(SortifU ICaiu ^rlynol ICibrata 
 
Cornell University Library 
 KF 399.W69 
 
 A treatise on equity jurisprudence. 
 
 3 1924 018 825 590 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018825590 
 
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ig NOTICES OF THE PRES3. 
 
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TREATISE 
 
 ON 
 
 EQUITY JUEISPEUDENCE. 
 
 BY JOHN WILLAED, LL. D. 
 
 I.ATE OKB or THE JUSTICES OF THE SUFREUE COURT OP THE STATE OF REW-YORK. 
 
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]PEE F A C E. 
 
 ALTHOUGH thgre are numerous treatises devoted to the subject of 
 Equity Jurisprudence, yet there is none -which occupies the same 
 ground as the following. Those -which are published in England neces- 
 sarily embrace much matter -which is of but little practical value to us, 
 and the commentaries of Mr. Justice Story professedly treat ilquity Ju- 
 risprudence, as it was administered in England and America at the time 
 he wrote. The learned author has also, in numerous instances, -while 
 tracing the doctrines of the court to their origin, compared the law, as 
 administered in England and America, with the corresponding portions 
 of the civil law, and of the laws of the most enlightened nations of con- 
 tinental Europe. 
 
 The plan of the following treatise has not lead me to pursue the same 
 course. Though most of the topics- which are handled by other -writers 
 on Equity Jurisprudence, and some -which are not noticed by them at all, 
 are treated with more or less fullness in this -work, yet they are discussed 
 ■jN'ith reference to the law as it exists in this state at the present time, 
 modified as it has been by the Revised Statutes, the Code of Procedure 
 and the constitution of 1846. The reported decisions of the late court 
 of chancery, in connection -with the decisions in equity of the courts 
 under the present constitution, afford of themselves sufficient materials 
 for a system of Equity Jurisprudence. I have not, however, confined 
 myself solely to these, but have freely quoted the decisions of the Eng- 
 lish courts, and those of our sister states, when they ser-ved to confirm 
 01* illustrate the doctrines advanced. But I have not attempted to point 
 out the diversities -which doubtless exist in the several states, arising 
 from local usage and statutory regulations. 
 
 It would be unjust to those who have written on the same and kindred 
 subjects, not to admit that 1 ha-ve been greatly instructed and aided by 
 
 (lii) 
 
iv Prepack. 
 
 their labors. Every systematic treatise on any department of jurispru- 
 dence facilitates the acq^uisition of a knowledge of the science. It is, 
 however, to the adjudged cases that we are to look for the authoritative 
 exposition of the law. 
 
 But though the present work is adapted more particularly to the pres- 
 ent state of the law in New- York, it is far from being a merely local 
 work. The general principles of Equity Jurisprudence are presumed to 
 be the same in substance in most of the states. The diversities arising 
 from local legislation, or from usage in other states, will be readily dis- 
 covered by those practicing in their courts. The work will be less likely 
 to mislead the reader, than if it had attempted to describe the exact 
 state of the law in each of the states. Such a task cannot be success- 
 fully accomplished by any one writer. 
 
 No one can be more sensible of the imperfections erf the present work 
 than the author. The variety of the topics discussed, the complicated 
 nature of many of them, and the occasional conflict of decisions with 
 respect to others, render the task of constructing a consistent system, 
 laborious in the extreme. To settle points about which learned jiidges 
 continue to differ, is no easy matter. In some few instances I have 
 merely stated the arguments and authorities on each side, and left the 
 learned reader to draw his own conclusions. In most cases, however, after 
 stating the points in dispute, I have indicated my own opinion, in con- 
 formity to what I conceived to be the weight of authority, or the general 
 analogy of the law. It will not be surprising if some of these opinions 
 should prove to be erroneous. 
 
 It is not, perhaps, possible to fix the line which separates Equity Juris- 
 prudence from that which is generally administered by Courts at Com- 
 mon Law. The tendency of late has been to' abrogate the distinction 
 which formerly prevailed between courts of law and courts of equity. I 
 have brought under review most of the subjects which, in this state, have 
 been usually discussed and adjudicated in courts of equity, notwithstand- 
 ing some of them in England and elsewhere belong to a different forum ; 
 and notwithstanding all of them are now administered here by the same 
 tribunal. In the hope that the work may serve, in some measure, to as- 
 sist the young and inexperienced in acquiring a knowledge of this branch 
 of our jurisprudence, and lessen the labors of the more advanced prac- 
 titioner, I submit it with diflBdence to the scrutiny and candor of the 
 profession. 
 
 Saratoga Spbings, May, 1855. 
 
TABLE OF CONTENTS. 
 
 INTRODUCTION. 
 
 SECTION L 
 
 Page. 
 
 Eqviity, a branch of Jurisprudence distinct from Law, though not admin- 
 istered by a tribunal exclusively devoted to it ; with a Sketch of the 
 recent changes in New- York, '33 
 
 SECTION U. 
 General Nature of Equity, 37 
 
 SECTION in. 
 General View of the Maxims of Equity, and distribution of the subject, 44 
 
 CHAPTER I. 
 
 or THE EEirEF AFFOEDBD BY EQUITY IN CASES OP ACOXBENT AND JHSTAKB. 
 
 SECTION I. 
 Of Accident, 51 
 
 SECTION II. 
 
 Of Mistake, 59 
 
 (1.) Mistake of Lam, 59 
 
 (2.) Mistake of Fact, . 69 
 
 (V), 
 
Table of Contents. 
 
 CHAPTER II. 
 
 
 or ACCOUNl 
 
 _ 
 
 
 
 
 
 
 (1-) 
 
 General View, •' • 
 
 
 ■ S5 
 
 (2.) 
 
 Appropriation of Payments, 
 
 
 
 
 
 
 92 
 
 (3.) 
 
 Lien, ..... 
 
 
 
 
 
 
 10.5 
 
 (4.) 
 
 Contribution, 
 
 
 
 
 
 
 
 106 
 
 (5.) 
 
 Exoneration, 
 
 
 
 
 
 
 
 109 
 
 (6.) 
 
 Party Wall, 
 
 
 
 
 
 
 
 115 
 
 (^0 
 
 Division Fences, 
 
 
 
 
 
 
 
 116 
 
 (8.) 
 
 Insurance, 
 
 
 
 
 
 
 
 119 
 
 (9.) 
 
 Average, 
 
 
 
 
 
 
 
 121 
 
 (10.) 
 
 Paying off Incumlrances, 
 
 
 
 
 
 
 
 125 
 
 (11.) 
 
 Apportionment, Eviction, 
 
 
 
 
 
 
 
 12T 
 
 02.) 
 
 Bents and Profits, 
 
 
 
 
 
 
 
 133 
 
 (13.) 
 
 Charge and Discharge, 
 
 
 
 
 
 
 
 139' 
 
 
 CHAPTER III. 
 
 
 or PBAtn>. 
 
 
 SECTION I. 
 
 Of Actual Fraud, 
 
 
 
 
 
 , 
 
 , 
 
 . US 
 
 SECTION n. 
 Of Trausactions between Parties standing in confidential relations to tech 
 
 other : and of undue influence, 
 
 H9 
 
 SECTION III. 
 
 O'f Transactions where an unconscientious advantage has been taken of 
 
 themfental weakness of a Party, . . . . . .194 
 
 SECTION IV. 
 Of Constructive or Imphed Fraud, 
 
 209 
 
 CHAPTER IV. 
 
 OP SrECMIO PBErOKMANcSj dOBKBOTION' AND K^-EXECTJTION OF XOREEMENTS; AND 
 
 OF COMPENSATION. 
 
 SECTION I. 
 
 Of Specific PerformBDce, 
 
 m 
 
Table of Contents. vii 
 
 • SECTION n. 
 
 Of the Rfe-exeoution and Correction of Agreements, - • - .300 
 
 SECTION III. 
 Of Eesciasion, Cancellation and the Delivering up of Agreements, . 302 
 
 SECTION IV. 
 Of Compensation and Damages, . . ■ • • • - 308 
 
 CHAPTER V. 
 
 OF BILLS OF INTEEPLEADEE, BILLS 01 PEACE, BILLS OF QUIA TIMET, AND BILLS TO 
 
 MAESHAL SBCUEITIES. 
 
 SECTION I. 
 
 Of Interpleader, 313 
 
 SECTION II. 
 Of Bills of Peace, 323 
 
 SECTION m. 
 01 Bms Quia Timet, . " 328 
 
 SECTION IV. 
 Of Bills to Marshal Securities, 337 
 
 CHAPTER VI. 
 
 OF INJUNOIIONS. 
 
 SECTION I. 
 General View of the subject, 341 
 
 SECTION IL 
 Of Injunctions to restrain the Proceedings in other Courts, . . 345 
 
 SECTION IIL 
 Qf Injunctions to restrain the indorsement or negotiation of Commercial 
 Paper ; the sailing of Ships ; the transfer of Stock ; the alienation of 
 I(and and of Specific Chattel^ . 3&8 
 
viii Table of Contents. 
 
 SECTION IV. , 
 Of Injunctions to restrain the wasting of Assets, or other Property, pending 
 the Litigation ; restraining Trustees from assigning ; and a Parent 
 or Guardian from removing the Child out of the jurisdiction, . . 367 
 
 SECTION V. 
 Of Injunctions to prevent "Waste and Trespass, 369 
 
 SECTION VI. 
 Of Injunctions to restrain the infringement of Patents, the violation of 
 
 Cojiyrights, and the unauthorized publication of Letters and the like, 383 
 
 SECTION vn. 
 
 Of Injunctions to suppress the continuance of PubHc or Private Nuisances, 
 
 Purprestures and the like, . . .388 
 
 SECTION VnL 
 
 Of Injunctions to restrain the multiplicity of Suits ; to quiet Possessions ; 
 to repress Vexatious Litigation ; to protect Corporations in the en- 
 joyment of their Franchises ; and in Miscellaneous Cases, . .401 
 
 CHAPTER VIL 
 
 OP USES A^fD TRUSTS. 
 
 SECTION L 
 
 General view of Uses and Trusts before, and as modified by the Revised 
 
 Statutes, 409 
 
 SECTION n. 
 
 Of Mortgages, both of Real and Personal Property ; Equitable Mortgages ; 
 
 Lien for the Purchase Money; Pledges and Hypothecation, . 426 
 
 SECTION m. 
 
 Of Assignments, Legal and Equitable, 459 
 
 SECTION IV. 
 Of Marriage Settlements and Executory Contracts for such Settlements, 472 
 
 SECTION V. 
 Of Wills and the Trusts therein ; and of the Rules of Construction thereof 483 
 
Tablk of Contents. b; 
 
 SECTION VI. 
 
 Of Legacies, and the grounds of the jurisdiction pf Courts of Equity 
 over the same ; and of the different kinds of Legacies, whether Gen- 
 eral, Demonstrative or Specific ; and of Ademption of Legacies, . 498 
 
 SECTION VIL 
 Of Vested and Contingent Legacies ; and of Lapse, .... 507 
 
 SECTION VIIL 
 Of Legacies, Absolute and Conditional, 522 
 
 SECTION IS. 
 Of Cumulative Legacies, 539 
 
 SECTION X. 
 Of Satisfaction, ... 542 
 
 SECTION XL 
 Of Election, 544 
 
 SECTION XIL 
 Of Donatio Causa Mortis, . . 553 
 
 SECTION XHL 
 Of Abatement of Legacies, and the Person to whom payable, . - . 556 
 
 SECTION XIV. 
 Of Administration and Marshaling Assets, 561 
 
 SECTION XV. 
 Of Charities, 559 
 
 SECTION XVL 
 Of Constructive or Implied Trusts, 593 
 
 SECTION XVIL 
 
 Of the Office, and Duty of Trustees, and the, Eights of Cestid que Trusts, 611 
 Bq. Jub. 2 
 
X Table or Contents. 
 
 CHAPTER VIII. 
 
 OF THE PROTECTION AFFORDED BY OOXIRTS OF EQUITY TO PERSONS LABORING UNDER 
 
 DISABILITY. 
 
 SECTION I. 
 
 Of Infants, 617 
 
 SECTION II. . 
 Of Married Women ; and herein, of Divorce, Alimony, &c. . . 634 
 
 SECTION III. 
 
 Of Idiots, Lunatics, Persons of Unsound Mind, and Persons incapable of 
 
 conducting their own affairs, in consequence of habitual drunkenness, 671 
 
 CHAPTER, IX. 
 
 OP EQUITY JURISDICTION IN OASES OF DOWER AND PARTITION. 
 
 SECTION I. 
 Of Dower, ... 694 
 
 SECTION II. 
 Of Partition, ........... 699 
 
 CHAPTER X. 
 
 OF PARTNERSHIP, i^Qg 
 
 CHAPTER XL 
 
 OF CORPORATIONS; AND OP PEOCEEDINQS AGAINST THEM IN EQiniY. 
 SECTION I. 
 
 Of Corporations ; and of Proceedings against them in Equity, independ- 
 ently of the Eevised Statutes, .... foq 
 
 SECTION II. 
 Of Proceedings against Corporations in Equity under the Eevised Statutes, 745 
 
TABLE OF CASES. 
 
 Abernethy v. Hutchinson, 
 Acker v. Phoenix, 
 Ackerman v. Emott, 
 Ackley v. Finch, 
 Adams v. S. & W. Railroad; 
 
 v. Pierce, 
 Adair v. Shaw, . 
 
 Bay, 
 
 y. Wilson, , 
 Adderly v. Dixon, 
 V. Storm, 
 Addison t. Mascall, 
 Adsit y. Adsit, 
 Ainslie v. Medlycott, 
 Aislabie v. Rice, 
 
 Albany City Bank v. Schennerhomy 
 Albany Fire Ins. Co. v. ~ 
 Allan V. Backhouse, 
 
 V. Smith, . 
 Alcock V. Sparhawk, 
 Alderson, Ex parte, 
 Aldridge v. Cooper, 
 
 V. Reynolds, 
 Aldrid's case, 
 Allen V. Addington 
 
 V. CuUen, 
 
 V. Culver, , 
 
 V. Blanchard, 
 
 V. Dykers, . 
 
 V. Macpherson, 
 
 V. Pray, 
 
 V. Sewall, . 
 Alexander v. Patten, 
 
 V. Pendleton, 
 Alstan T. Conter, . 
 Althorpe v. Comstock, 
 Agar V: Regent's Canal Co, 
 American Home Missionary So. v. 
 
 ham, 
 
 274, 
 
 . 407 
 . 263 
 188, 613 
 . 457 
 . 406 
 . 636 
 561, 569 
 . 265 
 286 
 279 
 752 
 . 197 
 547, 550 
 . 150 
 526, 528 
 334 
 652 
 126 
 694 
 489 
 463 
 562 
 434 
 
 97, 98 
 
 . 540 
 
 149, 150 
 
 . 706 
 
 . 459 
 
 . 146 
 
 . 548 
 
 . 733 
 
 . 101 
 
 249, 325, 608 
 
 . 100 
 
 160, 304 
 
 ., 405 
 Wad- 
 
 640, 642j 643 
 
 Amoskeag Man. Co. v. Spear, . 403, 404 
 
 Anan v. Merritt, 283 
 
 Anderson v. Van Allen, . . 460, 472 
 V. Wilkinson, . . . 320 
 Andrew v, N. T. Bible and Pr. Book \ 
 
 Soc. . 518, 576, 577, 678, 580, 593 
 Andrews, Matter of, . . . 623, 624 
 Antrobus v. Davidson, . . 109 
 
 Angel V. Hadden, 
 Anonymous, 
 Anstice v. Brown, 
 Androvi v. Poilblanc, 
 Apthorpe v. Comstock, 
 Arthur v. Arthur, 
 
 V. Prichard, 
 Arden v. Pattison, 
 
 V. Patterson, 
 Ardesoif V. Bennet, 
 Armstrong v. Gilchrist 
 Arnold V. Johnson, 
 V. Patrick, 
 Archer v. Mosse, 
 Arnot T. Post, 
 Arnhout, Matter of, 
 ArundeU v. Phipps, 
 Aston V. Aston, . 
 
 V. Heron, 
 Astor V. Hoyt, . 
 V. MiUer, . 
 Ashton V. Ashton, 
 Ashburner v. McGuire, 
 Astley Vi Astley, 
 Atkins V. Tredgold, 
 Atkinson v. Henshaw, 
 
 v.Manks, 
 Atkins V. Hicocks, 
 Audley v. Audley, 
 Austin V. Bell, 
 Att'y Gen. r. Cleaver, 
 V. Clark, 
 V. Cohoes Co 
 V. Cullin, 
 V. Forbes, 
 V. Fowler, 
 V. Guise, 
 V. Milner, 
 V. Newcomb, 
 V. Parnither, 
 T. Pearson, . 
 v. Richards, 
 V. Aobbins, . 
 V. Shore, 
 T. Sidorfin, 
 V. Stewart, . 
 V. Sutton, . 
 V. Tyndall, . 
 V. Utica Ills. 
 
 . 322 
 
 . 472 
 
 . 601 
 
 . 508 
 
 . 861 
 
 13, 68, 80 
 
 . 87 
 
 163, 174 
 
 . 214 
 
 . 545 
 
 48, 49 
 
 . 101 
 
 124, 443 
 
 . 246 
 
 . 442 
 
 682, 683, 688 
 
 . 244 
 
 139, 381, 525 
 
 334, 335 
 
 379, 43 
 
 379, 433 
 
 503, 505 
 
 . 505 
 
 . 657 
 
 . 191 
 
 . 367 
 
 313, 314, 315, 319 
 
 . 524 
 
 . 444 
 
 . 467 
 
 . 400 
 
 . 681 
 
 . 898 
 
 . 574 
 
 . 398 
 
 . 570 
 
 . 580 
 
 299, 514 
 
 . 570 
 
 . 690 
 
 . 689 
 
 . 398 
 
 636, 557 
 
 . 588 
 
 680, 596 
 
 . 574 
 
 . 498 
 
 . 669 
 
 Co. 39, 397, 400, 741 
 
 (xi) 
 
xu 
 
 Table of Casesj 
 
 Att'y Gen. v. Vernan, . 
 
 . 165 
 
 Atwood V. Small, 
 
 . 149 
 
 Averill v. Loucke, 
 
 . 338, 712 
 
 V. Wade, 
 
 . 838 
 
 Ayers v. Hawkins, 
 
 . 94, 97 
 
 V. Meth. Church 
 
 573, 574, 577, 580 
 
 Ayliffe v. Murray, 
 
 . 172, 184 
 
 Aymar v. Bell, 
 
 . 433 
 
 V. Roff, . 
 
 . 631 
 
 B 
 
 
 Babcock v. Booth, 
 
 . 237, 240 
 
 Bacon v. Bronson, 
 
 . 149 
 
 Back V. Stacy, . 
 
 . 396 
 
 Badgley v. Bruce, 
 
 . 695, 697, 698 
 
 Badrick v. Stevens, 
 
 . 505 
 
 Bagswell v. BS,noker, 
 
 . 752 
 
 V. Burton, 
 
 . 458 
 
 V, Dey, 
 
 . 512 
 
 Bagshaw v. Spencer, 
 
 . 475 
 
 Bailey v. Ehens, . 
 
 . 486 
 
 V. Inglee, 
 
 . 472 
 
 Baine V. Williams, 
 
 . 98, 101 
 
 Baines v. Baker, 
 
 . 396, 389 
 
 Baird v. Baird, . 
 
 . 208 
 
 V. Watkins, 
 
 . 712 
 
 Baker v. Briggs, 
 
 . 114 
 
 V. Chase, . 
 
 . 696 
 
 V. Fales, 
 
 : . .593 
 
 V. Haltzapffell, 
 
 . 137 
 
 V. Hoag, . 
 
 . 123, 124 
 
 V. Lorillard 
 
 . 629 
 
 V. Paine, . 
 
 ... .74 
 
 V. Riddle, . 
 
 . 143 
 
 V. Stackpole, 
 
 92, 93, 102 
 
 V. Thrasher, 
 
 . 432 
 
 V. White, 
 
 . 210, 214 
 
 V. Whiting, 
 
 . 189 
 
 Bakewell v. Ellsworth-, 
 
 . 726 
 
 Balfour v. Weston, 
 
 . 57, 137 
 
 Ball V. Coggs, 
 
 . 275 
 
 V. Coutts, 
 
 . 634, 636 
 
 v.. Harris, 
 
 . 486, 487 
 
 V. Lively, 
 
 . 149 
 
 V. Montgomery, 
 
 . 480, 481 
 
 V. Oliver, 
 
 . 367 
 
 V. Storie, 
 
 . 79 
 
 Baldwin v. Johnson, 
 
 . 289, 292 
 
 V. Salter, 
 
 . . . .712 
 
 Ballis V. Street, . 
 
 . 472 
 
 Ballou V. Eamley, 
 
 . 368 
 
 Balman v. Shore, 
 
 . 711 
 
 Banks v. SuttoUj 
 
 . '419 
 
 Banner v. Oormac, 
 
 . 78 
 
 Bancroft v. Dumaa, 
 
 . 101 
 
 Bangs V. Strong, 
 
 . 113 
 
 Bank of Salina v. Bab 
 
 cock, . . 257 
 
 Bank of Penn. v. Wist 
 
 129 
 
 Bank of Sandusky v. 
 
 Scoville, . . 257 
 
 Bank of Utica v. Fine 
 
 h, . . 436, 448 
 
 Bank of Rochester v. 
 
 Emerson, . . 452 
 
 Bank U. S. v. Beverly 
 
 . 487 
 
 V. Davis, 
 
 . 260, 609 
 
 V. Housen 
 
 lan, . . .233 
 
 Banks v. Phelan, 
 
 . 583 
 
 Baptist Ch. ofHartfor 
 
 d v. Wethorell, . 583 
 
 Siaptigt Association f. 
 
 Hart, . . 571 
 
 Barber v. Barber, 
 
 V. Rose, 
 Barclay v. Wainwright, 
 Bard v. Fort, 
 Barker v. Dacie, . 
 v. Biking, 
 V. May, . 
 Barker, Matter of, 
 Barrow v. Rhinelander. 
 
 V. Paxton, 
 Bamsley v. Powell, 
 Barney v. GJriffln, 
 Bamum v. Hempstead, 
 Bamardiston v. Lingwood, 
 Barr v. Lapsley, 
 Barnes v. Perine, 
 V. Racster, 
 Bamett v. Weston, 
 Barrie v. Davie, . 
 Bartlett v. Nye, . 
 
 V. King, 
 Barlow v. Grant, 
 Barton v. Barton, 
 Bash V. Dalway, . 
 Baskerville v. ParkerviUe, 
 Bath & Montague's case. 
 Batten v. Eamley, 
 Batterman v. Price, 
 iSates V. Schraeder, 
 Batty V. Lloyd, . 
 Bayard v. Hoffman, 
 Baylis v. Church, 
 Baxter v. Hozier, 
 Beach v. Bradley, 
 Beals V. Guernsey, 
 Beard v. Linthicum, 
 Beaumont v. Fell, 
 Beaufort v. Berty, 
 Beaty v. Kerts, . 
 Beck V. Stephani, 
 Bedell v. Hoffman, 
 Beebe v. Beebe, 
 Beecher v. Beecher, 
 Beeckman v. Astor, 
 Beekman v. Bond, 
 
 V. Frost, 45, 
 
 Belcher v. Belcher, 
 Belden v. Seymour, 
 Bell V. Lock, 
 V. Hull, 
 
 V. Mayor of N. Y 
 V. Phyn, 
 Bellasis v. Uthwatt, 
 Bennett, Ex parte, 
 Bennett V. Robinson, 
 V. Smith, 
 V. Vade, 
 Benedict v. Lynch, 
 V. Oilman, 
 Benough v. Walker, 
 Benson v. Benson, 
 Benyon v. Benyon, 
 Besley v. Laurence, 
 Berry v. Headlington, 
 V. Mut. Ins. Co. 
 Bevan v. Lewis, 
 Bibb v. Smith, . 
 Bilbie v. Lumley, 
 
 661, 664 
 . 354 
 . 540 
 . 421 
 . 90 
 . 161 
 . 263 
 . 677 
 . 443 
 243, 456, 467 
 160, 356 
 . 246 
 . 247 
 . 266 
 . 276 
 . 413 
 . 348 
 . 435 
 . 438 
 . 593 
 580, 593 
 . 627 
 . 531 
 . 271 
 . 475 
 . 148 
 . 330 
 . 354 
 . 302 
 . 230 
 . 483 
 . 82 
 . 87 
 . 691 
 . 241 
 . 267 
 81, 492 
 • 924 
 . 583 
 ., . 315 
 313, 320, 321 
 . 657 
 . 501 
 . 450 
 . 243 
 46, 249, 254, 435 
 . 147 
 . 603 
 207, 402 
 . 406 
 . 696 
 . 711 
 . 544 
 . 187 
 . 533 
 . 263 
 195, 671 
 292, 295 
 448, 449 
 . 496 
 . 299 
 . 540 
 . 338 
 . 490 
 46, 435, 441 
 . 722 
 . 174 
 59, 62 
 
Table of Casesi 
 
 Bill V. Kinaston, 
 
 , 
 
 330 
 
 Braoe v. Duchess of Marlborough, 
 
 46 
 
 255 
 
 Billenger v. Ketts, 
 
 
 297 
 
 Bradhurst v. Bradhurst, 
 
 
 491 
 
 522 
 
 Billingsley v. Critchett, 
 
 . 
 
 629 
 
 Bradish v. Gee, . 
 
 . 160, 
 
 299 
 
 356 
 
 Billon V. Hyde, 
 
 < 
 
 88 
 
 Bradish v. Gibbs, 
 
 478 
 
 479 
 
 649 
 
 Bingham v. Bingham, 
 
 , 
 
 70 
 
 Bradley v. Bosley, 
 
 . 124 
 
 443 
 
 444 
 
 Birdsley v. Hewlett, . 
 
 . 508 
 
 519 
 
 V. Root, 
 
 
 
 463 
 
 Birdsall v. Hewlett, . 
 
 . 489, 490 
 
 ,518 
 
 V. Pixoto, 
 
 
 523 
 
 534 
 
 Birkwood v. Aniss, 
 
 
 113 
 
 Bradford v. Haynes, . 
 
 
 
 502 
 
 Bishop V. Pidcock, 
 
 .' .' 71 
 
 151 
 
 Bradwin v. Harpur, . 
 
 
 81, 
 
 492 
 
 Bishop of Winchester v. Kn 
 
 ght. 
 
 91 
 
 Brady v. Hill,, . 
 
 
 
 101 
 
 BisseU V. Bissell, 
 
 241, 243 
 
 468 
 
 V. Waldron, 
 
 
 379 
 
 447 
 
 ' V. Hopkins, 
 
 
 665 
 
 V. Weeks, 
 
 388, 
 
 391 
 
 392 
 
 Blair, Matter of. 
 
 
 688 
 
 Bramwell v. Holcomb, 
 
 
 
 385 
 
 Blackstone Bank v. Hill, 
 
 
 100 
 
 Braodreth v. Lanoe, 
 
 . 362 
 
 387 
 
 401 
 
 Black V. Scboales, 
 
 
 101 
 
 Brandon v. Robinson, 
 
 
 
 643 
 
 Blaclcford v. Christian, 
 
 '. '. 198 
 
 202 
 
 Brant v. Gelston, 
 
 
 
 475 
 
 Blackburn v. Granger, 
 
 
 443 
 
 Braker v. Devereaux, . 
 
 
 
 416 
 
 Blade v. Noland, 
 
 
 54 
 
 Brasher v. Bentley, 
 
 
 
 331 
 
 Blake v. Hungerford, . 
 
 
 46 
 
 V. Qratz, 
 
 
 
 292 
 
 V. Leigh, 
 
 
 621 
 
 Brasher's Executors v. Van 
 
 Cortland, . 
 
 691 
 
 V. Nutter, 
 
 
 712 
 
 Braybrook v. Inskip, • 
 
 
 
 419 
 
 Blauchard v. Blood, . 
 
 '. 472, 479 
 
 ,635 
 
 Brazier v. Bryant, 
 
 
 
 101 
 
 V. Nestle, . 
 
 . 196, 201 
 
 ,675 
 
 Bree v. Holbeck, 
 
 
 
 153 
 
 Bland v. Winter, . 
 
 
 108 
 
 Breed v. Pratt, . 
 
 
 
 199 
 
 Blinn v. Chester, 
 
 
 101 
 
 Brewer v. Knapp, 
 
 
 
 101 
 
 Bliss V. Collier, . 
 
 
 127 
 
 Brewster v. Powers, 
 
 
 601 
 
 602 
 
 Bligh T. Lord Damtey, 
 
 
 569 
 
 Brice v. Brioe, 
 
 '. 178 
 
 189 
 
 251 
 
 Bloom V. Burdick, 
 
 
 560 
 
 Bridgen v. Carhart, 
 
 
 
 46 
 
 Blood V. Humphrey, . 
 
 
 644 
 
 Bridges v. Abbott, 
 
 
 
 511 
 
 Blunt V. Aiken, 
 
 
 392 
 
 V. Kilbam, 
 
 
 
 373 
 
 Blundell v. Bretarph, . 
 
 
 58 
 
 V. Morrison, . 
 
 
 
 540 
 
 Boardmaii v. Halliday, 
 
 
 245 
 
 Briggsv. Dorr, . 
 
 
 
 460 
 
 Body V. Taylor, 
 
 
 165 
 
 V. Hosford, 
 
 
 
 507 
 
 Bodinham v. Purchase, 
 
 
 102 
 
 V. Kouns, . 
 
 
 
 320 
 
 Bodine v. Edwards, 
 
 
 599 
 
 V. WiUiams, . 
 
 
 
 100 
 
 Bogardus v. Clark, 
 
 
 146 
 
 Brig Sarah Ann, 
 
 
 
 150 
 
 > V. Trinity Church 
 
 
 574 
 
 Bright V. Boyd, 
 
 
 
 312 
 
 Bolger V. Markell, 
 
 .' 513 
 
 , 514 
 
 Brinkerhoof V. Brown, 
 
 
 
 238 
 
 iJolifuer v. Weyman, 
 
 
 143 
 
 V. Marvin, 
 
 362, 
 
 436, 
 
 456 
 
 Bolt V. Rogers, . 
 
 
 304 
 
 Brisbane v. Davis, 
 
 
 
 62 
 
 Bond V. Hopkins, 
 
 
 40 
 
 Bristol V. Hungerford, 
 
 
 
 46 
 
 Bonafie v. Woodberry, 
 
 
 101 
 
 Bromley v. Holland, . 
 
 
 52, 
 
 360 
 
 Bonethorn v. Hockmore, 
 
 
 446 
 
 Brookfield v. Williams, 
 
 
 
 75 
 
 Bonner v. Bonner, 
 
 
 569 
 
 Broom v. Broom, 
 
 
 711, 
 
 712 
 
 Bond, Matter of. 
 
 
 627 
 
 Brooke v. Enderley, . 
 
 
 92, 
 
 102 
 
 Boody V. United States, 
 
 
 101 
 
 . V. Gaily, 
 
 
 
 380 
 
 Boom V. City of Utica, 
 
 
 398 
 
 Brown v. Argall, , 
 
 
 
 715 
 
 Booth V. Booth, 
 
 
 513 
 
 V. Bement, 
 
 
 466, 
 
 457 
 
 Bor V, Bor, 
 
 
 545 
 
 V. Bonner, 
 
 
 
 80 
 
 Bordman v. Osborn, . 
 
 
 127 
 
 V. Clark, 
 
 
 636, 
 
 639 
 
 Bossanquet v. Wray, . 
 
 : 92 
 
 101 
 
 V. Davis, 
 
 
 
 359 
 
 Bosquet V. Huger, 
 
 
 100 
 
 V. Edington, 
 
 
 
 156 
 
 Bostwick, Matter of, . 
 
 
 627 
 
 V. Elton, . 
 
 
 501, 
 
 636 
 
 Bostwick V. Adams, . 
 
 
 605 
 
 V. Fisher, 
 
 
 198, 
 
 674 
 
 Bosvill V. Blander, 
 
 
 637 
 
 V. Haff, . 
 
 
 ^VVf 
 
 290 
 
 Bottaford v. Buit, 75, 29, 
 
 2, 416, 600, 
 
 603 
 
 V. Mayor of Brooklyi 
 
 
 
 397 
 
 Bouton V. City of Brooklyn, 
 
 . 37, 
 
 698 
 
 V. Peck, . 
 
 , 
 
 
 528 
 
 Boutbfeo V. Stubbs, 
 
 
 109 
 
 V. Quilter, 
 
 
 
 137 
 
 Bovery v. Smith, 
 
 . 
 
 608 
 
 V. Rickets, 
 
 
 
 172 
 
 Bowden v. M'Leod, 
 
 
 742 
 
 V. Story, . 
 
 
 
 193 
 
 Bowers v. Lease, 
 
 
 750 
 
 V. Woodworth, 
 
 
 
 391 
 
 V. Smith, 
 
 
 557 
 
 Brockenridge v, Duncan, 
 
 
 
 495 
 
 V. Strathmore, 
 
 . 
 
 381 
 
 Brockway v. Wells, 
 
 
 428, 
 
 448 
 
 Boydv. Dunlap, 
 
 
 214 
 
 Broderic v. Broderic, . 
 
 
 148, 
 
 168 
 
 V. McLean, 
 
 74, 416, 
 
 600 
 
 Bromley v. Holland, 
 
 
 
 360 
 
 V. MuiTay, 
 
 
 336 
 
 v. Jeffers, 
 
 
 
 267 
 
 V. Vanderkemp, . 
 
 298, 302, 
 
 309 
 
 Brooks V. Marbury, . 
 
 
 
 466 
 
 Boynton r. Hubbard, . 
 
 . 181, 
 
 211 
 
 Bronson v. Cahill, 
 
 
 
 seT' 
 
SIT 
 
 Table op Cases. 
 
 Brownell v. Curtis, 
 
 
 837 
 
 ■V. Hawkins, . 
 
 
 456 
 
 Browning v. Morris, . 
 
 
 224 
 
 V. Pettis, 
 
 
 239 
 
 Brudnell y. Bougliton, 
 
 
 488 
 
 Brufjes, Matter of. 
 
 
 688 
 
 Brusli V. Ware, . 
 
 . 
 
 165 
 
 Biydges v. Watton, 
 
 
 536 
 
 Bryan v. Kniclterbacker, 
 
 239, 
 
 424 
 
 Buclian v. Sumner, 
 
 
 
 438, 439, 49C 
 
 , 711, 712, 
 
 720 
 
 Buckle V. Mitchell, 
 
 
 303 
 
 Buffar V. Bradford, 
 
 
 511 
 
 Buffalo V. Buffalo, 
 
 
 174 
 
 Bull V. Church, 
 
 
 551 
 
 V. Storie, 
 
 
 73 
 
 Bulkley v. Stare, 
 
 
 164 
 
 Bumpt'on, Ex parte. 
 
 . 
 
 689 
 
 Bunn V. Biker, . 
 
 
 225 
 
 Bunell V. Philips, 
 
 
 125 
 
 Burckle v. Eckart, 
 
 '. 709, 
 
 710 
 
 Burdick v. M'Vanuer, 
 
 
 457 
 
 Burbank v. Whitney, . 
 
 
 593 
 
 Burden v. Dean, 
 
 
 636 
 
 Burgess v. Smith, 
 
 
 348 
 
 V. Robinson, . 
 
 
 534 
 
 V. Wheate, . 
 
 ; 40, 
 
 47 
 
 Bm-ke, Matter of, 
 
 
 627 
 
 Burnberry's case. 
 
 
 199 
 
 Burnett v. Dennison, . 
 
 '. ii2 
 
 447 
 
 Burn V. Carvilho, 
 
 
 464 
 
 Burlcton v. Humphrey, 
 
 
 525 
 
 Burrall v. Schell, 
 
 '. 514 
 
 517 
 
 Burr V. Burr, . 74, 44, 
 
 2, 657, egS, 
 
 671 
 
 Burr, Matter of. 
 
 . 199 
 
 690 
 
 Burr V. Veeder, . 
 
 . 446 
 
 448 
 
 Burtis V. Burtis, . 
 
 
 652 
 
 Burrall v. Jewett, 
 
 
 384 
 
 Bussey v. Grant, . 
 
 
 98 
 
 Butcher v. Butcher, . 
 
 207, 226 
 
 302 
 
 Butler V. Butler, 
 
 . 492, 626 
 
 627 
 
 V. Freeman, 
 
 
 360 
 
 V. Lewis, 
 
 
 438 
 
 T. Miller, 
 
 243 
 
 457 
 
 Byren:v. Komaini, 
 
 
 283 
 
 Byrne v. Van Hoesen, 
 
 
 621 
 
 
 
 
 
 Cadrogan v. Kenuett, 
 
 . 226 
 
 235 
 
 Cage V. KuSsell, 
 
 
 56 
 
 Carnes v. Chabert, 
 
 
 125 
 
 Caldwell v. Wentworth, 
 
 
 97 
 
 V. Shipherd, . 
 
 
 174 
 
 Calcraft V. Roebuck, 
 
 
 296 
 
 Calvei-y v. Williams, 
 
 
 296 
 
 Calloway v. Langhome, 
 
 
 490 
 
 Caryfoot, Matter of. 
 
 
 686 
 
 Campbell v. Frink. 
 
 
 82 
 
 V. Messier, . 
 
 
 116 
 
 V. Morrison, 
 
 
 353 
 
 V. Macomb, . 
 
 
 452 
 
 V. Scott, 
 
 
 385 
 
 V. Walker, . 
 
 , 
 
 187 
 
 Camp V. Pulver, 
 
 
 153 
 
 Canal Com. v. The People, 
 
 
 574 
 
 fiann v. Caun, 
 
 
 68 
 
 Candler r. Pstlt, 
 
 
 238 
 
 Canfield v. Munger, . 
 
 V. Morgan, 
 Gary v. Bertie, 
 Carey v. Milliken, 
 Carson v. Hill, 
 Carpenter v. King, 
 Carter v. Boehm, 
 Can'ick v. Vickery, 
 Carpenter v. Brown, 
 Carleton v. Earl of Dorset, 
 Case T. Abeel, 
 Cash T, Giles, 
 Casborne v. Bamham, . 
 Casey v. Holmes, 
 Cathcart v. Robinson, . 
 Catlin V. Valentine, 
 Caw T. Robertson, 
 Chamness t. Cruchfleld, 
 Champlin v. Laytin, 
 
 321 
 
 525, 526 
 
 37, 343 
 
 . 101 
 
 . 114 
 
 I5l, 167 
 
 . 190 
 
 296, 297 
 
 480,. 481 
 
 708, 
 
 59, 60, 
 
 718 
 157 
 171 
 267 
 267 
 391 
 524 
 55 
 63 
 
 111, im 
 
 Champion v. Browp, 108, 567, 610, 771, 298 
 
 V. Bostwick, 
 Champlain t. Haight, 
 
 T. The People, 
 Champerson v. Gubbs, 
 Chappedelaine v. Dukemaux, 
 Chapman v. Albany and S. Railroad, . 
 T. Koops, 
 V. Murch, 
 Charleston Ins. Co. t. Potter, 
 Chaworth v. Beach, .... 
 Chandos v. Talbot, 508, 513, 519 
 
 Charles River Bridge v. Warren Bridge, 
 Chandler v. Thompson, 
 Charter v. Stevens, 
 Chancey's case, . 
 Chamberlain v. Hewson, 
 Chapin v. Weed, . 
 Chalmers v. Goodwin, 
 Charitable Corporations v. SuttoD; 
 Chase v. Barnett, 
 Cheeney's case, . 
 Cheesborough v. Millard, 
 Chesterfield v. Jansen, 
 Chesterman v. Gardner, 
 Chesden v. Lorens, 
 Ching V. Ching, . 
 Chitty V. Naish, 
 Child V. Danbidge, 
 V. Morrin, . 
 Chilcott V. Trimble, . 
 Christie v. Bogardus, 
 
 V. Craig, 
 Church V. Bull, 
 Christie, Matter of. 
 City of London v. Richmond, 
 C. and K. Turnpike v. M'Connolly, 
 City of London v. Nash, 
 City Bank v. Bangs, . 
 City of Cincinnati v. White, 
 Clark V. Brown, 
 ' V. Cuming, 
 
 V. Butcher, 
 
 V. Hull, . 
 
 V. Lawyer, 
 
 V. Fisher, 
 
 V. White, . 
 
 v. Price, . 
 
 V. Hall, . 
 
 709 
 
 494 
 
 208 
 
 136 
 
 143 
 
 409 
 
 74 
 
 149 
 
 168 
 
 504 
 
 521 
 
 394 
 
 295 
 
 458 
 
 543 
 
 569 
 
 606 
 
 627 
 
 752 
 
 709 
 
 81 
 
 337 
 
 148 
 
 25l 
 
 68 
 
 77 
 
 101 
 
 210 
 
 501 
 
 626 
 
 353 
 
 362 
 
 549 
 
 682 
 
 136 
 
 259 
 
 266 
 
 322 
 
 583 
 
 56 
 
 ll7 
 
 63 
 
 124 
 
 146 
 
 675 
 
 . 149 
 
 . 277 
 
 301, 443 
 
 352, 
 
 146, 
 
Table of Cases. 
 
 Clark V. Berkley, 
 v. Clark, . 
 V. Henry, 
 V. Maiiran, 
 V- Parker, 
 Clarkson v. Hanway, 
 Classon v- Classon, 
 V. Morris, 
 Clason y. Bailey, 
 Clay, Ex parte, . 
 Clayering v. Clavering, 
 
 V. Westley, 
 Claverly v. Williams, 
 Claytto's case, 
 Cleaves v. Spurling, 
 Clement v. Brush, 
 Clever v. Willoughby, 
 Clifford V. Beaurriont, 
 
 V. Brooke, 
 Clinman v. Cook, 
 ClithereU v. Ogilvie, 
 Clows V. Dickinson, 
 V. Higginson, 
 Clute V. Bobinson, 
 Coates V. Cheever, 
 
 V. Holebrook, 
 Cockburn v. Thompson 
 Cockerell v. Barber, 
 
 V. Cholmeley, 
 
 Cockran v. Webb, 
 
 Codd v^ Codd, . 
 
 Coddington v. Bay, 
 
 Coffin v. Coffin, . 
 
 V. Cooper, . 
 
 Coggeshall v. Pelton, 
 
 Coles V. Brown, . 
 
 V. Coles, 
 
 V. Treoothick, . 178, 
 
 Cole V. Gibson, . 
 
 V. Kobins, . 
 
 V. Savage, . 
 
 V. Wendell, . 
 
 Coleman v. Coleman, 
 
 Colegrove v. Horton, 
 
 Collier's case, 
 
 Collins y. Barrow, 
 
 V. Collins, 
 
 V. Tony, 
 
 Colson V. Thompson, 
 
 Colpoys V. Colpoys, 
 
 Colt V. Lasnier, 
 
 Colton V. Ross, . 
 
 Compton V. Jones, 
 
 Conrad v. Williams, 
 
 Conro V. Port Heniy Iron Co. 
 
 48, 90, 
 
 Connelly v. Pierce, 
 
 ConoUy v. Pardon, . . 
 
 Constantine v. Constantino, 
 
 Cook V. Clayworth, 
 
 v. Manners, 
 Cook, Ex parte, . 
 Cookson V. Cookson, 
 Cooper V. Eemsen, 
 V. Slower, 
 V. Whitney, 
 Cooper, Matter of, 
 Coombe, Ex parte, 
 
 . 526 
 
 332, 625 
 
 428, 429 
 
 . 463 
 
 . 525 
 
 . 203 
 
 . 704 
 
 . Ill 
 
 . 267 
 
 . 727 
 
 . 872 
 
 . 136 
 
 70, 73 
 
 101, 102 
 
 524 
 
 . 717 
 
 . 155 
 
 215 
 
 309 
 
 284 
 
 266 
 
 119 
 
 288 
 
 290 
 
 372 
 
 403 
 
 108 
 
 536 
 
 83 
 
 76, 
 
 581, 
 
 64, 
 
 354, 356 
 
 . 667 
 
 257, 359 
 
 .■'372 
 
 290 
 
 588 
 
 289 
 
 433, 437, 710 
 
 203, 265, 284 
 
 . 208 
 
 . 200 
 
 221 
 
 498 
 
 502 
 
 . 486 
 . 146 
 484, 512, 667 
 433, 437 
 . 291 
 . 497 
 . 569 
 . 146 
 . 462 
 . 214 
 
 108, 327, 401 
 . 296 
 491, 492 
 493, 496 
 200, 303 
 . 455 
 . 727 
 
 . yii 
 
 528, 529 
 . 370 
 . 432 
 . 624 
 . 441 
 
 Coomis V. EUing, 
 
 , 
 
 474 
 
 Consequa v. Fanning, . 
 
 
 142 
 
 Conyers v. Lord Abergaveny, 
 
 
 324 
 
 Copis V. Middleton, 
 
 lib 
 
 227 
 
 Corbitz V. Poelnitz, 
 
 
 651 
 
 Corbyn v. French, 
 
 
 510 
 
 Corey v. Corey, 
 
 
 200 
 
 Gortelou v. Lansing, . 
 
 
 456 
 
 Cprlies v. Cummings, . 
 
 
 125 
 
 Coming V. Lowrey, 
 
 
 392 
 
 V. McCuUongh, 
 
 
 752 
 
 V. Troy Iron Co. 
 
 343 
 
 344 
 
 Coming, Ex parte, 
 
 
 441 
 
 Comeforth v. Gfeer, 
 
 . 
 
 77 
 
 Corporation of Carlisle v. Wilson, 
 
 
 91 
 
 Corwin v. Merritt, 
 
 
 560 
 
 Coster V. Lorillard, 
 
 
 477 
 
 Cottington v. Fletcher, 
 
 
 414 
 
 Cooth V. Jackson, 
 
 .> 
 
 286 
 
 Countess of Lincoln v. The Duke of New- 
 castle, . . . 475, 498 
 Plymouth v. Throgmortou, 131 
 Strathmore v. Bowers, 480 
 Coutan V. Schuyler, . . . 555 
 V. Williams, , . . 319 . 
 Coventry v. Earl of Coventry, 299 
 Couch V. Delaplaine, .... 461 
 T. Ulster and D. Tump. Co. . 362 
 Covenhoven v. Shuler, 830, 332, 490, 491 
 
 Cowell V. Price, 
 
 Cowles V. Woodruff, . 
 
 Cowper V. Clerk, 
 V. Cowper, 
 V. Scott, 
 
 Cowperthwaite v. Sheffield, 
 
 Cox V. Smith, 
 
 Cozine v. Graham, 
 
 Crabtree v. Bramble, . 
 
 Crafts V. Aspinwall, 
 
 Craig V. Craig, . 
 
 V. Leslie, . 47, 
 
 Cram v. Hendricks, 
 V. Mitchell, 
 
 Cramer v. Higgins, 
 
 Cranmer, Matter of, 
 
 Cranffler's case, . 
 
 Crary v. Goodman, 
 V, Smith, . 
 
 Craythorn v. Swinbum, 
 
 Creagh v. Wilson, 
 Crew V. Turnival, 
 
 Cricket v. Dolby, 
 Croft V. Day, . _ . 
 Crocket v. Dodge, ' . 
 Crone v. Odell, . 
 Crompton v. Sale, 
 Cross V. Lewis, . 
 Crosby v. Hillyer, 
 Croton Turnpike v. Eyder, 
 Crow V. Ballard, 
 Crowder, Ex parte, 
 Crozier v. Eice, . 
 Cripps V. Bead, 
 Cruikshanks v. Rose, . 
 Cruger v. Cruger, 
 
 V. Halliday, 
 Cruise v. Christopher, 
 v. Bailey, 
 
 163 
 
 . 47 
 
 . 325 
 
 37, 490 
 
 . 545 
 
 463, 464 
 
 . 704 
 
 . 282 
 
 47, 299 
 
 . 455 
 
 553, 555 
 
 271, 299, 300, 601 
 
 223, 224 
 
 605, 612 
 
 . 100 
 
 . 677 
 
 . 543 
 
 35G 
 
 290 
 
 116 
 
 525 
 
 278 
 
 514 
 
 122 
 
 404 
 
 490 
 
 543 
 
 396 
 
 465 
 
 108, 
 
 394, 
 
 204 
 727 
 64 
 153, 
 101 
 649 
 612 
 202 
 61S 
 
Tablk of Cases. 
 
 Crumb, Ex parto, 
 Cud V. Rutter, . . ! 
 Cudworth v. Thompson, 
 Cummings v. White, . 
 Cumberland v. Codrington, . 
 Cumpston v. McNair, . 
 Curtis V. Curtis, 
 Cushney v. Henry, 
 Cuthbert v. Haley, 
 Cutler V. Powell, 
 Cuyler v. Ensworth, . 
 
 D 
 
 Dakin v. Derning, 
 
 V. Hudson River Railroad, 
 Dale V. McEvers, 
 
 V. Roosevelt, 
 Dana v. Valentine, 
 Danell y. Molesworth, . 
 Daniel v. Davison, 
 v. Faulkner, 
 v. North, . 
 Dapre v. Thompson, . 
 Darley v. Darley, 
 Dartmouth College v. Woodward 
 Darwin v. Upton, 
 Dashwood v. Blithway, 
 V. Bulkley, . 
 Davenport v. Davenport, 
 Davidson, Matter of, , 
 Davis' case, 
 Davis V. Hone, . 
 
 y. Dodd, . 
 
 V. Earl of Strathmore, 
 
 V. Mayor of N. Y. 
 
 V. Shield, . 
 
 V. West, 
 
 Davou V. Farming, . 186, 187 
 Davy V. Davy, 
 Dawes v. Swan, 
 Dawson v. Cole, . 
 V. Wood, 
 Day V. Merry, 
 V. Trigg, 
 Dazell V. Odell, . 
 D'Aguilar v. D'Aguilar, 
 Dealty v. Murphy, 
 Deane v. Test, 
 De Baranti v. Gott, 
 De Caters v. Le Ray Chaumond, 
 De Costa v. De Pas, 
 
 V. Scandret, . 
 Decouche v. Savetier, . 
 De Forest v. Frary, 
 Defreeze v. Trumper, . 
 Degraffenseid v. Donald, 
 Degraw v. Classon, 
 Deg v. Deg, 
 Deeks v. Strutt, . 
 De la Garde v. Lempriere, 
 De, la Vigaire v. Bush, 
 Delmonioo v. Guillanme, 
 Delony v. Hutchinson, 
 De Maimbray, 
 
 De Manneville v. De Mannevilje, 
 Demarest v. Wynkoop, 249, 444, 445 
 Den V. Kinny, 
 
 239, 
 
 623 
 
 271 
 627 
 91 
 567 
 709 
 695 
 610 
 222 
 181 
 107 
 
 . 560 
 . 560 
 . 445 
 69, 75 
 . 383 
 . 517 
 . 251 
 . 126 
 . 394 
 68, 70 
 . 626 
 729, 744 
 . 395 
 . 451 
 . 527 
 . 383 
 . 628 
 . 630 
 . 293 
 
 . 438 
 
 405, 739 
 
 268, 414 
 . 56 
 
 613, 606 
 . 134 
 . 493 
 . 462 
 . 244 
 . 372 
 . 500 
 . 213 
 
 661, 665 
 . 204 
 . 492 
 . 482 
 
 187, 606 
 . 580 
 
 151, 168 
 . 482 
 . 462 
 . 157 
 . 353 
 
 421, 522 
 
 . 414 
 
 501 
 
 . 638 
 
 452 
 
 711 
 
 . 712 
 
 . 456 
 
 369, 623 
 
 , 608, 618 
 
 370 
 
 Dennison v. Cook, . - -. - 225 
 
 Dent V. Bennett, 175 
 
 Denton v. Denton, .... 666 
 
 V. Nannv, . . . .433 
 
 V. Stewart, . . . .309 
 
 De Peyster v. Clarkson, . . 613, 625 
 
 V. Clendining, 330, 423, 424, 470 
 
 Depuy V. Johnson, .... 107 
 
 De Reimer v. De Cantillon, . . . 163 
 
 De Rivafinoli v. Corsetti, . . 277, 278 
 
 De Vanbagh v. De Vanbagh, 655, 656 
 
 De Vaynes v. Noble, . . . 193, 720 
 
 De Vean v. Fowler, . . . _ . 104 
 
 Devoe v. The Penrose Bridge, . ' . 399 
 
 Dewey v. Hoag, ..... 356 
 
 De Witt V. Sch'oonmaker, . . 499, 501 
 
 V. Yates, . . . .539 
 
 Dey V. Dunham, 254, 256, 428, 429, 430 
 
 Dias V. Bochaud, . . . .108 
 
 Dickenson v. Dicltenson, ... 77 
 
 Dickerson v. Philips 463 
 
 Diggs V. Wolcott 348 
 
 Dillon V. Parker, .... 544 
 
 Disbrow v. Henshaw, .... 624 
 Dispey v. Robertson, .... 325 
 
 Ditillan v. Gale, 448 
 
 Divver v. McLaughlen, . . 241, 467 
 
 Dix V. Reed, 536 
 
 Doane v. Eddy 243 
 
 Dob V. Halsey 193, 709 
 
 Dobbins v. Bownan, . . 490, 491 , 
 
 Dobsonv. Racey 605 
 
 Doddington v. Hallet, .... 710 
 Dodge V. Strong, .... 347, 358 
 
 Doe V. Ball, 240 
 
 V. Howland, 486 
 
 V. Mannmg, 234 
 
 V. Micklem, .... 492 
 
 V. Routledge, .... 234 
 
 V. Sanburn, 57 
 
 V. Snelling, . . . 486 
 
 V. Starlake, 492 
 
 V. Toffield 499 
 
 Doloret v. Rothschild, . . . 277, 298 
 Donovan v. Fenn, .... 238 
 
 Donne v. Lewis, 664 
 
 Dorr V. Shaw, .... 337, 339 
 Dorland v. Dorland, .... 522 
 Dorsay v. Ganaway, . . . .101 
 
 Doty V. Whittlesey 853 
 
 Douglass' case 688 
 
 Douglass V. White, .... 466 
 V. Wiggins, . . . .378 
 Doughty V. BuU, .... 47 
 Downing v. Pahnateer, . .379 
 
 Dews v. Morewood, .... 98 
 Dox V. Barkenstose, . . . 240, 387 
 Drake y. Hudson River Raih-oad, 402, 740 
 
 Draper's case 481 
 
 Drew V. Hanson, . . . . 296 
 
 V. Clerk, 68 
 
 Drummond v. Magee, . . . 654 
 Druse v. Dennison, . . , 496, 545 
 Dubois V. Doubleday, .... 462 
 Dubourg V. United States, ... 91 
 Dudley v. Littlefleld, . . . .712 
 V. Mayhew, • . . . 38S 
 Drury v. Hook, 210 
 
Table of Cases. 
 
 XVLl 
 
 Draty V. Smith, . 
 
 . 554, 556 
 
 ■ Elton V. Elton, . 
 
 
 
 525 
 
 Duffield V. Elwes, 
 
 555, 556 
 
 Elton, Ex parte, . 
 
 
 
 727 
 
 Duke of Bedford v. British Museum, . 280 
 
 Elwes V. Maw, 
 
 
 
 875 
 
 Grafton v. Hilbard, 
 
 389 
 
 Elwood V. Dieffendorff, 
 
 109 
 
 111 
 
 , 489 
 
 Hamilton v. Mohun, 
 
 . 210 
 
 Ellsworth V. Cook, 
 
 
 
 239 
 
 Rutland v. Rutland, 
 
 . 561 
 
 V, Cuylcr, . 
 
 
 
 239 
 
 Somerset v. Cooltson, 
 
 . 364 
 
 Ely V. Adams, 
 
 
 
 497 
 
 St. Albans v. Beauclerk 
 
 . 540 
 
 Emerson v. Davis, 
 
 
 
 384 
 
 Dulles V. De Forest, . 
 
 . 101 
 
 Emory v. Tichout, 
 
 
 
 101 
 
 Duncan v. Lyon, 86, 161, 163, 353, 355 
 
 Emmons v. Cairn, 
 
 
 
 461 
 
 Duncomb v. Mayor, 
 
 . 307 
 
 Enders v. Enders, 
 
 
 504 
 
 558 
 
 Dungey t. Angoor, 
 
 . 317, 318 
 
 England v. Downs, 
 
 
 211 
 
 212 
 
 Dunham v. Day, . 
 
 . 431 
 
 V. Jackson, 
 
 
 
 289 
 
 Dunkley v. Van Buren, 
 
 449, 450 
 
 Ensign v. Colburn, 
 
 370 
 
 371 
 
 434 
 
 Dunn V. Chambers, 
 
 . 202, 205 
 
 Errat v. Barlow, . 
 
 
 
 629 
 
 Dunscomb v. Dunscomb, 
 
 .' 614 
 
 Evans v. Bigley, 
 
 
 
 208 
 
 Durant v. Durant, 
 
 . 662 
 
 v. Bicknell, 
 
 
 149 
 
 435 
 
 Dustan v. Dustan, 
 
 . 523 
 
 V.Ellis, . 
 
 
 
 445 
 
 Dryden v. Frost, . 
 
 . .609 
 
 V. Evans, . 
 
 
 
 718 
 
 Dutch Church v. Mott, 
 
 
 Evertson v. Booth, 
 
 
 
 337 
 
 290, 573, 581, 610, 611, 734, 735, 736 
 
 V. Evertson, . 
 
 
 
 445 
 
 Dwight V. Pomroy, 
 
 . 76 
 
 V. Tappan, 
 
 
 
 188 
 
 Dyer v. Hargrave, 
 
 . 296 
 
 Eyre v. The Countess of Shaftsbury, 
 
 
 T. Rice, 
 
 . 289 
 
 
 623 
 
 624 
 
 629 
 
 Dyett -V. Pendleton, . 
 
 E 
 Eager v. Price, 
 
 . 128 
 
 Exall V. Patridge, 
 
 
 
 109 
 
 . 239 
 
 F 
 Fairchild v. Holly, 
 
 
 100 
 
 102 
 
 Earl of Arglasse v. Muschamp, 
 
 . 270 
 
 Falls V. Carpenter, 
 
 
 
 301 
 
 Bath T, Shirwin, 
 
 . 61, 326 
 
 Fanning v. Dunham, . 46 
 
 , 47 
 
 216 
 
 303 
 
 Chesterfield v. Jansseen, 
 
 . 182 
 
 Farmers' Fire Ins. Co. v. Edwards, 
 
 
 442 
 
 Coventry v. Coventry, 
 
 29 
 
 Farnam v. Brooks, 
 
 
 
 190 
 
 Clarendon v. Hornby, 
 
 . 705 
 
 V. Campbell, . 
 
 
 
 239 
 
 Cowper V. Baker, . 
 
 . 382 
 
 Farrant v. Lovel, 
 
 
 
 381 
 
 Ripon V. Hobert, 
 
 392 
 
 Farrington v. Knightly, 
 
 490, 
 
 498 
 
 561 
 
 Earl V. Thombery, 
 
 . 70 
 
 Faulkner v. Daniel, 
 
 
 
 126 
 
 Earlon v. Saunders, 
 
 . 299 
 
 Featherstohhaugh v. Fenwick 
 
 
 
 716 
 
 East India Co. v. Boddam, . 
 
 51, 52 
 
 Fellows V. Fellows, 
 
 
 
 342 
 
 V. Donald, . . 
 
 . 78 
 
 Fenwick v. Chapman, 
 
 
 
 487 
 
 V. Neve, 
 
 . 78 
 
 Ferard v. Prentice, 
 
 
 
 328 
 
 East V. Cooke, 
 
 . 492 
 
 Ferguson v. Ferguson, 
 
 
 
 434 
 
 Eohliff V. Baldwin, . 
 
 . 362 
 
 v. Kimball, 
 
 
 434, 
 
 450 
 
 Eddy V. Traver, . 
 
 . Ill 
 
 V. Lee, 
 
 
 "J 
 
 557 
 
 Edie V. Davidson, 
 
 . 721 
 
 V. Norman, . 
 
 
 
 124 
 
 Edgell V. Haywood, . 
 
 . 238 
 
 V. The Union Trust Co. 
 
 
 243 
 
 Edgerton v. Peckham, 
 
 294, 296 
 
 V. Union Furnace Co. . 
 
 
 458 
 
 Edmeston r. Lydes, . 
 
 . 401 
 
 Ferrars, Ex parte, . . 
 
 
 689, 
 
 690 
 
 Edwards V. Child, 
 
 . 76 
 
 Fen-is v. Crawford, 
 
 
 
 306 
 
 V. Harben, . 
 
 243 
 
 FerroU v. Shaen, 
 
 
 
 222 
 
 V. Meywick, . 
 
 172 
 
 Fettiplace v. Gorges, . 
 
 
 
 651 
 
 Edward v. Hitherington, 
 
 . 156 
 
 Fells V. Read, , 
 
 276, 
 
 364, 
 
 365 
 
 Edwin V. East India Co., . 
 
 . 76 
 
 Field V. Field, . 
 
 'J 
 
 ) 
 
 589 
 
 Eedes v. Eedes, .... 
 
 . 636 
 
 V. Holland, 
 
 
 
 98 
 
 Egberts V. Wood, 104, 464, 465, 7( 
 
 )8, 716, 719 
 
 V. Shieflelin, 
 
 
 
 625 
 
 Egbert v. Pemberton, . 
 
 . 238 
 
 Finch V. Brown, 
 
 
 
 445 
 
 Ellis V. Graves 
 
 . 445 
 
 V. Earl of Winchelsea, 
 
 
 74, 
 
 303 
 
 V. Lewis, .... 
 
 549, 550 
 
 V. Finch, . 
 
 
 
 647 
 
 V. Minervie, 
 
 . 173 
 
 Fish V. Dodge, 
 
 
 390, 
 
 394 
 
 V.Walker, . 
 
 . 504 
 
 V. Howland, 
 
 
 
 443 
 
 Elliot V. Adair, . . . '. 
 
 . 510 
 
 V. Wilbur, . 
 
 
 
 392 
 
 V. Davenport, . . . 
 
 . 511 
 
 Fisher v. Fields, 
 
 
 412, 
 
 413 
 
 V. Pell 
 
 . 428' 
 
 V. Samuda, 
 
 
 
 157 
 
 Elibank v. Montolieu, . 
 
 . 636 
 
 Fitch V. Smith, . 
 
 
 
 239 
 
 Eldridge v. Hill, 
 
 . 323 
 
 Fitchet V. Adams, 
 
 
 
 531 
 
 Ellison V. Moffat, 
 
 . 144 
 
 Fitzgerald v. Peck, 
 
 
 
 68 
 
 Elmendorffv. Lansing, 
 
 329, 368 
 
 Fitzroy v. Guillam, 
 
 
 
 225 
 
 Elting V. Bank of 0. S. . 
 
 . 71 
 
 
 
 
 45 
 
 Eq. Job. 
 
 3 
 
 
 
 
 
xvm 
 
 Flavel V. Harrison, 
 FlemiBg v. Slocum, 
 flint V. Brandon, 
 Floyd V. James, . 
 rolsom V. Marsh, 
 Fonda v. Van Home, 
 Fonereau v. Fonereau, 
 Fontaiu v. Ravenal, 
 Forrester v. Leigh, 
 Foote, Appellant, 
 Ford V. Peering, . 
 V. Stuart, . 
 Forde v. Hcrron, 
 Fornereau v. Fomereau, 
 Forster v. Hale, . 
 Fort V. Bureh, 
 Foshay v. Ferguson, 
 Foster v. Blagden, 
 
 V. Charles, 
 
 V. Foster, . 
 Fowle V. Freeman, 
 Fowler v. Fowler, 
 
 V. Williams, 
 
 V. Willoughby, 
 
 V. Wood, 
 Fowler, Matter of. 
 Fox V. Hanbury, 
 V. Mackreth, 
 V. Wright. . 
 Foxcraft V. Lister, 
 Francia v. Joseph, 
 France v. Bolton, 
 R-anklin v. Van Cott, 
 Frazer v. Frazer, 
 
 V. Western, 
 Frazier v. Hyland, 
 Frederick v. Frederick, 
 Freeland v. Heron, 
 Freeman v, Bakor, 
 Freeman's case, . 
 Freke Y. Farrington, 
 French v. Bacon, 
 
 v. Gardiner, 
 V. Shotwell, 
 Fretwell v. Stacy, 
 Frisby v. Ballan, 
 Frost V. Eaymond, 
 Fry V. Fry, 
 Fuller V. Acker, . 
 
 V. Hubbard, 
 
 V. Yates, . 
 FuUerton v. Jackson, 
 
 Table of Cases. 
 
 147, 
 269, 
 
 580, 
 
 515, 
 413, 
 252, 
 
 136, 
 
 353, 
 187, 188, 
 
 271, 
 
 536, 
 
 547, 
 
 404 
 150 
 277 
 357 
 385 
 621 
 492 
 598 
 507 
 505 
 307 
 462 
 712 
 516 
 414 
 253 
 208 
 669 
 150 
 657 
 267 
 542 
 91 
 504 
 355 
 681 
 721 
 604 
 181 
 285 
 257 
 804 
 455 
 852 
 234 
 100 
 624 
 142 
 14fl 
 684 
 546 
 446 
 161 
 163 
 557 
 263 
 155 
 669 
 457 
 296 
 550 
 621 
 
 Gahn v. Niemcewioz, . . . • . 109 
 Gainsborough v. Giffoi'd, 351, 352, S53, 357 
 
 Gaines v. Chew 146 
 
 Gale V. Linds 210 
 
 Gales T. Shipp, 357 
 
 Ganse, Matter of .... 682 
 
 Gardner v. Adams, . . 242, 262, 268 
 V. Gardner, . . 655, 645, 651 
 V. Lee, .... 37, 698 
 V. Parker, . . .55, 554 
 V. Printup, . . . 503, 506 
 V. Village of Newburgh, . 892 
 Gfirrard v. Lauderdale, . . . 464 
 
 Garret V. Pretty, . . . .525 
 
 Garson v. Green, . ' ■ 124, 443 
 
 Garth v. Cotton, 147 
 
 V. MejTick, . . . 540 
 
 Garthshore v. Chalie, . . . .513 
 Gasquev. Small, . .. 266 
 
 Gates V, Boen, 195 
 
 V- Green,' 57 
 
 V.Madison Ins. Co. . . . 168 
 Gawler v. Standerwicke, . . . 330 
 Gay V. Ballon, . . ... 629 
 
 Genet v. Talmage, . . . 558, 624 
 German V. Machin, . . 267,284,286 
 V. Mosher, .... 45 
 Germond v. Jones, .... 420 
 Getman's Ex'rs v. Beardsley, . . 76 
 
 Getman v. Getman 600 
 
 Getty V. Hudson River K. B. . 3? 
 
 Gibson v. Goldthwaite, 315, 318, 319, 322 
 
 V. Jej-es 204, 677 
 
 V. Smith, . . 138, 369 
 
 V. Woodworth, . . .384 
 
 Gilford V. Reid 392 
 
 Gilchrist V. Cunningham, . . . 429 
 V. Stevenson, . 249, 569, 608 
 
 V.Ward 101 
 
 Gilbert V.Eden, .' . . . .306 
 V. Gilbert, . . .63, 68, 80 
 
 Gile V. Lyon 37, 698 
 
 Giles, Matter of, . . . ; 689 
 
 Gill V. Dickinson, . . . 454 
 
 Gillaume v. Adderly, .... 504 
 Gillespie v. Moon, 73, 75, 76, 288, 300 
 
 Gillot V. Balcolm 434 
 
 V. Wray 525 
 
 Glenny v. Kitchens 37 
 
 Globe Ins. Co. v. Lansing, . . 450, 452 
 
 Glyn V. Duesbury 318 
 
 Godard v. Snow, .... 212 
 
 Goddard v. Hodges, .... 101 
 Godfrey v. Saunders, . . .87 
 
 v. Watson, . . . .446 
 Going V. Emmery, .... 593 
 Goldsmid v. Groldsmid, . . . 62S 
 G(mian v. Salisbury, . 1 . . . 292 
 Goodtitle v. Maddern, . , . .486 
 Gooding y. McAllister, . . .288 
 Goodrich v. Downs, . . . 466, 467 
 Goodwin v. Richardson, . . . 712 
 
 Gordon v. Hobart 92 
 
 Gordon, Matter of, . . . .690 
 Goring v. Naish, . 263, 803 
 
 Goss V. Nelson, 516 
 
 Gott V. Cook, . . .424, 477, 522 
 Goulbome v. Brooks, .... 519 
 
 Gould V. Banks, 717 
 
 Gould V. Gould, 72 
 
 V. Oliver 250 
 
 Gouvemeur v. Elmendorf, . . .152 
 Governeur v. Lynch, . . 119, 251, 454 
 Gowland v. De Faria, . . . .179 
 Graham v. Dickinson, . . . 565, 566 
 v.Wyck, . . . .642 
 
 Qranard v. Dunken, . . . .388 
 Grant v. Quick, . . . 87, 344, 347 
 V. U. S. Bank, . . .46, 255 
 Graves, Xil goods of, ... . 867 
 Graves v. Merry, .... 718 
 
Table of Cases. 
 
 Graves v. The Boston Ins. Co 
 
 , 
 
 . 76 
 
 Gray v. Cookerell, 
 
 
 . 307 
 
 V. Mathias, 
 
 
 . 306 
 
 V. Russell, . 
 
 
 . 384 
 
 Graydou v. Hicks, 
 
 
 . 526 
 
 Green v. Beals, . 
 
 
 . 717 
 
 yj Bostwick, 
 
 
 . 332 
 
 V. Farmer, 
 
 
 . 124 
 
 V. Hart, . 
 
 
 . 462 
 
 V. Pigot . 
 
 
 . 331 
 
 V. Putnam, 
 
 
 700, 701 
 
 V. Riddle, 
 
 
 . 310 
 
 V. Slaytcr, 
 
 
 249, 252 
 
 V. Smith, . 
 
 
 . 299 
 
 V. Winter, . . 17 
 
 2, 184 
 
 185, 188 
 
 Grecnleaf v. Cook, 
 
 
 . 55 
 
 Gieunlaw v. King, 
 
 
 . 605 
 
 Groenway v. Adams, . 
 
 
 . 809 
 
 Greenway, Ex parte, . 
 
 
 . 53 
 
 Grew V. Duke of Northumbe 
 
 rland, 
 
 . 273 
 
 Gregory v. Forrester, . 
 
 
 . 148 
 
 V. Thomas, 
 
 
 . 458 
 
 Griffith V. Griffith, 
 
 
 . 249 
 
 Griffiths V. Hamilton, 
 
 
 . 146 
 
 V. Spratley, . 
 
 
 . 266 
 
 Grimstone v. Bruce, 
 
 
 . 45 
 
 V. Carter, 
 
 '. 251 
 
 , 253, 431 
 
 Ganell v. Schmidt, 
 
 
 . 198 
 
 Griswold v. Sheldon, . 
 
 
 248, 245 
 
 V. Waddington, 
 
 
 . 717 
 
 Grosse v. Gardner, 
 
 
 . 159 
 
 V. Grover, 
 
 
 . 655 
 
 V. Hugell, 
 
 
 . 804 
 
 V. Wakeman, . 
 
 215 
 
 , 246, 467 
 
 Guest T. Homfray, 
 
 
 295, 296 
 
 Guidot V. Guidot, 
 
 
 . 299 
 
 Guilderland v. Knox, . 
 
 
 . 461 
 
 Guion V. Knapp, 
 
 
 . 454 
 
 Gwin T. Green, 
 
 
 . 320 
 
 V. Melmoth, 
 
 
 . 396 
 
 V. Whittaker, 
 
 
 98, 100 
 
 Gwynne v. Heaton, 
 
 
 . 203 
 
 H 
 
 
 
 Haggerty v. Taylor, . 
 
 
 . 715 
 
 Haigh V. Jaggar,, 
 
 
 . 381 
 
 Haight V. Badgley, 
 
 
 . 277 
 
 Haiues v. Beach, 
 
 
 . 447 
 
 Haire v. Baker, . 
 
 
 . 356 
 
 Hale V. Henry, . 
 
 
 . 712 
 
 HaU V.Hal], 
 
 
 . 684 
 
 V. Marston, 
 
 
 . 100 
 
 V. Reed, 
 
 
 . 64 
 
 V. Tuttle, . 
 
 241, 
 
 243, 458 
 
 V. TYarren, . 
 
 199, 
 
 262, 280 
 
 Hallett V. Boui-field, . 
 
 
 . 123 
 
 V. Thompson, . 
 
 
 . 239 
 
 V. Wylie, 
 
 
 57, 137 
 
 Hallock V. Smith, 
 
 
 124, 443 
 
 Halsey v. Carter, 
 
 
 . 365 
 
 V. Grant, . 
 
 
 269, 296 
 
 V. Reed, . 
 
 
 453, 667 
 
 HaltzapfifeU v. Baker, . 
 
 
 . 137 
 
 Haly V. Goodson, 
 
 
 . 362 
 
 Haman v. Carner, 
 
 
 . 64 
 
 Hamblin v. Dunneford, 
 
 
 . 277 
 
 BamiltouT. Cvtmiaingss 302, 
 
 304, 30( 
 
 5,307,360 
 
 Hamilton v. N. Y. and Harlam Railroad, 402 
 
 V. Russell, . 
 
 
 226, 468 
 
 V. Wright, . 
 
 
 . 605 
 
 Hammersly v. Lambert, 
 
 192, 
 
 193, 719 
 
 Hammond v. Barklay, 
 
 
 . 123 
 
 Hampton v. Spencer, 
 
 
 . 414 
 
 Hanberry v. Litchfield, 
 
 
 251, 296 
 
 Hanby v. Roberts, 
 
 
 . 565 
 
 Hanford v. Artcher, 
 
 
 . 243 
 
 Hajiks, Matter of. 
 
 
 689, 690 
 
 Hansard v. Robinson, . 
 
 
 . 53 
 
 Hansen v. Gardiner, . 
 
 
 139, 882 
 
 V. Graham, 
 
 514, 
 
 515, 516 
 
 Harding v. Randall, . 
 
 
 '. 150 
 
 Hardwick v. Thurston, 
 
 
 . 513 
 
 Harford v. Browning, . 
 
 
 . 539 
 
 Harger v. McCullough, 
 
 
 . 752 
 
 Hargvaves v. Rothwell, 
 
 
 250, 609 
 
 Harker v. Conrad, 
 
 
 . 100 
 
 Harkley v. Sprague, . 
 
