are entitled to 
 priority.' Between a mortgagee whose mortgage 
 has been discharged of record through the unau- 
 thorized act of a third party, and a purchaser who 
 buys in the belief, induced by such release, that the 
 mortgage is satisfied, the equities are balanced, and 
 the rights in the order of time must prevail, in the 
 absence of negligence on the part of the defrauded 
 
 ^2 Pom. Eq. Jur. sec. 685. 
 ."Christopher, 64 Md. 583. 
 
 ^Laclede Bank vs. Schuler, 120 U. S. 511, 516; Covert vs. Khodes, 
 48 Oh. St. 66, 73. 
 
EESTRICTIVB MAXIMS. 333 
 
 mortgagee.' An agreement giving an attorney a lien 
 for professional services upon a judgment, constitutes 
 an equitable assignment of the judgment pro tanto, 
 and by priority of time prevails over the equal equity 
 of set-off acquired by the judgment debtor, by his 
 purchase of a judgment against the plaintiff.- 
 
 On the other hand, the equity of a beneficial owner 
 is superior to the legal title of assignees in bank- 
 ruptcy or insolvency who take as volunteers, subject 
 to equities.^ An equity of subrogation to a purchase 
 money mortgage was enforced as against the mort- 
 gagor's trustees in insolvency.* Another rule for 
 determining priority is that an equity to a specific 
 thing, or a specific lien is superior to a mere general 
 lien, such as that of a judgment.^ The last rule 
 that will be mentioned under this head is, that the 
 equity of a party who has been misled is superior to 
 his who has misled him,.'' 
 
 § 244. IV. Who seeks, must do, equity.' We now 
 come to the last group of three hard-working 
 maxims, each of them of first-class importance, both 
 
 'Heyder vs. Excelsior, 42 N. J. Eq. 403, 408. 
 
 ''Terney vs. Wilson, 45 N. J. Law. 282, 288. But see Marshall 
 vs. Cooper, 43 Md. 46. 
 
 "Dowler vs. Cushwa, 27 Md. 354; Dudley vs. Easton, 104 U. S. 
 99; Webber vs. Clark, 136 111. 268. 
 
 *Milbolland vs. Tiffany, 64 Md. 455. 
 
 '2 Pom. Eq. Jur. sec. 685; Dyson, vs. Simmons, 48 Md. 207. 
 
 «Ad. Eq. 148; Brown vs. Ins. Co., 42 Md. 384, 891; Bickerton 
 vs. Walker, 31 Cb. D. 151. 
 
 '1 Pom. Eq. Jur. sec. 385; Bisp. Pr. Eq. sec. 43; Davis vs. 
 Gemmell, 73 Md. 530, 542; Menendez vs. Holt, 128 U. S. 514, o24. 
 
334 EQUITY JTJKISPKUDENCE. 
 
 theoretically and practically. They are closely con- 
 nected, and are often so blended in their pronounced 
 restrictive effect that it is diflBcult to distinguish 
 their separate operation. ^ For many purposes they 
 might be treated as one consolidated precept: — He 
 who seeks equity must do equity, must come with clean 
 hands, and come promptly. Referring to the common 
 equitable defences before enumerated, it will be 
 found upon examination that nearly all of them are 
 based upon this group of maxims.^ The fourth and 
 fifth stand pre-eminently for conscience, and the 
 sixth for public policy, although both factors are 
 more or less apparent in each. They are all of uni- 
 versal and constant application in every variety of 
 case in which a plaintiff seeks to set in motion the 
 machinery of equity for the purpose of injustice or 
 oppression, or to secure an undue advantage, or to 
 profit by his own wrong, or in spite of his own 
 neglect. Taken together they illustrate the often 
 quoted expression of Lord Camden, " Nothing can 
 call forth a court of equity into activity, but con- 
 science, good faith and reasonable diligence, and 
 where these are wanting the court is passive and does 
 nothing.'" 
 
 § 245. Older applications. Taking up the maxim 
 that he who seeks must do equity, there are one or 
 two worn-out applications which must be first dis- 
 
 'See Sparhawk vs. Yerkes, 142 U. S. 1. 
 ^Ante, sec. 160. 
 ^Ante, sec. 160. 
 
EESTRICTIVE MAXIMS. 335 
 
 posed of, simply because they are so often made to 
 figure as stock illustrations. The wife's equity to a 
 settlement is one of them. 
 
 § 246. Wife's equity. The wife's equity has been 
 already referred to in another connection,* as super- 
 seded by modern legislation. Nothing further need 
 be said of this obsolete doctrine except to state that 
 it applied when the husband was obliged to resort to 
 a court of equity to obtain possession of his wife's 
 funds, and that the court required him to do equity 
 by making a fair settlement upon his wife.^ 
 
 § 247. Usury. The case of usury is analogous. 
 When the state of the law was such that the effect 
 of usury was to absolutely avoid the contract, 
 the borrower, claiming the intervention of equity 
 to set it aside, was granted relief only upon his 
 doing equity by paying the real debt with legal 
 interest.' Since the only forfeiture now is as to the 
 usurious excess,* this illustration also is of merely 
 historical interest. 
 
 § 248. Tacking — consolidation. The English doc- 
 trine of tacking mortgages was, in part, referred to 
 this maxim, but more appropriately belongs to the 
 second restrictive maxim.^ Unlike most equitable 
 
 'Ante, sec. 181. 
 
 ^Oswald vs. Hoover, 43 Md. 360, 368; Poulter vs. Shackel, 39 
 Ch. D. 471, 476. 
 ''Carter vs. Dennison, 7 Gill. 157, 174. 
 *Md. Code, Art. 45, sec. 4. 
 ^Bisph. Pr. Eq. sec. 158. 
 
336 EQUITY JUKISPEUDEKCB. 
 
 / 
 
 doctrines, it is not founded in justice/ and has been 
 generally rejected in this country as inconsistent with 
 the registration system. It is only mentioned in this 
 connection because a modified form of the doctrine, 
 under the name of consolidation of mortgages, hap- 
 pens to be left in such an unsettled condition in this 
 state, by reason of a catena of obiter dicta, that it may 
 possibly make some figure in the equity litigation of 
 the future. In this Retrenched form, tacking or con- 
 solidation is distinctly attributed to the maxim now 
 under consideration, and the meaning of it is this — 
 "that in order to prevent circuity of action, and 
 upon the principle that he who seeks equity must 
 do equity, if a mortgagor goes into equity to re- 
 deem, he will only be permitted to do so upon pay- 
 ment, not only of the mortgage debt, but of all 
 debts due from him to the mortgagee."^ The rights 
 of third parties will not be allowed to be prejudiced 
 by the operation of this doctrine, which, as against 
 creditors and assignees of the mortgagor who may 
 seek to redeem, would seem inconsistent with the 
 provisions of the registry law.' No instance can be 
 
 1 Coombs vs. Jordan, 3 Bland, 284, 330. 
 
 ^Brown vs. Stewart 56 Md. 421, 431, and cases cited. See Jen- 
 nings vs. Jordan, 6 App. Ca. 698. 
 
 8Md. Code, Art. 16, sec. 33; Art. 21, sees. 19, 30; Art. 66, sec. 2; 
 Brown vs. Stewart, 56 Md. 431. There are some scholars 
 who will be interested in the fact that the chancery suit of 
 Shakespeare vs. Lambert, to which reference has previously been 
 made, grew out of the refusal by the mortgagee, Lambert, to 
 accept the tender of the mortgage debt made by the poet's father, 
 unless other debts were also paid, upon the principle of con- 
 solidation. 
 
KESTRICTIVE MAXIMS. 337 
 
 found of the actual application of the doctrine in 
 this state. 
 
 §249. Modern applications— partition. A plain- 
 tiff, suing in equity for a partition, must contribute 
 his proportion of a mortgage on the land which had 
 been paid off by a defendant.* If, in a case of par- 
 tition, a defendant has made improvements on the 
 common property, the court will give him the benefit 
 of them by allotting to him, so far as practicable, 
 that part of the land improved, according to the 
 actual value of the land itself, without the improve- 
 ment.^ When the improved portion has been leased, 
 the ground rents are not to be charged to the de- 
 fendant in taking an account of mesne profits.' 
 
 § 250. Compensation. Upon the same principle, 
 when a court of equity is asked to vacate a deed ob- 
 tained by a trustee from his cestui que trust, the 
 latter will be required to refund the purchase money, 
 with interest.* So, when a plaintiff seeks to dis- 
 possess a bone fide occupant who has made valuable 
 improvements on the land, supposing his title to be 
 good, the former will be required to make due com- 
 pensation to the latter.^ And the same equity of 
 compensation for betterments has been applied in 
 
 '1 Pom. Eq. Jur. sec. 393, note 4. 
 ^Dugan vs. Baltimore, 70 Md. 8. 
 'Worthington vs. Hiss, 70 Md. 173. 
 "Smith vs. Townshend, 27 Md. 368, 369. 
 
 ^McLaughlin vs. Barnum, 31 Md. 425, 453; Union Association vs. 
 Morrison, 39 Md. 281, 292. 
 22 
 
338 EQUITY JURISPEUDENCE. 
 
 the case of a trustee who has purchased trust prop- 
 erty and been dispossessed at the suit of his cestui 
 que trust. ^ So, in cases of specific performance, when 
 a vendor is unable to convey to the vendee to the 
 full extent agreed, but has acted in good faith, and 
 the deficiency is comparatively immaterial, the 
 vendor may still be entitled to enforce the contract 
 so far as may be, but in such case he must also do 
 equity by compensating the vendee, or submitting to 
 a proportionate abatement from the contract price.^ 
 An apt illustration of the maxim, and of its purely 
 defensive operation, is afforded by fraudulent "con- 
 struction company" contracts to build railroads for 
 the illegitimate profit of directors. On a suit to 
 foreclose a mortgage made in pursuance of such a 
 contract, defrauded stockholders were allowed to 
 intervene by cross-bill, contesting the validity of the 
 mortgage. They thus made themselves actors, and 
 as such were held amenable to the maxim that they 
 who seek equity must do equity, which, in this case, 
 required fair compensation for work actually done. 
 " It is just that they should pay a fair price for what 
 they have received; that this mortgage, given for 
 the construction of the road, though excessive by 
 reason of fraud in the contract, should stand for the 
 reasonable value of what the company actually 
 received in the way of construction."^ 
 
 "Smith vs. Townshend, 27 Md. 368, 369;.Freichnecht vs. Meyer, 
 39 N. J. Eq. 551, 558. 
 
 ^Foley vs. Crow, 37 Md. 51, 60; 1 Pom. Eq. Jur. sec. 392. 
 
 'Thomas vs. Brownsville R. Co., 109 U. S. 522; Wardell vs. Union 
 Pacific R. Co., 103 U. S. 651. 
 
RESTRICTIVE MAXIMS. 339 
 
 § 251. Blection. Proceeding from the same 
 maxim is the application of the d&ctrine of election 
 expressed in the rule: One who receives the fruits 
 of a transaction cannot deny its validity whilst re- 
 taining its benefits.^ A creditor, for instance, who 
 participates in the distribution under a deed of 
 trust, elects to abide by its validity and waive his 
 paramount lien.^ And a creditor will not be permit- 
 ted to claim a distributive share of an insolvent 
 estate, and at the same time impeach the adjudica- 
 tion by which the debtor was adjudged insolvent.* 
 But a creditor, filing his claim under a deed of trust, 
 is not thereby precluded from proceeding against 
 the assignor in insolvency.^ A party who has ac- 
 cepted office under a questionable appointment is 
 not aUowedr to dispute the title of others holding 
 under the same appointment.^ Where the considera- 
 tion of the husband's debt went to the wife's sepa- 
 rate use, no injunction will be granted at her instance 
 
 •Brant vs. Virginia Coal Co., 93 U. S. 326, 336; Presstman vs. 
 Mason, 68 Md. 78, 91; Mitchell vs. Colbnrn, 61 Md. 244, 248; 
 Long, 62 3Id. 33, 71; Edes vs. Garey, 46 Md. 24, 25; Moale vs. 
 Buchanan, 11 G. & J. 314; Gough vs. Manning, 26 Md. 347, 367; 
 See also. Chapman vs. Goodnow, 123 U. S. 540, 544; McConihay 
 vs. Wright, 121 U. S. 201, 214; Kichmond vs. Irons, 121 U. S. 
 28, 62; aeland vs. Casgrain, 92 Mich. 152. 
 
 ^Horsey vs. Chew, 65 Md. 555, 557; Thomas vs. Farmer's Bank, 
 46 Md. 43, 54; Loney vs. Bayly, 45 Md. 447, 450; Farmers' Bank 
 vs. Thomas, 37 Md. 246, 258; Lanahan vs. Latrobe, 7 Md. 268, 272; 
 Jones vs. Horsey, 4 Md. 306, 313. 
 
 'Gottschalk vs. Smith, 74 Md. 560. 
 
 *Castleberg vs. Wheeler, 68 Md. 266, 280. 
 
 ■'Jones vs. Keating, 55 Md. 145, 150. 
 
340 EQUITY JUEISPBUDENCE. 
 
 to restrain the husband's creditors from taking her 
 property.^ Electibn is often confounded with estop- 
 pel) and both doctrines savor of laches or acquies- 
 ence. It is in the application of these doctrines that 
 the maxim in question most frequently combines in 
 its operation with the other two maxims of the same 
 group. 
 
 § 252. Estoppel. He who has been silent when he 
 ought to have spoken shall not be heard to speak when 
 he ought to be silent.^ The principle of estoppel is, 
 thatA^hen one party to a transaction has, by his 
 representations, conduct' or silence,* obtained an 
 unfair advantage over the other, he will not be per- 
 mitted to avail himself of it by any court of jus- 
 tice.^ This remedy is always so applied as to pro- 
 mote the ends of justice. It is available only for 
 protection, and cannot be used as a weapon of assault." 
 Estpppel is a rule founded in justice which prevents 
 a party from alleging anything contrary to the con- 
 ventional state of things on the faith of the truth of 
 which he has induced another to act.' This doctrine 
 
 lErdman vs. Rosenthal, 60 Md. 3]2, 316. 
 
 ^Morgan vs. K. K., 96 U. S. 716, 720; Funk vs. Newcomer, 10 Md. 
 301, 317; Burkenshaw vs. NicoUs, 3 App. Ca. 1026; Valentine vs. 
 Lunt, 115 N. Y. 502. 
 
 ■"^Hardy vs. Bank, 51 Md. 590; Ogle vs. Tayloe, 49 Md. 177; 
 .Leather Mfrs. Bank vs. Morgan, 96 U. S. 96, 108. 
 
 *Cases mpra. 
 
 ^Maryland Ins. Co. vs. Gusdorf, .43 Md. 506, 514; Union Ins. Co. 
 vs. Wilkinson, 13 Wall. 222. 
 
 «Dickerson vs. Colgrove, 100 U. S. 578, 580; De Bussche vs. Alt, 
 8 Ch. D. 286, 314. 
 
 'Onward vs. Smithson (1893), 1 Ch. 10. 
 
RESTRICTIVE MAXIMS. ' 341 
 
 of equitable estoppel, or estoppeltn pais, stands upon 
 the broad ground of public policy and good faith, is 
 interposed to prevent injustice and fraud, and is. 
 freely adopted and applied by courts of law.» It 
 applies to corporations,^ to married women," and, in a 
 measure, to infants.^ 
 
 To make the principle of estoppel available, there 
 must be fraud or its equivalent in culpable negli- 
 gence," and the negligence must have been the proxi- 
 mate cause of the loss,* and a neglect of some duty 
 owing to the party misled, or to the public' The 
 statements relied on must have been made with full 
 knowledge by the party of all facts affecting his 
 rights.' Misrepresentations must have been as to 
 alleged existing facts, for promises are binding only 
 as contracts.^ When the doctrine is invoked con- 
 cerning the title to land, the party misled must not 
 only appear to have been ignorant of the true state 
 
 'Alexander vs. Walter, 8 Gill. 241, Brantly's note; Shipley vs. 
 Fox, 69 Md. 572, 579; Homer vs. Grosholz, 38 Md. 520. 
 
 2 Harrison vs. Railroad, 60 Md. 490, 513. 
 
 ^Flanagin vs. Hambleton, 54 Md, 222; Harryman vs. Starr, 56 
 Md. 63; Long, 62 Md. 33, 72. 
 
 <Frazier vs. Gelston, 35 Md. 314; 2 Pom. Eq. Jur. sec. 815; 7 
 A. & E. Ency. 24. 
 
 = Leather Mfrs. Bank vs. Morgan, 117 U. S. 108; Henshaw vs. 
 Bissell, 18 Wall. 271. See Lehigh Co. vs. Bamford, 150 U. S. 665. 
 
 «Brown vs. Ins. Co.. 42 Md. 385, 391. 
 
 'Hardy vs. Bank, 51 Md. 591. 
 
 'Shipley vs. Fox, 69 Md. 572. 579. 
 
 'Jordan vs. Money, 5 H. L. C. 185; Madison vs. Alderson, 8 App. 
 Ca. 473. 
 
342 EQUITY JURISPKUDENCE. 
 
 of the title, but without the means of acquiring 
 knowledge.^ 
 
 § 253. Other instances. When a transaction is 
 sought to be avoided on the ground of fraud or mis- 
 take, {rescission) the plaintiff must do equity by 
 restoring the defendant, as nearly as possible, to the 
 original condition, {status quo) by returning the 
 consideration." But the operation of this restrictive 
 maxim in such a case may be itself restrained by 
 higher considerations of public policy. Thus, where 
 in a suit by a state to cancel a sale of school lands 
 as obtained by bribery of a state agent, the defend- 
 ant insisted that the state should " do equity " by 
 returning the consideration, the court, nevertheless, 
 decreed cancellation absolutely, without return of 
 the money paid, upon the ground that a party ought 
 not to be permitted to corrupt public officers with 
 entire safety to himself.' 
 
 If a trustee misappropriates trust money (breach 
 of trust) and has an equitable interest of his own at 
 the same time, the court will not allow him to receive 
 any part of the trust fund in which he is equitably 
 interested, until he has made good his default as 
 trustee. Otherwise, if the trustee's interest is a 
 legal one.* 
 
 'Schadt vs. Blaul, 66 Md. 141; Tongue vs. Nutwell, 17 Md. 230; 
 Brant vs. Va. Coal Co., 93 U. S. 336. 
 ^Foley vs. Crow, 37 Md. 61, 62; Brown vs. Norman, 65 Miss. 378. 
 ^Kansas vs. Cross, 38, Kan. 696. 
 4Dixon vs. Brown, 32 Ch. D. 600. 
 
RESTRICTIVE MAXIMS. 343 
 
 As a general rule, the owner of taxable property, 
 who seeks to enjoin the collection of a tax which he 
 claims to be in excess of what is lawful, must do 
 equity by paying or tendering so much of the tax as 
 is justly due.* 
 
 An absolute deed will only be declared a mortgage 
 upon payment of the debt secured.* 
 
 The power of late exercised by courts of equity to 
 make railroad receivers' certificates prior liens over 
 existing mortgages;* is claimed to be a legitimate 
 application of the maxim, which compels the plain- 
 tiff, the trustee under the defaulted railway mort- 
 gage seeking foreclosure, to do equity by paying 
 current debts out of current receipts.^ 
 
 § 254. When available to plaintiffs. The pro- 
 tection afforded by this maxim is also available to a 
 plaintiff when occupying a defensive position, as 
 when a defendant sets up a claim to some aflBrmative 
 relief. Thus, where to a bill to enforce a lien, and a 
 claim for rents and profits, there was a plea of limi- 
 tations as to the rents and profits, and an affirmative 
 claim in the answer to an allowance for improve- 
 ments, the court compelled the defendant to do equity 
 by deducting the allowance for improvements from 
 the whole amount of rents and profits, including those 
 barred by limitations.^ And where, to a bill for fore- 
 
 ' State Tax Cases, 92 U. S. 616; Bank vs. Kimball, 103 U. S. 7:52. 
 ^Kemper vs. Campbell, 44 Ohio St. 210. 
 ^Ante, sec. 112. 
 
 *Fosdick vs. Schall, 99 U. S. 235, 253. 
 
 'Ridgely vs. Bond, 18 Md. 435. And a similar application of 
 the principle has been made in a common-law action. Tongue 
 
344 EQUITY JURISPRUDENCE. 
 
 closure, the defendant filed a cross bill, setting up a 
 mistake in the mortgage, by which property was 
 included which was intended to be excepted, the 
 court held that by doing the simple equity of paying 
 the mortgage debt, the defetidant could extinguish 
 the mortgage altogether.' 
 
 § 255. Qualification. This maxim does not mean 
 that the plaintiff must "do equity" to the defendant 
 in all transactions which have ever taken place 
 between them, but only with respect to the transac- 
 tion on which the plaintiff is seeking equity, and 
 such as are equitably related thereto. It is for the 
 court to determine, upon the circumstances of each 
 case, whether there is the requsite equitable connec- 
 tion between the grounds of complaint and defence.^ 
 And even in such cases, the operation of the maxim 
 may be defeated by a paramount and special public 
 policy.' 
 
 § 256. He who comes into equity must come 
 with clean hands.* "He that hath committed 
 
 vs. Nutwell, 31 Md. 303; see aleo, Union Asso. vs. Morrison, 39 
 Md. 292, &c. 
 
 'Boon vs. Kent, 42 N. J. Eq. 135. See also Thomas vs. Browns- 
 ville K. Co., 109 U. S. fj22, ante, sec. 250. 
 
 ^Trotter vs. Hecksher, 40 N. J. Eq. 659; Otis vs. Gregory, 
 111 Ind. 504; U. S. vs. McRea, 3 L. R. Cn. 79; 1 Pom. Eq. Jur. 
 sec. 387. Note the discrepancy here between the last clause of sec. 
 387 and sec: 399. The latter is correct and overrules the former, 
 as will be seen further on. Post. sec. 259. , 
 
 ''Ante, sec. 253. 
 
 *1 Pom. Eq. Jur. sec. 397; Bisph. Pr. Eq. sec. 42; DlUy vs. 
 Barnard, 8 G. & J. 187; Manhattan vs. Wood, 108 U. S. 225. 
 
KESTRICTIVE MAXIMS. 345 
 
 iniquity shall not have equity.'" It is upon this 
 principle that a fraudulent grantor is not permitted to 
 gainsay his own deed,^ nor a fraudulent grantee to 
 obtain reimbursement for money paid as part of the 
 fraudulent transaction/ nor a party to be relieved 
 from a judgment on the ground that the obligation 
 on which it was rendered was in fraud of the law.* 
 Specific performance will not be decreed when it is 
 apparent that the* object of the contract was to 
 defraud creditors.^ No relief will be granted in 
 equity to purchasers of claims against an insolvent 
 corporation, for the purpose of speculating upon the 
 liability of stockholders.* A party cannot have 
 relief directly inconsistent with his sworn testimony 
 as a witness in a previous stage of the same case J or 
 even in a previous case.' A party who has been 
 obliged to make good a loss incurred through his 
 own negligence, cannot, by subrogation, recover 
 from another whose negligence contributed.* A 
 
 iMilwaukee R. Co. vs. Soutter, 13 Wall. 523-4. 
 
 ^Freeman vs. Sedwick, 6 Gill 29; Eoman vs. Mali, 42 Md. 514; 
 Sohuman vs. Peddicord, 50 Md. 562; Brown vs. Reilly, 72 Md. 
 489; Dent vs. Ferguson, 132 TJ. S. 68; Nichols vs. McCarthy, 53 
 Conn. 299; McCall vs. Pixley, 48 Oh. St. 379, 388; Kitts vs. Wilson, 
 130 Ind. 492, 499; Kespass vs. Joijes, 102 N. C. 5. 
 
 ^Hamilton vs. Halstead, 334 N. Y. 520, 526. 
 
 *Creath vs. Sims, 5 How. 192. 
 
 ^Taylor vs. Von Schraden, 107 Mo. 206. 
 
 «HospeB vs. Car Co. 48 Minn. 174, 199. 
 
 'Hall vs. McCann, 51 Md. 345, 351. . ' 
 
 'Roman vs. Mali, 42 Md. 613, 533. Otherwise, when not a 
 statement of fact, but an expression of opinion as to the con- 
 struction of a contract. Sturm vs. Boker, 150 TJ. S. 312. 
 
 'German Bank vs. U. S., 148 U. S. 573. 
 
346 EQUITY JUEISPRUDElirCE. 
 
 party depositing money with a banker to give a fic- 
 titious credit to a corporation, was not allowed to 
 withdraw it, after the purpose of the fraud had been 
 effected.* Upon the same principle the remedy of 
 divorce can be obtained only by an innocent party, 
 and recrimination, if sustained, is a valid defence.^ 
 So, also, when it appears that a non-resident plain- 
 tiff has moved into the state for divorce purposes 
 only.' 
 
 Courts of equity are especially alert to enforce this 
 principle in all applications for the extraordinary 
 remedies of injunction, specific performance, reform- 
 ation, cancellation or rescission, and the like. The 
 conduct of the plaintiff throughout the matters 
 leading up to the litigation will be carefully scrutin- 
 ized. The typical case of injunction will serve for 
 illustration. 
 
 § 257. Injunction. It has already been seen that 
 the utmost candor of statement is required from the 
 plaintiff in his bill, especially when the application 
 is for a preliminary injunction. There must be full 
 disclosure of all material facts and documents.^ 
 
 In a case where the testimony showed that the special 
 circumstances set forth in the bill as the ground of 
 jurisdiction were not the genuine reasons for prose- 
 cuting the suit, but that the plaintiff had an ulterior 
 
 iGreat BefliirS. Co. 26 Ch. D. 616. 
 
 ^Hawkins, 65 Md. 104; Stew. M. and D., sec. 314. 
 
 'Albee, 43 111. App. 370. 
 
 *Ante, sec. 104. 
 
KESTRICTIVE MAXIMS. 347 
 
 purpose, not avowed, the bill was for that reason 
 dismissed.^ A party who has influenced the action 
 upon which liability was incurred cannot restrain 
 such action by injunction.- Infringement of a false 
 trade-mark or label will not be restrained by injunc- 
 tion,^ nor of one used under circumstances of fraud 
 upon third parties,^ or upon the public.^ 
 
 If a plaintiff seeks to enjoin a railroad company 
 from building on his' land, upon the ground that he 
 has not been paid, and it turns out that he bought 
 the land in the interest of a rival company, and as 
 its representative, for no other purpose than that of 
 obstruction and litigation, this principle will be ap- 
 plied to defeat the "discreditable scheme.'"* But 
 the fact that the plaintiff became a stockholder in a 
 railway company in the interest of a rival company 
 and for its purposes, does not disentitle him to the 
 assistance of the court in enforcing by mandatory 
 injunction his statutory right as stockholder to in- 
 spection of the register of stock and bond holders.' 
 
 Upon the same principle, where the minority mem- 
 bers of a lodge filed an injunction bill to reclaim 
 
 'Henderson, 18 Md. L. J. 612. 
 
 'Joyce vs. Electric, 43 111. App. 157. 
 
 'Kenny vs. Gillet, 70 Md. 574; Siegert vs. Abbott, 61 Md. 276; 
 Bolander vs. Peterson, 136 111. 215, 220. 
 
 *Parlett vs. Gnggenheimer, 67 Md. .549. 
 
 * Robertson vs. Berry, 50 Md. 602; Manhattan Co. vs. Wood, 
 108 U. S. 218. 
 
 ^Piedmont B. Co. vs. Speelman, 67 Md. 275, 276. 
 
 'Mutter vs. Railway, 38 Ch. D. 92; Central B. K. vs. Collins 
 40 Ga. 682; Rice vs. Rockefeller, 134 N. Y. 174, 185. 
 
348 EQUITT JUKISPEUDENCE. 
 
 their proportionate shares of the lodge fund, upon 
 the ground that the separation of the lodge from the 
 general order had deprived them of the benefits to 
 which, as members of the order, they were entitled, 
 it was held that the severance which formed the 
 basis of the equity invoked must appear to have 
 occurred otherwise than by their own fault; and 
 inasmuch as these members were responsible for a 
 series of inequitable proceedings which led to the 
 separation, including a fraud upon the court itself 
 in procuring a receivership of the lodge fund upon 
 false charges, the court could not recognize any 
 rights deduced from such proceedings, and dismissed 
 the bill.' 
 
 An injunction bill prayed the removal of buildings 
 extending by mistake a few feet over the plaintiff's 
 line. The strip of land was "comparatively value- 
 less, except for purposes of litigation." The mani- 
 fest object of the proceeding being to extort an 
 exorbitant price for the land, the application was 
 refused as oppressive.^ A mandatory injunction 
 to remove an obstruction from a drain was re- 
 fused, the plaintiff having caused an increase in 
 the volume of drain water.^ An injunction to 
 restrain a nuisance will not be granted to a 
 party committing the same nuisance.^ A bill to re- 
 
 1 Goodman vs. Jedidjah Lodge, 67 Md. 119. ' 
 
 ^Hunter vs. Carroll, 64 N. H. 572. 
 'Davison vs. Hutchinson, 44 N. J. Eq. 474. 
 
 *Medford vs. Levy, 31 W. Va. 649. For an amasing case of a 
 conflict of musical nuisances, see Christie vs. Davey (1893); 1 Ch. 316. 
 
KKSTRICTITE MAXIMS. 349 
 
 move a cloud from title was dismissed, the title being 
 based upon an inequitable acquisition of a ward's 
 property by a guardian.' 
 
 § 258, Cuminon law analogies. "Ex turpi causa, 
 non oritur actio." <^In pari delicto, potior est condi- 
 tio defendentis.^' "All laws, as well as all contracts, 
 may be controlled in their operation and eflPect by 
 these general fundamental maxims of the common 
 law, Tiz. : No one sliall be permitted to profit by 
 his own fraud, to take advantage of his own 
 wrong, to found any claim upon his own iniquity, 
 or to acquire property by his own crime."^ If 
 a legatee wilfully murders the testator, although 
 no statute has enacted a forfeiture, these principles 
 will prevent his reaping the fruit of his crime.' If 
 the assignee of a life insurance policy has murdered 
 the assured, his crime defeats his recovery.* If a 
 loss happens through the fault of the assured, the 
 insurer is not liable, whatever may be the terms of 
 the policy.' The same principle is of equally fami- 
 
 1 Dickinson vs. Durfee, 139 Mass. 232. 
 
 ^Eiggs vs. Palmer, 115 N. Y. 506. 
 
 'iWa. A healthy majority decision of the N. Y. Court of Appeals, 
 very properly disapproving Owens vs. Owens, 100 N. C. 240, where 
 a widow, convicted as accessory to her husband's murder, made 
 application from the State's prison for her dower, and the court, 
 finding no authority, determined on the reason of the case, that 
 there could be no forfeiture for crime unless provided by statute, 
 and gave judgment for the felon against the children. 
 
 *N. Y. Mutual Life Ins. Co. vs. Armstrong, 117 U. S. 591. 
 
 'Providence Ins. Co. vs. Adler, 65 Md. 167, citing Pothier to the 
 effect that no agreement can validly charge one man with another's 
 fault. 
 
350 EQUITY JUEISPKUDEKCE. 
 
 liar application in cases ex contractu. In a suit for 
 breach of contract, resting in mutual and dependent 
 covenants, the plaintiff, to succeed, must have kept 
 his covenants. No contract or claim can be enforced 
 founded on a violation of law, or contra bonos mores.^ 
 No person can recover for a breach of contract occa- 
 sioned by his own fraud.^ Nor can an action be 
 maintained upon a judgment obtained by fraud,' 
 even although the fraud is such that it cannot be 
 proved without retrying questions already adjudi- 
 cated.'' An action by a depositor to recover from a 
 bank money paid out on raised checks, will be de- 
 feated by proof that the fraud was facilitated by the 
 plaintiff's negligence.^ 
 
 § 259. Qualifications. 1. The unconscientious 
 dealings charged upon the plaintiff must be confined 
 to his conduct in the matter before the court, and 
 not extended to matters aliunde.^ The iniquity 
 which deprives the suitor of his right is not general 
 depravity, but wrongful conduct in the particular 
 transaction.' 
 
 '2 Bish. M. & D. sec. 75. 
 
 2 David vs. Sabin (1893), 1 Ch. 540. 
 
 'AboulofE v^. Oppenheimer, 10 Q. B. Div. 303. 
 
 *Vadala vs. Lawes, 25 Q. B. Div. 310. 
 
 = Leather Mfrs. Bank vs. Morgan, 117 TJ. S. 96; Hardy vs. Bank, 
 61 Md. 563. But the maker or endorser of a promissory note is 
 not liable to an innocent holder for value, if the note has been 
 raised, even although the fraud was facilitated by blanks. Burrows 
 vs. Klunk, 70 Md. 451. 
 
 ''Equitable vs. Coal Co., 65 Md. 84. 
 
 '1 Pom. Eq. Jur. sec. 399; Woodward, 41 N. J. Eq. 224, 225. 
 
KESTRICTIVE MAXIMS. 351 
 
 2. When the transaction has been in effect a fraud 
 upon public policy, which would be defeated by allow- 
 ing it to stand, relief may be given against it, not- 
 withstanding the plaintiff's participation.^ Thus relief 
 has been given against a gambling^ or usurious con- 
 tract.* And on the other hand, an illegal contract 
 will be enforced when public policy requires it.^ 
 
 3. Relief may also be granted when the plaintiff, 
 although particeps, has acted under undue influence, 
 such as may arise from circumstances of inequality 
 between the parties.^ But this inequality must be so 
 pronounced that the parties cannot be said to be in 
 pari delicto. The mere fact of the relation between 
 them of attorney and client will not except the case 
 from the general rule.° 
 
 4. In some cases, after the transaction has been 
 fully completed and the money contributed has passed 
 into other forms, a partner or agent in whose hands 
 the profits are found cannot refuse to account for 
 them to his copartner or principal upon the ground 
 of the illegal character of the original contract.' 
 
 •Freeman vs. Sedwick, 6 Gill. 40; Cone vs. Bussell, 48 N. J. 
 Eq. 217. 
 
 ^Gough vs. Pratt, 9 Md. 526; Emerson vs. Townsend, 73 Md. 224. 
 
 ^Thomas vs. Watson' Tan C. C. 297. 
 
 *Lester vs. Bank, 33 Md. 558, 1 Pom. Eq. Jur. sec. 403. 
 
 5Sm. Pr. Eq. 678; Long vs. Long, 9 Md. 348; Wilson vs. Watts, 
 9 Md. 356; Harrington vs. Grant, 54 Vt. 236. 
 
 "Roman vs. Mali, 42 Md. 513; Snyder, 51 Md. 80. 
 
 'State vs. B. & O. R. Co., 34 Md. 366; Haacker vs. Knights, 
 76 Md. 429; Brooks vs. Martin, 2 Wall. 70; Union Pac. R. R. Co. 
 vs. Durant, 95 U. 8. 576. This proposition is advanced with 
 caution, and cannot claim to be well settled. The authority of 
 the caKe of Sharp vs. Taylor, 2 Phil Ch. 801 (cited Bisp. Pr. Eq. sec. 
 
352 EQUITY JUKISPKUDEKCE. 
 
 » 
 
 5. The marriage status being on a different foot- 
 ing from contracts generally, a party may be re- 
 1*^ lieved from a void marriage, although fully aware of 
 its invalidity when contracted.^ 
 
 V,^) § 260. VI. Equity aids the vigilant. Vigilantibus> 
 non dormientibus sequitas subvenit.^ 
 
 Referring to what has already been said respecting 
 the close affinity between the last three restrictive 
 maxims, their combined effect is well illustrated in 
 the comprehensive doctrine of laches, commonly, 
 and often with propriety referred exclusively to the 
 maxim — equity aids the vigilant.' Closely connected 
 with laches is the doctrine of equitable limitations. 
 
 42,5, upon which the doctrine is founded, has been questioned in 
 England. Sykes vs. Beadon, 11 Ch. D. 170, 1 Lind. Ptnp. 102, note. 
 See also 1 Bates Ptnp. sec. 125; Gibl)s vs. Gas Co., 130 U. S. 396; 
 , Dent vs. Ferguson, 132 U. S. 60, 68; Brooks vs. Cooper, 50 N. J. 
 Eq. 761; Leonard vs. Poole, 114 N. Y. 371; Goodrich vs. Houghton, 
 134 N. Y. 115; Chambers vs. Church, 14 It. I. 398, Emery vs. Candle 
 Co., 47 Oh. St. 320; Texas R. R. Co. vs. S. B. Co. (La.), 6 So. Rep. 
 888, and numerous cases, pro and con, cited in Prunty vs. Basshor, 
 where it was held that the doctrine of Brooks vs. Martin, 2 Wall. 
 70, would not be extended to a case of accounting for the profits 
 of joint transactions which were not only illegal, but immoral, 
 against public policy and criminal. The court accordingly refused 
 to entertain an accounting ' of sales to municipal corporations, 
 effected by means of bribery, in the name of commissions allowed 
 to influential oiHcials, applying the maxim now under considera- 
 tion. 2 D. R. 465, Brantly, on Cont. 156. 
 
 ^Bonaparte (1892), P. 402; Andrews v. Ross, 14 P. D. 15. 
 
 ^1 Pom. Eq. Jur. sec. 418; Bisph. Pr. Eq. sec. 39; 1 Beach Mod. 
 Eq. Jur. sec. 17. 
 
 3 Chew vs. Farmers' Bank, 2 Md. Ch. 231, Brantly 's ed. 212, note. 
 Reference must be made to this valuable note for the details 
 omitted in the following outline sketch. 
 
RESTKICTIVE UAXTHS. 353 
 
 § 261. I/imitations. Although the statute of limi- 
 tations does not in terms apply to cases in equity,^ 
 yet, upon the principle that equity follows the law, 
 courts of equity apply the statute to all cases of con- 
 current jurisdiction,^ such as, to bills for an account,' 
 a surety's claim to subrogation,* bills to recover 
 possession of land, when such bills are, for any 
 reason, maintainable,' and bills for the recovery 
 of money.® In suqh cases equity is said to act 
 in obedience to the statute,' except under special 
 circumstances.* In cases within the exclusive juris- 
 diction the statute is not necessarily applied at all,' 
 but when applied, it is said to be by way of analogy." 
 Among instances of this class are creditors' bills," 
 bills to foreclose or redeem mortgages,^^ and bills to 
 
 >Md. Code, Art. 57, sees. 1, 3, 6, &c.; Alex. Br. St. 446, 457. 
 
 ^Metropolitan Bank vs. St. Louis Despatch Co. 149 U. S. 436. 
 
 'Weaver vs. Leiman, 52 Md. 708; McKaig vs. Hebb, 42 Md. 
 227, 235; Phillippi vs. Phillipe, 115 U. S. 151. See Holloway vs. 
 Turner, 61 Md. 217. 
 
 *Junker vs. Kusk, 136 111. 179. 
 
 =Hall vs. Law, 102 U. S. 461, 466; Norris vs. Haggin, 136 U. S. 
 386; Preston, 95 U. S. 200; Boot vs. Wool worth, 150 U. S. 401; Long, 
 62 Md. 69. 
 
 «Tiernan vs. Kescaniere, 10 G. & J. 218; Teackle vs. Gibson, 
 8 Md. 86; Young vs. Mackall, 3 Md. Ch. 384, 398. 
 
 'Hall vs. Law, 102 U. S. 461, 466. 
 
 sSmith vs. Wood, 42 N. J. Eq. 563, 569; Agens, 50 N. J. Eq. 566. 
 
 'Riddle vs. Whitehill, 135 U. S. 621. 
 
 '"Drummond vs. Green, 35 Md. 148, 151; Crook vs. Glenn, 30 Md. 
 55; Hagerty vs. Mann, 56 Md. 522. See B. & 0. E. K. vs. Canton 
 Co., 70 Md. 417. 
 ' »Bannon vs. Lloyd, 64 Md. 48; Richmond vs. Irons, 121 U. S. 27, 51 . 
 i^Dickey vs. Land Co., 63 Md. 170, 175; B. & O. R. E. Co. vs. 
 Trimble, 51 Md. 99, 109. 
 23 
 
354 EQUITY JURISPBUDENCE. 
 
 enforce equitable titles, liens and trusts.' In the 
 case of an express continuing trust, as the possession 
 of the trustee is not adverse, but according to his 
 title, neither limitations nor lapse of time will bar 
 relief as between trustee and cestui que trust,^ until 
 the trust relation has been repudiated.^ In the case 
 of implied trusts, the statute is generally applied 
 directly,^ and in such cases the defence of laches is 
 also available.' An application for injunction in 
 support of a legal right will not be defeated by delay 
 short of that required at law.* 
 
 The defence of the statute of limitations cannot 
 be converted into an offensive weapon.^ It is a per- 
 sonal privilege, and cannot, for instance, be availed 
 of by a subsequent mortgagee to defeat foreclosure 
 of a prior mortgage to which limitations might have 
 been, but was not, pleaded.* The plea of the statute 
 by one defendant does not enure to the benefit of 
 
 1 Noble vs. Turner, 69 Md. 519, 527; Dugaii vs. Gittings, 3 Gill. 
 138; Speidel vs. Henricl, 120 TJ. S. 377, 386; Elmendorf vs. Taylor, 
 10 Wheat. 152. 
 
 =GouId vs. Baltimore, 58 Md. 52; Gordon vs. Small, 53 Md. 551; 
 Hanson vs. Worthington, 12 Md. 441; Gray vs. Kerr, 46 Oh. St. 
 659; Lyell vs. Kennedy, 14 App. Ca. 437; Soar vs. Ashwell (1893), 2 
 Q.B.(C. A.), 390.^4" >n^, 
 
 sGisborn vs. Ins. Co., 142 TJ. S. 326, 338, Lemoine vs. Dunklin, 10 
 U. S. App. 227; Smith vs. Combs, 49 N. J. Eq. 420; Roby vs. Cole- 
 hour, 135 111. 343; Owens vs. Crow, 62 Md. 491, 496; Needles vs. 
 Martin, 33 Md. 609, 616. 
 
 ^Weaver vs. Leiman, 52 Md. 708. 
 
 ^Felix vs. Patrick, 145 U. S. 329. 
 
 «Menendez vs. Holt, 128 TJ. S. 514, 523; Fullwood, 9 Ch. D. 176. 
 
 'Nolan vs. Snodgrass, 70 Miss. 794. 
 
 'Sanger vs. Nightingale, 122 U. S. 176. 
 
BBSTRICTIVE MAXIMS. 5i55 
 
 others.* In equity, the statute need not, in all cases, 
 as at law, be specially pleaded, or even set up in the 
 answer, but when, from the face of the bill, it can 
 be plainly seen that the bar applies, and no facts are 
 stated sufficient to relieve it from the operation of 
 the statute, the defence of limitations as well as that 
 of laches may be availed of on demurrer.'^ 
 
 § 262. I^aches.^ independently of the statute of 
 limitations, courts of equity refuse relief in cases of 
 unreasonable and unexplained delay in the prosecu- 
 tion of a suit. There may be laches in the failure 
 to prosecute with diligence a suit actually com- 
 menced, as well as by delay in commencing a suit.* 
 Laches may be called the typical equitable doctrine, 
 for several reasons. In the first place, there is 
 nothing arbitrary or technical in its rules, which 
 rest upon the plainest principles of substantial 
 
 'Simms vs. Lloyd, 58 Md. 477; Bannon vs. Lloyd, 64 Md. 48. 
 
 =Blaysvs. Roberts, 68 Md. 510; Belt vs. Bowie, 65 Md. 350; Speidel 
 vs. Henrici, 120 IT. S. 377; Mercantile Bank vs. Carpenter, 101 TJ. 
 S. 567; Ante, sec. 59. In code procedure, the defence can only be 
 made by answer. Zebley vs. Farmer's Co. 139 N. Y. 468. 
 
 '"An old French word (lachesse) for slackness, or negligence, or 
 not doing " (Co. Litt. 380 b.), properly used in the singular number, 
 but sometimes, as when several omissions are included, used in the 
 plural. ' After all these laches." Bacon vs. Ins. Co., 131 U. S. 
 238,264. P^'^/^^ 
 
 ^Johnston vs. Standard, 148 U. S. 360; Dey vs. Hathaway, 41 N. 
 J. Eq. 419. The bill will be dismissed on general principles, with- 
 out a "rule further proceedings," and even although the defendant 
 may have delayed availing of the plaintiff's laches. Sebring, 43 
 N. J. Eq. 59. C(mtm, Fisher vs. McNulty, 30 W. Va. 187. 
 
356 EQUITY JUKISPRUDBKCE. 
 
 justice and public policy.' Again, these rules are 
 are all subject to the sourid discretion of the court, 
 to be freely exercised in view of the special circuna- 
 stances of each case, or, in other words, every case, 
 as to laches, is governed chiefly by its own circum- 
 stances.^ And, lastly, it runs through the whole 
 system to such an extent that to cite its applications 
 would be to enumerate nearly all the enabling doc- 
 trines of equity. 
 