 
 . 222 
 
 Harriet v. Gidding, 
 
 
 . 269 
 
 Harris v. Brooks, 
 
 
 : 114 
 
 V. Clark, . 
 
 553, 
 
 554,. 555 
 
 V. Fly, . . 48' 
 
 , 489, 
 
 518, 519 
 
 V. Harris, . 
 
 
 . 601 
 
 V. Warner, 
 
 
 . 115 
 
 Harrington v. Bigelow, 
 
 
 . 361 
 
 Han-ison v. Harrison, 
 
 
 161, 357 
 
 v. Nichols, 
 
 
 . 256 
 
 V. Rowley, 
 
 
 535, 530 
 
 V. Southcote, , 
 
 
 256, 307 
 
 V. Sterry, 
 
 
 . 710 
 
 Harson v.< Beating, 
 
 
 . 630 
 
 Hart V. Drainer, . 
 
 
 . 197 
 
 V. Mayer of Albany, . 
 
 
 383, 399 
 
 v.TenEyck,104,188,3 
 
 63,456,458,614 
 
 V. Windsor, 
 
 
 . 153 
 
 V.Wright, . 
 
 
 . 158 
 
 Hartley v. Rice, . 
 
 
 . 214 
 
 Hartshorn v. Hartshorn, 
 
 
 . 693 
 
 Harvey v. Astor, . 21{ 
 
 >, 216 
 
 525, 531 
 
 V. Harvey, 
 
 
 . 627 
 
 Harwood v. Kirby, 
 
 ■> 
 
 . 126 
 
 Hascall v. The Madison Uni^ 
 
 rersity 
 
 . 406 
 
 Haslewood v. Pope, 
 
 
 565, 568 
 
 Hatch V. Cobb, . 
 
 29i, 
 
 294, 298 
 
 V. Hatch, . 
 
 
 . 186 
 
 V. White, . 
 
 
 450 
 
 Havens v. Foster, 
 
 
 . 64 
 
 V. Hussey, 
 
 
 715, 716 
 
 Haviland v. Myers, 
 
 
 636, 637 
 
 Hawkins v. Taylor, 
 
 , 
 
 . 46 
 
 Hawley v. Bradford, . 
 
 
 649, 696 
 
 V. Clowes, 
 
 
 139, 380 
 
 V. Cramer, 
 
 90 
 
 189,-606 
 
 V. James, 
 
 487 
 
 564, 545 
 
 V. Manners, 
 
 
 161, 339 
 
 V. Ross, 
 
 
 . 464 
 
 Hay V. Palmer, . 
 
 
 . 131 
 
 Hayes v. Ward, . 108, 32' 
 
 ^ 331 
 
 346, 347 
 
 Hays V. Hall, 
 
 
 . 269 
 
 V. Johnson, 
 
 
 . 320 
 
 Haywood v; Judson, . 
 
 
 700, 704 
 
 Head v. Stamford, 
 
 
 . 41 
 
 Heath V. Bendy, 
 
 
 . 650 
 
 V. Hand, . 
 
 
 . Hi 
 
 Heathcote v. Paignon, 
 
 
 202 
 
 Heatly V. Finsterj 
 
 
 . 252 
 
XX 
 
 Tablk of Cases. 
 
 Heatly v. Thomas, 
 Hedges v. Hedges, 
 Hesketh v. Blanchard, 
 Heeny, Matter of, 
 Heermance v. Veraoy, 
 Helmer v. Shoemaker, 
 Hendricks v. Robinson, 
 Henkle v. Royal Exchange, 
 Henry v. Davis, . . 428. 
 Hepburn y. Aud, 
 Herbert's case, 
 Herbert v. Reid, 
 V. Wren, 
 Heslakenden's case, 
 Heme v. Meeres, 
 Hemiiip, Matter of, 
 Herm v. Mills, 
 Herrick v. Borst, 
 Heydon v. Heydon, 
 Higginbotham v. Bennett, 
 Hill V. Bulkley, . 
 V. Day, 
 V. Turner, 
 Killer, Matter'of, 
 Hilliard v. Taylor, 
 Hindes' lessees v. Langworth, 
 Hinman v. Judson, 
 Hitchcock V. Harrington, 
 Hoag, Matter of, 
 Hoath V. Hoath, . 
 Hodges V. Peacock, 
 Hodgson V. Butts, 
 
 V. Hodgson, . 
 V. Shaw, 
 Hadden v. Spader, 
 Hoes V. Vanhoesen, 487, 488, 
 Hoffnagle v. Anderson, 
 Hogeboom v. Hall, 
 Haggart v. Cutts, 
 Holbrook v. Finney, . 
 Holden t. Chambury, . 
 V. Dakin, 
 V. Holden, 
 Iloldridge V. Gillespie, 
 Holford V. Wood, 
 HoUerman y, Hollerman, 
 HoUiday v. Atkinson, . 
 
 V. Marsh, 
 Holhngworth v. Napier, 
 HoUoway v. HoUoway, 
 Holly V. Adams, 
 Holmes v. Coghill, 
 V. Doing, 
 y. Holmes, 
 » y. Tremper, 
 Holmes, Matter of. 
 Holt y. Holt, 
 
 V. Vernon, . 
 Holyland, Ex parte, . 
 Hone V. Schaick, 461, 490, 
 Hooker v. Utioa Turn. Co. 
 Hooley v. Hutton, 
 Hoomes v. Sueorter, 
 Hooper, Ex parte, 
 Hopkins, Ex parte, 
 Hopkins r. Banks, 
 V. Hopkins, 
 V. Mazyck, 
 
 441, 
 
 . 646 
 . 556 
 . 713 
 . 686, 687 
 . 158 
 . 420 
 187, 456, 466 
 . 74 
 i, 432, 447. 448 
 295, 309 
 119, 369 
 . 496 
 699, 700 
 ■- 376 
 . 172 
 342 
 609 
 111 
 721 
 55 
 296 
 704 
 347 
 684, 691, 701 
 569 
 . 234 
 37, 698 
 . 433 
 684, 689 
 . 615 
 516, 541 
 . 227 
 . 638 
 . 110 
 . 237 
 i, 508, 520, 564 
 . 165 
 . 535 
 . 320 
 . 434 
 . 134 
 157 
 . 661 
 188, 447 
 . 539 
 665 
 . 555 
 . 117 
 . 357 
 . 492 
 . 555 
 83 
 . 613 
 640, 669, 697 
 . 377 
 . 678, 681 
 . 186, 188 
 . 565 
 . 690 
 494, 560, 699 
 742 
 540. 
 182 
 441 
 369 
 467 
 412 
 68 
 
 Hopper V. Hopper, 
 
 . 660 
 
 Hopper, Matter of. 
 
 . 691 
 
 Hornblow v. Shirley, . 
 
 . 296 
 
 Home, Matter of. 
 
 . 182 
 
 riornsby's will, . 
 
 . 146 
 
 Horry y. Horry, 
 
 . 55 
 
 Hosack V. College of Physicians, 
 
 . 730 
 
 Hosford y. MeiTin, 
 
 . 600, 704 
 
 Hotham y. East India Co. . 
 
 . 527 
 
 House y. House, 
 
 . 878, 567 
 
 Hovey y. Blakeman, . 
 
 . 561 
 
 V. McCrea, 
 
 . 343 
 
 How y. Bromsgrove, . 
 
 . 324 
 
 Howard v. Harris, 
 
 . 428 
 
 y. Hooker, 
 
 . 696 
 
 V. Moffat, 501, 559, 635, 636, 637, 644 
 
 Howe, Matter of, 
 
 . 442, 586 
 
 HoweU V. Rawson, 
 
 . 172, 173 
 
 Howland y. Rench, 
 
 . 101 
 
 Howson V. Hancock, . 
 
 . 214 
 
 Hoxie y. Carr, 
 
 . 712 
 
 Hoyt y. Geltston, 
 
 . 346 
 
 y. Mackenzie, 
 
 . 387 
 
 y. Storey, . 
 
 . 464 
 
 Hubbard v. Goodwin, . 
 
 . 600 
 
 Hudson and Delaware Canal Co. y. Erie 
 
 Railroad, 
 
 . 392 
 
 Hudson V. Plets, 
 
 . 239 
 
 Huger V. Bosquet, 
 
 . 100 
 
 Hughes y. Edwards, . 
 
 432, 449 
 
 V. Kearneyj . 
 
 . 443 
 
 Huguenin v. Baseley, . 
 
 . 147 
 
 Hulce V. Thompson, . 
 
 . 343 
 
 Hull V. Reed, 
 
 . 59 
 
 Hulme V. Tenant, 
 
 . 647 
 
 Humberston v. Humberston, 
 
 . 636 
 
 y. Stanton, 
 
 .• 517 
 
 Hunt y. Farmers' Loan Co. . 
 
 37, 698 
 
 y. Rousmanier, . 
 
 61', 62 
 
 V. Townsend, 
 
 . 338 
 
 Hunter, Ex parte. 
 
 . 327 
 
 Hunter v. Goudy, 
 
 72 
 
 V. Osterhout, . 
 
 . 98 
 
 Huntington y. Mather, 
 
 458, 459 
 
 Hurst y. Beach, .... 
 
 . 541 
 
 Hussey v. Man. and Mech. Bank, 
 
 . 101 
 
 Hyde y. Hyde, 
 
 . 695 
 
 V. Tanner, 
 
 . 78 
 
 Hyder v. Stone, .... 
 
 . 641 
 
 Hyslop y. Clark, 
 
 . 467 
 
 Hytton y. Hytton, 
 
 I 
 
 Incledon v.' Northcote, . 
 
 . 184 
 
 . 474 
 
 Ingraham v. Porter, 
 
 . 465 
 
 Innes v. Lansing, 
 
 708, 716 
 
 Inwood y. Twyne, 
 
 . 624 
 
 [ron y. Smallpiece, 
 
 ; 554 
 
 trying v. Dikay, 
 
 419, 424 
 
 [senhart v. Brown, 
 
 . 553 
 
 I vie v. Ivie 
 
 . 808 
 
 Jacob V. Fountain, 
 Jacobson y. Williamsott, 
 Jackman v. Mitohall, . 
 
 86 
 
 210 
 
Table of Cases. 
 
 XXI 
 
 Jackson v. Allen, 
 
 
 . 56 
 
 James v. Pritchard, 
 
 . 318 
 
 V. Andrews, 
 
 
 . 373 
 
 V. Semjnens, 
 
 . 640 
 
 V. Ashton, 
 
 
 . 263 
 
 V. Woodruff, 
 
 . 753 
 
 V. Babcock, 
 
 
 . 486 
 
 Janson v. Ostrander, . 
 
 . 730 
 
 v. Blodgett, 
 
 
 . 462 
 
 JaquGs V. Meth. Epis. Church, 48 
 
 3, 647, 651 
 
 V. Bodle, 
 
 
 . 465 
 
 Jarvis v. Palmer, . 
 
 . 75 
 
 V. Brownson, 
 
 
 . 138, 370 
 
 V. Rogers, . 
 
 . 456 
 
 T. Bull, . 
 
 
 485, 486 
 
 Jeffereys v. Jeffereys, . 
 
 . 505 
 
 V. Burgott, 
 
 
 . 253 
 
 V. Small, 
 
 . 706 
 
 V. Butler, 
 
 
 . 307 
 
 Jeffs V. Wood, 
 
 . 543 
 
 V. Caldwell, 
 
 18 
 
 2, 196, 201, 240 
 
 Jemison v. Hapgood, . 
 
 . 607 
 
 V. Cary, 
 
 
 . 412 
 
 Jenkins v. Fryer, 
 
 . 489, 512 
 
 V. Crafts, 
 
 
 . 433, 442 
 
 V. Groat, . 
 
 . 720, 193 
 
 V. Churchill, 
 
 
 . 552, 691 
 
 V. Pye, . 
 
 . 178 
 
 V. Davis, 
 
 
 . 433 
 
 V. Wilds, . 
 
 . 350 
 
 V. De Witt, 
 
 
 . 621, 691 
 
 Jencer v. Morgan, 
 
 . 130 
 
 V. Dubois, 
 
 
 . 255 
 
 Jennings v. Looks, 
 
 . 519 
 
 V. Delaney, 
 
 
 . 420 
 
 Jenks V. Alexander, . 
 
 . 101 
 
 T. Dunlap, 
 
 
 . 441 
 
 Jerome v. Ross, . 
 
 . 382 
 
 V. Duchaise, 
 
 
 . 151 
 
 Jervis v. White, . 
 
 . 305 
 
 T. Edwards, 
 
 
 . 702, 703 
 
 Jervois v. Duke, . 
 
 . 524 
 
 V. Elston, 
 
 
 .• . .253 
 
 Jewitt v. Palmer, 
 
 . 611, 256 
 
 V. Embler, 
 
 
 . 486 
 
 Jewson y. Moulson, . 
 
 636, 639 
 
 V. Feller, 
 
 
 . 602 
 
 Johnson v. Bloodgood, 
 
 . 460 
 
 V. Fleet, 
 
 
 . 412 
 
 V. Corbett, 
 
 . 567, 568 
 
 V. Garnsey, 
 
 
 . 240 
 
 v. Fleet, 412, 414, 41 
 
 5, 416, 419 
 
 X. Given, 
 
 
 . 608 
 
 v. Johnson, . 
 
 . 657, 658 
 
 V. Gumair, 
 
 
 . 199 
 
 Jones V. Bowden, 
 
 . 159 
 
 y. Green, 
 
 
 . 429, 446 
 
 V. Bright, . • . 
 
 . 156 
 
 V. Hall,, . 
 
 
 . 449 
 
 V. Conde, . 
 
 . 449 
 
 . T. Hartwell, 
 
 
 . 735 
 
 V. Great Western Railroad, 
 
 . 405 
 
 T, Hart, . 
 
 
 . 165 
 
 V. Jones, . 
 
 . 664, 605 
 
 V. Henry, 
 
 
 . 249 
 
 T. Kilgore, . 
 
 . 98, 101 
 
 V. Humphrey, 
 
 
 . 253 
 
 V, Lyndes, . 
 
 . 301 
 
 T. Housel, 
 
 
 498 
 
 T. Philips, . 
 
 . 438 
 
 V. Halloway, 
 
 
 . 484 
 
 v. Smith, . 
 
 . 450 
 
 V. Jackson, 
 
 
 . 514, 626 
 
 V. Swan, . 
 
 . 257 
 
 V. Johnson, 254, 42 
 
 5, 429, 431, 436 
 
 V. V?i]liams, 
 
 . 570 
 
 V. King, . 
 
 . 675, 680 
 
 V. Woodhull, 
 
 . 353 
 
 V. Laughhead, 
 
 . 446 
 
 Jordan v. Holkham, . 
 
 . 531 
 
 V. Leek, . 
 
 253 
 
 Joseph V. Ingraham, . 
 
 . 244 
 
 V. Loomis, 
 
 . 310 
 
 Joynes v. Stratham, . 
 
 . 288 
 
 V. Matsdorf, 
 
 . 416 
 
 Judd V. Pratt, . 
 
 . 490 
 
 V. Morse, 
 
 . 416 
 
 T. Traver, . 
 
 . 225 
 
 V. Mowry, 254, 42. 
 
 ), 435, 436, 445 
 
 Judson V. Rossie Galena Co., 
 
 752, 753 
 
 V. Myers, 
 
 . 432, 227 
 
 Jumel V. Jumel, . ' . 
 
 . 453 
 
 V. Merrill, 
 
 . 486 
 
 
 
 V. Nixon, 
 
 . 695 
 
 E 
 
 
 V. Parkhurst, . 
 
 . 441 
 
 
 
 V. Post, . 
 
 . 234 
 
 Kane v. Bloodgood, . . 4S 
 
 ), 425, 462 
 
 V. Potter, 
 
 . 484 
 
 v. Gott, . . . 42> 
 
 !, 460, 587 
 
 V. Peck, . 
 
 . 230 
 
 V. Vandenburgh, 
 
 . 381 
 
 V. Phipps, 
 
 . 465 
 
 Kane, Matter of, . 
 
 • 627 
 
 V. Robinson, . 
 
 . 420 
 
 Keaf V. Allen, . . . . 
 
 . 210 
 
 V. Sternberg, . 
 
 . 416, 600 
 
 Keane v. Roberts, 
 
 . 569- 
 
 T. Sharp, 
 
 . 253 
 
 Kebble, Ex parte. 
 
 . 629 
 
 V. Timmerman, 
 
 . 468 
 
 Keisenbrack v. Livingston, 75, 7 
 
 6, 288, 300 
 
 V. Tuttle, 
 
 . 253 
 
 Kellogg V. Slawson, . 
 
 . 246 
 
 V. Vandalfson, 
 
 ; 607 
 
 Kelly v; Kelly, . . . . 
 
 86, 87 
 
 V. Van Valkenburgh 
 
 , . . 431 
 
 Kelsey v. Western, 
 
 488, 520 
 
 V, Van Schoonho^en 
 
 i ; . 433 
 
 Kemble v. Kean, 
 
 277, 278 
 
 T. Vreedenberg, . 
 
 . 621 
 
 Kemp V. Pryor, .... 
 
 45, 49 
 
 V. Walsh, 
 
 ■ 186, 607 
 
 V. Coleman, 
 
 . 210 
 
 V. Wells, 
 
 . 486 
 
 Eempshall v. Stene, . 
 
 . 294 
 
 V, Zimmerman, 
 
 . 232 
 
 iendall. Ex parte, . .331 
 
 , 337, 339 
 
 James V. Graves, . 
 
 . 74 
 
 Kennedy v. Green, 
 
 . 608 
 
 V. Hubbard, 
 
 . . 119 
 
 V. Mills, 
 
 . 652 
 
 v. James, . 
 
 . 
 
 . . 657 
 
 Kenny v. Ogden, 
 
 . 163 
 
xxu 
 
 Table \ OF Cases. 
 
 Kent V. "Welch, . 
 Kensington, Ex parte, 
 Kershaw v. Thompson, 
 Ketchum v. Durkee, 
 Keyes v. Williams, 
 Key V. Vattiev, . 
 V. Bradshaw, 
 Kidd V. Dennison, 
 
 V. Rawlinson, 
 Kidney v. Coiismaker, 
 Kijest V. WoodhuU, 
 King V. Baldwin, 
 
 48, 90, 108, 109, 111, 
 
 V. Bardeau, 
 
 V. Donnelly, 
 
 V. Greenhill, 
 
 V. Hamilton, 
 
 V. Hamlet, 
 
 V. Inhabitants of Laindon, 
 
 V. King, 
 
 V. Russell, . 
 
 V. Shaw, 
 
 V. Strong, . 
 
 y. Woodhull, 
 King, The v. De Manneville, 
 
 V. Ward, 
 Kingdome v. Bridges, 
 Kinsman v. Barker, 
 Kirby v. Kirby, . 
 
 V. Potter, . 
 
 V. Shoemaker, 
 
 V. Taylor, . 
 Kirk V. Hodgson, 
 Kittle V. Crary, . 
 Kittletas v. Gardner, 
 Kuiskorn v. The Lutheran Church, 
 
 . 165 
 440, 441 
 . 452 
 . 708 
 . 440 
 . 174 
 . 210 
 139, 370 
 
 Knight V. Lord Plymouth, 
 Knox, Ex parte, •. 
 Knox V. Morgan, 
 Knowles v. Gee, . 
 Krom V. Hoaan, . 
 
 244 
 . 488 
 • 583 
 
 164, 331 
 
 292, 295 
 
 . 610 
 
 . 618 
 
 280, 292 
 
 179, 180 
 
 . 497 
 
 363, 367 
 
 . 557 
 
 305 
 
 . 557 
 
 . 58? 
 
 . 638 
 
 . 399 
 
 . 647 
 
 . 142 
 
 , 667 
 
 . 506 
 
 103, 719 
 
 . 183 
 
 . 717 
 
 . 561 
 
 . 624 
 
 571, 742 
 614 
 256 
 207 
 37 
 843 
 
 Langton v. Horton, 
 
 V. Roylston, . 
 Lanley v. Harper, 
 Lansdown v. Lansdown, 
 Lansing v. Albany Ins. Co. 
 
 161, 351 
 
 Lacon V. Martins, 
 
 . 284 
 
 Lady Arundell v. Phipps, . 
 
 . 647 
 
 La Farge v. Hector, 
 
 . 113 
 
 La Grange v. Merrill, . 
 
 . Ill 
 
 Laidlow v. Organ, . . 71, 
 
 72, 151, 167 
 
 Lake v. Cradook, 
 
 . 711 
 
 V. De Lambert, . 
 
 . 368, 470 
 
 Lamat v. Rowley, 
 
 . 68 
 
 Lambert v. Heath, 
 
 . 158 
 
 Lamley v. Harman, 
 
 . 210, 213 
 
 L'Amoreux v. Crosby, 
 
 . 691 
 
 V. King, . 
 
 . 434 
 
 V. Vandenburgh, 
 
 . 445 
 
 V. Van Rensselaer, 420, 421, 660 
 
 Lanay v. Athol, . 
 
 . 667 
 
 Lancaster v. Buckhart, 
 
 . 77 
 
 Lane v. Doty, 
 
 . 190 
 
 V. Schermerhorne, 
 
 . 197 
 
 Langdale, Ex parte, . 
 
 . 713 
 
 Langdon v. Reed, 
 
 . 457, 462 
 
 Langford v. Pitt, 
 
 . 290 
 
 Langley v. Brown, 
 
 . 74 
 
 tangton, Ex parte, . 
 
 . 440 
 
 460, 461 
 
 V. Eddy, 
 
 V. Gaines, 
 
 V. Goelet, 
 
 V. Lansing, 
 
 V. Orcutt 
 
 V. Russell, 
 
 T. Smith, 
 
 V. Van Alstine, 
 Larabee v. Van Alstine, 
 Lasala v. Holbrook, 
 tasher v. Lasher, 
 Lasher, Matter of, 
 Latouch V. Donsany, 
 Land v. Otley, 
 Laurie v. Laurie, 
 Law V. Thompson, 
 Lawrence v. Bayard, 
 V. Beaubien, 
 V. Lawrence, 
 V. Mayor of N. T, 
 V. Trustees of Leake's 
 Asylum, 
 Lawrenson v. Duller, 
 Lawson v. Lawson, 
 Lawton v. Lawton, 
 Lawj-er v. Sipperly, 
 Leavitt V. Palmer, 
 Le Breton v. Miles, 
 Leclimere v. Earl of Carlisle, 
 Lee V. Paine, 
 
 V. Risdon, 
 Leeds v. Dunn, . 
 Leeke v. Bennett, 
 Lee's Adra's v. Reed, 
 Lees V. Nuttall, 
 Leggett V. Dubois, 
 
 V. Perkins, 
 Le Guen v. Gouverneur, 
 Legoux r. Wante 
 Leicester v. Rose, 
 Leigh V. Everhart's Ex, 
 Leighton v. Leighton, 
 Le Neve v. Le Neve, 
 Lennon v. Nappers, 
 Leonard v. Baker, 
 Leroy v. Duke of Athol 
 Lett V. Morris, 
 Lewellin v. Cobbold, 
 Lewis v. King, . 
 ' V. Landon, 
 V. M'Lemore, 
 Leftly V. Mills, . 
 Like V. Thompson, 
 Liwien v. Hepburn, 
 Lindsay v. Lynch, 
 Lingard v. Bromley, 
 Linker v. Smith, 
 Lister v. Lister, . 
 Litchfield v. White, 
 Little V. Lathrop, 
 Littl^fleld V. Storey, 
 Livingston v. Cornell, 
 T. Sean, 
 
 163, 251 
 
 814 
 
 315 
 
 147 
 
 59 
 
 452 
 
 , 362, 363 
 
 727 
 
 , 452, 458 
 
 . 226 
 
 351, 3.52 
 306, 429 
 
 . 389 
 . 129 
 . 552 
 . 402 
 
 498, 647 
 . 633 
 . 250 
 . 490 
 . 667 
 . 613 
 . 461 
 . 59 
 . 661 
 . 398 
 Orphan 
 
 193, 719 
 . 267 
 
 554, 656 
 . 377 
 ., 742 
 . 75 
 . 483 
 . 271 
 . 542 
 . 376 
 . 151 
 . 330 
 . 143 
 
 189, 603 
 . 600 
 
 477, 493 
 
 352, 355 
 . 46 
 . 210 
 . 804 
 
 327 
 608, 609 
 . 293 
 . 244 
 . 337 
 . 463 
 . 212 
 . 646 
 . 403 
 . 150 
 ■ 53 
 . 214 
 37, 46 
 . 286 
 . 107 
 . 211 
 . 704 
 . 472 
 . 117 
 . 460 
 . 174 
 . 445 
 
Table of CASEsg- 
 
 XXUl 
 
 ' Iiivingston v. Hallenbeck, . 
 
 V. Harris, 46, 220, 223, 224, 
 V. Haywood, 
 T. Ketchum, 
 V. Livingston, 
 
 135, 139, 499, 500, 561 
 600, 647. 
 V. Lynch, 
 V. Mclnlay, 
 
 V. Newkirk, . 484, 564, 
 V- Ten Broek, 
 V. Van Ingen, 
 Livingston, Matter o^ . . . 685, 
 Lockwood V. Ewer, 
 
 V. Thomas, . 
 Logan V. Mason, . 
 Long V. Dennis, . 
 V. Israel, 
 V. Short, 
 V. Norcom, . 
 Longdale v. Longdale, 
 Loomis V. Cline, .... 804, 
 V. Wheelwright, 
 V. Wilbur, 
 Lord Chedworth v. Edwards, 
 Lord Doneghal's case, 
 Lord St. John v. Lady St. John, 
 Lord Tamworth v. Lord Ferris, 
 Lord Walpole v. Lord Oxford, 
 Lowene v. Amer. Fire Ins. Co. 
 Lovitt V. Robinson, 
 Loundsberry v. Purdy, 
 Lowe V. Peers, 
 
 V. Walker, . 
 Lowndes v. Chisden, 
 Lowns V. Taylor, 
 Lowry v. Bourchier, 
 
 V. Tew, . 
 Lowther v. Cavendish, 
 V. Conedon, 
 v. Lowther, 
 Lloyd V. Johnes, . 
 V. Loaring, 
 v. Mansell, 
 V. Branten, 
 V. Mason, . 
 V. Williams, 
 Lucas V. Evans, . 
 
 V. Jefferson Ins. Co., 
 Ludlow V. Hurd, 
 
 V. Lansing, 
 
 V. Simons, 
 
 Lupton V. Lupton, 
 
 328, 488, 499, 508, 520, 557 
 V. White, 
 Lyman v. Abeel, 
 
 V. U. S. Ins. Co. . . 75, 
 Lynds v. Lynds, 
 Lynch, Matter of, 
 Lynch v. Richman, 
 
 V. Utica Ins. Co., 
 Lyon V. Richards, 
 
 473, 
 
 284, 285, 
 
 364, 
 160, 
 
 303 
 380 
 133 
 
 565, 
 
 273 
 436 
 567 
 132 
 393 
 691 
 456 
 653 
 
 94 
 532 
 
 80 
 507 
 627 
 263 
 361 
 160 
 371 
 363 
 676 
 304 
 372 
 297 
 751 
 641 
 599 
 .214 
 222 
 
 68 
 722 
 
 62 
 286 
 528 
 514 
 189 
 126 
 365 
 163 
 216 
 
 531 
 120 
 241 
 452 
 90 
 
 565 
 363 
 133 
 
 76 
 666 
 684 
 
 63 
 239 
 
 68 
 
 M 
 
 Maberly v. Turton, ' . 
 McAlister v. Montgomery, 
 McArtbur v. Hoysradt, 
 
 627 
 712 
 
 McCartee v. The Orphan Aavlnm, 
 
 525, 671, 572, 580 
 Macartney v. Graham, . 53, 450, 452 
 
 Macauley V. PWlips, . 
 McConnelly v. Hampton, 
 McCorkle v. Brown, . 
 McCoy V. Artcher, 
 McCrea v. Purmont, . 
 McCulloch V. Daniel's Adm 
 McCuUum V. Goarlay, 
 McDermot v. Lawrence, 
 
 V. Strong, . 
 McDonald v. Picket. 
 McDonough's Ex'r v. Murdock, 
 McDowell V- Caldwell, 
 McDowell, Matter of, 
 McElderly v. Shipley, 
 McEwen v. Montgomery Mut. Ins. 
 McFarland v. Lewis, . 
 
 v. Wheeler, 
 McFerran v. Taylor, 
 
 McGalay v. Williams, 
 Mclnstry v. Thurston, 
 McKay v. Green, 487, 
 McKee v. Vorhees, 
 McKenzie v. Johnson, 
 McKinon v. Thompson, 
 McKinstry v. Curtis, . 
 v. Marvin, . 
 McKnight v. Morgan, . 
 McLachlan v. McLachlan, 
 McLaren v. Pennington, 
 McLean, Matter of, 
 McLean v. McDonald, 
 
 V. Walker, 
 McLeod V. Drummond, 
 McMenomy v. Ferrers, 
 McMurray v. Giflbrd, . 
 
 V. Rawson, 
 McQueen v. Farquar, . 
 McVickar v. Wolcott, . 
 McWhorter v. Benson, 
 Mackell v. Winter, 
 Maokreth v. Symonds, 
 Madison Co. v. Gould, 
 Mahan v. Brown, 
 Mairs v. Malbourn, . 
 Maitland v. Adair, 
 Malcolm v. O'Callaghan, 
 
 v. Scott, 
 Maiden v. Men-ill, 
 Malin v. Freeman, 
 
 v. Malin, 
 Mandeville v. Mandeville, 
 
 v. Welch, . 
 Manhattan Co. v. Reynolds. 
 Mann v. Mann, 
 T. March, 
 V. Copland, 
 V, Pentz, . 
 Manning V. Manning, . 
 
 V. Spooner, 
 Mansfield's case, 
 Marvin v. EUwood, 
 V. Shaw, . 
 Marquand v. N. Y. Man. Co. 
 Marine Ins. Co. v. Hodgson, 
 
 637 
 358 
 289 
 158 
 267 
 727 
 214 
 712 
 238 
 101 
 583 
 627 
 619 
 69 
 260 
 101 
 123 
 150 
 653, 
 306 
 488, 520, 663, 508 
 348 
 
 495. 
 
 Co. 
 
 239 TMark v. Cooper, 
 
 . 91 
 . 484 
 . 463 
 
 448, 455 
 240 
 . 535 
 . 743 
 . 689 
 . 480 
 . 466 
 . 302 
 . 404 
 . 37 
 . 86 
 . 207 
 . 161 
 185, 603, 626 
 . 515 
 
 444, 299 
 . 713 
 . 395 
 . 284 
 ' . 509 
 . 215 
 . 464 
 . 249 
 . 79 
 
 413, 609 
 
 368, 329 
 . 463 
 . 267 
 
 498, 612 
 . 92 
 . 504 
 
 332, 753 
 40, 184, 614 
 564 
 197 
 316, 317, 318 
 . 368 
 
 718, 721 
 57,161 
 . 137 
 
XXIV 
 
 Table of Cases. 
 
 Mark V. Pell, .... 77,429 
 Mackenzie v. Mackenzie, . . . 541 
 Mackie v. Cairns, 
 Marlow v. Smith, 
 Marples v. Bainbrid^e, 
 Maixjuis of Broadalbin v. Marchioness 
 of Chandos, 
 Downshire v. Lady Sanders, 
 Exeter v. Marchioness of Ex- 
 eter, . . . .80 
 Townshend v. Stangroon, 
 
 74, 206, 288 
 
 467 
 419 
 531 
 
 872 
 
 146 
 
 . 161 
 
 . 243, 458, 725 
 
 512, 514, 519, 522 
 
 651 
 
 492 
 
 82 
 
 101 
 
 , 652 
 
 , 636 
 
 , 244 
 
 69,72 
 
 . 315 
 
 . 492 
 
 676, 677, 679, 680 
 
 541, 557, 569 
 
 111, 453 
 
 Marriott v. Marriott, 
 Mark v. Candiff, 
 Marsh v. Lawrence, 
 
 V. Wheeler, 
 Marshall v. Button, 
 V. Hopkins, 
 Martin v. Ballou, 
 
 V. Dralce, 
 
 V. Dwelly, 
 
 V. Martin, 
 Martindale v. Booth, 
 Marvin v. Bennett, 
 Martinius v. Helmuth, 
 Mason v. Jones, 
 Mason, Matter of, 629, 
 Masters v. Masters, 
 Mathews v. Aikin, , 
 V. Terwilliger, 
 Mattison v. Barns, 
 Mawson v. Stack, 
 Mayor &c. v. Lowton, 
 
 of Albany v. Trowbridge, 
 
 of York V. Pilkington, 
 
 of Hudson V. Thome, 
 Meach v. Lansing ^ 
 Meaeham v. Sternes, 
 Mead v. Dewy, . 
 V. Lansing, 
 V. Merritt, • 
 Mechanics Bank, Matter of. 
 Mechanics Bank v. Lynn, 
 V. Seton, 
 Meohoud v. Girod, 
 Medina v. Stoughton, . 
 Meehan v. Meehan, 
 Meeker v. Van Rensselaer, 
 Melish V. Melish, 
 Mendes v. Mendes, 
 Mercein v. The People, 
 
 617, 618, 619, 620, 670 
 Merrill v. Bell, 526 
 
 V. Emery 526 
 
 Merrimack Bank v. Brown, . . 101 
 
 Merritt v. Classon, .... 414 
 
 V. Lambert., . . . 174, 443 
 Merryweathor v. Nixon, . . 107 
 
 Mesick v. New, .... 485 
 
 Metcalf V. Harvey 323 
 
 Methodist Epis. Church v. Jacques, 
 
 479, 645, 649, 654 
 Miall V. Brain 551 
 
 241 
 
 185, 
 
 249, 250, 
 188, 605, 
 
 620, 
 
 68, 263 
 458 
 209 
 734 
 354 
 324 
 361 
 
 76 
 615 
 608 
 
 75 
 348 
 470 
 294 
 608 
 613 
 159 
 669 
 390 
 
 82 
 632 
 
 Mickles v. Rochester City Bank, 
 Middleton v. Dodswell 
 
 V. Rice, 
 Miller v. Delamater, . 
 V. Finton, 
 
 750 
 368 
 533 
 648 
 107 
 
 Miller V. Gable ' • ??? 
 
 V. Kerr, . ... 165 
 
 V. Miller, . . 554, 556, 667 
 
 V. Plumb, . . . .376 
 
 Milhau V. Sharp, . . 405, 406, 739 
 
 Milligan v. Mitchell, . . . .600 
 
 Millard v. Eyre, ... .470 
 
 Miliken v. Carey, . • .37, 343 
 
 T. Tufts, ... 88, 94 
 
 Millington v. Fox, 
 
 Mills V. Argall, 
 
 V, Banks, . 
 
 V. Comstock, 
 
 V. Fowkes, . 
 
 V. Freeman, 
 
 V. Goodsell, 
 
 Milner v. Colmer, 
 
 V. Mitz, . 
 
 V. Tucker, 
 
 Millspaugh v. McBride 
 
 Milward v. Thanet, 
 
 Minturu v. Fanners' L. and T. Co., 
 
 V. Seymour, 
 
 Minuse v. Cox, . 
 
 MitcheU v. Dal], . 
 
 V. Harris, 
 
 V. Hayne, 
 
 V. Kingman, 
 
 V. Oakley, 
 
 V. Winslow, 
 
 Mix V. Mix, 
 
 Moifat V. Strong, 
 
 Mogg V. Hodges, 
 
 Moggriige v. Thackwell 
 
 Mohawk Bridge v. U. and S. Railroad, 
 
 Mohawk Railroad v. Clute, . 316, 321 
 
 MoDan v. Griffith, . . .567 
 
 Mondy v. Joliff, 287 
 
 Monet v. Parke, ... .339 
 
 Monk T. Cooper, . . .57 
 
 Monson v. Morgan, .... 163 
 Montagu v. Nucella,- . . . 492 
 
 Montgomery v. Johnson, . . . 734 
 
 Mooder v. Reid, 84 
 
 Moody V. Payn 723 
 
 Mooers v. Waite, .... 143, 370 
 Moore V. Cable, . . .446 
 
 V. Usher 319 
 
 Morehouse v. Cook, .... 622 
 Morelow v. Armstrong, ... 47 
 
 Morett V. Parke 46 
 
 Morgan, Matter of, . 198, 676, 679, 688 
 Morgan v. Groff, .... 214, 225 
 
 V. Marsack 315 
 
 V. New- York and Albany Rail- 
 road, 750 
 
 V. Plumb, . . . 451, 452 
 V. Schermerhorn, . . . 216 
 Morrell v. Dickey, .... 558 
 
 660,667 
 . 545 
 
 V. Morrell, 613, 614, 657, 
 MoiTis V. Burrows, 
 
 V. Colman, 
 
 V. Kent, . 
 Morrison v. Moat, 
 Morse v. Hovey, 
 
 V. Royal, . 
 Mortimer v. Capper, 
 Mortlock V. BuUer, 
 
 . 402 
 . 715 
 . 487 
 . 431 
 . 101 
 . 580 
 . 188 
 . 637 
 . 461 
 . 157 
 . 79 
 . 295 
 . 361 
 263 
 . 484 
 101, 382 
 . 356 
 . 319 
 195 
 347 
 461 
 666 
 522 
 569 
 596 
 392 
 
 224, 
 
 580, 
 
 . 277 
 536, 537, 557 
 . 407 
 . 361 
 . 188 
 . 266 
 147, 204, 205« 802 
 
Table of Cases. 
 
 xxr 
 
 Morton V. Naylor, .... 468 
 
 Moses V. Mead 158 
 
 V. Murgatroyd, . 47, 75, 77, 562 
 Mosier v. Bishop of Durham, . . 569 
 
 Mosley v. Bird 512 
 
 Moss V. Adams 94, 101 
 
 y. Elmcndorf, . , . .291 
 T. McCullough, . . . .752 
 
 V. Oakley 733, 752 
 
 Mossop V. Eaden, . , . .53 
 
 Mount V. Walt 225 
 
 Mountford v. Scott, . . . .250 
 Mowatt V. Carlow, . . . 493, 494 
 Mower v. Kip, ..... 440 
 Muir V. Leake's Trustees, . . 146 
 
 T. Schenk, 467 
 
 Mumford v. Murray, . . 613, 614 
 
 V. NicoU, . . . .710 
 Mundy v. Mundy, . . .6 
 
 Monroe v. Allaire, . : . . 607 
 Mmnsell v. Lewis, .... 461 
 Murdock v. Chenango Mut. Ins. Co., 120, 166 
 Murkin v. Philipson, .... 519 
 Murray v. Ballou, . 249, 252, 419, 608 
 V. Barlee, . 647, 651, 652 
 
 V. Bogert 718 
 
 V. Briggs, . 182, 466 
 
 V. Carter, . . 45 
 
 V. Coster, .... 425 
 V. De Eottenham, . . 615 
 
 V. Fenton, . . . .249 
 V. Gouverneur, . . . 310 
 V. Livingston, . . . 445 
 
 V. Lord EUibank, . . .637 
 V. Lylburn, . . 466 
 
 V. Mumford, . . . .718 
 V. Murray, .... 727 
 r. Tolland, . . . ,142 
 
 Murrill v. Neill 727 
 
 Myers T. United States, . . 101 
 
 Mytton V, Mytton, . . . .669 
 
 N 
 
 Nairn v. Grouse, 443 
 
 Nation v. Tozer 156 
 
 National Bank v. Norton, . . . T18 
 
 Neimcewicz v. Gahn, .... 649 
 
 Nellisv. Lathrop, .... 129 
 
 Nelson v. Corning, .... 359 
 
 Neville v. Wilkinson, ... 213 
 Nevitt V. Gillespie, . . . .383 
 
 Newburg Turnpike Co. v. Miller, . . 393 
 
 Newdegate v. Newdegate, . . . 372 
 
 New Elme Hospital v. Andover, . , 325 
 
 New England Bank v. Lewis, . . 464 
 
 Newkirk v. Newkirk, . . . , 486 
 
 Newland v. Paynter, .... 559 
 
 Newman V. Johnson, .... 487 
 V. Miller, . . . .305 
 
 Newport V. Kinastoii, '. . . . 540 
 
 New River Co. v. Graves, . . . 324 
 
 Newson v. Bufl&low, . . 80, 301 
 
 Nevrton v. Rose, 65 
 
 v. Swazy, .... 283 
 New York Dry Do* Co. v. Amer. Life 
 
 Ins. Co 347 
 
 New York Fire Ins. Co. V.Ely, . . 730 
 
 Nichols v. Osborn, 
 Nicholson v. Halsey, . 
 
 V. Leavit, 
 Nicoll V. Durenburg, . 
 
 V. Mumford, . . 464, 
 Norris v. Lc Neve, 
 North Am. Coal Co. v. Dyett, 
 North V. North, .... 
 
 y. Pepper, .... 
 Northern Bridge Co. v. London and 
 
 North River Bank v. Aymar, 
 Northcote v. Duke, 
 Northup V. Barnum's Ex'rs, &c., . 
 Norton v. Cook, 
 
 V. Coon, .... 
 
 V. Frecker, 
 
 V. Stone, .... 
 Noys V. Mordaunt, 
 Nutbrown v. Thornton, 
 
 o 
 
 . 628 
 . 425 
 . 246 
 . 354 
 
 465, 720 
 56 
 
 646, 647 
 . 664 
 . 297 
 
 S.H. 
 . 405 
 250 
 . 56 
 . 648 
 . 114 
 
 114, 115 
 . 134 
 . 599 
 . 544 
 . 271 
 
 v. The Trustees of Williamsburgh, 
 
 398 
 494 
 491 
 108 
 91 
 359 
 214 
 197, 198, 201 
 i28 
 342 
 393 
 101 
 188 
 80 
 111 
 257 
 
 196 
 
 Gates V, Jackson, 
 O'Brien v. Heeney, 
 O'Conde's case, . 
 O'Connor v. Spaight, . 
 O'Keefe v. Dunn, 
 O'Malley v. Reese, 
 Odell V. Buck, . 
 Ogilvie V. Hull, . 
 Ogden V. Kipp, , 
 
 V. Gibbons, 
 Oliver v. Phelps, 
 
 V. Piatt, 
 Onions v. Tyler, . 
 Ontario Bank v. Walker, 
 
 V. Worthington, 
 Osgood V. Franklin, 202, 203, 263, 266, 614 
 
 666, "~ 
 
 667 
 
 296 
 
 ,. 540 
 
 240. 837 
 
 . ' 76 
 
 342, 
 
 V. Osgood, 
 Osborne v. Breman," . 
 
 V. Duke of Leeds 
 
 V. Moss, . 
 
 V. Phelps, 
 
 V. Taylor, 
 
 V. U. S. Bank, 
 
 V. Williams, . 
 Osmond v. Fitzroy, 
 Ostley V. Messere, 
 Oppenheim v. Les Wolf, 
 Oswell V. Probert, 
 Osterhout v. Shoemaker, 196, 197, 198, 675 
 
 Otis V. Sill 356, 456 
 
 V.Wood, 
 Otway V. Otway, . 
 Owens V. Collinson, 
 Oxenden v. Oxenden, 
 
 198, 201, 
 
 347 
 408 
 2l4 
 671 
 198 
 819 
 636 
 
 468 
 662 
 107 
 686 
 
 Padget V. Lawrence, 
 Page V. Lepingwell, 
 
 V.Page, . 
 Paget V. Wilkinson, 
 Pain V. Packard, 
 Paley v. Fj^eman, 
 
 266 
 496 
 612 
 169 
 111 
 119 
 
 Eq. Jcb. 
 
xin 
 
 Table of Cases. 
 
 Palmer v. Fletcher, 
 V. Gurnsey, 
 V, Mulligan, 
 V. Neave, 
 V. Palmer, 
 V. Trevor, 
 Pardee v. Van Anken, 
 Parish v. Stone, . 
 Parlser v. Browning, 
 v. Foote, . 
 V. Pistor, 
 Parkist v. Alexander, . 46, 
 Parkhurst v. Van Cortland, 
 Parkinson v. Lee, 
 Parks V. Parks, . 
 Parnell v. Lyon, . 
 Parr v. Eliason, . 
 Parsons v. Barnard, 
 V- Hughs, 
 V. Winslow, 
 Partridge v. Menck, 
 V. Stevens, 
 Patohin v. Pierce, 
 Paton V. Rogers, 
 Partridge v. Menck, 
 Patterson v. Bangs, 
 
 V. Ellis, 
 Pattisou V. Blanchard, 
 
 V. Hull, . 
 
 Payne v. Cutler, . 
 
 V. Eden, . 
 
 V. Matthews, 
 
 Pfticock V. Evans, 
 
 Pearce v. Cruchfleld, 
 
 V. Verbeke, 
 Pearson v. Pearson, 
 Pearley v. Somerset, 
 Peck V. Ellis, 
 v. Jenness, 
 V. Mallara, . 
 Pecket V. Lyon, . 
 Peckford v.'Peckford, 
 Pe^ram v. King, 
 Peish V. Dickson, 
 Pelletreau v. Eathbone, 
 Pemberton v. Oakes, 
 
 v. Pemberton, 
 Pendleton v. Fay, 
 Penfould v. Bouch, 
 Peuniman v. Briggs, 
 Penu V. Lord Baltimore, 
 Penny v. Martin, 
 Penruddock's case. 
 People V. Barnes, 
 V. Chcgary, 
 V. Clark, . 
 V. Corlies, 
 V. Erwin, . 
 V. Jansen, 
 V. Manning, 
 V. Mercein, ' 
 V. Stevens, 
 V. Tioga Com. Pleas, 
 V. TJtica Ins. Co, 
 Percival v. Blake, 
 V. Phipps, 
 Ferine v. Dunn, . 
 Peiket V. Laggoon, 
 
 . 394 
 
 432 
 
 . 357 
 
 . 213 
 
 . 668 
 
 . 559 
 
 446, 447 
 
 553, 555 
 
 334, 335 
 
 . 395 
 
 . 721 
 
 172, 186, 255 
 
 283, 285, 286 
 
 . 152 
 
 . 419, 493 
 
 . 526 
 
 . 222 
 
 . 384 
 
 169 
 
 . 532 
 
 . 383, 403 
 
 . 639 
 
 . 457, 458 
 
 . 296 
 
 . 206 
 
 . 161 
 
 516, 617, 522 
 
 . 709 
 
 94, 98, 462 
 
 . 257 
 
 . 182, 210 
 
 193, 560, 719 
 
 178, 179, 203 
 
 . 555 
 
 . 58 
 
 106, 107 
 
 . 123 
 
 . 254 
 
 . 206 
 
 . 668 
 
 . 857 
 
 . 125 
 
 . 500 
 
 . 102 
 
 145, 146 
 
 . 445 
 
 . 471 
 
 . 733 
 
 . 270 
 
 . 57 
 
 . 392 
 
 . 660 
 
 . 618 
 
 . 166 
 
 . 660 
 
 . 390 
 
 . Ill 
 
 . 526 
 
 . 618 
 
 . 366 
 462 
 
 . 730 
 
 . 157 
 
 . 386 
 
 450, 452 
 
 . 206 
 
 Perkins v. Bradley, 
 V. Cottrell, 
 V. Hart, . 
 Pei-kins, Matter of, 
 Perrin v. Lyon, 
 Perrot v, Perrot, . 
 Perry v. Aaron, 
 
 V. Baker, . 
 
 V, Jackson, 
 
 V. Martin, 
 
 V. Perry, 659, 660, 662, 
 
 V. Hhoades, 
 Peter v. Beverly, 
 Peters v. Anderson, 
 Peterson v. Clark, . . 37 
 Petit, Matter of, . 
 Petit v. Shepherd, 
 Peto V. Blades, . 
 Petrie v. Shoemaker, . . 197, 
 Phelps V. Green, . 
 Philips V. Berger, . 267 
 
 V. Philips, 
 V. Thompson, 45, 284, 
 Phillips V. Cook, , 
 Phipps V. Annesly, 
 Plank V. Schermerhom, 
 Plant V. Long Island Railroad, 
 Plume V. Beale, . 
 Plunkett V. Penson, 
 Pidcock V. Bishop, 
 Pidding v. Howe, 
 Pierpont v. Barnard, 
 Pillsworth V. Hopton, . 
 Pine V. Dyer, 
 Pink V. De Thuesey, 
 Pitt V. Chelmondeley, . 
 Pitts V. Waugh,_ . 
 Pocock V. Reddington, . 
 Polk's Lessees v. Wendell 
 Pomroy v. Smith, 
 Pond V. Bergh, . 483, 484, 
 
 V. Curtis, 
 Pope V. Curl, 
 Popham V. Bamfleld, . 
 Popkin V. Popkin, 
 Pooley V. Ray, 
 Porter, case of. 
 Porter v. Clark, . 
 V. Spencer, 
 Portarlington v. Soulby, 
 Portman v. Mills, 
 Post V. Bank of Utica, . 46, 
 
 V. Dart, 
 
 V. Kimberly, . . 90, 
 
 Postmaster Gen. v. Furber, 
 
 V. Norvell, 
 
 Potter V. Chapin, 671, 581, 582 
 
 V. Chapman, 
 
 V. Smith, . 
 
 Powell V. Hankey, 
 
 V. Mathis, . 
 
 Powlet V. Powlet, 
 
 Pratt V. Adams, . 
 
 V. Carroll, . 
 
 V. Law, 
 Presbyterian Congregation of Salem 
 
 liams, 
 Prescott V. Hull, . 
 
 71. 
 
 . 250 
 . 640 
 . 142 
 
 681, 682 
 . 626 
 
 139, 381 
 . 157 
 . 451 
 . 190 
 70, 71 
 
 663, 668 
 . 514 
 
 271. 487 
 90, 101 
 
 428, 429 
 
 681, 685 
 . 304 
 . 159 
 
 201, 675 
 . 706 
 
 275, 276 
 . 712 
 
 286,. 309 
 . 723 
 . 330 
 
 234, 248 
 
 406, 740 
 146 
 108 
 151 
 . 403 
 . 213 
 . 383 
 . 289 
 . 523 
 . 142 
 . 712 
 . 613 
 
 165, 166 
 . 725 
 
 485, 492 
 . 624 
 . 386 
 56, 57 
 . 662 
 . 70 
 
 571, 603 
 . 246 
 90, 91 
 . 225 
 . 296 
 
 144, 221 
 
 221, 303 
 
 193, 709 
 . 100 
 . 100 
 
 683, 583 
 . 341 
 . 109 
 . 292 
 . 108 
 . 518 
 47, 280 
 . 292 
 . 309 
 
 v.Wil- 
 
 213 
 462 
 
Table oe Cases, 
 
 xxvu 
 
 Prescott V. Long, 
 
 
 
 513 
 
 Rew V. Barber, . 
 
 
 158 
 
 Preston v. Tabbin, 
 
 
 252 
 
 Eeynish v. Martin, 
 
 501, 619, 
 
 525 
 
 Prevost V. Gratz, . . . . 
 
 
 188 
 
 Reynold v. Cleveland, 
 
 
 709 
 
 Prichard v. Ames, 
 
 
 559 
 
 Reynolds, Ex parte, . 
 
 
 172 
 
 Pringle v. Wernham, . 
 
 
 396 
 
 Reynolds v. MoFarlane , 
 
 
 100 
 
 Provvse v. Abingdon, , . 
 
 519, 
 
 521 
 
 V. Reynolds, 
 
 
 704 
 
 Providence Bank v. Billings, 
 
 
 730 
 
 Rex V. Grosvenor, 
 
 
 398 
 
 Pugli V. Ourrie, 
 
 
 712 
 
 V. Papineau, 
 
 ] 388, 
 
 390 
 
 V. Smith, 
 
 
 545 
 
 V. White, . 
 
 
 394 
 
 V. Good, 
 
 . 
 
 283 
 
 Rhoada v. Canfield, 
 
 
 438 
 
 Pulteney v. Warren, . 
 
 134, 
 
 695 
 
 Rhodes v. Rhodes, 
 
 '. 284 
 
 285 
 
 Purdy V. Doyle, . 
 
 338, 
 
 5B2 
 
 Rico v.. Pelt, 
 
 
 195 
 
 Purse V. Snaplin, 
 
 
 557 
 
 Richard v. Salter, 
 
 
 315 
 
 Pasey v. Pusey, . 
 
 
 272 
 
 Richardson v. Duncan, 
 
 
 208 
 
 Putnam v. Ritchie, . 31 
 
 ), 311, 
 
 312 
 
 Richmond v. Taylor, . 
 
 
 160 
 
 V. Wise, . 
 
 
 709 
 
 Rider v. Wager, 
 
 
 544 
 
 Pybers v. Smith, . . ' . 
 
 
 647 
 
 Ridgway v. Darwin, . 
 Ridout V. Paine, 
 
 
 681 
 77 
 
 Q 
 
 
 
 Ries v. Berrington, 
 
 
 109 
 
 
 
 Ringo V. Binns,. 
 
 
 190 
 
 Quackenbush v. Leonard, . 
 
 . 
 
 188 
 
 Ripley v. Waterworth, 
 
 
 561 
 
 
 
 
 Ripon V. Hobart, 
 
 " 400, 
 
 401 
 
 R 
 
 
 
 Roach V. Casine, 
 Boadly v. Dixon, 
 
 
 74 
 551 
 
 Rackley v. Pearce, 
 
 , 
 
 101 
 
 Roberts v. Anderson, 
 
 
 341 
 
 Eackley, In re, 
 
 
 174 
 
 T. Dixwell, 
 
 
 475 
 
 Radcliff V. Bulkley, . 
 
 
 494 
 
 V. Garnie, 
 
 
 92 
 
 Badcliff's Ex'rs v. Mayor of Broc 
 
 klyn, 
 
 402 
 
 V. Kuffln, 
 
 
 142 
 
 V. Parkins, 
 
 
 545 
 
 V. Pocock, 
 
 . 502, 507 
 
 558 
 
 V. Rowley, 
 
 
 470 
 
 T. Roberts, 
 
 
 213 
 
 Eamsbottom v. Gordon, 
 
 
 288 
 
 Roberts, Ex parte, 
 
 
 185 
 
 Randall v. Cook, 
 
 
 243 
 
 Robertson v. Bullions, 
 
 
 
 V, Panamore, 
 
 
 101 
 
 472, 573, 588, 689, 732, 736, 742 
 
 V. Philips, 
 
 ." 77 
 
 240 
 
 T. Lame, 
 
 
 691 
 
 V. Randall, . 
 
 , 
 
 74 
 
 V. McNiel, 
 
 
 71 
 
 Eanelaugh v. Hays, . 
 
 . 108 
 
 331 
 
 Robinson v. Comyns, 
 
 
 527 
 
 Eapelye v. Anderson, . 
 
 
 224 
 
 T. Doolittle, 
 
 
 101 
 
 V. Prince, 
 
 
 448 
 
 V. Frost, 
 
 
 109 
 
 Eathbone v. Clark, 
 
 
 454^ 
 
 V. Litton, 
 
 . 379 
 
 381 
 
 Bathbun v. Warren, 47, 9 
 
 i>, 109 
 
 164 
 
 V. Pettinger, 
 
 
 396 
 
 Eawdon v. Shadwell, 
 
 
 225 
 
 v. Pitt, 
 
 
 184. 
 
 Bay V. Bogart, . 
 
 
 144 
 
 Rochester City Bank v. Suy 
 
 dam. 
 
 37 
 
 Raymond v. Loyl, 
 
 
 626 
 
 Rodman v. Smith, 
 
 
 751 
 
 V. Sellick, 
 
 
 555 
 
 Rodriquez v. Heffernan, 
 
 
 720 
 
 Eayner v. Martin, 
 
 
 215 
 
 Rogers v. Atkinson, 
 
 
 80 
 
 Eeab v. Moore, 
 
 
 131 
 
 v. De Forest, . 
 
 
 246 
 
 V. McAlister, 
 
 
 354 
 
 V. Dell, 
 
 
 629 
 
 Read v. Brookman, 
 
 
 51 
 
 V. Nevill, 
 
 
 404 
 
 Eeade v Livingston, . 
 
 228, 
 
 483 
 
 V. Bathbone, . ■ 
 
 46, 303 
 
 216 
 
 Eeceiver City Bank of Buffalo, M 
 
 atter of,' 
 
 V. Bogers, 
 
 . 494, 
 
 668 
 
 
 
 753 
 
 V. Saunders, . 
 
 . 263, 
 
 267 
 
 Eeed v. Bank of Newburgh, 
 
 
 304 
 
 Rolf V, Peterson, . 
 
 
 66 
 
 V. Blades, . 
 
 
 244 
 
 Boome v. Weeb, . 
 
 
 343 
 
 V. Boardman, 
 
 
 
 101 
 
 Roosevelt v. Thurman, 
 
 
 78 
 
 V. Dickerman, 
 
 
 
 548 
 
 Bosa V. Brotherson, 
 
 
 257 
 
 V. Norris, . 
 
 
 190, 
 
 604 
 
 Bose V. Rose, 
 
 '. 56, 
 
 666 
 
 Beeves v. Capper, 
 
 
 
 459 
 
 Ross v. Crary, , . 
 
 
 661 
 
 y. Hogan, 
 
 
 
 163 
 
 Rosseau v. Call, . 
 
 
 101 
 
 Beld V. Giffbrd, . 
 
 
 326 
 
 327 
 
 Rouse V. Noble, . 
 
 
 329 
 
 V. McNaughton, 
 
 
 190 
 
 728 
 
 Rowley v. Ball, . 
 
 
 53 
 
 Eeigal v. Wood, 
 
 
 
 160 
 
 Buggies V. Holden, 
 
 
 113 
 
 Eeinecker v. Smith, 
 
 
 
 201 
 
 Enmfus v. Platnir, 
 
 
 608 
 
 Eensen v. Eensen, 
 
 
 
 139 
 
 Runyan v. Mersereau, 
 
 '. 445, 
 
 462 
 
 Benner v. Bank of Columbia, 
 
 
 54 
 
 Rushloy T. Mansfield, . 
 
 
 197 
 
 Beno's Ex'rs v. Davis, 
 
 
 490 
 
 BUssell V. Allen, . 
 
 
 453 
 
 Rensselaer and S. B. B., Matter ol 
 
 , 117, 
 
 118 
 
 V. Austin, 
 
 
 425 
 
 Benwick v. Eenwick, 
 
 
 669 
 
 V. Butterfleld, . 
 
 
 457 
 
 Bespublica r. Caldwell 
 
 
 
 899 
 
 r. Clapp, . . 
 
 
 S7 
 
zxvm 
 
 Table of Cases. 
 
 JKussell r. Knssell, 
 
 V. Southard, 
 Bussel, Matter of, 
 Bust V. Gott, 
 T. Law, 
 Eyan y. Macmeth, 
 Byder, Matter of, 
 
 Sacket v. Giles, . 
 
 Salisbury, Matter of, 
 
 Salisbury v. Marshall, 
 
 Salmon v. Bennett, 
 
 Salway v. Salway, 
 
 Samlee v. Hanman, 
 
 Samuell v. Howarth, 
 
 Sanders, Matter of, 
 
 Sanders v. Pope, 
 
 Sanderson v. Walker, 
 T. White, 
 
 Sandford y. Handy, 
 y. Jackson 
 V. McLean, 
 y. Mikles, 
 
 Sands y. Codwise, 
 y. Hildreth, 
 
 Sandon v. Hooper, 
 
 Sanger y. Eastwood, 
 
 Sanquirico v. Benedetti, 
 
 Sarlesv. Sarles, . 
 
 Sarly v. Elmore, 
 
 Saterlee y. Frazer, 
 
 Saul y. Kruger, . 
 
 Saunders y. Smith, 
 
 Savage y. Brocksopp, 
 
 Sayille y. Sayille, 
 
 Sawyer y. Xappan, 
 
 Sayer y. Sayer, . 
 
 Schiefflin y. Stewart, 
 
 Schmidt v. Hoyt, 
 
 Schennerhorn y. Negus, 
 
 Schoonmaker T. Sheely, 
 
 Schryver y. Teller, 
 
 Scott y. Tyler, . 
 
 Scrughan, Matter of, . 
 
 Scrugan v. Carter, 
 
 Sea Ins. Co. v. Stebbins, 
 
 Seaman y. Waddington, 
 
 Serving v, Brinckerhofl; 
 
 Sears y. Shaffer, 
 
 Sebring y. Messereau, 
 
 Sedgwick y. Fish, 
 
 Seeley v. Fisher, . 
 
 Segus y. Tingley, 
 
 Seixas y. Woods, 
 
 Selden y. Vermilyea, 
 
 Selkrigg v. Dayies, 
 
 Sellick y. Turnpike Co. 
 
 Selwood V. Mildmay, 
 
 Seton V. Slade, . 
 
 Seward v. Jackson, 
 
 Sexton V. Wheaton, 
 
 Seymour v. De Lancy, 
 
 162, 203, 
 290, 295, 
 T. Maryin, . 
 T. Strong, . 
 
 . 440 
 
 . 77 
 
 682, 683, 688 
 
 . 225 
 
 . 117 
 
 . 308 
 
 . 626 
 
 669, 670 
 . 685 
 . 156 
 . 236 
 . 639 
 . 210 
 . 109 
 . 494 
 . 56 
 . 188 
 573, 593 
 . 250 
 . 551 
 . Ill 
 . 727 
 182, 214 
 . 226 
 . 446 
 
 458 
 . 277 
 
 139 
 . Ill 
 . 174 
 
 726 
 . 385 
 . 302 
 . 125 
 . 101 
 . 503 
 
 172 
 . 255 
 ■ 634 
 . 475 
 . 454 
 . 215 
 . 447 
 . 724 
 . 334 
 . 718 
 . 467 
 170, 178 
 . 704 
 . 452 
 . 401 
 . 72 
 . 157 
 . 422 
 . 712 
 . 101 
 496, 508, 606 
 267, 271 
 . 230 
 230, 284 
 
 262, 264, 286, 280 
 
 297, 303 
 
 . 101 
 . 223 
 
 Shallcross y, Findon, . 
 Shayer v. McGraw, 
 Shaw V. Borrer, 
 
 V. Coster, . 
 Shee y. Hale, 
 Sheldon y. Fortescue, . 
 Shelly y. Nash, . 
 Shepard y. Shepard, . 
 Shirras y. Caig, 
 Shepherd v. Monroe, . 
 y. McEvers, 
 V. Pybus, 
 y. Wilson, . 
 Sherman v. Ballou, 
 Sherwood v. Vandenberg, 
 
 y. Philbrick, 
 Shirley y. Martin, 
 V. Shirley, 
 Shoemaker y. Benedict. 
 Sholl V. ShoU, . 
 Shore y. Wilson, . 
 Shottenkirk v. Wheeler, 
 Shotwell y. Mott, 
 
 y. Murray, 
 Shrewsbery. y. Shrewsbery, 
 Sibley y. Cook, . 
 
 y. Perry, . 
 Sigourney v. Munn, 
 Simmons y. Tongue, 
 Sims y. Doughty, 
 Simpson v. Hart, 
 
 V. Ingham, 
 
 y. Vaughn, 
 
 y. Vickers, 
 
 Skeel V. Spraker, 
 
 Skinner v. Dayton, 
 
 Skip V. Harwood, 
 
 Slade y. Van Vechten, 
 
 Slaney v. Sidney, 
 
 Slanning y. Style, 
 
 Slater y. Lawience, 
 
 Slee y. Bloom, . . 733, 
 
 y. Manhattan Co., 77, 
 
 Small y. Brackly, 
 
 V. Smith, . 
 Smedberg y. Moore, 
 Smith V. Acker, . 
 
 V. Argall, 
 
 V. Ballantiue, 
 
 y. Bruning, 
 
 V. Call, . 
 
 y. Cawdry, 
 
 V. CoUyer, 
 
 V. De Silya, 
 
 V. Doe, 
 
 y. Hartwell, 
 
 v. Jackson, 
 
 V. Jones, 
 
 y. Kane, . 
 
 V. Kearny, 
 
 V. Kniskem, 
 
 V. Lockwood, 
 
 V. Lowiy, 
 
 V. Marabie, 
 
 V. McQowan, 
 
 V. Paige, . 
 
 y. Parkhurst, 
 
 V. Richards, 
 
 488, 665 
 . 694 
 . 486 
 . 320 
 . 527 
 . 163 
 . 181 
 . 648 
 . 437 
 . 108 
 . 249 
 . 156 
 . 131 
 . 622 
 . 694 
 . 434 
 . 213 
 . 559 
 . 728 
 
 503, 509 
 . 509 
 . 163 
 
 583, 588 
 
 63, 68 
 
 . 125 
 
 . 511 
 
 . 607 
 
 . 712 
 
 . 104 
 
 83, 493 
 
 161, 162, 163 
 
 . 101 
 
 74, 76, 720 
 
 57, 534 
 
 . 454 
 
 56, 717 
 
 . 332 
 
 . 188 
 
 . 318 
 
 329,. 330 
 . 191 
 740, 741, 744 
 428, 429, 448 
 . 210 
 - 257 
 .■ 292 
 
 243, 245 
 . 716 
 
 193, 719 
 . 608 
 
 146, 305- 
 . 627 
 . 382 
 . 710 
 . 496 
 . 359 
 . 712 
 . 712 
 . 639 
 
 240, 666 
 
 547, 651 
 
 406, 407 
 161, 357, 358 
 . 156 
 . 51 
 . 351 
 . 68 
 . 160 
 
'1:'able op Cases. 
 
 Smith y. Rockwell, . 
 
 . 
 
 63, 54 
 
 St. John V. St. John, . 
 
 . 
 
 
 . 608 
 
 V. Smith, 
 
 
 
 Stone V. Damon, 
 
 . 
 
 . 199 
 
 72, 81, 87, 515, 519, 554, 656, 613, | 
 
 y. Moody, 
 
 
 . 161 
 
 633,704,711. 
 
 
 
 V. Seymour, 
 
 97, 98 
 
 , 99, 100 
 
 V. Souven, 
 
 
 . 101 
 
 Stoney y. Shultz, 
 
 
 . 454 
 
 V. Stewart, 
 
 
 . 286 
 
 Stodard v. Butler, 
 
 , 
 
 243, 468 
 
 V. Tarlton, 
 
 7ii, 
 
 VIO, 717 
 
 Storer v. Freeman, 
 
 
 . 495 
 
 T. Van Loan, . 
 
 
 . 257 
 
 V. Great Western Railway Co. 277 
 
 V. Wood," . 
 
 
 . 712 
 
 V. Hunter, 
 
 
 . 244 
 
 V. Wycko£F, 
 
 
 £iG4, 565 
 
 Storey v. American Life Ins 
 
 Co.' 
 
 . 359 
 
 Smith, Matter of. 
 
 
 . 722 
 
 V. Lord Windsor, 
 
 
 91, 256 
 
 Smits V. Williams, 
 
 
 . 88 
 
 Storkley v. Storkley, . 
 
 
 . 198 
 
 Snediker v. Pearson, . 
 
 
 . 347 
 
 Storm y. Mann, 
 
 
 . 383 
 
 Snell V. Dee, 
 
 
 . 516 
 
 Story v. Baker, 
 
 
 . 63 
 
 V. Moses, . 
 
 
 . 157 
 
 y. Brown, 
 
 
 . 141 
 
 Snowden v. Noah, 
 
 
 '/07, 402 
 
 Stoughton y. Lynch, . 
 
 
 . 142 
 
 Snyder -V. Snyder, 
 
 
 (J40, 665 
 
 Stow v. Tifft, 
 
 
 434, 437 
 
 v. Sponable, . 
 
 
 253, 609 
 
 Strange v. Smith, 
 
 
 525, 527 
 
 V. Stafford, 
 
 
 . 454 
 
 Streatfleld v. Streatfield, . 
 
 
 544, 545 
 
 Sonven v. Joyner, 
 
 
 . 108 
 
 Strathmore v. Bowes, . 
 
 
 . 481 
 
 Spader v. Davis, 
 
 
 V37, 238 
 
 Stratton v. Grimes, 
 
 
 . 215 
 
 Stafford v. Manning, . 
 
 
 . 251 
 
 v. Best, 
 
 
 . 545 
 
 Sparks v. Liverpool Wat<!r \ 
 
 /orks, 
 
 . 57 
 
 Strickland v. Strickland, . 
 
 
 . 695 
 
 Spear v. Cutler, 
 
 
 ISO, 379 
 
 Strode v. Russell, 
 
 
 . 496 
 
 V. Myers, 
 
 
 . 257 
 
 Strong y. Holmes, 
 
 
 . 169 
 
 Spencer v. Harwood, . 
 
 
 450, 451 
 
 y. The Trustees of Mitchell, 
 
 . 429 
 
 T. Spencer, 
 
 
 . 614 
 
 y. Skinner, 
 
 
 
 Sperry v. South Carolina la 
 
 s'. Co.' 
 
 . 322 
 
 246, 479, 635, 643 
 
 . 644, 
 
 646, 687 
 
 Sprague v. Duell, 
 
 
 198, 674 
 
 Stuart y. Kissam, 
 
 
 . 478 
 
 Sprigwell v. Allen, 
 
 
 . 159 
 
 Sturgis V. Champneys, 
 
 
 636, 637 
 
 Staats V. Hewlett, 
 
 
 . 718 
 
 Sturtevant y. Ballard,. 
 
 
 . 241 
 
 Stackpole v. Beaumont, 
 
 
 215, 525 
 
 Stuyvesant y. Davis, . . 
 
 
 . 135 
 
 V. Healy, 
 
 
 . 117 
 
 y. Hall, . 
 
 
 . 454 
 
 V. Howell, . 
 
 
 . 535 
 
 y. Mayor of New- 
 
 York, 
 
 276, 277 
 
 Stafford t. Van Rensselaer, 
 
 
 . 438 
 
 v. Pearsall, 
 
 
 . 739 
 
 Stagg V. Jackson, 
 
 '. 500 
 
 501, 506 
 
 Sullivan v. Turk, 
 
 
 . 276 
 
 Stalker v. McDonald, . 
 
 
 257, 359 
 
 Sutherland v. Briggs, . 
 
 
 267, 287 
 
 St. Andrews Church v. Tom 
 
 pkins. 
 
 
 Sutphen v. Fowler, 
 
 269^ 
 
 270, 610 
 
 
 436 
 
 , 437, 448 
 
 Sutton V. Dillaye, 
 
 
 
 . 727 
 
 Stapilton v. Stapilton, . 
 
 
 . 68 
 
 v. Temple, 
 
 
 
 . 153 
 
 Staplfe T. Story, 
 
 
 . 392 
 
 Swaim v. Ferine, 
 
 
 695, 
 
 696, 697 
 
 Stapleton v. Cheele, 
 
 
 . 516 
 
 Swart V. SeiTin, 
 
 
 
 74, 429 
 
 Starr v. Schuyler, 
 
 
 . 305 
 
 Swartout v. Burr, 
 
 270 
 
 1 271, 
 
 299, 610 
 
 Starrett v. Barber, 
 
 
 . 101 
 
 Sweet v. Chase, 
 
 
 
 493, 514 
 
 State of Penn. v. Wheeling 
 
 Bridge 
 
 Co. 
 399, 400 
 
 . y. Sweet, 
 Swift y. Tyson, .. 
 
 
 
 . 627 
 257, 359 
 
 Stead V. Clay, . 
 
 
 . 369 
 
 Sykcs y. Halstead, 
 
 
 
 . 653 
 
 Stebbins v. Walfcly, . 
 
 , 
 
 . 82 
 
 
 
 
 Steere T. Steere, 
 
 , 
 
 . 414 
 
 T 
 
 
 
 Steinman v. Magnus, . 
 
 , 
 
 . 151 
 
 
 
 Stembergh v. Schoolcraft, 
 
 , 
 
 . 691 
 
 
 
 
 Sterry v. Arden, . 
 
 , 
 
 . 182 
 
 Taber y. Taber, . 
 
 i 
 
 . 444 
 
 Stevens v. Cooper, 
 
 , 
 
 . 118 
 
 v. Grover, . . 
 
 
 . 444 
 
 V. Lynch, 
 
 , 
 
 . 62 
 
 Tanner v. Trustees of Albion 
 
 , ■ 
 
 388, 390 
 
 V. Savage, 
 
 
 . 369 
 
 y. Wise, . 
 
 
 . 307 
 
 Stevenson v. Lambard, 
 
 
 . 129 
 
 Tate y. Hilbert, . 
 
 
 563, 554 
 
 V. Maxwell, . 
 
 , 
 
 . 293 
 
 TattersaJl y. Howell, . 
 
 
 . 524 
 
 Stewart v. Graham, 
 
 
 . 197 
 
 Tuxbury y. Miller, 
 
 
 . 210 
 
 V. Hutchins, , 
 
 
 . 428 
 
 Taylor v. Allen, . 
 
 
 . 368 
 
 V. Lispenard, . 
 
 196, 
 
 201, 675 
 
 y. Ashton, 
 
 
 . 150 
 
 V. Lambee, 
 
 
 . 243 
 
 v. Carpenter, . 
 
 206, 
 
 402, 403 
 
 T. McMartin, 
 
 , 
 
 . 239 
 
 y. Diplock, 
 
 
 . 509 
 
 V. Small, 
 
 
 . 257 
 
 v. Fields, . . - . 
 
 
 . 722 
 
 V. The Trustees of I 
 
 lamilto 
 
 nCol- 
 
 y. Fleet, . 
 
 
 , 70 
 
 lege. 
 
 , 
 
 . 258 
 
 v. Jones, . 
 
 
 227, 238 
 
 SHokney v. Jewell, 
 
 , 
 
 . 614 
 
 y. Lovingworth, 
 
 
 . 280 
 
 SKefv.Hait, 
 
 
 725, 726 
 
 ■ v. Neville, 
 
 
 . 273 
 
 St. Jobn T. Senedidv 2e 
 
 )3, 266 
 
 , 297, 600 
 
 1 y. ftudd, . 
 
 . 
 
 
 : . .74 
 
Table of Cases. 
 
 Taylor y. Sandiford, . . .101 
 
 V. "Wheeler 74 
 
 Taylor, Matter of, ... . 685 
 Teal V. Woodworth, . . . 197, 701 
 Tcague v. Bendy, . . . 614, 627 
 Tenham v. Herbert, . . 323, 324 
 
 Tenville v. Nash, . 
 Terrett v. Taylor, 
 Terry v. Terry, . 
 
 Thel'lusson v. Woodford, 424, 491, 544, 
 Theological Seminary of Auburn v. 
 