 In equity, a presumption exists against every stale 
 claim, because, as a general rule, persons who have 
 a right, and know that they have it, are prompt to 
 assert it. But they do not always do so, and there- 
 fore the circumstances of each particular case which 
 may explain the delay, usually control the applica- 
 tion of the rule as to laches.* Courts of equity are 
 not established to relieve parties from the conse- 
 quences of their own negligence or foUy,^ or to assist 
 those members of the profession who delve for prac- 
 tice in the remains of buried litigation,.^ "A court 
 of equity, which is never active in giving relief 
 against conscience or public convenience, has always 
 
 ^Underwood vs. Dugan, 139 U. S. 380; Hauner vs. Moulton, 138 
 U. S. 486; Naddo vs. Bardon, 4 U. S. App. 681; Steiger vs. Hillen, 
 5G. &J.i32. 
 
 ^Noble vs. Turner, 69 Md. 519, 527; Canton vs. McGraw, 67 Md. 
 583, 591; Pairo vs. Vickery, 37 Md. 467, 488; Hammond vs. Hop- 
 kins, 143 U. S. 224; Kilbourn vs. Sunderland, 130 U. S. 505, 518; 
 Morse vs. Hill, 136 Mass. 60, 65. 
 
 'Noble vs. Turner, 69 Md. 527. 
 
 *Dunphy vs. Ryan, 116 U. S. 491, 498. 
 
 ^DeGraw vs. Mechan, 48 N. J. Eq. 230. 
 
BESTRICTIVE MAXIMS. 357 
 
 refused its aid to stale demands where a party has 
 slept upon his rights and acquiesced for a great 
 length of time. Nothing can call forth this court 
 into activity but conscience, good faith and reason- 
 able diligence. When these are wanting, the court 
 is passive, and does nothing. Laches and neglect 
 are always discountenanced. Expedit reipublicae 
 ut sit finis litium."^ 
 
 Sometimes, the analogy of the statute of limita- 
 tions is applied; sometimes a longer period than that 
 prescribed by the statute is required; in some cases 
 a shorter time is sufficient, and sometimes the rule is 
 applied where there is no statutable bar.^ 
 
 We find the principle constantly reiterated that 
 each case must necessarily be governed by its own 
 circumstances, such as the situation of the parties, 
 the extent of their means of information, great 
 changes in values, the want of probable grounds for 
 the imputation of intentional fraud, the loss of evi- 
 dence, and the presence or absence of impediments 
 to the assertion of the claim.' Bearing in mind that 
 decided cases can be taken here only as suggestive 
 illustrations, attention will now be called to some of 
 the varieties of special circumstances which have 
 been held material to the application of the doctrine 
 
 ■'This familiar extract from the celebrated judgment of Lord 
 Camden, in Smith vs. Clay, 3 Bro. Ch. 639, has become a legal 
 classic. Part of the language has been already quoted in other 
 connections. 
 
 ^Sullivan vs. Railroad, 94 U. S. 806, 811. 
 
 3 Hammond vs. Hopkins, 143 U. S. 224, 250. 
 
358 EQCITY JUEISPKUDENCE. 
 
 of laches, and also to some of those which have eX' 
 empted particular cases from its operation,* 
 
 § 263. Affirmative circumstances. The following 
 circumstances attehding delay have been held to 
 characterize a case of laches: The intervention of an 
 important death; especially, when the circumstance 
 is colored by indications of "lying by."^ The inter- 
 vention of death is of less consequence when the 
 death is one that disables the plaintiffs' testimony,' 
 or when the invalidity of the transaction depends 
 upon its intrinsic nature rather than upon proof 
 aliunde,* or when the material discovery was not 
 made until after the individual's death. ^ 
 
 The erection of valuable improvements;^ except in 
 the case of a void assessment f o^ an illegal municipal 
 improvement,' or where improvements are offset by 
 rents.' Delay until other interests have become in- 
 volved,' or until after the property has increased in 
 
 U2 A. & E. Ency. 533. 
 
 "Hammond vs. Hopkins, 143 U. S. 224; Hoyt vs. Latham, 143 U. 
 S. 553; 0. S. vs. Beebe, 127 U. S. 388, 348; Keedy vs. McNally, 63 
 Md. 311, 318; Eoman vs. Mali, 42 Md. 513, 533; Davis vs. Simpson, 
 5 H. & J. 149; Curlett vs. Newman, 30 W. Va. 185; Terry vs. Fon- 
 taine, 83 Va. 454. 
 
 'Pairo vs. Vickery, 37 Md. 467, 488. 
 
 *liid.; Wtiitridge, 76 Md. 54, 86. 
 
 'Gandy vs. Macaulay, 31 Ch. D. 16. 
 
 .^B. & O. E. Co. vs. Strauss, 37 Md. 227, 244; Bacon vs. Ins. Co., 
 131 U. S. 258; 264; U. S. vs. Beebe, 127 V. S. 338; Penn. E. Co. 
 Appeal, 125 Pa. 189, 202. 
 
 'Baltimore vs. Grand Lodge, 44 Md. 446. 
 
 'Allore vs. Jewell, 9t U. S. 512. 
 
 'Spencer vs. Turnpike, 70 Md. 136; Noble vs. Turner, 69 Md. 526; 
 Foley vs. Crow, 37 Md. 62; Frazier vs. Gelston, 35 Md. 314; Sulli- 
 
KESTEICTIVE MAXIMS. 359 
 
 value,^ or until transactions have become obscure 
 and evidence lost.- Where the suit, after long 
 delay, is finally brought with some indirect motive;' 
 where the property is of a speculative character, 
 and the party is playing fast and loose;* where the 
 property requires constant expenditure for repairs, 
 etc. f or where there is simply long delay, unex- 
 plained,' especially if connected with such action or 
 non-action that th« other party is induced to infer 
 acquiesence.' 
 
 van vs. Railroad, 94 U. S. 812; Gemmell vs. Richardson, 4 Del. 
 Ch. 614. 
 
 ^Bacon vs. Ins. Co. 131 TJ. S. 264; Davison vs. Davis, 125 TJ. S. 75; 
 Richards vs. Mackall, 124 TJ. S. 183; Harkness vs. Underhill, 
 1 Black, 325; Wallace vs. Smith, 155 Pa. St. 91. 
 
 ''Chase vs. Winans, 59 Md. 473; Hewitt, 55 Md. 509; Hall vs. 
 Claggett, 48 Md. 243; McDonnell vs. Milholland, 48 Md. 540; 
 Hawkins vs. Chapman, 36 Md. 101; Stiles vs. Brown, 1 Gill, 350; 
 Turner, vs. Dillard, 82 Va. 536. 
 
 'Castleden, 9 H. L. C. 186, 191. 
 
 ^Johnston vs. Standard, 148 U. S. 360; Hammond vs. Hopkins, 
 143 U. S. 224; Lacombe vs. Forstall, 123 U. S. 571; Holgate vs. 
 Eaton, 116 U. S. 40; Grymes vs. Sanders, 93 V. S. 62; Twin Lick Oil 
 Co. vs. Marbury, 91 U. S. 587; Clarke vs. Hart, 6 H. L. C. 656; Sals- 
 bury vs. Black, 119 Pa. 207; Knox vs. Spratt, 23 Fla. 64. 
 
 'Amey vs. Cockey, 73 Md. 306. 
 
 'Richardson vs. Billingslea, 69 Md. 407; Noble vs. Turner, 69 Md. 
 527; Yearly vs. Cockey, 68 Md. 174; Morganstern vs. Shuster, 66 
 Md. 250; McCoy vs. Poor, 56 Md. 207, 8; Hunt vs. Stewart, 53 Md. 
 229; Nelson vs. Bank, 27 Md. 75; Parker vs. Dacres, 130 U. S. 49; 
 Taylor vs. Holmes, 127 U. S. 493; Landsdale vs. Smith, 106 U. S. 
 394; Martin vs. Gray, 142 U. S. 236. 
 
 '2 Pom. Eq. Jur. sec. 965; Washington vs. Opie, 145 U. S. 214; 
 U. 8. vs. Mining Co. 129 TJ. S. 579, 587; Marsh vs. Whitmore, 21 
 Wall. 184; Munnikhuysen vs. Magraw, 58 Md. 557; McGivney, 
 142 Mass. 160. 
 
360 EQUITY JURISPEUDBNCB. 
 
 § 264. Negative circumstances. Among the 
 special circumstances which have been allowed to 
 negative the defence of laches, the following are of 
 the most frequent recurrence in practice: Delay is 
 in general excused by infancy,^ and the infancy of 
 one co-tenant has been held to protect adult co- 
 tenants.^ Laches will not be imputed to a married 
 woman, not sui juris;^ otherwise, quoad her separate 
 estate.'* 
 
 A cestui que trust, whether infant or feme covert, 
 may, however, be defeated by laches, when repre- 
 sented by a competent trustee.^ And action must be 
 taken within a reasonable time after the disabilities 
 of infancy or coverture are removed, having respect 
 to the special circumstances ot each case." 
 
 Similar disabilities are mental incompetency,' 
 extreme old age,' and continuing duress, or undue 
 
 IB. & O. E. Co. vs. Trimble, 51 Md. 113; Owens vs. Crow, 62 Md. 
 491; Robertson vs. Mowell, 66 Md. 539; Dragoo, 50 Mich. 573; Holt 
 vs. Wilson, 75 Ala., 67; Knight vs. Watts, 26 W. Va. 176. 
 
 ^Boozer vs. Teague, 27 S. C. 348, 366. 
 
 'Wilson vs. McCarty, 55 Md. 277, 283; Dungan vs. Ins. Co. 46 Md. 
 469, 499; Carson vs. Phelps, 40 Md. 73, 81; Knight vs. Brawner, 
 14 Md. 7; Hanson vs. Worthington, 12 Md. 418, 441. 
 
 ^Stewart, H. & W., Ch. 23, 1 Perry on Trusts, Sec. 32, 467; 2 ilM. 
 849; Wade vs. Pulsifer, 54 Vt. 45, 65; Kieley vs. McGIynn, (Brod- 
 erick's will,) 21 Wall. 503. 
 
 5 Crook vs. Glenn, 30 Md. 55; Weaver vs. Leiman, 52 Md. 708, 
 709; Meeks vs. Olpherts, 100 U. S. 564, 569. 
 
 «Amey vs. Cockey, 73 Md. 297, 306; Sims vs. Everhart, 102 U. S. 
 310; Felix vs. Patrick, 145 U. S. 330; Ela, 158 Mass. 59. 
 
 'Dungan vs. Ins. Co., 46 Md. 469, 499. 
 
 «Carson vs. Phelps, 40 Md. 73, 81. 
 
KESTRICTIVB MAXIMS. 361 
 
 influence.* Non-residence or absence has sometimes 
 been recognized as an excuse f so also, contributory 
 neglect or fault of an adverse party/ possessing all 
 the material for stating the account,^ or lulling the 
 plaintiff into security.' Neither laches nor limita- 
 tions will run during the time when there was no 
 one in esse competent to sue/ as when a creditor is him- 
 self the executor.' The pendency of collateral litiga- 
 tion is sometimes a negative circumstance;' but not 
 _g: heEe a tenant disputes his lanjlnrd's tit le." The 
 following have also been held negative circum- 
 
 'Highberger vs. Stiffler, 21 Md. 338, 355;' Brown vs. Burdett, 40 
 Ch. D. 244; Fry vs. Lane, 40 Ch. D., 312, 324. 
 
 ''Hagerty vs. Mann, 56 Md. 527; B. & 0. K. Co. vs. Trimble, 51 
 Md. 113; Moore vs. Crawford, 130 U. S. 122, 139; Hallet vs. Collins, 
 10 How. 174; Benningfield vs. Barter, 12 App. Ca. 167, 181. Contra, 
 Naddo vs. Bardon, 4 U. S. App. 683; Kieley vs. McGlynn, 21 Wall. 
 503. 
 
 'Gunston vs. Carroll, 101 U. S. 426. 
 
 *Glenn vs. Hebb, 17 Md. 260, 281; Loring vs. Palmer, 118 U. S. 
 321, 345. 
 
 'Banks vs. Haskie, 45 Md. 207, 226; Worthington vs. Lee, 61 Md. 
 530, 540; McConkey vs. Cockey, 69 Md. 286, 292; Zimmerman vs. Fra. 
 ley, 70 Md. 561, 572. 
 
 ^Juillard vs. Orem, 70 Md. 465, 471; Demsey vs. McNally, 73 Md. 
 433; Haslett vs. Glenn. 7 H. & J. 24. ^ 6""WL 
 
 Ubid.; Spencer, 4 Md. Cb. 464-5; State vs. Eeigart, 1 Gill. 1. 
 But see Hardisty, 77 Md. 189, 195. 
 
 "Davis vs. Simpson, 5 H. & J. 147, 149; Little vs. Price, 1 Md. Ch. 
 182, 187; Dungan vs. Ins. Co. 46 Md. 499; Pacific E. Co. vs. Missouri 
 R. Co., Ill U. S. 505, 520; Blake vs. Bank, 145 Mass. 13; Litch vs. 
 Clinch, 136 111. 428, 9; Comins vs. Culver, 35 N. J. Eq. 94; Karberg 
 (1892), 3 Ch. 13, 14, 17. 
 
 'Myers vs. Silljacks, 58 Md. 319, 335. And see "Weaver vs. 
 Leiman, 52 Md. 716; Smith vs. Railway, 1 Kay 408; 23 L. J. Ch. 
 562; Moore vs. Green, 19 How. 69, 71. 
 
362 EQUITY JUBISPBUDBKCB. 
 
 stances : Uniform possession consistent with the 
 relief sought ;^ a wife declining to sue her husband,^ 
 or, a sister, her brother, living together f remainder- 
 man, before death of life-tenant ;* insolvency,^ or 
 poverty, in connection with other circumstances f 
 natural hesitation on the part of a female plaintiff 
 in a case of peculiar delicacy ;' where stockholders, 
 impeaching a corporate contract, Jiave first to effect 
 a change of directors;' where the plaintiffs represent 
 a numerous class;' where nothing has occurred to 
 alter -the situation." 
 
 'Buchanan vs. Bordley, 4 H. & McH. 42, 43; Ruckman vs. Cory, 
 129 TJ. S. 387; Simmons vs. Doran, 142 U. S. 417, 448. But when 
 relied on as part performance of an agreement, the possession must 
 be in pursuance of it. Ridgway, 69 Md. 242, 247. 
 ' ^Bowie vs. Stonestreet, 6 Md. 418, 432; Oswald vs. Hoover, 43 Md. 
 360, 369. 
 
 'Ogle vs. Tayloe, 49 Md. 158, 176; Robertson vs. Mowell, 66 Md. 
 530, 539. But reluctance of one brother to sue another is no excuse 
 for laches, Philippi vs. Philippe, 115 U. S. 151, 158, nor the delay of 
 a son to sue his father, when the relations between them were 
 unfriendly. Ridgway, 69 Md. 247. 
 
 *Long, 62 Md. 38, 69; Bank vs. Wayman, 5 Gill. 336, 358; Sedg- 
 wick vs. Taylor, 84 Va. 827. But only when the title is purely 
 reversionary, and no present interest exists. McCoy vs. Poor, 56 
 Md. 197, 206. See Zimmerman vs. Fraley, 70 Md. 572. 
 
 =Magruder vs. Peter, 11 G. & J. 217, 245. 
 
 ^Beningfleld vs. Baxter, 12 App. Ca. 107, 173, 181; Mason, 8 P. D. 
 21; Hovenden vs. Annesly, 2 Sch. & Lef. 607, 039. Poverty alone, 
 per Lord Hatherly, in O'Rorke vs. Bolingbroke, 2 App. Ca. 814, 
 832. (7tfnto-a, Washington vs. Opie. 145 U. S. 214, 294; Leggett vs. 
 Standard, 149U. S. 294; Naddo vs. Bardon, 4 U. S. App. 684. 
 
 'G. vs. M,, 10 App. Oa. 171, 203, 209. 
 
 'Erianger vs. New Sombrero Co., 3 App. Ca. 1218, 1280. But see 
 Dunphy vs. Newspaper, 146 Mass. 495, 500. 
 
 'Boswell vs. Coaks, 27 Ch. D. 457. 
 
 • "Hammond vs. Hopkins, 143 U. S. 224, 273; B. & O. R. Co. vs. 
 Canton Co., 70 Md. 416; Sharpe (1892), 1 Ch. 154, 168; McGuire vs. 
 
EESTBICTIVE MAXIMS. 363 
 
 § 265. Ignorance of rights. One of the most 
 frequent of all the excuses for delay, is ignorance of 
 rights, whether of fact or law.' Where the equitable 
 claim is founded on the fraud of the other party, 
 laches is no defence so long as the fraud remains 
 undiscovered.^ In a reduced form, the same prin- 
 ciple has been introduced by statute, and in all 
 actions at law, where a party has a cause of action 
 of which he has been kept in ignorance by the fraud 
 of the adverse party, the right to bring suit shall be 
 deemed to have first accrued at the time at which 
 such fraud shall, or, with ordinary diligence, might 
 have been discovered.* In equity/especially as 
 between trustee and cestui que trust\when the defence 
 
 Devlin, 158 Mass. 67; Legendre vs. Byrnes, 44 N. J. Eq. 372; Water- 
 man vs. Sprague, 55 (;onn. 574; Essex vs. Day, 52 Conn. 493; Stans- 
 bury vs. Inglehart, 20 D. C. 134; Cranmer vs. McSwords, 24 W. Va. 
 601; Nudd vs. Powers, 136 Mass. 273. But long delay, without 
 more, is enough to make a claim "repulsively stale." Green vs. 
 Thompson, 84 Va. 396; Hendrickson, 42 N. J. Eq. 657. A delay of 
 two and a half months was held fatal, where the other party had in 
 the meantime incurred expense and assumed obligations. Cham- 
 berlain vs. Lynde, 64 N. H. 563. 
 
 ^"V^hitridge, 76 Md. 54, Zimmerman vs. Fraley 70 Md. 561, 572; 
 Sewell vs. SlinglufE, 57 Md. 537, 555; McCoy vs. Poor, 56 Md. 197, 205; 
 B. & O. R. Co. vs. Trimble, 51 Md. 99, 113; Pairo vs. Vickery, 37 Md. 
 467, 488; Cumberland Co. vs. Sherman, 20 Md. 117, 151; Hoffman 
 Co. vs. Cumberland Co., 16 Md. 456, 508; Berry vs. Convention, 
 7 Md. 564, 581; Brown vs. Sutton, 129 U. S. 238, 248; Hammond 
 vs. Hopkins, 143 U. S. 224; Gandy vs. Macaulay, 31 Ch. D. 1. 
 
 ^McConkey vs. Cockey, 69 Md. 286, 292, 3; Brawner vs. Staup, 
 21 Md. 328; Middaugh vs. Fox, 135 111. 358; Lincoln vs. Judd, 49 N. 
 J. Eq. 387; Vance vs. Motley, 92 Tenn. 310. 
 
 3Md. Code, Art. 57, sec. 13. 
 
364 EQUITY JURISPRUDEyCE. 
 
 \ 
 
 of laches is met by this excuse, the burden of proof 
 is not upon the plaintiff to show ignorance, but upon 
 the defendant to prove that the plaintiff had know- 
 ledge.* But a tenant cannot plead ignorance of the 
 title under which he holds, ^ and if parties will accept 
 the statements of others as to the effect of a deed, 
 without taking the trouble to examine for them- 
 selves, they are liable to the defence of laches.' So, 
 where releases are signed and money received, under 
 circumstances which presuppose knowledge.* It has 
 been held that ignorance is no excuse where it goes, 
 not to the fact, but only to the extent, of the adverse 
 right.* Ignorance of rights is no answer to laches 
 when the result of deliberate choice, and of resolu- 
 tion not to inquire,' nor where the necessary 
 information might have been obtained by inspection 
 of public records.' In other words, the party may 
 be bound by imputed knowledge from constructive 
 notice. " The defence of want of knowledge on the 
 part of one charged with laches is one easily made, 
 
 'Zimmerman vs. Fraley, 70 Md. 561, 571; Cumberland Co. vs. 
 Sherman, 20 Md. 151; Wade vs. Pulsifer, 54 Vt. 45, 65; Lewis vs. 
 Welsh, 47 Minn. 193, 203. Lindsay Peftroleum Co. vs. Hurd, L. K. 
 5 P. C. 221. See B. & 0. R. Co. vs. Canton Co., 70 Md. 412. 
 
 ^Myers vs. Silljacks, 58 Md. 319, 333. 
 
 sMcCoy vs. Poor, 56 Md. 197, 205. See Huyett vs. Slick, 43 Md. 
 284; Hutchins vs. Hope, 7 Gill. 119. 
 
 *Long, 62 Md. 33, 71. 
 
 «Naddo vs. Bardon, 4 U. S. App. 684. 
 
 «Allcard vs. Skinner, 36 Ch, D. 145, 188, 192. 
 
 ■^Biays vs. Roberts, 68 Md. 510, 515; Worris vs. Haggin, 136 U. S. 
 386, 393; Graham vs. Railroad, 118 TJ. S. 161; Sullivan vs. Railroad, 
 94 U. S. 806; Brant vs. Iron Co. 93 U. S. 326. 
 
RESTRICTIVE MAXIMS. 365 
 
 easy to prove by his own oath, and hard to disprove. 
 Hence, the tendency of courts in recent years has 
 been to hold the plaintiff to rigid compliance with 
 the law which demands, not only that he should 
 have been ignorant of the fraud, but that he should 
 have used reasonable diligence to have informed 
 himself of all the facts."^ Accordingly, the rule 
 before stated in another connection, also applies 
 here, that where a -party has information which puts 
 him upon inquiry, he is charged with notice of every 
 fact which that inquiry wouI3 have developed.^ 
 Others, acting in good faith, also have rights : the 
 world must move on ; and it is the interest of the 
 community that controversies should have, an end.^ 
 Gn the other hand, a cestui que trust is entitled to 
 repose confidence in his trustee, and is not bound to 
 inquire whether he has committed a fraud upon him, 
 unless there be something to arouse suspicion.* 
 
 § 266. l^lements of laches. So far as a subject 
 so elastic is capable of rules, the principle to be ex- 
 tracted from all the authorities may be stated as fol- 
 lows: Apart from the statute of limitations and its 
 analogies, there are two elements, one or the other 
 of which must be found, before the equitable concep- 
 tion of laches can arise. There must be such delay 
 
 'Foster vs. Eailroad, 146 U. S. 88. 
 ^Anie, sec. 241; Johnston vs. Standard, 148 U. S. 360. 
 'Hoyt vs. Sprague, 103 U. S. 637. 
 
 *Re Vernon, 33 Ch. D. 410; Kilbourne vs. Sunderland, 130 U. S. 
 505, 519. 
 
366 EQUITY JUKISPKUDENCE. 
 
 as, under the circumstances of the case, amounts to 
 acquiescence or waiver, or else the delay must be 
 accompanied with some material change in the situa- 
 tion, making the enforcement of the claim specially 
 prejudicial.' Where both these elements concur, a 
 stronger case of laches is of course exhibited than 
 when either of them is absent, but even then the 
 application of the doctrine may be prevented by 
 special circumstances of satisfactory explanation, 
 unless, perhaps, the acquiescence assumes the form 
 of election, or the change in the situation is such as 
 to raise an estoppeU When the interests involved 
 are of a fiduciary character, and especially .where a 
 trustee interposes the defence of laches against a 
 cha,rge of fraud, the latitude allowed the cestui que 
 trust is more liberal than in other cases.* 
 
 § 266. Applications. There is no equitable claim, 
 under whatever head of doctrine, which may not in 
 a proper case be met by this defence. The most fre- 
 quent illustrations in practice occur in cases of 
 specific performance, injunction, enforcement of 
 equitable liens or trusts, cancellation of deeds, or 
 rescission of contracts for fraud and reformation or 
 rescission of contracts for mistake.* 
 
 A trustee, acting in good faith, is to be treated 
 with leniency,^ and to deprive a trustee wholly of 
 
 ^Erlanger vs. New Sombrero Co , 3 App. Ca. 1279. 
 
 'AnU, sees. 251, 252. 
 
 ^Bechtold vs. Read, 49 N. J. Eq. 111. 
 
 ^Chew vs. Bank, 2 Md. Ch. 231, Brantly's note. 
 
 ^Webb vs. Jonas, 39 Ch. D. 660, 665. 
 
RESTBICTIVE MAXIMS. 367 
 
 the court's indulgence he must have been guilty of 
 very supine negligence or willful default.^ An exe- 
 cutor and trustee made an erroneous distribution to 
 the prejudice of an infant legatee, who, upon his 
 coming of age, filed a bill against him and the over- 
 paid legatees to reclaim the deficiency with fifteen 
 years' interest. The trustee being confessedly liable, 
 claimed reimbursement from his co-defendants," to 
 which claim the fatter interposed the defence of 
 laches. The defence was held good as to all arrears 
 of interest, but as the good faith of the trustee had 
 not been questioned he was allowed reimbursement 
 to the extent of the principal sums overpaid.' 
 
 The rule, both in equity and at law, which forbids 
 recovery for a voluntary payment of money under a 
 mere mistake of law* is based upon the doctrine of 
 laches. Courts do not invite litigation, and to those 
 who voluntarily place themselves in the situation of 
 becoming suitors, they decline assistance. If the 
 .party would resist an unjust demand he must do so 
 at the threshold, and not delay until evidence may be 
 lost or the situation changed. = 
 
 § 268. How available. The defence of laches 
 goes to the merits. When the objection appears 
 
 'Gray vs. Lynch, 8 Gill. 431; DifEenderfler vs. Winder, 3 G. & J. 
 341. 
 
 -As in Hanson vs. Worthlngton, 12 Md. 418. 
 
 'Nyce vs. Horwitz, 18 Md. L. J. 596. 
 
 ^Lester vs. Baltimore, 29 Md. 419; Manfrs. Bank vs. Swift, 70 
 Md. 515, 520; Milwaukee R. Co. vs. Soutter, 13 Wall. 517. 
 
 ^Kailroad vs. Iron Co., 46 Ohio St. 51. 
 
368 EQUITY JUKISPRUDBNCB. 
 
 upon the face of the bill, it may be availed of on 
 demurrer, or at the hearing, and need not be set up 
 by way of plea or answer.* Hence, negative cir- 
 cumstances relied on to avoid the defence of laches, 
 must be set forth in the bill of complaint, by way of 
 anticipation,^ In such cases, the plaintiff is held to 
 stringent rules of pleading and evidence, and there 
 must be distinct averments as to the time when the 
 fraud, &c. was discovered, so that the court can see 
 whether by ordinary diligence the discovery might 
 not have been made sooner.^ A party cannot, of 
 course, avail himself of his own laches,^ and may be 
 bound by the laches of another under whom he 
 claims.^ Although it has been held that the defences 
 of settlement and laches cannot be coupled so that 
 one may eke out the other,* yet it is clear that where 
 lapse of time would not prevail alone, it will some- 
 times be allowed weight in connection with other 
 defences, such as estoppel, &c.' 
 
 § 269. Qualifications. In addition to what has 
 been offered under the head of "negative circum- 
 
 •-AnU, sea. 59, 261. 
 
 "Richards vs. Mackall, 124 U. S. 183; Badger, 2 Wall. 95; Noble 
 vs. Turner, 69 Md. 527. 
 
 ^Felix vs. Patrick, 145 U. S. 317, 332; Naddo vs. Bardon, 4 U. S. 
 App. 688. 
 
 *Jones vs. Keating, 55 Md. 151; Buppertsberger vs. Clark, 53 Md. 
 406; Berry vs. Convention, 7 Md. 581; Titman vs. Thornton, 107 
 Mo. 500. 
 
 ^Learned vs. Foster, 117 Mass. 370; Noble vs. Turner, 69 Md. 526; 
 Yearly vs. Cockey, 68 Md. 180. 
 
 =Hagerty vs. Mann, 56 Md. 523. 
 
 'Long, 62 Md. 33, 69; Sangston vs. Hack, 52 Md. 197. 
 
RESTRICTIVE MAXIMS. 369 
 
 stances,'" it must be noted that neither limitations 
 nor laches will bar the government, either federal or 
 state,^ unless introduced as formal parties, and the 
 real remedy sought in their name is but the enforce- 
 ment of a private right. ^ When a state sues upon a 
 private claim in another state, it is treated as a 
 foreign private corporation.^ The sovereign principle 
 of exemption from the operation of laches or limita- 
 tions is peculiar to, the state, and does not pass to its 
 creditors.^ To a widow's claim of dower, the statute 
 is not a bar, and a delay of over four years does not 
 constitute laches.^ Relief by injunction to restrain 
 future infringements of trade-mark, &c., will not in 
 general be refused by reason of laches, although the 
 delay may be such as to preclude the plaintiff from 
 any right to an account for past profits.' There can 
 be no prescription in favor of a public nuisance, and 
 therefore laches is no defence to an injunction bill 
 to restrain such an injury as the pollution of a 
 stream by a slaughter-house.* 
 
 'Ante, sec. 264. 
 
 ^2fuUum tempos oceurrit regi. Booth vs. U. S., 11 G. & J. 373; 
 U. S. vs. Inaley, 130 U. S. 263. 
 
 ^Curtner vs. U. S. 149 U. S. 662; U. S. vs. Des Moines, 142 U. S. 
 .510, 538; U. S. vs. Beebe, 127 U. S. 338. 
 
 ^Asylum vs. Miller, 29 W. Va. 330. 
 
 'Cressy-vs. Meyers, 138 U. S. 525. 
 
 'Mitchell vs. Farrish, 69 Md. 235. 
 
 'Menendez vs. Holt, 128 U. S. 523; McLean vs. Fleming, 96 
 U. S. 253. 
 
 'Woodyear vs. Shaeffer, 57 MJ. 1. 
 
 24 
 
370 EQUITY JURISPKUDENCl. 
 
 § 270. I/apse of time. Equity acts upon two 
 general considerations, one having reference to the 
 interests of the community, the other to the particu- 
 lar interests of individuals. The first takes account 
 of mere lapse of time, and enforces, on behalf of 
 society, the policy of repose.* It is sound public 
 policy that no court should entertain a controversy 
 after the ravages of time have destroyed all evidence, 
 and when the lapse of time has been so great as to 
 afford a clear presumption that all witnesses are 
 dead and all proof lost." Aft^r what lapse of time a 
 disputable presumption (that of payment, for 
 instance,) becomes conclusive, has never been fixed, 
 but is left to the discretion of the court in view of 
 the circumstances of each case.^ After long acqui- 
 escence relief will be refused, not only when it is 
 difficult to ascertain the facts, but also when the 
 facts may be easily ascertained, and even when it is 
 perfectly clear that relief would have been granted 
 if asked for in time.* 
 
 § 271. loaches, apart from time. In a broader 
 sense, the term laches denotes any negligent omis- 
 sion involving a loss of rights,^ such as the failure 
 
 'Lansdale vs. Smith, 106 TJ. S. 394; Yearley vs. Cockey,68Md. 
 179; Stansbury vs. Inglehart, 20 D. C. 134, 162. 
 
 ^Ohase vs. Winans, 59 Md. 481; U. S. vs. Beebe, 127 U. S. 347; 
 Turner vs. Dillard, 82 Va. 536; Sanchez vs. Dow, 23 Fla. 445; Beau- 
 clerk (1891), P. (C. A.) 203. 
 
 3 Gregory vs. Commonwealth, 121 Pa. 622, 623. 
 
 *Hendrickson, 42 N. J. Eq. 657. 
 
 *Chew vs. Farmers' Bank, 2 Md. Ch. 238, Br. Ed!, noU. 
 
KESTRICTIVE MAXIMS. 371 
 
 to have a deed recorded; or the want of due diligence 
 of a creditor in collecting securities held as collat- 
 eral, or in notifying his debtor of their non-payment at 
 maturity;' or the failure of a party to prepare his case 
 for trial.- In this sense, laches is a term of frequent 
 application to legal as well as equitable proceedings, 
 is the basis of the doctrine of contributory negli- 
 gence, and is sometimes identical, and sometimes 
 confounded, with, waiver, acquiescence, confirma- 
 tion, estoppel and election.^ 
 
 § 272. Acquiescence. To prevent confusion in 
 the use of this "slippery" term, distinction must be 
 observed as to the time of its application to the par- 
 ticular transaction. Acquiescence while the trans- 
 action is in progress is simply estoppel.^ 'To avail as 
 a defence, it must have all the elements of estoppel. 
 Thus, where a party expends money or does some 
 act under a mistake as to his legal rights, misled 
 either by the conduct, language or silence of the real 
 owner, he being fully aware of his own right and of 
 the mistake made by the other party, there is such 
 fraud as will entitle the court to restrain the pos- 
 sessor of the legal right from exercising it.' Any 
 
 'Haines vs. Pearce, 41 Md. 233. 
 ^Ross vs. Railroad, 92 Ky. 583. 
 
 ^Hutton vs. Marx, 69 Md. 256; Zimmerman vs. Fraley, 70 Md. 
 562, 572. 
 *De Bussche vs. Alt, 8 Ch. D. 314. 
 'Wilmot vs. Barber, 15 Ch. D. 105. 
 
372 EQUITY JUKISPRUDENCE. 
 
 alleged acquiescence falling short of this standard 
 cannot deprive a man of his legal right. ^ 
 
 Acquiescence after the transaction is complete,' if 
 the fruits are accepted, will amount to election,^ or it 
 may assume the form of waiver, by which a party 
 sometimes loses a right by not asserting it in time.' 
 If decisive steps of affirmation are taken, it may be 
 merged in confirmation or release, provided the party 
 is aware that -he is confirming an impeachable trans- 
 action.* In cases of divorce, it may become condona- 
 tion.^ A vested legal right of action cannot in 
 general be waived without accord and satisfaction, 
 or release under seal.' A right strictly legal cannot 
 in general be barred of an equitable remedy short of 
 the statutory period of limitations,' and so as to an 
 equitable claim to which the statute is applied by 
 analogy.* 
 
 Where, however, the claim is equitable merely, 
 and the acquiescence is marked by features like 
 
 ^Ibid.; Lamott vs. Bowly, 6 H. & J. 500; Lamotte vs. Wisner, 
 51 Md. 561; Eussell vs. Watts, 25 Ch. D. 585-6; see Casey vs. Inloes, 
 1 Gill. 502; Schaidt vs. Blaul, 66 Md. 141; Menendez vs. Holt, 128 
 U. S. 524. 
 
 'Ante, sec. 251. 
 
 ^Hutton vs. Marx, 69 Md. 256. 
 
 *PairQ vs. Vickery, 37 Md. 486; Wilson vs. Insurance X3o., 60 Md. 
 154. " Ratification," "adoption," are terms properly applicable in 
 cases of agency. Ellison vs. Water Co., 12 Cal. 550; Clough, 73 
 Maine, 488; 19 Central L. J. 482. , 
 
 *Stew. M. & D. sec. 307; Bernstein (1893), P. (C. A.) 292. 
 
 «De Bussche vs. Alt, 8 Ch. D. 314. 
 
 'FuUwood, 9 Ch. D. 179; Lisle vs. Tribble, 92 Ky. 3C4. 
 
 'Ante, sec. 261. 
 
RESTRICTIVE MAXIMS. 373 
 
 those before,, referred to/ and is not explained by 
 circumstances such as those already mentioned/ it 
 will simply be identical with laches.^ Whether it will 
 or will not be a case of laches cannot be determined 
 in advance by any hard and fast rule, but will 
 depend upon its peculiar circumstances, in the sound 
 discretion of the court, reviewable on appeal.^ In 
 any case, there must be perfect freedom of volition 
 and action, and full knowledge of all the material 
 facts and of the law applicable to them, a well- 
 established exception to the rule ignorantia legis 
 neminem excusat.^ 
 
 ^AnU^ sec. 263. 
 
 -Ante, sec. 264. 
 
 'Life Association vs. Siddal, 3 D. F. & J. 73; De Bussche vs. Alt, 
 8 Ch. D. 314. 
 
 ^Owens vs. Crow, 62 Md. 496; anU, sec. 262. 
 
 'Zimmerman vs. Fraley, 70 Md. 572; Erlangervs. New Sombrero, 
 3 App. Ca. 1218, 1261; Brown vs. Burdett, 40 Ch. D. 244; Fry vs. 
 Lane, 40 Ch. D. 324; Smethurst vs. Hastings, 30 Ch. D. 490. 
 
(f^snevai ^nttex^ 
 
INDEX. 
 
 Beferences are to Sections. 
 Abatement : 
 
 of suit, wBat, and how remedied, 46. 
 pleas in, 62. 
 of legacies, 233. 
 
 Absconding Defendant : 
 
 how reached, 48, 125. 84 p. 112 note. 
 Abuses of Chancery : 14, 155 note. 
 Accident : 
 
 origin of the jurisdiftion, 8. 
 former wide scope, 177. 
 re-execution as remedy, 226. 
 of lost bonds, 37 p. 54. 
 of lost deed of land outside the state, 222. 
 
 Account : 
 
 origin, as incident to administration, 8. 
 a distinct head of equity jurisdiction, 159. 
 taken by master, 92. 
 
 by auditor, 92. 
 mode of taking, 92. 
 re-opening, 93. 
 in the alternative, 94. 
 required by party, 94. 
 expense and distribution, 94. 
 exceptions, 94. 
 ratification, 94. 
 
 for proceeds of unlawful contract, 259. 
 of separate partnerships, 42. 
 in action at law, 164. 
 
 Acquiescence : 
 
 when it becomes estoppel, 272. 
 
 when election, waiver, confirmation, 272. 
 
 when condonation, 272. 
 
 when laches, 273. 
 
378 INDEX. 
 
 Keferenoes are to Sections. 
 Actions : 
 
 Roman law, early, 149. 
 
 origin of case, trover, assumpsit, 154. 
 
 at law restrained, lOU, 230. 
 
 outside the state, restrained, 222. 
 
 equitable defences to legal, 146 note, 164. 
 
 Actual and constructive parties: 29. 
 Administration : 8, 159, 233. 
 Administratot : 
 
 representative party, 30. 
 when necessary party, 37. 
 title relates back, 211. 
 
 Admiralty : 
 
 quasi equitable, 164. 
 Admission : 
 
 express and implied, 70. 
 Advancement : 
 
 combined effect of maxims, 189. 
 
 a question of intent, 217. 
 
 Advertisement : 
 
 of sale by trustee, 90. 
 of order ratification nisi, 91. 
 of notice to file claims, 93. 
 See Publication. 
 
 Affidavit : 
 
 when required to bill, 54. 
 to petition, 76, 88. 
 to demurrer Or plea, 60, 116. 
 on appeal, 78. 
 ' when not admissible, 89. 
 
 Affirmance : 
 
 by divided court, 82. 
 Agreement of Counsel : 
 
 in writing, or orally, fn open court, 70. 
 Alfred : 
 
 tradition as to hanging j.udges, 153. 
 
 Alienation : 
 
 restrained by injunction, 99. 
 pendente lite, 47. 
 
INDEX. 379 
 
 References are to Sections. 
 Alimony : 
 
 how enforced, 84. 
 
 contempt proceeding, 124. 
 
 in connection with ne exeat, 125. 
 
 Allegata et Probata: 55. 
 Allegfation : 
 
 in canonical procedure, 49. 
 responsive, 21. 
 
 Alternative : 
 
 bill in the, 55. 
 account in the, 94. 
 
 Amendment : 
 
 generally, 113, 213. 
 
 in the discretion of court, 80, 113. 
 
 leave to be obtained, 113. 
 
 unauthorized, how treated, 113, 116. 
 
 of bill, 22, 44, 60, 68, 114. 
 
 proceedings thereon, 114. 
 
 as to parties, 39, 46, 114. 
 
 by new matter, 114. 
 
 of answer, 115. 
 
 cause remanded for, 82. 
 
 Ancient and. Modern Conceptions of l^quity : 144, 135. 
 
 Anomalous Plea : 
 
 variously defined, 61. 
 
 'answer in support, no longer necessary, unless sworn answer 
 required, 61, note. 
 
 Answer : 
 
 whence derived, 21. 
 
 when may be to part of bill, 60. 
 
 former and present effect, 65. 
 
 effect of, on motion to dissolve injunction, 104, 105. 
 
 any defence to the merits which could be raised by demurrer 
 
 or plea, may be made in, 65. 
 or objection as to parties, 39. 
 two fold function, 65. 
 
 why discovery less important than formerly, 65. 
 form of, 65. 
 
 must be responsive, 65. 
 what defendant may decline to answer, 65. 
 omission to answer an averment not an admission, 66. 
 exceptions for insufficiency, 66. 
 
 less important since defendant compelled to testify, 66. 
 exceptions for scandal and impertinence, 49, 66. 
 in support of plea, 61. 
 
380 INDEX. 
 
 Beferences are to Sections. 
 Anticipated Defense : 
 
 replied to in bill, 22, 50, 52 note, 54, 55 note, 69. 
 Appeal : 
 
 in general, 77. 
 
 from final orders and decrees only, 77. 
 
 exceptional interlocutory orders, 77. 
 
 interlocutory orders reviewable on appeal from decree, 77, 78. 
 
 limit of time for, 80. 
 
 for transcript, 80 note. 
 
 none from decree by consent, 80. 
 
 or from matter of discretion, 80. 
 
 or where the appellant has no interest, 80. 
 
 dismissal, 80. 
 
 whether lies or not, for appellate court to decide, 80. 
 
 what objections must be made by written exceptions, 81. 
 
 rules as to, 82. 
 
 disposal of case on, 82. 
 
 when cause remanded, 82. 
 
 from injunction order, 106. 
 
 in cases of sale, 91. 
 
 Appeal Bond : 
 
 necessary to stay execution, 78. 
 
 unless otherwise' ordered in the discretion of the court, 78 note. 
 
 penalty, amount of, 78. 
 
 former effect of, in neutralizing injunction, 106. 
 
 Appearance : 
 
 general, waives service of process, 48. 
 
 special, does not, 48. 
 
 authority of solicitor presumed, 48. 
 
 old mode of compelling, 48. 
 
 attachment and sequestration still optional, but superseded in 
 
 practice, 48. 
 default in, what follows, 57. 
 limit of time for, 57 note, 
 in federal courts, 57 note. 
 
 Arbitration : 
 
 reference by consent, 127. 
 in action at law, 164. 
 
 Argument : 
 
 setting demurrer or plea for, 49, 60, 64. 
 not essential to a hearing, 72 note. 
 
 Aristotle : 
 
 his definition of equity, 139. 
 
 scholastic perversion of his philosophy, 148. 
 
 on development, 136 note. 
 
INDEX. 381 
 
 References are to Sections. 
 Arrest : See Ne Exeat, 125. 
 
 Assignee : 
 
 as party, 37 pp. 53, 55. 
 
 pendente lile, whether proper party, 45, 47. 
 
 Assigrnment : 
 
 of chose in action formerly void at law, 145. 
 
 now valid by statute, 168. ' 
 
 always recognized in equity, 208. 
 
 of future property, 208. 
 
 of a fund to be created, 208. 
 
 partial, 208. 
 
 Assistance : 
 
 writ of. 84 note. 
 
 Association : voluntary, 31. See Parties. 
 
 Assumpsit : 
 origin, 154. 
 an equitable action, 1G7. 
 
 Attachment : 
 
 (of property,) by way of execution of decree, 84. 
 
 issued by court of law, not aided by equity, if defective, 234, 
 
 note, 
 equitable interest attachable at law, 168. 
 
 (for contempt,) to compel appearance and answer, 48, 124 note, 
 to enforce orders and decrees, 84. 
 when ordered with, and when without, notice, 124. 
 with proclamations, 48, 84. 
 
 Attorney General: 
 
 what suits to be brought by, 34. 
 in cases of charities, 34. 
 
 Auctioneers : 
 
 custom to bill house for sale, 90 note 5. 
 fees regulated, 94 note 3. 
 
 Auditor : 
 
 powers and duties, 92. 
 
 report, etc., see Account. 
 
 to give notice of report to parties in interest, 94 note. 
 
 and master, 19. 
 
 what cases referred to, 92 note. 
 
 Aula regis: 1. 
 
382 INDEX. 
 
 Beferencea are to Sections. 
 Auxiliary Jurisdiction : 
 
 how superseded, 53, 159, 177. 
 
 Award : See Arbitration. 
 bill to vacate, 127. 
 
 Bacon, I^ord : 
 
 successful efforts to secure supremacy of equity over law, 10. 
 on wisdom of ancestors, 147. 
 
 Bail : . equitable, see Ne Exeat. 
 
 Bailment : 
 
 when treated as mortgage, 196. 
 
 Baltimore : 
 
 courts of equity in, 19. 
 auditor and master, 92 note- 
 notice mailed of auditor's report, 94 note, 
 investment securities to be verified, 123. 
 trial by jury in equity court, 128 note. 
 
 Bankruptcy : 
 
 assignee in, a representative party, 30]note. 
 takes subject to equities, 243. 
 
 Bar: 
 
 pleas in, 63. 
 
 Barristers : 
 
 since judicature act, 137 note. 
 Battle : 
 
 trial by, 147. 
 Betterment : 
 
 compensation for, 250. 
 
 Bill: 
 
 whence derived, 21. 
 
 cognate with what, 52. 
 
 essential parts, 52. 
 
 "confederacy" clause, 161. 
 
 anticipates defence, 22, 50, 52 note, 55 note, 69. 
 
 classification of bills, 63. 
 
 contents, 54. 
 
 formal requisites, 54. 
 
 allegata et probatUj 55. 
 
 in the alternative, 55. 
 
 exhibits, 55, dd.^ 
 
 filing or exhibiting, 56. 
 