 Childs, . 
 Thomas v. Howell, 
 V. Oakley, 
 V. Porter, 
 V. Stevens, 
 Thompson v. Attfleld, 
 
 V. Brown, 
 
 T. Ebbetts, 
 
 V. Graham, 
 
 V. Lockwood, 
 Thorndyke v. Arlington, 
 Thorpe v, Jackson, 
 Thornton v. Dixon, 
 Threlfall v. Lunt, 
 Thurston v. Percival, 
 Tibbits V. Tibbits, 
 
 449, 
 
 Tice V. Anin, 
 Tidwell Y. Ariel, . 
 Tiernan v. Jackson, 
 Tifift T. Porter, . 
 Tilghan v. Tilghan, 
 Tilton V. Tilton, . 
 Tinker v. Ball, . 
 Tipping V. Clarke, 
 Tickell V. Short, . 
 Tisdale v. Grant, . 
 Titus V. Neilson, . 
 Toche V. Atkins, . 
 Todd V. Barlow, . 
 Toilet V. Toilet, . 
 Tom V. Goodrich, 
 Tompkins v. Fonda, 
 
 V. Tompkins, 
 
 V. Wheeler, 
 Toplis V. Barker, . 
 Torrey v. Bank of Orleans, 
 Toulmin t. Price, 
 Toussaint y. Martenant, 
 Town V. Neodham, 
 Townsend v. Ash, . . . 133, 
 
 y. Be Vaynes, 
 
 V. Westcott, . 
 Tracy, Matter of, 
 
 677, 681, 682, 683, 684, 
 Traver y. Trayer, 
 Treate y. Cole, 
 Troop V. Haight, . 
 Trott y. Vernon, . 
 Truly V. Wanzer, . 
 Trumbull y. Gadsden, 
 Truscott V. King, . 
 Trustees of Pluntington y. NicoU, 825, 
 Trustees &o. y. Lawrence, . 
 
 of Vernon y. Hills, 
 of Watertown v. Cowen, 
 Tucker y. Wilsoo, 
 Tulk V. Holditch, 
 
 253 
 578 
 613 
 645 
 
 576 
 528 
 139, 382 
 . 58 
 81, 492 
 263 
 . 561 
 . 316 
 160, 169, 361 
 . 208 
 . 134 
 192, 193 
 . 711 
 
 174 
 546 
 453 
 . 510 
 . 463 
 . 506 
 . 148 
 . 283 
 . 514 
 . 407 
 . 142 
 . 105 
 . 433 
 . 210 
 . 164 
 . 83 
 . 109 
 239 
 . 565 
 . 465 
 . 511 
 605, 612 
 . 63 
 
 109 
 701 
 134 
 711 
 235 
 
 688 
 146 
 135 
 142 
 488 
 356 
 150 
 98 
 327 
 720 
 744 
 398 
 456 
 634 
 
 Turning y. Morrison, . 
 
 
 . 205 
 
 Tunno y. Trezeyant, . 
 
 
 . 104 
 
 Tupper V. Powell, . . .46 
 
 303, 216 
 
 Turner y. Richmond, . 
 
 
 . 46 
 
 V. Turner, 
 
 
 . 629 
 
 Turnival y. Crew, 
 
 
 . 278 
 
 Tunstall v. Trappes, . 
 
 
 . 440 
 
 Turrell y. Turrell, 
 
 559, 686 
 
 Tuttle y. Jackson, 
 
 
 . 253 
 
 Tyler v. Webb, .... 
 
 
 . 441 
 
 Tyrringham's CEise, 
 
 
 . 132 
 
 Tyson v. Watts, .... 
 
 
 267 
 
 Twj'ne's case, .... 
 
 
 . 468 
 
 u 
 
 
 
 Udall y. Kinney, . . 681 
 
 636, 645 
 
 Ulrich V. Litchfield, . , . 
 
 
 82, 83 
 
 Underbill y. Dennis, . . 
 
 
 622 
 
 y. Harwood, . 
 
 7 
 
 6, 208 
 
 United States y. Bradley, . 
 
 
 101 
 
 y. Burford, 
 
 
 460 
 
 y. Dabourge, . 
 
 
 91 
 
 y. Hitchcock, . 
 
 
 297 
 
 y. Hoe, . 
 
 43 
 
 7, 456 
 
 y. Kirkpatrick, 
 
 94, 100 
 
 y. Myers, 
 
 
 101 
 
 Upham V. Lefavour, . 
 
 
 101 
 
 Dtterson v. Mairs, 
 
 386, 368 
 
 V 
 
 
 
 Valentine y. Valentine, 
 
 
 143 
 
 Valiant y. Diomede, 
 
 
 135 
 
 Van Duyne y. Thayers, 
 
 
 696 
 
 Vance y. Philips, . 248, 
 
 248, 468 
 
 Vane v. Barnard, .... 
 
 
 139 
 
 y. Lord Bernard, 
 
 
 871 
 
 Van Aernara v. Van Aernam, 
 
 
 659 
 
 Van Alstync y. Speaker, 
 
 485, 486 
 
 Van Bergen v. Van Bel^en, 
 
 
 883 
 
 Van Buren v. Olmstead, 
 
 429, 448 
 
 Van Braklin y. Fonda, . 
 
 
 158 
 
 Van Colt, Matter of, . 
 
 
 632 
 
 Van Cortland v. Underbill, . 
 
 
 164 
 
 Van Derheyden y. Mallory, . 
 
 645, 651 
 
 Van Deckar v. Van Deckar, 
 
 
 155 
 
 Vanderpoel v. Van Valkeuburgh, 
 
 
 146 
 
 Vanderzee v. Aclom, . 
 
 
 207 
 
 Vanderkemp v. Skelton, 
 
 
 453 
 
 Vanderyoort y. Smith, . 
 
 
 357 
 
 Vandervolger y. Yates, 
 
 
 582 
 
 Vandoran v. Mayor of N. T., 
 
 
 .306 
 
 Vauduzer v. Vanduzer, 
 
 
 
 631, 686, 639, 640, 
 
 65 
 
 3, 669 
 
 Vandyck y. Hewitt, 
 
 
 214 
 
 Van Eppa v. Dillare, . 
 
 
 718 
 
 V. Harrison, 
 
 
 354 
 
 V. Van Epps, 188, 189, 
 
 60 
 
 5, 612 
 
 V. Van Duzen, . 559, 
 
 63 
 
 3, 637 
 
 Van Keuren v. Parmelee, . 
 
 
 728 
 
 Van Orclen y. Van-Orden, . 
 
 56 
 
 3, 698 
 
 Van Rensselaer y. Bradley, . 
 
 
 130 
 
 V. Gallup, . 
 
 
 180 
 
 y. Jones, 
 
 12 
 
 9, 180 
 
 y. Kidd, . 
 
 
 862 
 
 V. Morris, . 
 
 
 146 
 
 V. Baddiff, > 
 
 
 133 
 
Table op Cases. 
 
 XXXI 
 
 Tan Rensselaer v. Stafford, 
 Van Home v. Fonda, . 
 
 V. Everson, 
 Van Sickle v. Van Sickle, 
 Van Wyck t. AUiger, . 
 
 V. Seward, . 
 Vail V. Vail, 
 
 Van Vechten v. Van Veghtei 
 Van Winkle v. Curtis, 
 Veeeh v. Pennilake, 
 Vegers V. Pike, . 
 Vergne, De La, v. Evertson, 
 Verplauck v. The Mercantile Ins. Co., . 
 
 V. Sterry, . . 229. 
 Vidal V. Girard's Ex'rs, . 571, 583, 584 
 
 Viele V. Osgood, 735 
 
 Vilas V. Jones, . . .46, 114, 221 
 Viscountess of Montacute v. Maxwell, . 289 
 Voorhies v. Presbyterian Ch. of Am- 
 sterdam 735 
 
 Vroom V. Ditmas, . . . 447, 448 
 
 . 438 
 . 190 
 . 37 
 . 642 
 . 379 
 231, 233, 234 
 . 483 
 in, 424, 484, 660 
 . 382 
 . 161 
 . 266 
 . 440 
 
 234 
 
 W 
 
 Waddell v. Cooke, 
 Wadsworth v. Pacific Ins. 
 Wager, Matter of, 
 Wagman v. Hoag, 
 Wait V. Day, 
 V. Wait, 
 Waldron, Matter of, 
 Walker v. Devereux, 
 V. Sherman, 
 V. Wetherell, 
 V. Whateley, 
 Waller v. Harris, 
 Wallop V. Hewett, 
 Walmesley v. Booth, 
 V. Child, 
 Wal.sh V. Adams, 
 Walton V. Cronly, 
 V. Walton, 
 Ward V. Baugh, 
 V. Kitts, . 
 V. Turner, 
 V. Ward, 
 Wardell v. Eden, 
 Wardwell v. Haight, 
 Warren v. Beardsley, 
 Warner, Ex parte, 
 Warren v. Van Alstyne, 
 
 V. Baynes, 
 Warren, Ex Parte, 
 Warring v. Warring, 
 Warwick v. Wai-wick, 
 Washburn v. Merrills, 
 Waterbery v. Sturtevant, 
 Waters v. Howard, 
 V. Stewart, 
 V. Taylor, 
 V. Travis, 
 V. Yorke, 
 Watklns v. Baird, 
 V. Burch, 
 V. Cheek, 
 Watson V. Hunter, 
 V. Le Row, 
 Watta V. Brooks, 
 
 Co. 
 
 721 
 503 
 
 287, 
 
 139. 
 
 724, 726 
 
 . 122 
 
 682, 688 
 
 111, 113 
 
 601, 602 
 
 . 659 
 
 . 618 
 
 208, 342 
 
 . 378 
 
 . 627 
 
 . 289 
 
 342 
 
 . 540 
 
 . 178 
 
 . 53 
 
 72,4, 726 
 
 74, 429 
 
 504, 506 
 
 . 545 
 
 . 695 
 
 . 554 
 
 . 304 
 
 . 460 
 
 . 718 
 
 . 112 
 
 . 441 
 
 . 698 
 
 . 704 
 
 . 690 
 
 . 661 
 
 250, 609 
 
 . 74 
 
 . 148 
 
 . 276 
 
 . 433 
 
 . 721 
 
 296, 298 
 
 . 369 
 
 . 208 
 
 . 244 
 
 . 520 
 
 370, 371 
 
 239, 610 
 
 . 214 
 
 Watts V. Coffin, . 
 
 V. Waddle, 
 Webb V. Earl, •. 
 
 V. Rice, 
 
 V. Webb, . 
 Webster v. Milford, 
 V. Hale, 
 V. Woodford, 
 Weed V. Bentley, 
 Welby V. Welby, 
 Welch V. Carter, 
 Welland Canal v. Hathaway, 
 Wellesley v. Beaufort, 
 Wells V. Smith, . 
 Wend V. Jekyl, . 
 Wendell, Matter of, 
 Wesley Church v. Moore, 
 Wesley v. Thomas, 
 West V. Walker, 
 Westbourn v. Mordant, 
 Westcottv. Cady, 
 Western Corporation v. 
 Western v. Russell, 
 Westervelt v. Haff, 
 Wetmore v. Scovill, 
 V. White, 
 Wharton v. May, 
 Wheeler v. Bingham, 
 V. Smith, 
 V. Warner, 
 V. Wheeler, 
 Whelan v. Whelan, 
 Whelpdalc v. Cookson 
 Whipple V. McClure, 
 Whispel V. Whispel, 
 Whistler v. Webster, 
 Whitbread, Ex parte, 
 Whitbread v. Jordan , 
 Whitchurch v. Hide, 
 Whitcomb v. Whiting, 
 White V. Cox, 
 
 V. Damon, 
 
 V. Lincoln, 
 
 V. Moore, . 
 
 V. Osborne, 
 
 V. Pomroy, 
 
 V. Trumbull, 
 
 T. White, . 
 
 V. Winchester, 
 Whitehill v. Dorsay, 
 Whiteright v. Stimpson 
 Whitfield V. Bewit, 
 V. Faucet, 
 Whiton V. Bussel, 
 Whittaker, Matter of, 
 Whittick V. Kane, 
 Wickes V. Clarke, 
 Wiggins V. Bush, 
 Wigglesworth v. Steers, 
 Wightman v. Wightman, 
 Wilber v. Collier, 
 Wilcox, Ex parte, 
 Wilcox V. Rhodes, 
 Wilde V. Jenkins, 
 
 . 131 
 . 292 
 . 472 
 74, 75, 429 
 . 624 
 . 545 
 . 506 
 . 195 
 . 151 
 
 545, 546 
 
 . 1158 
 
 . 213 
 
 6i8, 624, 628, 670 
 
 295, 296 
 . 498 
 7, 679, 682 
 . 49 
 . 301 
 382 
 . 392 
 . 490 
 
 278, 279 
 . 266 
 . 609 
 . 387 
 
 284, 285 
 
 . 181 
 
 215 
 
 169 
 
 . 527 
 
 . 460 
 
 178, 204 
 . 188 
 . 204 
 
 658, 661 
 
 545, 546 
 . 440 
 . 441 
 
 Babcock 
 
 Wilder v. Keeler, 102, 103, 193, 562, 719, 727 
 
 Wilde's case, 
 
 Wilkes V. Ferris, . 
 
 V. Harper, 
 
 177 
 
 65, 
 
 263, 
 
 191 
 200 
 303 
 . ■ 104 
 251, 434 
 . 724 
 . 623 
 . 101 
 126, 640 
 . 505 
 . 211 
 . 716 
 . 372 
 52, 461 
 . 58 
 269, 632 
 429, 431, 448 
 233, 639 
 182. 210 
 . 201 
 . 656 
 . 240 
 . 730 
 504 
 744 
 
 494 
 554, 725 
 46, Ul 
 
X33U 
 
 Table of Oases. 
 
 Wilkes V. Stewart, 
 
 . 613 
 
 WoUara v. Heame, 
 
 . 76, 288 
 
 Wilkie V. Roosevelt, 
 
 . 222 
 
 Waller v. Copeland, . 
 
 . 704 
 
 Wilkins v. Batterman, 
 
 . 460 
 
 Wood V. Bowcliff, 
 
 . 275, 264 
 
 V. Pearce, 
 
 . 717 
 
 V. Burnham, 
 
 . 475 
 
 Wilkinson v. Henderson, . 
 
 192, 193, 720 
 
 V. City of Brooklyn, . 
 
 . 407 
 
 V. Mayfleld, 
 
 , 197 
 
 V. Downes, 
 
 . 172, 183 
 
 V. Parish, . 
 
 . 702 
 
 V. Hubbell, 
 
 54, 57 
 
 Willan V. Willan, 
 
 . 200 
 
 V. Lowry, ; ; 
 
 . 245 
 
 WiUard V. Tillman, . 
 
 . . . 57 
 
 V. Vandenburgh, 
 
 •- 557 
 
 Williams v. Baldwin, . 
 
 . 357 
 
 V. Wood, 
 
 
 V. Brown, 
 
 . 238 
 
 329, 650, 625, 667, 658, 665, 666 
 
 V. Chitty, 
 
 . 565 
 
 V. Young, . 
 
 . 463 
 
 V. Crary, 
 
 . 542 
 
 Woodard v. Aspinwall, . 
 
 . 267 
 
 V. Everett, . 
 
 , 464 
 
 V. Giles, 
 
 . 56 
 
 V. Harden, 
 
 . 348 
 
 V. llariiH, 
 
 267, 291 
 
 V. Hay, 
 
 . . . 37 
 
 Woodcock V. Bennett, . 
 
 . 300 
 
 V. Houghtailingj 
 
 . 100 
 
 Womlcii V. Waffle, 
 
 . 37 
 
 V. Lee, . 
 
 162, 352, 357 
 
 Woodonnari v. BhIiIiicJ!, 
 
 . . . 244 
 
 V. McNamara, 
 
 . . .372 
 
 Woddross v. Price's Ex'rs, - 
 
 . 104 
 
 V. Springfield, 
 
 . 339 
 
 Woortley v. Birkliead, . 
 
 . 46 
 
 V. Tborne, . 
 
 - 431 
 
 Woodhouse V. Shipley, 
 
 . 214 
 
 V. Williams, . 
 
 570, 571, 672 
 
 Woolstencraft. Matter of, • 
 
 619 
 
 V. Wood, 
 
 . 149 
 
 Woolridae v. Wilkin, . 
 
 . 712 
 
 Williamson v. Allison, . 
 
 . 149 
 
 Woodroffc V. Famham, 
 
 . 225 
 
 V. Williamson 
 
 . 556, 657 
 
 Woodworth v. Van ijuskirk. 
 
 357, 858 
 
 Willing V. Baihe, 
 
 . . 517 
 
 Wormley v. Wormley, . 
 
 699, 606 
 
 Willis V. Hiscox, 
 
 . 471 
 
 Wordsworth v. Lyon, . 
 
 343. 844 
 
 V. Jernegan, 
 
 . 142 
 
 Worral v. Jndson, 
 
 .' 752 
 
 Willoughby, Matter of. 
 
 . 686 
 
 Wortbington v. Evans, . 
 
 526 
 
 Wilson V. Allen, 
 
 332, 333, 337 
 
 Wright V. Samuda, 
 
 . 509 
 
 V. Brownsmith, 
 
 . 506, 507 
 
 V. Simijson, 
 
 . 113 
 
 V. Chier, . 
 
 . 445 
 
 V. Wright, 
 
 461, 555 
 
 V. Little, . 
 
 . 458. 459 
 
 Wyatt Wild's case. 
 
 . 182 
 
 V. Mount, 
 
 . ' 545 
 
 
 
 V. The Herkimer Co 
 
 . Mut. Ins. 
 
 Y 
 
 
 Co., . 
 
 . 151, 168 
 
 
 
 V. Townshend, . 
 
 . 545, 646 
 
 Tarborongh v. NeweU, 
 
 . 429 
 
 V. Troup, . 
 
 . 448 
 
 Tates V. Compton, 
 
 - 47 
 
 V. Wilson, 
 
 333, 418, 665 
 
 V. Tisdale, . . . Zli 
 
 5, 321, 322 
 
 Wilton V. Saxon, 
 
 . 373 
 
 V. Lansing, 
 
 . 346 
 
 Winchester v. Jackson, 
 
 . 163 
 
 V. Yates, .... 
 
 577,»695 
 
 Winchip v. Pitts, . 
 
 . 139, 375 
 
 Yates, Ex parte 
 
 577, 595 
 
 Windv. Jekyl, . 
 
 . 484 
 
 Yeaf«s V. Groves, 
 
 . 463 
 
 Winn V. Littlejohn, 
 
 . 444 
 
 V. Phettiplace, . 
 
 . 519 
 
 Winne v. Reynolds, 
 
 . 290 
 
 Yeoman v. Chatterton, 
 
 182, 210 
 
 Winslow V. Chiffelle,' . 
 
 . 712 
 
 Young V. Cooper, 
 
 . 702 
 
 Winter v. Lord Anson, 
 
 . 441 
 
 T. Craig 
 
 . 72 
 
 Wintringham v. Lafoy, 
 
 . 245, 466 
 
 V. Keighly, 
 
 . 722 
 
 Wiser v. Bachley, 
 
 . 75 
 
 V. Peasley, 
 
 . 176 
 
 Witherell, Ex parte, . 
 
 . 441 
 
 V. Walter, 
 
 . 78 
 
 Wolcott V, Hall, . 
 
 . 557 
 
 Yovatt V. Wingari., 
 
 . 407 
 
 ERRATUM. 
 On page 316, 3d paragraph, 2d line, for " complainants" read clainuints. 
 
EQUITY JUEISPRTJDEICE. 
 
 INTEODUCTION. 
 
 SECTION I. 
 
 EQUITY, X BEANCH OF JUEISFEnDENCE, DISTINCT FBOM LAW, THOUGH NOT 
 ADMINISTKEED BY A TRIBUNAL EXCLUSIVELY DETOTED TO IT; WITH A 
 SKETCH OF THE RECENT CHANGES IN NEW-YORK.' 
 
 THE recent changes introduced by the constitution of 1846, and by 
 subsequent legislation, have made it expedient to inquire how far 
 equity, as distinct from- law, remains a part of the jurisprudence of this 
 State. At an early period in our colonial history, equity was administered 
 by a tribunal separate from courts of law. The constitution of 1777 
 recognized the office of chancellor and judges of the supreme court, and 
 prescribed the tenure of their offices. The court of chancery and 
 supreme court were organized as ^separate tribunals, the one as a court 
 of equity and the other as a court of -law. The two courts were con- 
 tinued, and their jurisdiction was preserved separate, by the constitution 
 of 1821, and so remained until both were abolished by the constitution 
 of 1846.' 
 
 The present constitution creates a supreme court having general juris- 
 diction in law and equity." It clothes the legislature with the same 
 power to alter and regulate the jurisdiction and proceedings in law and 
 equity as they theretofore possessed.^ It provides that testimony be 
 
 ' Const. 1777, art. 25. Waterman's pp. 318, 436. Const, of 1846, art. 14, § 8. 
 
 Am. Ch. Dig., Introduo. p. 46. Const. Gov. Dongan's Report in 1687, 1 Doc. 
 
 1821, art. 5, §§ 3, 4. 2 E. S. 168. Pre- History, 147. 
 
 face to vol. 1, John. Ch. R. 2 Greenleaf, ' Const, art. 6, § 3. 
 
 L. N. Y. 108 et seq. 1 E. L. of 1813, ' Id. § 5. 
 
 Eq. Jue. 5 
 
34 Introduction. 
 
 taken in equity cases in like manner as in cases at law.' It empowers 
 the legislature to confer equity jurisdiction in special cases upon the 
 county judge.' It declares that such parts of the common law, and of 
 the acts of the legislature of the colony of New- York, as together did 
 form the law of the said colony on the nineteenth of April, one thousand 
 seven hundred and seventy-five, and the resolutions of the congress of 
 the said colony, and of the convention of the state of New- York, in force 
 on the twentieth day of April, one thousand seven hundred and seventy- 
 seven, which had not then expired, or been repealed or altered, and such 
 acts of the legislature of this state as were then in force, should be and 
 continue the law of the state, subject to such alterations as the legis- 
 lature should make concerning the same.' 
 
 The same section abrogates all such parts of the common law, and 
 such of the said acts, or parts thereof, as are repugnant to the constitu- 
 tion ; and by a subsequent article, it requires the legislature, at its first 
 session after the adoption of the constitution, to provide for the appointment 
 of three commissioners, whose duty it shall be to revise, reform, simplify 
 and abridge the rules and practice of the courts of record of this state, 
 and to report thereon to the legislature; subject to their adoption 
 and modification, from time to time.* Before the commissioners made 
 their report, the legislature, by their act of May 12, 1847,' organized the 
 higher courts created by the constitution. By the 16th section of that 
 act, it is enacted that the supreme court shall possess the same powers, 
 and exercise the same jurisdiction, as was then possessed and exercised 
 by the (then) supreme court and court of cjiancery ; and that the 
 justices of the said court shall possess the powers, exercise the 
 jurisdiction (then) possessed and exercised by the justices of the late 
 supreme court, chancellor, vice chancellors and circuit judges, so far as 
 the powers and jurisdiction of said courts and officers shall be consist- 
 ent with the constitution and provisions of the act. The section also 
 makes all laws relating to the late supreme court and court of chancery, 
 or any court held by a vice chancellor, and the jurisdiction, powers and 
 duties of said courts, the proceedings therein, and the officers thereof, 
 their powers and duties, applicable to the supreme court organized by 
 the act, the powers and duties thereof, the proceedings therein, and the 
 officers thereof, their powers and duties, so far as the same can be ap- 
 plied and are consistent with the constitution and the said act. The 
 
 ' Const, art. 6, § 10. ' Const, art. 6, § 24. 
 
 ' Id. § U. ■> L. of 1847, p. 319. 
 
 ' Const, art. 1, § 17. 
 
Introduction. 35 
 
 statute also orgattizes the general and special terms of the supreme 
 court, the former mainly as an appellate tribunal, and the latter, amongst 
 other things, to hear and determine suits and proceedings in equity; 
 and it requires that all suits and proceedings in equity, in said supreme 
 court, shall be first heard and determined at a special term of said court, 
 unless the justice holding such term shall direct the same to be heard 
 at a general term. Provision is also made for rehearing at a general 
 term, on the application of either party, of any suit or proceeding in equity 
 heard and determined at a special term.' 
 
 The act of May 12, 1847, above cited, and the amendatory act of De- 
 cember 14, 1847,^ were designed to vest in the various courts, created by 
 the constitutioii, the powers and jurisdiction possessed and exercised by 
 the courts which existed prior to its adoption. The same judges were 
 empowered to administer law and equity. Neither the, constitution or 
 the statute altered the form of remedy. The subjects of jurisdiction, 
 too, remained unchanged. 
 
 Iii pursuance of the requirements of the act of April 12, 1847, § 24," 
 the justices of the supreme court assembled at the capitol in Albany, in 
 July of that year, and established the rules for governing the practice of 
 the courts, by revising and altering those which were in force at the 
 adoption 6f the constitution, and making such new ones as were required 
 by the new organization. These rules assume that law and equity, 
 though administered by the same tribunal, are different branches of ju- 
 risprudence, and are most conveniently administered by different forms of 
 procediire, The practice under those ruleS; continued without objection, 
 until the following year, when the commissioners of pleading and prac- 
 tice reported, and the legislature adopted, the first code of procedure.* 
 
 The code was amended in 1849, 1851, and again in 1852, and as so 
 amended, controls the practice of the courts', as far as it extends. There 
 are numerous cases not provided for by the code, which are still governed 
 by the former practice of the courts. 
 
 The 140th section of the code of 1852, is in these words : " All the 
 forms of pleading heretofore existing, are abolished ; and hereafter, the 
 forms of pleading in civil actions, in courts of record, and the rules 
 by which the sufficiency of the pleadings are to be determined, are 
 those prescribed by this act." The first section of the code divides rem- 
 edies in the courts of justice into actions and special proceedings : It 
 defines an action to be an ordinary proceeding in a court of justice, by 
 
 ' L. of 1847, p. 323-325. » L. 1847, p. 327. 
 
 ' L. of 1847, p. 638. .» Code of 1848. 
 
36 Introduction. 
 
 which a party prosecutes another party for the enforcement or protec- 
 tion of a right, the redress or prevention of a wrong, or the punishment 
 of a public oflfense. Every other remedy is a special proceeding. Ac- 
 tions are of two kinds, civil and criminal — a criminal action is prosecuted 
 by the people of the state, as a party, against a person charged with 
 a public offense, for the punishment thereof. Every other is a civil 
 action. 
 
 The^abrogation of the ancient /orwis of pleading, and the establishing 
 of a uniform system of remedies in the courts, do not abrogate the dis- 
 tinction between law and equity, nor require that every cause of action 
 should be set forth in the same terms. The code itself says, that the 
 complaint shall contain the title of the cause, specifying the name of 
 the court in which the action is brought, the name of the county in which 
 the plaintiff desires the trial to be had, and the names of the parties to the 
 action, plaintiff and defendant, a plain and concise statement of the facts 
 constituting the cause of action, without unnecessary repetition, and a 
 demand of the relief to which the plaintiff supposes himself entitled. If 
 the recovery, of money be demanded, the amount thereof shall be. stated.^ 
 The statement of the facts will vary with the nature of the wrong to be 
 redressed, or contract to be enforced ; and the definition of the complaint 
 is as appropriate to a bill in chancery for relief against a fraudulent as- 
 signment, as to a declaration at law for a battery, or to recover the 
 amount of a promissory note. 
 
 The confusion arising from a misjoinder of parties and causes of action, 
 is guarded against by the 167th section of the code. The section allows 
 the plaintiff to unite in the same complaint several causes of action, 
 whether they be such as have been heretofore denominated legal or 
 equitable, or both, when they all arise out of, (1,) the same transaction or 
 transactions connected with the same subject of action ; (2,) contract, ex- 
 press or implied ; or, (3,) injuries with or without force, to person and prop- 
 erty, or either ; or, (4,) injuries to character ; or, (5,) claims to recover real 
 property, with or without damages, for the withholding thereof, and the 
 rents and profits of the same ; or, (6,) claims to recover personal property, 
 with or without damages, for the withholding thereof; or, (7,) claims against 
 a trustee, by virtue of a contract, or by operation of law. But the causes 
 of action, so united, must all belong to one of these classes, and must 
 affect all the parties to the action, and not require different places of 
 trial, and must be separately stated. 
 
 The continuance of equity as a distinct branch of jurisprudence, and 
 
 ' Code of 1852, § 142. 
 
Introduction. 37 
 
 of the application of equitable as well as legal remedies, are plainly 
 inferrible from the language of the code, and have been repeatedly recog- 
 nized by the courts.' The former names of actions. are dispensed with. 
 The subject matter which constitutes the basis of .the claim to, relief 
 must be stated now, as well as formerly, but the cumbrous phraseology 
 which sometimes obscured the facts in a former bill in chancery, is dis- 
 pensed with, and the material /ac^5 akne, in distinction from matters of 
 evidence, are required to be set forth. 
 
 The complaint under the code, contains no prayer for process. The 
 names of the parties, plaintiff and defendant, must appear in the com- 
 plaint, and the prayer for relief. 
 
 SECTION II. 
 
 GENEBAL NATURE OF EQUITY. 
 
 Having thus shewn that equity, as distinct from law, still remains a 
 branch of our jurisprudence, it will be convenient to consider what is 
 understood by that term. In its most general and comprehensive sense, 
 equity is often used to denote natural justice. In this sense it relates 
 to the disposition which all should cherish of rendering to every one his 
 due, rather than to a system of remedial justice. It corresponds to the 
 definition of justice, or natural law, as given by Justinian. Justitia est 
 constans et perpetua voluntas jus suum cuique tribuendi.^ In a more 
 restricted sense, it is used as denoting a rule of construction or interpre- 
 tation. When the words of a law are dubious, regard must be had to its 
 reason and spirit. lit often happens that when the reason of the law 
 ceases, the law itself ceases with it. Cessante ralione legis cessat ipsa 
 lex.' This is well illustrated in the case put by Cicero, as quoted by 
 
 s 
 
 * Getty V. Hudson E. Eailroad, 6 How. ny v. Hitchins, 4 id. 98, 99. Giles v. 
 
 Pr. R. 269. Bonton v. City of Brooklyn, Lyon, 4 Corns. 699. Grant v. Quick, 5 
 
 7 id. 198; S. 0., 16 Barb. 385. Knowles Sand. S. 0. E.' 612. Gardner v. Lee, 
 
 V. Gee, 8 id. 800. ■Wooden v. Waffle, 6 11 Barb, 558. Hinman v. Judson, 18 id. 
 
 How. Pr. R. 145. Eoohester City Bank 629, 631. Hunt v. Farmers' Loan, 8 
 
 V. Suydam, 5 How. 216. Linden v. Hep- How. 416. Van Home v. Everson, 13 
 
 burn, 3 Sand. S. 0. R. 668 ; S. C, 5 How. Barb. 531. 
 
 188. Millikan v. Carey id. 272. Willianis "^ Inst. lib. 1, tit. 1. 
 
 V. Hays, id. 470. McMnrray v. Gifford, = Co. Litt. 70, b. Broom's Maxims, 
 
 id. 14. Rnssellv.Olapp, 4id.874. Glen- 115, 
 
38 Introductiow. 
 
 Blackstone.' " There was a law, that those who in a storm forsooi the 
 ship should forfeit all property therein ; and that the ship and lading 
 should belong entirely to them who staid in it. In a dangerous tempest 
 all the mariners forsook the ship, except only one sick passenger, who, 
 by reason of his disease, was unable to get out and escape. By chance 
 the ship came safe to port. The sick man kept possession and claimed 
 the benefit of the law. Now here all the learned agree, that the sick 
 man is not within the reason of the. law ; for the reason of making it was 
 to give encouragement to such as should venture their lives to save the 
 vessel. But this is a merit which he could never pretend to, who neither 
 staid in the ship upon that account, nor contributed any thing to its pre- 
 servation." 
 
 Prom this method of interpreting laws by the reason of them, says 
 Blackstone, arises what we call equity ; which is thus defined by Grotius, 
 " the correction of that wherein the law by reason of its universality is 
 deficient." For since in laws all cases cannot be foreseen or expressed, 
 it is necessary, that when the general decrees' of the law come to be 
 applied to particular cases, there should be somewhere a power vested 
 of defining those circumstances, which, had they been foreseen, the legis- 
 lator-himself would have expressed ; and these are the cases which, accord- 
 ing to Grotius, " lex non exacfe definit, sed arhitrio boni viri permitiit.'" 
 
 And in another place the same learned commentator says, " Equity, in 
 its true and genuine meaning, is the soul and spirit' of all law; positive 
 law is construed, and rational law is made by it. In this, equity is 
 synonymous with justice ; in that, to the true and sound interpretation of 
 the rule.^ In this sense, equity must have a place in every system of 
 jurisprudence, in substance if not in name. No system of human laws 
 is so perfect but that cases must occur in which general rules cannot be 
 applied without injustice, and perhaps not applied at all. It js the 
 province of the judge so to construe them, when they arise, as to accom- 
 plish the object of the lawgiver, if it can be done without violence to the 
 letter. 
 
 Equity is sometimes used in still another sense, as denoting a system 
 supplementary 'to the law. In this sense it was used by Bacon on the 
 occasion of his accepting the office of chancellor. Chancery, said he, is 
 ordained to supply the law and not to subvert the law.* And the author 
 of the Treatise of Equity, a work of high repute, after remarking upon 
 the necessity of having recourse to the natural principles', that what was 
 
 ' Com. 61. » 3 Bl. Com. 429. 
 
 ' 1 Bl. Com. 61. •> Bacon's speech, 4 Bao. Works, 488. 
 
Introduction. 39 
 
 wanting to the finite may be supplied out of that which is infinite ; and 
 that this is what is called equity, in opposition to strict law, observes : 
 " And thus, in chancery, every particular case stands upon its own par- 
 ticular circumstances ; and although the common law will not decree 
 against the general rule of law, yet chancery doth, so as the example 
 introduces not a general mischief. Every "matter, therefore, that hap- 
 pens inconsistent with the designs of the legislator, or is contrary to 
 natural justice, may find relief here. For no man can be obliged to 
 any thing contrary to the law of nature ; amd indeed no man in his senses 
 can be presumed willing to oblige another to it. But if «the law has 
 determined a matter, with all its circumstances, equity cannot intermed- 
 dle ] and for the chancery to relieve against the express provisions of an 
 act of parliament, would be the same as to repeal it. Equity, therefore, 
 will not interpose in such cases, notwithstanding accident or unavoidable 
 necessity ; so that infants had been bound by the statute of limitations, 
 if there had been no exception in the act. And although in matters of 
 apparent equity, as fraud or breach of trust, precedents are not necessary, 
 it is dangerous to extend the authority of the court further than the 
 practice of former times."' 
 
 Notwithstanding the qualification in the latter part of the above" quo- 
 tation, the assertion that chancery will decree against the general rule of 
 law, and relieve against every mischief which happens contrary to natural 
 justice, is not founded in principle or supported by authority. An emi- 
 nent equity judge, in one of his most elaborate judgments,^ has placed this 
 subject in a clear light : " The law is clear, and courts of equity pught to 
 follow it in their judgnients concerning titles to equitable estates ; other- 
 wise great uncertainty and confusion would ensue ; and though proceed- 
 ings in equity are said to be spcundwm discretionem boni viri, yet when 
 it is asked, vir bonus est quis ? the answer is, qui consulta pair um qui leges 
 juraque servat; and it is said in Book's case, 5 Eep. 99 b, that discretion 
 is a science not to act arbitrarily, according to men's wills and private 
 afiiections ; go, the discretion which is executed here is to be governed by 
 the rules of law and equity, which are not to oppose, but each in its turrl 
 to be subservient to the other ; this discretion, in some cases, follows the 
 law implicitly ; in others assists it, and advances the remedy ; in others 
 agajin, it relieves against the abuse, or allays the rigor of it ; but in no 
 case does it contradict or overturn the grounds or principles thereof, as 
 Las been sometimes ignorantly imputed to this court That is a discre- 
 
 ■ Fonb. Equity, book 1, oh. 1, |5. " Sir Joseph Jekyl, M. R. in Oowper v. 
 
 Oowper, 2 P. Wms. 753. 
 
40 Introduction. 
 
 tionary power, ■which neither this, nor any other court, not even the high- 
 est, acting in a judicial capacity, is by the constitution entrusted with." 
 Sir Thomas Clarke adopted this very language, and gave it his approba- 
 tion, in Burgese v. Wheate.' Lord Redesdale, in Bond v. Hopkins,* 
 observed : " There are certain principles on which courts of equity act, 
 which are very well settled. The cases which occur are various, but they 
 are decided on fixed principles. Courts of equity have, in this respect, 
 no more discretionary power than courts of law. They decide new cases 
 as they arise by the principles on which former cases have been decided, 
 and may thus illustrate or enlarge the operation of those principles ; but 
 the principles are as fixed and certain as the principles on which the 
 courts of common law proceed." 
 
 These principles received the full concurrence of the late Chancellor 
 Kent, in the early part of his splendid career as chancellor.^ When 
 pressed to depart from the settled rule of the English chancery, he said, 
 " I take this occasion to observe, that I consider myself bound by those 
 principles, which were known and established as law in the courts of 
 equity in England at the time of the institution of this court ; and I 
 shall certainly not presume to strike into any new path, with visionary 
 schemes of innovation' and improvement ; via aniiqua via est tuta." 
 After remarking on the necessity of drawing his knowledge from books 
 and not from his own head, he says, " This court oifght to be as much 
 bound as a court of law, by a course of decisions applicable to the case, 
 and establishing a rule. As early as the time of Lord Keeper Bridgman, 
 it was held that precedents were of authority ; and that it would be very 
 strange and very ill to disturb a rule in chancery which had been settled. 
 (1 Mod. 307.) The system of equity principles which has grown up and 
 become matured in England, and chiefly since Lord Nottingham was ap- 
 pointed to the custody of the great' seal, is a scientific system, being the 
 result of the reason and labors of learned men for a succession of ages. 
 It contains the most enlarged and liberal views of justice, with a mixture 
 of positive and technical rules, founded in public policy, and indispens- 
 ible in every municipal code. It is the duty of this court to apply the 
 principles of this system to individual cases, as they may arise ; and, by 
 this means, endeavor to transplant and incorporate all that is applicable 
 in that system into the body of our own judicial annals, by a series of 
 decisions at home." Lord Chancellor Talbot, when pressed with the hard- 
 ship of a particular case, said, " If the law, as it now stands, be thought 
 
 ' 1 W. Black. E. 123. = Maiming v. Manning, 1 J. Oh. E. 680. 
 
 " 1 Sohoale & Lefroy, 428, 9. 
 
Introduction. 41 
 
 inconvenient, it 'will be a good reason for the legislature to alter it, but 
 till that is done, what is law at present must take place.'" 
 
 A court of equity has no power to relieve against a general rule of 
 law ; nor to abate the rigor of the common law ; nor to afford relief in 
 cases against natural justice in every case, for many such exist, without 
 any redress, legal or equitable.^ Nor is it governed by the mere opinion 
 of the judge, founded on the circumstances of each particular case. On 
 the contrary, says Blackstone,' the system of our courts of equity is a 
 labored, connected system, governed by established rules, and bound down 
 by precedents, from which they do not depart, although the reason of 
 some of th6m may perhaps be liable to objection. In short, he says, if a 
 court of equity in England did really act, as many ingenious writers have 
 supposed it, from theory to do, it would rise above all law, either common 
 or statute, and be a most arbitrary legislator in every particular case. 
 
 After a careful review of the subject Mr. Justice Story says :* " Equity 
 jurisprudence may properly be said to be that portion of remedial justice, 
 which is exclusively administered by a court of equity, as contradistin- 
 guished from that portion of remedial justice, which is exclusively admin- 
 istered by a court of common law." And in another place,= he says : 
 " Perhaps the most general, if not the most precise, description of a court 
 of equity in the English and American sense is, that it has jurisdiction in 
 cases of rights recognized and protected, by the municipal jurisprudence, 
 where a plain, adequate and complete remedy cannot be had in the courts 
 of common law." However accurate this description may be in a country 
 where law and equity are administered by different forms and in differ- 
 ent tribunals, it is scarcely applicable to the courts of this state since the 
 code has abolished all previous forms of pleading, and the distinction 
 between legal and equitable remedies, and established a uniform course 
 of proceeding in all cases, and the constitution has vested in the same 
 tribunal both legal and equitable jurisdiction. 
 
 There are three modes of considering the great mass composing the 
 jurisdiction of equity. The first is by the subjects cognizable in equity, 
 the second is by a comparison of the powers of equity, with those of the 
 common law, and the third, is by the modes of trial, the modes of proof 
 and the modes of relief. Mr. Maddock has adopted the first mode, and 
 has distributed equity jurisdiction under six heads : 1, accident and mis- 
 take ; 2, account ; 3, fraud ; 4, infants ; 5, specific performance of agree- 
 ments ; and 6, trusts.* Considered with reference to the second mode, the 
 
 ' Head v. Stamford, 3 P. Wms. 412. * 1 Story's Equity, § 25. 
 
 ' 3 Black. Com. 430 et seq. ' Id. § 33. 
 
 ' Id. 432. 1 Mad. Oh. Pr. 21. 
 Eq. Jue. 6 
 
42 Introduction. 
 
 jurisdiction of equity is assistant, cmicurrent and exclusive.^ The 
 object of the third mode is merely to point out the line of division be- 
 tween the jurisdiction at law and in equity. 
 
 With us, since the adoption of the constitution of 1846, the mode of 
 proof in equity is the same as at law,^ and the code has prescribed the 
 same mode of trial in all cases. These circumstances, therefore, cease to be 
 a criterion to determine whether the subject of the action be of legal or 
 equitable cognizance. Equity, too, has ceased with us to be assistant to a 
 court of law. The code forbids any action to obtain discovery under oath, 
 in aid of the prosecution or defense of another action,^ but prescribes, 
 as a substitute, a mode of examining a party as a witness, at the instance 
 of the adverse party. Hence a mere bill of discovery, in aid of another 
 action, is rendered unnecessary. There are many cases in which courts 
 of law and equity entertain concurrent jurisdiction. To this class belong 
 most of the subjects of equitable cognizance. This concurrence of juris- 
 diction has its origin in one of two sources ; either the courts of law, 
 though they have general jurisdiction in the matter, cannot give adequate, 
 specific and perfect relief ; or, under the actual circumstances of the case, 
 they cannot give any relief at all.^ The former occurs in all cases where 
 a simple judgment for the plaintiff or for the defendant does not meet 
 the full merits and exigencies of the case ; but a variety of adjustments, 
 limitations and cross-claims are to be introduced and finally acted on ; 
 and a decree meeting all the circumstances of the particular case between 
 the very parties is indispensable to distributive justice. The latter 
 occurs where the object sought is in capable of being accomplished by the 
 courts of law ; as for instance, a perpetual injunction to restrain nuisances 
 and the like.' 
 
 Perhaps no better test, under the code, can be found to determine 
 whether the action be brought to enforce a legal or an equitable right, 
 than the prayer for relief. If the cause of action stated in the com- 
 plaint requii-es other relief than the payment of money, or the recovery 
 of real or personal property, under subdivisions 5 and 6 of section 16T, 
 and such relief be prayed, the action must be treated as of an equitable 
 nature. Chapter 6, § 274 of the code, allows judgment to be given for or 
 against one or more of several plaintiffs, and for or against one or more 
 of several defendants, and permits the court to determine the ultimate 
 rights of the parties on each side as between themselves. This provi- 
 
 • 1 Foab. Eq. B. 1, oh. 1, § 2, note. ' Code, § 389. 
 Cooper's Equity, 26. * 1 Story's Equity, § 76. 
 
 » Const, art. 6, § 10. s Id. 
 
Introduction. 43 
 
 sion, borrowed from the forroer chancery practice, is inapplicable to an 
 ordinary action at law, and is absolutely indispensable in actions of an 
 equitable character, where the parties are numerous, the transactions 
 complicated, and conflicting equities are to be adjusted. Relief may be 
 obtained under the code in all cases where it could be granted before, 
 whether at law or in equity. The subject of rights and wrongs remains 
 unchanged. The remedy to enforce them, or to prevent their violation, 
 or to obtain satisfaction for their violation, still exists, but under a differ- 
 ent name. A civil action, nomen generalissim,um,, comprises within 
 itself all the former actions, both at law and In equity. Whatever right 
 is sought to be enforced or wrong redressed, the complaint must contain 
 the facts which constitute the cause of action, and the prayer for the 
 proper relief. Like a bill in chancery under the former practice, it 
 should state a consistent case on behalf of all the plaintiffs, if there 
 be more than one ; and state it in direct terms, with reasonable cer- 
 tainty, and without scandal or impertinence.' The charges, pretenses 
 and interrogatories are no longer necessary. 
 
 The doctrines of a court of equity are as important to be understood, 
 in practicing under the code, as before it was adopted. The code is 
 a mere system of practice. It has not changed the nature of human 
 transactions, nor has it repressed the avidity for gain, nor the competi- 
 tions of ambition, nor the unscrupulous graspings of avarice, nor the 
 enci-oachments of selfishness and fraud. The sources from which litiga- 
 tion heretofore sprung are by no means dried up, and the same causes 
 will continue to engender the like controversies, and afford, as in former 
 times, employment for courts of justice. 
 
 There is the same necessity now, as heretofore, for an accurate know- 
 ledge of the various branches of jurisprudence. A knowledge of equity 
 jurisprudence, in particular, is an essential part of the education of 
 every lawyer, as well under the present, as under the former system. 
 A treatise on that subject is of equal, if not of more importance than 
 . formerly, since it cannot be doubted that the blending of all actions into 
 one single form may, in some instances, cast a doubt over the rights 
 which they are designed to protect. The circumstances under which 
 equity will afford relief, in cases of accident and mistake, the specific 
 performance of agreements, the accounts of copartners, the execution of 
 trusts, the prevention of fraud, and the various other branches of equity 
 cognizance, are as important to be known as they were under the former 
 practice. No pleader can set forth, with legal precision, the facts which 
 
 ' Adams' Equity, Introd. 78. 
 
44 Introduction. 
 
 constitute his cause of action, without an accurate knowledge of rights 
 and remedies. 
 
 In treating the subject of equity jurisprudence under the present 
 organization of the courts of this state, the distinction between what was 
 formerly called the concurrent, the exclusive and the auxiliary juris- 
 diction of courts of equity, seems inappropriate, except with reference to 
 the past. No arrangement of the various subjects can be so made but 
 that they will occasionally run into each other. It has never been possi- 
 ble to fix a line beyond which the courts would not afford relief If such 
 line could be ever fixed, the region beyond it would at once become the 
 favorite theater of fraud, injustice and oppression. It is nevertheless 
 »■, desirable, for the sake of perspicuity, that the subjects of discussion 
 should be arranged under titles that will indicate their general nature. 
 We shall accordingly, after a brief survey of the leading maxims of 
 equity, indicate the general distribution of the subject. 
 
 SECTION III. 
 
 GENEBAL VIEW OF THE MAXIMS OF EQUITY AND DISTRIBUTION OF THE SUBJECT. 
 
 In considering the subject of equity jurisprudence, it may be well, in 
 the first place, to bring to the notice of the reader some of the maxims 
 and principles, by which courts of equity are governed in administering 
 relief " Maxims," it has been truly said, " are the condensed good sense 
 of nations." Those which pertain to this department of the law, have 
 the sanction of ages in their favor. They grew up, for the most part, 
 under a system in which equity was administered by a separate tribunal, 
 distinct from courts of law. Some of them are not perhaps strictly appli- 
 cable, or are to be received with modifications, under a system in which 
 law and equity are sought to be blended into one, and are administered by 
 the same judges and forms of procedure. Among these, it is a common 
 maxim, that equity follows the law, csquitas sequitur legem.^ In coun- 
 tries where equity is administered by different tribunals, this maxim is 
 susceptible of various interpretations. It may mean that equity adopts 
 and follows the rules of law in all cases ; or, that in dealing with cases of 
 
 f 
 
 * Burreirs. Law Diet. 427. 
 
Introduction. 45 
 
 an equitable nature, it follows the analogies of law.' To a certain extent 
 it is true in both senses, but not universally so in either. A court of 
 equity can in no case relieve against a positive act of the legislature, or 
 an established rule of the common law. It cannot enforce specifically 
 an agreement void by the statute of frauds, if the defendant insists on 
 the statute, unless an equity is raised in favor of the party calling for its 
 performance, which cannot otherwise be satisfied.* The cases on this 
 point go upon the ground, that the refusal to complete the purchase would 
 operate as a fraud upon the other party. In many cases, equity acts in 
 analogy to the rules of law, in relation to equitable titles and estates. 
 Thus, before the statute of limitations applied to equitable demands, 
 equity required relief to be sought in relation to titles to land, within 
 the period in which an ejectment would lie; and in cases of personal 
 claims, within the period prescribed for personal suits of a like nature.' 
 But the principles of these cases were adopted by the revised statutes, 
 and have since been incorporated in the code ;* and an express limitation 
 has been adopted for cases of which equity has sole and exclusive cog- 
 nizance.* 
 
 The maxim that equity follows the law, though true in certain senses, 
 admits of various exceptions. It cannot be said that where the law 
 a£fords no remedy, there is none in equity ; nor can it be affirmed that in 
 administering equity, no regard is had to the rules of law.^ 
 
 It is another maxim, that where the equities are equal, the law must 
 prevail.' In such case; the defendant has as good a right to the pro- 
 tection of the court as the plaintiff has to relief, and thus another rule 
 intervenes : In equali jure melior est conditio possidentis.' When par- 
 ties have been equally innocent and equally diligent, a court of equity 
 leaves them as they were. If the defendant has an equal claim to the 
 protection of, .a court of equity, to defend his possession, as the plaintiff 
 has to the assistance of the court to assert his right, the court will not 
 interfere on either side.' If there be several equal equitable interests 
 affecting the same estate, they will attach upon it, according to the 
 periods at which they commenced, according to another maxim of equity 
 
 ' TfooddesOn's Lect. 56, pp. 479 to 482. " Kemp v. Pryor, 7 Ves. 249, 250. 
 
 Story's Eq. Jur. § 64. ' Francis' Maxims, Maxim 14. Fonbl. 
 
 " German v. Maohin, 6 Paige, i292. Eq. book 1, ch. 4, § 25. Pitzsimmons v. 
 
 Philips V. Thompson, 4 John. Oh. E. 149. Ogden, 7 Or. 2. 
 
 = Ponb. Eq. lib. 1, ch. 4, § 27, and notes. ' Id. 
 
 Kane v. Bloodgood, 7 John. Oh. R. 118. ° Beekman v. Frost, 18 John. E. 563. 
 
 Murray v. Carter, 20 John. E. 576. S. C. 1 John. Oh. E. 300. Fonbl. Eq. 
 
 *2E. S. 301. Code, §97. book 3, Oh. S. 
 
 •Id. 
 
46 Introdtjction. 
 
 as well as law : qui prior est tempore, potior est jure. ^ Where the legal 
 estate is outstanding, equitable incumbrances must be paid according to 
 priority of time.^ But the rule is only applicable to mere equities.^ If, 
 iherefore, a subsequent incumbrancer, in order to protect himself agaliist 
 mesne incumbrances, obtains a conveyance of the legal estate, equity 
 will not deprive him of his legal advantage, unless, at the time he lent 
 his money, he had notioe of the mesne incumbrance, or obtained the con- 
 veyance of the legal estate after decree -, for though the second or mesne 
 incumbrance be prior to the subsequent incumbrance in point of time, 
 yet it furnishes amerely equal equity with the subsequent incumbrancer, 
 who, having by greater diligence obtained the legal estate, shall be 
 allowed to retain his advantage.' But if the second or mesne incum- 
 brancer has obtained a decree for an account, a subsequent incumbrancer 
 cannot, by buying in the first incumbrance, defeat the effect of such 
 decree.^ The doctrine of tacking owes its origin to these principles, but 
 does not apply between registered mortgages in this state. The registry 
 is notice to all the world, and they must be paid off according to their prir 
 ority.* But this doctrine belongs to a subsequent chapter, and is referred 
 to here, merely to illustrate the maxims referred to. 
 
 If the equities be unequal, the preference will be given to the superior 
 equity.' 
 
 Another maxim, " he who seeks equity must do equity" is of equal 
 importance, and lies, says Sandford, J., at the foundation of equity juris- 
 prudence.^ Thus, a lessor cannot, in the same complaint, seek a forfeiture 
 of a lessee's term and an injunction against a breach of his covenant as to 
 the particular use to be made of the tenement.^ The borrower of money 
 upon usurious consideration could not, before the revised statutes of 1830,'° 
 maintain a bill for discovery or relief, unless upon the terms of paying 
 the lender the sum actually loaned, with lawful interest." 
 
 ■ Berry v. Mut. Ins. Co. 3 J. Oh. E. ' Jeremey's Eq. Jur. 286, 286. Story'^ 
 
 608. Wilkes v. Harper, 2 Barb. Oh. E. Eq. Jur. § 64 d. 
 
 838. Bristol v. Hungerford, 2 Vern. 525. « Linden v. Hepburn, 3 Sand. 8. 0, E. 
 
 Brace v. Marlborough, 2 P. Wms. 495. 671. S. 0., 5 How. Pr. E. 188. 
 
 " Id. « Id. 
 
 " Blalce V. Hungerford, Pre. Oh. 15a " 1 E. S. 772, § 8 ; and see L.of 183T, 
 
 ■* Turner v. Eiohmond, 2 Vern. 81. p. 487, § 4. 
 
 Hawkins v. Taylor, id. 29. Morett v. " Post v. Bank of Utica, 7 Hill 391. 
 
 Parke, 2 Atk. 52. Id. 847. Sogers v. Eathbun, 1 J. Oh. Oas. 367. 
 
 ' Wortley v. Birkhead, 3 Atk. 811. Tapper v. Powell, id. 439. Fanning v. 
 
 " Pridgen v. Oarhartt,Hopk. 234:. Grant Dunham, 5 id. 142. Livingston v. Harris, 
 
 V. U. 8, Bank, 1 Gaines' Oas. in Error, 3 Paige, 538, S. 0. 11 Vend. 329. Yilas 
 
 112. Frost v. Beekman, 1 John. Oh. E. v. Jones, 1 Ooms. 278, Legoux v,Wante, 
 
 298, 299. Psrkist v. Alexander, id. 894. 8 Ear. & Join. 184. 
 
Itttroduction. 47 
 
 But tMs maxim does not interfere with the defense of usury, if the 
 lender seeks the aid of the court to enforce payment of the security. 
 Her« a new rule applies. It is a settled principle of the common law, says 
 Chancellor Walworth, that no court will lend its aid to enforce the per- 
 formance of a contract which is contrary to public policy, or any contract 
 or agreement which was intended by the parties to contravene the pro- 
 visions of a positive law.' Usury may thus be shown as a defense to 
 a bill of foreclosure." 
 
 The maxim, equality is equity, is of extensive use. It is applied in a 
 variety of cases, as will be hereafter seen, as in cases of contribution 
 betw^n sureties and others, abatement of legacies wTiere there is a 
 deficiency of assets, and in case of the marshalling and distribution of 
 equitable assets.' Chancellor Kent says, the general doctrine is to encour- 
 age, as much as possible, the idea of equitable assets, because equality 
 in the payment of debts is equity, and the rule of distribution in chan- 
 cery is founded on principles of natural justice.* A court of equity, in 
 the distribution of legal assets, follows the rule of law, to prevent con- 
 fusion in the administration of the estate ; but whenever the assets are 
 considered as equitable, then it is well and uniformly settled that they 
 are to be distributed among all the creditors pro rata, without giving 
 preference.^ 
 
 Equity treats a thing as done which ought to be done. Thus, it con- 
 eiders land directed to be sold and converted into money as money ; and 
 money directed to be employed in the purchase of land as land.^ But it 
 may be material to remark, that nothing is looked upon in equity as done 
 but what ought to be done, not what might have been done ; nor will equity 
 consider things in that light in favor of every body, but only for those 
 who had a right to pray it? might be done.' The force of the rule is 
 evinced by those cases in which it has been held, that the money agreed 
 or directed to be laid out, so fully becomes land, as, 1st, not to be person- 
 al assets ; 2d, to be subject to the curtesy of the husband, though not "to 
 the dower of the wife ; 3d, to pass as land by will, if subject to the real 
 
 ' Pratt V. Adams, 7 Paige, 615. * Moses v. Murgatroyd, 1 J. Oh. 0. 130. 
 
 = Id. Oowles V. "Woodruff, 8 Ooon. 35. » Id. 131. 
 
 Morelow v. Armstrong, 8 Monroe, 289. ° Craig v. Leslie, 8 "Wheat. 663, 577. 
 
 Trnmboe's Ex'rv. Blizzard, 6 Gill & John. Doughty v. Bull, 3 P. "Wms. 320-323. 
 
 18. Fanning v. Dunham, 5 J. Oh. R. Yates v. Oompton, id. 308. 
 
 136. ' Orabtree v. Bramble, 3 Atk. 680. 
 
 ' Francis' Maxims, 9, max. 3. Bnrrell's Burgesse v. "Wheate, 1 "W. Black. R. 123. 
 
 Law Diet. 426. 2 "Will. Ex. 1054 at seq. Fonb. Eq. book 1, ch. 6, § 9, and notes. 
 Fonb. Eq. B. 3, ch. 2. Id. book 4, ch. 2, 
 §1. 
 
48 Introduction. 
 
 use at the time the will was made ; 4th, not to pass as money, by a gen- 
 eral bequest to a legatee ; but it will, by a particular description, as so 
 - much money to be laid out in land, or by a bequest of all the testator's 
 estate in law and equity.' 
 
 It may be material to remark, that this rule of considering money as 
 land, or land as money, does not apply, if the special purpose for which 
 the money is directed to be laid out in land, or the land to be converted 
 into money, fail.'' 
 
 There was another rule, which related rather to the sustaining of juris- 
 diction, that if a court of equity, by reason of any infirmity of a court of 
 law, rightfiilly obtained jurisdiction of a cause, for the purpose of discovery, 
 it would retain jurisdiction for the purpose of relief. In a recent case 
 in the supreme court of this state, on a bill filed before the code was 
 adopted, and of course governed by the former practice, it was observed 
 by the judge, in delivering the judgment of the court, that there must be 
 some fact appearing on the face of the bill, which either shows that the 
 parties have no remedy at law ; or, if there be a remedy at law, there 
 must be some fact apparent which shows that the aid of a court of equity 
 is necessary to render the remedy certain, adequate and effective. If the 
 remedy at law be doubtful or. obscure ; if it cannot reach the whole mis- 
 chief, and secure the whole right ; if it requires a multiplicity of suits, 
 and the like, a court of equity in general has jurisdiction. Fraud and 
 trusts are subjects with which courts of equity are most frequently called 
 to deal. In cases of fraud, a court of law, in most cases, has a concur- 
 rent jurisdiction, but this does not supersede the necessity of a resort to 
 the equity power of the court. And if oncei the jurisdiction has right- 
 fully attached, it is made effectual for the purposes of complete relief. 
 When a court of chancery has once gained possession of the cause, if it 
 can determine the whole matter, says Lord Nottingham in Parker v. Doe, 
 (2 Ch. Cases, 2Q0, 201,) it will not be the handmaid of other courts, "nor 
 beget a suit tp be ended elsewhere." This was the settled doctrine of the 
 court of chancery in this state under the former constitution. When 
 the court had gained jurisdiction of a cause for one purpose, it re- 
 tained it generally for relief.' In like manner it was well settledj that 
 the enlargement of the jurisdiction of courts of law, so as to embrace 
 matters formerly belonging to equity alone, does not oust the latter of 
 
 ' Fonb. Treatise, book l,ch. 6, §9, note. J. Gas. 431, per Kent, J. Kathbnn t. 
 
 'M. Warren, 10 John. 587. King v. Baldwin, 
 
 ° Oonro V. Port Henry Iron Oo. 13 17 id. 384. 
 Barb. 61, 62, Armstrong v. Gilchrist, 2 
 
Introduction. 49 
 
 jurisdiction. It is thus that the subjects of concurrent jurisdiction Tv.ere 
 constantly increasing.' 
 
 But this has ceased to be of any practical importance in this state, 
 since the abrogation of the old forms of remedy, and the consolidation of 
 equity and legal jurisdiction in the same court. The party under the 
 code, can seek such relief as the facts of the case will require, without 
 the danger of being turned over to another court, or to another form of 
 remedy, or of being subjected to any other inconvenience, in case he has 
 misjudged, than to an amendment. If the action be conducted by coun- 
 sel of industry and learning, and the law.be administered by an enlight- 
 ened tribunal, seeking only for the truth and justice of the case, no rea- 
 son is "perceived why the object sought to Be obtained by the action under 
 the code may not be accomplished with safety to all interests, and with 
 reasonable dispatch. 
 
 The foregoing observations must sufSce as a general introduction of 
 our subject. 
 
 In further treating of the subject of equity jurisprudence, we shall 
 bring our discussion under the general head of Accident and Mistake, 
 Account, Fraud and Trust ; and shall subjoin an account of the jurisdic- 
 tion of the court over those peculiarly entitled to its protection, as 
 Infants, Idiots and Lunatics, and Married Women ; under which latter 
 head we shall briefly treat of the doctrine of Divorces, which, in this state, 
 has long been an appendage of the jurisdiction of our courts of equity. 
 We shall notice also the jurisdiction of courts of equity in Dower and 
 Partition. 
 
 Under the head of Fraud, we shall treat of some of the usual preven- 
 tive remedies, to which it has given rise, such as Bills of Peace, Quia 
 Timet, Interpleader, the Marshaling Securities, Injunctions, and for 
 Specific Performance. 
 
 Under the head of Trusts, the doctrine will be discussed under the 
 usual heads of Express and Implied Trusts : and the various subjects 
 which are usually referable to that head, such as Marriage Settlements, 
 Assignments La Trust, Mortgages, Legacies, Marshaling of Assets and 
 Administration, Charitable Uses, Wills and Testaments, «fcc., will be 
 brought under review. 
 
 We shall also briefly treat of the jurisdiction of courts of equity in 
 Dower, Partition and Partnership, and of proceedings against corporations 
 in equity. 
 
 ' See per Ld. Eldon, Kemp v. Pryor, 7 Ves. 249, 260. Wesley Ohurch v. 
 Moore, 10 Barr, 273. 
 Eq. Jub. 7 
 
CHAPTER I. 
 
 OP THE RELIEF AFFORDED BY EaUITY IN CASES OF ACCIDENT 
 AND MISTAKE. 
 
 SECTION I. 
 
 OF ACCIDENT. 
 
 THE remedy which courts of law afforded in eases of accident, being in 
 many cases imperfect and inadequate, gave occasion to courts of equity 
 to exercise jurisdiction over this subject. This jurisdiction is said by Lord 
 Eldon to be very ancient, founded upon a notion, acknowledged until a 
 very late period, that there was no remedy upon a lost bond, as you could 
 not make profert.' It was not settled in England, that a deed which had 
 been lost or destroyed by time or accident could be pleaded according to 
 the truth of the case, without profert, until the close of the last century.* 
 And in many cases, though a court of law will afford relief, still equity 
 entertains jurisdiction, as affording a more perfect remedy. With us, 
 under the code, it is obvious that the plaintiff may now in the same com- 
 plaint ask for relief upon both grounds, if the facts be so stated as to 
 justify it.' It is nevertheless important that we should have correct 
 notions of the class of accidents against which relief may be obtained. 
 
 By accident, said Lord Cowper, is meant when a case is distinguished 
 from others of the like nature, by unusual circumstances.* Mr. Mad- 
 dock adopts the same definition.^ Mr. Jeremey defines accident, in the 
 sense used in a court of equity, to be " an occurrence in relation to a con- 
 tract, which was not anticipated by the parties when the same was entered 
 
 ' E. India Co. v. Boddam, 9 Ves. 466. * Earl of Bath v. Sherwin, 10 Mod. R. 
 " Bead v. Brookman, 3 T. E. 15. Smith 1, 3. 
 V. M'Gowan, 3 Barb. S. 0. R. 408. » 1 Madd. Ch. Pr. 21. 
 
 » Code of 1852, § 167. 
 
 (51) 
 
52 Of Accident. [Oh. 1. 
 
 into, and -whicli gives an undue advantage to one of them over the other 
 in a court of law.'" The first of these definitions is too loose and general, 
 and the other, by confining it to contracts, does not cover the whole 
 ground. It is moreover defective, in not excluding cases of unanticipated 
 occurrences, resulting from the negligence or misconduct of the party 
 seeking relief. The definition given by Mr. Justice Story, in his com- 
 mentaries, is far more accurate. " By the term accident is intended, not 
 merely inevitable casualty, but such unforseen events, misfortunes, losses, 
 acts, or omissions, as are not the result of any negligence, or misconduct 
 in the party.''^^ 
 
 The most ordinary instances in Tvhich this jurisdiction is exercised are 
 those of lost bonds, and negotiable securities, the non-production of which 
 would defeat the action. And in these cases the decree is not confined to 
 a re-fixecution, but, to avoid circuity of action, extends to payment' 
 The jurisdiction of courts of equity in these cases is more conveniently 
 exerted than that of courts of law ; especially when considered as attaching 
 upon several defendants, all liable to the same debt ; with mutual reme- 
 dies against each other, to make a complete and effectual adjustment. In 
 general, a party suing upon a lost instrument should bring before the 
 court all the parties liable, to the intent that the question of fact, upon 
 which the jurisdiction arises, may be decided, not only between the plam- 
 tiff and the defendants, but as between the defendants themselves, and 
 that the equities subsisting between them may be properly adjusted. A 
 further reason for entertaining jurisdiction in equity, in cases of this kind, 
 grows out of the facility with which equity can inquire into all the circum- 
 stances and grant such indemnity as justice may require.* In this state, 
 since the code, the action cannot be entertained for discovery alone in 
 aid of another action.' The complaint must demand the relief which the 
 ' facts stated therein require. And it is presumed that the existence of 
 the instrument, and the circumstances of the loss, must be duly verified 
 by the party, and it must be sworn not to be in his possession or under 
 his control.' 
 
 The jurisdiction in the case of lost bonds and instruments under seal ori- 
 ginates, as haS been said, in the doctrine of proferli, at law. In the case of 
 negotiable securities, it originates in a different way. An action at law may 
 be brought on such security, without making profert, and complete relief 
 
 ' Jeremys' Ea. Jnr. B. 3, pt. 2, Introd. ' Code, § 889, and see Whitfield v. 
 
 p. 358. Fausatt, 1 Ves. 292, 393. Bromley v. 
 
 " Story's Eq. Jur. § 78. Holland, 7 id. 19, 20. 
 
 ' Adams' Equity, 167, 337. " Adams' Eq. 167. 
 * East Inf!ia Oo. v. Boddam, 9 Ves. 466. 
 
CL 1.] Op Accident. 53 
 
 may be granted in that court. But if the instrument be negotiable, and 
 be lost before it is dishonored, it may pass into the hands of a bona fide 
 holder, against whom no defense can be made. A court of law, too, re- 
 quires that the plaintiff suing upon negotiable paper should produce it 
 at the trial, and deliver it up. This he cannot do if it be lost. And 
 hence equity will entertain jurisdiction and grant relief, on a proper in- 
 demnity being given." If the security be not negotiable, it was said by 
 Sir William Grant, in Mossop v. Eadon," that its loss will not prevent the 
 creditor from recovery at law, and will not therefore create a jurisdiction 
 in equity. But this doctrine seems to have been overruled in a subsequent 
 case, in the king's bench.' In that case the indorser of a bill of exchange 
 having lost the same after it became due, sought to recover against 
 the drawer, in an action at law, on tendering an indemnity, but the 
 court held he could not recover at law. Lord Tenterden said it was the 
 duty of the holder, on receiving payment, to deliver up the bill, and the 
 drawee was not bound to pay unless the bill was delivered up to him. 
 His lordship in conclusion said, that the holder was not without remedy. 
 He may tender sufficient indemnity to the a.cceplor, and if it be refused 
 he may enforce payment thereupon, in a court of equity. The English 
 cases are not free from contradiction, but the present rule seems to be as 
 stated by Lord Tenterden, above.* The supreme court of New-York, in 
 1824, held, that an action at law could not be sustained on a negotiable 
 promissory note papable to bearer, on proving its loss, though such loss 
 happened after it became due. If the note were destroyed, they thought 
 an action at law could be maintained, and so if it was not negotiable. 
 They said the appropriate remedy was in equity, which alone could afford 
 the defendant adequate indemnity against future liability.* The doctrine 
 that the maker was not bound to pay unless the bill or note was given 
 up to him as his voucher ; or upon tender of ample indemnity against any 
 future liability, was repeated in a later case.' Rowley v. Ball was decided 
 before, and Smith v. Rockwell after, the R. S. enacted that, in any suit 
 founded upon any negotiable promissory note or bill of exchange, or in 
 which such note, if produced, might b'e allowed as a set-off in the defense 
 of any suit, if it appears on the trial that such note or bill was lost while 
 
 » Macartney v. Graham, 2 Sim. 285. parte Greenway, 6 id. 812. Mossop v. 
 
 » 16 Vea. 43. Eadon, 16 id. 430. 1 id. 34. 5 id. 338. 
 
 = Hansard v. Robinson, 7 Barn & Ores. 6 id. 112, Davies v. Dodd, 4 Price, 176. 
 
 90. Ohitty on Bills, 8th ed. 290, and notesr 
 
 * See Walmesly v. Child, 1 Ves. sen. ^ Kowley v. Ball, 3 Oowen, 303. 
 888, 846, 847. Leftly v. Mills, 4 T. E. « Smith v. EookweU, 2 Hill, 482. 
 170. Tonlmin v. Price, 5 Yes. 238. Ex 
 
54 Of Accident. [ Ch. 1. 
 
 it belonged to the party claiming the amount due thereon, parol or other 
 evidence of the contents thereof may be given, on such trial ; and notwith- 
 standing such note or bill was negotiable, such party shall be entitled to 
 recover the amount due thereon, as if such note or bill had been pro- 
 duced.' This statute only extends to the remedy, and applies only to 
 negotiable paper.'' 
 
 The supreme court of the United States sustained an action, without 
 evidence of the destruction of the note, there being undoubted evidence 
 of its loss, and no motive or inducement to withhold it.' 
 
 If the party voluntarily destroy a note, he will not be permitted to 
 give secondary evidence of its contents, and his remedy thereon is gone. 
 It is only when the instrument is lost, without a fraudulent design, that 
 he is permitted to recover thereon.^ 
 
 A recent case in the court of appeals of the state of New- York 
 may be referred to this head of accident, although, perhaps, it would 
 not be out of place under the head of mistake.^ The plaintiff, in Nov. 
 1843, entered into a lease of a tavern stand in the city of Rochester, 
 from the defendants, for eight years from the first day of April there- 
 after, for the annual rent of one thousand dollars, payable quarterly ; 
 the lease containing the usual covenants for the payment of rent. After, 
 the execution of the lease, and before the commencement of the term or 
 the entry of the lessee, the premises were destroyed by fire, without the 
 fault of either party. The landlord insisted on the payment of the rent, 
 and brought an action to recover the same. The plaintiff filed his' bill in 
 chancery to restrain that action, and praying to reform the lease, by in- 
 serting in it a clause providing for the determination of the lease 
 and the covenants therein, on the destruction of the premises by fire, 
 and upon such correction he prayed for relief against the said action. 
 The ground of the bill was, that the parties agreed, at the time the con- 
 tract was consummated, that the lease should contain that clause, and 
 that the same had been inadvertently omitted by the scrivener in preparing 
 the lease; and the omission was not discovered by the parties when the 
 lease was executed. As claimed by the plaintiff, this was an accidental 
 omission of a material part of the contract, without the fault of the 
 plaintiff. The contract as made excused the plaintiff from the pay- 
 ment of rent, on the contingency which had happened, but, as reduced to 
 writing and signed, it bound him to pay rent during the term, though the 
 
 ' 2 E. S. 406, § 75. ■ Eemier v. Bank of Columbia, QWhea- 
 
 = Smith V. Eookwell, 2 Hill, 484. Blade ton, 596. 
 V. Noland, 12 Wend. 173. " Blade v Noland, 12 "Wend. 173. 
 
 ■ Wood V. Hubbell, MB. June 7, 1853. 
 
Ch. 1.] Op Accident. 55 
 
 premises were destroyed by fire. The court below dismissed the bill, 
 because the agreement was not sufficiently proved ; but the court of ap- 
 peals differed from them on that point, and reversed the decree of the 
 court below, and ordered the instrument to be reformed according to the 
 prayer of the bill. The omission by the scrivener of the material part 
 of the agreement was accidental, and without the fault of either party. 
 
 If the form of a deed or conveyance is, by accident or mistake, con- 
 trary to the intention of the parties, in their contract, on the subject, a 
 court of equity will interfere to prevent one party from taking an unfair 
 advantage thereof.' So a court of equity will supply words omitted in 
 a doed, in order to give effect to the intention, if it be clear and ap- 
 parent. "Words of inheritance have been thus inserted, so as to convert 
 a life estate into a fee.' 
 
 The plaintiff placed his son with an attorney and gave £120 with 
 him, and articles were made and executed by which it was provided, that 
 in case the attorney died within a year, that then £60 of the money 
 should be returned. It happened that the attorney died within three 
 weeks after sealing the articles, and payment of the money. The court, 
 notwithstanding the parties had provided for accidents to a certain ex- 
 tent, decreed that 100 guineas should be paid back. In this case the 
 death of the attorney was treated as an accident ; and as the sub- 
 stantial part of the consideration for the sum deposited had failed, equity 
 required that 100 guineas of the money should be refunded.' This de- 
 cision, the master of the rolls, (Lord Kenyon,) in Hale v. Webb, (2 Bro. 
 Ch. R. 80,) observed, " carried the jurisdiction as far as could be." At 
 law it has been held, that a partial failure of consideration of a note 
 given on the purchase of real property is not inquirable into in an action 
 upon the note, but the party must seek relief in equity.'' The cases on 
 this point are in some measure conflicting. 
 
 The ground on which equity affords relief against penalties is referred 
 to this head of Accident. It relieves against payment at the day, by 
 requiring that interest should be paid from the time of the default.' 
 The common case of a bond, conditioned for the payment of money, se- 
 cured by a mortgage, when the title of the mortgagee becomes absolute 
 at law, depends on the same principle, but will more properly be con- 
 
 ' Ohamness v. Orntohfleld, 2 Iredell's ' Ifewton v. Rose, 1 Vem. 460. Foab. 
 
 Eq. Eep. 148. Eq. B. 1, ch. 5, § 8. 
 
 ' Higginbotham v. Burnet, 5 John. * Greenleaf v. Oook, 2 Wheat. 13. 
 
 Oh. R. 184. Horry -g. Horry, 2 DesaxM. ' Grunstone v. Bruce, 2 Vern. 594. 
 116. Desell v. Oasey, 3 id. 84. 
 
56 Of Accident. [Oh. 1, 
 
 eidered under the head of Mortgages. Lord Hardwicke laid down the 
 rule thus :' " Equity will relieve against almost all penalties whatsoever ; 
 against non-payment of money at a , certain day ; against forfeitures of 
 copyholds. But they are all cases where the court can do it with safety 
 to the other party ; for ff the court cannot put him into as good condi- 
 tion as if the agreement had been performed, the court will not relieve." 
 So it is a standing rule of the court, that a forfeiture shall not bind, when 
 a thing may be done afterwards, or any compensation may be made for 
 it. Forfeitures are odious in law. Oourts of law,, circumscribed as their 
 jurisdiction is, struggle against them. If the landlord does any thing, 
 receiving rent for example, relief may be had, without the necessity of 
 coming to equity.* Unless it is plain that full compensation can be 
 given, so as to put the other party in the same situation precisely, a 
 court of equity ought not to act ; for such jurisdiction would be arbi- 
 trary.' 
 
 It is on this principle of compensation that equity sometimes relieves 
 against the strict performance of conditions subsequent.^ If such condi- 
 tion becomes impossible, by the act of God, or of the law, or of the obli- 
 gee, &c., the estate will not be defeated or forfeited.' The rule is the 
 same where the condition subsequent is unlawful.^ 
 
 The relief which equity aflfords in the case of confusion of boundaries, 
 is referable to the he*d of Accident. Where lands have become mixed 
 or cohfoundea without the fault of the plaintiff, equity will appoint a 
 commission to settle the boundaries, and, upon confirming the report, 
 make a proper decree between the parties.'' From the simplicity of our 
 conveyances, and the recent settlement of the country, cases requiring 
 this relief will not be of frequent occurrence. 
 
 Having shewn under what circumstances equity will relieve against 
 accidents, it may be proper to refer to some of the cases in which no 
 relief will be granted- It has been repeatedly held, that it will not relieve 
 against penalties in the nature of stipulated damages.^ In matters of posi- 
 tive contract, as where the tenant covenants to pay rent, or to repair during 
 the term, and to leave the premises in as good condition at the end of the 
 
 " Rose V. Rose, Amb. 332. * Popham v. Bamfield, 1 Vem. 83. 
 
 ' Cage V. Eussell, 2 Ventria, 352. San- ' Co. Lit. 206 b. 
 
 ders v. Pope, 12 Ves. 290, 291. Jack- '.Perkins, § 139. 
 
 son V. AUen, 3 Oowen, 220. Olark y. v -^^^^ ^^ ^^ jj^^^^ 3 ^j^_ gg, 
 
 Oummings, 5 Barb. 389. Northcote v. » q^:^^^^^ ^_ Iia.y\an, 2 J. Oh. K. 525. 
 
 Duke, Amb. 511. Woodard v. Gyles, 2 Vern. 119. Eolfe r. 
 
 ' Sanders v. Pope,.12 Yes. 291. Davis Peterson, 6 Bro. P. 0. 470. 
 v. West, id. 475. 
 
Ch. l.j Of Accident. 57 
 
 term as at its commencement, and the premises be accidentally destroyed 
 by fire, equity affords no relief. The reason is that the tenant might 
 have provided for this contingency in his contract, and having made no 
 such provision, he is liable on his covenant for rent, though the premises 
 be destroyed by fire, and cannot be relieved in equity.' In Wood v. 
 Hubbell,' the destruction of the building by fire, after the date of 'the 
 lease, but before the commencement of the term, was held by the su- 
 preme court to absolve the lessee from the payment of rent ; but the court 
 of appeals differed from the supreme court on this point, and the case 
 was decided on other grounds.' f 
 
 A court of equity will not afford relief against an accident which has 
 happened in consequence of the gross negligence of the party seeking 
 relief. There is, says Chancellor Kent, no such head of equity jurisdic- 
 tion.* 
 
 Although equity in many cases relieves to prevent the divesting of 
 an estate, yet a condition precedent, to be performed before an estate 
 will vest, must be literally performed ; and the court never interferes 
 to vest an estate where it will not vest in law,^ unless the party who 
 was to take the estate, on non-performance of the condition, had u^ed an 
 indirect practice or contrivance to prevent its performance.^ 
 
 Where an estate was devised, upon condition that if the first devisee 
 should refuse or neglect to comply with the condition ; viz. within six 
 months after the testatrix's death, to release all demands upon her as execu- 
 trix of A. or otherwise established, with a limitation over ; this was held 
 to be a conditional limitation, and a failure in not executing the release 
 was held not to be relievable.'' 
 
 Equity grants no relief against forfeiture under a by-law of an incor- 
 porated company providing that the members shall receive notice of de- 
 fault in paying a call, and incur the forfeiture by non-payment ten days 
 after notice sent ; and this, notwithstanding the lapse arose from ignor- 
 ance of the call, from accidental circumstances,, and absence from town 
 when the notice was sent.' This refusal was put upon the ground, that 
 
 ' Monk V. Cooper, 2 Str. 763 ; S. 0. Fonb. Eq. B. 1, ch. 3, § 3. Marine Ins. 
 
 Ld. Kay. 1477. Balfour v. Weston, 1 T. Co. v. Hodgson, 7 Cr. 336. 
 
 E. 310. Doe V. Sandhara, id. 705, 710. ' Cary v. Bertrie, 2 Vern. 333. Pop- 
 
 Hallet V. "Wylie, 3 Jolin. E. 44. Gates v. ham v. Barafleld, 1 id. 83. 8 Ohan. Oas. 
 
 Green, 4 Paige, 356. Willard v. Tillman, 129. 2 Freeman, 220. 
 
 19 Wend. 358. « Gary v. Bertrie, 2 Vern. 344. 
 
 = Wood V. Hubbell, 5 Barb. 601. " Simpson v. Viokers, 14 Ves. 341. 
 
 ' ^ge-afite and MS. ° Sparks v. Liverpool Water Works 
 
 ^ Penny v. Martin, 4 J. Oh. E. 669. 1 Co. 13 Ves. 428. 
 
 Eq. Jtjr. 8 
 
58 Of Accident, [Ch.L 
 
 the accident arose partly from a want of proper precaution on the part 
 of the stockholder, and also that compensation could not be made, and 
 that it would be against sound policy to allow a writ to be brought to be 
 relieved against any default. A company could not carry on its business 
 upon such terms. The same rule of refusing relief applies, it seems, to 
 subscribers to a government loan, neglecting to make a further payment, 
 and thus forfeiting the installments already made.' 
 
 Relief will not be granted against a forfeiture of a lease, for willful 
 waste, though it admits of compensation:'' as where the tenant grants 
 leases, works a quarry, cuts down timber, (fee. against repeated admonitions. 
 
 Nor will a court of equity relieve, where a reference has been made to 
 arbitration, and the judgment of the arbitrators is not given in the time 
 and manner, according to the agreement. The court cannot substitute 
 themselves for the arbitrators and make the award.' So, where there is 
 a contract for a sale at a price to be fixed by an award during the hfe of 
 the parties, and one of them dies before the award is made, the contract 
 falls ; and equity will not enforce it upon the ground of accident. The 
 death of the party is a revocation of the award, and the chancellor said 
 there is no instance, where the medium of arbitration or umpirage, re- 
 sorted to for settling the terms of a contract, having failed, equity has 
 assumed jurisdiction to determine, that though there is no contract at law. 
 there is a contract in equity.* 
 
 Nor will a court of equity relieve against accidents which prevent vol- 
 untary dispositions of estates.^ As where a testator promised to make a 
 further codicil to his will, and to give to the plaintiff £15 per annum more 
 than he had already, but died without doing so.' A legatee has no inde- 
 pendent right to a legacy, until consummated ■ by law, and can take only 
 by the bounty of the testator. He has no equity that can be enforced 
 against the estate, because the testator has failed to make him a subject 
 of his bounty. 
 
 The cases where equity will relieve, and where it will not relieve, on 
 the ground of accident, may be greatly extended. Many of them will be 
 considered under the head of mistake. Indeed, the line which separates 
 the two classes of cases is often nearly imperceptible, and for all practical 
 purposes they may, in many instances, be as well considered under one 
 head as the other. 
 
 ' 13 Ves. 435. » Oooth v. Jackson, 6 Ves. 34. 
 
 ' Thomas v. Porter, 1 Oh. Cases, 95. ' Blnndell v. Bretargh, 17 Ves. 241, 
 
 Preo. In Ch. 568, 574. Pearley v. Somer- 242. 
 
 set, 1 Str. 447. Smith v. Parkhnrst, 3 ° Whiten v. Kuesel, 1 Atk. 449. 
 Atk. 141. » 4 id. 
 
Ch. irj Mistake. . 59 
 
 From the foregoing review, it would seem, that to entitle a party to 
 relief on the ground of accident, the plaintiff must establish a clear right, 
 which cannot .otherwise be enforced, in a suitable manner ; or thai he will 
 be subjected unjustly to loss, without blame or misconduct on his own 
 part ; and that his equity is superior to that of the party against whom 
 he seeks relief.' 
 
 SECTION II. 
 
 OF MISTAKE. 
 
 A CORRECT notion of what is understood by a court of equity, by the 
 term mistake, is indispensable to a just understanding of the cases which 
 have been decided on this subject. Dr. Webster defines mistake thus : 
 " An error in opinion or judgment ; misconception. 2, a slip ; a fault ; an 
 error." This definition is too narrow, as it does not exclude the idea of 
 the error being intentional. Mr. Jeremy defines it to be " that result of 
 ignorance of law or of fact which has misled a person to commit that 
 which, if he had not been in error, he would not have done."* Mr. Jus- 
 tice Story says, " it is sometimes the result of accident in a large sense ; 
 and as contradistinguished from it, it is some unintentional act, or 
 omission or error, arising from ignorance, surprise, imposition or mis- 
 placed confidence."^ This latter is the more comprehensive definition of 
 the two. 
 
 The usual division of this subject is into, 1st, mistake of law ; and 2d, 
 mistake of fact. In some of the cases a distinction has been sought to 
 be made between ignorance of the law and mistake of the law, and it 
 has been insisted, that in the first case the party is remediless, and 
 the latter he is not.^ An examination of the cases will show that no such 
 distinction exists. Ignorantia facti excusat, ignorantia juris non ezcu- 
 sat, is a well known maxim.* This maxim is alike applicable to courts of 
 law and courts of equity.' A party may be relieved in equity where the 
 mistake he has committed has been the result of his ignorance of a fact 
 
 ■ Story's Eq. § 109. Madd. Oh. Pr. p. 0. E. 623, and per Senator Paige in 
 
 40, &c. Ohamplin v. Laytin, 18 Wend. 423. Hull 
 
 ' Jeremy's Eq. Juris., book 3, ch. 2, v. Eeed, 2 Barbv Oh. E. 505. 
 p. 858. ' Br. Maxims, 190. 
 
 = Story's Eq. Juris. § 110. " Bilbie v. Lumley, 2 East, 469. 
 
 * Lawrence v. Beaubien, 2 Bailey's S. 
 
60 Mistake of Law. fCh.l. 
 
 material to the regulation of his conduct, but not if it has been the result 
 of ignorance or mistake of the law. 
 
 The case which is generally quoted as establishing the distinction 
 between ignorance of the law and mistake of the law, is Lansdowne v. 
 Lansdowne, decided by Lord Chancellor King." It is very meagerly 
 reported. From the report it appears, that the second of four brothers 
 died, and the eldest and the youngest both claimed his estate. They 
 referred the question to a schoolmaster, who decided that the youngest 
 was entitled to the property, because lands could not ascend. Upon this, 
 the parties agreed to divide the estate between them, and the eldest 
 brother executed a release. The chancellor decreed that the deed should 
 be delivered up, "being obtained by mistake and misrepresentation." 
 The facts are so briefly stated, that it is impossible to say, with certainty, 
 on what ground the decision proceeded. If there -was any intentional 
 misrepresentation, either about the facts or the law, that would be a 
 proper ground for afibrding relief; and it is stated in a report of the case, 
 (2 Jac. & Walk. 205,) that the complainant alleged, in his bill, that he had 
 been surprised and imposed upon by his brother and the school master. In 
 the report by Moseley, Lord Chancellor King is made to say that the maxim 
 of law, ignorantia jnris non excusat, was in regard to the public ; that 
 ignorance cannot be pleaded in excuse of crimes, but did not hold in civil 
 cases. Mosley is not a book of very high authority. Lord Mansfield 
 said it was a book not to be quoted.'' Bronson, J., intimates that it is 
 much more probable that the case turned on the ground of surprise and 
 imposition, than the chancellor made use of the language imputed to 
 him.^ 
 
 The cases relied on to sustain the doctrine that courts will relieve, in 
 cases of mistake in law, will be found, on a critical examination, to fall 
 short of that position. In every instance, they are either too loosely 
 reported to be relied on, or they contain some fact which justified the 
 decision, without disturbing the principle, that every man in the full 
 enjoyment of his mental faculties, and in the absence of all undue influ- 
 ence, is presumed to know the law of the land. They are most of them 
 reviewed by Bronson, J., in Champlin v. Laytin,< where the whole subject 
 has been fully considered. The same learned judge held that the dis- 
 tinction attempted to be made between ignorance and mistake of the 
 
 ' Lansdowne v. Lansdowne, Mose. 364. » Champlin v. Laytin, 18 Wend, 414. . 
 = 5 Burr. 2629. 3 Anstr. Eep. 861. * Id. 415. 
 1 Kent's Com. 493. 
 
CL 1.] Mistake of Law. ' 61 
 
 law, and that in the latter case, though not in the former, relief might 
 be granted, rested on no solid foundation. 
 
 The case of Hunt v. Rousmanier,' has been relied on to uphold the 
 doctrine under review. A brief examination of that case will not be out of 
 place on this occasion. The bill, in that case, stated that the plaintiff 
 loaned to the defendant's intestate two sums of money, 1450 dollars and 
 700 dollars, for which his promissory notes were given ; and as collateral 
 security, a power of attorney authorizing the plaintiff to execute a bill 
 of sale of two vessels, the Nereus and the Industry, to himself or any 
 other person ; and in case of loss, to collect the money which should be 
 due on a policy, by which said vessels and their freight were insured. 
 The instrument contained a proviso, that the power was given as a col- 
 lateral security of the notes, and was to be void on their payment ; on 
 the failure of which, the plaintiff was to pay the amount thereof, and all 
 expenses, out of the proceeds of the said property, and to return the 
 surplus to the said Rousmanier. The bill then charged that the said 
 Rousmanier died insolvent, having paid only 200 dollars on said notes. 
 The plaintiff gav« notice of his claim, took possession of the-vessels on 
 their return from sea, and offered the intestate's interest in them for sale. 
 The respondents forbade the sale ; and the bill was brought to compel 
 them to join in it. The amended bill further stated, that it was agreed 
 between the parties, that Rousmanier was to give a specific security on 
 the vessels, and offered to give a mortgage ; that counsel was consulted on 
 the subject, who advised, that a power of attorney, such as was actually 
 executed, should be taken, in preference to a mortgage ; that the powers 
 were accordingly executed, with the full belief that they would, and 
 with the intention that they should, give the plaintiff as full and per- 
 fect security as would be given by a mortgage. To this bill there was 
 a demurrer ; which was sustained by the circuit court of Rhode Island, 
 and the bill dismissed.^ From this decision the plaintiff appealed to the 
 supreme court of the United States, where the decree of the circuit court 
 was reversed, the proceedings remitted, and leave given in the court 
 below to withdraw the demurrer and answer the bill.^ Chief J. Marshall 
 sustained the principle, that courts of equity grant relief in cases of fraud 
 and mistake ; and that, in general, the mistakes against which a court 
 of equity relieves, are mistakes of fact. He threw some doubt over the 
 case of Lansdowne v. Lansdowife, in Moseley, before referred to, and con- 
 
 ' Hunt V. Rousmanier, 8 "Wheaton, 174. °,Hunt v. Eousmanier, 8 Wheaton, 174. 
 ° Hunt V. Koasmanier's Adm'r, 2 Ma- 
 fiou's B. 244. 
 
62 Mistake of Law. [Ch. 1. 
 
 eluded by saying, " We find no case wLich we think precisely in point ; 
 and are unwilling, when the effect of the instrument is acknowledged, to 
 be entirely misunderstood by both parties, to say that a court of equity 
 is incapable of affording relief 
 
 The case being remanded to the circuit court, was there tried, on the 
 answer of the defendants ; and that court decreed, that the plaintiff was 
 not entitled to the relief sought, and dismissed the bill.' On appeal, the 
 case came again before the supreme court, and the decree of the circuit 
 court was affirmed.' Washington, J., in pronouncing the opinion of the 
 court, says : " The question then is, ought the court to grant the relief 
 which is asked for, upon the ground of mistake arising from any igno- 
 rance of law? We hold the general rule to be, that a mistake of this 
 character is not a ground for reforming a deed founded on such mistake ; 
 and whatever exceptions there may be to this rule, they are not only 
 few in number, but they will be found to have something very peculiar 
 in their character." He then adverts to the case of Lansdowne v. Lans- 
 downe, and remarks : " Admitting, for the present, the authority of this 
 case, it is most apparent, from the face of it, that the decision of the 
 court might well be supported, upon a principle not involved in the ques- 
 tion we are examining." It cannot be denied, that some of the positions 
 of Chief Justice Marshall, when the case was first before the court, as 
 reported in Wheaton, are greatly shaken by the learned and elaborate 
 judgment of Mr. Justice Washington, in which all seemed to concur. 
 The case itself cannot be quoted as an authority for relieving against 
 mistakes of law, nor for the existence of a distinction between ignorance 
 of the law, and mistake of the law. 
 
 The doctrine that parol evidence is inadmissible, to show a mistake in 
 law as a ground for reforming a written instrument founded on such mis- 
 take, is the settled doctrine of Connecticut.^ Civilians are divided on 
 the question whether money paid under a mistake of law, is liable to 
 repetition. But it is the settled doctrine of Westminster hall, that 
 money paid with a full knowledge of the facts cannot be recovered back, 
 on the ground that the party was ignorant of the law.' 
 
 The principles of the common law have been followed more closely iu 
 this than they have in some of the other states ; and our courts have 
 never held but one language on the subject. Chancellor Kent, in an 
 
 Hunt v.Kousmanier, 8 Mason sE. 294. ■" Bilbie v. Lnmley, 2 East, 469. Low- 
 's. 0. 1 Peters, 1. And see Bank ry v. Bourohier, Douglas, 467, 471, per 
 U. S. v. Daniel, 12 Peters, 32. Buller, J. Stevens v Lynch, 12 East, 38. 
 = Wheaton v. Wheaton, 9 Conn. 96. Brisbane v. Davies, 5 Taunt. 144. 
 
Ch. 1.] Mistake of Law. 63 
 
 early case nearly forty years ago,' said it was a settled principle of law 
 and sound policy, that a person cannot be permitted to disavow or avoid 
 the operation of an agreement entered into with a full knowledge of the 
 facts, on the ground of ignorance of the legal consequences which flow 
 from those facts. He added, that ignorance of the law was a very dan- 
 gerous plea, whether we apply it to the rules of civil conduct, or to duties 
 of natural and moral obligations. And he denied relief, on the ground 
 that the plaintifif was only under a mistake in point of law, which mis- 
 take was not produced by any fraud of the defendant. In a later case," 
 he says : " Courts do not undertake to relieve parties from their acts and 
 deeds fairly done on a full knowledge of facts, though under a mistake 
 of the law : every man is to be charged at his peril with a knowledge 
 of the law. There is no other principle which is safe and practicable in 
 the common intercourse of mankind." And, in a subsequent case,^ he 
 asserts the same doctrine. And the supreme court, in 1824,* held that 
 money paid under a mistake of law could not be recovered back. The 
 learned judge who delivered the opinion of the court said : " Although 
 there are a few dicta of eminent judges to the contrary, I consider the 
 current and weight of authorities as clearly establishing the position, 
 that where money is paid with a full knowledge of all the facts and circum- 
 stances upon which it is demanded, or with the means of such knowl- 
 edge, it cannot be recovered back, upon the ground that the party sup- 
 posed he was bound in law to pay it, when in truth he was not. He 
 shall not be permitted to allege his ignorance of law ; and it shall be 
 considered a voluntary payment." The general doctrine that a mistake 
 in law could not be made a ground of relief, was held by a learned judge 
 in a recent case.^ 
 
 After a learned review of many of the cases on the subject, an emi- 
 nent judge' says : " It is impossible to foresee all the consequences 
 which would result, from allowing men to avoid their acts and annul 
 their contracts, on the plea that they did not understand the law. Who 
 could tell what titles would stand, or what contracts could be enforced, if 
 grantors and obligors were at liberty to set up this plea ? Who would 
 venture to enter into stipulations with another, if, after having dealt 
 fairly in relation to the facts of the case, the validity of the contract 
 still depended on the legal knowledge of the opposite party ? And what 
 
 ' Shotwell V. Murray, 1 J. Ch. E. 316. ' Gilbert v. Gilbert, 9 Barb. 532. Ar- 
 
 ' Lyon v. Eiohman, 2 John. Oh. R. 51. thur v. Arthur, 10 id. 9-16, per Hand, J. 
 
 ' Storrs V. Baker, 6 John. Oh. E. 169. ' Per Bronson, J., Champlin v. Laytin, 
 
 ♦ Glark v. Butcher, 9 Cowen, 674, 681. 18 "Wend. 417. 
 
C4 Mistake of Law. fOii. 1. 
 
 *• • '-I 
 
 possible reason can there be for indulging the plea of ignorance in civil 
 
 cases, when it 'is lyholly disregarded in criminal trials, where liberty and 
 life are at stake ? Should we sanction this doctrine under the notion of 
 administering equity in a hard case, it could not, I think, fail to open the 
 flood-gates of litigation, and work the most mischievous consequences in 
 the administration of justice." 
 
 In a well considered case in Massachusetts the expression, ignorance 
 of the law, was held to have reference to the law of one's own country. 
 A man is not presumed to know the law of another state, or nation, and 
 therefore ignorance of the law of a foreign government is ignorance of 
 a fact ; and consequently money paid by mistake, through ignorance of 
 the law of another of the United States, may be recovered back.' Such 
 ignorance, on the same principle, is, in a proper case, relievable in 
 equity. 
 
 ' On the question whether a party is relievable for mere error in law, 
 the late Chancellor Walworth has expressed no clear or decided opinion.' 
 The weight of authority is greatly adverse to such power, unless surprise^ 
 fraud or some other circumstance intervenes. 
 
 One of the most common cases put to illustrate the doctrine is, where 
 two are bound by a bond, and the obligee releases one, supposing, by 
 mistake of law, that the other will remain bound. In such a case the 
 obligee will not be relieved, in equity, upon the mere ground of his mis- 
 take of the law. If there has been no fraud or imposition, or misplaced 
 confidence on either side, there is no reason why the obligor, to whom the 
 release was given, should not insist on his legal right; and it is not in- 
 equitable for the other obligor to insist on his legal rights.' 
 
 There is a class of cases where the court appears to have been gov- 
 erned by mixed considerations, and to have granted relief apparently for 
 a mistake of the law. But when the cases come to be more fully and 
 critically examined, it will be seen that an ignorance of facts, as well as 
 law, or misplaced confidence or surprise, has occasioned the act sought 
 to be relieved. Thus, in an often quoted case,^ where a daughter of a free- 
 man of London accepted of a legacy of £10,000 left her by her father, who 
 recommended it to her to release her right to her orphanage part, which 
 she did release accordingly. Upon a bill afterwards filed by her against 
 
 • Havens v. Foster, 9 Pick. 112. The ' Orozier v. Eioe, 7 Paige, 137. Hall 
 whole subject of mistake and ignorance v. Beed, 2 Barb. Oh. R. 500. 
 of the law is elaborately examined by ' 1 Fonb. Eq. B. 1, ch. 2 f 7. Har- 
 couDsel in this case. And see Oockerell man v. Garner, 4 Vin. Ab. 387 pi. 3. 1 
 V. Oholmeley, 1 Ens. <fe My. 418. Mad. Ch. 60. 
 
 * Pusey V. Disbouvre, 3 P. "Wms. 316. 
 
Oh. 1.] Mistake of Law. 65 
 
 her brother, the executor, the release was set aside, and she was 
 restored to her orphanage part, which amounted to £40,000. Lord 
 Chancellor Talbot, in deciding the case, expressed the opinion that no 
 fraud was committed by the brother. His Lordship said : " It appears 
 the defendant did inform the daughter, that she was bound either to 
 waive the legacy given by her father, or to release her right by the cus- 
 tom ; and so far she might know, that it was in her power to accept 
 either the legacy, or orphanage part ; but I hardly think she knew she 
 was entitled to have an account taken of the personal estate of her father, 
 and first to know what her orphanage part did amount to ; and that, 
 when she should be fully apprised of this, then, and not till then, she was 
 to make her election, which very much alters the case ; for probably she 
 would not have elected to accept her legacy, had she known, or been in- 
 formed, what her orphanage part amounted unto before she waived it, 
 and accepted the legacy." It is thus obvious, that it was not upon the 
 sole ground of the plaintiff's ignorance of the law that the decree pro- 
 ceeded, but her ignorance of an important fact, essential to be knoTv^n, be- 
 fore she could intelligently execute her election. Though her brother 
 practiced no fraud upon her, yet she relied upon him for information, 
 which was not communicated. It was thus a ease in which misplaced 
 confidence, mingled with an ignorance of both law and fact. The case 
 does not conflict with the current of authority on this subject. 
 
 Many of the cases on this subject arise out of the compromise of 
 family controversies, and should not be disturbed by the courts on the 
 mere ground that either of the parties acted in ignorance of the law, or 
 was mistaken in its effect. But if a party obtaining a release has an un- 
 due advantage over the other party, if the parties did not stand upon 
 equal ground, if the releasor was led by his necessities, or by undue in- 
 fluence or surprise, as well as ignorance of his rights, to relinquish his 
 interest in the estate to which he is entitled as heir or devisee, relief 
 will be granted. Thus, in a recent case,' the testator, after giving some 
 inconsiderable legacies, bequeathed the bulk of his large estate to his 
 executors " in trust for such purposes as they consider promises to be 
 most beneficial to the town and trade of Alexandria ; if any difficulty 
 occurs in construction as to any of my bequests, R. J. Taylor is specially 
 charged to give said construction." The executors, after the death of the 
 testator, but without any actual .fraud, obtained from the nephew and 
 heir at law of the testator a release of his interest in the estate, and as 
 
 ' Wheeler v. Smith, 9 How. 55. 
 Ea. JuR. 9 
 
66 Mistake of Law. [Oh. 1. 
 
 a compromise of bis claim to the same, in consideration of twenty-five 
 thousand dollars. The heir filed his bill to set aside the legacy as void, 
 on account of the objects being too indefinite and uncertain, and to set 
 aside the release and compromise as being given under a mistake as to 
 the validity of the bequest, and for other grounds. The bill was filed in 
 the circuit court of the District of Columbia, and detailed the circum- 
 stances under which the release was obtained. The defendants demur- 
 red to the bill. The circuit court sustained the demurrer and dismissed 
 the bill, and the complainant appealed to the supreme court. On the 
 appeal, the court held the residuary bequest void, the efi'ect of which de- 
 cision was to devolve the estate on the complainant as heir at law, unless 
 the release and compromise were operative. On this branch of the case 
 the court say, " The complainant had been prodigal in his expenditures, 
 and notwithstanding the provisions for his support, which had been made for 
 him by his uncle, he was without means and embarrassed. In the inter- 
 view which led to the compromise, he expressed the opinion that the be- 
 quest was void, and declared that he should try its validity by legal pro- 
 ceedings." Mr. Taylor, one of the executors, was a distinguished lawyer, 
 a man of high standing, and in whom the complainant reposed the great- 
 est confidence ; he represented to the complainant that he had sundry 
 written opinions of counsel in favor of the legal validity of the residuary 
 devise, which he offered to shew to him. His conversation conveyed to 
 the complaintant, " the clear and distinct impression that there was but 
 one opinion among the lawyers consulted, and that they were unanimous 
 in favor of the validity of the devise." The complainant asked Mr. Taylor 
 to state his opinion on the subject. He observed that the complainant 
 should not have asked him, but his opinion was, " that the devise in ques- 
 tion was a legal and valid disposition of the residue of the estate." At 
 the same time he admitted that, in Pennsylvania, such a devise would not 
 be good ; but that it was good under the old law of Virginia. 
 
 The complainant alleged that he had no settled views of the legal ques- 
 tion, and being disheartened by the circumstances under which he was 
 placed, he yielded to the compromise. He had but little time for reflec- 
 tion, and none to advise with counsel ; and at last he came to the con- 
 clusion to consider the devise valid, and take what he could for a release. 
 
 Under these circumstances, the complainant agreed to the compromise. 
 It stated the residuary devise, and that its validity had been contro- 
 verted by the complainant. That the executors, taking on themselves 
 the burden of the execution of said will, and of the trusts aforesaid, and 
 the said complainant, to avoid the expense of litigation, and finally to 
 settle and adjust all doubts and difficulties which might arise on the 
 
Ch. 1.] Mistake op Law. 67 
 
 effect of said Tvill, so as to leave tlie executors to execute the same with- 
 out delay or impediment, have agreed on the following terms of compro- 
 mise : The terms are then set out, by which, among other things, the 
 complainant released to the executors all his claims in law and equity to 
 the estate, real and personal, devised and bequeathed, or intended to be 
 devised or bequeathed, by the said testator by his said will, &c., &c. 
 The learned judge then proceeds : " The complainant, it seems, had 
 studied law, but it is manifest, from the facts before us, that he was but 
 little acquainted with business, was an inefficient and dependant man, 
 easily misled by those for whose abilities and characters he entertained a 
 profound respect. From the high character of the executors, no one can 
 impute to them any fraudulent intent in this transaction. Looking to 
 what they considered to be the object of the testator, they felt them- 
 selves authorized, if not bound, to effectuate his purposes by making this 
 compromise with his heir at law. They had no personal interest beyond 
 that which was common to the citizens of Alexandria. And we admit 
 that they may have acted under a sense of duty from a misconception of 
 their power under the will. 
 
 "But in making the compromise, the parties did not stand on equal 
 ground. The necessities and character of the complainant were well known 
 to the executors. Having the confidence expressed in the validity of the 
 devise, they could hardly have felt themselves 'authorized to pay to the 
 complainant twenty-five thousand dollars for the relinquishment of a pre- 
 tended right. Nor could they have deemed it necessary, in the agreement 
 of compromise, substantially to constitute him the donor of the munifi- 
 cent bequest to the'town and trade of Alexandria. 
 
 " We are to judge of this compromise by what is stated in the bill, the 
 facts being admitted by the demurrer. And it appears to us that the 
 agreement, under the circumstances, is void. It cannot be sustained on 
 principles which lie at the foundation of a valid contract. The influ- 
 ences operating upon the mind of the complainant induced him to sacrifice 
 his interests. He did not act freely and with a proper understanding of 
 his rights." 
 
 It is quite clear that the decision of this case rests on other ground 
 than the mistake of the complainant as to the legal validity of a legacy. 
 He was not informed of the value of the estate embraced in the residuary 
 bequest. Here was an ignorance of a fact, known to the one party and 
 not to the other. It is hardly probable that he would, for the considera- 
 tion of $25,000, have released his claim to an estate worth five times 
 that amount, had he possessed the same knowledge which the executors 
 enjoyed. Here was also a misplaced confidence in the executors. 
 
68 Mistake op Law. [Ch. 1, 
 
 A distinction was suggested by Lord Macclesfield,' between a release, 
 where the party releasing was ignorant of his- right, or, if his right was 
 concealed from him by the person to whom the release is made, and the 
 release of a party having right, intimating that in the latter case the 
 release was valid, and in the former it might be set aside. If, indeed, the 
 releasee be guilty of fraud in obtaining the release, it is quite plain equity 
 will relieve. But there is no foundation for the other distinction. If 
 two parties are contending in court, and one releases his pretensions to 
 the other, there can be no color to set aside the release, because the man 
 who made it had a right ; for by the same reason there can be no such 
 thing as compromising a suit, nor room for any accommodation ; every 
 release supposes the p'arty making it to have a right. But this can be 
 no reason for its being set aside, for then every release would be avoided." 
 An agreement upon a supposition of a right, though it may afterwards 
 come out that the right was on the other side, is binding, and the right 
 shall not prevail against the agreement of the parties.^ 
 
 If there be a compromise of a doubtful right, fairly made between the 
 parties, its validity cannot be made to depend upon any future adjudi- 
 cation of the same question. A subsequent decision of a higher court, 
 in a different case, giving a different exposition of a point of law from the 
 one declared and known when a settlement between parties takes place, 
 cannot have a retrospective effect and overturn such settlement. The 
 courts do not undertake to relieve parties from their acts and deeds fairly 
 done on a full knowledge of facts, though under a mistake of the law. 
 Every man is to be charged at his peril with a knowledge of the law. 
 There is no other principle which is safe and practicable in the common 
 intercourse of mankind.^ 
 
 In some of the states, courts of equity have not followed the rule of 
 the English courts and of this state, but have been more indulgent in grant- 
 ing relief, from a mistake of law as well as of fact. There are cases in 
 South Carolina, Kentucky and Maryland to this effect.^ But the general 
 rule in this country undoubtedly is, that every man is to be charged at 
 his peril with a knowledge of the law ; and the courts cannot undertake 
 
 ^ Oann v. Oann, 1 P. Wms. 727. 374. Fitzgerald v. Peck, 4 Litt. 125. 
 
 ' ^'^- Lamat v. Rowley, 6 Harr. & John. 500, 
 
 = Stapilton v. Stapilton, 1 Atk. 10. and see cases collected in 0. & H. Notes, 
 
 * Lyon V. Richards, 2 J. Oh. R. 60. 1488, 4. Gilbert v. Gilbert, 9 Barb! 
 
 Shotwell V. Murray, 1 J. Oh. R. 616. 584. Arthur v. Arthur, 10 id. 9. Ma- 
 
 "Lowndesv. Ohisden, 2 M'Oord's Oh. thews v. Terwilliger, 3 id. 50. Dnpre 
 
 B. 465. Hopkins' Ex'r v. Mazyok, 1 v. Thompson, 4 id. 279. 
 
 Hill's Ch. K. 251. Drew v. Olerok, Cook, 
 
Ch. 1.] Mistake op Fact. 69 
 
 to relieve parties from their acts and deeds, fairly done on a full knowl- 
 edge of facts, though under a mistake of the law. 
 
 It remains to consider how far, and under what circumstances, equity 
 will relieve in case of ignorance, or mistake of fact. Although there 
 may be a difference between ignorance of a fact, and mistake of a fact, 
 when closely considered, yet they are generally used as equivalent ex- 
 pressions in legal discussions. In general it may be said, that the fact 
 mistaken must be material to the contract, or other matter affected by it, 
 and the party asking relief must make his complaint with reasonable dili- 
 gence. In this, as in other matters, the maxim applies vigilantibus 
 non dormientibus jura snbveniunt.^ 
 
 Courts of equity sometimes give relief in cases of mutual mistakes, unac- 
 companied by fraud, when the property which one party intended to sell, and 
 the other intended to buy, did not in fact exist ; or where the subject matter 
 of the sale and purchase is so materialy variant from what the parties sup- 
 posed it to be, that the substantial object of the sale and purchase entirely 
 fails.'* Where land is sold at a certain price by the acre, or foot, and it turns 
 out that by the mutual mistake of the parties there is a considerable defi- 
 ciency in the quantity, courts of equity have so far interfered in some 
 cases as to relieve the purchaser from the payment, for the deficiency. 
 But, even in such a case, a slight variation in quantity will not afford a 
 ground for the interference of a court of equity to correct the mistake.' 
 
 Where the consideration of a covenant to pay an annuity, was the con- 
 veyance to the covenantor of a tract of land on the right bank of the 
 Ohio river, stated to embrace a coal m,ine, and the sole inducement to the 
 purchase was the supposed existence of the coal mine, and it was finally 
 ascertained that no coal mine was embraced within the bounds of the 
 deed, equity enjoined perpetually a prosecution at law, to recover the 
 annuity.* But the court will not interfere, where the instrument itself is 
 such as the parties designed it to be. If the parties voluntarily choose 
 to express themselves in the language of the deed, they must he bound 
 by it.= It is otherwise upon proof of fraud, mistake or surprise.' 
 
 But if one party thought he had purchased bona fide, and the other 
 party thought he had not sold, that is a ground to set aside the contract, 
 
 ' 2 Inst. 690. Broom's Maxims, 692. - * Dale and wife, ex'rs of Fulton, v. 
 
 ' Per Walwortli, Ch., Marvin v. Ben- Koosevelt, 5 J. Ch, R. 174; S. 0. in error, 
 net, 8 Paige, 321 ; S. 0. in error, 26 Wend. 2 Cowen, 129. 
 169. ' MoEldery v. Shipley, 2 Maryl. K. 25, 
 
 » Id. ' Id. 
 
70 Mistake of Fact. [Ch. 1. 
 
 that neither party may be damaged ; because it is impossible to say,- one 
 shall be forced to give that price for part only, which he intended to give 
 for the whole ; or that the other shall be obliged to sell the whole, for what 
 , he intended to be the price of part only. On the other hand, if both 
 understood the whole was to be conveyed, it must be conveyed.' In this 
 case there had been an innocent mistake of the parties, as to the extent 
 of the thing purchased. * 
 
 So where A. purchased an estate of B., which in fact was the estate 
 of A., A. was allowed, on the ground of mistake, to have the purchase 
 money refunded, though there was no fraud in B., who apprehended he 
 had a right to the estate.' 
 
 On the same principle, where a legatee had received a legacy and a 
 year's interest, and given a receipt in full for the legacy and interest, on 
 shewing that the legacy was payable a year after the death of the tes- 
 tator, and not on the marriage of the legatee, which happened long after- 
 wards, and that it was by mistake the whole interest was discharged when 
 only a part was paid ; the court relieved against the receipt, and directed 
 the balance to be paid, although in form cut off by the discharge.' 
 
 The same principle is illustrated by another very hard case : thus, a 
 mortgage came to an executor, who received the mortgage money and 
 paid it over to his testator's creditors. Afterwards, it appeared that the 
 mortgage had been satisfied in the testator's lifetime. A bill was filed 
 to be relieved for this overpayment, and relief was decreed, though the 
 money had been paid by the executor in satisfaction of debts of the 
 estate, for which there were no other assets to pay. And the executor 
 was driven to sue the creditors, to whom he had, through mistake, paid.* 
 
 To entitle a party to relief in such cases, the fact must not only be 
 material, but must be such that he could not, with reasonable diligence, 
 have obtained knowledge of the fact. Where there is neither accident 
 nor mistake, misrepresentation nor fraud, equity affords no relief to a 
 party, on the ground that he has lost his remedy at law, through mere ig- 
 norance of a fact, the knowledge of which might have been obtained, by 
 due diligence and inquiry .= A party who becomes remediless at law by 
 
 ' Olaverly v. "Williams, 1 Vea. jun. 210, ' Earl v. Thornbery, 3 P. Wms. 126. 
 
 211- * Pooley v. Ray, 1 id. 354. 
 
 " Bingham v. Bingham, 1 Ves. 126. ' ' Taylor v. Fleet, 4 Barb. 95. Dnfree 
 
 1 Mad. Ch. 62; and see Taylor v. Fleet, v. Thompson, id. 298. Perry v. JIartin, 
 
 1 Barb. S. 0. R. 471, as to mutual mis- 4 J. Ch. B. 566. 
 take of facts being sufficient to avoid a 
 contract. 
 
CL 1.] Mistake of Fact. 71 
 
 negligence, shall not be relieved in equity.' Vigilantibus rum dormi- 
 entibus jura subveniuntJ' 
 
 The circumstance, that a material fact is mistaken or unknown, does 
 not, i?i all cases, call for the interposition of a court of equity. If the 
 fact be known to one party, and unknown to the other, it may be one item 
 in the proof to establish a fraudulent concealment, misplaced confidence 
 or, surprise. But then, the relief, if granted, is so granted on the ground 
 of fraud or misplaced confidence, rather than on the ignorance of the one 
 party, and knowledge of the other. If A., knowing that there is a mine 
 or a valuable quarry of marble on the land of B., of which he knows B. 
 is ignorant, should buy the land of B. without disclosing the fact, foi* a 
 price, in which the mine or quarry is not taken into consideration, B. 
 would not be entitled to relief against the contract. The reason is. A., 
 the purchaser, was under no obligation, from the nature of the contract, 
 to make the disclosure. 
 
 If the fact be unknown to both parties, there is no principle on which 
 equity can interpose, though it happen that thg estate be more valuable 
 than either party supposed. If both are equally innocent, each is en- 
 titled to whatever benefit may result to him from the purchase. But the 
 law does not go to the romantic length, of requiring that both parties 
 should be upon the «ame level, as to information or knowledge. It re- 
 quires each party to be vigilant, and to abstain from any fact tending to 
 mislead or deceive. If the parties stand on a footing of equality, and no 
 fraud is committed by either, both must abide by the contract, and each 
 is entitled to' the benefit of his own sagacity. But the law exacts the 
 utmost good faith, especially where the rights of sureties are concerned.' 
 
 If the means of information are open to both parties, and the vendee, 
 before the purchase, acquires information not known to the vendor, ma- 
 terially enhancing the price of the article, and of which he knows the 
 vendee is ignorant, equity cannot relieve. The reason is, the vendee 
 was not bound to communicate the information he possessed. He must 
 tak* care not to say any thing, tending to impose upon the vendor. It 
 would be difficult to circumscribe the contrary doctrine, within proper 
 limits, when the means of intelligence are equally accessible to both 
 parties.^ Thus, where the vendee, at New Orleans, during the war with 
 Great Britain, in 1815, had received intelligence of the peace at the time 
 he entered into the contract, of which fact the vendor was ignorant, pur- 
 
 ' Perry v. Martin, 4 J. Oh. R. 568, per Etting v. Bank U. S. 11 Wheat. 59 and 
 
 Kent, Oh. 1 Fonb. Tr. boolc 1, ch. 3, § 3. oases there cited. 
 
 " Br. Maxims, 692. * Laidlow v. Organ, 2 Wheaton, 178- 
 
 = Pidcock V. Bishop, 3 B. & Cress. 605. 195. 
 
72 Mistake of Fact, [Ct. 1. 
 
 chased of the latter 111 hogsheads of tobacco, for a certain pricej far 
 below its value in a state of peace, it was held that the purchase could 
 not be avoided, notwithstanding the ignorance of the vendor of that 
 material fact.' 
 
 A man of a nice sense of justice may feel that, in faro conscienticB, 
 the vendee should impart to the vendor intelligence which so essentially 
 affects the market value of the article. The establishment of such a 
 rule would require the vendor to disclose every thing in his power which 
 might lessen its price. Thus, the two parties, instead of dealing with 
 each other, as men usually do, at arm's length, each turning his own 
 knowledge and sagacity to the best account, would be urging arguments 
 to dissuade the other from entering into the contract which he was pro- 
 posing to make. The common law has never gone to that visionary 
 extent. Where the facts are eqtially unknown to both parties ; or where 
 each has equal and sufficient means of information ; or where the fact is 
 doubtful, or uncertain in its nature, if the parties act in other respects, 
 with good faith, equity will not interfere. 
 
 Nor will equity interfere to set aside a contract made in good faith, 
 on the ground of a mistake in judgment as to the value of the article.' 
 Nor will it interfere where there was no fraud or misrepresentation, or 
 Surprise, nor mistake, except mistaken calculations and an unprofitable 
 bargain.^ 
 
 In Massachusetts it has been held that the supreme judicial court has 
 no jurisdiction in equity, in cases of mere mistake.* 
 
 Where the number of acres conveyed is different from the original 
 agreement for conveyances, equity will relieve on the ground of mistake ; 
 and if the variance be very great, the words, " more or less," in the deed, 
 will not prevent the court from relieving.^ 
 
 The cases of most freq[uent occurrence, where equity is invoked to 
 correct mistakes of fact, arise under written contracts, either executed or 
 executory. Sometimes relief is prayed because a substantial fact of the 
 contract made has been omitted by accident or mistake, when it came to 
 be reduced to writing. The case of Wood v. Hubbell, recently decided in 
 the court of appeals of New-York, and discussed under the head of ac- 
 cident, was of this character.' The ommission, by the scrivener, of that 
 
 ' Laidlow V. Organ, 2 Wheat. 178- » Young v. Craig, 2 Bibb, 270. Smith 
 
 195, and note. Pothier DeVente, No. 233. v. Smith, 4 id. 81. Marvin v. Bennett, 
 
 ' Hunter v. Goudy, 1 Hammond, 450. 8 Paige, 812 ; S. C, 26 Wend. 109. 
 
 ' Segus v. Tingley, 11 Conn. 134. ° Ante, "Accident." JuneT., court of 
 
 * Gould v. Gould, 5 Met. 274. appeals, 1853. 
 
Ch. 1.] Mistake of Fact. 73 
 
 part of the contract which terminated the lease and the covenants on the 
 destruction of the demised premises by fire, might appropriately be 
 referred either to the head of Accident or Mistake. Sometimes relief is 
 sought because there is a mistake as to the subject matter of the pur- 
 chase.' Thus, where a trustee for an infant agreed to sell 200 acres of 
 land, part of a lot of 250 acres, and executed a deed to the purchaser, 
 describing the premises by metes and bounds, " containing two hundred 
 acres more or less ;" and the bounds included the whole lot of 250 
 acres ; on a bill filed, after the death of the trustee, by the cestui que 
 trust, for relief against the mistake, the vendee was decreed to reconvey 
 the fifty acres.'^ On the same principle it is obvious that relief may be 
 granted in any case where the agreement is, by accident or mistake, ma- 
 terially variant from what the parties intended. 
 
 It is a general principle of the common law that parol evidence is not 
 admissible, to contradict or vary or add to the terms of a deed, or other 
 written contract.^ " It would be inconvenient," says Lord Coke, " that 
 matters in writing, made by advice and on consideration, and which finally 
 import the certain truth of the agreement between the parties, should be 
 controlled by an averment of parties, to be proved by the uncertain testi- 
 mony of slippery memory ; and it would be dangerous to purchasers and 
 all others, in such cases, if such nude averments against matter in writing 
 should be admitted."* This principle is the general rule, and is founded 
 in wisdom and policy. But if the rule were inflexible, and in no case 
 to be departed from, it would abrogate an essential part of equity juris- 
 diction. Fraud, accident and mistake are undisputed subjects of relief 
 in equity. How can fraud, accident or mistake in written contracts, be 
 made to appear but by parol proof? If the fact be denied by a party 
 gaining a benefit thereby, the victim of fraud, or accident, or mistake, 
 would be without redress. 'The granting of relief in cases of this kind, 
 rests upon the principle that parol evidence, to explain, contradict or 
 supply a written instrument, in a proceeding in equity to reform the 
 instrument, is an exception to the general rule. And although it has 
 often been strenuously resisted by counsel, yet the exception is as firmly 
 established as the rule itself ^ Lord Hardwicke said the court had juris- 
 diction to relieve, in respect of a plain mistake in contracts in writing, as 
 
 ' Oalverley v. 'Williams, 1 Ves. jr. 210. collected in 0. & H. Notes to Phil. Ev. 
 
 »• Gillispie v. Moon, 2 John.' Oh. R. 685. p. 1428. 
 
 ' 1 Phil. Ev. 548. ' Bull v. Storie, 1 Sim. & Stn. 210, 
 
 * See the cases at law on this subject 219, 220. 
 
 Eq. Jub. 10 
 
74 Mistake of Fact. fCli. 1. 
 
 well as against frauds in contracts.' In another case the same eminent 
 chancellor corrected a bond which was by mistake made joint, instead of 
 joint and several.' And in another case, though he dismissed the bill 
 for want of proof, he said that mistakes and misapprehensions in the 
 drawer of a deed, contrary to the design of the parties, is as much a 
 head of relief as fraud and imposition.' And in another case his lordship 
 said, " how can a mistake in an agreement be proved but by parol evi- 
 dence? It (the deposition) is not read to contradict the face of the 
 instrument, but to prove a mistake therein."* Lord Ch. King allowed a 
 mistake in a marriage settlement to be corrected.' Lord Loughborough 
 corrected a bond, making it several instead of joint.' And Lord Thurlow, 
 in a much agitated case, laid down the rule with great latitude, that if a 
 mistake appears, it is as much to be rectified as a fraud.' And in another 
 case, he held that parol proof was not incompetent to prove that words 
 taken down in writing were, by mistake, contrary to the current testi- 
 mony of all parties. And Lord Eldon in a later case said, that it would 
 be very singular, if the jurisdiction of the court should not be capable 
 of being applied to cases of mistake and surprise, as well as of fraud.' 
 He owned that those who undertook to rectify an agreement, by showing 
 a mistake, undertook a task of great diflSculty, but he could not say the 
 evidence was incompetent, though it was not possible to reconcile all the 
 cases on the question. 
 
 On the same principle, defects in mortgages, contrary to the intention 
 of the parties, have also been made good against subsequent judgment 
 creditors, who came in under the party who was bound in conscience to 
 correct the mistake.' On the like principle, a resulting trust may be 
 established by parol proof, in opposition to the deed, and in opposition to 
 the answer denying the trust.'" A deed, absolute on its face, may be . 
 shown by parol to be intended as a mortgage." Such evidence was at 
 one time held admissible, in this state, in a court of law, to show that a 
 deed absolute on its face was intended as a mortgage.'^' But that doctrine 
 
 ' Henkle v. Royal Exchange Assurance ' Taylor v. Wheeler, 2 Vern. 564. Finch 
 
 Oo., 1 Vea. 317. v. Earl of Winchelsea, 1 P. Wms. 277. 
 » Simpson V. Vanghan, 2 Atk. 31. ■» Boyd v. M'Lean, 1 John. Ch. E. 582. 
 
 ' Langley v. Brown, 2 Atk. 208. Jameson v. Graves, 2 Blaokf. 440. 
 
 ♦ Baker v. Paine, 1 Ves. 466. Washburn v. Merrills, 1 Day's Oases 
 ' Randall v. Randall, 2 P. Wms. 466. in Error 189. 
 
 • Burn v. Burn, 3 Ves. jr. 473. " Eoaoh v. Oasine, 9 Wend. 227. Wal- 
 ' Taylor v. Rndd, cited 5 Ves. 595. ton v. Oronly, 14 id. 63. Swart v. Ser- 
 » Marquis of Townshend v. Stangroon, vin, 21 id. 86. Webb v. Rice 1 Hill 606 
 
 6 Ves. 328. ' 
 
Ch. 1.] Mistake of Fact. 75 
 
 has been since exploded, and such evidence is admissible only in a direct 
 proceeding to reform the instrument.' 
 
 The rule that parol evidence may be received in opposition to a written 
 contract, in an action brought to reform it, on the ground of mistake, or 
 in a case where it is set up as matter of defense, has often been applied in 
 this state. Chancellor Kent uniformerly held, that equity relieves in 
 cases of mistake as well as against fraud, in a deed or contract in writ- 
 ing ; and that parol evidence was admissible to prove the mistake, though 
 it was denied in the answer ; and this, either when the plaintiff seeks re- 
 lief, affirmatively, on the ground of the mistake, or when the defendant 
 sets it up as a defense to rebut an equity .' But it is properly added 
 that, to shew a mistake in a written instrument, the evidence must be 
 clear and strong, so as to establish the mistake to the entire satisfaction 
 of the court.' 
 
 The principle, that parol evidence is admissible to contradict a deed or 
 other instrument in cases of fraud, accident or mistake, was recognized 
 by Ch. Sandford,' but the evidence was excluded, in the case before him, 
 because neither fraud, accident or mistake was alleged. The case was 
 therefore not brought within the exception to the general rule. Chan- 
 cellor Walworth recognized the same doctrine, saying that the rule is, 
 that the written agreement itself is the best evidence of what the parties 
 intended should be the final and binding contract between them, when 
 nothing has been left out of the written contract by fraud or mistake, 
 which the parties supposed was inserted therein when the agreement was 
 executed by them.* The doctrine is thus recognized, that the allegation 
 of fraud or mistake will let in evidence to shew the truth against the 
 language of the instrument. 
 
 It does not make any difference, with respect to the jurisdiction of the 
 court to relieve in cases of accident or mistake, whether the agreement 
 arose under the statute of frauds, or the common law. In both cases the 
 general rule is, that the written instrument furnishes better evidence of 
 the deliberate and final intention of the parties, than any parol proof can 
 supply. And the exceptions apply as well to one class of agreements as 
 the other. And equity has afforded relief or withheld it, according to 
 
 ' Webb v. Rice, 6 Hill, 219. 607. Bottsford v. Burr, 2 J. Oh. R. 413. 
 
 ' Gillespie v. Moon, 2 J. Ch. R. 51, 585. Keissenbrack v. Livingston, 4 J. Oh. E. 
 
 'Id. Lyman V. United States Ins. Oo. 148. Roosevelt v. Dale, 2 Oowen, 129. 
 
 2 J. Oh. R. 630. 1 Fonb. Eq. book 1, oh. Leavitt v. Palmer, 8 Oomst. 19. 
 
 2, § 8. Moses v. Mnrgatroyd, 1 J. Oh. * Meads v. Lansing, 1 Hopk. 124; 
 
 119,138. Wiser.v. Baohley, IJ. Oh. E. ' Jarvis v. Palmer, 11 Paige, 658. 
 
76 Mistake op Fact. [Oh. 1. 
 
 circumstances, in cases of policies of insurance, charter parties, bonds 
 and other commercial paper.' 
 
 A distinction has sometimes been taken between cases where the plain- 
 tiff seeks to reform a contract, and then compel its execution specifically 
 as reformed, and cases in which the defendant sets up the mistake as 
 matter of defense, against a claim for the specific execution of the agree- 
 ment. In the former case, relief has been denied in England, though 
 granted in the latter ; and the distinction has been sustained by respect- 
 able authority in this country.' But this distinction»has not been ap- 
 proved or followed in this state, but has been expressly overruled by 
 Chancellor Kent.' In one of the cases, the learned chancellor observes, 
 that he is not sufficiently instructed, at present, to admit the soundness 
 of the distinction which holds parol evidence admissible to correct a writ- 
 ing as against but not in favor of a plaintiff seeking specific performance 
 of an agreement. Lord Hardwicke does not seem to have been aware of 
 such a distinction in the two cases to which Sir William Grant refers, in 
 Wollam V. Hearne, Lord Thurlow rejected parol proof in the case of 
 Irnham v. Child, (1 Bro. 92,) when ofiered by a plaintiff seeking perform- 
 ance of an agreement, and at the same time seeking to vary it by parol 
 proof; but he went upon general grounds, applicable to such proof, as 
 coming from either party. " And why," says the chancellor, " should not 
 the party aggrieved, by a mistake in the agreement, have relief as well 
 when he is plaintiff as when he is defendant 1 It cannot make any dif- 
 ference in the reasonableness and justice of the remedy, whether the mis- 
 take was to the prejudice of the one party or the other. If the court has 
 ai competent jurisdiction to correct such mistakes, (and that is a point 
 understood and settled,) the agreement, when corrected, and made to 
 speak the real sense of the parties, ought to be enforced, as well as any 
 other agreement perfect in the first instance. It ought to have the same 
 efficacy, and be entitled to the same protection, when made accurate 
 under the decree of the court, as when made accurate by the act of the 
 parties. The one case illustrates the other. Res aceendent lumina 
 
 ' Getman's Ex'rs v. Beardsley, 2 J. CB. United las. Oo. 2 J. Oh. R. 630. Graves 
 
 E. 274. Edwin V. East India Oo. 2 Vern. v. The Boston Ins. Co. 2 Oranoh, 419. 
 
 210. Meaeh v. Lansing, Hopkins, 124. " Clinman v. Cook, 1 Scho. & Lef. 22. 
 
 Simpson v.Vaughan, 2 Atk. 31. Dwight "Wollam v. Hearne, 7 Ves. 211, by Sir 
 
 v. Pomroy, 17 Mass. 803. Underbill v. "William Grant, M. E. Osborn v. Pbelps, 
 
 Harwood, 10 "Ves. 225, 226. Edwards v. 19 Conn. 63. 
 
 Child, 2 Vern. 727. Lyman v. The " Gillespie v. Moon, 2 J. Ch. E. 585. 
 
 Keissenbraok v. Livingston, 4 id. 144. 
 
Ch. l.J Mistake of Fact. 77 
 
 rehus.^' This reasoning seems to have met the approbation of Mr. Jus- 
 tice Story.' In a note the learned justice adds, that if the doctrine be 
 founded upon the impropriety of admitting parol evidence to contradict a 
 written agreement, that rule is no more broken in upon by the admission 
 of it for the plaintiff, than it is by the admission of it for the defendant. 
 If the doctrine had been confined to cases arising under the statute of 
 frauds, if not more intelligible, it would, at least, have been less incon- 
 venient in practice. But it does not appear to have been thus restricted, 
 although the cases in which it has been principally relied on have been 
 of that description. It will often be quite as unconscientious for a defend- 
 ant to shelter himself under a defense of this sort, against a plaintiff seek- 
 ing the specific performance of a contract, and the correction of a mistake, 
 as it will to enforce a contract against a defendant, which embodies a 
 mistake to his prejudice.' 
 
 On a bill to redeem a mortgage, parol evidence is admissible to show 
 that a conveyance, absolute in terms, was intended as a mortgage. Oral 
 evidence is admitted or rejected in such cases, not by the mere force of 
 any statute, but upon the principle of equity jurisprudence.^ These 
 principles are, that equity will relieve in cases of fraud, accident or mis- 
 take — whether a deed intended as a security is made absolute in terms, 
 is generally the result of accident or mistake ; or of a fraudulent desigg 
 on the part of the party taking the security. Where the difference be- 
 tween the deed as expressed, and the deed as intended, may have arisen 
 from mistake, or ignorance, or accident, it becomes necessary to let in 
 parol proof to discover and carry into effect the real intention of the 
 parties in creating the security.* 
 
 In regard to mistakes made by arbitrators, it was said by Lord Cow- 
 per in one case, that if it appears that the arbitrators went upon a plain 
 mistake, either as to the law or the fact, and the error appears in the body 
 of the award, it is sufficient to set it aside.^ Lord Hardwicke approved of 
 this decision, but observed that if it had been a doubtful point of law, 
 the arbitrators' award might have stood.* But on a general reference 
 of all matters in dispute, though the arbitrator decides wrong, on a ques- 
 tion of law, equity will not interpose.'' And this doctrine was repeated 
 
 ' 1 Eq. Juris. § 161, and notes. caster v. Burkhart, 2 Bibb, 28. Blanohard 
 
 ^ Note to Story's Eq. Juris. § 161. v. Keaton, 4 Id. 451. 
 
 " Eussell V. Southard, 12 Hew! 139, 147. " Moses v. Mnrgatroyd, 1 J. Oh. E. 127. 
 
 Slee V. Manhattan Co., 1 Paige, 48. Mark v. Pell, id. 595. 
 
 Kandall v. Philips, 3 Mason, 378. Dicken- ° Corneforth v. Geer, 2 Vern. 705. 
 
 son v. Dickenson, 2 Murphy, 279. Lan- ' Eidout v. Paine, 8 Atk. 494. 
 
 Ohing v. Ohing, 6 Ves. 282. 
 
78 Mistake of Fact. [Ch. 1, 
 
 by Lord Eldon in a subsequent case.' This subject was brought in dis- 
 cussion before Chancellor Kent, in an early case,^ when a reference was 
 made by consent, to one merchant and two gentlemen of the bar, with 
 directions to state an account, and to decide on all questions in dispute 
 between the parties, " as well matters of law as of fact." In remarking 
 upon this the chancellor says, " After the parties have chosen to submit a 
 point of law to gentlemen of the profession, it may be doubted whether 
 the court ought to permit the discussion to be renewed here, without 
 showing a case of gross and palpable mistake." Courts of law are in- 
 clined to hold the decision of arbitrators conclusive upon the parties, and 
 not permit their award to be questioned by evidence tending to show 
 that it was erroneous.' 
 
 This subject is of less importance in this state since the code has pro- 
 vided for referring all the issues in a cause, whether of fact or law, to 
 referees, and has prescribed a convenient and eflScient mode of reviewing 
 the decision of the referees, both upon the facts and the law.^ 
 
 Where the legal rights of parties have been changed by mistake, equity 
 restores them to their former condition, where it can be done without in- 
 terfering with any new rights, acquired on the faith and strength of the 
 altered condition of the legal rights and without doing injustice to other 
 parties. Thus, where a mortgage to the plaintiff had been given by an 
 intestate, and after his death it was cancelled and a new mortgage taken 
 to the heir, on the same premises in its stead, the court set up the old 
 mortgage, and gave it priority as against the creditors at large of the 
 deceased, upon the ground that the first mortgage had been canceled 
 under a mistake of fact in regard to the existence of debts beyond the 
 amount of assets ; and that the creditors had not, in any way, been pre- 
 judiced by the cancellation.^ The same doctrine was recoganized in a 
 later case, the difference between them being, that in one the mistake 
 was inferred, and the other proved.^ Relief, in cases where instruments 
 in writing had been given up and cancelled by mistake, has repeatedly 
 been granted by the English court of chancery.' 
 
 In like manner, where a regular decree was obtained by default, equity 
 opens the same, even after enrollment, for. the purpose of enabling the 
 the defendant to defend on the merits, when he was deprived of such 
 
 ' Young V. Walter, 9 Veg. 364. <■ Hyde v. Tanner, 1 Barb. S. 0. E. 75. 
 
 " Roosevelt v. Thurman, 1 J. Oh. R. " Banner v. Cormaok, id. 892. 
 
 226- ' East India Co. v. Neave, 5 Ves. 173. 
 
 ' Robertson v. MoNiel, 12 Wend. 578. Same v. Donald, 9 id. 275. 
 * Code, § 270 et aeq. 
 
Ch. 1.] Mistake of Fact. 79 
 
 defense by accident or mistake. And it was held that such decree 
 might be opened, after a sale had been made by a master, under the 
 decree, the complainant himself having been the purchaser of the prem- 
 ises, and not having parted with his interest therein to a bona fide pur- 
 chaser or mortgagee. 1 
 
 Nor does it make any difference, in reforming the errors of written 
 instruments, occasioned by accident or mistake, that the instrument was 
 drawn by the party who seeks such relief If the true agreement and 
 the consequent mistake in the written instrument be established by the 
 evidence, can a court of equity, asks Sir John Leach, V. C, refuse relief, 
 because it appears that the party seeking relief, himself, drew the in- 
 strument, unless it be a principle in a court of equity not to relieve a 
 party against his own mistakes ? There is no such principle, the V. C. 
 answers, in a court of equity. Common mistake is the ordinary head of 
 jurisdiction ; and every party who comes to be relieved against an agree- 
 ment he has signed, by whomsoever drawn, comes to be relieved against 
 his own mistake.'' 
 
 Where an estate has been purchased at auction, under a mistake as 
 to the lot put up for sale, the court will not decree a specific execution of 
 the agreement, but leave the vendor to his remedy at law for damages; 
 if he has sustained any.^ 
 
 In cases where there are written memorandums made by the parties 
 preparatory to the final agreement, there is less danger in correcting 
 mistakes in the latter, than if the whole rested in parol. This does not 
 conflict with the general rule, that all antecedent memorandums and con- 
 versations are deemed to be merged in the final agreement. For if it 
 is shewn that the latter was made in pursuance of the former, and was 
 intended to carry out the same in a more formal way, and if jt is clearly 
 shewn that, by accident, mistake or fraud, it fails to do, so, the case falls 
 within the same exception already mentioned, which allows written con- 
 tracts and instruments to be reformed for accidents and mistakes, and 
 those accidents and mistakes to be proved by parol evidence. The gen- 
 eral rule, in such cases, is subordinate to the undisputed jurisdiction of 
 equity over accidents, mistakes and fraud.* In conformity to these views, 
 marriage settlements have fi:equently been reformed and made according 
 to the original articles or proposals, and deeds have been made to corres- 
 pond with executory contracts, where the discrepency was clearly the 
 result of mistake or fraud. The cases on this subject are extremely 
 
 ' Millspaugh v. MoBride, 7 Paige, 509. ' Malins v. Freeman, 2 Keen, 25. 
 
 " Ball V. Stone, 1 Sim. i& Stu. 210, 220. * Ball v. Storie, 1 Sim. &, Stu. 210, 220, 
 
80 Mistake of Pact. [Ch. 1. 
 
 numerous, and most of the early ones are collected in the notes to Fon- 
 blanque's Equity, and there are many recent decisions on the same 
 subject.' 
 
 It is sometimes made a question, how far equity will relieve in case of 
 mistake in wills. Lord Cowper decided more than a century ago, that the 
 canceling a former will by mistake, or on the presumption that a later 
 will is good, which proves void, will not let in the heir, but may be re- 
 lieved against in equity." In such case equity does not alter the will. 
 It merely relieves the party from the effect of the mistake, thus placing 
 him in the same condition as if the mistake had not happened. The 
 revised statutes have provided that no will in writing shall be revoked 
 or altered otherwise than by some other will in writing, or some other 
 writing of the testator declaring such revocation or alteration, and ex- 
 ecuted with the same formalities with which the will itself was required 
 by law to be executed. Subsequent sections provide in what cases mar- 
 riage and issue shall operate as a revocation.' No doubt the statute 
 intended to cut off all modes of revocation except those mention-ed in the 
 act. Under our statute it has been held, that a will cannot be corrected 
 because the testator misapprehended its effect ; and that, as a general 
 rule, parol evidence is inadmissible to supply omissions, or to control or 
 explain the intention, or vary the legal construction.* Such errors are 
 mistakes of law only. 
 
 This principle does not prevent equity from correcting mistakes as to 
 the person named as legatee in a will. If the context affords suflScient 
 evidence of the identity of the person intended as legatee, the will 
 alone must be looked to in order to clear up the difficulty and determine 
 the question. If, after examining the whole will, it is still impossible to 
 ascertain from such a source alone who is the proper person to take, then 
 recourse must be had to parol evidence. In no case, however, is the 
 bequest to be decreed void for uncertainty as to the person, provided the 
 person intended to take can be identified by any competent evidence. If 
 a legacy is given to a person by a correct name, but with a wrong de- 
 scription or addition, the latter will not vitiate the bequest, but will be 
 rejected. Thus, where a legacy was left to Mary S., wife of Nathaniel 
 
 ' Fonbl. Equity, B. 1, oh. 3, § 1, and v. Israel, 9 id. 566. Rogers v. Atkinson, 
 notes. The Marquis of Exeter v. The 1 Kelly's E. 12. Newson v. Bufferlow, 
 Marchioneas of Exeter, 3 Mylne & Oraig, 1 Dev. Eq. 379. 
 321. The Marquis of Breadaihane v. The " Onions v. Tyler, 1' P. Wms. 845. 
 Marquis of Ohardos, 2 id. 711. Pearce ' 2 R. S. 64, §42 et seq. 
 v. Verbeke, 2 Beavan, 838. Brown and * Arthur v. Arthur, 10 Barb. 9. Gil- 
 wife V. Bonnes et al. 8 Leigh, 1. Long bert v. Gilbert, 9 id. 532. 
 
Ch. 1.] ^ Mistake of Fact. 81 
 
 S., $300 — Mary S.'s husband was named Abraham, and Sarah S.'s hus- 
 band was named Nathaniel S. Upon extrinsic evidence and circum- 
 stances, it was held that Mary Smith was intended.' Here, it is obvious, 
 no mistake in the will is corrected. An ambiguity, created by external 
 evidence, is removed in the same way. 
 
 So where the name of the legatee was entirely mistaken by the testa- 
 tor, as Cornelia Thompson for Caroline Thomas, the bequest was held 
 good ; and the intention of the testator and the misnomer being satis- 
 factorily shewn, the legacy was ordered to be paid to the person in- 
 tended.2 
 
 In an early case, more than a century ago, a mistake in both the chris- 
 tian and surname of the legatee was disregarded, and the money ordered to 
 be paid to the person intended ;^ and the same doctrine was repeated at 
 a later period.' 
 
 Chancellor Walworth, where a testator made a bequest to a person by 
 a wrong christian name, admitted parol evidence to shew what person 
 was intended. He said the cases are very contradictory on the subject 
 of admitting parol evidence to correct mistakes in testamentary disposi- 
 tions. If a legacy was given by a testator to his brother John, and it 
 turned out in evidence that he had but one brother, whose name was 
 James, there could be no doubt that the latter would be entitled, because 
 the description of brother in that case would alone be sufiBcient, and the 
 name might be rejected as surplusa^e.^ 
 
 In the foregoing cases the bequest was of a personal thing. Lord 
 Macclesfield, in Branmont v. Fell, (supra,) in speaking of the case before 
 him, which was where there was a mistake of both the christian and sur- 
 name of the legatee, says, if this had been a grant, nay, had it been a 
 devise of land, it had been void, by reason of the mistake both of the 
 christian and surname. But this being a bequest of a personal thing, a 
 chattel interest, makes it a different case, and, as originally, a bequest of 
 a legacy was governed by, and construed according to, the rules of the 
 civil canon law, so shall it be after making the statute of frauds, provided 
 there be a will in writing.^ 
 
 Where a testator having two sons named John, evidence dehors the 
 will may be given to shew which son was meant.. But if no direct evi- 
 dence can be given to shew the intent, the will is void for the uncertainty." 
 
 ' Smith V. Smith, 1 Edw. Oh. R. 189. * Bradwin v. Harpnr, Amb, 374. 
 
 S. 0. on appeal, 4 Paige, 271. ' Connolly v. Pardon, 1 Paige, 291. 
 
 " Thomas v. Stevens, 4 J. Oh. E. 607. " Branmont v. Fell, 2 P. Wms. 142. 
 
 ' Beaumont v. Pell, 2 Atk. 140. ' Lord Cheney's case, 6 Co. 68. 
 Eq. Jue. 11 
 
82 Mistake of Law. [Oh. 1. 
 
 Lord Hardwicte in one case said, parol evidence was admissible to shew 
 ■vrlio was intended wbere a legacy is given to one by a nickname, but he 
 would not allow such evidence of the intention of the tes^tator, where 
 there is only a blank.' 
 
 No reason is perceived why a plain and palpable mistake in a will may 
 not be corrected in equity, as well as a similar mistake in a deed. The 
 object of the correction in both cases is the same, to make the instrument 
 what the party intended,, when that intention was defeated, by a mistake 
 of fact. 
 
 A testator by his will gave legacies of five hundred pounds ,to two 
 grandchildern of his sister, describing them by name, and their residence 
 in America ; and afterwards by a codicil he revoked these legacies, giving 
 as a reason that the legatees were dead. The testator was mistaken in 
 the fact of the death of the legatees, as both were living at the time of 
 his death. Lord Loughborough, held that there was no revocation, the 
 reason for it being false, whether by misinformation or mistake, is per- 
 fectly indifferent, and he directed the legacies to be paid on proof of iden- 
 tity of the legatees.^ 
 
 So where the residue of three per cent annuities were given to the 
 two daughters of A., and A. had three daughters ; they all, on the ground 
 of mistake, were decreed to take equal shares." 
 
 Parol evidence is not admissible to contradict a will.^ The mistakes 
 in wills which equity will correct, must be such as appear on the face 
 of the mill, otherwise no relief can be granted. Evidence of matter 
 dehors the will to shew the mistake, is not sufficient.' Whenever there 
 is a clear ndstake, or a clear omission, recourse must be had to the gen- 
 eral scope of the will, and the general intention to be collected from it.* 
 In one of these cases the court substituted twenty thousand pounds for 
 thirty thousand pounds, the court being clearly of the opinion that the 
 former, and not the latter, was the sum intended by the testator to be 
 given. And the principle of these cases was recognized by the supreme 
 court in a recent ease.' 
 
 Where a testator in the former part of his will gives a certain horse 
 to A., and in a subsquent part of the will gives the same horse to B., the 
 better opinion is, that the latter legacy is a revocation of the former, con- 
 
 ' Baylis v. Churoli, 2 Atk. 289. See ' Id. 
 
 Martin v. Ballon, 18 Barb. 119. « Melish v, Melish, 4 Ves. 47. Philipa 
 
 " Campbell v. Frink, 8 Ves. jr. 320. v. Obamberlain, id. 50. 
 
 » Stebbins v. Walkly, 2 Bro. 0. 0. 85. ' Martin v. Ballon, 18 Barb. 119, 122. 
 
 " Uhich V. Litchfield, 2 Atk. 372, and 
 notes. 
 
Ch. 1.] Mistake op Law. 83 
 
 trary to the opinion of Swinburne, wlio thought the horse must be divided 
 between the two legatees.' 
 
 Equity sometimes relieves in ease of a defective execution of a power, 
 on the ground of accident or mistake, but not in ease of a non-execution of 
 a power, as distinguishable from a trust. Relief is granted in such ease, 
 in favor of creditors, purchasers for valuable consideration, a wife, or chil- 
 dren. The master of the rolls said, in an early case, that there was a 
 difference betwixt a non-execution and a defective execution of a power. 
 The latter will always be aided in equity, under the circumstances men- 
 tioned, which were the^rovisions for a wife who had none before, it being 
 the duty of every man to pay his debts, and a husband or father to pro- 
 vide for his wife, or child. But this court will not help the non-execution 
 of a power, since it is against the nature of a power, which is left to the 
 free will and election of the party whether to execute or not, for which 
 reason equity will not say he shall execute it, or do that for him which 
 be does not think fit to do himself.^ 
 
 Sir William Grant and Lord Erskine both expressed dissatisfaction 
 with this distinction, as not quite consistent with the principles of equity, 
 though they admitted that it was fully established by authority.' And 
 Lord Erskine observed, that the authorities are most important, and follow 
 in a series from the year 1668 to the end of Lord Hardwicke's time ; 
 from which it appears, that the distinction between the non-execution and 
 the defective execution of a power has been constantly taken. In a still 
 later ease the master of the rolls said, that equity would, in favor of per- 
 sons standing in a situation entitling them to its protection, supply a 
 defect in the execution of a power which consists in the want of some 
 circumstance required in the manner of the execution, as the want of a 
 seal or of a suflBcient numberof witnesses, or where it has been exercised 
 by a deed instead of a *ill.'' It will not, however, correct-an error in an 
 instrument, as has been before shewn, occasioned by the ignorance of the 
 parties in matter of law.= The distinction seems to be founded in reason 
 and good sense. Equity could not compel the execution of a power, where 
 there is no trust, without depriving the party of all discretion. On the 
 other hand, when the party undertakes to execute, and, by accident or 
 mistake, fails to accomplish his purpose, equity interposes to carry the 
 
 'Ulrioh V. Litchfield, 2 Atk. 375. = Holmes v. Ooghill, 7 Ves. 606 ; S. 0. 
 
 Sims V. Doughty, 5 Ves. 243. Purse v. on appeal, 12 Ves. 212. 
 
 Snaplin, 1 Atk. 416. ' Cockerell v. Oholmeley, 1 Eus. & My. 
 
 = Toilet v. Toilet, 2 P. Wms. 490. 1 418. 
 
 Fonb, Eq. book 1, ch. 1, § 7, and notes. ' Id. 
 