INDEX. 383 
 
 References are to Sections. 
 Bill :— Continued. ' 
 
 taking pro confeao, 57. 
 amended and supplemental, 113, 114. 
 cross, 67. 
 "review," 76. 
 revivor, 46. 
 to vacate award, 127. 
 to impeach decree for fraud, 76. 
 
 of discovery and to perpetuate testimony, see Auxiliary Juris- 
 diction. 
 interpleader, 100, 230. 
 quia Hmet and bills of peace, 100, 230. 
 parties to, see Parties. 
 
 Bishop : 
 
 Jvd^ Ordinarius within his diocese, 6. 
 
 Blackstone : 
 
 his view of equity, 144 note, 
 fallacy of his treatment, 140. 
 
 Bona Fide Purchaser: 63, 160, 241. 
 
 Bond: 
 
 trustee's, how sued, at law, 90. 
 
 in equity, 34. 
 See Appeal. 
 
 or note, lost, 226. 
 
 Bondholders : 
 
 when represented by trustees under railroad mortgage, 30. 
 each other, 31. 
 
 Books and Papets: 
 
 production, 126. 
 
 Briefs : 
 
 required, 72 note, 82. 
 
 Burden of Proof: 
 
 in treatment of fiduciaries, 70, 161, 265. 
 
 Cancellation : 
 
 an "extraordinary remedy," 187, 256. 
 referred to the head of fraud, 159, 241. 
 when applied in cases of mistake, 227. 
 when consideration to be restored, 253. 
 restitution prevented by public policy, 2'>3. 
 
384 INDEX. 
 
 References are to Sectione. 
 Canon I^aw: 
 
 a source of equity procedure, 21. 
 influence upon primitive equity, 8, 9, 133. 
 
 Capacities : 
 
 several in same person, 212. 
 cannot sue each other, 32. 
 
 Case : 
 
 origin of the action, 154. 
 
 Cause Petitions: 
 
 what are, 88. 
 
 Certainty : 
 
 *in bills, 49, 55. 
 
 in what cases strictly required, 55. 
 want of, demurrable, 59. 
 
 Certificates of Receivers : 11 2. 
 
 Cestui Que Trust: 
 
 when necessary party, 30. 
 See Trust, and Trustee. 
 
 Chancellor : 
 
 oflBce and functions, 5. 
 influence and patronage, 5, 13, 155 note, 
 ecclesiastical, 5, 130, 155. 
 
 term now applied to any judge of equity court, or exercising 
 equity powers, 156 note. 
 
 Chancery, Higrh Court of: 
 
 model of equity courts, 1. 
 ordinary jurisdiction, 3. 
 extraordinary jurisdiction, 5. 
 organization and ofiicers, 13. 
 abuses, 1-J. 
 
 reform and abolition, 15. 
 old court of, Maryland, 19. 
 
 Charities: 34. 
 
 Maryland cases cited to illustrate tenacity of precedent, 171 
 note 2. 
 
 Charter : 
 
 forfeiture for abuse or non-user, 164 par. 6. 
 Chose in Action : See Assignment. 
 
INDEX. 385 
 
 Beferences are to Sections. 
 Civil I^aw: 
 
 a source of juridical equity, 13S-136. 
 how developed by prsetor, 154. 
 English antagonism to, 6, 10, 154. 
 excluded as an authority, 154. 
 its principles confined to chancery, 154. 
 
 Claims : See A.cxx>nNT. 
 misjoinder of, in bUl, 43. 
 speculating in, 256. 
 
 Class: 
 
 numerous, representation, 30, 31. 
 * 
 Classification : 
 of parties, 28-38. 
 bills, 53. 
 doctrines, 177. 
 maxims, 186. 
 
 Clean Hands: 
 
 maxim as to, restrictive, 256. 
 illustrated, 256, 257. 
 common law analogies, 258. 
 qualifications, 259. 
 
 Clerical Btror: 
 in decree, 76. 
 in legal proceedings and contracts, 204. 
 
 Clerk : 
 
 what orders nisi passed by, 91 note 8, 94 note p. 125. 
 delay in forwarding record, 80 note, 
 of chancery, duties of, 13. 
 
 Cloud on Title : See Quia Timet. 
 
 Code Procedure : 17, 49, 137. 
 
 Code States : 17 note. 
 
 old distinction between law and equity not entirely obliterated, 
 137. 
 
 Co-defendants : 
 
 decree as between, 32. 
 corporation officers, 33. 
 husband as one of, 36. 
 misjoinder of, 42. 
 See Parties. 
 
 25 
 
386 INDEX. 
 
 Beferences are to Sections. 
 Coke, I^ord: 
 
 in the war between the courts, 10. 
 
 on equity, 139. 
 
 on "veneration of the sages," 147. 
 
 Collateral Attack : 
 
 when decree void for want of jurisdiction, 24, 25, 39, 179. 
 not for erroneous assumption of legal jurisdiction, 179. 
 nor for multifariousness, 44. 
 
 Collusive Suit : 
 
 ground for intervention, 45. 
 
 Colouies : 
 
 equity in, 17. 
 
 Cofiunission : 
 
 to take testimony abroad, 70. 
 de VunaMeo, 35. 
 
 Commissioner : 
 
 to take testimony, 19, 70. 
 Commissions : 
 
 of trustees, etc., 94 note, 
 of receivers, 108 note. 
 
 Committee : 
 
 of lunatic, 35. 
 Common I^avir: 
 
 instances of rigor, 145. 
 
 deficiency, 145. 
 still refuses to recognize equitable rights, 146. 
 primitive, a barbarous code, 147. 
 
 crude custom, 147. 
 
 artificial methods, 148. 
 
 formalism, 149. 
 
 fictions, 150. 
 
 feudal system, 151. 
 real value, trial by jury, 152. 
 cramped administration, 153. 
 
 equitable development of, prevented by causes mentioned, 154. 
 contrasted with equity, 155, 170. • 
 modern reforms in, 167-169. 
 
 Compensation : 
 
 for betterments, in cases of cancellation, specific performance, 
 and fraudulent contracts, 250. 
 
 Complainant : See Plaintiff. 
 
IKDEX. 387 
 
 References are to Sections. 
 Concurrent Jnrisdiction : 
 in general, 167, 177. 
 in cases of, statute of limitations applied, 261. 
 
 Conditional Sale: 
 
 disguised as lease, 203. 
 
 when treated as mortgage, and when not, 196. 
 
 Confederacy Clause: 
 in bill, 52 note, 161. 
 
 Confirmation : 
 
 must be with knowledge of rights, 272. 
 
 Conscience : 
 
 an equitable conception, of ecclesiastical derivation, 6, 7. 
 operation upon, or in personam, 8, 221. 
 the bed-rock of equity, 209. 
 courts of equity are courts' of, 150, ;J22. 
 
 primitive and modern conceptions of; the latter, a "disci- 
 plined," 155. 
 
 Consent : 
 
 decree bjr, no appeal, 80. 
 
 how impeached for fraud, 76. 
 
 Consideration : 
 
 in support of equitable mortgage or lien, 197, 234. 
 absence of, not supplied by seal, 199. 
 in support of equitable assignment, 208. 
 priority of valuable, over voluntary transfer, 243. 
 restitution of, in cases of cancellation, 250. 
 
 or rescission, 253. 
 restitution prevented by public policy, 253. 
 
 Consolidation : 
 
 of cases. 119. 
 
 of mortgages, 248. 
 
 of rule (as to parties) with exceptions, 27. 
 
 Construction : 
 
 rules of, follow law, 238. 
 
 Constructive Notice : 241, 266. 
 
 Constructive Parties : 
 
 or statutory parties by publication, 29. 
 
 Constructive Trust : 159, 210. 
 
388 IXDEX. 
 
 Beferences are to Sections. 
 Contempt : See Attachmeht. 
 
 in general — inherent power of courts — regulated by statute — for 
 direct, no attachment necessary — when notice required, and 
 when not — hearing — effect of remaining in — appeal and habeas 
 corptf*— vindication of public justice distinguished from en- 
 forcement of a private right, 124. 
 
 Contract : 
 
 implied, an equitable conception, 213. 
 to give a mortgage, 197. 
 executory, for sale of land, 207. 
 to assign future property, 208. 
 I time, when essential, 200. 
 
 form disregarded to reach substance and intent, 203. 
 
 See CONSIDBKATION. 
 
 See Injunction. 
 
 See Spbcifig Pekfoemance. 
 
 Contribution : 
 
 referred to head of " account," 159. 
 to prevent multiplicity; 230. 
 when enforced, 233. 
 in suit for, who to be parties, 37. 
 
 Conversion : 
 
 what and when, 206. 
 
 a question of intent, 204, 206. 
 
 rules, 178, 213. 
 
 Conveyance : 
 
 decree operating as, 85, 223. 
 
 but only within the jurisdiction, 222. 
 absolute, held mortgage, 196. 
 
 on payment of debt secured, 253. 
 obtained by trustee from c. q. t., 250. 
 
 Co-plaintiffs : 
 
 who may and may not be, 32. 
 decree as between, 32. 
 misjoinder of, 41. 
 See Pabties. 
 
 Copyright : 
 
 infringement restrained, 101. 
 Corporation : 
 
 a representative party — modern application of the principle in 
 
 fixing stockholders' liability — Glenn cases, 31. 
 a necessary party in all cases affecting corporate interest, 33, 37. 
 
INDEX. 389 
 
 References are to Sections. 
 Corporation :— Continued. 
 
 stock, a trust fund, 193. 
 
 one who controls entire stock treated as the, 202. 
 
 contract in hehalf of, although in individual name, 202. 
 
 distribution of profit, 202. 
 
 dissolution of, 110. 
 
 forfeiture of charter, 164. 
 
 Costs : 
 
 as between party and party — as between solicitor and client, 75. 
 security for, 118. 
 
 See Counsel Fees. 
 
 # 
 
 Counsel : 
 
 signature to bill, 54. 
 
 when dispensed with, 54 note 2. 
 
 See Briefs. 
 
 See Hearing. 
 
 Counsel Pees : 
 
 when included in costs as between solicitor and client — when 
 
 fund due to professional services, 75. 
 equitable assignment of judgment, 243. 
 
 Counties : 
 
 lands lying, or defendants residing, in different, 90 note. 
 
 lien of decree, how extended to other, 84 note. 
 
 decree, how made to operate as conveyance in other, 85 note. 
 
 Courts : 
 
 See Chancery. 
 
 of Westminster Hall, their evolution from curia regis, 2. 
 
 ecclesiastical, 6-9. 
 
 war between the, 10, 237. 
 
 of equity in England, besides chancery, 11. 
 
 House of Lords as an appellate, 12. 
 
 of equity in the United States, 17. 
 
 federal, 18. 
 
 of equity in Maryland, 19. 
 
 always open for business, 87. 
 
 stated terms, 87 note. 
 
 Covenants : 
 
 restrictive, enforced, 200. 
 negative, enforced, 102. 
 
 Coverture : 
 
 legal disabilities deduced from fiction of unity of person repu- 
 diated by equity — "separate estate," 145. 
 
390 INDEX. 
 
 Beferences are to Sections. 
 
 CoTerture :— Continued. 
 
 an excuse for laches, except as to separate estate, or where 
 represented by trustee, or where suit not brought within 
 reasonable time after disability removed, 264. 
 
 Creditor's Bill: 
 
 See Account. 
 
 See Claims. 
 
 principle of representation applied, 31. 
 
 maxim of equality applied, 233. 
 
 to vacate several deeds for fraud in one suit, distinct grantees 
 
 may be joined, 42. 
 
 I 
 
 Criminal J^aw: 
 
 early_ atrocities, 162. 
 relations with equity, 161-163. 
 
 Cross-bill : 
 
 where necessary, and where not allowable, 67. 
 Cross-examination : 
 
 effect of death of witness, before, 71 note, p. 93. 
 Crown : 
 
 uniform influence in support of chancery, 10, 237. 
 Curia Regis: 
 
 the germ of chancery, 1. 
 Custom : 
 
 See Usage. 
 
 a source of common law, 147, 182. 
 
 in connection with precedent, producing rigidity, 142, 153. 
 
 Damages : 
 
 and not specific relief the almost universal common-law rem- 
 edy, 7, 145, 224. 
 See Compensation, 
 
 Death : 
 
 of party, 46. 
 
 of witness. See Ceoss-examination. 
 
 as a circumstance in laches, 263. 
 
 Decree : 
 
 as compared with judgment, 73, 145. 
 binds only interests represented, 24, 37, 39. 
 sale under, passes title of parties only, 25, 39. 
 aecund/um allegata el probata, 55. 
 pro confeiso, 57. 
 
IMDEX. 391 
 
 References are to Sectdons. 
 
 Decree :— Continued. 
 
 by whom drawn, 73. 
 
 saving rights of absent parties, 39 note. 
 
 inparsotiom and »« rem, 73, 86, 222, 223. 
 
 interlocutory and final, 73, 90. 
 
 declaratory, 73. 
 
 pro forma, 73. 
 
 enrollment, rehearing and review, 76. 
 
 lien of, extended to other counties, 84 note. 
 
 enforcement (see Execution), 83. 
 
 See OoLULTKRAL Attack. 
 
 Decretal Order: 
 
 what, 74, 94. 
 
 Deed : See Conveyance. 
 
 Default : 
 
 in ap|)earance or answer, 48, 57. 
 
 Defective Z^avrs: 
 
 many instances cited, 145, 146, 170. 
 Bee Pbocedukb at Law. 
 
 Defence : 
 
 as to form of, §8. 
 as to substance, 160. 
 equitable, pleaded at law, 164. 
 See Rbstbictivs Maxims. 
 
 Defendant : See Co-defendant. 
 See Parties. 
 who may be made, 32. 
 
 Definition : 
 
 of Jus Pratoriitm, 134. 
 of primitive equity, 135. 
 that does not define, 138. 
 an ideal, 139. 
 discussion of, 141, 142. 
 of juridical equity, 143. 
 
 Delay: 
 
 in prosecuting suit, 117, 262. 
 De I^olme: 
 
 sagacious forecast of equity by, 173. 
 De Lunatico Inquirendo: 35. 
 
392 INDEX. 
 
 References are to Sections. 
 Demurrer : 
 
 whence derived, 21. 
 lies only to bill, 59. 
 what it does and does not admit, 59. 
 speaking, 59. 
 usaal grounds, 59, 
 
 may be partial; afSdayit required; how when allowed, or over- 
 ruled; may be availed of by answer, 60. 
 
 Deposition : See EvrosNCE. 
 Devise : 
 
 of rents and profits, 203. 
 Devisee : 
 
 where necessary party, 37. 
 Ditainntion : 
 
 writ of, 79. 
 Directors : 
 
 represent stockholders, 31. 
 Disclaimer : 
 
 by defendant, 58. 
 
 by trustee, 198. 
 
 Discovery : See Auxiliary Jurisdiction. 
 compelled by law court, 164. 
 
 Discretion : 
 
 Lord Camden on arbitrary, 155 note, p. 214. 
 judicial not arbitrary. 157 note, 
 matters of, 80 note. 
 See Appeal. 
 
 Dismissal : 
 
 of appeal, 80. 
 
 of bill, partial in case of multifariousness, 44. 
 
 before hearing, 68. 
 
 on rule further proceedings, 117. 
 
 security for costs, 118. 
 in cases of election, 120. 
 when without prejudice, 39 note, 68 note. 
 
 'Dissolution : 
 
 of injunction, 106. 
 See Corporation. 
 
 Distinction : 
 
 between law and equity, 137. 
 
INDEX. 393 
 
 Beferenoea are to Sections. 
 Bivine I/aw: 
 
 a source of primitive equity, 132. 
 Divorce : 
 
 whence derived, 8. 
 
 non-resident party, 29. 
 
 in rem as to status, 85. 
 
 effect of special circumstances in, 157. 
 
 recrimination, 256. 
 
 condonation, 272. 
 
 costs, 75 note. 
 
 Doctrines : 
 
 of equity, 159, 176. 
 classification, 177. 
 incorporated into la;w, 168. 
 
 Docaments : 
 
 how stated in bills, 55. 
 how on appeal, 79. 
 prodnction of, 70, 126. 
 
 Double Aspect: 
 
 bills with, 55. 
 
 Duress : 
 
 an excuse for laches, 264. 
 
 Dower : 
 
 not barred by limitations, 269. 
 
 :Gcclesiastical Chancellors : 5, 130, 155. 
 
 IScclesiastical Courts: 
 
 their operation specifically upon conscience, 6, 7. 
 
 influence upon chancery, 8. 
 
 based on civil law, 7. 
 
 antagonism with common law, 6, 10. 
 
 jurisdiction restricted, 6. 
 
 Bdward I : 
 
 discipline of judges, 153. 
 
 Ejectment : 
 
 fiction in, 145, 150. 
 abolished, 168. 
 specific restitution borrowed from equity, 311. 
 
 Bldon : 
 
 his view of equity, 144. 
 an obstacle to reform, 162. 
 influence upon equity, 14, 173. 
 
394 IITDEX. 
 
 References are to Sections. 
 i^lection : 
 
 of remedy, 120. 
 a doctrine, 159. 
 a defence, 160. 
 
 by accepting fruits, 251. 
 
 compared with acquiescence, 266, 272. 
 
 Elizabeth, Queen: 
 
 personal interest in the controversy between law and equity; 
 her inconsistent interference, 10. 
 
 i^llesmere : 
 
 one of the "founders of equity," 129. 
 
 cites Deuteronomy, 132. 
 
 his part in the controversy between law and equity, 10. 
 
 Earl of Oxford's case, 10, 221. 
 
 iJ^uabliug- Maxims : 
 
 affirmative principles, exciting to action, 187. 
 dynamics of equity, generally of use to plaintiffs, 192. 
 table of, 192. 
 discussed in detail, 192-219. 
 
 Enforcement of Contract : See Specific Performance. 
 
 of decree, see Execution. 
 Enrollment : 
 
 of decree, 76. 
 "Equal Equities, between, law will prevail:" 
 
 a restrictive maxim, 240. 
 
 notice, actual and constructive, and rules relating, 241. 
 
 bona fide purchaser, 241. 
 
 " Equal Equities, between, priority of time will prevail : " 
 
 a restrictive maxim, 242. 
 priorities, and rules relating, 243. 
 effect of registry laws, 242. 
 
 "Equality is Equity:" 
 an enabling maxim, 232. 
 applications, 233. 
 qualifications, 234. 
 a factor in law reform, 235. 
 
 Equitable Defence: 
 instances of, 160. 
 
 not recognized at common law, 146. 
 not within stat. West. II, 154. 
 now extended by statute to courts of law in Md., 164, 168. 
 
INDEX. 395 
 
 References are to Sections. 
 Equitable Mortgage: 197. 
 l^qoitable Rights : 
 
 injunction to enforce, 99. 
 ^qtiities : 
 
 what are; instances; what in a legal sense, 181. 
 
 how defeated, 181. 
 of redemption, 181, 196. 
 wife's equity, 181, 246. 
 
 l^qoity : 
 
 uniform meaning of in Bible use, 131. 
 various meanings of in Shakespeare, 131. 
 prcEtorian, 133, 134. 
 primitive, 135. 
 modern, 136. 
 
 distinction between law and, 137. 
 
 See Jttkidical Equity, Definition, Fusion, Jubisdiction, Juris- 
 diction OVER Parties, Jurisdiction over Subject Matter. 
 
 acts f» personam : 7, 8. 
 an enabling maxim, remedial, 221. 
 enables court to act beyond the iurisdiction, 222. 
 modified by legislation, 223. 
 See Injunction, Specific Performance. 
 
 acts specifically : 7, 8. 
 an enabling maxim, remedial, 224. 
 See Specific Performance, Accident, Mistake. 
 
 aids the vigilant : 260. 
 a restrictive maxim — anti-remedial, 236. 
 how grouped, and on what founded, 244. 
 See Acquiescence, Limitation, Laches. 
 
 foUovss law : 9, 157, 172. 
 a restrictive maxim, origin, 237. 
 historical and practical significance, 237. 
 applications, 238, 157, 189, 234. 
 qualifications, 140, 172, 239. 
 
 imputes an intention to fallfil an obligation . 21G. 
 
 See Intention. 
 prevents multiplicity of suits : 228. 
 
 See Multiplicity of Suits. 
 
 regards substance rather than form : 194. 
 See Substance. 
 
396 iij-DBX. 
 
 Beferenoes are to Sections. 
 Equity reg^atds that as done which ought to be done : 205. 
 an enabling maxim, 205. 
 probable origin, 215. 
 conversion, 206. 
 executory contracts, 207. 
 assignments, 208. 
 fraud, 209. 
 
 constructive trust, 210. 
 relation, 211. 
 capacities, 212. 
 other applications, 213. 
 qualification, 214. 
 
 who seeks must do : 
 a restrictive maxim, how grouped and on what based, 244. 
 wife's equity, usury, 246, 247. 
 tacking, consolidation, 248. 
 modern applications, 249-253. 
 when available to plaintifis, 254. 
 qualification, 255. 
 
 will not su£Per a wrong without a remedy : 193. 
 See Ubi jus, btc. 
 
 " clean hands," see that title, 256. 
 
 :Estate : 
 
 in suits for or against, administrator representative party, 30. 
 
 Bstoppel : 
 
 basis of; how applied; must be fraud or culpable negligence; as 
 
 to title, etc. ; must be knowledge of truth, 252. 
 how related to acquiescence, 266, 272. 
 
 l^thics : 
 
 why alloyed with expediency, 166, 183. 
 Evidence : 
 
 rules in general same as legal, 238. 
 wherein different, 70. 
 
 admission, express and implied; documentary; oral; affidavits; 
 officers; deposition, old mode of taking; present practice, 70. 
 
 when by examiner; when by commissioner; when by justice, 70. 
 
 when by auditor, 92. 
 
 exceptions to testimony; demurrer to evidence, 71. 
 
 death of witness, 71 note. 
 
 Examiner : 
 
 in England, 13. 
 in Maryland, 19. 
 See Evidence. 
 
INDEX. 397 
 
 References are to Sections. 
 Exceptions : 
 to answer, 66. 
 to sale, 91. 
 to account, 94. 
 to testimony, 71. 
 below, on appeal, 81. 
 to award, 127. 
 
 Bxcommunicatioti : 
 
 mode by which spiritual court operated upon conscience, 7. 
 
 ISxecution : 
 
 old and modern ijnethode; how obtained; within what time; 
 
 when in different counties, 83. 
 of personal decrees, 84. 
 of other decrees, 85. 
 
 Executor : 
 
 and trustee, when in same person, 212. 
 as representative party, 30. 
 in case of abatement, 46. 
 
 Executory Contract: 
 
 title passes in equity; property at vendee's risk, 207. 
 