84 Mistake of Law. ' [Ch. 1; 
 
 intention into effect in favor of those who are peculiarly entitled to its 
 protection, creditors, purchasers, wives and children. And the master of 
 the rolls in one case said, that the court has never gone beyond supplying a 
 defective execution of a power in favor of that class of persons.' And 
 in that case he refused it in favor of the husband. 
 
 The revised statutes of New- York have abolished powers as they ex- 
 isted in 1830, and have enacted that the creation, construction and execu- 
 tion of powers shall be governed by the provisions of the act.= The 
 general subject of powers does not belong to this treatise. At present we 
 are considering only the cases where courts will relieve against mistakes 
 in the execution of powers. On this subject it is provided, that when 
 the grantor shall have directed any formalities to be observed in the ex- 
 ecution of the powers in addition to those which would be sufficient by 
 law to pass the estate, the observance of such additional formalities shall 
 not be necessary to a valid execution of the power. Where the condi- 
 tions annexed to a power are merely nominal, and evince no intention of 
 actual benefit to the party to whom, or in whose favor, they are to be 
 performed, they may be wholly disregarded, in the execution of the power. 
 With these exceptions, the intention of the grantor of the power, as to 
 the mode, time, and conditions of its execution shaU be observed, subject 
 to the power of the court to supply a defective execution in the cases 
 thereafter provided.' 
 
 The statute provides, that every trust power, unless its execution or 
 non-execution is made expressly to depend on the will of the grantee, is 
 imperative, and imposes a duty on the grantee, the performance of which 
 may be compelled in equity, for the benefit of the parties interested.^ And 
 it further provides, that where the execution of a power in trust shall be 
 defective, in whole or in part, its proper execution may be decreed, in 
 equity, in favor of the persons designated as the objects of the trust. 
 Purchasers for valuable consideration, claiming under a defective execution 
 of any power, shall be entitled to the same relief in equity, as similar 
 purchasers, claiming under a defective conveyance from an actual owner.* 
 
 ' Mooder v. Eeid, 1 Mad. E. 516,, 631. M E. S. 784, § 96. 
 
 "IRS. T32. ' 1 E. S. 737, §§ 131, 132. 
 
 •IE. S. 736, §§119, 120, 191. 
 
CHAPTER II, 
 
 OF ACCOUNT. 
 
 THE action of accoimt is one of the most ancient of the common law 
 actions. Originally it could be maintained only against a bailifi", 
 receiver or guardian, or in favor of trade, between merchants, yet it could 
 not be maintained by, or against, their representatives.' By various 
 statutes it was given first to the executors of merchants, then extended 
 to the executors of executors, and afterwards to administrators ; and 
 finally, by the 3 and 4 Ann. ch. 16, it was allowed to be brought against 
 executors and administrators of every guardian, bailiff and receiver, and 
 by one joint tenant, tenant in common, his executors and administrators, 
 against the other as bailiff for receiving more than his share, and against 
 their executors and administrators.^ 
 
 The New- York statute of 6th February, 1788, incorporated the provis- 
 ions of the English statutes, and pointed out, very blindly, the mode of 
 proceeding in the action.' The process to compel an appearance was by 
 summons, attachment and outlawry ; and on the defendant's appearing 
 and submitting, he was adjudged to account, whereupon auditors were 
 appointed to take the accounts. He was liable to be committed to jail 
 for refusal to account, and for neglecting to pay what was found due. 
 The auditors were empowered to examine the parties upon oath. 
 
 Though an action of account could not, at common law, have been main- 
 tained against the representatives of bailiffs, receivers, or guardians, yet 
 a bill in equity for an account might be sustained ; and such appears to 
 have been the usual remedy prior to the remedial statutes.^ 
 
 Chancellor Kent in one case before him observed, that courts of law 
 and equity have concurrfent jurisdiction in matters of account. " In that 
 action," he observes, " the auditors have all the requisite powers, for they 
 can compel the parties to account, and to be examined under^ oath. And 
 
 ' Co. Litt. 90, b. '2 Greenl. 4. 1 E. L. of 1813, p. 90. 
 
 " Fonb. Eq. book 2, oh. 7, § 6, note H". * Fonb. Eq. book 2„oli. 7, § 6, note. 
 
 (85) 
 
86 ' Of Account. [Ch. 2. 
 
 I have not," said he, " been able to discern any good reason, why that 
 action has so totally fallen into disuse."^ At the time the learned chancel- 
 lor made the remark, there was not a trace in the reported decisions of our 
 courts, that an action of account had ever been brought in the state, 
 though it is believed that it had been attempted in a few instances, with 
 what success, we are left to conjecture. 
 
 At the revision of the laws in 1830, an attempt was made to bring 
 this action into repute. It was enacted that when any action of account 
 shall be brought by one or more partners, or by any joint tenant or tenant 
 in common, or against any guardian, bailiff, receiver, or otherwise, and 
 judgment be rendered that the parties account, or that the defendant 
 account to the plaintiff the cause shall be referred to referees, in the same 
 manner, and subject to the same provisions, as are prescribed in cases of a 
 long account. The referees are then required to proceed as in other 
 cases of references, and they are empowered to examine the parties upon 
 oath, and to require the production of books of account, papers and docu- 
 ments, in the custody or under the control of either party .^ Subsequent 
 sections prescribe the proceedings before the referees, and the judgment 
 to be given. While at common law, the parties could plead after the 
 judgment quod computet, that practice seems to have been superseded 
 by the revised statutes, and it was intended that the action should pro- 
 ceed like other actions, which are referred to referees.^ 
 
 The substitution by the revised statutes of referees for auditors, and the 
 ordinary proceedings on a reference for the ancient pleadings subsequent 
 to the judgment quod computet, at common law, does not seem to have 
 introduced the action to much favor. The first appearance of the action, 
 after the change, was in 1838, when the only point decided was, that the 
 defendant was not entitled to notice of hearing, before the referees, when 
 he had not appeared in the action either in person or by attorney.^ About 
 fcur years afterwards another action was brought, and decided in favor of 
 the defendant on special demurrer to the declaration.' The defects in the 
 declaration were that it was too general, one count charging the defend- 
 ant as receiver, without stating by whose hands the money was received, 
 and another charging him as bailiff, without specifying the kind or. quahty 
 of goods, or alleging that the defendant had received more than his share. 
 It does not appear by the report that the court gave the plaintiff leave 
 to account. They treated the action with evident disfavor. They said 
 
 ' Duncan v. Lyon, 3 John. Oh. R. 861. * Jacobs v. Fountain, 19 Wend. 121. 
 ' 2 E. 8. 385, §§ 49, 50. ' MoMurray v. Eawson, 8 Hill, 59. 
 
 * Kelly V. Kelly, 3 Barb. S. 0. R. 419. 
 
Oh. 2.] Of Account. 8T 
 
 that the revised statutes did not dispense with any of the old forms of 
 proceeding previous to the judgment quod computet. And Bronson, J., 
 said, " All the books agree, that this is one of the most difficult, dilatory 
 and expensive actions that ever existed, and it has long since given place 
 to other remedies. In this state, it does not appear that more than one 
 action of account was ever brought, before Jacobs v. Fountain, (19 Wend. 
 121,) and the present experiment will probably be the last. In England, 
 the action seems not to have been brought more than a dozen times within 
 the last two centuries, and, in most of the cases, the difficulty has been 
 about the form of the remedy, rather than the rights of the parties. One 
 of the last cases which I have noticed in the English books, was brought 
 in 1768 and en,ded in 1770." But it is worthy of remark, that the account 
 was never taken. The case was decided on a demurrer to a plea before 
 the auditors. Ch. J. Wilmot said he was glad to see the action of account 
 revived ; but at the same time told the counsel, ' the court was in some 
 doubt how the judgment must be entered, and about the damages ;' and 
 he recommended expedition, as the plaintiff was very old, and the cause 
 had been depending [in chancery and at law) fourteen years, and 
 it was high time it should be ended. The counsel took until the next 
 term to find out what judgment should be entered, and whether they were 
 right at the last, does not appear." After alluding to three subsequent 
 cases in England, where the action was brought,* he proceeds : '■' In some 
 of the states the action is in use in a modified form, to supply the defect 
 in their system from the want of a court of equity. In this state there 
 is no such reason for attempting to revive and remould a remedy, which 
 was always difficult, and has now become obsolete ; and if parties choose 
 to bring account, they must take the action as it was left by the ancients, 
 subject only to such alterations as have been made by the legislature." 
 
 An action of account was again brought in this state, as late as 1848, 
 and was sustained.' The learned judge who gave the opinion of the su- 
 preme court said, that since the revised statutes, there has been no more 
 difficulty in prosecuting an action of account after a judgment of quod 
 computet, than in prosecuting an action of assumpsit involving the ex- 
 amination of a long account. , The court held the action sustainable under 
 the statute, between partners in any business, and that the action was 
 not limited to mercantile copartnerships. In that case, too, the sum re- 
 ' covered was less than one hundred dollars, though the sum claimed was 
 
 ' Godfrey v. Saunders, 8 "WCs. 73. ard, 3 Dowl. & Eyl. 596 ; and Baxter v. 
 
 " The cases referred to are, Smith v. Hozier, 5 Bing. N". S. 288. 
 Smith, 1 Ohitty's K. 10 ; Archer v. Prioh- » KeUy v. Kelly, 8 Barb. S. 0. E. 419. 
 
88 Op Account. [CL 2. 
 
 much more than that sum. Hence it was not a case, as the law then 
 stood, in which the plaintifF, had he filed a bill in chancery, could have 
 recovered costs ; but he would, on the contrary, have been subjected to 
 costs of the other party in the discretion of the court.' 
 
 The abolition of the distinction between actions at law and suits in 
 equity, and the forms of all such actions and suits heretofore existing ; 
 and the substitution therefor of one form of action for the enforcement 
 or protection of private rights and the redress of private wrongs, to be 
 denominated a civil action, have superseded the scholastic refinements 
 and cumbrous proceedings in the action of account at common law.^ But 
 as equity still exists as a distinct branch of our remedial system of jus- 
 tice, and as the relief usually prayed in a bill for an account is of an 
 equitable, rather than of a legal nature, the treating of the subjects, 
 formerly relievable by action of account, or by a bill in chancery for an 
 account, falls appropriately, now, as well as formerly, under the head of 
 equity jurisprudence. 
 
 Two of the grounds on which equity formerly obtained jurisdiction in 
 the common law action of account, were the existence of the right of the 
 defendant, in some cases, to wage his law in common law courts, which 
 he did not possess in equity, and the power which the latter court had of 
 enforcing a discovery, which the former had not. Neither of these 
 grounds now exist in this state. The wager of law has long since been 
 abolished,^ and other modes of examination of parties have taken the place 
 of a discovery in equity,* though the latter has not been abolished, except 
 in aid of the prosecution or defense of another action. Still the jurisdic- 
 tion of equity having once been obtained, would not be lost by such 
 changes of the law. Blackstone says, " that courts of equity, as incident 
 to accounts, take a concurrent cognizance of the administration of personal 
 assets ; consequently of debts, legacies, the distribution of the residue, 
 and the conduct of executors and administrators. As incident to account, 
 they also take the concurrent jurisdiction of titles, and all questions re- 
 lating thereto ; and of all dealings in partnerships, and many other mer- 
 cantile transactions ; and so of bailiffs, receivers, factors and agents. It 
 would be endless to point out all the several avenues in human affairs, 
 and in this commercial age, which lead to or end in accounts."' 
 
 In many of the foregoing cases courts of law could conveniently exer- 
 cise jurisdiction, under the action of assumpsit, covenant or debt, and 
 
 ' 2 E. S. 173, § 37. Smits v. ■Williams, = 1 Greenl. L. K. T. 295. 
 4 Paige, 864 ' Code of Procedure, § 389 et seq. 
 
 " Code of Procedure, §§ 69, 140. " 3 Black, Com. 437. 
 
CL 2.] Of Account. 89 
 
 under the code, by an ordinary civil action, -without invoking equitable 
 relief. The salutary provision of the code, for referring all or any of the 
 issues in a cause by consent to one or more referees ; and without such 
 consent, to direct a reference, when the trial of an issue of fact shall re- 
 quire the examination of a long account on either side ; or when the tak- 
 ing of an account shall be necessarif for the information of the court, 
 before judgment, or for carrying a judgment or order into effect, has 
 superseded most of the difficulties which formerly existed in the action at 
 law.^ The power given to the referees ; the mode of procedure before 
 them ; their report upon the whole issue ; and the method prescribed for 
 reviewing their decision, are eminently calculated to subserve the purposes 
 of justice.' The practice in this respect is the same, whether the matter 
 referred be of legal or equitable cognizance. 
 
 It will be found more convenient, in the discussion of the doctrine of 
 account, to restrict our inquiries to a few only of the subjects which 
 often terminate in account, or which are incidental to the action. We 
 shall treat the subject of legacies, marshaling of assets, and various other 
 matters which often lead to account, under other heads.' 
 
 At common law, an action of account lay only in cases where there was 
 either a privity of deed by the consent of the party^ as against a bailiff 
 or receiver, or a privity in law, ex provisione legis, as against a guardian 
 in socage.* In an account against a receiver, who receiveth money to 
 the use of another, to render an account, he shall not, says Coke, upon 
 his account, be allowed his expenses and charges ; and, therefore, a man 
 could not charge a bailiff as a receiver, because then the bailiff should 
 loose his expenses and charges. In an account against a receiver, the 
 plaintiff must declare by whose hands the defendant received the money, 
 which he shall not do in the case of a bailiff. But in some cases in an 
 action of account against one, as receptor denariorum, he shall have al- 
 lowance of his expenses and charges, and shall also account for the profit 
 he received, or might reasonably receive ; and this was provided by law 
 in favor of merchants, and for the advancement of trade and traffic. As 
 if two joint merchants occupy their stock, goods and merchandises in 
 common, to th«ir common profit, one of them, naming himself merchant, 
 shall have an account against the other, naming him a merchant, and shall 
 charge him as receptor denariorum, &c.' 
 
 1 Code of Procedure § 270 et seq. * Fonb..Eq. book 2, ch. 7, § 6. Co. Litt. 
 
 ' Code, § 272 172, a. 
 
 ' See post, Chapter oa Teusts. ' Co. Litt. 172, a. 
 
 Eq. Jttb. 12 
 
90 Of Account. [Ch. 2. 
 
 Some of the grounds on -vvhicli equity originally acquired jurisdiction 
 in the action of account have been hinted at, but the more general 
 ground is believed to be, not that the party was without remedy at law, 
 but that the remedy in equity was more adequate and complete, and that 
 it prevented a multiplicity of suits. Lord Hardwieke expressed himself 
 in f^rVor of the jurisdiction, in a case before him, because it was a matter 
 of contract and account, and consequently a proper subject for the juris- 
 diction of a court of equity.' 
 
 The preventing of a multiplicity of suits has been often held a good 
 ground for equity to interfere ; and having thus rightfully acquired jurisdic- 
 tion for one purpose, the practice was to retain it for the purpose of full 
 and general relief* Cases of mutual accounts, founded on privity of 
 interest, are undisputed grounds of equity jurisdiction.' 
 
 In Bacon's Abridgment, after speaking of the difiBcult, dilatory and ex- 
 pensive proceedings in the action of account at common law, the author: 
 says : " It is now seldom used, especially if the party have other remedy, 
 as debt, covenant, case ; or if the demand be of consequence, and the 
 matter of an intricate nature ; for in such case it is more advisable to re- 
 sort to a court of equity, where matters of account are more conmiodi- 
 ously adjusted, and determined more advantageously for both parties ; the 
 plaintiff, being entitled to a discovery of books, papers and the defend- 
 ant's oath ; and, on the other hand, the defendant being allowed to dis- 
 count the sums paid and expended by him ; to discharge himself of 
 sums under forty shillings by his own oath, (provided he swears positive- 
 ly, and not as to belief only ;) and if by answer or other writing he charges 
 himself by the same to discharge himself,, which will be good, if there be 
 no other evidence : farther, all reasonable allowances are made to him ; 
 a,nd, if after the account is stated, any thing be due to him upon the bal- 
 ance, he is entitled to a decree in his favor." 
 
 Courts of equity have entertained jurisdiction in account, not only 
 when the accounts were nvutual accounts, founded on privity of con- 
 tract, but also when the accounts were on one side only, and a discovery 
 was sought, in aid of the account, and obta,ined.= On the principle of 
 discovery it has been entertained in case of agency, by the principal 
 
 • Billon V. Hyde, 1 Atk. 128. ley v. Cramer, 4 Oowen, 717. Porter v. 
 
 ' Oonro V. Port Henry Iron Co., 12 Spencer, 2 J. Oh. R. 171. 
 
 Barb. 27. Armstrong v. Gilchrist, 2 John. < Bacon's Abr. title Accompt. 
 
 Oas. 424. King V. Baldwin, 17 J. E. 388. » Post v. Kimberly, 9 J. E. 470. Lud- 
 
 Eathbun v. Warren, 10 id. 587. 1 Mad. low v. Simons, 2 Oai. Oa. ih Error, 38, 
 
 Oh. Pr. 71. 39. Barker v. Dacie, 6 Ves. 687. Eath- 
 
 8 Post V. Kimberly, 9 J. E. 470, Haw- bun v. Warren, 10 J. E. 587, 595. 
 
Ch. 2.] Op Account. 91 
 
 against Ms agent.' But where there is no mutuality of dealings, or but 
 one item on one side, and no discovery is required, equity has no jurisdic- 
 tion.* In one case, where a defendant, sued at law, and held to bail, was 
 about to leave the state, with his bail, and leaving no' property behind, 
 the chancellor granted a ne exeat, and entertained jurisdiction upon the 
 head of account. The chancellor remarked upon the general rule, 
 saying, that to sustain a bill for an account, there must be mutual de- 
 mands, and not merely payments by way of set-off. A single matter 
 cannot be the subject of account. There must be a series of transactions 
 on one side and of payments on the other. But he placed his interference 
 in that case, upon the necessity of the case. From the facts charged and 
 sworn to, " it appears to me," said the chancellor, " that the remedy in the 
 suit pending at law would be absolutely defeated without the interposition 
 of the court of chancery. The remedy sought is indispensable to pi-event 
 a failure of justice, and this makes a marked difference between this and 
 ordinary cases. I should think that it would reflect discredit on the ad- 
 ministration of justice, if the plaintiff could find no relief from the im- 
 pending mischief, arising from the failure of the remedy at law, by the 
 immediate removal of the defendant and his bail."' 
 
 Where there have been various dealings between landlord and tenant, 
 so as to produce an account too complicated to be taken at law, and the 
 landlord brings an ejectment for non-payment of rent, the tenant may file 
 a bill before judgment at law, for ah account, on the footing of these deal- 
 ings, and to have the balance applied to the rent claimed to be due, and 
 the tenant need not bring in the rent under the statute.* 
 
 Lord Cowper decreed an account in the case oi copper mines, for ore dug 
 and for timber cut, as being a species of trade? And Lord Hardwicke 
 said, that an account might be taken of a colliery, on the like ground.* 
 
 In cases where the accounts are -complicated, and where the final set- 
 tlement requires the accounts of more estates than one to be taken. Chan- 
 cellor Walworth thought that the surrogate's court had no jurisdiction; 
 and that such accounts could only be adjusted in a court of equity.' Com- 
 plex and intricate accounts are, says Ch. J. Marshall, unfit subjects 
 for an examination in court, and ought always to be referred to a commis- 
 sioner, to be examined by him and reported, in order to a final decree.' 
 
 ' Mackenzie v. Johnson, 4 Mad. E. 374. " Bishop of Winoheater v. Kinight, 1 
 
 "Onmming v. White, 4 Blackf. 356; P.Wms. 407. 
 
 S. P., 10 Terger, 179. ' Stor7 v. Lord "Windsor, 2 At^. 630. 
 
 8 Porter V. Spencer, 2 J. Oh. E. 169, 171. ' Foster v. Wil|iams, 1 Paige, 542. 
 
 < 1 Mad. Oh. Pr. 71. O'Conner v. , « Dubourg v. United States, 7 Peters, 
 
 Spaight, 1 Sch. & Lef. 305 et seq. Oor- 625. 
 poration of Carlisle v. Wilson, 13 Ves. 276. 
 
92 Op Account. [Oh. 2. 
 
 On the whole, it may be laid down as the general rule, deducible from 
 what has been said, that equity entertains a general jurisdiction in mat- 
 ters of account, growing- out of privity of contract, where there are mu- 
 tual accounts ; where the accounts are complicated and intricate ; where 
 the accounts are all on one side, and a discovery, or a writ of ne exeat, is 
 prayed and granted ; where the taking of an account of several estates is 
 necessary ; where multiplicity of suits renders the trial difficult, expen- 
 sive and unsatisfactory at law. As a necessary consequence, where the 
 accounts are all on one side, and no other relief is sought than to recover 
 the amount, the remedy at law is adequate, and there is no ground for 
 the interposition of equity. 
 
 In matters of account, it often becomes a material inquiry, where par- 
 tial payments have been made, and there are several debts due by one 
 party to the other, who is entitled to make the appropriation ; and fww, 
 in case the parties omit to declare, at the time, their intention, the law 
 will apply the payments. 
 
 It seems to be settled, that where money is paid by, or received for, 
 a debtor, liable to the same creditor for distinct debts, by the creditor, 
 the debtor may appropriate it to the payment of whatever debt he 
 pleases. If the debtor omit to appropriate it, the creditor may apply 
 it to the satisfaction of whichever demand he pleases. If neither party 
 makes the appropriation, the court will appropriate it according to the 
 equity of the case. This right of appropriation exists only between the 
 original parties.' 
 
 Where a creditor has two demands against his debtor, and the 
 debtor pays a sum of money, without directing to which it shall be ap- 
 plied, if the amount paid exceed one of the demands, and is exactly, 
 equal to what remains due on the other, it will be considered as having 
 been paid in discharge of that other. This was put by the court upon the 
 ground of a presumed intention of both the parties.' 
 
 This subject was fully discussed in the court of errors, in one case, 
 and the unanimous opinion of the court was pronounced by Oh. J. 
 Savage.' The case came up on appeal from the court of chancery, and, 
 upon this branch of the case, the chief justice said : " There is no doubt 
 but a person indebted to the same creditor on different accounts, or de- 
 
 ' Gordon v. Hobart, 2 Story's Eep. ' Roberts v. Garnie, 8 Gaines, 14. 
 248. Bossanquet v. Wray, 6 Taunt. 597. » Baker v. Stackpole, 9 Cowen, 485. 
 Brookev.Enderby,2Br.&Bing.70. Mann 
 y. March, 2 Games' Bep. 99. 
 
CL 2.] Appropriation of Payments. 93 
 
 mands, making payment, may apply the payment to any demand he 
 pleases ; and if the debtor fails to make the application, or rather appro- 
 priation, the creditor may make such appropriation as he pleases. But if 
 no appropriation is made by either, but the money is paid and received 
 generally, on account, how does the law make the appropriation ? In 
 Godard v. Cox, (2 Str. 1194,) it was decided, that in such case the 
 creditor has the right of applying, where there is no dispute about 
 liability ; but if the debtor is liable in one demand personally, and in 
 another as executor, which depended on the question of assets, then the 
 creditor cannot make the application to such demand. The case of 
 Devaynes v. Noble, Clayton's case, (1 Merriv. 584 to 610,) gave rise to 
 much discussion as to the rules governing the application of indefinite 
 payments. Sir William Grant, master of the rolls, examined the sub- 
 ject at much length. He considered the rule of the civil law to be, 
 thai the election, whether by debtor or creditor, should be made 
 at the time of •payment ; and if neither applied the payment when 
 made, then the law made the payment on certain rules of presumption ; 
 and in applying presumption, the presumable intention of the debtor was 
 first considered." This was upon the ground that the debtor had the first 
 right to direct the appropriation. Accordingly, the application would be 
 made to the most onerous debt, as for example, to one drawing interest, 
 rather than, to one without interest. " But it seems, by the common law, 
 that when A. has a demand against B. and C. and a more recent de- 
 mand against B. alone, who makes an indefinite payment, the law will 
 appropriate the payment, first to the individaul debt, and the residue, if 
 any, to the joint debt ; though, if both debts w'ere against B. alone, 
 it might appropriate the payment to the oldest debt first. But in such 
 case the creditor cannot wait till B. becomes further indebted, and then 
 appropriate the payment to the future debt, leaving the previous one 
 unpaid. In no case can a creditor, who receives payment generally, ap- 
 propriate it to a debt created after the payment, leaving a prior demand 
 unpaid.'" 
 
 The subject of appropriation has often been discussed in .the courts of 
 the United States, where sureties of a public officer become liable at differ- 
 ent periods, and the general doctrine was stated in one case, that the 
 debtor has a right, if he pleases, to make the appropriation of payments ; 
 if he omits it, the creditor may make it ; if both omit it, the law will apply 
 the payments, according to its own notions of justice. It is certainly 
 
 ' Baker v. Staokpole, 9 Oowen, 436. Peters v. Anderson, 5 Taunt. 596. New- 
 march v.^Olay, 14 East, 239. 
 
94 Op Account. [Oh. 2. 
 
 too late for either party to 'claim a right to make an appropriation, after 
 the controversy has arisen, and a fortiori, at the time of trial. In cases 
 where long and running accounts, where debits and credits are constantly 
 occurring, and no balances are otherwise adjusted than for the mere pur- 
 pose of making rests, the court held that payments ought to be applied 
 to extinguish the debts according to the priority, so that the credits are 
 to be deemed payments pro tanto, of the debts antecedently due.' 
 
 With respect to the time when the appropriation can be made by the 
 parties, although the decisions are somewhat conflicting, it would seem that 
 the weight of common law authority is in favor of the civil law rule-; that the 
 appropriation by the debtor should be made at the time the payment is 
 made, and if he omits to do "so, the creditor should make it either then, or 
 within a convenient time after, and while it is indifferent to the debtor on 
 which account it is made.'' This seems to be the fair deduction from the 
 opinion of Cowen, J., in Pattison v. Hull, where he has extensively re- 
 viewed the common law cases, and compared them with the civil law. 
 
 ' TJ. States V. Kirkpatrick, 9 Wheaton, 765-773. Moss v. Adams, 4 Iredell's Eq. 
 720, 737. 42. Ayres v. Hawkins, 19 Vt. 26. Milli- 
 
 ^ Pattison v. Hull, 9 Cowen, 747, kin v. Tufts, 31 Maine K. 497. 
 
 [It may not be out of place here to recur to the civil law rule, on the subject of 
 imputation of payments, as the term appropriation of payments, is expressed in that 
 system. The text of the civil law on this subject is thus translated by Strahan from 
 the French of Domat, Civil Law.(a) 
 
 "1. If a debtor who owes to a creditor different debts, hath a mind to pay one of 
 them, he is at liberty to acquit whichever of them he pleases, and the creditor cannot 
 refuse to receive payment of it. Foi- there is Hot any one of them which the debtor 
 may not acquit, although he pa^ nothing of all the other debts ; provided he acquit 
 entirely the debt which he offers to pay." This is precisely the common law, as 
 the oases already cited establish. 
 
 " 2. If, in the same case of a debtor who owes several debts to one and the same 
 creditor, the said debtor, makes a payment to him, without declaring at the same 
 time which of the debts he has a mind to discharge ; whether it be that he gives 
 him a sum of money indifferently in part payment of what he owes him, or that 
 there be a compensation of debts agreed on between the creditor and debtor, or in 
 some other manner ; the debtor Will have always the same liberty of applying the 
 payment to whichever of the debts he has a mind to acquit. But if the creditor 
 were to apply the payment, he could apply it only to that debt which he himself 
 would discharge in the first place, in case he were the debtor. For equity requires 
 that he should act in the affair of his debtor as he would do in his own. And if for 
 example, in the case of two debts, one of them were controverted and the other clear, 
 the creditor could not apply the payment to the debt which is contested by the 
 
 (a) Domat, Cushing's ed. 905 et seq. 
 
Ch. 2.] Appropriation of Payments. 95 
 
 The doctrine of the civil law, with respect to this subject, turns upon 
 the intention of the debtor, either actual, or implied or presumed. To 
 him belongs the right of making the appropriation, in the first instance, 
 and which right he must exercise at the time of the payment, whether it 
 be a payment in money, or any thing else agreed to be accepted in pay- 
 ment. If the debtor fails to make the appropriation, the civil law permits 
 the creditor to apply the payment, but he must exercise the right at the 
 time payment is made, and on the failure of the debtor to designate to 
 which account he desires it .to be applied. In doing this, the civil law 
 treats the creditor as acting in behalf of the debtor, and requires him to 
 apply the payment to that debt which he himself would discharge in the 
 
 debtor," The rule adopted by Obief Justice Lee in the case already cited, is sub- 
 stantially aoeording to the foregoing rule.(J) 
 
 " 3. In all the oases where a debtor owing several debts to one and the same cred- 
 itor is found to have made several payments, of which the application has not been 
 made by the mutual consent of the parties, and where it is necessary that it be regu- 
 lated either by a court of justice or by arbitrators ; the payments ought to be ap- 
 plied to the debts, which lie heaviest on the debtor, and which it concerns hira most 
 to discharge. Thus, a payment is applied rather to a debt of which the non-pay- 
 ment would expose the debtor to some penalty, and to costs and damages, or in the, 
 payment of which his honor might be concerned, than to a debt of which the non- 
 payment would not be attended with such consequences. Thus, a payment is applied 
 to the discharge of a debt for which a surety is bound, rather than to acquit what 
 the debtor is singly bound for without giving any security ; or to the discharge of 
 wtat he owes in his own name, rather than of what he stands engaged for as surety 
 foi: another. Thus, a payment is applied to a debt for, which the debtor has given 
 pawns and mortgages, rather than to a debt due by a simple bond or promise ; rath- 
 er to a debt of which the term is already come, than to one thalt is not yet due ; or 
 to an old debt before a new one; and rather to a debt, that is clear and legal, than 
 to one that is in dispute ; or to a pure and simple debt, before one that is condition- 
 al." Every position in the foregoing is in substance sustained by authorities under 
 the common law.(c) 
 
 (5) Godard v. Cox, 2 Str. 1194. But see Logan v. Mason, 6 Watts & Serg. 9, where it is 
 said that the provisions of the Roman law, which, in the application of a payment, requires 
 the creditor, when the right has devolved on him by the laches of the debtor, to consult the 
 debtor's interest in preference to his own, has not |been adopted as part of the common law. 
 The case of Ayers v. Hawkins, 19 Vt. 26, is more in conforniity to the civil law ; and to the 
 same effect is Dows v. Morewood, 10 Barb. 183 ; Hunter v. Osterhout, 11 id. 34 ;• Seymour 
 V. Marvin, id. 80. And see opinion of Chancellor Walworth, in Stone v. Seymour, 15 
 Wend. 29, disapproving, in part, of the Roman rule. 
 
 (c.) Bussey v. Grant, 10 Humph. 238. Heyward v. Lomax, 1 Vem. 24. Marryatts v. 
 White, 2 Stark. R. 101. Bacon v. Brown, 1 Bibb, 334. Gwinn v. Whittaker, 1 Harr. & 
 John. 754. Postmaster Gen. v. NorveU, Gilp. 106, Briggs v. Williams, 2 Vt. 283. U. S. v. 
 
96 Of Account, [^^- 2. 
 
 first place, in case he were the debtor.' It is denied, by some courts, that 
 this principle has been adopted by the common law." The rule, however, 
 
 1 See ante. Per Walworth, in Stone v. Seymour, 15 
 
 = Logan V. Mason, 6 Watts & Serg. 9. Wend. 29. 
 
 "4. When a payment made to a creditor to whom several debts are due, exceeds 
 the debt to which it ought to be applied, the surplus ought to be applied to the dis- 
 charge of the debt which follows, according to the order explained in the preceding 
 article, unless the debtor makes another choice." 
 
 " 5. If a debtor makes a payment to discharge debts which, of their nature, bear 
 interest, such as that of a marriage portion, or what is due by virtue of a contract 
 of sale, or the same be due by a sentence of a court of justice, and the payment be 
 not sufficient to acquit both the principal and the interest due thereon, the payment 
 will be applied, in the first place to the discharge of the interest, and the overplus 
 to the discharge of a part of the principal sum." 
 
 " 6. If in the cases of the foregoing articles the creditor had given an acquittance 
 in general for principal and interest, the payment would not be applied in an eqnal 
 proportion to the discharge of a part of the principal, and of a part of the interest; 
 but, in the first place, all the interest due would be cleared off, and the remainder 
 would be applied to the discharge of the principal." 
 
 The doctrine of the preceding paragraphs is perfectly naturalized by cases of the 
 most approved authority.((f) 
 
 " 7. When a debtor obliging himself to a creditor for several oauses at one and 
 the same time, gives him pawns or mortgages, which he engages for the security of 
 all the' debts ; the money which is raised by the sale of the pawns or mortgages, 
 will be applied in an equal proportion to the discharge of every one of the debts. 
 But if the debts were contracted at divers times, upon the security of the same 
 pawns and mortgages, so as that the debtor had mortgaged for the last debts, what 
 should remain of the pledge after payment of the first, the moneys arising from the 
 pledges, would in this case be applied, in the first place, to the discharge of the debt 
 of the oldest standing. And both in the one and the other case, if any interest be 
 due on account of the debt which is to be discharged by the payment, the same will 
 be paid before any part thereof be applied to the discharge of the principal." 
 
 This paragraph contains the peculiar doctrine of priority of pledges, and follows 
 out the principles already stated. The proposition that a payment on pawns, or 
 mortgages for simultaneous debts, shall be distributed between the debts, has been 
 in principle decided in the English courts, and in the courts of this state.] (e) 
 
 Kirkpatrick, 9 Wheat. 720. Frazier v. Hyland, 1 H. & J. 98. Alston v. Conter, id. 351. 
 Fairchild v. Holly, 10 Conn. 176. Hilton v. Burley, 2N. Hamp. 193. 
 
 {d) State of Connecticut v. Jackson, 1 J. Ch. C. 17. Chase v. Box, 2 Freem. 261. 
 Stoughton V. Lynch, 2 J. Ch. E. 209. Frazier v. Hyland, 1 Harr. & John. 98. Peebles v. 
 6ee,l Dev. 341. Spicer v. Harnott, 8 Watts & Serg. 17. Bond v. Jones, 8 Sm. & Mar- 
 shall, 3C8. Jenks v. Alexander, 11 Paige, 619. Eighter v. Stall, 3 Sand. Ch. R. 608. 
 
 (e) Perry V. Koberts, 2 Ch. Cas. 84; S. C, 1 Vem. 34. Dows v. Morewood, 10 Barb. 
 183. Pattison v. Hull, 9 Cowen, 747. 
 
Ch. 2.] Appropriation of Payments. 97 
 
 goes but little further than other courts maintain the duty of the cred- 
 itor in such cases to be, namely, that he should act with good faith 
 towards the debtor. Thus, in a recent case, it was held that, if a debtor, 
 owing several demands to his creditor, makes a general payment and neg- 
 lects to direct its application, the right of designation belongs to tho 
 creditor ; yet he must make an application, to which the debtor could 
 not justly or reasonably object. Therefore, where the demands consisted 
 of three notes, all of which were barred by the statute of limitations, 
 and the debtor made a general payment, it was held that the creditor 
 might apply it upon which notes he pleased, and that he might indorse 
 it, if he so chose, upon the' largest note, although it was subse«[uent, in 
 date, to the others, and that the eifect would be to take the note, upon 
 which the application was made, out of the statute of limitations ; but that 
 he could not divide the paym,ent among all the notes, indorsing a part 
 on each, and claim, that all were thereby taken out of the operation of 
 the statute.^ 
 
 In Newhampshire it has been decided, that if payments have been 
 made on account of illegal sales, (for example, for spirituous liquors sold 
 without license,) the purchaser cannot afterwards rescind them, nor insist 
 upon their being applied to other and legal charges. The general rule is 
 there stated thus : a debtor, paying money to a creditor, who has several 
 claims against him, may direct the application of the payment to which 
 claim he pleases. If the debtor makes no such application, the creditor 
 may, at the time, apply it to any demand then due and payable, and which 
 is a lawful claim. Where neither of the parties makes the application, 
 the law will, where there is no particular equity, or reason for a different 
 course, apply the payment to the earliest debt. Whether the creditor can 
 direct the application at any other time than at the time of payment, 
 the court did not decide, and left under a quere." In New- York it has 
 been held, in one case, that the creditor is not bound to make an immedi- 
 ate decision, but will be allowed a reasonable time to decide to which 
 account or debt he will place it.^ But Chancellor Walworth, in an earlier 
 case,^ while delivering the judgment of the court of errors, held, that the 
 creditor should make the appropriation, on receiving the payment, and 
 on the default of the debtor to direct the application. This is in con- 
 formity to the civil law, and is the more reasonable rule. 
 
 That a creditor cannot make the appropriation of a payment after a 
 
 ' Ayers v. Hawkins, 19 Vt. 26. ' Allen v. Culver, 3 Denio, 291. "OoU. 
 
 » Caldwell v. Wentworth, 14 N. H. on Partnership, 322. 
 431. * Stone v. Seymour, 15 Wend. 28. 
 
 Eq. Juk. 13 
 
98 Of Account. , [Oh. 2. 
 
 controversy has arisen thereon, between himself and the debtor, is quite 
 reasonable, and has been settled.' He should either make it at the time 
 rf the payment, on the failure of the debtor to apply it, as held by Chan- 
 cellor Walworth, (supra,) or, at least, before the rights of the parties have 
 been changed. 
 
 Where neither party has made the application, the law usually makes 
 it to the oldest debt, and also applies it to the debt from which it will be 
 most beneficial to the debtor to be relieved ; as, for example, to accept- 
 ances for which an instrument in the nature of a mortgage or pledge is 
 given.'^ 
 
 In like manner, payments made on account of rent generally, will, in 
 the absence of any direction by the tenant, and a*iy agreement of the 
 parties, be applied by the law on the rent due at the time, and not on 
 the rent then accruing.' 
 
 Chief Justice Marshall, in an early case before the supreme court of 
 the United States, expressed dissatisfaction with the rule of the civil law, 
 which makes the application in a manner most favorable to the debtor, in 
 case both the debtor and creditor omitted to make the application of a 
 payment.* He said : " Where a debtor fails to avail himself of the 
 power which he possesses, in consequence of which that power devolves 
 on the creditor, it does not appear unreasonable to suppose that he is 
 content with the manner in which the creditor will exercise it. If neither 
 party avails himself of his power, in consequence of which it devolves on 
 the court, it would seem reasonable that an equitable application should 
 be made. It being equitable that the whole debt should be paid, it can- 
 not be inequitable to extinguish, first, those debts for which the security 
 is most precarious.^ In a case in the court of errors, in the state of 
 New- York, Chancellor Walworth, who delivered the prevailing opinion, 
 agreed that the foregoing doctrine of Chief Justice Marshall is the true 
 principle.5 He admitted that, in Spain, France, and Holland, the rule of 
 the civil law prevails, requiring the payments to be applied in that way 
 which is most beneficial to the debtor, where one debt is more onerous 
 than the other. Such too is the Code Napoleon, article 1256. By the 
 
 ' Millikin v. Tufta, 31 Maine, 497. = Hunter v. Osterhout, 11 Barb. 33. 
 
 " Gwin V. Whittaker, 1 Har. & J. 754. Allen v. Culver, 3 Denio, 291. 
 
 MoTavish v. OarroU, 1 Maryland Oh. De- ' Field v. Holland, 6 Oranch, 8, 27. 
 
 cisions, ICO. Bussey V. Gant, 10 Humph. 'Stone v. Seymour, 15 Wend. 29; 
 
 288. _ Truscott v. King. 2 Seld. 147. S. P., Jones v. Kilgore, 2 Eiohardson's 
 
 Dows V. Morewood, 10 Barb. 183. Pat- Eq. 63. Baine v. Williams, 10 8. & M. 
 
 tison V. Hull, 9 Oowen, 747, and cases 118. 
 cited under note, ante, p. 05. 
 
Ch. 2.] Appropriation of Payments. 99 
 
 civil code of Louisiana, no preference is given 'on account of priority of 
 date ; but when both debts%re not of a like nature, the imputation is 
 made to the less burdensome ; and if all things are equal, it is made pro- 
 portionably," By the law of Scotland, the creditor is allowed to make 
 the application which is most beneficial to himself The rule adopted 
 there, has in view the interest of the creditor more than that of the debtor, 
 except that a debt in judgment must be firSt paid. Also when a third 
 person is a surety for one of the debts the payment is applied pro rata ; 
 the interest of the surety counterbalancing that of the creditor. The 
 chancellor admits, that in England and in the United States, where the com- 
 mon law prevails, there is much conflict in the decisions, as to the prin- 
 ciples upon which the court is to make the application, where the right is 
 not exercised by the creditor or debtor.^ 
 
 In the same case, the same learned chancellor, speaking of th« applica- 
 tioii of indefinite payments where the creditor has diflerent claims against 
 his debtor, says, that some of the fundamental principles of the civil law 
 appear to have been adopted every where, and tp admit of no doubt. 
 (1.) If both debts are due at the time of the partial payment, the debtor 
 is at liberty to apply the payment to which he pleases, if his intention is 
 manifested at the time of the payment ; subject to this restriction, how- 
 ever, that the creditor is not obliged to receive a partial paymeht of any 
 particular debt, of which the whole is due at the time the offer of pay- 
 ment is made. (2.) When the debtor neglects to manifest his intention, 
 as to the application of the payment, at the time it is made, the creditor 
 may, at the time he receives the money, apply it to which debt he pleases, 
 unless the debtor objects ; the creditor manifesting his intention at the 
 time, either in the acquittance which he gives, or in some other way. 
 (3.) If a partial payment is made, on account of debts, one part of which 
 debts consists of principal, and another of the interest, so much of the 
 payment as is necessary to satisfy the interest, or arrears then due, shall 
 be first applied for that purpose, and the residue only shall go to reduce 
 the amount of the principal debt. These rules prevailed in the Roman 
 law, and are now the settled law of France, Spain, Holland, Scotland, 
 England and' the United States.^ A four.th principle appears to be 
 equally well established, to wit, where no application of the payment is 
 made by the debtor, or with his assent, at the' time it is received, and 
 there is an existing indebtedness to the amount of such payment, it shall 
 
 ' Civil Code of Louisiana, art. 2162. has collected various authorities on the 
 = Stone V. Seymour, 16 Wend. 80. above points. 
 
 ' Id. 23, 34, where the late chancellor 
 
100 Of Account. [Oh. 2, 
 
 be applied to that ; and neither the creditor or the court shall apply such 
 payment to a debt which was not then due a«d payable. And if the pay- 
 ment is made upon a demand which draws interest, and neither the prin- 
 cipal or the interest has yet become due, it shall be applied ratably, so 
 as to extinguish the intefest to that time upon so much of the principal 
 as is discharged by the payment.' 
 
 The points on which there is the greatest conflict of opinion among the 
 courts, in this country, are as to the time when the creditor, on the 
 laches of the debtor, is permitted to make the appropriation ; that is, 
 whether he must make it at the time he receives the payment, and indi- 
 cate his appropriation to the debtor at the time ; or whether he may wait 
 a reasonable time, before making the application ; or, whether he may 
 lie by, until a controversy has arisen between the parties, and then desig- 
 nate the demand to which the payment shall be applied. Another point 
 in which there is a controversy, is as to the character in which the credi- 
 tor acts, when on failure of the debtor to direct ,the appropriation^ he ex- 
 ercises the admitted right of directing it himself; that is, whether, in 
 this case, he acts for his own interest exclusiyely, and may prefer his own 
 interest to that of the debtor ; or whether he is bound to act with good 
 faith towards the debtor, and so exercise his own right as not to prejudice 
 the rights of the debtor ; or whether he is bound to exercise the golden 
 rule, and do by the debtor, in making the appropriation, as he would de- 
 sire others to do for himself, under similar circumstances. 
 ^ There are respectable authorities in this country for each of the fore- 
 going positions. But it is believed that the tendency of judicial opinion, 
 in this country, is towards the equitable rules of the civil law. In most 
 instances those rules have been adopted by common consent, and are per- 
 fectly naturalized in the common law. Where they have not been, in 
 ternis, adopted, the preponderance of authority is in their favor. In the 
 present state of the law, the rules on this subject cannot be laid down 
 more definitely than they have been in the text. The studious reader 
 will consult the cases already cited, and those which are appended in the 
 subjoined note.^ 
 
 ' Stone V, Seyraoui', 15 Wend. 23, 24, Higgisop, 1 Mason, 323. Gwin v. Whit- 
 
 and "Williains v. Houghtaling, 3 Cow. 86. taker, 1 Har. & J. 754. Brigga v. "Wil- 
 
 ' Reynolds v. MoParlane, 1 Overt. 488. liams, 2 Vt. 288. Frazier v. Hyland, 1 
 
 Bacon v. Brown, 1 Bibb, 834. Postmas- Har. & J. 98. Alstan v. Center, 4 id. 
 
 ter General v. Norvell, Gilp. 106. Huger 851. Fairchild v. Holly, 10 Conn. 175. 
 
 V. Bosquet, 1 Bay, 497. Earker v. Con- Postmaster Gen. v. Furber, 4 Mason, 332. 
 
 rad, 1\ S. & E. 801. United States v. Blackstone Bank v. Hill, 10 Pick. 129. 
 
 Kirkpatriok, 9 Wheat. 720. Cramer v. Hall v. Mairston, 17 Mass. 575. Gilchrist 
 
Ch. 2.] Appropriation op Payments. 
 
 In the case of partnership, where there has been a change^«£_iJiejttKih 
 by a dissolution, by death or otherwise, it becomes importanfem^Sileftain 
 the principle on which indefinite payments are to be applied. In one 
 case, Bayley, J., after stating the general rule, about which there is no 
 dispute, says, that when one of several partners dies, and the partnership 
 is in debt, and the surviving partners continue their dealings with a 
 particular creditor, and the latter joins the transactions of the old and the 
 new firm in one entire account, then the payments, made from time to 
 time by the surviving partners, must be applied to the old debt.' In 
 that case, it is to be presumed that all the parties have consented that 
 it should be considered as one entire account, and that the death of one of 
 the partners has produced no alteration whatever. In such case, in a cur- 
 rent account as between banker and customer, the law makes an appropri- 
 ation according to the items of the account, the first item on the debit side 
 of the account being discharged, or reduced by the first item on the credit 
 side. These general principles were fully established and enforced by 
 
 v. "Ward, 4 Mass. 692. Bonaffe v. Wood- 
 bury, 12 Pick. 463. Hussey v. Manu. and 
 Meohi Bank, 10 id. 415. Taylor v. Sandi- 
 ford, 7 Wheat. 13. Black v. SoLooles, 2 
 MoOord, 292. Martin v. Draker, 5 Watts, 
 a44. Mitchell v. Dall, 2 Har. & Gill, 
 159 ; S. 0., Gill & John. 361. McDonald 
 V. Picket, 2 Bailey, 617. Beed v. Board- 
 man, 20 Pick. 441. Brewer v. Knapp, 1 
 id. 882. Brady v. Hill, 1 Miss. 315. Alex- 
 ander V. Patten, 4 Oranch, 316. Smith 
 V. Souven, 1 McCord, 308. Blinn v. Ches- 
 ter, 5 Day, 166. Dorsey v. Ganaway, 2 
 Har. & J. 402. Emery v. Tichout, 13 Vt. 
 15. Oliver v. Phelps, 1 Spencer, 180. 
 McFarland v. Lewis, 2 Scam. 844. White 
 V. Trtimbnll, 3 Green, 314. Carson v. 
 Hill, 1 McMullan, 76. Selliok v. Turn- 
 pike Co. 13 Conn. 453. Eosseau v. Call, 
 14 Vt. 83. Robinson v. Doolittle, 12 id. 
 246. Starrett v. Barber, 7 Shipherd, 457. 
 Arnold v. Johnson, 1 Scam. 196. Merri- 
 mack Co. Bank v. Brown, 12 N. H. 820. 
 Myers v. United States, 1 McLean, 493. 
 Howland v. Eench, 7 Blackf. 236. Eack- 
 ley V. Pearoe, 1 Kelly, 241. Eandall v. 
 Panamore, 1 Branch, 409. Boody v. The 
 
 TJ. S. 1 Woodb. & M. 150. Eood v. Jones, 
 8 S. & M. 368. Upham v. Lefavonr, 11 
 Met. 174. Jenck v. Alexander, 11 Paige, 
 619. Moss V. Adams, 4 Iredell's Eq. 42. 
 Jones V. Kilgore, 2 Rich, Eq. 63. Baine 
 V. Williams, 10 S. & M. 118. United 
 States V. Bradbery, Da vies, 146. Ban- 
 croft V. Dumas, 21 Vt. 456. Dulles v. 
 De Forrest, 19 Conn. 190. Bailey v. 
 Wynkoop, 5 Gilman, 449. Sawyer v. 
 Tappan, 14 N. H. 352. Seymour v. Mar- 
 vin', 11 Barb. 80. 
 
 The foregoing are American cases. 
 Many of the English oases are cited al- 
 ready, in addition to which, see Mills v. 
 Foukes, 7 Scott, 444; S. C, Bingham's 
 TS. C. 455, repudiating the rule of the 
 civil law, which applies a payihent to the 
 more burdensome debt, when the parties 
 have omitted to make the application. 
 Peters v. Anderson, 5 Taunt. 596. Bos- 
 sanquet v. Wray, 6 id. 597. Clayton's 
 case, 1 Meriv. 572. Chitty v. Naish, 2 
 Dowl. P. C. 611. Brazier v. Bryant, id. 
 477. Goddard v. Hodges, 1 0. & M. 33. 
 Ornickshanks v. Rose, 1 M. & Rob. 100. 
 
 ' Simpson v. Ingham, 2 B. & Cress. 65. 
 
102 Op Account. [CL 2. 
 
 Sir "William Grant, in Clayton's case,' "which was a case decided upon 
 great consideration, and is an authority of great weight."^ There, the 
 claim of Clayton against the estate of the deceased partner Devaynes, 
 under an account current with the house of Devaynes & Co., was limited 
 and adjusted according to the principles above stated. In that case Sir 
 William Grant says : " This is the case of a banking account, where all 
 the sums paid in, form one blended fund, the parts of which have no longer 
 any distinct existence. There is no room for any other appropriation, 
 than that which arises from the order in which the receipts and payments 
 take place, and are carried into the account. Presumably it is the sum 
 first paid in that is first drawn out. It is the first item on the debit side 
 of the account, that is discharged or reduced by the first item on the credit 
 side. The appropriation is made by the very act of setting the two items 
 against each other. Upon that principle, all accounts current are settled, 
 a,nd particularly cash accounts. When there has been a continuation 
 of dealings, in what way can it be ascertained whether the specific bal- 
 ance, due on a given day, has or has not been discharged, but by exam- 
 ining whether payments to the amount of the balance appear by the 
 account to have been made? You are not to take the account back- 
 wards, and strike the balance at the head, instead of the foot of it. A 
 man's banker breaks, owing him on the whole account a balance of £1000. 
 It would surprise one to hear the customer say : I have been fortunate 
 enough to draw out all that I paid in during the last four years ; but 
 there is £1000, which I paid in five years ago, that I hold myself never 
 to have drawn out ; and, therefore, if I can find any body, who was answer- 
 able for the debts of the banking house, such as they stood five years 
 ago, I have a right to say, that it is that specific sum which is still due 
 to me, and not the £1000 I paid in last week."^ 
 
 The doctrine of Sir William Grant, in Clayton's case, (supra,) was 
 apparently approved by Savage, Ch. J., in Baker v. Stackpole, (supra,)* 
 by Judge Story, in his Treatise on Equity Jurisprudence,' and by the 
 superior court of errors of Connecticut.^ In the case of Fairchild v. Hol- 
 ly and others, one of the defendants, a dormant partner, withdrew from 
 the concern, the former then being indebted to the plaintiff, on a running 
 
 ' 1 Merivale, 572. 4 Russell's E. 154. Wilder v. Keeler, 
 
 ' Per Abbott, J. in Bodenham v. Pur- 8 Paige, 167. 
 chase, 2 Barn. & Aid. 46. * Baker v. Stackpole, 9 Cowen, 436. 
 
 " Sir William Grant, in Clayton's case, ' Story's Eq. Jur. § 459, e. 
 
 1 Meriv. 608, 609. Bodenham v. Purchase, " fairchild v. Holly, 10 Conn. 175, 182. 
 
 2 Barn. & Aid. 89. Pemberton v. Oakes, ' 
 
CL 2.] Appropriation of Payments. 103 
 
 account of debits and credits. After the witlidrawal of tlie dormant part- 
 ner, the business of the defendants was conducted in the same ostensible 
 manner, by the same agent, and no rest or settlement was made in the 
 accounts. The payments, however, made subsequent to the withdrawal 
 of the partner, if applied to the old accouijit, would extinguish it, and leave 
 a small sum to be applied on the account of the new firm. The question 
 was, whether those subsequent payments, not having been applied' at 
 the time by the parties, should be appropriated by the law to the whole 
 account, and thus go to extinguish the old account ; or whether the account 
 should be stated of debits and credits, as the account stood when the 
 partner .withdrew, and the payments, subsequent to the withdrawal, be 
 applied to the debts which had subsequently accrued. The former was 
 held to be the true rule in this case ; the account of the plaintiff was 
 whole and unbroken. No rest was made, or balance struck. The charges 
 were made in the same manner, and against the same persons, and the 
 business conducted by the same agent. The case was not distinguishable 
 from Brooke v. Enderby et al.,' and was in accordance with the principles 
 approved in Clayton's case, and Simpson v. Bingam, (supra.) 
 
 The principles which apply, in case of the death or the retiring of a 
 partner, are the same on the accession of a new partner. If the money 
 paid be the property of the mere partnership, it will be applicable to the 
 payment of the debts of that partnership alone. The general rule, says 
 Lord Oh. J. Abbott,^ is, that where money is paid generally, without any 
 appropriation, it ought to be applied to the first items of the account ; 
 but the rule is subject to this qualification, that where there are distinct 
 demands, one against persons in partnership, and another against only 
 one of the partners, if the money paid be the money of the partners, the 
 creditor is not at liberty to apply it to the payment of the debt of the 
 individual ; that would be allowing the creditor to pay the debt of one 
 person with the money of others." The question in such case is, whether 
 the money was the property of the partnership, or of the individual, mak- 
 ing the payment. In the absence of any specific direction by the debtor, 
 the law would apply it, in the first case, to the partnership debt, and in 
 the last, to the individual debt. This is in accordance with the general 
 principles of equity, that partnership property must first be applied to 
 the payment of partnership debts, and the individual property of the 
 partners to their individual debts.^ Of this, more will be said in its 
 proper place. 
 
 ' Brooke v. Enderby, 2 Br. & Bing. 70. = Wilder v. Keeler, 3 Paige, IBV. Kirby 
 ' Thompson v. Brown, 1 Moo. & M. 40. v. Schoonmaker, 3 Barb. Oh. R. 46. Eg- 
 
104 Op Account. [Ch. 2. 
 
 The subject of agency gives rise to a variety of questions under the 
 head of accounts, Tvith reference to the application of payments. The 
 agents with which equity is most conversant, are attorneys, factors, bail- 
 iffs, consignees, receivers, stewards.' The general rule, to be departed 
 from only under special circumstances, is, that a person standing in this 
 relation to his employer, is bound to keep regular accounts, not only of 
 payments but of receipts, and not to confound the property of his prin- 
 cipal with his own. In cases of gross neglect in this respect it has been 
 said, that the agent shall not be permitted to charge costs ; and if he im- 
 properly confound the property of his principal with his own, he is 
 chargeable with the whole.' Chancellor Kent, in Hart v. Ten Eyck,' 
 said, " The rule of law and equity is strict and severe on such occasions. 
 If a party, having charge of the property of others, so confounds it with 
 his own, that the line of distinction cannot be traced, all the inconvenience 
 is thrown upon the party who produces it, and it is for him to distinguish 
 his own property, or lose it." 
 
 In many cases falling under the head of agency, where the transaction 
 is simple, and consists only of a few items, the ordinary remedy at law 
 will afford complete redress. The action of debt, covenant or assumpsit, 
 or a corresponding action under the code, will enable the complaining party 
 to establish his rights, and obtain satisfaction for any injury he may have 
 sustained. But there are numerous other cases, of a different chairacter, 
 complicated in their nature, and requiring equjtable relief. Sometimes 
 a discovery, an injunction or a ne exeat is required ; at others, a multi- 
 plicity of suits is to be avoided ; and at others, more full and adequate relief 
 is required than can be granted in an ordinary action at law. The cir- 
 cumstances which will, in general, give a preference to equitable over 
 legal relief, have been adverted to already, and the general principles 
 have been set forth.' 
 
 The cases of account between tenants in common, between joint ten- 
 ants, between partners, between part owners of ships, and between the 
 owners of ships and the masters, sometimes fall under the consideration 
 of agency, and sometimes under that of partnership. Thus, in Mumford 
 V. NicoU,* it was held that though the part owners of a ship are, generally 
 
 berts V. "Wood, 3 Paige, 517. Deveau v. ' White v. Lincoln, 8 Ves. 368. Lupton 
 
 l^owler, 2 id. 400. Tunns v. Trezevant, v. White, 15 id. 483. 
 
 2 Desaus. 270. Woddrop v. Price's Ex'rs, ', Hart v. Ten Ey'ck, 2 J. Ch. E. 108. 
 
 3 id. 203. Simmons v. Tongue, 8 Bland's * See ante, pp. 90 to 02. 
 
 Oh. R. 856. " 20 J. E. 611. Doddington v.Hallet, 
 
 ' Jeremy on Eq. Juris. B. 3, pt. 2, ch. 1 Ves. 497. Abbott on Shipping, 6th Am, 
 B, pp. 518 to 516. Story's Equity, § 462. ed. 187, 138, and notes. 
 
CL 2.] Lien. 105 
 
 speaking, tenants in common, yet there may be a special partnership be- 
 tween them, in the ship, as well as in the cargo, in regard to a particular 
 voyage, or adventure, and in the proceeds arising from the sale of them, 
 and the profits of the voyage. And when, in such a ease, one of two 
 owners receives or gets possession of the whole proceeds, he has a right 
 to retain them until he is paid or indemnified for what he has advanced, 
 or paid more than his share, for outfits, repairs, or expenses of the vessel 
 for the particular voyage, or adventure ; but not for a general balance 
 of account arising from former and distinct voyages, or adventures in 
 which they have been concerned together, in the same, or other vessels, 
 there being no general partnership between them, and each adventure 
 creating a special partnership, by itself, which terminated with the par- 
 ticular adventure. 
 
 The question with respect to what liens are created, by operation of law, 
 upon a vessel, was much considered in a recent case in the supreme court 
 of New- York.' After stating that the relation of part owners of a vessel 
 to each other was that of tenants in common, and not joint tenants ; and 
 that with respect to partners, it might be laid down, as a general^ prin- 
 ciple, that each of the partners has a specific lien in the partnership 
 stock, not only for the amount of his share, but for moneys advanced by 
 him beyond that amount, for the use of the copartnership, it was said by 
 the court : " In Doddington v. Hallet, (1 Ves. sen. 407,) Lord Hardwicke 
 extends this doctrine to part owners of ships, holding, in a case where one 
 of several part owners died, without paying his proportion of the expense 
 of building and fitting out a ship, that the other part owners had a spe- 
 cific lien on his share, for the moneys which they had laid out on his ac- 
 count. But Lord Eldon, after great consideration, overruled this decision 
 of Lord Hardwicke, being of opinion that part owners of a ship, being 
 tenants in common and not joint tenants, have not, by analogy to part- 
 ners, a lien on the shares of each other." (Ex parte Young, 2 Ves. & 
 Beame, 242. Ex parte Harrison, 2 Rose, 76. Coll. on Part. 666, a.) 
 Judge Story gives his preference to the doctrine laid down by Lord Hard- 
 wicke, as most consonant to equity, and as founded in principle, public 
 policy and convenience. He treats cases of this kind as a species "of par- 
 tnership with reference to the adventure upon which the ship is to be em- 
 ployed ; and therefore, the repairs, outfits and other expenses incurred to 
 accomplish the enterprise, are deemed to be made on general account, and 
 intended to be governed, as to rights and liens, by the rules of strict part- 
 
 'Tisdale v. Grant, 12 Barb. 414, 425. 
 Eq. Jue. 14 
 
106 Op Account, Ch. 2] 
 
 nerships. (Story on PartnersHps, § 444.) Chancellor Kent followed the 
 rule of Lord Eldon, in Nicoll v. Mumford, (4 J. Ch. R. 522,) but his 
 decree was modified by the court" of errors, and the rule adopted by Lord 
 Hardwieke sustained. (20 J. R. 611, S. C.) Ch. J. Spencer, in delivering 
 the prevailing opinion in the court of errors, said, that he did not intend 
 to overrule the distinction between partners in ^goods and merchandise, 
 and part owners of a ship. The former are joint tenants, and the latter 
 are, generally speaking, tenants in common ; and one cannot sell the share 
 of the other. " But I mean to say," he observes, " that part owners of 
 a ship may, under the facts and circumstances of this case, become part- 
 ners as regards the proceeds of the ship ; and if they are to be so re- 
 garded, the right of one to retain the proceeds, until he has paid 
 what he has advanced, beyond his proportion, is unquestionable." 
 In that case the question arose between the part owners who had made 
 the advances for outfits, repairs and expenses, and received the whole 
 avails of vessel and cargo, and the assignees under the insolvent act, of 
 the other part owners. There was a strong equity in favor of treating 
 the vessel as well as cargo as the partnership stock, and thus enabling 
 the part owner, by whose means the fund had been acquired, to be reim- 
 bursed, before the creditors of the insolvent part owners could be per- 
 mitted to come in for a share. 
 
 We now pass from this to another branch of the subject, that of con- 
 tribution and exoneration. 
 
 If the liabilities of two or more persons be joint, he who has paid more 
 than his share is entitled to contribution from the rest. If some are 
 liable in priority to the rest, the parties secondarily liable, if compelled 
 to discharge the claim, are entitled to exoneration.' The subject of cm- 
 tributimi and exoneration arises properly under the head of Account, and 
 both may be treated together. 
 
 In order that either of these equities should arise, it is essential that 
 the charge be binding, and that it do not arise ex delicto. 
 
 This subject was well considered by Chancellor Kent, in an early case.* 
 The principle of contribution, says the chancellor, is equality in bearing 
 a common burden, but equality is not equity between two defendants who 
 stand on different ground. They must stand in eqtmli jure, or the rule 
 does not apply. A court of law will now sustain an action for contribu- 
 tion between two debtors, or sureties, under an implied assumpsit arising 
 f]?om the knowledge and operation of the general principle that equality 
 
 ' Adams' Equity, 267, 495. ' Peck v, Ellis, 2 J. Ch. R. 136, 137, 
 
Ch. 2.] Contribution and Exoneration. 107 
 
 is equity. But a court of law ■will not sustain an action between two 
 joint trespassers. If A. recover in tort against two defendants, and levy 
 the whole damaiges on one, that one cannot recover a moiety against the 
 other for his contribution.' Chancellor Kent, in the same case,'' approved 
 of that decision, and said he was not apprised of any decision in chancery 
 to the contrary. In Philips v. Briggs, (Hard. 164,) a bill was filed by 
 one of the sheriffs of Middlesex against the other, for contribution, in a 
 case where the damages had been levied on one for an escape suffered by 
 both, and the court of exchequer considered it a case of the first im- 
 pression, and doubted, and no decision appears to have been made. But 
 in a later case' the master of the rolls observed, that where entire damages 
 are recovered against several defendants for a tort, a court of justice will 
 not interfere to enforce contribution among the wrongdoers. The wisdom 
 and policy of the rule are thus vindicated by the chancellor in the same 
 case : " There would be no safety to property, if a large combination of 
 trespassers were entitled to the assistance of courts of justice in the ap- 
 portionment of the damages. The knowledge that each individual is 
 responsible for the whole, constitutes the great check." 
 
 Chancellor Walworth, in a ease before him, of contributions among 
 sureties, said : " The equitable principles of the civil law as to suretiship, 
 have long since been established as the law of the court of chancery upon 
 that subject. One of the fundamental principles of that law is, that co- 
 sureties are bound to contribute equally, as between themselves, to the 
 discharge of the common burden ; and another is, that if one surety pays 
 the whole debt for which they were jointly bound, he is entitled to 
 a cession of the rights and remedies of the creditor, not only as against 
 the principal debtor, but also as against his co-sureties. According to 
 the modern doctrine on this subject, the surety, by the mere payment of 
 the debt, and without any actual assignment from the creditor, is in equity 
 subrogated to all the rights and remedies of the creditor, for the recovery 
 of his debt against the principal debtor or his property, or against the co- 
 sureties or their property, to the extent of what they are equitably 
 bound to contribute."* 
 
 Where two are bound for the payment of a specific sum, and one pays 
 the whole, he can either at law or equity call upon the other to contribute, 
 and thus recover a moiety of what he had paid.^ In cases of contribution 
 of one surety against others, a court of equity still retains jurisdictioh, 
 
 > Merry-weather v. Nixon, 8 D. & E. Miller v. Finton, 11 Paige, 18. Depny 
 
 186. V. Johnson, 1 Bibb, 562. 
 
 » Peck V. Ellis, 2 J. Ch. R. 136. * Ouyler v. Ensworth, 6 Paig«, 32. 
 
 • Lingard v. Bromley, 1 Ves. & B. 117. ' Owens v. Oollinson, 3 Gill & John. 25. 
 
108 Of Account. [Oh. 2. 
 
 in North Carolina, notwithstanding the statutory jurisdiction of courts 
 of law.' The principle on which contribution is allowed, is that the 
 plaintiff, by his payment, has removed a common burden from the defend- 
 ant and himself; and the defendant has received a benefit from such 
 payment.^ 
 
 At law, when there are more than two sureties, and one pays the whole 
 debt, the principal being insolvent, he cannot bring an action against his 
 co-sureties jointly, but each must be sued separately for his own liability.^ 
 A different rule prevails in equity.^ And a creditor suing at equity upon 
 a joint, or joint and several undertaking, must bring all the debtors be- 
 fore the court, principals as well as sureties, for no account taken would 
 be binding upon an absent party, and consequently, no complete decree 
 could be made. Besides, the debtors are entitled to the assistance of 
 each other in taking the accounts, and when one has paid more than his 
 share of the debt, he is entitled to a contribution from him who has paid 
 nothing, or less than his share ; and by making all the debtors parties, 
 the circuity of another suit for contribution is thereby avoided.^ Sure- 
 ties have a common interest in the relief sought^ and that is eaough to 
 obviate the charge of multifariousness.' 
 
 As a general rule, a creditor cannot be compelled, in equity, to resort in 
 the first instance to the principal, or his property, before he can enforce 
 his remedy against the surety." He can do no act to invalidate or dis- 
 charge the security he has taken from the principal debtor, to the preju- 
 dice of the rights of the surety.^ The surety may resort to equity, if he 
 apprehends danger from the creditor's delay, and compel the creditor to 
 sue the principal debtor, though probably he must indemnify the creditor 
 against the consequences of risk, delay and expense.' The surety, says 
 Chancellor Kent, in the last mentioned case, " has a right on the day the 
 debt is due, to come into chancery and insist on its being put in suit ; 
 and if the obligee has suspended that right, by a new agreement with 
 the debtor, he has disabled himself to do that equity to the surety which 
 
 » Shepherd v. Monroe, 2 Oas. Law Rep. • Oonro v. Port Henry Iron Co., 12 
 
 624. Barb. 27. 
 
 ' Souven v. Joyner, 1 Hill's Oh. E. 260. ' Champion v. Brown, 6 J. Oh. R. 406. 
 
 ' Powell V. Mathis, 4 Iredell, 83. Ranelaugh v. Hays, 1 Vern. 189 ; S. 0., 
 
 « Craythorn v. Swinburn, 14 Vea. 164. 2 Oh. Oases, 146. Pitman's Prin. and 
 
 Dias V. Boohaud, 10 Paige, 445. Surety, 125, and cases cited. Hayes v, 
 
 " Pitman on Prin. and Surety, 234, 235. Ward, 4 J. Oh. R. 181, 136. 
 
 Oockburn v. Thompson, 16 Ves. 321. " Hayes v. Ward, 4 J. Oh. R. 130. 
 
 O'Oand's case, Amb. 61. Bland v. Winter, ' Id. King v. Baldwin, 2 id. 562. 
 
 1 Sim. & Stu. 246. Plunket v. Penson, 
 
 2 Atk. 61. 
 
CL 2.'] Exoneration. 109 
 
 he had a right to demand, and which the relation between the surety and 
 debtor required. This principle is equally available at law and in equity. 
 In order to discharge a surety in consequence of a variation of the con- 
 tract by the creditor and debtor, not only must the fact of suretiship 
 exist, but it must be known to the creditor at the time of the extension. 
 If the fact do not appear on the face of the security, it must be proven 
 clearly. Though the surety be not personally bound, but has only 
 mortgaged or pledged his property by way of security for the debt of 
 another, the general principle applies, and the property is released, by a 
 binding agreement of the principal, without the assent of the surety, 
 extending the time of the payment. Giving time, says Nelson, J., in the 
 same case, by a valid and binding agreement, by the creditor to the 
 debtor, without the assent of the surety, operates to discharge him, both 
 at law and in equity ; and that, not only whether any loss has thereby 
 happened to the surety or not, but even if it have been an actual benefit' 
 
 The right of exoneration arises between surety and principal, so soon 
 as the surety has paid any part of the debt. Immediately, on making 
 such payment, he may bring assumpsit at law against his principal for 
 indemnity.^ 
 
 The same equity which enables a surety, after payment by himself, to 
 recover the amount from his principal, warrants him in filing a bill to 
 compel payment by the principal, when he has been brought under lia- 
 bility by the debt falling due, though he may not have been actually 
 sued.^ 
 
 At law, a surety, as such, cannot call on his principal, until he has ac- 
 tually paid the money.* The remark of Paige, J., in Elwood v. Dieifen- 
 dorff,^ that a surety has no cause of action against the principal debtor 
 until he has actually paid the debt, must be understood as meaning a 
 cause of action, at law, for money paid. The drift of the opinion, and 
 the references, show that such was the point on which the judge was 
 
 ' Gahn v. Niemoewicz, 11 Wend. 312 ; ^ Toussaint v. Martenant, 3 T. E. 100. 
 
 aflBrming S. 0., 3 Paige, 614. Kie3 v. Exall v. Patridge, 8 id. 176. Tom v. 
 
 Berrington, 2 Ves. jun. 540. Boutbee v. Goodricli, 2 J. E. 213. 
 
 Stubiss, 18 Ves. 21. Samnell v. How- ' Adams' Eq. 270, 502, Phil. ed. Pit- 
 
 arth, 3 Merivale, 278. Theobold on Prin. man's Prin. and Surety, 125. Antrobus 
 
 and Surety, 134, 136, 150. Elwood v. v. Davidson, 3 Meriv. 569, 578. Kingv. 
 
 Dieffendorflf, 5 Barb. 898. Eathbone v. Baldwin, 2 J. Oh. E. 562. 
 
 "Warren, 10 J. E. 587. Eobinson v. Frost, * Powell v. Smith, 8 J. E. 249. 
 
 14 Barb. 536. ' Elwood v. Dieffendorff, 5 Barb. 410. 
 
110 Op Account. [CL 2, 
 
 dwelling. He was not considering the remedy in equity, of the surety 
 against the principal, before payment. 
 
 It is a general rule, that in equity a surety is entitled to the benefit 
 of all the securities which the creditor has against the principal ; this 
 rule applies only to such securities as continue to exist, and do not get 
 back upon payment to the person of the principal debtor. Where a bond 
 is given by principal and surety, and at the same time a mortgage made 
 for securing the debt, the surety, if he pays the bond, has a right to 
 stand in the place of the mortgagee.' In another case,'' Lord Brougham 
 said : "Where a person pays ofi" a bond in which he is either co-obligor or 
 subsidarie, he has, at law, an action against the principal for money paid 
 to his. use, and he can have nothing more. The joint obligation towards 
 the creditor is held to give to the principal notice of the payment, and 
 also to prove his consent ^or authority to the making of that payment. 
 This is necessary for enabling any man, who pays another's debt, to come 
 against that other, because a person cannot make himself the creditor of 
 another by volunteering to discharge his obligations. But beyond this 
 claim, which is on simple contract merely, there exists none against the 
 principal by the surety who pays his debt ; nor, where the matter is 
 closely viewed, ought there to exist any other." " The case standing thus 
 at law, do considerations of equity make any alteration in its aspect ? 
 The rule here is undoubted, and it is one founded on the plainest princi- 
 ples of natural reason and justice, that the surety paying off a debt shall 
 stand in the place of the creditor, and have all the rights which he has, 
 for the purpose of obtaining his reimbursement. It is hardly possible to 
 put his right of substitution too high, and the right results more from 
 equity than from contract or quasi contract ; unless in so far as the known 
 equity may be supposed to be imported into any transaction, and so to 
 raise a contract by implication. The doctrine of the court, in this respect, 
 was luminously expounded in the argument of Sir Samuel Romily, in 
 Craythorn v. Swinburne, (14 Ves. 160 ;) and Lord Eldon, in giving judg- 
 ment in that case, sanctioned the exposition by his full approval. A 
 surety, to use the language of Sir S. Romily's reply, will be entitled to- 
 every remedy which the creditor has against the principal debtor, to en- 
 force every security and all means of payment ; to stand in the place of 
 the creditor, not only through the medium of the contract, but even by 
 means of securities entered into without the knowledge of the surety ; 
 having a right to have those securities transferred to him. though there 
 
 ' Oopis V. Middleton, 1 T. & Eussell, ' Hodgson v. Shaw, 3 Mylne & Keen^ 
 224. 183. « 
 
Ch. 2.] Exoneration. Ill 
 
 was no stipulation for that ;_ and to avail himself of all those securities 
 against the debtor." (14 Ves. 162.) The chancellor admits the rule to 
 be, that when the surety to a bond pays off the bond, the obligation is 
 extinguished, and no action will lie upon it. But though the bond is ex- 
 tinguished, the surety is entitled to all collateral securities which the 
 obligee had against the original debtor. While his remedy against the 
 principal is for money paid to his use, he can, nevertheless, enforce the 
 securities thus taken. This doctrine, was affirmed by Paige, J., in El- 
 wood V. Dieffendorff, (supra.)' 
 
 The doctrine of Lord Brougham, in Hodgson v. Shaw, (supra,) was ap- 
 proved by the court of appeals of New- York in a recent case.' The right 
 of the surety thus to be subrogated, on payment of the debt, to the se- 
 curities held by the creditor, does not, the court said, depend upon con- 
 tract, but rests upon principles of justice and equity. It is well and 
 firmly established in the jurisprudence of this country and England.' 
 
 It has been shown that if the obligee does an act to the injury of the' 
 surety, or varies the terms of the contract, or enlarges the time of the 
 performance, without the assent of the surety, the latter will be discharged.* 
 A mere delay of the creditor to prosecute the principal will not impair 
 the liability of the surety, unless such delay is in pursuance of a binding 
 agreement and without the assent of the surety." But where the cred- 
 itor, though urged by the suVety to prosecute and collect the money from 
 the principal, refused to do so, and delayed until the principal became in- 
 solvent, such refusal was held a defense to the surety, either at law or in 
 eqxiity.^ But this doctrine is believed to be a departure from the English 
 law, and has been held with great strictness by the courts of New- York. 
 Thus, in a later case,' the court held that this neglect of the creditor to sue 
 for his debt, after being notified to do so by the surety, would not dis- 
 charge the surety, if the principal was insolvent at the time such notice 
 was given. And when the circuit judge charged, that the term solvent, 
 in law, meant that " a man was able to pay all his debts from his own 
 means," or that his property was in such a situation that all his debts 
 
 • Elwood V. Dfeffendorff, 5 Barb. 398. IIT. Eddy v. Traver, 6 id. 521. Wilkes 
 
 " Mathews v. Aiken, 1 Oomst. S96. v. Harper, 2 Barb. Ob. 338. 
 
 " Olason V. Morris, 10 ,J. E. 524. Onr- * See ante, and cases. , 
 
 tis V. Tylei^, 9 Paige, 432. Heatb v. Hand, " Sarly v. Elmore, 2 Paige, 497. Wag- 
 
 1 id. 329. La Grange v. Merrill, 3 Barb, man v. Hoag, 14 Barb. 232. 
 
 Ob. R. 625. Ontario Bank v. Walker, 1 = King v. Baldwin, 17 J. R. 384. Pain 
 
 Hill, 662. Oheesborongb v. Millard, 1 J. v. Packard, 13 id. 174. The People v. 
 
 Oh. 409. Sandford v. McLean, 3 Paige, Jansen, 7 id. 382. 
 
 ' Herrick v. Borst, 4 Hill, 650. 
 
112 Of Account. [Ch. 2. 
 
 might be collected out of it by legal process,," the charge was approved. 
 In another case, the couft of errors held, that to discharge a surety on the 
 ground of the omission of the creditor to proceed against the principal 
 debtor when requested so to do, it must appear that the principal was 
 solvent at the time of the request, within the jurisdiction of the state 
 in which the suit against the surety is instituted, and that the creditor, 
 without any reasonable excuse, neglected or refused to proceed, until the 
 principal debtor became insolvent and unable to pay.' In delivering the 
 opinion of the court of errors, which was unanimous, the chancellor said : 
 " In Pain v. Packard, (13 J. R. 174,) the supreme court decided, that the 
 surety was discharged when the principal debtor was perfectly responsi- 
 ble at the time the debt became due, and the creditor, although requested 
 by the surety, refused to proceed and collect his debt, until the princi- 
 pal became insolvent. This decision was made without argument, and 
 two at least of the judges who concurred therein, afterwards expressly 
 dissented from it, and declared themselves satisfied it was wrong. It 
 was also overruled by Chancellor Kent in King v. Baldwin, (2 J. Ch. R. 
 564,) and although Ch. J. Spencer afterwards succeeded in the court of 
 errors (17 J. R. 386) in reversing the decree of the chancellor, it was in 
 opposition to the votes of all the other justices of the supreme court who 
 took part in the decision. The decision was made by the casting vote of 
 the president, against the opinions of some of the most distinguished law- 
 yers in the state, who were then members of the court as senators. It 
 also stands in opposition to the decisions of most, if not all, of the states in 
 the union, where the question has arisen. (Davis v. Huggins, 3 N. H. 
 231. Frye v. Barker, 4 Pick. 382. Buchanan v. Bordley, 4Har. <fcMc- 
 Hen. 41. Croughton v. Duvall, 3 Call's B. 69. Moore v. Brousard, 
 20 Mart. R. 277. Lenox v. Prior, B Wheat. 524.) In Pennsylvania, 
 where they have no court of chancery to enable the surety to proceed in 
 his own name to compel payment by the creditor, it has, after much hesi- 
 tation, been decided, that where the principal is solvent, the surety will 
 be discharged if the creditor does not proceed and collect the debt on 
 request, or prevent the surety to proceed in his own name. (Dehuff v. 
 TCurbit's Ex'r, 3 Yeates, 157. Cope v. Smith's Ex'rs, 8 Serg. & R. 110. 
 Gardner, adm'r, v. Ferree, 15 id. 28.) In another case the supreme 
 court refused to extend the principle of Pain v. Packard, and King v. 
 Baldwin, to the case of a surety by covenant under seal, to pay rent in 
 case the tenant made default. The court below overruled a plea, in an 
 action on the covenant, which plea stated that the defendant requested 
 
 ' Warner v. BeardBley, 8 Wend. 194. 
 
CL 2.] EXONEKATTON. 113 
 
 the plaintiff to proceed and collect the rent then due by an immediate dis- 
 tress of the tenant's goods, and thereby relieve the surety, but that the 
 plaintiff refused so to do, though he well knew that the circumstances of 
 the tenant were becoming desperate, and that the rent could not be col- 
 lected by any other process than by distress, and the supreme court 
 afSrmed the judgment.' 
 
 The doctrine of the cases of Pain v. Packard, and King v, Baldwin, are 
 probably still to be followed in New- York, though they are not to be ex- 
 tended. That it is in conflict with the English cases, is very obvious.* 
 In a late ease the supreme /;ourt said, giving time or accepting a compo- 
 sition does not discharge the surety, if all remedies against the principal 
 are reserved.' 
 
 It has been made a question, whether the recovery of a joint judgment 
 at law against the principal and surety does not put an end to the relar 
 tioH of principal and surety, and thenceforth make them both principal 
 debtors. This was so held by the late supreme court ; and, consequently, 
 after the recovery of the judgment, evidence was held inadmissible to 
 ehow that one was surety, and that he was discharged, by any subsequent 
 dealing with the principal.' On a subsequent trial it was held, in the 
 present supreme court, that when a judgment is obtained on a demand 
 against principal and surety, and a levy thereon is made, on the property 
 of one of the debtors, which levy is relinquished on accepting, by the 
 creditor, of a bond and mortgage against the principal debtor, and a re- 
 ceipt in full of the judgment is thereupon given, that it operates to 
 discharge the surety.' This decision recognizes the rights of the surety 
 after, as well as before judgment. And the same doctrine has been as- 
 serted by the chancellor and court of errors.' The case of La Farge v. 
 Herter was brought a third time before the supreme court, when it was 
 distinctly held, that in this state, equity recognizes and protects the rela- 
 tion and rights of a surety, after as well as before judgment. And the 
 same rule extends to courts of law.' The right of subrogation, although 
 originating in courts of equity, is now fully recognized as a legal right ; 
 and any act of the creditor which interferes with that right, and is a fraud 
 upon it, operates to discharge the surety, as well at law as in equity. Of 
 
 » Knggles v. Holden, 3 Wend. 216' ' Wagman v. Hoag, 14 Barb. 232. 
 
 "Pitman on Prin. and Surety, 196. ■* La Farge v. Herter, 3 Denio, 157. 
 
 Briokwood v. Aniss, 5 Taunton, 614. ' S. 0., 4 Barb. 346. 
 
 Wrigbt V. Simpson, 5 Ves. 734, and see ° Bangs v. Strong, 10 Paige, 11 ; aff. on 
 
 dissenting opinion of Van Vechten, sen- error, 7 Hill, 250. 
 
 ator, in King v. Baldwin, 17 J. E. 897, ' La Farge v. Herter, 11 Barb. 159. 
 where tlje cases are collected. 
 
 i^Q. JUK. 15 
 
114 ~ Of Account. [C^- 2' 
 
 course, if such extension of time by tlie creditor be with the knowledge 
 dftd assent of the surety, it takes the case out of the rule. These prin- 
 ciples were all approved and affirmed on appeal by the court of appeals 
 at the' December term, 1853.' It follows that, in this state, the recovery 
 6f a-joint judgment against principal and surety does not merge the sure- 
 tiship of the surety, and render him a principal debtor. His rights will 
 nevertheless be protected and enforced. 
 
 - It has already been said if the creditor, by a valid agreement, gives 
 time'to the principal, the surety is discharged. In a late case in the court 
 of appeals of New- York, it Avas said by Bronson,J., and Jewett, C. J., 
 that an agreement to forbear the payment of the debt in consideration of 
 a usurious premium paid for such forbearance is void, and therefore cannot 
 operate to discharge the sureties.' But the decision of that point was not 
 essential to uphold the decree under review, and the other six judges gave 
 no opinion upon it. 
 
 An usurious agreement, though declared to be void, is not a nullity hke 
 an agreement brought about by actual fraud, or by a perjury. It falls 
 under the class of constructive frauds, as being in contravention of public 
 policy, and no one can avoid it except the party who is the victim of the 
 usury, or one who stands in legal privity with him.' Such agreement 
 to give time is a colorable obstruction to the surety's right, and should, 
 on principle, operate to discharge him. Where it does not appear by the 
 face of a promissory note, made by several makers, in what relation the 
 parties stand to each other, it may be shown by parol evidence.* Adding 
 the word " principal," or " surety," as the case may be, affords evidence of 
 the relationship, and notice thereof to the whole world.' Prima facie, sev- 
 eral 'sureties who sign the iv)te of their principal, at different times, with- 
 out communication with ^ each other, are bound to contribute equally to 
 the payment of the note, as between themselves. And consequently, 
 when one of two sureties pays the whole, he may recover a moiety from 
 his co-surety, in case the principal be insolvent." 
 
 " A party who is about to become surety upon a note already executed 
 by the principal and other sureties, may regulate the terms of his 
 suretiship to Suit himself He may contract to be a co-surety with 
 others who had executed the instrument, or to be as between him and 
 
 ' Sets 4 Selden's Rep. 21 id. 195. Norton v, Ooon, 3 Denio, ISO; 
 
 ' Vilas V. Jones, 1 Comst. 274. S. 0., 2 Seld. 33, 39. 
 " Post V. Bank of Utioa, 7 Hill, 391. ' Carpenter v. King, supra. 
 
 * Carpenter v. King, 9 Met. 515. Baker " Norton v. Cook, 2 Seld. 33. 
 T. Briggg, 8 Pick. 122. Harris v. BrooTcs, ' Id. 39. 
 
Ch. 2.] Contribution. Party Wall. 115 
 
 them, surety alone, not^ co-surety witli them, and thus exempt himself 
 from liability to contribute.' But such special contract, varying the 
 ordiaary relationship of surety, cannot be proved by parol. The reason 
 for this distinction is thus stated by Gray, J., in Norton v. Coons, already 
 cited : " As between the makers of the note and the payee, their rights 
 and liabilities are regulated by the terms of the contract as expressed ; 
 as between the sureties, the contract is implied from their signatures to 
 the note, so that the whole contract as expressed and implied is, in short, 
 an agreement by the several obligors to pay the note at maturity, and if, 
 upon default of its being paid, either of the sureties pay it, the others 
 shall contribute, each his equal proportion of the amount paid, less the 
 share of the one who has paid the whole. In the one case, the parties have 
 defined their liabilities in express terms ; in the other, the law has de- 
 fined them, and in terms equally express ; and thus settles, as between 
 the sureties, the legal effect of subscribing their names to the note. 
 They are each chargeable with knowledge of the? legal liability incurred 
 as between themselves by, the execution of the note, and should there- 
 fore be regarded as standing in the same relation to each other, and 
 bound by the samerule they would be if the legal effect of their con- 
 tract had been fully written above their signature." 
 
 The learned judge, however, admits that parol evidence of extrinsic 
 facts is admissible to rebut t^ie presumption arising from the face of the 
 instrument, that all are principals and equally bound to contribute. But 
 " he denies that you can go further, and show by parol, not by extrinsic 
 facts, an agreement varying the operation of the contract as defined by 
 law-and subscribed to by him, and thus in effect made his written agree- 
 ment. The law having defined the rights and obligations of the sureties 
 as between themselves, their signatures establish their assent to it, and 
 the contract is thus made as clear and certain as if the whole had been 
 written. It is the highest and best evidence of their agreement, and the 
 reason of the rule that excludes parol evidence from being received to 
 vary the operation of a contract, wholly written by the parties, applies 
 with all its force to this case." 
 
 The doctrine of contribution has been extended to a great variety of 
 cases. Qui sentit commodum sentire debet et onus ;'' he who derives 
 the advantage ought to sustain the burden, is a maxim of equity founded 
 
 ' Harris v. Warner, IS Wend. 400. = 2 Inst. 489. Broom's Maxims, 558. 
 Norton v. Ooon, 2 Seld. 39. Pitman on » 
 
 Prin. and Surety, 148, 9, 
 
116 Of Account. [Ch. 2, 
 
 jn •wisdom and good sense. The doctrine is not so mucli founded oq 
 contract, as on the principles of equity and justice, that where the inter- 
 est is common, the burden also should be common ; and this principle 
 that equality of right requires equality of burden, has a more effectual 
 operation in a court of equity than in a court of law. Chancellor Kent 
 applied the doctrine to the case where there was an old party wall be- 
 tween two owners of houses, in the city of New-York, and one of them 
 being desirous to build a new house on his lot, pulled down the old house, 
 and with it the party wall, which was ruinous, and rebuilt it with his new 
 house. The chancellor held, that the owner of the adjoining house and 
 lot was bound to contribute ratably to the expense of the new wall of 
 partition.' It was conceded, in that case, that the adjoining owner was not 
 bound to contribute to building the new wall higher than the old, nor, 
 if materials more costly, or of a different nature were used, was he 
 bound to pay any part of the extra expense.^ 
 
 In his opinion, in that case, the chancellor says : " In the case before 
 me, the parties had equality of right and interest in the party wall, and 
 it became absolutely necessary to have it rebuilt. It was for the equal 
 benefit of the owners of both houses, and the plaintiff ought not to be 
 left to bear the whole burden." The inconvenience of the repair was 
 inevitable, and as small and as temporary as the nature of the case admit- 
 ted. There is more difficulty in enforcing contribution at law than in 
 equity. Contribution depends rather upon principles of equity, than 
 upon contract. " The obligation arises not from the agreement, but from 
 the nature of the relation, or qvasi ex contractu ; and as far as courts of 
 law have, in modern times, assumed jurisdiction upon this subject, it is, 
 as Lord Eldon said, upon the ground of an implied assumpsit.'" Lord 
 Eldon in the same case said, that the modem jurisdiction of the courts of 
 law was attended with difficulties, when the sureties were numerous ; and 
 especially, since it has been held that separate actions may be brought 
 against different sureties, for their Respective proportions. 
 
 The statute in relation to division fences, between the owners of adjoin- 
 ing lands, is based upon the doctrine that where there is an equality of 
 benefit, there should be an equality of burden.* At common law, the 
 tenant of a close was not bound to fence against an adjoining close, unless 
 by prescription ; and if bound by prescription to fence his close, he was 
 not bound to fence against any cattle but such as were rightfully in the 
 
 ' Campbell v. Messier, 4 J. Oh. R. 834. = Oraythorne v. Swinburne, 14Ves.l64. 
 'Id. * 1 E. S. 353, part 1, ch. 9, tit. 4, art. 4. 
 
Ch. 2.] Division Fences. 117 
 
 adjoining close. If not bound at cominon law to fence his land, he was 
 nevertheless bound at his peril, to keep his cattle on his own ground, and 
 prevent them from escaping.' 
 
 In the ordinary case of a turnpike running through the lands of an 
 individual, neither the turnpike company or the public has. any interest 
 in protecting such road against encroachments of cattle or other animals 
 from the adjacent lands, as such encroachments will not materially affect 
 the ordinary use of the road. And neither law or equity will compel the 
 turnpike company to maintain fences, from which it is to derive no bene- 
 fit. The case is otherwise with respect to a railroad company, which 
 has a deep interest in securing their road against the encroachments of 
 cattle, sheep and swine from the adjacent lands. If the owners of the 
 adjacent lands elect to let their lands lie open to commons, the railroad 
 company will of necessity be compelled to make the whole of the partition 
 fence, to secure itself against encroachments from cattle. If such owner 
 finds it necessary to have his land enclosed, either for the purpose of 
 cultivation, or to restrain his own cattle, he will have an equitable claim 
 upon the railroad company to make and support one half of the partition 
 fence. Although the case does not come within the letter of the statute, 
 (1 R. S. 353, § 30,) it comes clearly within the equitable principle adopted 
 by the legislature ; that when the owners of adjoining lands are to receive 
 a common benefit from a division fence between them, each shall contribute 
 a moiety towards the erection and support of such fence, so long as the 
 common benefit continues. In this case, says Chancellor Walworth, 
 equity will compel the railroad company and the adjoining land owner 
 to contribute equally towards the erection and maintenance of the par- 
 tition fence. And if either shall neglect or refuse to make or repair his 
 or their proportion of such fence, after reasonable notice, the other may 
 make the whole, and recover the contributory share of the one so neg- 
 lecting or refusing, in the equitable action of assumpsit.* 
 
 This principle of equitable contribution between the owner§ of adjoin- 
 ing lands is not new ; neither does it depend for its support upon express 
 statutory provision. It was originally derived from the civil law, and is 
 
 ' 3 Kent's Com. 438. Rust v. Low, 6 v. Lathrop, 5 Greenl. 866. Staokpole v. 
 
 Mass. 90. HoUady v. Marsh, 3 Wend. Healy, 16 Mass. 33. 
 142. Per "Walworth, Oh. in Clark v. ' In matter of E. and S. Railroad, 4 
 
 Brown, 18 Wend. 221. Bush v. Brain- Paige, 554, 555. 
 ard, 1 Co wen, T8, 79, and note. Little 
 
118 Of Account. [Ch. 2. 
 
 constantly acted upon in those countries where the equitable principles 
 of the civil law regulate the rights of vicinage.' 
 
 In New- York; the general railroad act of 1850 has cast the burden of 
 erecting and maintaining the fences, on the sides of their roads, upon the 
 respective companies, and has prescribed the height and strength of 
 such fence.'' In most of the states, it is presumed, there are statutory- 
 regulations with respect to division fences, which supersede, in a great 
 measure, a resort to a court of equity for relief. 
 
 The provisions of the New- York revised statutes, (1 vol. 353,) are made 
 more particularly with reference to lands occupied for farm purposes in 
 the country. They are inapplicable to the division fences and walls 
 between adjoining lots in cities and villages, except so far as they estab- 
 lish the equitable principle, that equality of benefit should be accompa- 
 nied with equality of burden. Hence, in most large cities and towns, 
 there are special regulations, by which the rights and remedies of the 
 owners of urban property are guarded.' It is presumed, that in the 
 absence of special laws on the subject, the equitable rule, requiring each 
 party to bear his just proportion of a common burden, would be enforced 
 in towns and villages where the settlements are compact. 
 
 The doctrine of contribution has been applied to charges created upon 
 land divided into lots. Thus, where six separate lots were mortgaged, 
 and the mortgagee, afterwards, released four of the lots from the mort- 
 gage, leaving the original debt to stand charged on the remaining two, 
 it was held that the two lots were chargeable with their ratable propor- 
 tion only of the original debt and interest, according to the relative value 
 of the six lots at the date of the mortgage. When land is charged with 
 a burden, each part ought to bear its due proportion of the charge; and 
 equity will compel each part to a just contribution.* And the creditor 
 cannot, by any act or assignment of his, deprive the co-creditors or owners 
 of the land of their right of contribution against each other .« The court 
 will compel the creditor to aid the contribution, by assigning his bonds 
 and securities to the debtor or surety, or owner of the land whom he 
 charges with the whole demand, and he will not be permitted, voluntarily, 
 to defeat this right.' 
 
 ' In matter of E. and S. Railroad, 4 * Stevens v. Cooper, 1 J. Ch. K. 426. 
 
 Paige, 556. Code Nap. art. 653 to 670. » Id. 
 
 Bell's Law of Scotland, 279, art. 1086. • Millard v. Clieesborongh, 1 J. Ch. E. 
 
 " Act of 1850, p. 283, § 44. 409. 
 
 • 3 Kent's Com. 438, et seq. and notes. 
 
CL 2.] CoNTRIBtlTION. INSURANCE. 119 
 
 If a man be seised of three acres of land, and is bound by a judgment, 
 or recognizance, <fcc., and aliens one acre to A., another to B., and the 
 third descends to his heir ; in this case, if the execution be sued only 
 against the heir, he shall not have contribution, for he comes to the 
 land without consideration, and sits in the seat of his ancestor. But if 
 the alienation be to two or more standing in equali jure and one is com- 
 pelled to pay, he shall have contribution. The same rule applies to par- 
 ceners, who make partition. If one has to pay the whole charge, she 
 shall have contribution against her companions.' 
 
 The rule in this" state, with respect to successive purchasers of parts 
 of land mortgaged, is different. /Thus, Chancellor Walworth in one 
 case said, where lands belonging to several persons are covered by a 
 mortgage given by the person from whom they all derive title, the lands 
 last sold by him are first liable to satisfy the incumbrance ; and the sev- 
 eral parcels must be sold by the master in the inverse order of their 
 alienation. "When the purchase money has been paid in good faith, the 
 first purchaser has the prior equity, although the consideration was not 
 actually paid until after other portions of the land had been purchased 
 and paid for by the vendee.' 
 
 The ground of the distinction is that a mortgage is a specific lien, and 
 is analogous to a rent charge issuing out of the land, whereas a judgment 
 is the personal obligation of the debtor, and the charge on the land is 
 only by way of security. Hence, it seems, that there is no contribution 
 between purchasers in succession, at different times, of different parts of 
 the estate of a judgment debtor.^ Whenever the judgment creditor dis- 
 poses of a part of the land held by the judgment, the purchaser has an 
 equitable right to have the judgment discharged out of the residue of the 
 property. Although a subsequent purchaser has an equal equity to have 
 the land which he has purchased and paid for discharged from the lien of 
 the judgment, as against the debtor, the first purchaser, having the prior 
 equity, must be preferred. Where the equities are equal, and neither 
 has the legal right, the maxim, qui prior est in tempore potior est in jure, 
 prevails.* 
 
 As the object of insurance is to indemnify the insured, it follows that, 
 in the case of double insurance, if one underwriter pays the entire loss, 
 he is entitled to contribution from the other underwriters. The insured 
 
 • Herbert's case, 3 Co. 12. ' Glows v. Dickinson, 5 J. Ch. E. 235. 
 
 ' Gouveneur V. Lynch, 2 Paige, 300. Gill v. Lyon, 1 id; 447. 
 
 * James v. Hubbard, 1 Paige, 228, 234. 
 
120 Of Account. [Ch. 2. 
 
 in suet case, though entitled to but one satisfaction, may recover the 
 whole amount of his loss against either of the underwriters, and leave 
 the latter to recover a ratable satisfaction from the other insurers. 
 "Where a policy of insurance contains a clause, that " in case of any other 
 insurance upon the property insured, whether prior or subsequent to the 
 date of the policy, the insured should not, in case of loss or damage, be 
 entitled to demand or recover on the policy any greater portion of the 
 loss or damage sustained, than the amount insured shall bear to the 
 whole amount insured on said property," the defendant is not entitled to 
 contribution against other underwriters who have signed a similar policy. 
 In such case each is bound to pay his proportionate share of the loss, 
 which will be adjusted when the verdict is given.^ But if one policy 
 contain this clause, and two others do not, and the latter have paid a 
 sum equal to the whole loss, this will be a defense to the action on the 
 policy containing this clause, the underwriter of which is liable to -con- 
 tribute to the underwriters who have paid.' 
 
 In case of a fire policy for $20j000, on a stock of goods worth $35,000, 
 a fire broke out which endangered the goods, to save which, and the 
 building in which they were contained, some blankets were pi'ocured 
 by the insured to hang on the side of the building, which, in that situation 
 being constantly kept wet, served to check the fire, and contributed ifta- 
 terially to save the building and its contents. The blankets being injured 
 in this manner so as to be of no value, the assured claimed the whole 
 value of them against the underwriters, who were, by the terms of the 
 policy, liable for the whole damage to the goods by fire, not exceeding the 
 amount insured. 
 
 On the part of the underwriters, it was contended, that as the blankets 
 were used and destroyed to save the building as well as all the goods, the 
 several parties interested were liable proportionally for this damage ; that 
 is, the underwriters, on the $20,000 insured ; the assured on $15,000, 
 not covered by the policy, and on $5,000, the value of his lease of the 
 building ; and the owner of the building on $5000, the value of the 
 building over that of the lease ; making the underwriters liable for four 
 ninths of the damage to the blankets. 
 
 The court said, that the assured could claim only on the ground of a 
 sacrifice made for the preservation of the property, for a proportion of 
 which they are equitably, if not legally, entitled to recover. They ad- 
 
 ' Lucas V. Jefferson Ins. Co.,- 6 Cowea, ' Id. 685. 
 637. Murdook v. Chenango Co. Mut. Ins. = Lucas v. Jefferson Ins. Co. 6 Cowen, 
 Co. 2 Comst. 210. 635. 
 
Ch. 2.] Contribution. Average. Jettison. 121 
 
 mit that in general, on fire policies, it was customary to pay the whole 
 loss. ' But as the claim for destroying the blankets was not within the 
 contract, it was reasonable that the assured should bear a proportion of 
 the sacrifice made for the common benefit. And they accordingly held 
 that the loss should be borne in proportion to the amount which the par- 
 ties had at risk.' In this case, the relief was granted in an action at 
 law ; but it is obvious that equity will, in general, afford a more compre- 
 hensive remedy and embrace all the parties in a single action, which was 
 not done in the case in Pickering. 
 
 The doctrine of average gives rise to a variety of questions, which are 
 ill suited to an action at law ; but which can be more Conveniently settled 
 in a court of equity. Thus, expenses incurred, sacrifices .made, or dam- 
 ages sustained for the common benefit of ship, freight and cargo, consti- 
 tute general or gross average. A loss which is not incurred for the 
 general benefit is a particular average, or total loss.^ 
 
 In order to constitute a basis for a contribution for an expense or 
 sarcifice, it must be occasioned by an apparently imminent peril. The 
 goods must not be swept away, by the violence of the waves, for then 
 the loss falls upon the merchant or his insurer, but they tnust be inten- 
 tionally sacrificed, by the mind and agency of man, for the safety of the 
 ship and the residue of the cargo.' 
 
 Damage to vessels by collision with each other, whether with Or with- 
 out fault, or by fault of both vessels, not being an intentional sacrifice, 
 is not a subject of general average by the laws of England or the 
 United States.^ 
 
 A jettison is the throwing overboard of a part of the cargo, or any article 
 on board of a ship, or the cutting and casting away of mast, spars, rig- 
 ging, sails, or other furniture, for the purpose of lightening or relieving 
 the ship in case of necessity or emergency. A jettison is only permit- 
 ted in case of extreme severity, as T^^here the ship is in danger of per- 
 ishing by the fury of a storm, or is laboring upon rocks or Shallows, or is 
 closely pursued by pirates or enemies ; and then, if the ship and residue 
 of the cargo be saved by means of the sacrifice, nothing can be more 
 reasonable, than that the property saved should bear its proportion of 
 the loss.= Where it becomes necessary for the general safety to make 
 
 ' Welles V. Boston Ins. Co. 6 Pick. » 3 Kent's Com. 283. 
 182. * 2 Phil, on Ins. 66. 
 
 » 2 Phil, on Ins. 64 ' 3 Kent's CcJm. 233. 2 Phil. Ins. 68, 69. 
 
 Eq, Jub. 16 
 
122 Op Account. [Ch. 2. 
 
 a jettison, or other sacrifice of a part of the interests at risk, the loss 
 must be made good by contribution to be assessed upon what is saved of 
 ship, cargo and freight. 
 
 Before contribution takes place, it must appear that the goods sacri- 
 fiiced were the price of safety to the rest ; and if the ship be lost, not- 
 withstanding the jettison, there will be ground for contribution.' 
 
 In this country, the terms partial loss and average are understood 
 by commercial men, to mean the sanle thing ; and average, other than 
 general, includes every loss for which the underwriter is liable, ex- 
 cept general average and total loss, which last includes total loss with 
 salvage. Partial loss, includes both general and particular average, and 
 the latter term includes all partial losses, except general average.'' 
 
 The principle of this general contribution is known to be derived from 
 the ancient law of Rhodes, being adopted into the Digest of Justinia,n, 
 with an express recognition of its true origin. The rule of the Rhodian 
 law is this : " If goods are thrown overboard in order to lighten a ship, 
 the loss incurred for the sake of all, shall be made good by the contri- 
 bution of all.'" The circumstances under which they may be thrown 
 overboard have already been stated. The principle has been confined to 
 a sacrifice of property, and the contribution, to the property saved there- 
 by.^ A full discussion of the law of average belongs more appropriately 
 to a treatise on insurance, or on the law relative to merchants' ships and 
 shipping, and the law on the subject will be found in books devoted to 
 those subjects. The present object is to show, how difficult it often is 
 to apportion and adjust losses of this nature in an action at law. By 
 the general rule of the maratime law, in all cases of general average, 
 the ship, the freight for the voyage, and the cargo on board, are to con- 
 tribute to the reimbursement for the loss, according to their relative 
 values. The value of the property sacrificed for the common preserva- 
 tion must first be ascertained, and then the value of the several inter- 
 ests which are to contribute to the loss. If the property sacrificed were 
 owned by one man, and the property saved by another, the rights could 
 be adjusted with reasonable facility in a single action at law. But it 
 will generally happen, that the property sacrificed for the common good 
 is owned by different individuals, and that saved belongs to different and 
 perhaps hostile interests. In such cases it will be found impracticable 
 
 •8 Kent's Com. 285. Crocket v. = Abbott on Ship. 574, 575, Story &Per- 
 
 Dodge, 3 Fairf. 190. kins' ed. 
 
 " Per Walworth, Oh. in "Wadsworth v. * Story's Eq. Jur. § 490. 
 Pacific Ins. Co. 4 Wend. 89. 
 
Ch. 2.] Contribution. Lien. Salvors. 123 
 
 to adjust tlie whole matter, in a single action at law, in such manner as 
 to bind all the parties, and to apportion the loss among each according to 
 the principles applicable to the case. A court of equity affords facilities 
 for such apportionments, which will be sought in vain in the ordinary 
 proceedings of a common law action.' 
 
 The law of lien often gives rise to matters of account, and for this 
 cause, as well as for the reason that it prevents a multiplicity of actions, 
 equity entertains jurisdiction. A lien is a right to possess and retain 
 property until some charge attaching to it is paid or discharged. It is 
 not, in strictness, either a jiw in re or ajiis ad rem; that is, it is not a 
 property in the thing itself, nor does it constitute a right of action for 
 the thing. It more properly constitutes a charge upon the thing.' At 
 common law there can be no lien without possession.^ And a party hav- 
 ing a lien upon goods looses it when he voluntarily parts with the pos- 
 session.'' In maratime law, liens exist independently of possession, 
 either actual or constructive. In courts of equity, the term lien is used 
 as synonymous with a charge or incumbrance.^ Thus judgments of 
 courts of record, which by statute " bind and are a charge" upon the 
 lands of the debtor from the time of docketing,* are said, in equity, to be 
 a lien upon such lands. And an execution against goods and chattels, 
 which by statute " bind" the same from the delivery thereof to the proper 
 officer to be executed, are treated in equity as liens upon the said prop- 
 erty from the said time.'' 
 
 When property is found dereliot at sea, or elsewhere, within the limits 
 of admiralty and maritime jurisdiction, the salvor, by whose services, 
 personal risk and exposure it is saved, has a right to hold it until paid his 
 reasonable salvage ; and when taken from him wrongfully, even by the 
 general owner, he has a right to bring replevin in a common law court, 
 without resorting to admiralty.' The question whether personal risk is 
 incurred, in saving the property, does not affect the right of the salvor, 
 but only the amount of his compensation. These principles were applied, 
 by the New-York court of appeals, in the case of the loss of a quantity 
 of wool, on board of a canal boat, which was occasioned by the sinking of 
 
 » Hallett V. Bonrfield, 18 Ves. 187. * Peck v. Jenness, per Grier, J, 7 How. 
 
 » Story's Eq.Jur. §506. Bnrrell'sLaw 620. 
 , Diet. tit. Lien. "^ 2 E. S. 859, § 3. 
 
 ' Hammond v. Barclay, 2 East. 235. ' Id. 365. 
 Peck V. JTenness, 7 How. 620. ' Baker v. Hoag, 3 Seld. 5S5. 
 
 ' McParland v. Wheeler, 26 Wend. 467. 
 
124 Op Account. [Ch. 2. 
 
 tbe canal boat, on the Hudson river, where the tide ebhs and flowsj by a 
 collision with a steamboat. The plaintiff, by whose exertions, expense 
 and personal risk the property was recovered, was held to have a lien 
 thereon for his reasonable salvage.' Had this property belonged to dif- 
 ferent owners, it is obvious that a court of law could not have apportioned 
 the salvage among the parties in interest, as conveniently as a court of 
 equity. 
 
 Factors and agents have a lien on property intrusted to them until 
 some demand of theirs be satisfied. This lien is created either by com- 
 mon law, or by the usage of trade, or by the express agreement, or par- 
 ticular usage of the parties. The convenience of commerce and natural 
 justice are on the side of liens.'' A lien, said Tindal, Oh. J.,^ can only 
 arise in one of three ways ; either by express contract ; by a general 
 course of dealing in the trade in which the lien is set up ; or from the 
 particular circumstances of the dealing between the parties. 
 
 A lien is often sustained in equity when it is unknown in law, as in the 
 sale of land, where a lien exists for the unpaid purchase money.* It is 
 superior to the lien of a prior judgment against the vendee.^ It exists 
 against subsequent purchasers and incumbrancers, when they advance no 
 new consideration, or have notice.^ A person having an equitable lien 
 upon land for the unpaid purchase money, may come into a court of equity 
 in the first instance to enforce such lien ; without resorting to a suit at 
 law to recover the amount.' Thus if, upon the sale of a farm, the pur- 
 chaser should pay for the half of it in good money, and the other half in 
 the worthless bills of a broken and insolvent bank, from which nothing 
 could be obtained, the vendee fraudulently representing such bills to be 
 good and collectible, the vendor would have the right to elect, either to 
 rescind the sale and have a reconveyance of the land, or to charge the 
 land itself with the half of the purchase money which remained unpaid, 
 as an equitable lien upon such land.^ A lien is not confined to mere lar 
 bor and services on the specific property, or connected therewith, but is 
 often, by the usages of trade, extended to cases of a general balance of 
 
 ' Baker v. Hoag, 8 Seld. 565. » Arnold v. Patrick, 6 Paige, Sia 
 
 ' Per Lord Mansfield, in Green v. " Hallock v. Smith, 3 Barb. S. 0. E. 
 
 Fai-mer, 4 Burr. ^221 267. 
 
 ' Ferguson v. Norman, 5 Bing. N. 0. ' Bradley v. Bosley, 1 Barb. Oh. E. 152. 
 
 V8. » Id. per Walworth, Ch. 1 Barb. Oh. B. 
 
 * Garson v. Green, 1 J. Oh. E. 808. 152. 
 Clark V. Hull, 7 Paige, 382. 
 
Ch. 2.] Contribution. Paying off Incumbrances. 125 
 
 account in favor of factors and others.' The mere relation of principal 
 and factor does not confijie the rights of the latter to recover for advancesj 
 to the mere fund deposited, ; but such advances are made on the joint 
 credit of the fund; and the person ; to which this qualification may be 
 added, that, from the nature of the Contract, resort must first be had to 
 the fund, if it can be made available, before the principal is liable." 
 
 In most of the cases which have been put, the adjustment of the lien 
 leads to matters of account ; and often, from the complicated nature of 
 the transaction, and the multiplicity of parties, a resort to equity is ren- 
 dered indispensable. The subject of lien will recur under other heads, 
 where it will be viewed in other aspects. 
 
 The question sometimes arises, as to the party by whom the interest 
 on mortgages or other incumbrances should be paid. The estate may be 
 held by a tenant for life, subject to an incumbrance, and the question 
 whether he is bound to pay any, and if so, what portion of the principal, 
 or any portion of the interest, may be important to be known. In Eng- 
 land, the general rule seems to be, that the tenant for life of an equity 
 of redemption is bound to keep down and pay the interest, but he is un- 
 der no obligation to pay off the principal.' 
 
 The distinction in the English books between the payment of an in- 
 cumbrance by tenant in tail, and tenant for life, is of no practical use with 
 us, since estates in tail are converted into estates in fee. The payment 
 of an incumbrance by tenant in tail was treated; like a payment by the 
 owner of the fee, because, by fine or recovery, he could become the abso- 
 lute owner of the estate. Being in possession, his payment would ex- 
 tinguish the incumbrance. It is otherwise with respect to tenant for life. 
 His paying ofi" an incumbrance would make him a creditor to the amount 
 paid, upon the ground that with his limited interest there can be no pre- 
 sumption, that he could intend to exonerate the estate.* 
 
 It is the duty of the tenant for life to pay the ordinary taxes, out of 
 the rents and profits of the estate, but it seems that assessments going 
 to the permanent benefit of the inheritance must be apportioned.^ The 
 former rule in England, with respect to the discharge of incumbrances, 
 between the tenant for life and the remainderman or reversioner, was to 
 require the tenant for life to pay one third, and the remainderman or re- 
 
 ' Paley on Agency, by Dunlap, ch. 2, ' Saville v. Saville, 3 Atk. 463, 464 
 
 §. 3, p. 1,27. , Shrewsbery v. Shrewsbery, 1 Ves. jr. 283. 
 
 ^ Oorlies v. Oumming, 6 Oowen, 184, * Id. 
 
 per Woodworth, J. Burrell v. Philips, 1 ' Cairnea v. Chabert,,3 Ed, Oh. K. 812. 
 GaU. 360. Peish v. Dickson, 1 Mason, 9. 
 
126 Of Account. [CL 2. 
 
 versioner tlie other two thirds." But the rule is now entirely exploded 
 in England, and a far more reasonable one adopted. It is this : that the 
 tenant shall contribute, beyond the interest, in proportion to the benefit 
 he derives from the liquidation of the debt, and the consequent cessation 
 of annual payments of interest during his life, (which of course will de- 
 pend much upon his age, and the computation of the value of his life ;) and 
 it will be referred to a master, to ascertain and report what proportion of 
 the capital sum due the tenant for life, ought, upon this basis, to pay, 
 and what ought to be borne by the remainderman, or reversioner.* If 
 the estate is sold to discharge incumbrances, (as the incumbrancers may 
 insist that it shall be,) in such a case, the surplus beyond what is neces- 
 sary to discharge the incumbrances is to be applied as follows : the in- 
 come thereof is_ to go to the tenant for life, during his life ; and then the 
 whole capital is to be paid over to the remainderman, or reversioner.' 
 
 These principles are applicable in actions for the partition of lands, 
 wherever the estate of a tenant in dower, or by the curtesy, or for life 
 to the whole or any part or share of the premises in question exists, and 
 the person entitled to such estate is mado a party. In such cage the 
 court is to consider first whether such estate ought to be excepted from 
 such sale, or whether the same should be sold. If a sale of the premises 
 including such estate be ordered, the estate and interest of every such 
 tenant or person is declared to pass thereby ; and the purchaser holds the 
 premises free and discharged from all claims by virtue of any such estate 
 or interest, whether the same be to any undivided share of a joint tenant, 
 or tenant in common, or to the whole or any part of the premises sold. 
 Upon such sale being made of any such interest or estate, the court 
 directs the payment of such sum in gross, out of the proceeds thereof, 
 to the person entitled to such estate in dower, tenancy by the curtesy, or 
 tenancy for life, as shall be deemed, upon the principles of law applicable 
 to annuities, a reasonable satisfaction for such estate or interest, and 
 which the person so entitled shall consent to accept in lieu thereof, by an 
 instrument under seal, duly acknowledged or proved.^ A similar rule 
 exists for satisfying the tenant in dower, where the estate of a de- 
 ceased person is sold by order of the surrogate for the payment of debts." 
 
 ■ Powell on Mortgages, ch. 11, p. 311. an v. Backhouse, 2 Ves. & Beame, 65, 
 
 SLrewabery v. Shrewsbery, 1 Ves. jr. 70, 79. 
 
 238. Faulkner v. Daniel, 3 Hare, 199, = See same oases, and Lloyd v. Johnes, 
 
 21T. 9 Ves. 87. 
 
 ' Story's Eq. § 487. Powell on Mortg. ■* 2 R. S. 826, §§ 60, 51, 52. Harwood 
 
 ch. 11, pp. 811, 812. Mr. Coventry, note v. Kirby, 1 Paige, 469. 
 
 M. White V. White, 4 Ves. jr. 83. 9 id. '2 R. S. 106, § 86. 
 554. Perrhuyn v. Hughs, 5 id. 107. Al- 
 
Ch. 2.] Apportionment. Eviction. 127 
 
 Questiona of this nature can, in general, be better adjusted in a court of 
 equity than at law. Their application will b^ seen, ■when we come to con- 
 sider the subject of partition and dower. 
 
 Apportionment forms another head of equity jurisdiction, referable 
 to the action of account. Lord Coke says, this cometh of the word portio, 
 quasi partio, which signifieth a part of the whole, and apportion signi- 
 fieth a division, or partition of a rent, common, &c., or a making of it into 
 parts.' 
 
 There are several points to be noticed in relation to the apportionment 
 of rents. 
 
 There are two modes of apportioning rent, one by granting the rever- 
 sion of part of the land out of which the rent arises ; the other, by 
 granting part of the rent to one person, and part to another.' 
 
 It was a principle of the common law, that an entire contract could not 
 be apportioned. The convenience of mankind dictated the necessity of 
 an apportionment of rent, in a variety of cases.. It may sometimes be 
 apportioned by the act of the parties, and sometimes by the act of the 
 law.' Thus, where the grantee of a rent-charge releases part of the rent 
 to the tenant, such release will not extinguish the whole rent, but the 
 part not released will still continue.* 
 
 As a rent service is something given by way of retribution to the 
 lessor, for the use and occupation of the land demised, the lessor's title 
 to the rent is founded on the principle, that the land demised is enjoyed 
 by the tenant. If, therefore, the tenant be by any means deprived of the 
 land demised, the obligation to pay the rent ceases. If the tenant be 
 evicted from the lands demised to him, he will thereby be discharged 
 from payment of the rent.' The tenant is liable in such cases to the 
 payment of rent which became due before the eviction, because the obli- 
 gation continues |ffi long as the consideration. But if the tenant be 
 evicted by a title paramount, before the day appointed for the payment, 
 such eviction will discharge the tenant from the payment of any part of it.* 
 
 The rules on the subject of eviction were thus stated by Spencer, senator, 
 
 ' Co. Litt. 147, b. ' Cruise's Dig. tit. Bent, oh. 3, § 1. 
 
 ' Bliss V. Collier, by Abbott, Ch. J., 5 Bordman v. Osborn, 23 Pick. 299. 
 Barn. & Aid. 876. " Cruise's Dig. Rent, cb. 3, § 2. 
 
 ' Cruise's Dig. tit. Eent, ch. 3, § 22. 
 'Id. 
 
128 Of Account. [Ch: 2. 
 
 in the court of errors of New- York :' " The lessor is not entitled to re- 
 cover rent in the following cases : 1st, If the lands demised be recovered[ 
 by a third person, by a superior title, the tenant is discharged from the 
 payment of rent after eviction by such recovery : 2d, If a part only of 
 the lands be recovered by a third person, such eviction is a discharge only 
 of so much of the rent as is in proportion to the value of the land evicted : 
 3d, If the lessor expel the tenant from' the premises, the rent ceases : 
 4th, If the lessor expel the tenant from a fart only of the premises, the 
 tenant is discharged from the payment of the wlwle rent ; and the reason 
 for the rule, why there shall be no apportionment of the rent in this case, 
 as well as in that of an eviction by a stranger, is, that it is the wrongful 
 act of the lessor himselfj that no man may be encouraged to injure or dis- 
 turb his tenant in his possession, whom, by the policy of the feudal law, he 
 t>ught to protect and defend." In the case just cited, it was held, by the 
 court of errors, that where the lessor was guilty of bringing lewd women 
 under the same roof .with the demised premises, though in an apartment 
 not demised, by which nocturnal noise and disturbance were made ; and, 
 in consequence, the lessee quitted the premises and remained away with 
 his family, it was held that this was evidence to go to the jury under a 
 plea of eviction by the landlord, in answer to a declaration for the rent ; 
 and that the jury might, upon such evidence, find the plea true ; and 
 that the lessor would thereby be -barred of his rent, the same as on an 
 actual or physical entry and expulsion of the tenant." 
 
 It is said, in Bacon's Abridgment, that there are a variety of opinions 
 whether, when the lessor enters wrongfully into a part of the demised 
 premises, the entire rent shall not be suspended during the continuance 
 of such tortious entry ; and it is there said to be the better opinion, and 
 the settled law at this day, that in such caSe the tenant is discharged 
 from the payment of the whole rent, till he be restored to the whole 
 possession.' 
 
 And when the books speak of an apportionment, in case when the 
 lessor enters upon the lessee in part, they are to 1% understood when 
 the lessor enters lawfully, as upon a surrender, forfeiture, or the like. 
 Thus, if a man be seised of two acres, one in fee and another in tail, and 
 makes a lease for life or for years of both acres, and dieth, and the issue 
 in tail avoideth the lease, the rent shall be apportioned.* 
 
 When the action to recover rent is founded on the privity of estate, 
 
 ' Dyett V. Pendleton, 8 Oowen, Y28. ' Bacon's Abr. tit. Rent, M. 
 
 " Ogilvie V. Hull, 5 Hill, 62, 54. Gil- ■> M. Co. Litt. 148, b. 
 hooley v. "Washington, 4 Oomst. 217, 
 
Ch. 2.] Apportionment, Eviction. 129 
 
 the eviction of the tenant by a paramount title, from a part of the demised 
 premises, may be set up by him as a defense pro tanto. In such cases 
 the rent is apportioned.' And when apportioned, it is to be done accord- 
 ing to the value of the land.^ If there be no evidence of the value of 
 the land, the rent may be apportioned according to the quantity of land 
 held by the tenant. Prima facie^ it was said, all the land was of equal 
 value. The defendant might have so pleaded as to require the appor- 
 tionment to be made according to value,' 
 
 Although a tenant cannot deny the right of his landlord to demise, nor 
 can he set up an outstanding title against him, he may become the pur- 
 chaser of the reversion, at a sheriff's sale, on an execution against the 
 landlord, or he may acquire the interest of his landlord in the reversion 
 as a redeeming creditor, when the reversion has been sold on an execu- 
 tion against the landlord. If t^he interest of the landlord, thus acquired 
 by the tenant, extends to the whole of the demised premises, he may set 
 it up in bar of the recovery of the rent ; but when it includes only a 
 part of the demised premises, it operates only ia diminution of damages. 
 The tenant, in the latter case, may demand an apportionment.' So where 
 a person who has a rent service, purchases part of the land out of which 
 the rent issues, the whole of the rent service is not thereby discharged, 
 but only a part, proportioned to the quantity of the land purchased.' So, 
 also, a person who has a rent service may release a part of it, which will 
 not determine the whole rent, but only the pajt released.' 
 
 The assignee of the reversion of part of the demised premises may 
 maintain covenant against the lessee for not repairing.' A reversioner 
 may sell his estate in parts to different persons, each of whom will be 
 entitled to a separate portion of the rent ; or if the reversioner die, leay- 
 ing several children, his estate will descend to them by operation of 
 law, and each wiU be entitled to his share.^ 
 
 If a moiety of a reversion be extended by an elegit, the rent shall be 
 apportioned, and the lessor shall still enjoy half the rent as incident to 
 tlje reversion that remains in him,' A rent service at common law, 
 is apportioned either on severance qf the land from which it issues, or of 
 the reversion to which it is incident. If it be in its nature indivisible, 
 
 ' Stevenson v. Lambard, 3 East, 575. ' Cruise's Dig. tit. Eent, ch. 3, § 6. Bao. 
 
 Lansing v. Van Alstyne, 2 Wend. 561. Abr. tit. Bent, M. 
 
 ' Bac. Abr. tit. Rent, M. ' Twyman v. Piokard, 2 Barn. & Aid. 
 
 ' Van Eensselaer v. Jones, 2 Barb. S. 105. 
 
 0. E. 653. ' Bank of Penn, v. 'Wiae, 3 Watts, 
 
 * Nellis V. Lathrop, 22 Wend. 121. 894. 
 
 • Cruise's Dig. tit. Eent, ch. 3, § 6. ° Bao. Abr. Eent, M. 
 Eq. Jpe. 17 
 
130 Op Account. [Ot- 2. 
 
 as one day's service, and the lessee assigns a part of the premises, the 
 service multiplies.' Rent is apportioned among assignees according' to 
 the value of their portions, and not the number of acres held by them 
 respecfTvely.2 And if there be no proof of value, the apportionment will 
 be according to the quantities.' 
 
 The doctrine of the common law, that an entire contract could not be- 
 apportioned, was limited to personal contracts, and did not extend to such 
 as run with the land.* Even in the latter cases, equity did not appor- 
 tion rent as to time. Thus, where tenant for life, leased for term of years, 
 rendering rent half yearly," and died in the middle of the half year, equity 
 could not apportion the rent.^ Upon this occasion, Lord Chancellor Cow- 
 per said : " There are several remedial statutes relating to rents, but this 
 is casus omissus ; the law does not apportion rent in point of time, and 
 I do not know that equity ever did it. This is an accident which the 
 judgment creditor might have guarded against by reserving the rent 
 weekly ; so that it is his fault, and becomes a gift in 1^ to the tenant." 
 The statute of 11 Gr. 2, ch. 19, § 15, has in certain cases altered the law 
 as to the apportioning of rents in point of time. The substance of this 
 statute has been adopted in New-York, where it is enacted, that every 
 person entitled to any rents, dependent upon the life of any other, may, 
 notwithstanding the death of such other person, have the same remedy 
 for the recovery of all arrears of such rent, that shall be behind and 
 unpaid at the death of such other person, as he might have had if such 
 person was in full life. The statute also gives the same remedy to the 
 executors or administrators of the landlord that their testator or intestate 
 might have had, if living. It provides further, that where a tenant for 
 life, who shall have demised any lands, shall die, on or after the day when 
 any rent becomes due and payable, his executors or administrators may 
 recover from the under tenant the whole rent due ; if he die before the 
 day when any rent is to become due, they may recover the proportion of 
 rent which accrued before his death.« The statute of 4 William 4, ch. 22, , 
 in afhendment- of the act of 11 Geo. 2, declared that all rents service, 
 rents charge, and other rents, annuities, dividends, and all other "pay- 
 ments, made payable at fixed periods, should be apportioned, and it 
 
 > Van Eensselaer v. Bradly, 3 Denio, * Van Eensselaer v. Bradly, 3 Denio, 
 
 185. 141, per Jewett, J. 
 
 ' Van Eensselaer v. Gallup, 6 Denio, ' Jenner v. Morgan, 1 P. Wms. 892. 
 
 454. • M E. S. 747, §§ 20, 21, 22. 
 
 ' Van Eensselaer v. Jones, 2 Barb. S. 
 0. E. 648. 
 
Ch. 2.] Appoprtionment. Common. 131 
 
 provided for the recovery of the apportioned parts from the last period 
 of payment. This latter statute has not been adopted in this state. 
 
 Annuities and servants' wages, like rents, were not in general appor- 
 tionable at common law, and the rule seemed to he applicable to all peri- 
 odical payments becoming due at fixed intervals. Thus, when the plain- 
 tiff's testator was appointed bailiff to receive rents, under a promise of 
 £100 per annum for his services, and having performed the service for 
 three quarters of a year, he died. An action was brought by his execu- 
 tors to recover £75 for the three quarters of a year. But the court held 
 that the time could not be divided, and that without a full service for the 
 year there could be no recovery.' The case was decided upon the anal- 
 ogy to the law, which did not allow an apportionment of rent as to time. 
 But this rule has been relaxed in modern times, and wages, it is under- 
 stood, may be apportioned upon the principle that such is the reasonable 
 construction of the contract of hiring.' But this is only when there is 
 no express contract for a particular time ; for, in the latter case, the con- 
 tract being entire, performance is a condition precedent to a right of 
 recovery.' 
 
 Although annuities are not, in general, apportionable, yet if the annui- 
 tant dies within the year or quarter, as the case may be, and the annuity 
 was given for maintenance, in infancy, or for the separate maintenance of 
 a feme covert, equity will apportion the annuity up to the day of the an- 
 nuitant's death, on the principle that the allowance was necessary, and 
 on the presumed intention of the parties.^ 
 
 The right of common sometimes requires the application of the doc- 
 trine of apportionment. Common is a right or privilege, which one or more 
 persons have, to take or use some part or portion of that which another per- 
 son's lands, waters, woods, «fcc., produce. The most general and valuable 
 kind of common is common of pasture, which is a right of feeding one's 
 beasts on another's land. This kind of common is either appendant, ap- 
 purtenant, because of vicinage, or in gross.' Common appendant is a 
 right annexed to the possession of land, by which the owner thereof is 
 entitled to feed his beasts on the wastes of the manor, and can only be 
 claimed by prescription.' Common appurtenant does not arise from any 
 
 ' Countess of Plymouth v. Throgmor- * Hay v. Palmer, 2 P. 'Wms. 501. 
 
 ton, 1 Salk. 65.' herd v. Wilson, 4 Hare's R. 395. 
 
 ' Per Lawrence, J. in Cutler v. Powell, ° Cruise's Dig. tit. 23, Com. §§ 1, 2, 3. 
 6 D. & E. 326 ; but see 2 Leigh's N. P. • Id. §§ 3, 4. Watts v. Coffin, 11 J. K. 
 
 86, '87 and 88, and the cases cited. 498, per Van Ness, J. 
 
 » Reab v. Moore, 19 J. E, 337. 
 
132 0^ AccotTKT. [Ch. 2, 
 
 connection of tenure, tilt must be claimed by grant or prescription, and 
 may be annexed to lands lying in different manors from those in which it 
 is claimed. This species of common,- though frequently confounded -with 
 common appendant, differs from it in' many circumstances. It may be 
 created hy grant, whereas common appendant can only arise from pre- 
 scription. It may be claimed as annexed to any kind of land, whereas 
 common appendant can only be claimed on account of ancient arable land. 
 It may be not only for beasts usually commonable, such as horses; oxen 
 and sheep, but likewise for goats, swine, &c. It may be for cattle with- 
 out number, or for a certain number only. 
 
 Common by cause of vicinage is in fact only a permissive right, in- 
 tended to excuse wjbat in strictness is a trespass. It can only exist be- 
 tween two townships or manors adjoining one another ; not where there 
 is intermediate land. 
 
 Common in gross is a right which must be claimed by deed or prescrip- 
 tion, and has no relation to land, but is annexed to a man's person. This 
 may be either for a certain or an indefinite number of cattle. The full 
 consideration of this subject belongs to a treatise on real property. The 
 above is enough for the present purpose.' 
 
 Common of pasture when it is appendant,m»j be apportioned ; because 
 it is of common right. In the case of common appurtenant, if the per- 
 son entitled to it purchases part of the land, wherein the common is to 
 be had, there shall be no apportionment ; because common appurtenant is 
 against common right. But this kind of common shall be apportioned by 
 alienation of part of the land to which it is appurtenant.* This doctrine 
 was followed in New- York in an early case.' The principle which runs 
 through the cases is this : that the land which gives a right of common 
 to the owner shall not be so alienated as to increase the charge or burden 
 on the land out of which the common is to be taken ; and that when the 
 right is extinguished or gone, as to a portion of the land entitled to com- 
 mon, it is extinct as to the whole ; for,- in such case, common appurtenant 
 cannot be extinct in part, and be in esse for part, by the act of tiie 
 parties. Hence, where the owner of land, out of which the common is ap- 
 purtenant, purchases part of the land out of which the common is to be 
 taken, or the owner of part of the land out of which common is to be 
 taken purchases the land, or part of the land, to which the common- is ap- 
 
 » The above is abridged from Cruise's 1 Inst. 121, a. Tyiringham's case, iEep* 
 Digest, title Common. 37, a. 
 
 " Cruise's Dig. tit. 23, OOm. §§ 36, 87. = Livingston v. Tea Broek, 1-6 J. R. 1^ 
 
 Wyat Wild's case, 8 Co. 78,^ h. 
 
Ch. 2.] Rents and Profits. 133 
 
 purtenant, the fight of common becomes extinct, not only as to the part, 
 but as to the whole. 
 
 The grantee in fee of a right of common in gross, and •without number, 
 tnay alien it, and it descends to his heirs ; but it cannot be aliened in 
 such a way as to give the entire right to several persons, to be enjoyed by 
 them separately. And where a right of common in gross descends to 
 several persons as tenants in common, or parceners, it seems it cannot 
 bo divided between them, but there must be a joint enjoyment of it.' 
 
 Common of estovers cannot be apportioned ; and if the person enti- 
 tled to cojnmon, convey his land to which it is appurtenant, part to one 
 person, and part to another, the right is extiliguished." 
 
 Common of pasture, whether appendant or appurtenant, is appor- 
 tionable.' 
 
 Rents and profits, not only when arising from privity of contract, but 
 from adverse claims and titles asserted by different persons, sometimes 
 resolve themselves into matters of account. The dealings between land- 
 lord and tenant are often complicated, arising out of stipulations for 
 repairs and iinprovements, for which compensation is to be made, or 
 from the mode of payment of the rent itself. 
 
 Courts of equity, when resorted to for the purpose of an account of 
 mesne profits, will, in many cases, consult the principle of convenience.^ 
 Lord Hardwicke, in a bill brought for a share in the New river waterj 
 and for an account and mesne profits, from the death of the father 
 of the defendant's wife, said, that though the plaintiffs had not estab- 
 lished their title at law, he was of opinion they were proper in 
 , coming into equity for the remedy, in order to have a discovery of the 
 deed, under which the title arises, to have it produced at all trials at law, 
 and to have attested copies. A bare discovery not being sufiicient, 
 some relief is necessary ; if there was any doubt of the title, I would 
 send them to law. But the bill is to have the benefit of the settle- 
 ment, and for proper directions necessary to be given concerning it; 
 and therefore, though it is matter of law, yet the court will determine 
 upon it notwithstanding, for it is not necessary for every legal question 
 to be sent to law. There is likewise another relief prayed, an account 
 of rents and "profits. 
 
 1 Lyman v. Abeel, 16 J. R. 30. ' Van Rensselaer v. Radcliff, 10 Wend. 
 
 = Van Rensselaer v. Radcliff, 10 "Wend- 639. 
 
 639, Livingston v. Ketchum, 1 Barb. S. " Fonb. Eq. B. 1, eh. 8, § 8, note k. 
 
 O. R. 592. Townsend v. Ash, 3 Atk. 337. 
 
134 Of Account. [OL 2. 
 
 In all cases where questions have arisen about shares in water-works, , 
 the parties have constantly come into equity for mesne profits; for 
 though it is a legal estate and corporeal inheritance, yet no one proprietor 
 could receive the profits himself, but the company or their oflScers are 
 the common hand to receive profits, and there is no other way to come 
 &t it 
 
 Where an estate is under such a management, though the legal estate 
 is in the proprietors, it would be absurd to send the plaintifis to law, for 
 it would be difficult to bring ejectments for a thirty-sixth part and bits of 
 land in several counties, and to bring actions of trespass against the terten- 
 ants, would be very extraordinary, as the management is in the company. 
 And therefore, in point of remedy, there cannot be a stronger case to 
 come here for an account of profits.' 
 
 The eases in which an account of rents and profits is decreed, where 
 the legal estate has not been previously established, proceed upon that re- 
 spect which, in justice, is due to the interest of persons, who, by infancy, 
 fraud, &c., have been prevented from pursuing their legal rights.^ In 
 general, the rule in equity is the same as at law ; and as trespass will 
 not lie for the mesne profits till possession is recovered, so neither can a bill 
 be brought for an account thereof till then.' A court of equity will de- 
 cree an account against an executor, upon the special ground that the 
 plaintiff was prevented from recovering in ejectment by an injunction at 
 the instance of the occupier, who ultimately failed both at law and in 
 equity.* If the court did not decree an account in such case, its inter- 
 ference would work a wrong, because the plaintiff might have recovered 
 at law, in the lifetime of the testator, if he had not been so restrained. 
 
 Courts of equity do not suffer a right to be without a remedy, and 
 therefore, where there is no remedy at law, equity will certainly grant one ; 
 especially where the right is clear, but from the want of particular evidence, 
 unavailable at law.' Thus, if the deed by which rent is created be lost, or 
 the premises or the days of payment are stated to be uncertain, courts of 
 equity will interpose.^ So where a distress is obstructed by fraud, or there 
 are no demesne lands on which to distrain.' Or where no distress can be 
 made, the subject being of an incorporeal nature.^ The remedy to collect 
 rent by distress having been abolished in this state,' it would seem that 
 
 ' TowAsend v. Ash, 3 Atk. 337. » Fonbl. Eq. B. 1, ch. 8, §'8, note k. 
 
 " Fonbl. Eq. B. 1, oh. 8, § 3, note k. " Id. Holder v. Chambry, 3 P. Wms. 
 
 " Norton v. Erecker, 1 Atk. 525. Pult- 257, per Talbot, Ch. 
 ney v. Warren, 6 Ve3. 91. ' Davy v. Davy, 1 Ch. Cas. 14T. 
 
 - * Pultney v. Warren, 6 Ves. 78. ' Thorndike v. Allington, 1 id. 79. 
 
 " Law8 of 1846, p. 869. 
 
CL 2.] Rents and Profits. 135 
 
 equity stould interpose in all cases, wlien the right is clear, and the remedy 
 at law doubtful, or inadequate. In an early case, before Chancellor Kent, 
 before the right of distress was abolished, the chancellor said : " Rent is 
 recoverable in equity, where the remedy has become difficult or doubtful 
 at law, or where the premises are uncertain."' He approved of the remark 
 of Lord Thurlow, that where the remedy at law was lost, or deficient, or 
 the premises were uncertain, equity would interfere ; and he granted relief 
 in the case before him, on account of the " apparent perplexity and 
 uncertainty of the title, and of the extent of the defendant's responsi- 
 bility."' 
 
 But a court of equity will not aid the landlord in collecting bis rent, 
 while he is proceeding with an ejectment suit against the tenant to recover 
 the premises for a condition broken ; the remedy in equity being wholly 
 inconsistent with the other proceeding.' The landlord, after he has re- 
 entered for a forfeiture of the lease, may recover the rent which accrued 
 previous to such forfeiture, in an action of debt or upon the covenants in 
 the lease. But for rent which became due subsequently to that time he 
 cannot recover as landlord ; and his only remedy is to proceed for the 
 mesne profits against the lessee, or other person, who has held the posses- 
 sion of the premises adverse to his claim.^ 
 
 At law the assignee of the lessee, who after enjoying the premises, 
 assigns to a stranger, is not liable for the rent which accrued during his 
 occupancy, for the reason that there is no privity of contract to charge 
 him as assignee. The landlord is therefore without a remedy at law. 
 But a court of equity will require the assignee to account for the rent' 
 which accrued during the time he enjoyed the land, and before he assigned.'' 
 But equity will not coflapel the assignee to perform the covenants which 
 run with the land, after he has assigned, any more than a court of law. 
 By the assignment, the assignee escapes from the rent which accrues 
 subsequent to such assignment.^ 
 
 Where the plaintiff had a rent charge settled upon her for her jointure, 
 with power of distress, and there being great arrearages of rent and no 
 sufficient distress on the premises to countervail the rent, she filed a bill 
 against the devisee of the inheritance, that a sufficient distress might be 
 set out, or that she might be permitted to hold and enjoy the land until 
 
 ' Livingston v. Livingston, 4 J. Oh. E. iant v. Diomede, 2 Atk. 546, 548. City 
 
 287. of London v. Eichmond,'2 Vern. 421. 
 
 " Stuyvesant v. Davis, 9 Paige, 428. ° Same cases. !Fonbl. Eq. B. 1, oh. 5, 
 
 'Id. § 5, and note y. 
 * Treaokle v. Cole, 1 Vern. 165. Val- 
 
136 Of Account. [Ch. 2. 
 
 satisfied of the arrears and the growing payments. But the lord keeper 
 denied relief, declaring that the law never gives any other remedy than 
 that which the party has provided for himself ; and the remedy here being 
 only by distress, and not to enter upon and hold the land, declared he 
 would not relieve the plaintiiF, unless some particular fraud had been, 
 proved ; as letting the land li&fresh, or depasturing it in the night time, 
 on purpose to prevent a distress ; and if that were the case, such fraud 
 by tenant for life ought not to turn to the prejudice of the remainderman, 
 to charge the land with arrears, which incurred in the time of the tenant 
 for life.' This case -shows that the fraudulent deprivation of the landlord 
 by the tenant, of the remedy by distress, will give jurisdiction to a court 
 of equity to afford relief In another case, the master of the rolls afforded 
 relief to the devisee of a rent charge, with power of distress, and decreed 
 satisfaction of the rent, and that the plaintiff enter and. enjoy the prem- 
 ises until satisfied.^ The case is too loosely reported, to determine on what 
 principle it turned. As it was decided only a month after the preceding 
 case, it is probable that the remedy by distress had been fraudulently 
 defeated, or that the demise contained a clause of re-entry, on non-pay- 
 ment of the rent. 
 
 Where a lease was made of a coal mine to A., reserving rent in trust 
 for five others, to each of them one-fifth. The five partners entered 
 and worked the mine, and took the benefit of it, and sometime afterwards 
 the lessee became insolvent, and the mine unprofitable, and it was flung 
 up and abandoned by the partners. It was decreed that the lessee should 
 pay to the plaintiff the contributive moneys he had received from each 
 of the cestui que trusts towards working and carrying on the coal mine ; 
 and if that -should not prove sufficient, the cestui que trusts that were 
 living, and the representatives of such as were dead, and who were aU 
 before the court, to contribute each one-fifth towards satisfying the 
 plaintiff the arrears of rent that had incurred during the time they had 
 concerned themselves in taking the profits.' In this case, it is obvious 
 that there was no remedy at law against the cestui que trusts, and it is 
 perfectly reasonable, as they enjoyed the profits, while the lease was a 
 beneficial one, so they should bear the loss. Qui sentit commodum, serir 
 tire debt et onus. 
 
 It is said by respectable authority, that if the use of the thing be en- 
 tirely lost, or taken away from the tenant, the rent ought to be abated or 
 
 ' Ohampernon v. Gubbs, 2 Vern. 882. " Olavering v. Westley, 8 P. Wms. 402. 
 = Foster v. Foster, 2 id. 886. 
 
Ch. 2.] Apportionment, by act op God, 137 
 
 apportioned, because the title to the rent is founded upon this presumption, 
 that the tenant enjoys the thing during the contract 5 and therefore, if 
 part of the land be surrounded or covered with the sea, this being the 
 act of God, the tenant shall not suffer by it, because the tenant, without 
 his default, wants the enjoyment of part of the thing, which was the con- 
 sideration of his paying the rent ; nor has the lessor reason to complain, 
 because, if the land had been in his own hands, he must have lost the ben- 
 efit of so much as the sea had covered.' 
 
 If, however, part of the land be burnt with wild fire, that shall make 
 no abatement or apportionment of the rent, because the use of the land 
 is not thereby taken away, and the land may be again restored to its form- 
 er fertility by the care and industry of the tenant.'' 
 
 On the same principle, a tenant of premises demised by a written 
 agreement is liable for rent accruing due after the premises have been 
 burnt down, and are no longer habitable,' And there is no eq[uity in favor 
 of the lessee in such case, though not liable to repair in case of fire, for 
 an injunction, against an action under the contract for payment of rent, 
 upon the destruction of the house by fire.* 
 
 It is well settled, as has been stated elsewhere, that the tenant is liable 
 on his covenant to pay rent, though the premises be destroyed by fire.* 
 And he is so liable, in debt, on the privity of estate, there being a cove- 
 nant to pay rent in the lease.' 
 
 In one case where the landlord, after the burning of the house, received 
 the insurance money, but neglected to rebuild, and sued the tenant for 
 rent accruing subsequent to the fire. Lord Northington said, the justice 
 of the case was so clear, that a man should not pay rent for what he cannot 
 enjoy, and that occasioned by an accident which he did not undertake to 
 stand to, that he was surprized it should be looked upon as so clear a thing, 
 that there should be no defense to such an action at law ; and that such 
 a case as this should not be considered as much an eviction, as if it had 
 been an eviction of the title j for the destruction of the house is tjie de- 
 struction of the thing. Though this covenant does not bind the defend- 
 ant to rebuild, yet when an action is brought for rent after the house is 
 feurnt down, there is a ground of equity for an injunction, till the 
 house is rebuilt.' The action was compromised, and no decree was pro- 
 nounced. 
 
 '■ Bacon's Abr. tit. Eent, M. p. 520. ' Mark v. Cooper, 2 Ld. Bay. 1477; S. 
 
 » H. 0. 2 Str. 763. 
 
 = Baker v. Haltzapffell, 4 Taunt. 45. ' Hallet v. Wylie, 3 J. K. 44. 
 
 * Haltzapffel v. Baker, 18 Vea. 115. ' Brown v. Qnilter, Ambl. 621. 
 Belfour v. Weston, 1 D. & E. 311. 
 Eq. Jub. 18 
 
138 Op Account.- |Ch. 2. 
 
 This case is distinguishable from those cited,- in several respects. The 
 landlord having received the insurance money for the house which was 
 burnt, the plaintiff insisted that the landlord should either rebuild the 
 premises, or let him, the tenant^ hate the insurance money toward satis- 
 faction of his loss. The landlord in his answer insisted on his right to 
 the insurance money, and the rent,- hut offered to discharge the plain- 
 tiff from the lease. This the chancellor considered raised an equity in 
 his favor, and was about to give directions accordingly, when the matter 
 was compromised. Van Ness, J., in Hallet v. Wylie, speaks of this case 
 as turning on its special circumstances, as does Buller, J., in Doe v. 
 Sandham.' 
 
 The cases on this subject might be greatly multiplied, but enough has 
 been said to show the nature and extent of equity jurisdiction in matters 
 of rent, and the principles on which it is founded. 
 
 Although the action of waste is a common law action and the proceed- 
 ings thereon are regulated by the statute," there are many cases in which 
 equity interposes its remedial powers, and in which the action terminates 
 in account. In an early case the supreme court of New-York held, that 
 where wild and uncultivated land, wholly covered with wood and timber,- is 
 leased, the lessee may fell part of the wood and timber, so as to fit the 
 land for Cultivation, without being liable for waste ; but he cannot cut 
 down all the wood and timber, so as permanently to injure the inheritance. 
 And to what extent the wood and timber, on such land, may be cut down, 
 without waste, is a question of fact for the jury, under the direction of 
 the court.' That action was at law. 
 
 Courts of equity frequently interfere by injunction to stay waste ; and 
 a mere threat to commit waste. is sufficient to grant an injunction upon; 
 it not being necessary for the plaintiff to wait till the waste is actually 
 committed.* This subject will be more fully treated under the head of 
 Injunction. 
 
 In New- York, it was held, in a recent case, that the doctrine of waste, 
 as understood in England, is.not applicable to a new and unsettled country. 
 It was said that where the whole of a farm, when leased, is in a wild and 
 uncultivated state, with the exception of a few acres, and for the use of it 
 the lessee agrees to pay rent, the parties will be held to have intended 
 that the lessee should be at liberty to fell part of the timber, in order to fit 
 the land for cultivation. But when a tenant cuts trees upon the demised 
 
 • 1 T. R. 705, 709. • Jackson v. Brownson, 7 J. E. 227. 
 
 ■ 2 E. 8. p. 888. • Gibson v. Smith,, 2 Atk. 183. 
 
Ch. 2.] Charge anb Discharge. 139 
 
 premises, not for the purpose of preparing the land for cultivation, but 
 for the sake of the profit to be derived from the sale of the timber, he is 
 guilty of waste. The right to account, it was said in the same case, for 
 waste already committed, is incidental only to the right to file a bill to pre- 
 vent future waste. A bill will not lie merely for an account for waste, as 
 the plaintiff has an ample remedy at law. And when a bill is filed to 
 prevent future waste, and also to prevent the removal of timber already 
 cut, the court will not, unless under very special circumstances, grant an 
 injunction to prevent the removal of timber already cut.' 
 
 When the mischief will be irreparable and the defendant is insolvent, 
 it is now of course for equity to afford relief." The jurisdiction of equity 
 is firmly established.' The remedy th«re is broader than at law ; and 
 equity will interpose in many cases, and stay waste, when there is no 
 remedy at law. If there was an intermediate estate for life between the 
 lessee for life and the remainderman or reversioner in fee, the action of 
 waste would not lie at law ; for it lay on behalf of him who had the next 
 immediate estate of inheritance. Chancery will interpose in that case ; 
 and also when the tenant affects the inheritance in an unreasonable and 
 unconscientious manner, even though the lease be granted without im- 
 peachment of waste.* 
 
 We shall now bring this chapter to a close, with a few remarks on the 
 general subject of an account. 
 
 It is laid down in the treatises on equity practice, that under a decree 
 for an account, both parties are actors, and either may proceed before the 
 master in taking it.' 
 
 The mode of taking an account before the master was settled by Chan- 
 cellor Kent, in a leading case,' at an early day, in which the English prac- 
 tice, by charge and discharge, was recognized, The practice was adopted 
 of requiring the parties to bring in their respective objections to the re- 
 
 ' Kiddv. Dennison,6Barb.9. Watson ' Sarles v. Sarles, 3 Sand. Oh. E. 601. 
 
 V. Hunter, 5 J. Oh. E. 168. Spear v. Out- 4 Kent's Com. 76-^78. 
 
 kr, 4 How. Pr. E. 175. Livingston v. * Perrot v. Perrot, 3 Atk. 94. Aston 
 
 Livingston, 6 J. Ch. E. 497. v. Aston, 1 Ves. 264. Vane v. Barnard, 
 
 = Spear v. Cutler, 4 How. Pr. E. 175. 2 Vern. 738. 
 
 Winohip v. Pelts, 3 Pp.ige, 259. Hawley ' Hoifman's Master, 37. Fowl. Exoh. 
 
 V. Clowes, 2 J. Oh. Oas. 122. Hanson v. Pr. 2, 277. 
 
 Gardiner, 7 Ves. 308. Thomas v. Oakly, * Eemsen v. Eemsen, 2 J. Ch, E. 495. 
 18 Ves. 184. 
 
140 Of Account. [Oh. 2. 
 
 port, on being fumislied with a draft of it, and confining the parties in 
 their exceptions^ to the objections thus brought before the master, 
 
 ■ A charge is defined to be, a statement in writing of the items with 
 which the opposite partj should be debited, or should account for, or of 
 the claim of the party making it. It is more comprehensive than a claim, 
 which implies only the amount due to the person producing it, while a 
 charge may embrace the whole liabilities of the accounting party.' 
 