 Exemption IVaws : 
 
 when evaded by attachment outside the state, such attachment 
 restrained by injunction, 222. 
 
 Exhibits : 
 
 to be filed with bill, 55, 56. 
 to be proved, 70. 
 
 Exhibiting Bill: 56. 
 
 Ex Parte: 
 
 proceeding after bill taken pro eonfeuo, 57. 
 
 afB davits, 70. 
 
 petitions, 88. 
 
 orders, 89. 
 
 proceeding before auditor, 92. 
 
 interlocutory injunction, 95. 
 
 receiver, 140. 
 
 Expectancy : 
 
 assignable in equity, 208. 
 
 Ex turpi causa: 
 
 instances, 258. 
 
398 INDEX. 
 
 Beferences are to Sections. 
 Expense : 
 account, 94. 
 
 notice to be given, 94 note, 
 when included as costs, 75. 
 
 Facts : 
 
 not conclusions of law, to be set forth in bill, 55. 
 trial of by jury on issues sent, 128. 
 
 Fair Play : 
 
 by what maxims especially enforced, 219. 
 
 Family Relations : 
 
 as a circumstance in laches, 264, p. 362. 
 
 Federal Courts: 
 
 distinction between law and equity, matter of substance in, 18. 
 system of equity uniform, no fusion recognized; limited juris- 
 diction of, etc., 18. 
 removal to from state court, 121. 
 
 Feudal System: 
 
 a factor in juridical equity, by checking the development of 
 law in that direction, 154, 151. 
 
 Fiction : 
 
 sinister influence of, on law, 150, 149, 155. 
 Fiduciary : 
 
 relations, burden of proof, 70, 161, 265. 
 as respects parties to suit, 30. 
 
 Fieri-facias : 
 
 in execution of money decree, 84. 
 File: 
 
 taking off, for irregularity, 116. 
 Filing : 
 
 bill and exhibits, 56. 
 
 exceptions below, to be available on appeal, 81. 
 
 Final Decree : 
 
 appeal from only, with certain exceptions, 77. 
 dismissal of appeal from other than, 8U. 
 
 Final Injunction: 
 
 what, 95. 
 
 See Injunction. 
 
 Final Process : See Execution. 
 
INDEX. 399 
 
 Beferenoes are to Sections. 
 Foreclosure : 
 
 parties to suit, 38 note. 
 
 trustees under railway mortgage, 30, 37 p. 52. 
 incumbrancers as parties, 37 p. 54. 
 receivers under railway mortgage, 111. 
 
 Forfeiture : 
 
 not enforced, 195. 
 
 relieved against— equity of redemption an example, 196. 
 redemption allowed of ground rent, if mortgage in substance, 
 so of deed or lease, 196. 
 
 Form : See Substance. 
 
 Formal Parties : 
 
 instances, 37. 
 
 Formalism : 
 
 of early common law, 149. 
 
 Franchise : 
 
 forfeiture of, 164 p.- 235. 
 
 Fraud : 
 
 certainty, when charged in bill, 55 note. 
 
 bill impeaching decree for, 76 p. 104. 
 
 must be, or imminent danger to warrant a receiver, 109. 
 
 a ground of jurisdiction, 159. 
 
 whence derived, 8. 
 
 acts prevented by, treated as done, 209. 
 
 of grantor estops him to deny his deed, 256. 
 
 of grantee estops him to claim reimbursement, 256. 
 
 upon court, to obtain receiver on false charges, 257. 
 
 not barred by time until discovered, 265. 
 
 a question of circumstances, 157 note. 
 
 as a defence, 160, 256. 
 
 an element in estoppel, 252. 
 
 Frauds, Statute of: 
 
 may be pleaded in bar, 63. 
 
 not allowed to obstruct specific performance of parol contract 
 
 respecting land, when partly performed, 172. 
 nor of a mistaken written contract as reformed by parol, 172. 
 
 Fraudulent Conveyance : 
 
 when impeached by creditors, 31. 
 
 not multifarious to join as defendant's distinct grantees in sev- 
 eral deeds, 42. 
 
400 INDEX. 
 
 Bef erences are to Sections- 
 Fund : 
 
 costs and fees out of, 75. 
 equitable asBignment of a, 208. 
 See Tetjbt Fund. 
 
 Fusion : 
 
 of law and equity, in England, 16. 
 
 in New York and other states, 137. 
 
 anticipated by More, 130 note, 
 by De Lolme, 173. 
 not recognized in federal courts, 18. 
 of equity and criminal justice, 163. 
 See JuEY Trial; Judicatube Acts. 
 
 Future Property : 
 
 assignable in equity, 208. 
 
 Gaius : 
 
 institutes discovered, 134. 
 
 Gambling Contracts: 
 
 relief against, 259. 
 
 General Rules of Court : 
 
 as to federal courts of equity, 18. 
 
 as to courts of equity in Maryland, 19. 
 
 Genesis of Equity : 
 
 obscure, 129. 
 
 Good Faith: 
 
 basis of equity, 131, 132, 165, 209, 219, 244, 256. 
 See Conscibnce; Justice; Equity; Fiction; Fbaud. 
 
 Government : 
 
 separation of branches a modern idea, 1. 
 
 Grace : 
 
 exercise of by chancellor, 4, 
 
 Grantor : 
 
 and grantee in fraudulent deed, estopped, 256. 
 
 Great Council : 
 
 germ of parliament, 1. 
 
 Ground Rent : 
 
 treated as mortgage, 196. 
 
IITDEX. 401 
 
 Refei«nces are to Sections. 
 
 Gnardian : 
 
 of infant, as party, 35. 
 ad Utmn, 35. 
 
 Hiibeas Corpus: 
 
 a specific remedy, 163. 
 
 in cases of contempt, 124 p. 161. 
 
 Habere Faci€is Possessionem: 
 
 a writ in execution of decree for possession of land, 84. 
 
 Hardship : 
 
 instances of, not relieved in equity, 140. 
 
 these instances a stumbling block to commentators, 172. 
 
 how accounted for, 237. 
 
 instances of, which were relieved, 145. 
 
 Hardwicke : 
 
 his liberal view of equity, 144, 172. 
 
 Heating: 
 
 how cases set for; how if set before proof taken; in what order 
 cases heard; method of hearing; reading of record in extenso 
 unnecessary, 72. 
 
 on bill and answer, effect of, 68. 
 
 on bill and answer, on motion to dissolve injunction, 105. 
 
 method of, on motion to dissolve, 105. 
 
 argument not essential to, 72. 
 
 in cases of contempt, 124. 
 
 Heir: 
 
 when necessary party, 37. 
 
 High Conrt of Chancery : See Cha.ncbby; Chancellok. 
 
 High Conrt of Justice : 
 
 law and equity now administered concurrently, the rules of 
 equity prevailing, 16. 
 
 Hnshand : 
 
 when joined as co-defendant, 36. 
 when formal party, 37 note, 
 and wife may sue each other, 36. 
 
 Htixley : 
 
 on Hebrew law, 131 note. 
 
 Ignorance of Rights : 
 
 an excuse for laches, 265. 
 26 
 
402 INDEX. 
 
 Beferences are to Sections. 
 Impertinence: 
 in pleading, 49. 
 in answer, exceptions for, 66. 
 
 Implied Promise : 
 
 an equitable conception, 213. 
 
 Implied Trust: 
 
 includes constructive and resulting, 159. 
 
 may be barred by limitations or laches, when express may 
 not, 261. 
 
 Improvements : 
 
 considered in cases of partition, 249. 
 in cases of cancellation, 250. 
 a circumstance in laches, 263. 
 
 Inadequacy : 
 
 of price, alone not sufficient to vacate sale, 90. 
 
 as distinguished from absence, of legal remedy, 230. 
 
 Incumbrancers : 
 
 proper, not necessary parties, 37. 
 
 in what sense they may be necessary parties, 38 note. 
 
 Infants : 
 
 jurisdiction over, 159. 
 
 as parties, how sue and defend, 35. 
 
 not chargeable with laches unless represented by trustee, 
 
 infancy of one co-tenant protects adult co-tenants, 264. 
 not liable to pro-eonfesto, 57. 
 
 Information : 
 
 what, and by whom, 52. 
 in cases of charities, 34. 
 
 Injunction : 
 
 defined— mandatory — prohibitory, 96. 
 
 interlocutory — perpetual — when and how granted — effect of in- 
 terlocutory—what the writ contains, 95. 
 compared with specific performance and mandamus, 97, 98. 
 
 to enforce equitable rights, 99. 
 
 to restrain legal proceedings, 100. 
 
 to stay mortgage sale, 100 note. 
 
 to prevent multiplicity of suits, 230. 
 
 to enforce legal rights, 101. 
 
 to restrain breach of contract, 102. 
 
 affidavit — ^bond — candid disclosure, 104, 257. 
 
 when may be granted, notwithstanding remedy in damages, 
 101 note. 
 
INDEX. 403 
 
 References are to Sections. 
 Injunction : — Continued. 
 
 from what time binding — what notice sufficient — penalty for 
 violation, 103. 
 
 motion to dissolve — hearing on — effect of answer, 105. 
 
 appeal from, order — effect of answer on appeal — effect of appeal 
 bond as supersedeas, 106, 78 note. 
 
 how far neoessity of, to stay legal proceedings, obviated by 
 equitable defence to action, 100. 
 
 I)Ower now conferred on courts of law, 107, 164. 
 
 operation beyond state, 222. 
 
 clean hands required — instances, 257. 
 
 in support of a legaljright, not barred by time short of statutory 
 period, 260. 
 
 historicaJ derivation, 8. 
 
 an illustration of the operation in personam, 8, 221. 
 
 subject of war between the courts, in which chancery pre- 
 vailed, 10. 
 
 Innocent Parties: 
 
 which of two must bear the loss caused by a defaulter, 180. 
 
 In, pari delicto : 
 
 relation of attorney and client no exception, 259. 
 
 Insolvency : 
 
 quasi equitable, 164. 
 
 maxim of equality applies to distribution, 233. 
 
 trustee in, as a representative party, 30 note 4. 
 
 takes subject to equities, 243. 
 a circumstance in laches, 264 p. 362. 
 
 Insolvent I^aws: 
 
 evasion of in other states enjoined, 222. 
 
 Instalment : 
 
 when default in non-payment not relieved, 195. 
 
 Insufficiency : 
 
 exceptions to answer for, 66. 
 
 must be specific — substantial, 66. 
 
 Insurance : 
 
 if policy reformed, full relief by decree for payment, 179. 
 insurer not liable if loss through fault of assured, 258. 
 
 Intent : 
 
 equity regards the, a mode of the enabling maxim substance rather 
 
 than form, 194. 
 See SoBSTANCB. 
 
404 INDEX, 
 
 References are to Sections. 
 Intention : 
 
 equity imputes an, to fulfill an obligation, an enabling maxim, 
 
 216-219. 
 how grouped, on what based, 194, 209. 
 performance and Batisfaction, 217. 
 resulting trust, 218. 
 other applications, 219. 
 in the case of a doubtful act, an honest, imputed, 219. 
 
 Interest : 
 
 trustees' liability for, 213. 
 
 claim for, against overpaid legatees, when barred by laches, 266. 
 
 equitable, may be taken by execution at law, 168. 
 
 See Pakties. 
 
 Interlineation : 
 
 amendment by, 113. 
 Interlocutory : 
 
 proceedings, 86. 
 
 injunction, 95. 
 
 decree, 73. 
 
 order, 89. 
 
 sale (before final decree), 90 note. 
 
 Interpleader : 
 
 bill of, 100, 230. 
 
 Interrogatories : 
 
 with bill, 52 note. 
 
 former and present practice in taking depositions, 70. 
 
 Intervention : 
 
 cases where omitted parties may intervene by petition, 45, 
 93,250. 
 
 where knowledge of suit affecting person's interest may con- 
 clude his right, if he has the opportunity to intervene, 45. 
 
 Investment : 
 
 what proper, 123. 
 
 securities to be produced for verification, 123. 
 
 Irregularity : . 
 
 in procedure — how availed of and waived, 116. 
 Issues : 
 
 to court of law — in general discretionary — cases in which a 
 matter of right — inconclusive effect of verdict — power to 
 summon jury in equity court— statute giving finality to ver- 
 dict unconstitutional, 128. 
 
 in equity procedure, why no formal separation of fact from 
 law, 22. 
 
INDEX. 405 
 
 References are to Sections. 
 
 James I: 
 
 his decisive interference in the war of courts in favor of 
 equity, 10. 
 
 Jamdyce vs. Jarndyce : 
 
 referred to in connection with abuses of chancery, 14. 
 
 Joint Tenancy: 
 
 common law presumption in favor of, and of jus aoerescendi, 
 
 reversed by statute, 168. 
 one of the law reforms referred to the maxim of "equality," 235. 
 
 Judges : 
 
 disability of, ground for removal of suit, 121. 
 
 exercising equitjr powers, "chancellors," 156 note. 
 
 functions of, anciently by king in person, 1. 
 
 arbitrary discretion of, denounced by Lord Camden and Pas- 
 cal, 155 note p. 214. 
 
 hung by Alfred; punished by Henry II and Edward 1, 153. 
 
 obstinate conservatism of early English, censured by Sir Thomas 
 More, 130 note, 153. 
 
 persistent conservatism of modern, censured by Chief Justice 
 Taney, 149. 
 
 rebuked by Elizabeth, for their opposition to chancery, and for 
 the same reason humbled in the person of Coke by James 1, 10. 
 
 See High Coukt of Justice. Courts. 
 
 Judgment : 
 
 compared with decree, 73, 145. 
 
 injunction to restrain, resisted by judges, affirmed by personal 
 
 interference of James I, 10. 
 outside the state, when restrained, 100, 222. 
 obtained by fraud, no action on, 258. 
 use of the word for " opinion," 73 note, 
 general lien of, inferior to specific lien, .243, 197. 
 motion to strike out, quasi equitable, 164. 
 
 Judicature Acts : 
 
 of Parliament, a radical departure, in imitation of American 
 reforms, 16, 137. 
 
 Judicial Notice : « 
 
 same matters as at law, 70. 
 
 Julius Caesar: 
 
 incident illustrating ne exeat, 125 note. 
 
 Juridical Equity : 
 
 distinguished from natural equity, 142, 143, 165, 166. 
 includes jurisprudence and procedure, 129 note, 
 origin obscure, 129, 130, 163. 
 
406 INDEX. 
 
 Beferences are to Sections. 
 Juridical Bquity :— Continued, 
 founders Tariously assigned, 129. 
 ecclesiastical chancellors, 8, 129, 155. 
 sources of primitive, 130. 
 divine law, 8, 132. 
 Boman law, 6, 133. 
 a hybrid between spiritual and temporal courts, 9. 
 defined, 143. See Definition. 
 ancient and modern conceptions, 155. 
 modern, the true subject of inquiry, 136. 
 principles fixed, 144. 
 limits fixed, 158. 
 
 but influenced by special circumstances, 157, 185. 
 and capable of expansion, 136, 155, 171, 193. 
 basis (substantive), conscience, or sense of justice and good 
 faith, 131, 132, 143, 155, 165, 209. 
 disciplined by experience, 155. 
 how far controlled by public policy, 166. 
 by precedent, 158, 171, 193. 
 by positive law, 172, 238. 
 basis (adjective), absence or inadequacy of legal remedy, 5, 99, 
 101, 145, 158, 167, 171, 179. See Peocbdurb at Law. 
 (the causes whereof are accidents of English history. See 
 Common Law.) 
 in connection with a more accommodating procedure, 8, 23, 137. 
 due (1) to absence of jury and of scientific pleading to 
 issue, 22, 23, 137. See Jury Trial; Special 
 Pleading. 
 
 (2) more comprehensive arrangements as to par- 
 
 ties, 22, 23. See Parties. 
 
 (3) facilities for specific relief, 7, 8, 224. 
 
 (4) personal coercion of defendant, 7, 8, 221. 
 See Pboceuure in Equity. 
 
 range of jurisdiction, 159. See Jurisdiction. 
 
 limited to property rights, 161, 223. 
 
 limited to civil cases, 161. 
 compared with criminal justice, 162. 163. 
 reaction on common law, 167, 164. 
 compared with existing law, 170. 
 
 See Fusion. 
 analogy with Roman jurisprudence, 9, 173. 
 contrast with, 154. 
 not an exact science, 183. 
 a system of moral forces, blending expediency with ethics, 
 
 166, 183, 187. 
 as such, has its dynamics and statics in its enabling and re- 
 strictive maxims, 187. (See these titles.) 
 its adaptability and progress! veness, 136, 155, 171. 
 
 modern instances of, 193. 
 opportunities for future development, 193, 209, 216, 219. 
 
IKDBX. 407 
 
 Beferenoes are to Seotions. 
 Jurisdiction Over Parties : See Parties. 
 
 plenary, in personam; or statutory, in rem; how acquired, 29, 48. 
 no court can adjudicate directly upon a person's right without 
 
 having him before it, either actually or constructively, 24. 
 coram non judiee, decree void and maybe attacked collateraly, 
 
 179, 25, 39. 
 non-resident or unknown, how made parties, 29. 
 
 Jurisdiction Over Subject-matter : See Jukisdiction. 
 
 defined, in general; equitable defined; erroneous assumption of 
 legal jurisdiction, decree not open to collateral attack; how 
 the objection to be taken, 179. 
 
 Jurisdiction : 
 
 of chancellor, ordinary, 3. 
 
 extraordinary, 5. 
 of ecclesiastical courts, 6. 
 appellate, of house of lords, 12. 
 of nigh court of justice,_16. 
 of federal courts of equity, 18. 
 of state courts of equity, 17. 
 of Maryland courts of equity, 19. 
 demurrer to, 59. 
 plea to, 62. 
 
 making parties beyond the, 29, 223. 
 taking testimony " " 70. 
 action of court " " 222. 
 . gua»i equitable, 164. 
 of equity, limited how, 158. 
 
 heads of, enumerated; synthetic view of, 159. 
 
 enlarged by statute, 159 note. 
 
 pecuniary limit, 19. 
 
 division into "exclusive," "concurrent" and "auxiliary" 
 discussed; also division between "rights" and "reme- 
 dies," 177. 
 
 auxiliary, obsolescent, 53, 159. 
 
 Jurisdictional Rules : 
 
 no jurisdiction where the remedy at law plain, adequate and 
 
 complete, 5, 18, 145, 158, 160, 171, 179. 
 eauitv iurisdiction not ousted by subsequent expansion of lega 
 remedy, 145, 179. 
 maintained for complete relief, 157, 179. 
 
 Jury Trial : 
 
 feature especially differentiating law procedure from equity, 
 
 22, 23. 
 what ita absence in equity accounts for, 22. 
 
408 IKDEX. 
 
 Beferences are to Sections. 
 Jury Trial :— Continued. 
 
 obstacle to complete fusion in civil cases — not likely to be abol- 
 ished, 137. 
 
 circumstances which lessen the difficulty in criminal cases, 163. 
 
 real value of common law, 152. 
 
 local provision for, in equity courts, 21 note, 128 note p. 170. 
 See Issues. 
 
 in common-law cases a constitutional right, 18. 
 
 attachment to of colonists, 17. 
 
 Jfus Prcetorium: 
 
 defined, 134. 
 Justice : 
 
 defined; distinguished from law; compared with juridical 
 equity, 165. 
 
 of which, principles of are the basis, 143. 
 relations with jus gentium, 154. 
 relations with public policy, 166. 
 not abstract, but practical, aimed at by equity, 166. 
 
 Justice of the Peace : 
 
 quasi equitable jurisdiction, 164. 
 
 testimony taken before, 70 note p. 91, 105 note. 
 
 Kent, Chancellor : 
 
 his views of equity, 144 note, 157. 
 his contribution to its study, 17. 
 
 Kings : 
 
 as judges, 1. 
 
 Knowledg-e : 
 
 of truth necessary by party estopped, 252. 
 See Iqnokancb. 
 
 I/aches : 
 
 as a defence, 160. 
 
 referred to the restrictive maxim,— "equity aids the vieilant," 
 
 260. 
 delay in commencing suit, or in prosecuting suit commenced, 
 
 a typical equitable doctrine; special circumstances control ap- 
 plication, 262. 
 
 affirmative circumstances, 263. 
 
 negative circumstances, 264. 
 
 ignorance of rights; burden of proof; constructive notice; c. q. t. 
 entitled to repose confidence in trustee, 265. 
 
IKDEX. 409 
 
 References are to Sections. 
 I/aches :— Contiuued. 
 
 elements; acquiescence; change of situation; applications; er- 
 roneous distribution by trustee; money paid by mistake of 
 law; 267 p. 367, 
 
 available on demurrer; excuses for delay to be distinctly alleged 
 in bill; binds successors in interest; combines with other de- 
 fences; 268. 
 
 state or government not barred; dower; infringement; public 
 nuisance; 269. 
 
 negligent omissions; contributory negligence; waiver, etc.; 271. 
 
 compared with acquiescence, estoppel, election, waiver, con- 
 firmation, etc., ^2. 
 
 IVand: 
 
 parol contract concerning enforced over statute of frauds, 172. 
 executory contract to convey, 207. 
 conversion of into money and viee versa, 206. 
 power to purchase, how may be executed, 199. 
 a purchase of, not warranted by power to invest in landed se- 
 curities, 199. 
 
 I^and Office: 
 
 commissioner, quagi equitable jurisdiction of, 236. 
 
 Z^apse of Time: 
 
 generally, 270. 
 
 See Laches; Limitations. 
 
 I/aw: 
 
 defined, 165. 
 
 in a general sense includes equity, 140. 
 
 and equity, distinction between, said to be accidental — of his- 
 tory and procedure, 137. 
 otherwise in U. S. courts, 18. 
 
 positive provisions of, how far binding equity, 172, 238. 
 mistakfe of, no recovery, 267 p. 367. 
 conclusions of, in bill, 55. 
 See Common Law. 
 
 I^aw Reforms: 
 
 referred to reaction of equity, 167-169. 
 
 referred to particular enabling maxims as follows : 
 
 substance rather than form, 204, 169. 
 
 multiplicity prevented, 16, 137, 231. 
 
 equality, 235. 
 
 J^ease : 
 
 treated as a security, 196. 
 
 or as a conditional sale, 203. 
 
410 INDEX. 
 
 Befereuces are to Sections. 
 
 I^ease :— Continued. 
 
 covenants in enforced, 102. 
 
 restrictive covenants, although not technically running with 
 the land, may be enforced, 200. 
 
 I^ectures : 
 
 reports of enjoined, 99 note. 
 
 I<egacies : 
 
 abatement of pro rata, 233. 
 satisfaction of, 217, 189. 
 
 I^egatees: 
 
 as quaK, parties, 30. 
 