 Thus, in prosecuting a creditor's bill, the charge of the acting plaintiff 
 would contain all the receipts of the executor and his representatives, 
 while that of a creditor coming in under the decree, would include only 
 his own demand. Ob leaving the charge with the master, a summons was 
 taken: out for the opposite party to proceed upon the charge. On the at- 
 tendance before the master, the party supports his charge, item by item, 
 either by the pleadings, the examination of parties, or by evidence. If 
 the items, or any of them, in the charge are improper, the objection to 
 them is considered, in disposing of the charge \ and when the charges are 
 all allowed or disallowed, then the opposite party exhibits his discharge, 
 and takes out a summons for the opposing party to proceed upon it. The 
 discharge is not merely a defense to the charge j it is only a statement of 
 disbursements, and an ofi'set of counter-claims. In ease of delay by either 
 party, the other party takes out a warrant to proceed before the master.'' 
 
 The above, which was essentially copied from the English practice, leads 
 to numerous summonses and attendances before the master, and perhaps 
 warrants, and was superseded by Chancellor Walworth's 107th rule. By 
 that rule, all parties accounting before the master were required to bring 
 in their accounts in the form of debtor and creditor ; and any of the 
 other; parties who should not be satisfied with the accounts brought in, 
 were at liberty to examine the accounting party, upon interrogatories, as 
 the master might direct. Every charge, discharge or state of facts 
 brought in before a master, was required to be verified by oath as true, 
 either positively, or upon information and belief. 
 
 ., The chancellor decided, that wheli a party was required to bring in his 
 account before the master, in the form of debtor and creditor, under the 
 107th rule, he must bring in his whale account, and for the wMe time 
 for which he was accountable, as established by the decretal order of the 
 court. It must be accompanied by the usual affidavit of the party, that 
 the account, including both debits and credits, is correct, and that he 
 does not know of any error or omission in the account to the prejudice 
 of any of the other parties. In the same case, the chancellor said, that 
 
 ' Hoffman's Master, 86. ' Id. 38, 39. 
 
Ch. 2.] . Charge and Discharge. 141 
 
 one object of the 107 th rule was to prevent the delay and expense of a sep- 
 arate summons and attendance upon every proceeding in the master's office.' 
 
 In organizing the courts under the constitution of 1846, after the abo- 
 lition of the court of chancery, and the transfer of equity jurisdiction 
 to the supreme court, the 107th rule of Chancellor Walworth was not 
 retained. But it was provided by the 148th rule, adopted in August, 
 1847, that in cases where no provision was made by statute, or by the 
 rules, the proceeding in the court, in equity, should be according to the 
 customary practice, as it theretofore existed in the court of chancery, in 
 cases not provided for by statute or the written rules of the court. After 
 the adoption of the code of procedure, and the consolidation of the rules 
 of law and equity, there was the same saving of the customary practice 
 of the courts, in cases not provided for in the rules, or the code. 
 
 The practice in New- York, since the code, seems to require that such 
 matters of account, as cannot be conveniently tried by a jury, should be 
 referred to one or more referees, except when the trial is had before a 
 single judge. The trial by referees is conducted in the same manner, and 
 upon a similar notice, as a trial by the court. They have the same power 
 to grant adjournments as the court upon such trial.^ They must state 
 the facts found and the conclusions of law separately, and their decision 
 must be given, and may be excepted to and reviewed in like manner, but 
 not otherwise, and they may in like manner settle a case or exceptions. 
 The report of the referees upon the whole issue stands as the decision of 
 the court, and judgment may be entered thereon, in the same manner, as 
 if the action had been tried by the court. When the reference is to 
 report the facts, the report has the effect of a special verdict. 
 
 There may be cases, under the code, where the whole issues are not 
 referred. It is presumed that an account may be taken before a referee, 
 and the subsequent proceedings founded on his report, may be had before 
 the court. But the existing rules provide for no such case, nor do they 
 prescribe the manner in which an account in any case shall be taken. 
 The method by charge and discharge) and exceptions to the decision 
 of the referee, as in the former practice before a master, has become 
 inapplicable under the code. No doubt, either a judge or referee pos- 
 sesses the power of requiring the accounting party to bring in his account, 
 in the form of debtor and creditor, as heretofore. His power in this 
 respect is incident to his power over the subject. 
 
 Under the former chancery practice in New- York, upon a bill to open 
 a stated account, if errors or mistakes were distinctly charged, leave 
 
 > Story V. Brown, 4 Paige, 114. ' Code, 266 to 273. 
 
142 Of Account. • [Ch. 2. 
 
 would be given to surcharge ani falsify.^ And in this proceeding, the 
 party might take advantage of error in law, as well as error in fact.* 
 
 The terms surcharge and falsify, have a technical meaning. A sur- 
 charge is the statement of items omitted on the debit side of the account 
 of the accounting party, who has brought in his accounts in the mode 
 prescribed by the 107th rule of Chancellor Walworth, that is, by debtor 
 and credit. In other words, a surcharge supposes credits to have been 
 omitted which ought to be allowed to the other party.' A falsification 
 supposes that some item in the debits is entirely false, or in some 
 respects erroneous. Both terms imply that the balance of the account 
 is wrong, but they attribute the error to different causes ; the first to 
 the omission, of one or more items, with which the accounting party should 
 debit himself, or in other words credit his opponent, and the other to a 
 falsification, in whole or in part, of items which ought not to be charged.^ 
 
 An account made up and subscribed by the parties, containing the 
 material dealings of the parties, and purporting to be an account stated, 
 will, in general, be so treated by the court, and it will lie with the party 
 who impeaches it to point out omissions and mistakes, whether fraudulent 
 or accidental.^ \ But an account may become stated by lapse of time. 
 It has been often held, says Chancellor Kent, that if a party receives a 
 stated account from abroad, and keeps it by him for any length of time, 
 (one case says two years,) without objection, he shall be bound by it.° 
 
 In a case in the supreme court of the United. States, where to a bill 
 filed to set aside a stated account, on the ground of fraud, or to correct 
 errors, and the stated account was pleaded in bar, Ch. J. Marshall said 
 that the plea must be sustained, except so far as it may be in the power 
 of the other party to show, clearly, that errors have been committed in 
 the account. ) No practice, he observes, could be more dangerous than 
 that of opening accounts which the parties themselves have adjusted, on 
 suggestion supported by doubtful, or by only probable testimony. But, if 
 
 ' Stonghten v. Lynch, 2 J. Ch. R. 217. * Id. and Pitt v. Cholmondeley, 2 Ves. 
 
 Perkins v. Hart, 11 Wheat. 256. Kins- 565, 666. 
 
 man v. Barker, 14 Ves. 579. Mad. Oh. ' Troop v. Haight, 1 Hopk. 239. 
 
 Pr. 82, 83. "Murray v. Tolland, 3 J. Oh. R. 575. 
 
 ' Roberts v. Kuffin, 2 Atk. 112. Oon- 'Willis v. Jernegan, 2 Atk. 251. Tickell 
 
 eequa v. Fanning, 3 J. Ch. R. 587; S. C. v. Short, 2 Ves. 289. Freel^nd y. Heron, 
 
 on appeal, 17 J. R. 511. 7 Cranch, 147. 
 
 " Hoffman's Oh. Pr. 637, 522. 1 Barb. 
 Ch. Pr. 507. Story's Eq. § 535, 
 
Ch. 2.] . Stated Amount. 143 
 
 palpable errors be shewn, errors which cannot be misunderstood, the settle- 
 ment must be so far considered as made upon absolute mistake, or impo- 
 sition, and ought not to be obligatory on the injured party, or his rep- 
 resentatives, because such items cannot be supposed to have received his 
 assent. The whole labor of proof lies upon the party objecting to the 
 account, and errors, which he does not plainly establish, cannot be sup- 
 posed to exist.' 
 
 The prima facie presumption is in favor of an account which has been 
 stated by the parties, or become so by acquiescence. And the general 
 doctrine is well settled that the account will not be disturbed, except 
 there be fraud or mistake in the settlement, and that established by 
 clear proof,^ or there be errors which are palpable, or clearly proved.^ | 
 
 A party seeking to open a settled account, in a proceeding before a 
 surrogate for an account, should be able to show such a case as would 
 have enabled him to file a bill in equity to surcharge and falsify such 
 account.* 
 
 The court is not, in general, inclined to open accounts of long standing. 
 Stale demands are never favored in equity.' In a case before Chancellor 
 Kent, where a merchant, in embarrassed circumstances, borrowed money 
 at different times from his confidential clerk, who took various bonds and 
 securities for such loans, and for which, by agreement, he was to allow 
 usurious interest, and during the period of ten years the parties from 
 time to time came to a settlement of their accounts, and the merchant gave 
 his bonds and further securities for the balance of principal and interest, 
 the court ordered all the multiplied obligations and settlements to be set 
 aside, and the whole accounts at large to be opened between the parties 
 from the commencement of their deaHngs ; it appearing in this case that 
 there was proof not only of mistakes and differences in their accounts, 
 but there were many suspicious circumstances leading strongly to an infer- 
 ence of usury, oppression and fraud.* It was also a case where uridue 
 advantage was taken of the necessities of the principal, and where the 
 confidence, which the latter reposed in his clerk, was abused. 
 
 Before the statute of limitations was extended to demands recoverable 
 in equity, the court was unwilling to decree an account, where the 
 
 ' Chappedelaine v. Dechemaux, 4 Oran. ' Tilghan v. Tilghan, 1 Bald. 0. 0. E. 
 
 806. 495. Bolifner v. Weyman, 1 McOord's 
 
 ' Lee's Adm. V. Reed, 4 Dana, 112. Oh. E. 156. Gregory v. Forester, id. 318, 
 
 ' Baker v. Eiddle, Baldw. 0. 0. E. 418. 332. Moers v. White, 6 J. Ch. E. 360. 
 
 * Valentine v. Valentine, 2 Barb. Ch. " Barrow v. Rhinelander, 1 J. Ch. E. 
 
 K. 430, 436. 650. 
 
144 Op Account. [Ch. 2. 
 
 transactions had become obscure and entangled by delay and time. 
 There was, however, no precise and definite rule on the subject, but 
 each case was left to depend upon the exercise of a sound discretion upon 
 the circumstances.' 
 
 This matter is now regulated by the code. The limitation is now 
 six years ; but where relief is sought on the ground of fraud, in cases 
 which heretofore were solely cognizable in the court of chancery, the 
 cause of action is not to be deemed to have accrued, until the discovery 
 by the aggrieved party of the facts constituting the fraud.' 
 
 ' Raynar v. Pearsall, 3 J. Oh. B. 578. ' Code, § 91. 
 Bay V. Bogert, 2 J. Oas. 432. Ellison v. 
 Moffat, 1 J. Oh. 46. 
 
CHAPTER III. 
 
 OF FRAUD. 
 
 SECTION I. 
 
 OP ACTUAL FEAUD. 
 
 WE now pass to the head of Fraud, another branch of jurisdiction, 
 which courts of equity exercise concurrently with courts of law. 
 This jurisdiction is probably coeval with the establishment of the court of 
 chancery, and was originally exercised only in cases where there was no 
 remedy by the ordinary course of law.' While the court of star cham- 
 ber was in being, there was little occasion for the exercise of this juris- 
 diction, as that court possessed an extensive jurisdiction in cases of fraud, 
 by not only relieving the plaintiff, but by punishing the defendant for 
 his fraudulent conduct. Upon the abolition of that court, in the reign of 
 Charles the first, the jurisdiction of equity, in matters of fraud, was more 
 actively exerted, sometimes concurrently with courts of law, and some- 
 times in cases where those courts could not afford relief." 
 
 In a great variety of cases, fraud is as effectually remediable in a court 
 of law as in courts of equity. Whenever the state of the pleadings and 
 evidence properly present the case to the consideration of a court of law, 
 the redress is generally as complete in the latter court as when it is ad- 
 ministered by a court of equity. In cases where fraud is not penal, equity 
 has concurrent jurisdiction with courts of law, except in fraud in obtain- 
 ing a will. In such case, if the will be of real estate, the question as to its 
 valid execution belongs primarily to the surrogate's courts, but ultimately 
 to the consideration of a court of law, upon an issue devisavit vel 
 non ; or, which presents the same question, in an action at law between 
 the heir and devisee.' The question whether such will was obtained by 
 
 ' 4 Inst. 84. " Laws of 1837, p. 524. 3 Bl. Com. 
 
 ' 1 Mad. Oh. Pr. 89. 1 Fonbl. Eq. B. 431. Pemberton v. Pemberton, IB Ves. 
 1, ch. 2, § 12. 297. 
 
 E(J, JUB. 19 
 
146 Of Fraud. [Ch. 3. 
 
 fraud or undue means, is involved in the same inquiry. The course upon 
 a bill by an heir impeaching a -will, is to direct him to bring an ejectment, 
 equity removing obstacles which will prevent a trial upon the merits, if 
 any such are interposed.' 
 
 If the will relates only to personal estate, the surrogate of the proper 
 county has exclusive jurisdiction, and the probate of the will is conclusive. 
 And the surrogate must determine all questions of fraud, imposition, and 
 undue influence in procuring such will, as well as the general question of 
 capacity, subject to appeal, and subject to its being revoked, or declared 
 void by a competent tribunal, as declared by law.^ The court of chan- 
 cery in this state possessed no original jurisdiction to try the validity of 
 wills of personal estate. It had only an appellate jurisdiction from the 
 decision of the surrogate.^ In England, too, it is well settled that the 
 probate, unrevoked, is conclusive both in courts of law and of equity, as 
 to the appointment of executors, and the validity and contents of the will, 
 so far as it extends to personal property ; and it cannot be impeached by 
 evidence, even of fraud.* 
 
 The question has often been discussed in the English courts, whether 
 a court of equity will grant relief in cases of wills obtained or suppressed 
 by fraud, and it is now well settled in the negative. The cases are elab- 
 orately reviewed by Lord Cottenham in a recent case.' 
 
 But though a court of equity will not set aside a will, as obtained by 
 fraud, after it has been admitted to probate, it has been held that equity 
 will declare a trust upon a will, in the case of a notorious fraud upon a 
 legatee ; as if the drawer of a will should insert his own name instead of 
 the name of the legatee ; in such case, it is said, that the person whose 
 name is so inserted by fraud would be a trustee for the real legatee.' 
 This has never been supposed as infringing upon the jurisdiction of the 
 ecclesiastical courts.' 
 
 ' Laws of 183r, p. 524. 3 Bl. Com. » Colton v. Eoss, 2 Paige, 39rf, 
 
 431. Pemberton v. Pemberton, 18 Ves. * 1 "Will. Ex. 839. Archer v: Mosse, 2 
 
 297. Smith V. Carll, 5 J. Oh. E. 118. Vern. 8. Plume v. Beale, 1 P. Wms. 388. 
 
 Clarke v. Sawyer, 2 Barb. Ch. E. 411. Griffiths v. Hamilton, 12 Ves. 298. 
 
 '-' Muir V. Leake's Trustees, 8 Barb. Oh. " AUen v. MacPherson, 1 Phil. E. 133. 
 
 E. 477. Clark v. Fisher, 1 Paige, 171. " Marriot v. Harriot, 1 Str. 667, ap- 
 
 2 E. S. 61, § 29. Vanderpoel v. Van proved by Lord Cottenham, in Allen v. 
 
 Valkenburgh, 2 Seld. 190. Bogardus v. MacPherson, 1 Phil. E. 144. Gaines and 
 
 Clark, 1 Edw. 266; S. 0. 4 Paige, 623. wife v. Chew, 2 How. S. 0. E. 619, 645, 
 
 Hornsby's will, 2 Paige 481. Van Eens- 646. Traver v. Traver, 9 Pet. 180. 
 
 eelaer v. Morris, 1 id. 13. ' Ponbl. Eq. B. 4, part 2, ch. 1, § 2, n. a. 
 
Ch. 3.] Definition of Fraud. 147 
 
 With regard to the definition of the term fraud, it was well remarked 
 by Lord Eldon, in one case, that the court has never ventured to lay 
 down, as a general proposition, what shall constitute fraud.' Should a 
 fixed and invariable rule be devised, other means of avoiding the equity 
 of the court would soon be found out. Hence, in cases of oppressive 
 bargains, if the least tincture of fraud is found, relief has always been 
 given.* And when it is considered how various and complicated are the 
 transactions of human afiairs, how greedy and insatiable is the appetite 
 for gain, and how resistless the temptations of avarice, we can readily 
 acquiesce in the remark, that fraud is infinite, and that any attempt to 
 limit the jurisdiction of relief, would be followed by new schemes, which 
 the fertility of man's invention would contrive.' 
 
 Fraud has been defined to be, any kind of artifice by which another 
 is deceived. Hence, all surprise, trick, cunning, dissembling, and other 
 unfair way that is used to cheat any one, is to be considered as fraud.* 
 
 Although some exception has been taken to this definition, yet it is 
 esteemed by writers of high authority as- sufficiently descriptive of 
 actual, moral fraud.' Collusion, is considered in a court of equity as 
 fraud.' But this definition does not embrace a large number of acts of 
 constructive or implied fraud, which in their effects are equally preju- 
 dicial to the rights of others as acttial, moral fraud, and which are alike 
 relievable by courts of equity. Any act of omission or commission, con- 
 trary to legal or equitable duty, trust or confidence, justly reposed, 
 and which is injurious to another, though it falls short of moral fraud, is, 
 in the sense of a court of equity, within its remedial jurisdiction." Such 
 acts or omissions are usually denominated frauds, though they be so 
 only constructively. Thus, an indulgent parent, who, unconscious of his 
 insolvency, and out of love and affection to his son, gives him an estate, 
 cannot thus defeat the claims of his creditors ; nor can he, in the eye 
 of a court of equity, escape the imputation of fraud, by evidence that he 
 was ignorant of his insolvency, and governed rather by motives of love 
 towards his son, than by a design to cheat his creditors. Equity accepts 
 no such apology for acts, or omissions, which tend directly to defraud. 
 And even the innocence of a party who has profited by the fraud, 
 will not entitle him to retain the fruit of another man's misconduct, or 
 exempt him from the duty of restitution.' 
 
 ' Mortlock V. Buller, 10 Ves. 306. ' Story's Eq. Jur. § 187. Jeremy on Eq. 
 
 = Per Lord Hardwicke, in Lawley v. Jur. B. 3, pt. 2, p. 358. Adams' Eq. 176. 
 
 Hosper, 3 Atk. 278. ° Gartli v. Cotton, 3 Atk. 757. 
 
 " Mad. Ch. Pr. 204, ' Belcher v. Belcher, 10 Yerg. 121. 
 
 • Id. 205. ' Huguenin v. Baseley, 14 Ves. 273, 289, 
 
148 Op Fraud. . [Ch. 3. 
 
 Before entering upon the subject, it may be well to consider what is 
 meant by the common maxim, that fraud is odious and never to be pre- 
 sumed.^ This maxim, when correctly understood, is true as well in 
 equity as in law. The maxim is predicable only of those acts which 
 stand alone. It rests upon the same footing as the presumption of inno- 
 cence. It means merely that the onus probandi is cast upon him who 
 asserts fraud.' It does not mean that guilt or fraud may not be estab- 
 lished by presumptive evidence. In truth, they are established by that 
 species of evidence, in most instances.' 
 
 Lord Hardwicke, in one case,' enumerates four species of fraud, all of 
 which rest upon presumptive, or circumstantial evidence. First, fraud 
 arising from facts and circumstances of imposition, which is the plainest 
 case : secondly, fraud may be apparent from the intrinsic value and sub- 
 ject of the bargain itself, such as no man in his senses, and not under 
 delusion, would make on the one hand, and as no honest or fair man 
 would accept, on the other ; which are inequitable and unconscionable bar- 
 gains, and of such even the common law has taken notice ; a third is 
 that which may be presumed, from the circumstances and condition of 
 the parties contracting ; and this goes further than the rule of law ; 
 which is, that fraud must be proved, not presumed. But it is wisely 
 established in equity, to prevent taking surreptitious advantage of the 
 weakness or necessity of another, which, knowingly to do, is equally 
 against conscience, as to take advantage of his ignorance. A fourth 
 kind of fraud may be collected or inferred, in the consideration of a 
 court of equity, from the nature and circumstances of the transaction, 
 as being an imposition, and deceit on the other persons, not parties to 
 the agreement. 
 
 The most obvious cases of actual fraud are such as arise from the sug- 
 gestw falsi, or the suppressio veriJ In order to constitute a fraud of 
 the first class, it is said there must be a representation, express or implied, 
 false within the knowledge of the party making it, reasonably relied on 
 by the other party, and constituting a material inducement to his con- 
 
 ■ Bath and Montague's case, 3 Oh. Oas. • Chesterfield v. JanSen, 2 Ves. 155; 
 
 85. Fonbl. Eq. B. 1, ch. 2, § 8. Oowen S. 0. 1 Atk. 851, 2. 
 
 & Hill's Notes, 298. Oro. Oar. 550. ' Fonbl. Eq. B. 1, ch. 2, § 8. Jarvis t. 
 
 ' Fleming v. Slocum, 18 J. R. 403. 0. Dale, 1 Vern. 20. Broderio v. Broderic, 
 
 & H. Notes, 801, 484. 1 P. Wms. 240. 
 
 ' Waterbery v. Sturtevant, 18 "Wend, 
 858-S62, per Oowen, J. 
 
Ch. 3.] SuGGESTio Falsi. 149 
 
 tract, or act.' If the fact, concerning whicli the misstatement is made, 
 is not a material inducement to the contract, or, if it was not relied on 
 by the complaining party, there is no reason why a court of equity 
 should interpose. 
 
 The requirement that the representation shall be not only false, but 
 false within the knowledge of the party making it, distinguishes a fraudu- 
 lent representation, from an erroneous affirmation, by way of covenant 
 or warranty. Affirmations of the latter kind bind the party making them, 
 although he were himself honestly mistaken, because he has explicitly 
 agreed that they shall do so ; but if a warranty or covenant is not given, 
 a mere representation, honestly made, and believed at the time to be 
 trite by the party making it, though not true in fact, does not amount 
 to fraud.'' 
 
 It is a very old head of equity, says Chancellor Kent,' adopting the 
 language of Lord Eldon,^ that if a representation be made to another per- 
 son, going to deal in a matter of interest, upon the faith of that repre- 
 sentation, the former shall make that representation good, if he knew 
 that representation to be false. He held that if there was a jurisdiction 
 at law upon the doctrine, as was held by the king's bench in Pasley v. 
 Freeman,^ there was a concurrent jurisdiction in equity. 
 
 At law, the plaintiff must allege and prove, if his action be founded 
 on the fraud, that the representation was made with intent to cheat and 
 defraud the plaintiff, and was made by the plantiff knowing it to be false. 
 This falsity may consist in the assertion of an untruth, as well as the 
 suppression of the truth.* If the action be founded on the warranty, and 
 the representation be proved, in connection with other facts, to establish 
 such warranty, the scienter need not be alleged or proved.' No particu- 
 lar form of words is necessary to constitute a representation, a warranty. 
 There must be a direct and express affirmation in contradistinction from 
 opinion ; and it must be shown that it was ititended as a warranty, and 
 not merely the expression of the judgment of the vendor.^ 
 
 ' Adams' Eq. 177, 351. Ball v. Lively, * Evans v. Bicknell, 6 Ves. 182. 
 
 4 Dana, 370. Clarke v. White, 12 Pet. " Pasley v. Freeman, 3 T. R. 51. 
 
 178. Evans v. Bicknell, 6 Ves. 173, 182. " Id. Allen v. Addington, 7 Wend. 9 ; 
 
 Attwood v. Small, 6 01. & Fin. 444, 445, S. 0. 11 Wend. 374. Williams v. Wood, 
 
 per Lord Brongham. 14 Wend. 126. 2 Chitty's PI. 278, notes. 
 
 = Adams' Eq. 178. Tonng v. Oovill, ' 1 Chitty's PI. 139. Williamson v. Al- 
 
 8 J. R. 23. Allen v. Addington, 11 Wend, lison, 2 East, 446. Attwood v. Small, 6 
 
 S74. Freeman v. Baker, 6 Barn. & Ad. CI. & Fin. 444, 445. 
 
 797. " Chapman v. Mnrch, 19 J. E. 230. 
 
 • Bacon v. Bronson, 7 J. Oh. E. 201. Swett v. Colgate, 20 J. R. 196. 
 
150 Of Fraud. [Gh.3. 
 
 In equity, relief will be granted, in some cases, on the ground of fraud, 
 although the party thus misrepresenting a material fact,- made the asser- 
 tion, without knowing whether it was true or not.' The consequences 
 to the party who acted upon the faith of the representation are the same, 
 whether he who made it knew it to be false, or was ignorant whether it 
 was true or false. In a moral as well as legal point of view, it is as 
 unjustifiable to affirm as true, a fact which the party making the afiBrma- 
 tion, does not know or believe to be true, as to assert for truth what he 
 knows to be false. And if the assertion was made to influence the con- 
 duct of the other party in a matter of business, and it did influence him 
 to his prejudice, equity will interpose and grant relief.' 
 
 And even if by mistake, and innocently, a party misrepresents a 
 material fact, upon which another party is induced to act, it is as conclu- 
 sive a ground for relief in equity, as a willful and false assertion.^ 
 
 The cases place a representation, known by the party making it to be 
 false, in the same category with a representation made with intent to 
 deceive, whether the party making it knew it to be false or not.* 
 
 A fraud arising from the suppression of the truth, is as prejudicial to 
 the party deceived, as that which springs from the assertion of a false- 
 hood. And the courts have not hesitated to sustain recoveries, when the 
 truth has been suppressed, with intent to defraud, as well as when a false- 
 hood has been asserted, with the like intent.' 
 
 If an owner stands by, and knowingly sufiers an innocent person to be 
 misled by his silence, and to purchase his property without giving him 
 notice of his title, a court of equity will treat it as a fraud upon the 
 purchaser, and grant an injunction against the future assertion of that 
 title by the owner.' 
 
 In the contracts of insurance and of suretiship, we find frequent appli- 
 cations of the principle which treats non-disclosure as equivalent to fraud, 
 when circumstances impose a duty that the disclosure should be made. 
 In the first case, the concealment of a material fact, which the insurer 
 has a right to know, and which the other party is bound to communicate, 
 is fatal io the policy, whether it occur through fraud, accident, or honest 
 
 ' Ainslie v. ledlycott, 9 Ves. 21. ■• Taylor v. Ashton, 11 Mees. & "Wels. 
 
 ' Harding v. Randall, 3 Maine R. 332. 4pO. Foster v. Charles, 6 Bing. 396 ; S. 
 
 Smith v. Richards, 13 Pet. 88. TrunbuU 0. 1 id. 65. 
 
 V. Gadsden, 2 Strobhart's Eq.. South Oar. « Allen v. Addington, 7 "Wend. 9 ; S. 0. 
 
 E. 14. MoFerran v. Taylor, S Oranoh, in error, 11 "Wend. 874. Fleming v. Slo- 
 
 281. cum, 18 J. E. 408. 
 
 " Lfiwis V. McLemore, 10 Yerg. 206. " The Brig Sarah Ann, 2 Sumner, 206. 
 
Ck 3.] Caveat Emptor. 151 
 
 mistake.* In tlie case of a surety guarantying a contract, if there he a 
 fact materially affecting the contract, misrepresented to him, or concealed 
 from him, -with the knowledge or consent of the party accepting the 
 guaranty, the surety ceases to be liable." 
 
 Fraudulent concealment, therefore, is only predicable of facts material 
 to be known, and which the vendor is under an obligation to communi- 
 cate, and the vendee is entitled to know. Mere non-disclosure is generally 
 not equivalent to fraud. The maxim, caveat emptor, authorizes the con- 
 tracting party to remain silent, and to avail himself of his superior 
 knowledge. 
 
 The principles of natural justice and sound morals require more scru- 
 pulous good faith, candor and truth, in dealings with one another, than is 
 exacted either by law or equity. As a matter of conscience, says Po- 
 thier, any deviation from the most exact and scrupulous sincerity is repug- 
 nant to the good faith that ought to prevail in contracts. The golden 
 rule, which commands us to love our neighbor as ourselves, will not per- 
 mit us to conceal from him any thing which we should be unwilling to 
 have had concealed from ourselves, under similar circumstances. But the 
 common law does not go to this length. Human tribunals have not the 
 means of administering justice by such a scale. To do it effectually, re- 
 quires the attributes of divine intelligence. Courts of justice aim at 
 practical good and general convenience, rather than at theoretical perfec- 
 tion. They require the exercise of vigilance on the part of the buyer, to 
 such defects in the article as are open to observation, and an entire free- 
 dom on the part of the seller, from any false representation, deception, or 
 concealment, whether by words, actions, or signs. When the means of 
 information are equally accessible to both parties, and neither does or 
 says any thing tending to impose upon the other, the disclosure of facts, 
 within the knowledge of one of the parties alone, tending to affect the 
 value of the article, is not essential to the validity of the contract.' 
 
 The maxim, caveat emptor, applies both to the purchaser of real and 
 personal property, and it is applicable to the quality of the article, and 
 the title of the vendor in both cases. By the civil law, as observed by 
 Lord Coke, every man is bound to warrant the thing that he sells, or con- 
 
 ' ■Wilson V. The Herkimer Co. Mu. Ins. Dnchaire, 3 T..E. 552. Steinman v. Mag- 
 
 Oo. 2 Seld. 53, 59. De Oosta v. Scan- nus, 11 East, 390. Leeds v. Dunn, N. Y. 
 
 daret, 2 P. Wms. 170. Carter v. Boehm, oonrt of appeals, Deo. T. 1853, notes of 
 
 3 Burr. 1905., decision, p. 38. 
 
 " Pidcock V. Bishop, 3 Baru. & Or. 605. ^ Laidlow v. Organ, 2 Wheat. 178, 
 "Weed V. Bentley, 6 Hill, 56. Jackson v. 
 
152 Of Frau0, [Ch. S. 
 
 veys, albeit there be no express warranty, but the common law binds him 
 not, unless there be a warranty, either in deed or in law.' The rule of 
 caveat emptor has no application, where the defect is a latent one, and of 
 such a nature as the purchaser cannot by the greatest attention discover 
 it, and if, moreover, the vendor be cognizant of it, and do not acquaint the 
 purchaser with the fact of its existence ,' for in this case the contract 
 Would not be considered binding at law, and equity would not enforce a 
 specific performance.* 
 
 When the defects are patent, and such as might have been discovered 
 by a vigilant man, or when the contract was entered into with full 
 knowledge of them, equity will not afibrd relief In the former case the 
 rule is vigilantibus naii dormientibus jura subvenitint, and in the latter, 
 scientia utrinque par pares contrahentes facit. 
 
 With respect to real property, the rule applies as to the title, equally, 
 whether the vendor is in or out of possession, for he cannot hold the lands 
 without some title ; and the buyer is bound to see it, and to inspect the 
 title deeds at his peril. He does not use common prudence, as was well 
 said by Lord Kenyon, in Pasley v. Freeman,^ if he relies on any other 
 security. The ordinary course on the sale of real estates is this : the sell- 
 er submits his title to the inspection of the purchaser, who exercises his 
 own, or such other judgment as he confides in, on the» goodness of the 
 title ; but though it should turn out to be defective, the purchaser has 
 no remedy, unless he takes a special covenant or warranty ; provided 
 there be no fraud practiced on him to induce him to purchase-^ The ven- 
 dor, says Chancellor Kent, in one case,= selling in good faith, is not re- 
 sponsible for the goodness of his title beyond the extent of his covenants. 
 If a regular conveyance is made, containing the usual covenants for se- 
 curing the buyer against the acts of the seller, and his ancestors only, 
 and his title is actually conveyed to the buyer, the rule of caveat emptor 
 applies against the latter, so that he must, at his peril, perfect all that is re- 
 quisite to his assurance ; and as he might protect his purchase by proper 
 covenants, none can be implied. Thus, an administrator found, among 
 the papers of his intestate, a mortgage deed, purporting to convey prem- 
 ises to him, and without arrears of interest. Not knowing it to be a forgery, 
 he assigned it, covenanting not for good title in the mortgagor, but only 
 that nothing had been done by himself, or the deeeased mortgagee, to in- 
 
 ' Co. Litt. 202, a. * Per Lawrence, J., ia Parkinson v. 
 
 ' Seymour v. De Lancey, S Oowen, 445. Lee, 2 East, 823. 
 
 Br. Legal Maxims, 608. » Gonveneur v. Elmendorff, 5 J, Ob. 
 
 » 8 T. E. 65. E. 84. 
 
Ch. 3.] Caveat Emptor. 153 
 
 cumber the property ; and as this precluded all presumption of any fur- 
 ther security, the assignee was held bound to look to the goodness of the 
 title, and failed to recover the purchase money.' If he had, as Lord 
 Mansfield said, in the same case, discovered the forgery, and had then 
 got rid of the deed as a true security, the case would have been very dif- 
 ferent. But he did not covenant for the goodness of the title, but only, 
 that neither he nor the testator had incumbered the estate. This case is 
 quoted with approbation by Chancellor Kent, in Gouveneur v. Elmendorff, 
 already cited, and was sanctioned by Lord Kenyon in Cripps v. Read,* 
 and by the English common pleas in Johnson v. Johnson,' by the su- 
 preme court of New- York in Frost v. Raymond,' and by the court of 
 chancery of the same state in Abbott v. Allen.^ The same doctrine was 
 in effect held by the present supreme court in a recent case.' In that 
 ease it was held, that the mere omission, in a contract for a quitclaim 
 deed of premises, held by lease in fee, to state that they were subject to 
 ■ quarter sales, was no evidence of a fraudulent concealment. To sustain 
 an action to recover back the consideration money, it must be shown, said 
 the learned judge, that the defendant, in making the contract for the sale 
 of the farm, misrepresented some material fact affecting his title, or that 
 he intentionally concealed from the knowledge of the plaintiff some such 
 
 ferCt. ^ 
 
 This doctrine of caveat emptor has been applied to the demise of land 
 for agricultural purposes, and of houses for occupation. Although there 
 is some conflict in the cases, it seems now to be settled, that there is no 
 contract, still less a condition, implied by law, on the demise of real prop- 
 erty only, that it is fit for the purpose for which it is let. Hence, on the 
 demise of land, or the vesture of land for a specific term, at a certain 
 rent, there is no implied obligation on the part of the lessor, that it shall 
 be fit for the purpose for which it is taken.' This principle has also been 
 extended to the lease of a house and garden to be taken for actual occu- 
 pation.' . In the last mentioned case, the declaration stated that the plain- 
 tiff agreed to let to the defendant a house and garden ground, with the 
 use of the fixtures therein, for the term of three years, at a rent payable 
 quarterly, the tenant to preserve the messuage and premises in good and 
 tenantable repair, by virtue of which the tenant entered and continued 
 
 ' Bree v. Holbeok, Dong. 655. ' 2 J. Oh. K. 623. 
 
 " 6 T. K. 606. " Oamp v. Palver, 5 Barb. 91. 
 
 = 3 B. & P. 162, iro. '■ Sutton v. Temple, 11 M. & W. 52. 
 
 * 2 Oaines, 188. « Hart v. Windsor, 12 id. 68. 
 
 Eq. Jije. 20 
 
154 Of Fkaud. [Oh. S. 
 
 in possession until a quarter's rent accrued under and by virtue of tlie 
 agreement. To this the defendant plead that the house was demised to 
 the defendant for the purpose of his inhabiting the same, but that before, 
 and at the time of the agreement, and also when the defendant entered^ 
 and from thence until and at the time of his quitting and abandoning the 
 possession of the same, it was not in a fit state or condition for habitation, 
 but in that state that the defendant could not reasonably inhabit, or dwell 
 therein, or have any beneficial occupation of the same, by reason of the 
 same being greatly infected with bugs, and not by reason of any act or 
 default of the defendant ; and that before the rent or any part thereof 
 became due, he quitted the possession and gave notice thereof to the 
 plaintiff, and ceased all further occupation of the same, and derived no ben- 
 efit therefrom ;' and that from the commencement of the term until his so 
 quitting, he had no beneficial use or occupation of the same. The jury 
 having found for the defendant on the issues raised by the pleas, it was 
 held, on motion for judgment non obstante veredicto, that the plea was 
 no answer to the action, inasmuch as the law implied no contract on the 
 part of the lessor, that the house was, at the time of the demise, or should 
 be, at the commencement of the term, in a reasonably fit state and condi- 
 tion for habitation. Secondly, that the demise being of a house and gar- 
 den ground, in order to m'ake thoi plea good, it must b,e held that if a 
 house be taken for habitation, and land for occupation, by the same lease, 
 there is such an implied contract for the fitness of the house for habita- 
 tion as that its breach would authorize the tenant to give up both ; but 
 it was held, thirdly, that there is no implied warranty on a lease of a 
 house, or of land, that it is or shall be reasonably fit for habitation, occu- 
 pation or cultivation. 
 
 So far as the foregoing case is in conflict with the earlier case of Smith 
 V. Marrable,' the latter must be treated as overruled. There iSy however, 
 a slight distinction between the two cases. In Smith v. Marrable it was 
 held, that there is an implied condition in the letting of a furnished house 
 that it shall be reasonably fit for habitation ; if it be not, as for example, 
 where it is greatly infected with bed bugs, the tenant may quit it with- 
 out notice. 
 
 The learned judge, in delivering his opinion in Hart v. Windsor, said : 
 " The principles of the common law do not warrant the position that there 
 is an implied warranty, on a demise of real property, that it is fit for the 
 purposes for which it was let ; and though in the case of a dwelling house 
 taken for habitation, there is no apparent injustice in enforcing a contract 
 
 ' 11 M. & "W. 6. 
 
Cli. 3.] Caveat Emptor, 155 
 
 of this nature, the same rule must apply to land taken for other purposes 
 — ^for building upon or for cultivation ; and there would be no limit to the 
 inconvenience which would ensue. It is much better to leave the parties 
 in every case to protect their interests themselves by proper stipulations ; 
 and if they really mean a lease to be void by reason of any unfitness in 
 th€ subject for the purpose intended, they should express that meaning." 
 
 The subject, in its more general bearing, belongs to the doctrine of 
 landlord and tenant. But it may be added here, that the doctrine in 
 Hart V. Windsor, was fully confirmed in the subsequent case of Surplice 
 V. Farnsworth.' 
 
 In New-York, before the revision of 1830, it was held, in conformity to 
 the common law, that a conveyance in fee did not, in itself, imply a cove- 
 nant of title, but the word " give," in such a conveyance, implied a war- 
 ranty, for the life of the grantor;' that the words "grant" and "infeoff" 
 imported a warranty, in an estate for years, but not in an estat? in fee ;' 
 and that an express covenant in a deed took away all implied covenants.* 
 For some of these distinctions, it was said, no very solid reasons could be 
 given. They probably arose from artificial reasons, derived from the 
 feudal law.' The civil law implies a covenant as to title with respect to 
 the sale of both real and personal property. By the revised statutes of 
 New- York, it i^ enacted that no covenant shall be implied in any convey- 
 ance of real estate, whether such conveyance Contain special covenants 
 or not.' 
 
 The question, whether there is an implied covenant on the part of the 
 lessor of a dwelling house, that the premises are tenantable, was fully 
 considered by the supreme court, in a recent case.' It was there held, 
 that there is no implied warranty on the part of a lessor of a dwelling 
 house that it is fit for occupation and tenantable. And the learned judge, 
 in delivering the opinion of the court, said, that the doctrine of implied 
 covenants, or warranty, had a very limited application for any purpose, 
 to a lease for years, and in every case has reference to the title, and not 
 to the quality, or condition of the property. The maxim, caveat emptor, 
 applies to the transfer of all property, real, personal and mixed ; and the 
 purchaser generally takes the' risk of its quality ^uA. condition, yoAeas 
 he protects himself by an express agreement on the subject. A sale of 
 
 ' 8 Soott, N. S. 307. 13 Law Jour. TS. * Vanderkar v. Vanderkar, 11 J. E. 
 S., 0. P. 215. 8 Jur. 760. 122. 
 
 'Frost v. Kaymond, 2 Oai. 188, 195. " Per Kent, Oh. J. in Prost v. Raymond, 
 Kent V. "Welch, 7 J. R. 258. 2 Oai. 195. 
 
 ^ 2 Oai. supra. ' 1 R. S. 738, § 140. 
 
 ' Oleves V. Wilioughby, 7 Hill, 88. 
 
156 Of Fraud. [Ch. 3. 
 
 provisions for domestic use, (Van Bracklin v. Fonda, 12 John. E. 468,) 
 and a demise of ready furnished lodgings, (Smith v. Marable, 1 Carr. & 
 Mar. 479,) may be mentioned as exceptions ; for as to these the law 
 implies a warranty, that the former are wholesome, and the latter free 
 from nuisance. (See Chitty on Contracts, 449 to 452, 5th Am. ed.) The 
 learned judge then reviewed the cases on this subject, and which are 
 referred to below,' and observed that they hardly admitted of classifica- 
 tion, and that it would be difficult to deduce from them any clear and 
 satisfactory general principle. And he adopted the remark of Ch. J. 
 Tindal, in Izorn v. Gorton, (5 Bing. N. C. 501,) that the cases in which 
 the tenant has been allowed to withdraw himself from the tenancy, and 
 to refuse payment of rent, will be found to be cases where there has been 
 either error or fraudulent misdescription of the premises which were 
 the subject of the letting, or where the premises have been found to be 
 uninhabitable by the wrongful act or default of the landlord himself. 
 And he concludes that, when there has been no misdescription of the 
 premises, either by mistake or fraud, and no particular agreement to put 
 them in repair, the tenant takes them for better or for worse, and the 
 landlord is under no obligation to repair. 
 
 We shall in the next place consider how far the maxinf, caveat emptor, 
 applies in the case of the sale of goods and chattels, first, in regard to 
 the quality of the goods, and secondly, in regard to the title to them. 
 
 With regard to the quality of the article sold, the seller is not bound 
 to answer, unless there be a fraudulent representation, or a fraudulent 
 concealment, or a warranty. On this subject, the rule laid down by < 
 Ch. J. Tindal, in a recent case,'' may be taken as a guide : " If" said the 
 learned judge, " a man purchase goods of a tradesman, without, in any 
 way, relying upon the skill and judgment of the vendor, the latter is 
 not responsible for their turning out contrary to his expectation ; but if 
 the tradesman be informed, at the time the order is given, of the pur- 
 pose for which the article is wanted, the buyer, relying upon the seller's 
 judgment, the latter impliedly warrants that the thing furnished shall 
 be reasonably fit and proper for the purpose for which it is re- 
 
 ' Smith V. Marable, 1 0. & M. 479 ; S. Nation v. Tozer, l.Or. Mees. & Eose, 172. 
 
 0. 11 M. & W. 5. Salisbury v. Marshall, 4 Tyr. 561, S. 0. 
 
 4 0. & P. 65. Collins v. Barrow, 1 Mood. " Brown v. Edgington, 2 Scott's N. P. 
 
 & Eob. 112. Shepherd v. Pybus, 3 Man. 504 ; S. 0. 2 Man. & Gr. 279, recognized 
 
 & Gr. 867. Edwards v. Hetherington, 7 by Parke, B. in Sutton v. Temple, 12 M. 
 
 Dowl. & Eyl. 117; S. 0., E. & M. 268. & W. 64. Jones v. Bright, 6 Bing. 533, 
 
 recognized, 4 M. & W. 406, per Parke, J. 
 
Cli. 3.] Caveat Emptor. 157 
 
 quired." Thi,s is quite reasonable, for if the articles furnished are not 
 those which the vendee agreed to purchase, he ought not to be obliged to 
 pay for them. In a case of this kind, the purchaser ought to return the 
 goods to the vendor, or give him notice to take them back, and thereby 
 rescind the contract ; or he will be presumed to acquiesce in the quality 
 of the goods.' 
 
 In the leading case in New- York, it was held, contrary to the rules of 
 the civil law, that a sound price does not imply a warranty of soundness, 
 and, that if there be neither warranty nor fraud, the buyer cannot re- 
 cover, though the article turns out to be defective, or different from 
 what it was sold for.'' The court distinctly adopted the reasoning of 
 Fonblanque on this subject.^ That writer says : " The principles upon 
 which courts of law proceed upon the subject of warranty so strongly 
 tend to reconcile the claims of convenience with the duties of good faith, 
 that I cannot conceive the means by which they can receive an addition- 
 al extent, or be in any degree circumscribed, without endangering the 
 interests which they are now so well calculated to preserve. To excite 
 that diligence which is necessary to guard against imposition, and to 
 secure that good faith which is necessary to justify a certain degree of 
 confidence, is necessary to the intercourse of society. These objects are 
 attained by those rules of law, which require the purchaser to apply his 
 attention to those particulars which may be supposed within the re&ch 
 of his observation and judgment ; and the vendor to communicate those 
 particulars and defects which cannot be supposed to be immediately 
 within the reach of such attention. If the purchaser be wanting of at- 
 tention to those points, where attention would have been sufficient to 
 protect him from surprise, or imposition, the maxim, caveat emptor, 
 ought to apply ; but even against this maxim he may provide, by requir- 
 ing the vendor expressly to warrant that which the law would not imply 
 to be warranted. If the vendor be wanting in good faith, Jides servan- 
 da is the rule of law, and can scarcely be more effectually enforced in 
 equity than it is at law." , 
 
 The doctrine of Seixas v. Woods has been repeatedly recognized and 
 reaffirmed in the New- York courts.* 
 
 Nor does the circumstance that the article sold is an entirely spurious 
 and worthless one, fraudulently made for the purpose of being sold for a 
 
 ' Fisher v. Samuda, 1 Oamp. N. P. R. '1 Fonbl. B. 1, oh. 5, § 8, p. 380. 
 190. Milner v. Tucker, 1 0. & P. 15. * Swett v. Colgate, 20 J.R. 196. Snell 
 
 Cash V. Giles, 3 id. 407. Peroiyal v. v. Moses, 1 id. 96. Perry v. Aaron, id. 
 
 Blake, 2 id. 514. 129. Defreeze v. Trnmper, id. 274. Eold- 
 
 ' Seixas v. Woods, 2 Oai. 48. en v. Dakin, 4 id. 421. 
 
158 Op Fraud. [Ch. 3, 
 
 valuable commodity, which it is made to resemble, vary the rule as be- 
 tween an innocent vendor and vendee.' 
 
 The sale of provisions for domestic use has already been stated to 
 form an exception to the general rule. With respect to these, the ven- 
 dor is bound, at his peril, to know whether they are sound and whole- 
 some ; and if they are not so, an action on the case will lie against him 
 at the- suit of the vendee.^ But this exception does not embrace provis- 
 ions sold as merchandise, and not for immediate consumption.^ The' 
 articles are, usually, in the former case, sold in large quantities, and 
 neither party is presumed to have an actual knowledge of their condi- 
 tion. Hence, on the sale of a manufactured article, as flour, for a sound 
 price, there is no implied warranty that the article is merchantable.* 
 The common law rule prevails in such cases. 
 
 The foregoing observations are sufficient to illustrate, in a general way, 
 the maxim of caveat emptor, in regard to the quality of the goods sold. 
 It remains to consider the same question in regard to the title to them. 
 
 The general principle has long been established in New- York, that, on 
 the sale of a chattel, there is an implied warranty of title in the vendor.' 
 "Whether a warranty shall be implied, when the vendor, at the time of the 
 sale, is not in the actual possession of the thing sold, has been decided 
 in the negative by the supreme court of this state, in a recent, well con- 
 si(fered case.^ A warranty, say the court, should only be implied when 
 good faith requires it. The possession of the vendor, at the time of the 
 sale, is equivalent to an affirmation of title, and there is no hardship in 
 implying a warranty in such a case. And the court accordingly held, 
 that an implied warranty of title was only raised when the vendor was 
 in possession of the articles sold, at the time of the sale. 
 
 If the property sold be, at the time, in the possession of another per- 
 son, and there be no affirmation of ownership, no warranty will be 
 implied. Possession out of the vendor is enough to put the purchaser 
 on inquiry, and to call for an express warranty, if he chooses not to take 
 the property upon his own risk. It is believed that, in such a case, the 
 maxim, caveat emptor, applies. 
 
 There is some conflict in the authorities, as to whether a warranty 
 
 ' Welch V. Carter, 1 Wend. 185. Lam- ' Defreeze v. Trumper, 1 J. E. 274. 
 
 bert v. Heatli, 15 M. & W. 485. Eeermanoe v. Vernoy, 6 J. E. 5. Swett 
 
 ' Van Braoklin V. Fonda, 12 J. E. 468. v. Colgate, 20 id. 196. Eew v. Barber, 3 
 
 ' Moses V. Mead, 5 Denio, 617 ; S. 0. 1 Oowen, 272. 
 
 id. 878. » MoCoy v. Artoher, 3 Barb. S. 0. E. 
 
 ' Hart V. Wright, 17 Wend. 267, aflBrm- 828. 
 ed. 18 id. 449. 
 
Ch. 3.] Caveat Emptor. 159 
 
 ■will be implied in the vendor, vfho is not in possession at the time of the 
 sale. It is laid down by a writer of high authority, that a warranty will 
 be presumed, whether the goods sold be, at the time of -the sale, in the 
 possession of the vendor, or of a third person, unless the contrary be 
 then expressed.' Chancellor Kent, in his commentaries," asserts, that 
 the rule caveat emptor applies, if the possession be in another at the 
 time of the sale, and there be no covenant, or warranty. He assumes, 
 that the law implies a -warranty only in cases when the seller has pos- 
 session of the article, and sells it as .his own, and not as agent for another, 
 and for a fair price.' To this extent we have adopted the civil law, 
 which in all cases, on a sale for a round price, implied a warranty of 
 title, and allowed the article, if unfit for the purpose intended, to be 
 returned, and the bargain to be rescinded.* In the early New- York 
 cases, the attention of the court was not drawn to the distinction between 
 the sale by a party out of possession, and by a party in possession. This 
 distinction is properly taken in McCoy v. Artcher, (supra,) and is sup- 
 ported by principle and authority. In England, an implied warranty of 
 title is never raised except on a sale by a person in possession.' And 
 even, on such sale, it has been denied that the purchaser has any remedy 
 against the vendor, unless there be fraud on the part of the latter, or an 
 assertion of title, or representation amounting to a warranty.* But it is 
 admitted that the doctrine has been much restricted in its practical 
 operation, by holding that a simple assertion of title is equivalent to a 
 warranty, and that, generally, any representation may be tantamount 
 thereto, if the party making it appear, from the circumstances under 
 which it was made, to have had an intention to warrant, or to have meant 
 that the representation should be understood as a warranty.' 
 
 Having thus briefly shown the definition of fraud as it is considered in 
 the eye of a court of equity, whether arising from the assertion of a 
 falsehood, or the suppression of the truth ; whether it be actual moral 
 fraud or constructive fraud ; and having adverted, briefly, to the doctrine 
 of caveat emptor, it may now be convenient to illustrate the subject by 
 a few examples, which have been sustained by authority. In doing this, 
 
 » W. W. Story on Oon. § 635. Id. on S. 0. 1 Ld. Raym. 323. Grosae v. Gard- 
 367 ner, Garth. 90. 1 Shower, 68. 
 
 ' 2 Kent's Com. 4V8. ' Broom's Legal Maxims, 628. 
 
 »Id. 'Id. 684. Peto v. Blades, 5 Taunt. 657. 
 
 * Domat, Oushing's ed. vol. 1, part 1, Jones v. Bowden, 4 id. 847. Sprigwellv. 
 
 tit. 2, § 2, arts. 3 and 4. Allen, Aleyn's E. 91, and Paget .v. "Wilk- 
 
 ' Medina v. Stoughton, 1 Salk. B. 210; inson, cited 2 East, 448, n. a. 
 
160 Op Fraud. [Oh. 3. 
 
 it will not be necessary to separate the cases of fraud arising from mis- 
 representation, from those which arise from fraudulent concealment. 
 Both stand upon the same footing, and are followed by the same conse- 
 quences ; and it will tend to avoid repetition, if they are treated under 
 the same head. Cases of fraud between parties standing to each 
 other in confidential relations, and of constructive fraud, will then be 
 noticed, and some of the modes of preventing fraud, and of relieving 
 against it, will then be brought under review. 
 
 It is a well established principle, that equity will relieve, not only 
 against deeds, writings, and solemn assurances, but also against judg- 
 ments and decrees, obtained by fraud and imposition.' Thus, in a case 
 before Chancellor Kent, where an attorney revived, by sdre facias, an 
 old outstanding judgment, on which but a very small sum, if any thing, 
 was due, knowing that the land on which the judgment was a lien, was 
 in the possession of innocent and bona fide purchasers ; and afterwards 
 made use of the judgment to compel the purchasers, who were ignorant 
 of the proceedings under the scire facias, to pay and secure to him a debt 
 against the person under whom they had purchased ; the court, on the 
 ground of imposition and undue advantage taken by the attorney, ordered 
 him to refund the money he had so obtained, and set aside the security 
 taken by him, with costs." 
 
 The same principle was applied in the first circuit in New- York, by 
 the assistant vice chancellor, in setting aside, on an original bill, filed 
 for that purpose, a decree obtained by fraud. The case was, shortly, this : 
 A mortgagee having two mortgages for the same debt, one on the princi- 
 pal debtor's lands, and one on lands of a surety, whose infant heir suc- 
 ceeded thereto ; after the debt was satisfied by a conveyance of the form- 
 er, the mortgagee filed a bill against the infant to foreclose the mort- 
 gage on the lands of the latter, in which he claimed the mortgage money 
 to be due, and the infant answered by his guardian ad litem ; no defense 
 was set up, the usual decree for a foreclosure and sale was made, and 
 the infant's lands were sold under the decree, the mortgagee becoming 
 the purchaser of a portion of the same ; it was held that the decree was 
 obtained by fraud, and it was set aside.' 
 
 But although equity can give relief against a judgment or decree, and 
 even in the case of a judgment after verdict, yet it is a settled principle 
 
 ■ Thompson v. Graham, 1 Paige, 384. R. 185. Bradick v. Gee, Ambler, 229. 
 
 Apthorpe v. Ootnstook, Hopk. 143. Barnsly v. Powell, 1 Ves. 289, 120. Eich- 
 
 = Reigal v. Wood, 1 J. Oh. E. 402. mond v. Tayleur, 1 P. Wms. 784. Loyd 
 
 ' Loomis V. Wheelwright, 3 Sand. Oh. v. Mansell, 2 id. 78. 
 
di. 3.] Relief against Judgments. 161 
 
 that it will not do so in the latter case, unless the complaining party can 
 impeach the justice of the verdict by facts, or on grounds of which he 
 could not have availed himself, or was prevented from doing it, by fraud 
 or accident, or by the acts of the other party, unmixed with negligence 
 or fault on his part.' The rule on this subject was thus stated by Mar- 
 shall, Ch. J., in a case in the supreme court of the United States :^ "With- 
 out attempting to draw any precise line to which courts of equity will 
 advance, and which they cannot pass, in restraining parties from availing 
 themselves of judgments obtained at law, it may safely be said, that any 
 fact which clearly proves it to be against conscience to execute a judg- 
 ment, and of which the injured party could not have availed himself in 
 a court of law ; or of which he might have availed himself at law, hut 
 was prevented by fraud or accident, unmixed with any fault or negligence 
 in himself, or his agents, will justify an application to a court of chancery. 
 On the other hand, it may with equal safety be laid down, as a general 
 rule, that a defense cannot be set up in equity which has been fuUy and 
 fairly tried at law, although it may be of the opinion that the defense 
 ought to have been sustained at law. These principles were approved by 
 the vice chancellor of the 8th district, and by .the chancellor of New- 
 York, on appeal, in a recent case.' 
 
 When the defendant has attempted his defense at law, and failed for 
 want of proof;* when a matter of fact, properly a subject of defense at 
 law, is not litigated at law ;' and when a party goes to trial at law, and 
 is disappointed in the weight of his evidence, or neglects to move for a 
 new trial, or neglects to except to an improper opinion against him at 
 law,' equity will not, in either case, afford relief. In none of these cases 
 is any fraud attributable to the other party, nor do they fall within the 
 principle of accident, or mistake. The failure of the party was rathe]: 
 owing to his want of vigilance, or to that class of misfortunes againat 
 which equity does not relieve. There are cases where the court, in which 
 the action is pending, will award a new trial upon terms, when a court of 
 equity would not afford relief by an original action. The remarks of the 
 learned chancellor, in an early case,' are extremtsly appropriate to the 
 present subject: Before courts of law, said the chancellor, were in 
 
 ' Dnncaa v. Lyon, 3 J. Ch. B. 856. ' Stone v. Moody, 6 Terg. 31. 
 
 ' Marine Ins. Co. v. Hodgson, 7 Cranch, ° Veeoh v. Pennebaker, 2 Bibb, 326. 
 332. ' Simpson v. Hart, 1 J. Ch. K. 97, 98. 
 
 " Patterson v. Bangs, 9 Paige, 630, 634. Barker v. Elking, id. 455. Smith v. Lowry, 
 
 French V. Gardner, 7 Porter, 549. Mark id. 320. Lansing v. Eddy, id. 49. Saw- 
 
 V. Oandifif, 6 id. 24. ley v. Mancius, 7 id. 182. McViokar v. 
 
 * Harrison v. Harrison, 1 Litt. 137. Woloott, 4 J. B.|510. 
 
 Eq. Jue. , 21 
 
162 Op Fraud. [Ch. 3. 
 
 the exercise of their present liberal jurisdiction over the subject of new 
 trials, the parties were frequently forced into equity, to be relieved from 
 oppressive verdicts. (3 Bl. Com. 388.) Since, however, that jurisdiction 
 has been well established, and freely exercised, on equitable as well as 
 legal grounds, the party failing in his application at law for a new trial, 
 will not be relieved in equity, upon the merits already discussed, and fully 
 within the discretion of a court of law. Where courts of law and equity 
 ha;ve concurrent jurisdiction over a question, and it receives a decision at 
 law, equity can no more re-examine it than the courts of law, in a similar 
 case, could re-examine a decree of the court of chancery. In the case of 
 Bateman v. Willoe, (1 Schoale <fc Lef 201,) we have the opinion and de- 
 cision of so high and respectable authority as Lord Eedesdale, on the sub- 
 ject now under consideration. A verdict was obtained, at law, against 
 the plaintiff, which he considered unjust, and having failed in his applica- 
 'tion for a new trial, on account of a defective notice of the ihotion, he 
 sought relief in equity ; but the bill was dismissed, and Lord Redesdale 
 said, that he could not find any ground whatever for a court of equity to 
 interfere, because a party had not brought evidence which" was in his 
 power at the trial, or because he had neglected to apply, in due time, for 
 a new trial. There are cases, he observed, cognizable at law, and 
 also in equity, and of which cognizance cannot be effectually taken at law, 
 and therefore equity does sometimes interfere. So, where a verdict has 
 been obtained by fraud, or where a party has possessed himself, im- 
 properly, of something, by means of which he has an unconscientious ad- 
 vantage at law, which equity will either put out of the way, or restrain 
 him from using ; but, without circumstances of that kind, I do not know, 
 says Lord Redesdale, " that equity ever does interfere to grant a trial 
 of a matter which has already been discussed in a court of law, a mat- 
 ter capable of being discussed there, and over which the court of law 
 had full jurisdiction." Although the case of Simpson v. Hart was re- 
 versed by the court of errors, it was upon a ground not impugning the 
 foregoing principles, but they were, on the contrary, expressly approved 
 by Spencer, justice, who delivered the prevailing opinion of that court." 
 The settled doctrine of the English chancery is, not to relieve against 
 a judgment at law, on the ground of its being contrary to equity, unless 
 the defendant below was ignorant of the fact in question, pending the 
 suit, or it could not have been received as a defense, and the plaintiff 
 knew, of his own knowledge, the fact to be otherwise than as found by 
 the jury.' The doctrine of the court of errors, in the early case of Le 
 
 ' Simpson v. Hart, 14 J. E. 77. ' Williams v. Lee, 3 Atk. 224. 
 
^^- ^3 Relief against Jubgments. 163 
 
 Gi^en V. Grouvernetir cfc Kemble,' was, that where a party to a suit at law 
 had knowledge of a fraud, or other matter of defense, in time to avail him- 
 self of it at the trial at law, and he neglected to do so, he could not after- 
 wards obtain relief in a court of equity against the judgment at law, on 
 the ground of such fraud, or matter of defense, that he might have set 
 up at the trial, but is forever concluded by the judgment. Although re- 
 lief against a judgment or decree, for fraud, may be obtained in the same 
 court, by motion, or petition, yet it may also be obtained by an original 
 bill, in the nature of a bill of review." Hence, it would seem, that not- 
 withstanding law and equity are administered in this state by the same 
 tribunal, it is not necessary that relief against a judgment, obtained by 
 fraud, should be sought by a motion addressed to the court in which the 
 judgment was obtained, but may be invoked by an original action, in which 
 the relief prayed is to set aside the judgment. 
 
 There is no case in which equity has ever undertaken to question the 
 Judgment of another court for mere irregularity. The power in such 
 case is always exercised by the court in which the judgment was given, 
 and the relief is frequently granted upon terms. The power in such 
 eases rests in the sound discretion of the court.' 
 
 The decision of a court on a special motion has not the same conclusive 
 efiect as a judgment or decree. Such depisions are frequently made, 
 without much discussion. They cannot be thrown into the shape of a 
 record, and become the subject of review in any other court. In the 
 same court they are not considered so final and decisive as to furnish a 
 bar to another and further discussion of the question. Much less should 
 they be treated as falling within the rule of res judicata, and preclude 
 a court of equity from reinvestigating the same matter.* 
 
 Equity refuses to interfere, where the grounds advanced might have 
 been used as a defense at law, but for the negligence and inattention of 
 the party.^ If, therefore, at the time of the trial, he had full knowledge 
 of the fraud, or other matter of defense, and neglected to avail himself 
 of it, he is concluded by the judgment.^ But if it be doubtful whether 
 a court of law can take cognizance of the defense, and there exists no 
 
 • 1 J. Gas. 456. ■* Simpson v. Hart, 14 J. R. 76. Arden 
 
 " Sheldon v. Fortesone, Aland, 3 P. v. Pattison, 5 J. Oh. B. 52. 
 
 Wms. 111. Munsell V. Morgan, 3 Bro. C. ° Duncan v. Lyon, 3 id. 356. Cowell 
 
 0. 74. Loyd v. Mansell, 2 P. Wms. 73. v. Price, 1 Bibb, 173. Kenny v. Ogden, 
 
 =■ Shottenlsirk v. Wheeler, 3 J. Ch. R. 2 Green's Oh. E. 168. Beeves v. Hogan, 
 
 280. De Eeimer v. De Oantillon, 4 id, 92. Cooke, 175. 
 
 iVench v. Shotwell, 6 id. 235. " Le Gnen v. Gouvernner, 1 J. Oas. 436. 
 
 Winchester v. Jackson, 3 Hayw. 813. 
 
164 Of Fraud. [Ch. 3. 
 
 doubt of the jurisdiction of a court of equity ; and if, in such a case, a 
 defendant at law, under the influence of such doubt, omits to make his 
 defense, or if he brings it forward and it be overruled, under the idea 
 that it is not a defense at law, a c5urt of equity may afford relief notwith- 
 standing the trial at law.' In the case of Bateman v. Willoe,^ Lord Redes- 
 dale said, there may be cases cognizable at law, and also in equity, and 
 of which cognizance cannot be effectually taken at law, and therefore 
 equity does sometimes interfere ; as in complicated accounts, when the 
 party has not made defense, because it was impossible for him to do it 
 effectually at law. 
 
 An award stands upon the same footing as a judgment, with respect to 
 the power of a court of equity to relieve against it. As was well remarked 
 by Van Vechten, senator, in a leading case, the parties to an arbitrament 
 elect their own judges, and voluntarily clothe them with powers commen- 
 surate to a final decision on their rights, unshackled by legal forms and 
 technical rules. Every submission may, therefore, be considered as evinc- 
 ing the intent of the parties to transfer the power of deciding finally 
 upon the matters submitted, from the judicial tribunals to the arbitrators.' 
 
 The power of the court to set aside an award for mistakes has already 
 been alluded to, and the general subject of awards, in various other as- 
 pects, may, perhaps, be noticed hereafter. At present we are to inquire 
 as to tte remedy, where the award is obtained by fraud. 
 
 It seems to be settled, that if an award is obtained by false and fraudu- 
 lent statements of a party,' or by the corruption and partiality of the 
 arbitrators, or by the suppression and concealment of material facts by 
 either of the parties, if the knowledge of those facts would have produced 
 a different result, it is a suflicient ground for setting it aside.' In the last 
 mentioned case, the refusal of the arbitrators to hear legal, pertinent and 
 rdaterial evidence, was held to be such gross misconduct in the arbitrators, 
 as to afford good cause, upon well established principles of equity, for 
 setting aside the award. The party objecting to the evidence, in such a 
 case, may well be treated as participating in the gross misconduct of the 
 arbitrators. But when there is no charge of corruption, partiality, or 
 undue practice in the arbitrators, an award will not be set aside, however 
 unreasonable or unjust it may be.' In this position, it is assumed; that 
 
 • King V. Baldwin, 17 J. E. 889, per ' Van Cortland v. Underbill, 17 J. R. 
 Spencer, Oh. J. Eathbone v. Warren, 10 430. 
 id. 587. ' Bulkly v. Starr, 2 Day, 558. 
 
 ' 1 Sob. & Lefr. 205. • Van Cortland v.Underhill, 17 J. R. 458. 
 
 • Todd V. Barlow, 2 J. Oh. K. 651. 
 
Ch. 3.] Relief against Patents. 165 
 
 there was no fraud in the prevailing party, and that the unreasonableness 
 of the award was the mere result of the error in judgment of the 
 arbitrators. 
 
 Letters patent for conveying real estate, may be set aside in equity, 
 if the sarae were obtained by fraud. This was so held in an early case, 
 in 1684,' and the same was approved by the supreme court of New- York, 
 in Jackson v. Lawton.' In the latter case, two patents had been granted 
 for the same land. The second was, of course, inoperative, until the first 
 was set aside. The court said, that if the first was issued by fraud, or 
 on false suggestion, unless the fraud or mistake appear on the face of the 
 patent, it is not void, but voidable only. And if it be only voidable, it 
 can be avoided only by scire facias, or by bill or information, in the 
 court of chancery. In Maryland, say the court, the practice has long 
 been settled to vacate patents by a decree in chancery, founded on a 
 proceeding by bill, or information, or scire facias. (1 H. & M. 23, 92, 
 165. 2 id. 201, 244.) And in one of the cases it was admitted by the 
 chancellor, (2 id. 141,) that as long as a grant remained unrepealed by 
 chancery, it must prevail at law against a younger grant. 
 
 The practice of going behind the patent for lands when granted by the 
 general government, on allegations of fraud in the patentee, in obtaining 
 the patent, and of examining into the equities of other persons entitled 
 or claiming to be entitled to the patent, and setting aside the same if 
 fraudulently obtained, has been long judicially settled in Ohio and Ken- 
 tucky, and the same practice been pursued by the supreme court of the 
 United States.' The relief has in all cases been granted by bill in 
 equity, and Marshall, Ch. J., in one of the cases, while speaking of avoid- 
 ing a grant for causes existing anterior to its being issued, observes, that 
 there are some things so essential to the validity of the contract, that 
 the great principles of justice and of law would be violated, did there not 
 exist some tribunal to which an injured party might appeal ; and in which 
 the means by which an elder title was acquired might be examined. In 
 general, a court of equity appears to be a tribunal better adapted to this 
 object than a court of law. On an ejectment, the pleadings give no 
 notice of these latent defects, of which tlie party means to avail himself; 
 and, should he be allowed to use them, the holder of the elder grant 
 
 ' Att'y Gen. v. Vernon, 1 Vern. 277. Taylor,. 5 Cranch, 196. Polk's Lessee v. 
 
 " 10 J. R. 25, 26. Jackson v. Hart, 12 Weudell, 9 id. 93. 5 Wheat. 293. Miller 
 
 id. 77. 2 Bl. Com. 348. v. Kerr, 7 id. 1. Hofihagle v. Anderson, 
 
 ' Brush V. Ware, 15 Pet. 93. Bodly v. id. 213. 
 
166 Of Fraud. [Ch. 3, 
 
 might often be surprised. But in equity the specific points must be 
 brought to view ; the various circumstances connected with these points 
 are considered ; and all the testimony respecting thenj may be laid be- 
 fore the court. The defects in the title are the particular objects of 
 investigation ; and a decision of a court in the last resort upon them is 
 decisive. The court may, on a view of the whole case, annex equitable 
 conditions to its decree, or order what may be reasonable, without abso- 
 lutely avoiding a whole grant. In general, then, a court of equity is the 
 more eligible tribunal for these questions ; and they ought to be excluded 
 from a court of law. But there are cases in which a grant is absolutely 
 void ; as where the state has no title to the thing granted ; or where the 
 officer had no authority to issue the grant. In such cases, the validity 
 of the grant is necessarily examinable at law.' 
 
 In New- York it is enacted, that when it shall be alleged that letters 
 patent were obtained by means of some fraudulent suggestion, or con- 
 cealment of a material fact, made by the person to whom the same were 
 issued, or made with his consent or knowledge ; 2d, when it shall be alleged 
 that such letters patent were issued through mistake, and in ignorance 
 of some material fact ; 3d, when the . patentee, or those lawfully claiming 
 under him, shall have done or omitted any act, in violation of the terms 
 and conditions upon which such letters patent were granted ; or shall, 
 by any other means, have forfeited the interest acquired under the same, 
 a writ of scire facias may be issued out of the supreme court, in behalf 
 of the people, upon the relation of the attorney general, or of any private 
 person, for the purpose of vacating and annulling such letters patent.* 
 And this provision is adopted by the code of procedure ;' and has been 
 acted upon by the attorney general in a recent case.'' But this proceed- 
 ing is supposed to be in substance according to the common law,^ and 
 does not, therefore, exclude a resort to equity to obtain relief. 
 
 The contract of insurance has, in some instances, given rise to the 
 exercise of the authority of courts of equity. This contract is eithera 
 contract of indemnity against the perils of the sea, if it be a marine insur- 
 ance ;= or, if 'a fire policy, a contract of indemnity against loss by fire ;' 
 
 ' Polk's Lessees v. Wendell, 9 Cranoh, affirmed by court of appeals, Dec. term, 
 
 8V, per Marshall, Oh. J., in pp. 291, 292, 1858. 
 
 Oond. Eep. ' See reviser's note to the section. 
 
 » 2 E. S. 678, § 12. « 1 Duer on Ins. Lee. 1. 
 
 ' Code of Procedure, § 433. ' Murdock v. Chenango Mut. Ins. Co. 
 
 * The People v. Clark, 10 Barb. 120, 2 Oomst. 210. 
 
Ch. 3.] Relief to set aside Policy of Insurance. 167 
 
 or, if an insurance on life, it is a contract of indemnity, depending upon 
 the death of the person whose life is insured. All the writers on the 
 subject agree that it is eminently a contract of good faith, in which the 
 underwriter reposes confidence in the insured, and has a right to exact 
 from him all needful information, not within his own knowledge, that will 
 enable him to determine the nature and character of the risk. It is, 
 accordingly, an established principle, that a misrepresentation to the 
 underwriter, or concealment from him of a material fact aifecting the risk, 
 will avoid the policy. The consequences are the same, whether the mis- 
 representation or concealment be the result of accident, mistake, or fraud. 
 The remarks of Lord Mansfield, in a leading case,' contain the principle 
 applicable to this contract. The special facts, upon which the contingent 
 chance is to be computed, says his lordship, lie most commonly in the 
 knowledge of the insured only : the underwriter trusts to his representa- 
 tion, and proceeds upon confidence that he does not keep back any circum- 
 stance in his knowledge, to mislead the underwriter into a belief that the 
 circumstance does not exist, and to induce him to estimate the risk as if 
 it did not exist. The keeping back such circumstance is a fraud, and 
 therefore the policy is void. Although the suppression should happen 
 through mistake, without any fraudulent intention ; yet, still the under- 
 writer is deceived, and the policy is void; because the risk run is really 
 difierent from the risk understood and intended to be run, at the time of 
 the agreement. The policy would be equally void, against the under- 
 writer, if the insured concealed ; as if, for example, he insured a ship on 
 her voyage, which he privately knew to be arrived ; and an action would 
 lie to recover back the premium. Good faith forbids either party, by con- 
 cealing what he privately knows, to draw the other into a bargain, from 
 his ignorance of that fact, and his believing the contrary. 
 
 But either party may be innocently silent, as to grounds open to both, 
 to exercise their judgment upon. Aliud est celare ; aliud tacere. The 
 insured need not mention what the underwriter knows, or what he ought 
 to know ; or what he takes upon himself the knowledge of; or what he 
 waives being informed of.'' 
 
 Where, in a fire policy, the insured conceals a fact, which the insurer 
 has a right to know, the policy is void. As where goods in a store are 
 insured against fire, the condition annexed to the policy requiring a de- 
 scription of the property insured, and " its relative situation as to other 
 
 ' Carter v. Boehm, 8 Bur. 1905. 214, 302. 1 Marsh, on In. 450, 461, 464. 
 
 ' Laidlow v. Orgafi, 2 Wheat. 178. 1 Broom's Legal Maxims, 882. 
 Arnold on In. 537 to 539. 1 Phil, on In. 
 
168 ' Of Fraud. [Oh. 3. 
 
 buildings, distances from each, if less than ten rods," and the application 
 for the insurance is made a-part of the policy, any misstatement in such 
 application, as to the situation of the store, in regard to other buildings, 
 renders the policy void.' Here an affirmative statement of the fact would 
 be a warranty. But the assured omitted to give the infornpation which 
 the conditions of the application required, and the learned judge thought 
 such omission a concealment of a fact which the insurer had a right to 
 know ; and for that reason the policy was invalid ; it being a part of the 
 contract, that any "concealment in the application" should render the 
 insurance void.'' 
 