 Lex sequitur cequitatem: 239. 
 
 Wbel : 
 
 of civilians and canonists, origin of bill, 21. 
 injunction to restrain, 161 note. 
 
 I/ieu: 
 
 equitable, against whom enforced, 197. 
 
 not against 6o7M{ ^« purchaser, 241. 
 
 specific preferred to general, 243. 
 
 of decree, how extended to other counties, 84 note. 
 
 I^ife Estate: 
 
 prevents limitations, 25, 264. 
 I^ife Tenants: 
 
 as representative parties, 30 note. 
 
 If imitations : 
 
 statute applied upon the maxim — equity follows law — to cases 
 of concurrent jurisdiction; applied, if at all, by analogy, to 
 cases of exclusive jurisdiction; no bar to express trust; a per- 
 sonal privilege; available on demurrer; 261. 
 
 as bar to rents and profits, 254. 
 
 not bar to dower, 269. 
 
 I/iqaldated Damages: 
 
 distinguished from penalty; enforceable if intention clear; 195. 
 Lis Pendens: 
 how pleaded, 62. 
 
 I^itigation : 
 
 restraining vexatious, 100, 230. 
 
INDEX. 411 
 
 Beferences are to Sections. 
 I^iuiatics : 
 
 how sue and defend; writ de lunatieo; 35. 
 laying By: 
 
 a circumstance in laches, 263. 
 I^yndhurst, I,ord: 
 
 anecdote illustrating legal chicane, 148 note. 
 Magna Charta: 
 
 and Court of Common Pleas, 2. 
 Managing Receivers: 
 
 why appointed. 111. 
 Mandamus : 
 
 a legal remedy, compared with injunction, 98. 
 
 Mandate : Mandatory Injunction : 
 
 now on same footing with prohibitory, 96. 
 Marriage : 
 
 legal fiction of unity of person, 145 note. 
 
 void, relieved from, although party aware of invalidity, 259. 
 
 Married Woman: 
 
 how sues and defends, 36, 51. 
 
 estate of, subject of equity jurisdiction, 159. 
 
 bound by estoppel, 252. 
 
 bound by laches as to separate estate, 264. 
 
 when represented by trustee, 261. 
 equity to settlement, 181, 246. 
 lien upon separate estate, 197. 
 legal capacity enlarged by legislation, 168. 
 
 Marshalling : 
 
 referred to head of account, 159. 
 referred to maxim of equality, 233. 
 
 Maryland : 
 
 courts of equity in, 19. 
 
 terms of, 87 note, 
 legislation enlarging equity jurisdiction, 159 note p. 226. 
 law reforms in, 168. 
 
 referred to maxim "substance," 204. 
 "multiplicity," 231. 
 tendency towards fusion in, 137. 
 
 Master in Chancery: 
 originally, 13. 
 matters referred to, 92 note. 
 
412 INDEX. 
 
 Beferenoes are to Seotlons. 
 Master of the Rolls : 
 
 originally chief clerk, 13. 
 functions enlarged, 13, 15. 
 
 Maxims : 
 
 in general, 174, 175, 182. 
 discussed, 182-191. 
 approximative, 183. 
 not self-evident, 184. 
 practical use, 185. 
 classification, 186. 
 enabling and restrictive, 187. 
 primary and remedial, l88. 
 combined operation, 189. 
 application, 190. 
 importance, 191. 
 Enabling, in general, 192. 
 
 i. uMjus ibi remedium, 193. 
 ii. Substance rather than form, 194-204 
 iii. Equity regards that as done which ought to be done, 
 
 205-215. 
 iv. Imputes an intention to fulfill an obligation, 216-219. 
 V. Acta in'personam, 220-223. 
 vi. Acts specifically, 224-227. 
 vii. Prevents multiplicity, 228-231. 
 viii. Equality is equity, 232-235. 
 Restrictive, in genersil, 236. 
 
 i. Equity follows laW; 237-239. 
 ii. Between equal equities, law, prevails, 240-241. 
 iii. Between equal equities, priority of time prevails, 242- 
 
 243. 
 iv. Who seeks, must do, equity, 244-255. 
 V. must come with clean hands, 256-259. 
 
 vi. Equity aids the vigilant, 260-272. 
 
 Mechanics' I^ieii: 
 
 claimants as parties, 41 note. 
 
 Meesou and Welsby: 
 
 law reports of, 169. 
 Merger : 
 
 a question of intent, 204. 
 reform in law of; 168. 
 
 Methods : 
 
 of law and equity contrasted, 155, 221, 224. 
 
 Miscellaneous Rules: 180. 
 
ISDEX. 413 
 
 Keferences are to Sections. 
 Misled Party : 
 
 equity of, 243. 
 Misjoinder : 
 
 of plaintiffs, 41. 
 
 of defendants, 42. 
 
 of claims, 43. 
 
 how availed of and remedied, 39. 
 
 Mistake : 
 
 a head of equity jurisdiction, 159. 
 origin, 8. 
 
 of expression — refiA-mation, 227. 
 of subject matter — cancellation, 227. 
 injunction, when necessary, 227. 
 in policy of insurance, 179. 
 clerical, in decree, 76. 
 
 in legal proceeding, 204. 
 of law, money paid by, 266. 
 when set up as a defence, 254. 
 
 Modem B<ltiity : 
 
 the true subject of inquiry, 136. 
 
 More, Chancellor : 
 
 efforts to liberalize common law, 130 note, 
 censures the judges, 153. 
 
 Mortgagee : 
 
 how regarded at law and in equity, 196. 
 
 equity of redemption, 196. 
 
 a question of intent not form, 196. 
 
 dis^ise as deed, lease, ground rent, or bailment, 196, 203. 
 
 equitable, against whom enforced, 197. 
 
 tacking — consolidation, 248. 
 
 mistake in, as a defence to foreclosure suit, 264. 
 
 and conditional sale, 196. 
 
 sales under, 90. 
 
 injunction to stay, 100 note, 
 lien of, deferred to receiver's certificates, 112, 253. 
 in pursuance of fraudulent contracts, 250. 
 release or assignment, 196 note. 
 
 Mortgagees : 
 
 when proper parties, 37, 38 note. 
 
 when may be joined, 41. 
 
 represented by trustees of railway mortgage, 30, 112. 
 
 may pursue double remedy, 120. 
 
 not substantial owners even at law, 196. 
 
 judgment against not a lien, 196. 
 
414 INDEX. 
 
 Beferences are to Sections. 
 Motions : 
 
 interlocutory, how and when, 87. 
 
 to dissolve injunction, 105. 
 
 in cases at law, qiiasi equitable, 164. 
 
 Multifariousness : 
 of bill, 40. 
 a limitation upon the maxim that prevents multiplicity of 
 
 suits, 40. 
 controlled by special circumstances, 40. 
 no fixed rule, 40. 
 misjoinder of plaintifEs, 41. 
 defendants, 42. 
 claims, 43. 
 how remedied, 44. 
 
 Multiplicity of Suits : 
 
 equity prevents, 228. 
 
 an enabling maxim, remedial, 228-231. 
 
 influence upon procedure, 229. 
 
 rule as to parties, 23, 24, 229. 
 
 doctrine of representation, 30, 229. 
 
 statutory doctrine of constructive parties. 29, 229. 
 
 election of remedies, 120, 229. 
 
 consolidation of cases, 119, 229. 
 
 splitting causes of action, 229. 
 
 plea of pending suit, 62, 229. 
 
 set-off; cross bill, 229. 
 
 jurisdictional rule as to complete relief, 229. 
 
 discovery; account; contribution, 230. 
 
 vexatious litigation, 230. 
 
 interpleader; peace; quia timet, 230. 
 
 numerous or continued trespasses or nuisances, 230. 
 
 law reforms referred to, 231. 
 
 American code procedure, 231. 
 
 English Judicature Act, 231. 
 
 Maryland legislation, 231. 
 
 Murder : 
 
 of testator by legatee, 258. 
 
 of assured by policy holder, 258. 
 
 of husband by dowress, 258 note. 
 
 Name: 
 
 petition to change, 88 note, 159 note, p. 227. 
 
 Natural Justice : See Justice. 
 
 Necessary Parties: 
 
 described, distinguished and illustrated, 31-38. 
 See Parties. 
 
INDEX. 415 
 
 References are to Sections. 
 Ne Eaeeat: 
 writ of, 125. 
 Ceesar's case, 125 note, 
 an open question, 125. 
 
 not now available to enforce money decree, 125. 
 cases to which the writ would be confined, if granted, 125. 
 
 Negative Specific Enforcement : 
 
 of contract, 102, 193, 225. 
 
 Negotiable Instxnments : 
 
 lost, relief what, 226. 
 
 may be sued at law, 168. 
 restrained by injunction; 101. 
 
 Negligence : 
 
 in case of two innocent parties, 180. 
 See Laches. 
 
 New England : 
 
 early opposition to equity, 17. 
 New Jersey : 
 
 fusion prohibited by constitution, 137. 
 New Parties : 
 
 in cases of death or marriage, 46. 
 
 by amendment of bill, 114. 
 
 when intervention of allowed, 45. 
 
 New Trial: 
 
 at law, substitute for injunction, 164. 
 motion for, gvasi equitable, 164. 
 
 New York : 
 
 Code of procedure, 17 note, 137. 
 Next Friend: 
 
 for whom appears, 35. 
 
 authority filed with bill, 35 note. 
 
 Next of Kin : 
 
 by whom represented as parties, 30. 
 Nisi: 
 
 order, described, 89. 
 ratification sale, 91. 
 
 account, 94 note. 
 
 Xon Compos: 
 
 who appears for, 35. 
 
416 IlfDBX. 
 
 Beferences are to Sections. 
 
 Non-residents : 
 
 conBtructive parties, 29, 223. 
 publication piocese, 29, 48. 
 how jurisdiction over limited, 29. 
 security for costs, 118. 
 
 No Right Withont Remedy : 193. See Ubi Jus, etc. 
 
 Note: 
 
 negotiation of, restrained, 101. 
 
 Notice : 
 
 and opportunity to be heard, 24. See Jukisdiction op Pakties. 
 by subpoena, 48. 
 
 by publication against non-resident and unknown defend- 
 ants, 29. 
 of interlocutory order, 89. 
 of injunction, 103. 
 of motion to dissolve, 105. 
 in case of receiver, 109. 
 of rule further proceedings, 117. 
 of rule security for costs, il8. 
 of consolidation, 119. 
 of motion election of remedy, 120. 
 
 payment into court, 122. 
 in case of contempt, 124 p. 160. 
 by arbitrators, 127. 
 of sale, by advertisement, 90. 
 by auditor, of meeting and adjournment, 92. 
 to file claims, 93. 
 of auditor's account, 94 note, 
 object of pleading, 20, 49. 
 doctrine of, 176, 240. 
 
 referred to restrictive maxim "equal equities," 176, 240. 
 
 as a defence, 160. 
 rules as to, 178, 241, 265. 
 constructive, 241, 265. 
 bonajide purchaser without, 160, 197, 241. 
 
 Nottingham, I/ord Chancellor : 
 
 styled the "father of equity," 129. 
 Nuisance : 
 
 restrained by injunction, 101. 
 when the, is one of repetition or continuance, 230. 
 not restrained, when plaintiff committing same, 257. 
 public, no prescription for, 269. 
 
 Oath : See Affidavit. 
 
INDEX. 417 
 
 Beferenoes are to Sections. 
 Objections : See Exceptions. 
 Obligation : 
 
 intention imputed to fulfill, 216-219. 
 
 See Intention. 
 
 Office: 
 
 accepted under questionable appointment, 261. 
 
 Officers : 
 
 of court, early, 13. 
 modern, 19. 
 receivers as, 108. 
 contempt by, 1^. 
 of corporation, as co-defendants, 33. 
 
 of municipal corporation, illegal commissions to, 259 note, p. 
 352. 
 
 Old Testament : 
 equity in, 131. 
 Huxley on lav in, 131 note, 
 cited as authority by early chancellors, 132. 
 
 Open Court : 
 
 oral agreement in, 70. 
 motions in, 87. 
 
 Opinion : 
 
 of court below, 73 note, 
 of court of appeals, 82. 
 "judgment" used for, 73 note. 
 
 Oral Testimony : 
 
 includes deposition, 70. 
 taken in court, 70 note. 
 
 Order: 
 
 of publication, 29. 
 decretal, 74. 
 interlocutory, 89. 
 
 appealable, 77. 
 nune pro tune, 157 p. 221. 
 ex parte, 89. 
 nisi, 89. 
 service of, 89. 
 enforcement of, 83. 
 See Alimony; Exbcotion; Injunction; Payment into Coubt. 
 
 Ordinary Jurisdiction : See Chancbllok. 
 
 Origin of Equity: 3-10, 129. 
 27 
 
418 INDEX. 
 
 References are to SectLons. 
 Original Bill : 53. 
 
 Orphans' Court: 
 
 quad equitable jurisdiction, 164. 
 
 Owelty : 
 
 ot partition, 85. 
 
 Pandects : 
 
 discovered, 133, 134 note, 
 definition oijm prwtoHum in, 134. 
 
 Papers : 
 
 production of books and, 126. 
 
 Papinian : 
 
 a Boman judge in Britain, 134. 
 
 Parent : 
 
 and child, advancement, 189, 217. 
 satisfaction, 217. 
 relations between, in laches, 264 note. 
 
 Parliament : 
 
 early form of bill in, compared with bill in equity, 52. 
 
 Pamynge : 
 
 first lawyer chancellor, 129. 
 
 Parties : 
 
 comprehensive requirements as to, a distinguishing feature, 22, 
 
 23, 144. 
 . at law, how, and why, limited, 23. 
 in equity, no such restriction, 23. 
 general rule as to, 24. 
 
 all persons legally or beneficially interested, 24. 
 rationale of rule as to, 24. 
 
 natural justice, notice, 24. 
 
 conventional justice, to avoid multiplicity of suits, 23, 24. 
 application of rule inflexible so far as based on natural jus- 
 tice, 24. 
 
 its violation in that respect jurisdictional, 24. 
 
 flexible so far as based on conventional justice, 24. 
 
 controlled by exceptions, 24, 26. 
 difficulty in application of rule as to, 25, 37 note. 
 
 shifting element of convenience, 24, 25. 
 importance of correct application, 26. • 
 
 to subsequent purchasers or incumbrancers, 25. 
 
 sale under decree passes only title of, 25. 
 
INDEX. 419 
 
 Beferenoes are to Sections. 
 
 Parties :— Continued. 
 
 exceptions to rule as to, 26. 
 
 not within the jurisdiction, 26. 
 
 importance of this exception in federal courts, 26. 
 
 why of minor importance in state courts, 26. 
 
 ■ persons within the doctrine of representation, 26, 27, 30, 31. 
 
 rule as to, and exceptions, consolidated, 27. 
 
 either actually, constructively, or by representation, £7. 
 classification of, 27, 28. 
 actual, who, and how made, 29, 48. 
 constructive, by publication, 29, 48. 
 not bound in personam, 29. 
 statute to be strictly followed, 29. 
 must be in fact non-residents, 29.' 
 to make, object of suit must be stated, 29. 
 when notice insufiScient, 29. 
 in divorce cases, 29. 
 quasi, by representation, 30, 31. 
 
 only for certain purposes of syiit, 30. 
 bound by decree only to qualified extent, 31. 
 special relations required to make, 30. 
 represented by administrator, etc., 30. 
 by trustees, in some cases, 30. 
 by life tenants, etc., 30 note, 
 by one or more of a numerous class, 31. 
 creditors' bills, 31. 
 taxpayers' bills, 31. 
 voluntary societies, 31. 
 corporation cases, 31. 
 liability of stockholders, 31. 
 as plaintiff and defendant, 32. 
 
 same person cannot be both, 32. 
 may be made defendants if refuse to join as plaintiffs, 32. 
 plaintiffs, who may be joined as, 32, 41. 
 must have an interest, 32. 
 interest of, must be shown in the bill, 32. 
 interests of, must not conflict, 32. 
 
 but may be distinct, 41. 
 decree as between, 32. 
 defendants, who may be joined as, 32, 42. 
 misjoinder of, 42. 
 corporation officers as, 33. 
 non-resident and unknown, 29. 
 evading or absconding, 48, 125. 
 in different counties, 90 note, 
 in case of abatement, 46. 
 who may intervene as, 45. 
 formal or nominal, 37. 
 
420 INDEX. 
 
 Befereaces are to Sections. 
 Parties :— Continued. 
 
 proper, who are, in general, 37. 
 
 dlBtinction between, and necessary, 37 note, 38. 
 necessary, Bometimes used for "indispensable" and sometimes 
 
 for "proper," 37 note, 
 indispensable, important in federal practice, 37, 38. 
 
 instances under these heads, 37, 38. 
 objection for want of, how taken, 39. 
 
 by demurrer, 59. 
 
 by pl«a, 62. 
 
 by answer, 114. 
 
 how remedied, 39, 113, 114. 
 objection for multifariousness as to, 39, 40, 41, 44. 
 
 by misjoinder or plaintiffs, 41. 
 defendants, 42. 
 
 its effect and how remedied, 39, 44. 
 new, in cases of abatement, 46. 
 intervention, 45. 
 
 by amendment, 39, 113, 114. 
 
 by estoppel, participation, 45. 
 in suit for accounting, 42. 
 
 cancellation, 32, 42, 37 p. 51. 
 
 contribution, 37 p. ^1, 41 note, 233. 
 
 construction of will, 37 p. 52. 
 
 creditors', to vacate deeds, 37 p. 51, 42. 
 
 foreclosure, 37 p. 54. 
 .partition, 42, 43 note, 37 pp. 52, 53. 
 
 redemption, 41. 
 
 Bale, 25, 37 pp. 52, 53. 
 
 specific performance, 37 p. 52, 42. 
 
 trust, 30, 37 p. 52, 198. 
 
 vendor's lien, 37 p. 55. 
 administrators and executors, 30, 37 p. 52. , 
 assignees, 37 pp. 53, 55. 
 assignees pendente lite, 45, 47. 
 corporations, 33, 37 p. 52, 202. 
 creditors, 30, 31, 45 note, 49, 93, 211. 
 devisees, 37 p. 52. 
 heirs, 37 p. 52. 
 infants, 35. 
 
 incumbrancers, 37 p. 54, 41. 
 legatees, 30, 23 note, 
 married women, 36. 
 members of association, 30, 37 p. 53. 
 next friend, 35. , 
 
 next kin, 30. 
 non compos, 35. 
 obligees, 34, 90. 
 
INDEX. 421 
 
 Beferences are to Sections. 
 
 Parties :— Continued. 
 
 partners, 42, 201. 
 remaindermen, 23, 30, 30 note, 
 state, 34, 37 p. 54, 269. 
 stockholders. 31, 42, 45, 257. 
 sureties, 37 p. 51, 41 note, 42, 204. 
 syndicate, 37 p. 53. 
 taxpayers, 30, 101. 
 tenant, life, 23, 30, 30 note. 
 
 occupying, 37. 
 
 in common, 37 p. 53. 
 trustee and c. q. t., 'SQ, 37 p. 32. 
 
 Partition : 
 
 as a subject of equity jurisdiction. 159. 
 suit, who to be parties in, 37 p. 52, 53. 
 
 when multifarious, 42. 
 
 when not, 43 note. 
 
 decree in, 85. 
 
 owelty of, 83. 
 
 plaintiff must do equity by allowance for mortgage paid or 
 improvements made by a defendant, 249. 
 
 PartnersHip : 
 
 as a subject of equity jurisdiction, 159. 
 held such, irrespective of form, 201. 
 real estate of, how treated, 201. 
 mortgage to firm, as such, 201. 
 debt in form, treated as individual debt in fact, 201. 
 receivers, 109. 
 
 exclusion of one partner by another, 109. 
 bill for account of, 233. 
 when multifarious, 42. 
 
 Payment Into Court : 
 when ordered, 122. 
 how enforced, 122. 
 
 Penalty : 
 
 as a subject of relief in equity, 195. 
 liquidated damage distinguished, 195. 
 default in paying instalment, 193. 
 
 Pennsylvania : 
 
 earlj opposition to equity in, 17. 
 
 equitable relief under common law forms, 17. 
 
4^3 INDEX. 
 
 Beferences are to Sections. 
 
 Performaace : 
 
 doctrine of minor importance in this country, 217. 
 part, effect on statute of frauds, 172. 
 plaintiff's, essential to specific performance, 225. 
 compensation in lieu of, 250. 
 
 Perpetuating Testimony : 
 
 bills for, how superseded in practice, 53, 159 p. 226. 
 
 Personal Services : 
 
 when contract for enforced by injunction, 102. 
 
 Petitions : 
 
 in general, S2, 88. 
 
 "cause," 88. 
 
 exparte, 88 note. 
 
 form of, 54, 88. 
 
 for amendment, 114 p. 148. 
 
 for rehearing, 76. 
 
 to vacate enrollment, 76. 
 
 for execution, 83. 
 
 of intervention, 45, 93. 
 
 proceedings on, 89. 
 
 by creditors, 45 note, 93. 
 
 Plea: 
 
 whence derived, 21. 
 
 general remarks on, 9, 49, 50, 61. . 
 
 of waning importance, 61. 
 
 any defence to merits can now be made in answer, 65. 
 
 no general issue, in equity, 61. 
 
 defined, 61. 
 
 affirmative, or pure, 61. 
 
 negative, 61. 
 
 anomalous, supported by answer, 61. 
 
 when answer unnecessary, 61 note, 
 in abatement, 62. 
 
 to the jurisdiction; person; bill, 62. 
 in bar, 63. 
 
 upon statute; record; matter in pais, 63. 
 proceedings upon; no demurrer to; set for argument, or met by 
 
 replication; how if allowed; if overruled. Si. 
 points in common with demurrer, 60. 
 object and effect; may be filed with answer; to whole bill or 
 
 part; affidavit; set for argument; if allowed, plaintiff may 
 
 amend in discretion of court; if overruled, answer required, 
 
 and in default of answer, pro confeiso, 60. 
 affidavit, of truth, 60 note. 
 
INDEX. 423 
 
 References are to SeotioiiB. 
 Plea : — Continued. 
 
 of limitations, 63, 261. 
 
 in creditor's bill. 211. 
 
 to rents and profits, 254. 
 constructive admissions by, 70. 
 uncertainty in, 49. 
 
 Pleading : 
 
 in equity, in general, 49. 
 
 substance regarded rather than form; instances, 49. 
 
 when technicality observed; instances, 49. 
 
 object; requisites; .uncertainty; impertinence and scandal; 
 how these defects availed of, 49. 
 
 formal requisites; paragraphs; affidavit, etc., 49. 
 
 instruments of in general; bill, answer, replication, plea, de- 
 murrer, 50. 
 
 formal, how dispensed with, special case, 51. 
 
 compared with common law, 22. 
 criminal law, 163. 
 
 Possession : 
 
 requisite to remove cloud, 100. 
 delivery of, how enforced,-84. 
 
 Possibilities : 
 
 assignment of, 208. 
 
 Powers : 
 
 not defeated by form; instances, 199. 
 when aided, 199. 
 
 Practice : 
 
 in equity, in general, 20, 21, 72-128. 
 
 in particSar, (see the several titles). 
 
 Prwtor: 
 
 as judge in Britain, 134, 152. 
 Boman law, how improved by, 154. 
 edicts consolidated, 173.^ 
 jurisdiction of, how limited, 237. 
 See Jus Pkjetobium. 
 
 Prayers : 
 
 at law, for instructions, 22. 
 
 Precedent : 
 
 at law, stubborn adhesion to, 142, 153, 154. 
 primitive equity untrammelled by, 142, 155. 
 modern equity, how far controlled by, 73, 143, 158, 193. 
 in equity procedure, 21. 
 
 jurisprudence, 155, 155 note, 158, 171, 172. 
 
434 IKDEX. 
 
 Beferences are to Sections. 
 Primitive Equity : 
 defined, 135. 
 
 distinguished from modern, 130, 136, 144, 155. 
 its founders, 129. 
 its sources, 8, 9, 130, 132, 133. 
 
 Priority: 
 
 doctrine of, 242, 243. 
 rules of; instances, 243. 
 
 Privileged Communication: 65. 
 
 Procedure ; 
 
 in general, 20. 
 
 main distinction between law and equity, 137. 
 
 code, or reformed, 17, 137. 
 
 Procedure at I^aw : 
 
 absence of remedy, instances, 145 p. 196. 
 
 inadequacy of remedy, instances, 145 p. 197. 
 
 cramped administration of defective laws, 143, 145-151, 153-155. 
 
 why, and wherein, defective, 145-155. 
 
 writ, oramping eflEect of, 4, 154. 
 
 custom, precedent, 142, 147, 153, 154. 
 
 formalism, fictions, 148-150. 
 
 feudal system, 151, 154. 
 
 exclusion of civil law, 154. 
 
 jury trial, special pleading, 22, 23, 137. 
 
 parties, insufScient, 23. 
 
 judgment, inflexible, 23, 73, 145 p. 197. 
 
 finm process, inefficient, 221. 
 
 want of specific remedies, 7, 224. 
 
 Procedure, Ecclesiastical : 
 
 specific operation in personam, 6-8. 
 influence upon chancery, 8, 130, 221. 
 
 Procedure in Equity: 
 
 why more accommodating than at law, 22, 23, 145 p. 197, 221, 224. 
 
 absence of jury and special pleading, 22, 23, 137. 
 
 comprehensive requirements as to parties, 23, 24. 
 
 flexibility of decree, 23, 73, 145 p. 197. 
 
 personal coercion of defendant, 8, 124, 221. 
 
 facilities for specific relief, 7, 8, 224-2i7. 
 
 sources of, 21. 
 
 how regulated, 21. 
 
 to what extent adopted into, at law, 107, 164, 167, 168, 224, 224 
 
 note. 
 See Pleading; Evidbncb; Parties; Bill; Answer; Plea; Dk- 
 
INDEX. 425 
 
 Beferences are to Sections. 
 Process : 
 
 ancient and modern, 48. 
 
 aabpcena, service, publication; waived by general appearance, 48. 
 
 See Appkarancb; EzscnrioN. 
 
 Pro Cmnfesso: 
 
 order taking bill, 48, 57. 
 proceedings tbereon, 57. 
 
 Production : 
 
 of books and papers, 127. 
 Pro Forma: 
 
 decree, 73, 73 note. 
 Proliibition : 
 
 liquor laws enforced by injunction, 161 note. 
 
 of re-marriape, 29. 
 
 statute of, 4 H. iv, 10. 
 
 Property : 
 
 protection of, limit of equity jurisdiction, 161, 223. 
 within the state, jurisdiction in rem, 29, 223. 
 without the state, reached, if jurisdiction in personam, 232. 
 real or personal, deliverer of possession, how enforced, 84. 
 assignment of after acquired, 208. 
 
 Publication : 
 
 process of, when introduced by statute, in England; in United 
 
 States; in Maryland, 29 note, 
 substitute for subpoena, 29. 
 
 order of, against non-resident or unknown defendants, 29, 48. 
 against evading defendants, 48. 
 
 statute strictly followed; object fairly stated; cannot bind in 
 pertonam, 29. 
 
 Public Policy: 
 
 in the sense of public convenience, included in the definition 
 of jus prastorium (134), of primitive equity (135), of juridical 
 
 equity, 143. 
 ai> important factor in juridical equity, 141, 142, 143. 
 when a controlling one, 166. 
 
 instances, 166 notes. 
 
 laches, 244, 262, 270. 
 may require enforcement of illegal contract, 259. 
 may prevent restitution, 253. 
 
 Purchaser : 
 
 under decree for sale, question of parties, vital to, 25. 
 exceptions to sale, by, 91. 
 right to intervene, 45. 
 See Notice. 
 
426 INDEX. 
 
 Beferences are to Sections. 
 Quasi DSquitable Jurisdiction : 
 instances of, 164. 
 
 Quasi Parties: 
 
 or parties by representation, 30. 
 See Partiks. 
 
 Quia Timet : 100, 159, 230. 
 
 bill to remove cloud from title, 100. 
 
 compared with mandatory and prohibitory injunction, 100. 
 
 proof of title and possession, 100. 
 
 Railroad : 
 
 injunction to restrain, J 01, 257. 
 receivers,- 111. 
 
 foreclosure, parties, 30, 87 p. 62. 
 bondholders, as parties, 31. 
 fraudulent construction contract, 250. 
 
 Ratification:' 
 
 of that which, upon application, would have been ordered, 180, 
 
 213. 
 of sale, 91. 
 of account, 94. 
 See ConfikmAtion. 
 
 Reaction of Equity : ' 
 
 upon law, 167-169, 204, 224, 231, 235. 
 
 Real and Quasi Parties :— 29, 30. See Parties. 
 
 Receiver : 
 
 as a head of equity jurisdiction, 159. 
 
 evolved from sequestration," 8. 
 
 appointed only in equity, 108 note. 
 
 oflBcer of court — ^powers and duties, 108. 
 
 rules as to appointment, 109 
 
 in partnership cases, 109. 
 
 in corporation cases, 110. 
 
 in railroad cases. 111. , 
 
 statutory,, 110. 
 
 managing, 111. 
 
 certificates of, 112, 193, 253. 
 
 Record : 
 
 transcript, how made up, 79. 
 when to be transmitted, 79 note, 
 diminution of, 79. 
 plea founded on matter of, 63. 
 
INDEX. 427 
 
 References are to Sections. 
 Redemption : 
 
 equity of, 181, 196. 
 bill for, parties, 41. 
 
 Redesdale, I«ord: 
 
 his view of equity, 144. 
 classification Dy, 177. 
 
 Re-execution: See Accident. 
 
 Reformation : See Mistake. 
 
 Reformed Procedure : See Code Peoceduee. 
 
 Registration I^aws : 
 
 preclude many questions on equal equities, 242. 
 do not preclude equitable liens, 172, 197. 
 except in some states, 197. 
 
 Rehearing : 
 
 petition must be filed before enrollment, 76. 
 Relation : 
 
 doctrine of, 211. 
 instances, 211. 
 
 Relief: 
 
 from defective laws, 143, 145. 
 none, when legal remedy, 145. 
 prayer for, 52. 
 general and special, 54. 
 in the alternative, 55. 
 complete, rule as to, 179 p. 260. 
 
 Remainder-men : 
 
 as parties by representation, 30, 30 note, 
 not barred by limitation or laches, 25, 264. 
 
 Remand : 
 
 for further proceedings, 82. 
 Remedy : 
 
 want of legal, as ground of jurisdiction. See Procedure at 
 
 Law, Jurisdictional Bulbs. 
 enabling maxims relating to, 193, 221, 224, 228. 
 restrictive maxims relating to, 240, 242, 244, 256, 260. 
 no right without, see Ubi Jus, &c. 
 
 Removal : 
 
 of cause, for disqualification of judge, 121. 
 to federal court, 121. 
 
428 IKDEX. 
 
 References are to Sections. 
 Rents and Profits: 
 devise of, 203. 
 when limitations pleaded, 254. 
 
 Repleader : 
 
 after amendment not generally necessary, 113. 
 
 Replevin : 
 
 how far a specific remedy, 224, 224 note, 
 in execution of delivery order or decree, 84. 
 
 Replication : 
 
 in general, 49, 50, 69. 
 
 special, formerly prolix, 69 note. 
 
 no longer used, 22, 50, 69. 
 
 superseded by amendment of bill, 22, 69, 114. 
 formal, to make an issue, 50, 69. 
 effect of, to plea, to answer, 69. 
 failure to file, proceedings on, 69 note, 117. 
 
 Report : 
 
 of sale, 91. 
 
 of investments by fiduciaries (local), 123. 
 
 See Auditor. 
 
 Representation : 
 
 parties by, 27, 30. 
 See Parties. 
 
 Rescission : 
 
 when proper relief in cases of mistake, 227. 
 
 in cases of fraud or mistake, consideration refunded, 253. 
 
 when exception made, 253, 
 
 Restraining Order : 95 note. 
 Residence : 
 
 jurisdiction of federal courts, 18. 
 
 effect of, as to parties, 26, 27, 37 p. 53 note. 
 
 Restrictive Maxims : 
 
 in general, 175, 187, 236. 
 
 negative, defensive, principles, the statics of equity, 187, 236. 
 
 table of, 236. 
 
 discussed and illustrated, 237-272. 
 
 Resulting Trust : 
 
 property bought with trust fund, 218. 
 trustee mingling funds, 218. 
 
 Retainer: 212. See Capacities. 
 
INDEX. 439 
 
 Beferences are to Sectjons. 
 Review : 
 
 bill of, -when may be filed, 76. 
 
 but two grounds for; character of; when leave to be obtained, 76. 
 Revivor : See Abatement. 
 Rights : 
 
 maxims relating more especially to, (primary) 188. 
 enabling, 193, 194, 205, 216, 232. 
 restrictive, 237. 
 Roman I^aw: 
 
 sligfat influence on early common law, 147, 152, 154. 
 
 excluded as authoiity, 154. 
 
 modern appreciation of, 167. 
 
 a source of primitive equity, 6-9, 130, 133, 155, 182. 
 
 history of, analogous to that of equity, 9, 173. 
 
 contrast with jurisprudence of England, 151. 
 
 Rule Further Proceedings : 117. 
 
 Rules : 
 
 contrasted with maxims, 178. 
 necessity of fixed, 49, 166. 
 components of doctrine, 178. 
 jurisdictional, 179. 
 miscellaneous, 180. 
 of procedure, 21. 49. 
 of federal courts, 18. 
 of Maryland courts, 19. 
 
 Sale: 
 
 under decree, how made, 90. 
 in what cases, 90 note, 
 before final decree, 90 note, 
 importance of correct parties, 25. 
 exceptions; ratification, 91. 
 under mortgage, 90. 
 
 injunction to stay, 100 note, 
 lands or defendants in different counties, 90 note. 
 
 Satisfaction : 
 
 doctrine of, 189, 217. 
 
 Scandal : 
 
 and impertinence, in general, 49. 
 exceptions to answer for, 66. 
 
 Seal: 
 
 effect of, at law, 145, 168. 
 how regarded in equity, 199. 
 
430 IND-BX. 
 
 Beferences are to Sections. 
 
 Securities : 
 
 what, proper investments, 123. 
 
 to be produced for verification (local), 123. 
 
 Security for Costs : 118. 
 
 Security for Peace : 
 
 compared with injunction, 163. 
 Separate Estate : See Covbkturb. 
 Sequestration : 
 
 writ of, 8, 48, 84. 
 
 Set-off: 
 
 referred to the head of account, 159. 
 form of debt not material, 201. 
 to avoid multiplicity, 229. 
 now allowed at law, 168. 
 
 Shakespeare : 
 
 various meanings of equity in, 131. 
 
 Lambert litigation, 69 note, 131 note, 196 note, 248 note. 
 
 kings as judges, 1, 155 note. 
 
 Mosaic law, 132 note. 
 
 arbitrary discretion, 155 note. 
 
 Shelley's Case: 
 
 rule in, followed by equity, 172; 238. 
 
 Sheriff: 
 
 as an officer of court, 19. 
 attachment against, 124. 
 process at law, directed to; otherwise in equity, 48. 22L 
 
 Solicitor : 
 
 as an officer of court, 19. 
 See Counsel, Counsel Fees. 
 
 Special Appearance: 48. 
 
 Special Case : 
 
 formal pleadings dispensed with, 51. 
 not recognized in federal practice, 51. 
 
 Special Circumstances : 
 
 significance of, in equity, 143, 157. 
 
 in criminal law, 163. 
 
 in application of maxims, 185. 
 
 in specific performance and injunction, 97, 157 not*. 
 
 in laches, 262, 157 not& 
 
INDEX. 431 
 
 References are to Sections. 
 
 Special Circumstances :— Continued. 
 
 in rule as to parties, 24, 157 note, 
 multifariousness, 40, 157 note, 
 other instances, 157 note. 
 
 Special Pleading: 
 
 science of, at law; modern substitute for, 22. 
 absence of, in equity, 22, 50. 
 
 Specific Ferformance : 
 
 as a distinct head of jurisdiction, 159. 
 
 whence derived, 8. 
 
 referred to maxim, 224. 
 
 compared with injunction, 97. 
 
 an "extraordinary remedy," 97, 187. 
 
 ■'sound judicial discretion," 97. 
 
 time, in general, not essential, 200, 225. 
 
 substance of contract regarded, 200, 225. 
 
 plaintiff must perform on bis part, 225. 
 
 or make compensation, 250. 
 certainty of proof required, 225. 
 contract to convey land, 225. 
 parol, parti; performed, enforced notwithstanding statute of 
 
 frauds, 172. 
 contract for specific chattel, 225. 
 
 for personal services, 102, 225. 
 covenant in lease, 102. 
 negative, enforced by injunction, 102, 225. 
 unconscionable bargain not enforced, 225. 
 nor perpetual contract, 225. 
 objections to title, 225. 
 clean hands required, 256. 
 none of property not in. esse, 208. 
 operation beyond state, 222. 
 who proper parties, 37. 
 
 Splitting Suits: 
 
 prevented, 229. 
 
 Star Chamber : 
 
 court of, compared with Chancery, 161. 
 
 State : 
 
 as party, 34, 269. 
 not barred by time, 269. 
 suit vs. oflScers of, 34 
 See Code States. 
 
 Statics of Equity : 
 
 philosophy of restrictive maxims, 187, 236. 
 
432 INDEX. 
 
 Beferences are to Sections. 
 
 Statutes : 
 
 construction ; substantial compliance, 203. 
 instances of, overruled by equity, X73. 
 reforming common law, 168. 
 enlarging equity jurisdiction, 159 note, 
 publication, 29. 
 
 binding on federal courts, 29 note, 
 particular : 
 
 Westminster II, 4, 5, 154. 
 
 pr<cmunvre, 10. 
 
 prohibition, 10. 
 
 uses, 52, 172. 
 
 frauds, 63, 172. 
 
 limitations, 63, 238, 261. 
 
 usury, 63, 247. 
 
 Stock : 
 
 assignment of, 208. 
 
 fraudulent, parties, 37 p. 53. 
 
 Stockholders : 
 
 as parties, 31, 42. 
 
 representation applied to, 31. 
 
 how affected by decree vs. corporation, 31. 
 
 right to inspect books, 257. 
 
 Stoppag^e in Transitu: 
 
 of equitable origin, 168. 
 Story, Judge : 
 
 his contribution to equity, 1 7, 177. 
 Submission : 
 
 of cause, for decree, 72. 
 
 briefs; reference, 72 notes. 
 
 Subpoena : 
 
 original introduction of, 10. 
 
 how and when issued; how waived; how served, 48. 
 
 Subrogation : 
 
 referred to "account," 159. 
 a question of intent, 204. 
 enforced vs. insolvent trustees, 243. 
 in cases of negligence, 256. 
 
 Substance rather than Form : 
 
 an enabling maxim; how otherwise^ expressed ; how grouped, 
 
 formalism of primitive law, 149. 
 
IKDEX. 433 
 
 Beferenoes are to Sections. 
 Sabstance rather than Form .-—Continued. 
 
 penalties and forfeitares, 195. 
 
 mortgages, 196, 197. 
 
 troBts, 198. 
 
 powers, 199. 
 
 other applications, 200-204. 
 
 influence on equity procedure, 49. 
 
 on code procedure, 16, 169. 
 
 on common lav, 169, 204. 
 
 Supersedeas : See Appeal Bo»d. 
 
 money decree, how superseded, 84 note. 
 Sureties : 
 
 as parties, 34, 37 p. 51, 42, 90. 
 Suretyship : 
 
 a question of latent, 204. 
 Tacking : 
 
 English doctrine of, 248. 
 
 Taking off the File: 
 
 for irregularity of procedure, 116. 
 
 Taney, Chief Justice : 
 
 his professional experience, 148 note. 
 
 on legal technicalities, 149. 
 
 censures obstinate conservatism of judges, 149. 
 Taxation : 
 
 tax-payers' bills, 30, 31, 101. 
 
 tax justly due, to be paid, 253. 
 
 Tenant : 
 
 life, as representative party, 30, 30 note. 
 
 in common, as party in partition suit, 37 p. 53. 
 
 occupying, as party, 37. 
 
 Testimony : See Evidbncb; Auxiliary Jueisdiction. 
 
 Thnrlow, I^ord: 
 
 an obstacle to reform, 14, 162. 
 Time: 
 
 whether essential, a question of intent, 200, 225. 
 
 lapse of, 270. 
 
 thin^ regarded as done at, 213. 
 
 priority of, 242. 
 
 28 
 
434 INDEX. 
 
 Beferences are to Sections. 
 Title : 
 
 equitable, not recognized at law, 146. 
 doubtful, on exceptions to sale, 91. 
 
 in specific performance, 225. 
 when Owner estopped to assert, 252, 272. 
 tenant estopped to deny landlord's, 264. 
 
 Trade-Mark : 
 
 infringement enjoined, 101. 
 
 otherwise, when false, or fraudulent, 257. 
 
 Transfer by Operation of I^aw : See Capacities. 
 
 Treaties : 
 
 construction, 203. 
 
 Trespass : 
 
 enjoined when deBtructi7e, 101. 
 
 when repeated or continuous, 230. 
 
 Trust: 
 
 doctrine of, 159. 
 , whence derived, 8 
 referred to maxim, 193. 
 active and passive, 159. 
 express, 169. 
 
 not barred by limitations, 261. 
 implied, 159. 
 
 barred by limitations, 261. 
 constructive, 159, 210. 
 resulting, 159, 218. 
 c. g. t. substantial owner, 198. 
 legal estate of trustee, mere form, 198. 
 estate, same rules as to quality and devolution as legal, 238. 
 
 duration of, how measured, 198. 
 not to fail for want of trustee, 198. 
 
 nor because literal execution impossible, 198. 
 Unpaid stock, a trust fund, 193. 
 not all breaches of, relievable, 166. 
 
 Trustee : 
 
 estate of, how regarded at law, 146. 
 
 in equity, 198. 
 
 duration, 198. 
 
 disclaimer of, 198. 
 donee of power cannot appoint himself, 199. 
 acquisitions of trust property by, 166 note, 
 when deed to vacated, 250. 
 buying with trust funds in his own name, 218. 
 
INDEX, 435 
 
 Beferences are to Sections. 
 ^Trtistee :— Continued. 
 
 depositing in his own account, 218. 
 
 misappropriating trust money, 253. 
 
 ■when liable for interest, 213. 
 
 ex malefieio, 21U. 
 
 and executor, when same person, 212. 
 
 acting ambiguously, 212. 
 
 investments by, 1^. 
 
 liable for unauthorized investment, 123. 
 
 duty to follow directions of trust, 123. 
 
 laches of c. q. t. as against, 266. 
 
 laches of, 267. 
 
 See BuKDEN OP Pkoop. 
 
 under decree for sale, 90. 
 
 See Salb. 
 
 local rule as to investments, 123. 
 
 as representative party, 30. 
 
 Bee Parties. 
 
 misconduct, referred to "special circomstances," 157 note. 
 
 Zn>i Ju8 Ibi Remedium. 
 
 first enabling maxim, 193. 
 historical rather than practical, 193. 
 subordinate to settled principles, 193. 
 source of all enabling doctrines, 193. 
 trust, its earliest application, 193. 
 instances of later applications, 193. 
 still possesses vitality, 193. 
 
 United States: 
 
 courts of equity^ in, 17, 18. 
 
 not barred by time, unless used as formal party, 269. 
 
 Usage : 
 
 a source of equity procedure, 21. 
 
 Usuty : 
 
 to illustrate maxims, 247, 259. 
 
 Verdict : 
 
 no authority as precedent, 163. 
 
 on issues, inconclusive effect, 128, 156. 
 
 "Vendor's l^ien : 
 
 under executory contract, 207. 
 parties in suit to enforce, 37. 
 enforced against volunteer, 243. 
 
436 INDEX. 
 
 Heferences are to Sections. 
 TigUanUbus, non dormientibws ceqvitaa subvenit; — 260, 
 See AcQuiEscBNCB ; Laches ; " Equity Aids the Vigilant." 
 
 Yoluiitairy Association : 
 
 representation applied to, 30, 31. 
 
 Volunteers : 
 
 how regarded, 214, 243. 
 
 Voncliers : 
 
 of claim, filing of, 45 note, 93. 
 
 Waiver : 
 
 compared with acquiescence, 271, 272. 
 instances of, 48, 71, 72, 81, 114, 116, 120. 
 
 War between the Courts : 8, 10, 237. 
 
 Waste: 
 
 injunction to restrain, 101. 
 
 violation of, how punished, 84. 
 
 Westbury, I^ord: 
 
 on legal method of investigation, 155. 
 his view of common law, 155. 
 
 Wills: 
 
 ecclesiastical jurisdiction Of, 6. 
 
 construction of, within jurisdiction of equity, 159. 
 
 principles of construction, 203. 
 
 power by, 199. 
 
 Wisdom of Ancestors : 
 
 as connected with precedent, 147. 
 Witenagemot : 1. 
 Wolsey, Cardinal : 129, 130, 155. 
 
 cycle of clerical chancellors closed with, 155. 
 
 succeeded by Sir Thomas More, 130, 155. 
 
 Writ: 
 
 at common law, effect of, 4. 
 
 by statute Westminster 11, 4, 154. 
 
 Vear Books : 
 
 primitive equity in, 132.