 In most instances, the question as to the validity of a policy of insur- 
 ance, and whether it has, or has not, been rendered void by reason of 
 fraud, are cases at law, and in general the remedy at law, in an action 
 upon the policy, is plenary and efficient. But a court of equity can inter- 
 fere before or after a loss has occurred, and require the policy to be 
 annulled on the ground of fraud, thus, where a merchant, having a 
 doubtful account of his ship, insured it without acquainting the insurers 
 of the danger the ship was in, the concealment was held to. be a fraud, 
 and the policy was ordered to be given up with costs, but the premium 
 was required to be returned.^ In like manner, an insurance on a life, 
 obtained by fraud, was set aside in equity, with costs, and the premium 
 directed to go as part of the costs.* But courts of equity in modern 
 times do not interfere in insurance causes, unless in some extraordinary 
 cases.^ 
 
 The principle, that a court of equity will relieve against contracts 
 fraudulently made, has been applied to instruments under seal, as well as 
 oral contracts. Where the one party is under an obligation to make a 
 disclosure, and the other is entitled to the information which the first 
 conceals, equity will relieve and set aside a conveyance thus fraudulently 
 obtained. Thus, where a devisee, under a will defectively executed, 
 represented the same to be properly attested, and concealed the defect 
 from the heir, who was ignorant thereof, and thus obtained from him a 
 release, the court adjudged the release to be invalid, and set it aside for 
 the fraud. Here was both the suggestio falsi and the suppressio veri, 
 either of which was a good ground for relief.' 
 
 ' "Wilson V. Herkimer Oo. Mut. In. Oo. * Whittingham v. Thombnrgli, 2 Vern. 
 2 Seld. 58. 206. 
 
 ' Id. Gates v. Madison Ins. Co. 2 " Charleston Insurance Co. v. Potter, 
 Oomst. 48, 51. 3 Desaus. 6. 
 
 ' De Costa V. Scandret, 2 P. Wms. 170. " Broderiok v. Broderick, 1 P. Wms. 
 
 139. 
 
Ch. 3.] Relief against Releases, 169 
 
 Tte case of Wheeler v. Smitb,' already cited under the head of mis- 
 take, might as appropriately be quoted here. The relation which the 
 parties stood to each other, the confidence which the releasor reposed in 
 the other parties, his necessitous circumstances, the disproportion between 
 the value of the property and the consideration of the release, would have 
 justified a decree, setting the release aside for fraud. 
 
 It is the settled doctrine of the courts of equity, that deeds and other 
 instruments fraudulently obtained, and which are attempted to be inequi- 
 tably set up, may be ordered to be delivered up and canceled, and, if need 
 be, a reconveyance ordered. Where a defendant procured a release, 
 without consideration, from an executor, who had renounced the exe- 
 cution of the will, and had become insolvent; and the release was 
 attempted to be ased for the purpose of defeating the claims of the act- 
 ing executor, who knew nothing of the circumstances, and whom the de- 
 fendant intended to defraud ; it wis held to be a proper case for the 
 interposition of a court of equity.*' , 
 
 In all cases of fraud, whether by misrepresentation or concealment, if ' 
 the injured party, with a full knowledge that he has been defrauded by 
 another, settles the matter and releases the party who has defrauded him, 
 he has no longer any legal or equitable claim to relief against such volun- 
 tary act.' An accord and satisfaction is equally available as a defense, in 
 equity as at law.* 
 
 SECTION II. 
 
 OF TRANSACTIONS BETWEEN PARTIES STANDING IN CONFIDENTIAL RELATIONS 
 TO EACH OTHER, AND OF UNDUE INFLUENCE. 
 
 There is a large class of cases, relievable in equity, arising from the 
 peculiar relation which the parties occupy with respect to each other, in 
 which confidence is reposed by the one party, and an influence is acquired 
 by the other. A learned judge in the court of appeals of New- York, in 
 a recent case, well ^remarked, that a court of equity interposes its benign 
 jurisdiction to set aside instruments executed between persons standing 
 
 ' 9 Howard, 55. See ante, p. 65. * Strong v. Holmes, 7 Oowen, 224. 
 
 " Thompson v. Graham, 1 Paige, 384. Bac. Abr. tit. Accord and Satisfaction, A. 
 ' Parsons v. Hughs, 9 id. 591. 
 Eq. Jue. 22 
 
170 Of Fraud. fCL 3. 
 
 in the relation of Parent and Child, Guardian and Ward, Physician and 
 Patient, Solicitor and Client, and in various other relations, in which one 
 party is so situated as to exercise a controlling influence over the -will, 
 conduct and interests of another.' Under this same head he might have 
 classed, also, the relation of Principal and Agent, Principal and Surety, 
 Landlord and Tenant, Ancestor and Heir, Husband and Wife, Trustee 
 and Cestui que Trust, Executors and Administrators, and Creditors, Lega- 
 tees and Distributees, Appointor and Appointee under powers, and Part- 
 ners and Part Owners. In these, and the like cases, the law requires the 
 utmost good faith, in order to prevent undue advantage from the unlimited 
 confidence which the relation creates. 
 
 Although some of the cases under this branch of the subject will be 
 considered more fully under other heads, and in some the line between 
 actual and constructive fraud cannot be accurately drawn, it will not be 
 improper to pass under review the principle by which the court is gov- 
 efned in interposing its aid, and some illustrations from the adjudged 
 cases.' 
 
 To make any agreement valid requires the assent of the understanding 
 of the several parties thereto. This implies freedom of action, as well as 
 the exercise of reason, accompanied with deliberation ; the taind weighing, 
 as in a balance, the good and evil on either side. Every true consent sup- 
 poses, 1st, a physical power ; 2d, a moral power of consenting ; and 3d, a 
 serious and free use of them. Hence, it follows, that persons under 
 duress, idiots, madmen and infants, are in general incapable of making 
 contracts, either from a want of freedom of action, or an ability to judge 
 of their own actions." This disability is not in all cases total, but sub 
 modo only.^ But the persons laboring under it are, at all times, the 
 peculiar objects of the paternal guardianship and protection of a court of 
 equity. 
 
 It is upon this principle that courts of equity watch, with extreme 
 jealousy, all contracts made by persons, when there is any ground to 
 suspect imposition, oppression, or undue advantage being taken by one 
 of the parties ; or when one trusts to another with a blind and credulous 
 confidence ; or when one of the parties, from whom an advantage has been 
 obtained, was in circumstances of extreme necessity and distress. Undue 
 influence can hardly ever obtain its object without some degree of 
 fraud ; but the cases show that it may exist without actual moral fraud. 
 
 ' Sears v. Shaffer, 2 Seld. 272, per Grid- ^ ronbl. Eq. B. 1, oh. 2, §§ 1 and 2. 
 ley, J.; S. C, 1 Barb. S. 0. R. 410, 418, » 2 Bl. Com. 291. 
 opinion of Barculo, J. 
 
Ch. 3.] Transactions between Attorney and Client. 171 
 
 It has a nearer affinity to duress than to fraud, and in some cases it may 
 contain a mixture of both. 
 
 In describing what undue influence is, it was said by Lord Langdale, 
 on one occasion,' that there are transactions in which there is so great 
 an inequality between the contracting parties — so much of habitual exer- 
 cise of power on the one side, and habitual submission on the other — that 
 without any proof of the exercise of power beyond that which may be 
 inferred from the nature of the transaction itself, a court of equity will 
 impute an exercise of undue influence. Such cases have not unfrequently 
 occurred in transactions between parent and child, and sometimes in 
 transactions between persons standing to each other in the relation of 
 solicitor and client. 
 
 But other cases do not rest solely on the nature of the transaction, 
 and the fact of habitual, or occasional influence ; it is required to show 
 that some advantage was taken, or that there was some fear, some use 
 of threat, or of undue practice, or persuasion. 
 
 When undue influence is to be inferred from the nature of the transac- 
 tion, or when the transaction itself is contrary to the policy of the law, 
 it is the province of the court to determine the point, and the question 
 ought not to be sent to a jury. 
 
 In the case he was considering, an issue had been awarded out of 
 chancery, to try whether a deed had been obtained by the attorney from 
 his client by fraud, or undue influence. The jury having found there 
 was no fraud, and that it was obtained. by undue influence, a motion was 
 made to set aside the verdict and for a new trial, for the reason that no 
 sufficient evidence appeared to justify the finding of undue influence. 
 The deed was given by the client to his attorney, on account of a bill of 
 costs due from the forbier to the latter. There was no evidence of the 
 exercise of power by the attorney over his client in the matter, and the 
 transaction was known to the family of the client, several days before the 
 deed was executed. As the testimony is detailed by the master of the 
 rolls, there was nothing existing in the case, but the actual relation of 
 solicitor and client ; and that alone, though enough to stimulate inquiry, 
 or awaken suspicion, is not sufficient, per se, to invalidate a deed. 
 
 The case of solicitor or attorney and client, does not stand upon the 
 same footing, with respect to dealing with each other, as Trustee and hia 
 Cestui que Trust. The solicitor is under no positive incapacity to pur- 
 chase from his client. A trustee, as will be shown elsewhere more fully, is 
 
 '1 Oasborne v. Barsham, 2 Beavan, 76. p. 167, where undue inflxience is said to be 
 Means v. Means, 5 Strobli. Law Appeals, something which destroys free agency. 
 
172 , Op Fraud. [Ch. 3. 
 
 not permitted, from motives of public policy, to purcliase the estate of 
 his beneficiary.' With respect to an attorney or solicitor, the onus lies 
 on him, when he makes a purchase from his client in the matter with 
 respect to which he is attorney or solicitor, which is impeached, to prove 
 that the transaction was fair. It was said on one occasion by Lord Eldon, 
 that " if the attorney will mix with the character of attorney that of ven- 
 dor, he shall, if the propriety of the transaction comes in question, mani- 
 fest that he has given his client all that reasonable advice against himself, 
 that he would have given him against a third person.'' He who bargains 
 in a matter of advantage, with a person placing confidence in him, is 
 bound to show that a reasonable use has been made of that confidence ; 
 a rule applying to trustees, attorneys, or any one else.' • 
 
 No doubt the rule does not apply, except the party was attorney in 
 hac re.* In one case it was said, that he cannot take any thing from 
 his client, for his own benefit pending the suit, but his demand ; nor at 
 its close, nor until the relation and influence have ceased.* 
 
 The influence created by the relation between attorney and client, has 
 been watched by our courts with as much jealousy, as by the English 
 courts. In a recent case before Chancellor Walworth,' the principles 
 above stated were fully approved and applied. In that case, the attor- 
 ney obtained from his client the assignment of a judgment, recovered by 
 himself as attorney, for a consideration so grossly inadequate, (about one 
 tenth of its value,) that the client would not probably have made the 
 assignment, if he had been fully informed of the facts, which his attorney 
 ought to have ascertained and communicated to him. The assignment 
 was set aside, and the attorney was ordered to pay to his client the 
 amount collected on it, deducting the sum paid by him to his client as 
 the consideration of the assignment. In this case, it was said that the 
 relation of attorney and client existing between the parties, rendered it 
 unnecessary to prove actual fraud. The difference between the value of 
 the judgment and the sum paid for the assignment, in connection with 
 that relationship, made it a case of constructive fraud, which relieved the 
 client from the burden of proving that the attorney intentionally deceived 
 him, or made any misrepresentations whatever, in relation to the value 
 of the judgment, or the probability of its collection. If the court was not 
 
 ' Heme v. Meeres, 1 Vern. 465. Ex ' 6 Ves. 377. 
 
 parte Reynolds, 5 Ves. 707. Ayliff v. ' Id. 
 
 Murray, 2 Atk. 59. Green v. Winter, 1 ' Edwards v. Meyrik, 2 Hare, 60. 
 
 J. Oh. E. 27. Parkist v. Alexander, id. " Jifooi v. Downes, 18 Ves. 127. 
 
 894. Sohieflain v. Stewart, id. 620. ' Howell v. Eanson, 11 Paige, 598. 
 Brown v. Rickets, 4 id. 803. 
 
Ch. 3.] Transactions between Attorney and Client. 173 
 
 bound to set aside th.e sale as a matter of course, upon the application of 
 the client, in such a case, the whole burden of establishing the fairness 
 of the sale, and that it was made upon full and adequate consideration, 
 was at least cast upon the attorney. The attorney, it was said, can never 
 sustain a purchase of this kind, without showing that he communicated 
 with his clients every thing which was necessary to enable them to form 
 a correct judgment of the actual value of the subject of the purchase, 
 and as to the propriety of selling at the price offered.' 
 
 In a still later case,^ the chancellor said, the safety of the community 
 requires Ihat a bond and mortgage obtained by a solicitor from his client, 
 upon the subject matter of the suit, pending the litigation, should not be 
 permitted to stand for any purpose whatever. This was going further 
 than is warranted by the adjudged caseS' in this and other states, and in 
 England, and must be understood with qualifications. The facts are not 
 detailed in the report of the case by Mr. Paige, but it appears, from 
 another part of the opinion, that it was also a case of gross fraud. But 
 in the report of the same case by Mr. Denio, on the appeal to the court of 
 errors,' we learn that the bond and mortgage were given by the client and 
 his wife, upon real estate, of which the wife was seised in fee, and in 
 which the client had only a contingent life estate by the curtesy, to the 
 solicitor of the husband, who was conducting an action for the partition 
 of the same property ; that the solicitor was insolvent ; that the only 
 consideration for the bond and mortgage was the individual bond of the 
 solicitor for the same amount, payable to the husband ; and that the busi- 
 ness capacity of the husband was of a low order. It was thus a mixed 
 case of fraud and undue influence, arising from the relation of solicitor 
 and client. And Spencer, senator, who delivered the leading opinion in 
 the court of errors, said, that he was not prepared to say that every bond 
 and mortgage taken by an attorney or solicitor from his client, upon the 
 subject matter of the suit, must necessarily be void. He looked upon 
 the transaction with no favor, and with a disposition to scrutinize it with 
 the utmost rigor. And he approved of the remarks of Lord Eldon in 
 Gibson v. Joyes, already cited,* that if the solicitor was able to manifest 
 that he had given his client all that reasonable advice against himself 
 that he would have given him against a third person, perhaps the security 
 might be held valid. The whole burden of proof should be thrown upon 
 the attorney or solicitor ; and that he who bargains in a matter of advant- 
 
 ' Howell V. Eanson, 11 Paige, 598. ' 6 Denio, 640, by the name -of Evans 
 
 ' Ellis V. Minervie, id. 467, 468. v. Ellis. 
 
 ' 6 Ves. 277, 278. 
 
174 Of Fraud. [Ch. 3. 
 
 age to himself, with a person placing confidence in him, is bound to show 
 that a reasonable use has been made of the confidence. 
 
 Before the adoption of the code of procedure in 1848, the courts of 
 New- York watched with extreme jealousy the dealings between attorney 
 and client, with respect to the matters in litigation. Neither the attorney, 
 solicitor or counsel was permitted to contract with his client, previous to 
 the termination of the suit, for a part of the demand or subject matter of 
 the litigation, as a compensation for his serrices.* And the same princi- 
 ples seem to have been very extensively adopted in this country.^ The 
 ground of the prohibition was in part the relationship of solicitor and 
 client, and in part its tendency to champerty. But whether tending to 
 champerty or not, any agreement is void as against public policy, which 
 places the interest of the solicitor in confiict with his paramount duty 
 to his client.' 
 
 The law will not imply undue influence, from the mere relationship of 
 attorney and client, in respect of transactions not in litigation. In such 
 cases, to induce the court to interfere, there must be something more 
 shown, either of fraud or imposition ; some gross disproportion betweeen 
 the value of the property, and the consideration ; some appearance of 
 overbearing influence on the one side, and tame submission on the other.* 
 
 The principle we have been considering has been applied to agree- 
 ments between a party to a suit before a single magistrate, before whom 
 attorneys do not generally appear, and an individual who appears as the 
 friend and confidential adviser of the party in such suit.* 
 
 So far as the New- York cases have been influenced by analogies to 
 the statutes to prevent champerty and maintenance, they may be, in 
 some respects, modified by the code of procedure. By the 303d section 
 of that act, all statutes establishing or regulating the costs or fees of 
 attorneys, solicitors and counsel in civil actions, and all existing rules 
 and provisions of law, restricting or controlling the right of a party 
 to agree with an attorney, solicitor or counsel, for his compensatimr, 
 are repealed ; and hereafter the measure of such compensation shall be 
 
 ' Merritt v. Lambert, 10 Paige, 358. ' Merritt v. Lambert, 10 Paige, 358 ; 
 
 " Thurston v. Peroival, 1 Pick. 416. 8. 0. 2 Denio, 607, affirming same. 
 
 Livingston v. Cornell, 2 Mart. Lou. Rep. * Bibb v. Smith, 1 Daua, 582. 'Wen- 
 
 281. Key v. Vattier, 1 Ham. E. 132. dell v. Van Rensselaer, 1 J. Oh. 350. 
 
 Rust V. Larue, 4 Litt. E. 411. Caldwell ' Buffia,low v. Buffalow, 2 Dev. & Batt. 
 
 V. Shepherd's Heirs, 6 Mon. R. 389. In 241. 1 Mad. Oh. 94 to 97, where the 
 
 re Eeakly, 5 Paige, 311. Arden v. Pat- older English cases are collected and re- 
 
 terson, 5 J. Ch. R. 44. Satterlee v. viewed. 
 Frazer, 2 Sandf. S. 0. R. 141. 
 
Ch. 3.] Transactions between Physician and Patient. 175 
 
 left to the agreement, express or implied, of the parties. Under tlie 
 above provisions of the code, the practice of attorneys and counsel to 
 make special bargains with their clients has become necessary, in order 
 to insure a compensation for their services, the taxable costs allowed, 
 being confessedly, in most cases, inadequate for that purpose.' 
 
 In many cases of undue influence, the consent of the party, from whom an 
 advantage is thus obtained, is to a certain extent coerced. He is not left to 
 that entire freedom of action essential to a correct judgment of his affairs, 
 and he is easily deluded by the blind confidence which he reposes in one 
 standing to him in a confidential relation. The principles upon which 
 courts of equity relieve against securities taken by an attorney from his 
 client, apply to all cases in which confidence is reposed by one party in 
 the other. In Dent v. Bennett,^ it was held that the court would relieve 
 against an agreement taken by a medical adviser from an aged patient, 
 by which the former, in consideration of his past services, was to be paid 
 25,000 pounds, after the death of the latter. In this case there were indeed 
 other elements influencing the judgment, besides the relationship between 
 the parties. The agreement was void at law, as holding out an induce- 
 ment to the medical adviser to accelerate his patient's death ; and there 
 
 ' The revised statntes of New-York for- 691, § 5. By section 6, the buying and 
 bid attorneys, counsellors and solicitors selling of pretended rights and title to 
 ■from buying, or being interested in buy- lands, &c. from a grantor not in possession, 
 ing, any bond, bill, promissory note, bill are also forbidden, and the violation of 
 of exchange, book debt, or other thing the, act is made a misdemeanor. But a 
 in action, with the intent and for the person not in possession is allowed to 
 purpose of bringing any suit thereon. 2E. mortgage the same, and is also allowed 
 S. 288, § 71.' The 72d section forbids the to convey the same to the person in pos- 
 lending, by any attorney, &c. or the ad- session. Some of the decisions under 
 vancing any money, &c. as an inducement the foregoing statutes are the following : 
 to the placing in their hands for coUec- Mann v. Fairchild, 14 Barb. 648. Tuttle 
 tion of any note, bond, &o. &c., and the v. Jackson, 6 Wend. 213. Hall v. Gird, 
 next section makes the violation of the 7 Hill, 586. Baldwin v. Latson, 2 Barb. 
 act a misdemeanor. The taking of any Oh. E. 307. I am not aware of any re- 
 conveyance of any lands or tenements, or ported case, since the adoption of the 
 of any interest therein, from any person code, in relation to bargains between at- 
 not being in possession thereof, while torney and client. How far the positions 
 such lands or tenements shall be the sub- in the text will be modified by the code 
 ject of controversy by suit, in any court, is, at present, 'matter of conjecture. 
 knowing the pendency of such suit, and ' 7 Simons, 539 ; S. 0. 2 Mylne & 
 that the grantor was not in possession, Craig, 269. 
 &c., is made a misdemeanor. 2 E. S. 
 
176 Of Feaud. [CL3. 
 
 was an apparently gross disproportion between tlie value of the services 
 and the sum agreed to be given. 
 
 The relation of parent and child is one of mutual confidence ; and from 
 the natural and just influence which the former has over the latter, the 
 contracts and conveyances, whereby benefits are secured by children to 
 their parents, should be watched with jealousy. Where a father obtained 
 an absolute conveyance from a daughter, in order to answer one purpose, 
 and afterwards made use of it for another, Lord Hardwicke relieved agsiinst 
 it under the head of fraud. And in giving his opinion, he laid stress on the 
 fact that, it was a conveyance obtained by a father from his child.' The 
 cases do not go the length of declaring a contract between parent and 
 child, per se, void, by reason of that relation. They do not infer undue 
 influence or fraud, in a conveyance, because the grantor is a son and the 
 grantee the father. They do not go the length of declaring contracts 
 made between parties standing in that relation void, upon principles of 
 public policy. In the cases where the courts have interfered ■ in the 
 dealings between parent and child, there have been invariably other 
 ingredients, showing undue influence, operating upon the hopes or the 
 fears of the child, and some reasonable grounds to presume that the act 
 was not perfectly free and voluntary on the part of the child. 
 
 The supreme court of the United States, in a recent case, declined 
 sanctioning the broad principle, that the deed of a child to a parent is, 
 prima facie, void. The learned judge who delivered the prevailing 
 opinion said : " It is undoubtedly the duty of courts carefully to watch 
 and examine the circumstances attending transactions of this kind, when 
 brought under review before them, to discover if any undue influence has 
 been exercised in obtaining the conveyance. But to consider a parent 
 disqualified to take a voluntary deed from his child, without considera- 
 tion, on account of their relationship, is assuming a principle at war with 
 all filial as well as parental duty and affection ; and acting on the pre- 
 sumption, that a parent, instead of wishing to promote the interest and 
 welfare, would be seeking to overreach and defraud his child. Whereas 
 the presumption ought to be, in the absence of all proof tending to a con- 
 trary conclusion, that the advancement of the interest of the child was 
 the object in view ; and to presume the existence of circumstances con- 
 ducing, to, that result. Such presumption harmonizes with the moral 
 obligations of a parent to provide for his child ; and is founded on the 
 same benign principle that governs cases of purchases made by parents 
 
 ' Young V. Peasley, 2 Atk. 254. 
 
CL 3.] Transactions between Parent and Child. 177 
 
 in the name of a cbild. The prima facie presumption is, that it was 
 intended as an advancement to the child, and so not following within the 
 principle of a resulting trust. The natural and reasonable presumption 
 in all transactions of this kind is, that a benefit was intended the child, 
 because in the discharge of a moral and parental duty. And the intereet 
 of the child is abundantly guarded and protected by keeping a'watchful 
 eye over the transaction, to see that no undue influence was brought to 
 bear upon it."' 
 
 The existence of undue influence and abused confidence may exist in 
 many cases, when a child obtains from an aged and infirm parent a con- 
 veyance of his estate, and when the presumption that it was intended as 
 an advancement is repelled by all the surrounding circumstances. In 
 such cases a court of equity has not hesitated to interpose. A conveyance 
 obtained by children from a father will not be sanctioned by the court, 
 if it appears to have been caused by an abuse of confidence reposed hy 
 him in his children, who, for the purpose of procuring it, took advantage 
 of his age, imbecility and partiality for them, and the conveyance was 
 upon an inadequate consideration. Thus, a conveyance, by a father 74 
 years of age, his wife being nearly 70 years of age, and in delicate health, 
 to his two sons, of real and personal estate worth more than nine thou- 
 sand dollars, taking from his sons a bond and mortgage to secure his and 
 his wife's maintenance, and an annuity of fifty dollars during their lives, 
 was held to be for a consideration grossly inadequate, it not appearing to 
 be intended as an advancement.^ 
 
 In the case just referred to, it was stated by the learned judge who 
 delivered the opinion, that a contract obtained from one party who was in 
 the power of the other, cannot be sanctioned if confidence has been abused, 
 if there be inadequacy of price, or the inference is plain that advantage 
 has been taken of age and imbecility, and the partiality of a parent has 
 been artfully made use of to strip him of his property, and reduce him to 
 a state of dependence and want. And the general principle already 
 stated was sanctioned, that he who bargains in matter of advantage, with 
 a person placing confidence in him, is bound to' show that a reasonable 
 use has been made of that confidence. 
 
 In the foregoing case a number of elements combined to show that the 
 conveyance should be set aside. The dissensions in the family had led to' 
 a separation of the wife from the husband. A portion of the children ad- 
 hered to her, and another portion, the grantees, to him. The latter ob- 
 tained a controlling influence over the father, and for an inadeqate 
 
 ' Jenkins v. Pye, 12 Pet. E. 253, 254. » Whelan v. "Whelan, 3 Oowen, 587. 
 Eq. JtJK, 23 
 
178 Of Fbauit. [Ch. 3. 
 
 consideration, and upon unfounded representations, obtained the deed ins 
 question. Perhaps neither ground alone would have beera sufficient to 
 authorize the court to set aside the conveyance. But in the case where 
 great confidence has been reposed, and an ascendancy has been obtained 
 by one party over another, if a court of equity sees that any acts or 
 stratagems, or any undue means, or the least speck of imposition, or the 
 least scintella of fraud entered into the bargain, it will avoid the grant.* 
 Of a character similar in principle to the foregoing, was a recent case 
 in the supreme court of New-York, where the like relief was granted,* 
 
 But a more stringent rule is applied in the case of what are called 
 catching bargains of young heirs ; as where an unconscionable purchase is 
 made from a young heir, in his father's lifetime, by a person other than 
 one standing in loco •parentis. To that class of persons a court of equity 
 seems to have extended a degree of protection, approaching nearly to 
 an incapacity to bind themselves by any contract.' It acts upon the 
 principle, that these persons necessarily contract on unequal terms ; and 
 it grants relief upon general principles of mischief to the public, without 
 requiring particular evidence of actual imposition upon them, as they are 
 cases of general concern.^ The whole duty of making good the bargain 
 from an expectant heir, is upon the vendee.^ An expectancy, no doubt, 
 may be sold, provided it is fairly sold j but the court, in favor of young 
 heirs, requires the vendee to show it. Prima fade, the transaction is 
 invalid. 
 
 The real object which the rule professes, being to restrain the antici- 
 pation of expectancies, which must, from its very nature, furnish to design- 
 ing men an opportunity to practice upon the inexperience or passions 
 of a dissipated man ; its operation is not confined to heirs, but extends 
 to all persons, the pressure of whose wants may be considered as obstruct- 
 ing the exercise of that judgment which might otherwise regulate their 
 dealing.' 
 
 Though inadequacy of consideration between persons standing upon 
 equal footing is, in courts of equity, of no account, unless from its gross- 
 ness it afibrds evidence of fraud, yet, in regard to expectant heirs, it 
 becomes a ground for the interposition of the court.' And in such case 
 
 ' Whelan v. Whelan, 3 Oowen, 537. * Walmesley v. Booth, 2 Atk. 28. Bor- 
 
 ° Brioe v. Briee, 5 Barb. 633. Sears v. ney v. Pitt, 2 Vern. 14. 
 Shafer, 1 Barb. S. 0. E. 408 ; S. 0. affirm- " Ooles v. Trecothick, 9 Ves. 246. Gow- 
 ed on appeal, 2 Seld. 268. land v. De Faria, 17 Ves. 25. 
 
 " Peacock v. Evans, 16 Ves. 514. " 1 Fonbl. Eq. B. 1, ch. 2, § 12, notek. 
 
 ' Peacock v. Evans, 16 Ves. 517. 
 
Ch. B.J Expectant Heirs. 179 
 
 the conveyance is set aside on payment of principal, interest and costs, 
 the defendant being considered as a mortgagee.' The plaintiff must do 
 «quity by paying what was really lent." 
 
 The tendency of the doctrine of the court, in these cases, to render all 
 bargains with such persons very insecure, if not altogether impracticable, 
 seems not to have been considered as operating to prevent its adoption 
 and establishment ; but, on the contrary, some judges have avowed that 
 probable consequence, as being to them the recommendation of it' 
 
 The ground on which the doctrine rests being that the expectant heir 
 is defenseless, and under the pressure of necessity, and that there is an 
 implied fraud upon the ancestor, who is ignorant of the transaction, it 
 would seem that, if the reason of the rule ceased, the rule itself should 
 cease also. It has accordingly been held, that when an expectant heir, 
 under pecuniary pressure, mortgages his reversionary interest, to obtain 
 an advance of money or credit for a purchase of goods, and the party in 
 present possession of the property so mortgaged stands in loco parentis 
 to such heir, and knows and approves of the transaction, the heir has no 
 equity to have it rescinded. 
 
 The remarks of Lord Brougham, in a case before him in the English 
 chancery, throw much light upon the subject.* " Two propositions," says 
 the chancelleor, " I take to be incontestible, as applicable to the doctrines 
 of this court upon the subject of an expectant heir, dealing with his 
 expectancy, and as governing more especially the present question. 
 First, that the extraordinary protection given in the general case must 
 be withdrawn, if it shall appear that the tranasotion was known to the 
 father, or other person standing in loco parentis — the person, for exam- 
 ple, from whom the spes successionis was entertained, or after whom the 
 reversionary interest was to become vested in possession — even although 
 such parent or other person took no active part in the negotiation, pro- 
 vided the transaction was not opposed by him, and so carried through ia 
 spite of him. Secondly, that if the heir flies off from the transaction, 
 and becomes opposed to him with whom he has been dealing, and repudi- 
 ates the whole bargain, he must not, in any respect, act upon it so as to 
 alter the situation of the other party, or his property ; at least, that if he 
 does so, the proof lies upon him of showing that he did so under the 
 continuing pressure of the same distress which gave rise to the original 
 dealing- Still more fatal to his claim of relief will it be, if the father, or 
 
 ' Gowland v. De Faria, 17 Ves. 23. * King v. Hamlet, 2 Myl. & E. 456; S. 
 
 « 1 Fonb. Eq. B. 1, ch. 2, § 13. * 0. 1 Cooper's Sel. Oas. 281. 
 
 ' Peacock v. Evans, 16 Ves. 515. 
 
180 Of FiiAUD. [Ch. 3. 
 
 person in loco parentis, shall be found to have concurred in this adoption 
 of the repudiated contract. Either of these propositions would be deci- 
 sive of the present question, if they were well founded in law, and if the 
 
 facts allow of their application to it 
 
 " The whole doctrine, with respect to an expectant heir, assumes that 
 the one party is defenseless, and exposed unprotected to the demands of 
 the other, under the pressure of necessity. It would be monstrous to 
 treat the contracts of a person of mature age as the acts of an infant, 
 when his parent was aware of his proceedings, and did nothing to pre- 
 vent them. The parent might thus lie by and suffer his son to obtain the 
 assistance which he ought himself to have rendered ; and then only 
 stand forward to aid him in rescinding engagements which he had allow- 
 ed him to make and to profit by. If all the cases be examined, from 
 the time of Lord .Nottingham downwards, no trace will be found, in any 
 one of them, of the father's or other ancestor's privity ; on the contrary, 
 whenever the subject is touched upon, his ignorance is assumed, as part 
 of the case ; and its being so seldom mentioned either way, shows clearly 
 that the privity of the father, or ancestor, never was contemplated. It is, 
 however,^ several times adverted to in a manner demonstrative of the 
 principle. In Cole v. Gibbon, (3 P. Wms. 290,) the ground of this 
 whole equity is said to be the policy of the law to prevent the heir being 
 seduced from a dependence upon the ancestor, who probably would have 
 relieved him. In the same spirit. Lord Cowper, in Twistleton v. Griffith, 
 (1 P. Wm. 310,) had before stated, as one effect of the law, its tendency, 
 by cutting off relief at the hands of strangers, to make the heir disclose 
 his difficulties at home. So in the Earl of Chesterfield v. Janssen, (1 Atk. 
 339,) Mr. Justice Burnett treats such transactions as things done behind 
 the father's back, and, as it were, a fraud upon him ; a view of the sub- 
 ject also adopted by Lord Hardwicke, in the same case, (1 Id. 353, 354.) 
 It is as well to mention these cases, because there has been no decision 
 upon the point ; but it is quite a clear one, and only new because the 
 facts never afforded a case for decision, the proposition apparently never 
 having been questioned.'" 
 
 On the same principle, a post obit bond, given by an expectant heir, 
 has jDsen relieved against. A post obit bond is an agreement, on the re- 
 ceipt of a sum of money by the obligor, to pay a larger sum, exceeding 
 the legal rate of interest, on the death of the person from whom he has 
 
 some expectation, if the obligor be then living. This contract is not coa- 
 
 « 
 
 ' King V. Hamlet, 2 Myl. & K. 456; S. 0. 1 Cooper's Sel. Cas. 281. 
 
Ch. 3.] Post Obit Bonds. 181 
 
 sidered as a nullity ; but it may be made on reasonable terms, in 'whicli 
 the stipulated payment is not more than a just indemnity for the hazard. 
 But ■whenever an advantage is taken of the obligor to induce him to 
 make the contract, he is relieved as against an unconscionable bargain, 
 on payment of the principal and interest.' 
 
 These bonds do not conflict with the statute against usury ;' nor are 
 they a fraud upon the obligor. They operate as a fraud upon the ances- 
 tor, disappointing his intentions ; they are against public policy ; for 
 they are productive of prodigality on the one hand, and beget extortion 
 on the other ; want and avarice always generating one another.^ 
 
 The general policy of the law is, to require the party who deals with 
 expectant heirs and reversioners to prove that he paid a fair price, and, 
 otherwise, to undo the bargain and compel a reconveyance. These same 
 principles apply to post obit bonds. The burden of showing the fairness 
 of th« transaction, is cast upon the party who seeks to enforce them ; 
 and in the absence of such proof, the security will be relieved against. 
 But yet, as it is not absolutely void, but voidable merely, the court does 
 not relieve except upon the terms of doing equity.* 
 
 It has, however, been decided that a sale of a reversion, aX public auc- 
 tion, does not fall within the rule, and that the purchaser was not bound 
 to show, in the first instance, the fairness of the sale. There being no 
 treaty between vendor and purchaser in such case,, there can be no op- 
 portunity for fraud, or imposition, on the part of the purchaser .= The 
 sale by auction, it was said, was evidence of the market price, and the 
 vendor is, in such case, in no sense in the power of the purchaser. But 
 the sale of post obit bonds at auction, when they were put up for sale 
 without reserve, will be relieved against. The selling such bonds with- 
 out reserve by a young man, desirous of raising a large sum upon them, 
 payable at the death of his father, was notjce to all that the vendor was 
 a young man in distress ; that he was so much pressed for money, that 
 he undertook, with those who thought fit to be bidders, that he would 
 not have recourse to those precautions by which every provident seller, 
 at an auction, protects himself against an inadequate price ; and it was 
 thought that such vendor was, in some sense, in the power of those deal- 
 ing with him, and the sale by auction did not, under the circumstances, 
 afford fair evidence of the market price." 
 
 If such bonds were absolutely void at law, they could not be rendered 
 
 ' Boynton v. Hubbard, 7 Mass. 119. * 1 Fonb. Eq. B. 1, ch. 2, § 13. 
 
 ' Wharton v. May, 5 Ves. 27. Earl of ' Shelly v. Naah, 3 Mad. Oh. K. 286. 
 
 Chesterfield' v. Janssen, 1 Atk. 351. " Fox v. Wright, 6 Mad. Oh, E. 111. 
 'Id. 
 
182 Op Fraud. [Oh. 3. 
 
 valid by any new agreement. But being voidable merely, the party, 
 after the contemplated event has happened, and the pressure of necessity 
 has been removed, may confirm the precedent contract.' A deed found- 
 ed in actual arid positive fraud, as being made under the influence of 
 corrupt motives, and with an intention to cheat creditors, may be consid- 
 ered void, ab initio, and never to have had any lawful existence. The 
 grantee in the deed may be considered as particeps criminis, and is not 
 permitted to deduce any right from an act founded in actual fraud. 
 But this rule is not applied to contracts which are only considered fraud- 
 ulent by construction of law, as being against the policy or provisions 
 of particular statutes." Such contracts can be affirmed by the parties, 
 unless the statute declares them to be void. A deed fraudulent and void 
 as against others, may good between the parties to it.' 
 
 The position that such bonds can, under any circumstances, be con- 
 firmed, has been doubted, on the authority of some cases in New- York 
 and Virginia. But, in those cases,- the contract sought to be confirmed 
 was absolutely void between the parties, and not merely voidable. It was 
 void not merely as against public policy, but declared so by statute.' 
 
 The relationship of guardian and ward gives rise to the application of 
 principles similar to those we have been considering. As infants are 
 peculiarly entitled to the favor of the court, their dealings with their 
 guardian should be watched with jealousy. In New- York, Ohancellor 
 Walworth said, in one case,' that it was not the practice of the court to 
 discharge the guardian absolutely, and to order his bond to be given up 
 immediately upon the infant's arriving of age, although he had settled 
 with the guardian. That the ward, notwithstanding such settlement, was 
 entitled to a reasonable time, after he became of age, to investigate the 
 accounts of the guardian, and to surcharge and falsify the same, if, upon 
 such investigation, he found any thing wrong. That by the practice of 
 the court of chancery, he was usually allowed one year for that purpose, 
 after he became of age, before the guardian's bond would be canceled, 
 and the guardian absolutely discharged from his trust. That when the 
 application to the court was made after the expiration of the year, the 
 
 ' Earl of Chesterfield v. Janssen, 1 Atk. ' Hoomes v. Smock, 1 "Wash. Eep. 392. 
 
 854. 1 Fonb. Eq. B. 1, ch. 2, § 13, note r. Payne v. Eden, 3 Cai. 217. Yeoman v. 
 
 "Per Thompson, Ch. J. in Murray v. Ohatterton, 9 J. R. 297. Wiggins v. Bash, 
 
 Eiggs, 15 J. K. 586. Sands v. Oodwise, 12 id. 309. 1 Eonb. Eq. B. 1, ch. 2, § 14, 
 
 4 id. 598, 599, per Kent, Ch. J. ^terry v. No. 11. 
 
 Arden, 1 J. Ch. K. 271. ' In matter of Home, 7 Paige, 46. 
 
 ° Jackson v. Caldwell, 1 Cowen, 622. 
 
Ch. 3.] Between Guardian and Ward. 183 
 
 bond would be delivered up and canceled immediately, upon the produc- 
 tion of the receipt or discharge of the ward, duly proved or acknowledged. 
 But if the application was made within the year, the order would only 
 direct the guardian to be discharged, and that the bond be delivered up 
 and canceled at the expiration of the year; unless the infant, before that 
 time, obtained an order to the contrary, or filed with the officer with 
 whom the bond was deposited a caveat, or notice not to deliver up, or 
 cancel the bond without the further order of the court. These regula- 
 tions are obviously dictated by an anxious regard to the rights and inter- 
 ests of the ward. 
 
 In an earlier case, before Chancellor Kent,' the release given by the 
 ward six months after arriving at age, which release was fully and fairly 
 made, and without any fraud, misrepresentation or undue means to obtain 
 it, was held to be valid. But the case also shows the protecting agency 
 of the court over the rights of the ward. Three guardians had been 
 appointed by the surrogate of New- York for the infant^, one of whom died 
 soon after, and the other two acted. The ward, six months after arriving 
 at age as before stated, released one of the said guardians, and in the 
 same instrument reserved her claims against the other one, who had been 
 the acting guardian, and against whom her accounts were unsettled. On 
 a bill filed for an account against the guardian not intended to be dis- 
 charged, the release was plead in bar ; but the court held, that though 
 at law the release of one of two or more obligors to a joint and several 
 bond be a release of all, yet, in equity, the release should be construed 
 according to the intent of the parties. It was therefore held to be opera- 
 tive only in favor of the guardian intended to be released, and his surety, 
 leaving the bond in full force against the remaining guardian and his 
 surety. 
 
 Lord Eldon, in one case, said, that a guardian cannot take any thing 
 from his ward pending the guardianship, or at the close of it, or at any 
 period, until his influence has ceased to exist.^ In this case he refers, 
 with approbation, to Hylton v. Hylton, (2 Ves. 547,) where Lord Hard- 
 wicke stated the general principles on the subject, and said: "Where a 
 man acts as guardian, or trustee, in nature of a guardian, for an infant, 
 the court is extremely watchful to prevent that person taking any ad- 
 vantage immediately upon his ward coming of age, and at the time of 
 settling accounts or delivering up the trust ; because an undue advantage 
 may be taken. It would give an opportunity, either by flattery or force, 
 by good usage unfairly meant, or by bad usage imposed, to take such an 
 
 ' Kirby v. Taylor, 6 J. Oh. K. 242. " Wood y. Pownes, 18 Ves. 126. 
 
184 Of Fraud. [Ch. 3. 
 
 advantage ; and, therefore, the principles of the court is of the same 
 nature with relief in this court,, on the head of puhlic utility; as in 
 bonds obtained from young heirs ; and rewards given to an attorney, 
 pending a cause, and marriage brokage bonds. All depends upon public 
 utility ; and, therefore, the court will not suffer it, though perhaps, in a 
 particular instance, there may not be an actual unfairness." And he 
 further added : " The rule of the court as to guardians is extremely 
 strict, and, in some cases, does infer some hardship, as where there has 
 been a great deal of trouble, and he has acted fairly and honestly, and 
 yet he shall have no allowance.'" 
 
 The rule of the common law which withholds from trustees, guardians, 
 (fcc, a compensation for their " care and pains," in executing the trust, 
 and merely allows them their '' costs, charges and all just allowances," 
 was formerly the rule of this state." Where a trustee had fairly 
 expended money by reasonably taking opinions, and procuring directions 
 necessary to the due execution of the trust, he was held to be entitled to 
 such charges, under the head of just allowances.' Lord Talbot declared 
 the reason of the rule for refusing an allowance to a trustee, for care and 
 trouble, viz. that under that pretext, the trust estate might be loaded 
 and rendered of little value ; and also because of the great difficulty 
 there might be in settling and adjusting the quantum of such allowance, 
 as one man's time might be more' valuable than that of another, and that 
 the rule was nO hardship upon the trustee, since the acceptance of the 
 trust was of his own choice.^ And Lord Hardwicke, on one occasion,' 
 said that the court, in general, looked upon trusts as honorary, and a 
 burden upon the honor and conscience of the person entrusted, and not 
 undertaken upon mercenary views ; and he thought there was a strong 
 reason, too, against allowing any thing beyond the terms of the trust, 
 because it gives an undue advantage to a trustee to distress a cestui qui 
 trust, and therefore the court always held a strict hand upon trustees in 
 this particular. At the same time he said, that if a trustee comes in a 
 fair and open manner, and tells the cestui qui trust that he will not act 
 in such a troublesome and burdensome office, unless the cestui qui trust 
 will give him a further compensation, over and above the terms of the 
 trust, and it is contracted for between them, he would not say that the 
 court would set it aside, though there is no instance where they have 
 
 ' Hylten v. Hylten, 2 Ves. 548, 649. ' Feara v. Young, 10 Ves. 184. 
 
 Hamilton v. Moliun, 1 P. Wms. 120. ■" Robinson v. Pitt, 3 P. Wms. 249. 
 
 ' Green v. Winter, 1 J. Oh. K. 27 ; S. ' Ayliff v. Murray, 2 Atk. 60. ^ 
 
 P., Maning v. Maning, id. 627. 
 
CL 3.] Gratuities to Guardians. 185 
 
 confirmed such bargain. The foregoing principles were all approved by 
 Chancellor Kent in an early case,' and he evidently thought it was com- 
 petent for the trustee to stipulate in advance, with the cestui qui trust, 
 for a compensation. 
 
 The strictness and severity of the common law rule in this respect, 
 led the legislature in 1817 to relax it, so far as to make it lawful for 
 the chancellor, in the settlement of the accounts of guardians, executors 
 and administrators, on petition or otherwise, to make a reasonable allow- 
 ance to them for their services as guardians, &c., over and above their 
 expenses ; and when the rate of such allowance should have been settled , 
 by the chancellor, it should be conformed to in all eases of the settlement 
 of such accounts.^ 
 
 At common law the court watched with great jealousy the dealings 
 between the guardian and ward, on the termination of that relationship. 
 This did not arise from the supposed immorality of a gratuity from the 
 ward to a faithful guardian. Such gratuity might spring from the gen- 
 erous impulse of a grateful heart, creditable alike to the giver and re- 
 ceiver. But the mind of the ward might be misled by undue kindness, 
 or forced by oppression to make the gift. Whether it was granted under 
 either of these influences, or was an act of rational consideration, could 
 never be fully known to the court To allow such gifts to stand, would 
 increase the difficulty of getting property from the hands of the guardian. 
 
 ■ Green r. Winter, 1 J. Oh. E. 38, 39. Benson, Hopkins, 28, Chancellor Sand- 
 
 ' 40th Sess. oh. 351, L. of 1817, p. 292. ford reviewed the former practice, and 
 
 In pursuance of this law, Chancellor vindicated the policy of a fixed and rea- 
 
 Kent, on the 16th October, 1817, made sonable rate of compensation. Without 
 
 an order, fixing the compensation to guar- referring to a, single reported case, the 
 
 dians, executors and administrators, in chanoellpr gave an elaborate review of all 
 
 the settlement of their accounts, at five the adjudged cases in England on this 
 
 per cent on all sums not exceeding one subject. Chancellor Kent, in Ex parte 
 
 thousand dollars, for receiving and pay- Eoberts, 3 J. Ch. R. 43, made the like al- 
 
 ing out the same ; two and a half per lowance to the committee of the estate 
 
 cent on any excess between one and five of lunatics, as the law had authorized to 
 
 thousand dollars, and one per cent for all be made to executors, &c. And in Meach- 
 
 above one thousand dollars. 3 J. Oh. E. am v. Stprnes, 9 Paige, 401, Chancellor 
 
 630 631. On the revision of the laws in Walworth decided that other trustees, 
 
 1830, the substance of the order of Chan- when no provision for a compensation 
 
 cellor Kent was enacted and made part was made in the instrument under which 
 
 of the statute relative to executors, ad- they were appointed, fell within the 
 
 ministrators and guardians. 2 R. S. 93, equity of the same rule. 
 § 58. Id. 153, § 22. In McWhorter v. 
 
 Bq. Jvr. ' 24 
 
186 Op Fraud, [Ch. 3* 
 
 Under the rule, aa it was settled by the courts, there was no inducement 
 to withhold a settlement, in order to extort a gratuity.' 
 
 The provisions of the New- York statute have removed some of the 
 temptations to abuses which before existed, A reasonable compensation 
 for services, at a fixed rate, leaves no apology for seeking a gratuity. 
 
 Upon the same principles we have been considering, it is a rule of 
 equity, that a trustee shall gain no benefit by any act done by him as 
 trustee, but such benefit shall accrue to his cestui que trust or benefi- 
 ciary." The doctrine of trusts will be treated under its appropriate head. 
 At present it is sufficient merely to say, that a trust, in its simplest ele- 
 ments, is a confidence reposed in one person, who is termed the trustee, 
 for the benefit of another, who is called the cestui que trust ; and it is- 
 a confidence respecting property, which is thus held by the former, for 
 the benefit of the latter. Out of this confidence arise two estates in 
 the property which is the subject of it ; a legal estate in the trustee, 
 which consists in obligation, and an equitable estate in the eestui que 
 trust, which consists in right, and beneficial enjoi/ment. This is a suffi- 
 cient definition of the terms for the present purpose, while we are merely 
 considering the manner in which the court treats a purchase of the trust 
 property by the trustee.^ 
 
 The rule is well settled, that if a trustee, acting for others, sells an 
 estate and becomes himself interested in the purchase, the cestui que 
 trust is entitled to come into equity, as of course, and set aside that pur- 
 chase, and have the property re-exposed to sale.* The sale in such case 
 is not void at law, and the legal estate passes to the purchaser ; but he 
 takes it subject to its being set aside in equity on the application of the 
 beneficiary, if made within reasonable time. The beneficiary thus has 
 his election in all cases, either to acquiesce in the sale, and thus affirm 
 it, or have it set aside and a resale ordered.^ And it makes no differ- 
 
 » Hatch v. Hatch, 9 Ves. 297. . 1 E. S. 727-731. But the plain English 
 
 'Holt V. Holt, 1 Oh. Gas. 191. is used as above. (Id. §60.) If the word 
 
 ' The definition above given is from Bur- " beneficiary" could be substituted for the 
 
 rell'a Law Diet. tit. Trust. Judge Story barbarous phrase, cestui que trust, or for 
 
 proposes to substitute for the term cestui its definition, in nine words, as given 
 
 que trust, the English word ieneflcian/. I above from the 60th section, it would be 
 
 see no objection to the change, provided an improvement. 
 
 we understand by the latter term, " the * Davoe v. Fanning, 2 J. Cb. E. 257. 
 
 person for whose benefit the trust is ere- ' Id. and Jackson v. Walsh, 14 J. E. 
 
 ated." It is worthy of observation, that 407. Bergen v. Bennett, 1 Gaines' Gas. 
 
 the words cestui que trust are not used in Er. 1, 
 
 in the statute concerning uses and trusts. 
 
, Ch. 3.] Trustee and Cestui auE Trust. 18T 
 
 ence in the application of the rule, that the sale was at public auction, 
 bona fide and for a fair price.' 
 
 The reason why a trustee cannot in» general purchase the trust prop- 
 erty, either from th« trustee or at public sale, is, that his interest inter- 
 feres -with his dutyj Emptor emit quam minimio potest : venditor 
 vendit quam, m,axim,o potest.^ The policy of the rule is to shut the 
 door against temptation. It thus operates as a preventiye of frauds. 
 Nor is it necessary, in order to invalidate such purchases, to show that 
 the trustee has made any adTsfetage in. the article purchased. The rear 
 son is, that it would not be safe, with reference to the administration of 
 justice in the general affairs of trusts, that a trustee should be permitted 
 to purchase ; for human infirmity will, in very few instances, permit a 
 man to exert against himself that providence, which a vendor ought to 
 exert, in order to sell to the best advantage ; and which a purchaser is 
 at liberty to exert for himself, in order to puchase at the lowest price.^ 
 
 A trustee may, indeed, buy from the beneficiary, provided there is a 
 distinct and clear contract, ascertained to be Such, after a jealous and 
 scrupulous examination of all the circumstances, that the beneficiary 
 intended the trustee should buy ; and there is no fraud, no concealment, 
 no advantage taken by the titustee, of information acquired by him in 
 the character of trustee.* 
 
 If it be for the interest of the beneficiary that the trustee should 
 become the purchaser, and the former is an infent, the court can, on a 
 proper applicatioa, allow the trustee to become the purchaser, upon offer- 
 ing to give more than any other person." In that way, the court divests 
 him of the character of trustee, and prevents all the consequences of his 
 acting both for himself and for the cestui que trust.' If the trustee has 
 a personal interest in the sale, which may be sacrificed if he is not per- 
 mitted to bid, the court will appoint a master, or -another trustee in his 
 place, to make the sale.' But, even in those cases, the court must be 
 satisfied the interest of the cestui que trust will not suffer in consequence 
 of such permission. If the trustee, in virtue of his trust, possesses supe- 
 rior advantages of information as to the situation and value of the property, 
 
 ' Hendricks v. Ec>bertson, 2 J. Oh. 0. ' Ex parte Bennett, 10 Ves. 394. Coles 
 
 211, V. Treoothiek, 9 Vesey, 246. Stuart v. 
 
 » Davoe v. Fanning, 2 J. Oh. K. 256. Kissam, 2 Barb. S. 0. E. 493. 
 
 Fox V. MeKreth, White's Leading Equity ' Campbell v. Walker, 5 Ves. 681, 682. 
 
 Cas. 72, and notes. 49 vol. Law Lib. 105, " Id. and Davoe v. Fanning, 2 J. Ch. R. 
 
 144, where the cases are collected and 261. 
 
 reviewed. ' l^e Caters v. Le Bay Chaumont, 3 
 
 ' Ex parte Bennett, 10 Ves. 894. Paige, 178. 
 
188 Of Fraud. [Ch. 3. 
 
 so that he will not come to the sale on terms of equality ■with other bid- 
 ders, the court will not put him in a situation which may make it for his 
 interest to keep that information to himself 
 
 On the principle that a trustee is not permitted to derive any benefit 
 from his position at the expense of the cestui que trust,, a trustee of a 
 junior mortgage canaot buy in the premises for his own benefit, on the 
 foreclosure of a prior mortgage, to the prejudice of the subsequent mort- 
 gage which he holds in trust for others. His duty in such case is in 
 conflict with his interest. In cases of this kind, says Chancellor Wal- 
 worth, the court does not suffer itself to be drawn aside from the appli- 
 cation of the equitable rule, by any attempt on the part of the purchaser, 
 to establish the fairness of the purchase. The rule is founded on the 
 danger of imposition, and the presumption of the existence of fraud which 
 is inaccessible to the eye of the court.^ 
 
 On the same priciple, a trustee who buys in an outstanding incum- 
 brance a^inst the trust estate, is only entitled to hold such incumbrance 
 as a security for the amount actually paid by him therefor, with interest,' 
 
 As the trustee' cannot lawfully become a purchaser of the trust prop- 
 erty under a prior incumbrance for his own benefit, and to the prejudice 
 of the beneficiaries, without their consent, so, if he does so purchase, at 
 a price below the real value of the property, he will be treated as making 
 the purchase for the use and benefit of his cestui que trust.* 
 
 Trustees cannot deal in their own behalf, with the funds intrusted to 
 their charge for the benefit of another. Accordingly, where trustees and 
 executors invested a legacy in bank stock, which was in whole or in part 
 the individual property of one of the trustees, and a loss was sustained 
 in consequence of a depression of the stock, they were held accountable 
 for the loss.* 
 
 The rules we have been considering are firmly established in the 
 English' and American jurisprudence.' In addition to the cases al- 
 
 ' I)e Caters v. La Ohaumont, S Paige,- ' Mills v. Goodsell, &Co-nn.476. Green 
 
 180. V. "Winter, 1 J. gh. R. 27. PariWst v. 
 
 ' Van Epps v. Van Epps, 9 Paige, 2'41, Alexander, id. 394. Holdredge v. Gilles'- 
 
 242. pie, 2 J. Oh. R. 80. Hart v. Ten Eyck, 
 
 ° Quackenbush v. Leronard, 9 Paige, 4 id. 104. Vanhorne v. Fonda, 5 id. 409. 
 
 834. Evertson v. Tappan, id. 514. Miohoud 
 
 < Slade V. Van Veohten, 11 Paige, 21. v. Gi rod, 4 How 555. Prevost v. Gratz, 
 
 ' Ackcrman v. Emott, 4 Barb. 626. 6 Wheat. 481. Oliver v. Piatt, S. How. 
 
 • Holt V. Hoit, 1 Oh. Oas. 601. Whelp- 333. Fox v. Maokreth, White's Leading 
 
 dale V. Oookson, 5 Ves. 682. Sanderson Cas. in Eq. and the AmeriGan notes; and 
 
 V. Walker, 18 id. 601. Morse v. Royal, see post, under Trusts, where the same 
 
 12 Ves. 855. subject is treated under a different aspect. 
 
Ch. 3.] Executors and Administrators, &c. 189 
 
 ready cited, those referred to below establish and illustrate the same 
 principles. - 
 
 The doctrine we have been considering is applicable to executors and 
 administrators, who are not permitted to purchase up the debts of the 
 deceased on their own account ; but, in this and most other respects, stand 
 on the footing of other trustees. 
 
 In like manner it applies to the relation of landlord and tenant, prin- 
 cipal and agent, principal and surety, partner and partner, and various 
 others, where mutual agencies, rights and duties are created between the 
 parties, either by their own acts, or by operation of law. 
 
 In the case of principal and agent, the principal contracts for the skill 
 and judgment of the agent, and he has a right to expect from him the 
 utmost fidelity. The habitual confidence reposed in the latter, imparts 
 to his acts and statements a controlling influence over the conduct of the 
 former. Hence, the law watches with jealousy the dealings of the agent, 
 and does not permit him, when his duty requires him to act for the prin- 
 cipal, to act for his own exclusive benefit. ' 
 
 Upon this principle an agent, employed to sell, cannot make himself 
 the purchaser ; nor if employed to purchase, can he be himself the seller.' 
 The rule of equity which prohibits purchases by parties placed in a 
 situation of trust and confidence, with reference to the subject of pur- 
 chase, is not confined to trustees, or others who hold the 'legal title to 
 the property to be sold ; nor is it confined to a particular class of per- 
 sons, such as guardians, trustees or solicitors. But it is a rule which 
 applies universally to all who come within the principle ; which principle 
 is, that no party can be permitted to purchase an interest in property, 
 and hold it for his own benefit, when he has a duty to perform in rela- 
 tion to such property, which is inconsistent with the character of a pur- 
 chaser on his own account, and for his individual use.'' And a sub-agent 
 is just as much disqualified as an agent is to make a purchase in opposi- 
 tion to, the rights and interests of his principal.^ And when an agent, 
 employed to purchase an estate, becomes the purchaser for himself, a 
 court of equity will treat him as a trustee for his principal.^ On the 
 same ground, an agent is precluded from taking the benefit of purchas- 
 ing a debt which his principal was liable to discharge. If employed to 
 
 ' Lowther v. Lowtlier, 13 Ves. 103. ' Story, J., Baker v. "Whiting, 1 Story's 
 
 ' Per Walworth, Cla. in Vatf Epps v. E. 241. 
 Van Epps, 9 Paigel, 241. Hawley v. * Lees v. Nuttall, 1 R. & Myl. 47. 
 Cramer, 4 Oowen, 717. Brioe v. Brioe, 
 5 Barb. 538. 
 
l90 Op Feaud. [Ch. 3. 
 
 Settle the debt on behalf of his employer, his duty is to settle it upon 
 the best terms he can obtain. If he is able to procure a settlement of 
 the debt for any thing less than the whole amount, it would be a viola- 
 tion of his duty to his employer, or, at least, would hold out a temptation 
 to violate that duty, if he might take an assignment of the debt, and so 
 make himself a creditor of his employer to the full amount of the debt 
 which he was employed to settle. The same duty devolves on a surety 
 who compounds a debt for which his principal and himself have become 
 jointly liable, and takes an assignment thereof, to a trustee, for himself; 
 he can only claim against his principal the amount which he has actually 
 paid.' And so an agent, who discovers a defect in the title of his prin- 
 cipal to land, cannot misuse it to acquire a title for himself ; and if he 
 does, he will be held as a trustee, holding for his principal." 
 
 If a trustee or an agent undertakes to purchase of the owner an estate, 
 or stocks, or debts, with the condition of which he may be well acquaint- 
 ed, and of which the owner is entirely or partially ignorant, there is no 
 doubt a sufficient disclosure should be made to enable the owner to 
 judge of the adequacy of the offer made. If there is any thing mis- 
 represented or concealed, or withheld without a design to conceal, the 
 bargain will be void.' This rests upon the fiduciary relation hetween 
 the parties, by which the agent is bound to make a full disclosure, and 
 from the confidence which the principal reposes in his agent. 
 
 The relation which principal and surety bear to each other is, in some 
 respects, analogous to that of partners, and the two cases may be appro- 
 priately treated together. It results from the nature of partnership 
 that each partner, during the continuance of the partnership, is agent 
 for his copartners, in all matters pertaining to their joint business, but, 
 at the dissolution of the partnership, this agency ceases with respect to 
 new transactions, and exists only for the legitimate purposes connected 
 with the winding up of the concern.' Hence the signature of one part- 
 ner, in matters of simple contract, relating to the partnership, binds the 
 firm.' One partner may release a debt due to the firm, or create a debt 
 against it.' A release to one discharges the debt against both.'' Pay- 
 
 ' Eeed v. Norris, 2 Myl. & Craig, 362, ' Carviok v. Viokery, Doug. 653. -Whit- 
 
 874. comb v. Whiting, id. 652. 
 
 " Ringo v. Binns, 10 Pet. 269. " Per Lord Kenyon, in Perry v. Jack- 
 
 = Per Parke, Oh. J., Farnam v. Brooks, son, 4 D. & E. 519. , 
 
 9 Pick. 283. ' Bao. Abr. Obligation. Eeed v. Mo- 
 
 ' Oollyer on Part. 234-239, 62. Gow Naughton, 15 Barb. 177. 
 
 on Part. 42. ' 
 
Ch. 3.] 
 
 Joint Debtors, Partners and Part Owners. 
 
 191 
 
 ment to one is payment to the firm.' Notice to one is notice to , all, and 
 notice from one is notice from all. It is, on this principle of agency, 
 that an acknowledgment of a debt, by one partner, during the contin- 
 uance of the firm, was held to revive it, if outlawed, against the firm, 
 and a partial payment either of interest or principal, made by one part- 
 ner, to continue the obligation against the company. The same princi- 
 ple applies in the case of principal and surety that governs in the case 
 of partners. Each was treated as an agent for his companion to make 
 payments, and the efi'eet of a partial payment was to revive the debt for 
 the balance.* The death of one of the partners revokes the agency, and 
 terminates the privity existing between the parties.^ 
 
 Joint debtors are, with respect to the transaction in which they are 
 united, treated as partners, and subject to all the eonseqnences of that 
 relation.* With respect to payment by one, or a release or. notice to one 
 of several joint debtors, the efiect is the same as if they were partners. 
 
 • Duff V. East India Oo. 15 Ves. 213. 
 
 ' Collyer on Part. 233, and notes. A 
 discussion of the statute of limitations 
 does not belong to this subject The lead- 
 ing cases on the effect of a partial pay- 
 ment will be found discussed in Eeid v. 
 McNaughton, 15 Barb. 168 et seq. Bell 
 V. Morrison, 1 Pet. 351. Van Keuren v. 
 Parmelee, 2 Comst. 52T. And most of 
 the cases are collected and reviewed in 
 AngeU on Limitations, ch. 23, p. 270 et 
 seq. It is believed that the weight of 
 authority, in England and in New- York, 
 till quite recently, sustains the position, 
 that each partner and joint debtor is an 
 agent for his companion, to make pay- 
 ment. The code of procedure, while it 
 enacts that no acknowledgment or prom- 
 ise shall be sufficient evidence of a 
 new or continuing contract, whereby 
 to take the case out of the operation 
 of the statute of limitations, unless the 
 same be contained in some writing, sign- 
 ed by the party to be charged thereby, 
 expressly leaves the effect of a partial 
 payment of principal or interest as at 
 common law. Code of Procedure, § 110, 
 See also 1 Smith's Leading Cases, 531 ; 
 note to "Whitoomb v. Whiting, Doug. 652. 
 
 This latter is the leading case on the sub- 
 ject of one debtor being a quasi agent 
 for his co-debtor, which is approved in 
 Eeid v. McKaughton, supra, and Lane v. 
 Doty, 4 Barb. 530. The recent decision 
 of the court of appeals, in Shoemaker v. 
 Benedict, 1 Kernan, 176, has carried out 
 the reasoning of the judge who delivered 
 the opinion of that court, in Van K%uran 
 V. Parmelee, to its consequences. It is 
 now held in this state, that payment? 
 made by one of the joint and several 
 makers of a note, and indorsed upon it, 
 before an action upon it is barred by the 
 statute of limitations, and within six 
 years before suit brought, do not affect 
 the defense of the statutes as to the oth- 
 ers. It seems then, that in this state, 
 there is no mutual agency between joint 
 debtors, which will authorize one to act 
 for and bind the others in a manner to 
 vary or extend their, liability. It is be- 
 lieved that the foregoing decision, in 
 Shoemaker v. Benedict, took the profes- 
 sion in this state by surprise. 
 
 " Lane v. Doty, 4 Barb. 530. Atkins 
 V. Tredgold, 2 B. & C. 23. Slater v. Law- 
 son, 1 B. & Ad. 396. 
 
 * Eeid V. McFaughton, 15 Barb. 178, 
 
192. Ot Fraud. [Ch. 3. 
 
 Each joint debtor is a principal for the payment of the portion of the 
 debt belongings to him to discharge, and is a surety for his companions, 
 that they shall pay their shares. By the death of one of several joint 
 debtors, the remedy of the creditor, at law, survives against the survivor, 
 and he alone can be sued and be Compelled to pay the whole debt. On 
 such payment the personal representatives of the deceased are bound to 
 contribute their proportionate share.' But every joint loan, whether 
 contracted in relation to mercantile transactions or not, is, in equity, to 
 be deemed joint and several. Therefore, according to the English doc- 
 trine, upon the death of one of several joint contractors, or obligors, the 
 creditors have a right in equity to immediate relief out of his assets, with- 
 out claiming any relief against the surviving joint contractors or obligors, 
 or showing that the latter were unable to pay by reason of their insol- 
 vency,'' though the latter are necessary parties. The reason of this doc- 
 trine was thus expounded by the master of the rolls, in the last mention- 
 ed case of Wilkinson v. Henderson : " All the authorities establish that, 
 in the consideration of a court of equity, a partnership debt is several as 
 well as joint. The doubts upon the question, whether the assets of the 
 deceased might be first resorted to, seem to have arisen from the general 
 principle, that the joint estate is the first fund for the payment of the 
 joint debts, and, that the joint estate vesting in the surviving partner, 
 the joint creditor, upon equitable considerations, ought to resort to the 
 surviving partner, before he seeks satisfaction from the assets of the de- 
 ceased partner. It is admitted that if the surviving partner prove to be 
 unable to pay the whole debt, the joint creditor may then obtain full 
 satisfaction from the assets of the deceased partner. The real question 
 then is, whether the joint creditor shall be compelled to pursue the sur- 
 viving partner in the first instance, and shall not be permitted to resort 
 to the assets of the deceased partner until it is established that full sat- 
 isfaction cannot be obtained from the surviving partner ; or whether the 
 joint creditor may, in the first instance, resort to the assets of the de- 
 ceased partner, leaving it to the personal representatives of the deceased 
 partner to take proper measures for recovering what, if any thing,' shall 
 appear upon the partnership accounts to be due from the surviving part- 
 ner to the estate of the deceased partner. Considering that the estate 
 of the surviving partner is at all events liable to the full satisfaction of 
 the creditors, and must, first or last, be answerable for the failure of the 
 surviving partner ; that no additional charge is thrown on the assets of 
 
 ' Hammerly v. Lambertj 2 J, Ch. K. ' Thorpe v. Jackson, Tonnge&O. 553. 
 209. 'Wilkinson v. Henderson, 1 Myl. & K. 582. 
 
Ct. 3.] Joint Debtors. 193 
 
 the deceased partner by the resort to them in the first instance, and 
 that great inconvenience and expense might otherwise be occasioned to 
 the joint creditors ; and further, that according to the two decisions in 
 Sleech's case, and in the case of Devaynes v. Noble, the creditor was 
 permitted to charge the separate estate of the deceased partner, which 
 in equity was primarily liable, as between the partners, without first 
 having resort to dividends, which might be obtained by proof under the 
 commission against the surviving partner, I am of opinion that the plain- 
 tifi" is entitled in this case to a decree for the benefit of himself, and all 
 other joint creditors, for the payment of his debt out of the assets of the 
 deceased partner." 
 
 This doctrine is not confined to partnerships or to mercantile cases. 
 It is equally applicable to all joint debts ; for the debt will be treated in 
 equity as joint and several. And in case any of the debtors die, relief 
 will be granted in equity out of his assets, without claiming any relief 
 against the surviving joint debtors, or showing that they are unable to 
 pay by reason of their insolvency.' 
 
 The rule is different in this state, as will be shown more at large un- 
 der the head of Partnership. We have followed the earlier English 
 cases in the times of Lord Hardwicke, and declined to follow the more 
 recent decisions in England. With us, the personal representatives of 
 the deceased joint debtor cannot be reached without alleging and show- 
 ing the insolvency of the surving debtor.^ 
 
 The same good faith must be used by joint debtors towards each other, 
 as is required in case of principal and surety, and principal and agent ; 
 and the cases applicable to the one relation, have an appropriate bearing 
 on the other. The doctrine we have considered in relation to agency, is 
 applicable also to joint debtors. Good faith and ingenuous dealings is 
 exacted from all who hold either of the relations above mentioned.^ 
 
 All that has been said in relation to partners is equally applicable to 
 part owners of vessels. Each part owner is under the same obligation 
 of good faith towards his companion, that the agent is to his principal, 
 and as one partner is to his associates. It is a relation in which the same 
 confidence is reposed, as in those we have been considering. 
 
 'Thorpe v. Jackson, 2 Y. & C 553'. nnng, 5id. 254. Payne v. Mathewson, 6 id. 
 
 Sleech's case, 1 Meriv. 539. "Wilkinsou 19. Lawrence v. The Trustees of Leake's 
 
 V. Henderson, IMyl.&K. 583. Devayne Orpjjans, 2 Denio, 577. 11 Paige, 80. 
 
 V. Noble, 2 Euss. & Myl. 495. Smith v. Ballantine, 10 id. 101. Jenkins. 
 
 = Hammersly v. Lambert, 2 J. Oh. R. v. Gfoot, 1 Cai. 0. E. 121. 
 608. Wilder v. Keeler, 3 Paige, 162. " Dob. v. Halsey, 16 J. E. 84. Post v. 
 
 Brown v. Story, 2 id. S94. Butts v. Ga-. Kimberiy, 9 id. 489, per Thompson, J. 
 
 Eq. J0B. • 25 
 
194 Of Fraud. [Ch. 3. 
 
 The class of cases to which our attention has been directed, in which 
 the dealings of parties standing in a confidential relation to each other 
 are called" in question, are often treated as falling under the head of con- 
 structive fraud ; and probably, in most instances, they are properly so 
 denominated. The rule of equity which requires, in most of these'cases, 
 that the burden of proving the fairness of the transaction should be cast 
 upon the party seeking to enforce an advantage he had acquired from 
 one holding such relation to him as to excite the jealousy of the court, is 
 sometimes treated as a rule devised to prevent fraud. But in nearly all 
 the cases under these heads, which have formed the subject of judicial 
 examination, some other ingredient, besides the mere confidential rela- 
 tion of the parties, such as undue influence, concealments, misrepresenta- 
 tions, inadequate consideration, or surprise, has entered into the dealings 
 between the parties, and, in whole or in part, afibrded the ground for 
 equitable relief It is, therefore, impossible to introduce a classification 
 which will be perfectly acciirate. The relief granted in all these cases 
 is properly referable to the head of fraud, and whether in each case it be 
 actual, or only constructive firaud, or a mixture of both, is, so far as the 
 remedy is concerned, a matter of minor importance. 
 
 SECTION ni. 
 
 01- TKANSAOTIONS WHERE AN UNCONSCIENTIOUS ADVANTAGE HAS BEEN TAKEN 
 OP THE MENTAL WEAKNESS OF A PAHTT. 
 
 Having thus considered how equity deals with cases arising between 
 parties standing to each other in a relation implying confidence, we pas& 
 to another class of cases in which an unconscientious advantage has been 
 taken of persons disabled by Weakness, Infirmity, Age, Lunacy, Idiocy, 
 Drunkenness, Coverture, Infancy, or other incapacity, from protecting 
 their own interests. 
 
 Il; has already been stated, that the consent requisite to make a valid 
 agreement is an act of reason, accompanied with deliberation ; the mind 
 weighing, as in a balance, the good and evil on either side ; and it was 
 further remarlied, that every true consent implies, first, a physical power ; 
 secondly, a moral power of consenting ; and thirdly, a serious and free 
 use of them.' Creatures void of reason and understanding-are incapable 
 
 ' Ante, p. 170. 1 Fonb. Eq. B. 1, oh. 2, § 1. 
 
Ch. 3.] Belief in Cases of Weakness of Mind. 195 
 
 of giving a serious and firm assent. If the party had not sufficient men- 
 tal capacity to give consent, or if the consent were obtained by fraud, 
 duress, surprise, or undue influences, no valid contract can be made. 
 
 If, then, the acts and contracts of a person non compos mentis be in 
 general invalid, as they obviously must iTe in reason and justice, the 
 inquiry is, by whom and in what manner can they be avoided ? It was 
 laid down by the early writers of the common law, that no man of full 
 age should be admitted to stultify himself. In Beverly's case,' it was 
 held that the deed, feoffment or grant, which any man non compos mentis 
 makes, is voidable not by himself, but by his privies in blood, or in repre- 
 sentation. In the same case. Coke says, every act which a person non 
 compos does, either concerns his life, his lands or his goods ; also every 
 act which he does, is either in pais or in a court of record ; all acts which 
 he does in a court of record, either concerning his lands or goods, shall 
 bind himself and all others forever ; all acts which he does ■ concerning 
 his lands or his goods m pais, in some cases shall only bind himself 
 during his life, and in some shall bind forever. The same doctrine is 
 laid down in Bacon's Abridgment, under the head of Idiots and Lunatics, 
 and the reason assigned why a man shall not be permitted to disable 
 himself, is to prevent the insecurity that might arise in contracts from 
 counterfeit madness and folly ; and from the repugnancy that the party 
 should know or remember what he did. But the heirs and executors 
 may avoid such acts in pais, by pleading the disability ; for there is no 
 such repugnancy in their pleading it.^ But this ancient rule of the 
 common law has, in modern times, given way in England to more enlight- 
 ened notions of justice,' and it has been wholly repudiated in this coun- 
 try.* Courts of equity have, in England, held that the maxim before 
 mentioned is to be understood of acts done by the lunatic in prejudice of 
 others, but not as to acts done by him in prejudice of himselfj for this 
 can have no foundation in reason and natural justice.^ 
 
 T^ith regard to what constitutes a want of mental capacity, the rule in 
 equity is the same as at law. There cannot, says Lord Hardwicke, be 
 two rules of judging in law and in equity, upon the point of insamty.' 
 And in Osmand v. Eitzroy, the master of the rolls said, there was no 
 such thing as an equitable incapacity, when there is legal capacity.'' 
 
 • 4 Coke, 123. 530. Eice v. Pelt, 15 J. E. 503. Mitch- 
 ' Bao. Abr. tit. Idiots and Lunatics, F. ell v. Kingman, 5 Pick. 431. Webster v. 
 
 2 Bl. Com. 291. Litt. § 405. Co. Litt. Woodford, 3 Day, 90. 
 247, a. ° 1 Fonb. Eq. B. 1, ch. 2, § 2. 
 
 » Gates V. Boen, 2 Str. 1104. " Bennett v. Vade, 2 Atk. 32'r. 
 
 * 2 Kent's Com. 451. Dean's Med. Jur, ' 8 P. Wms. 130. 
 
196 Of Fraud. [Oh. a. 
 
 We shall have occasion, in a subsequent chapter, to treat of the sub- 
 ject of idiots, lunatics, and persons of unsound mind, and habitual 
 drunkards, and of the mode in which the jurisdiction over this class of 
 persons and their estates is exercised by courts of equity.' At present 
 we are treating of the relief -afforded by the courts against the acts of 
 these persons, in connection with the subject of fraud, either actual or 
 constructive. It is sufficient, therefore, in this place, to say that a luna- 
 tic, or non compos mentis, is one who hath had understanding, but by 
 disease, grief, or other accident, hath lost the use of his reason. A 
 lunatic is indeed properly one that hath lucid intervals j sometimes enjoyt- 
 ing his senses and sometimes not, and that frequently depending upon, 
 the changes of the moon. But under the general name of non compos 
 Tnentis, which Sir Edward Coke says, is the most legal term, are com- 
 prised" not only lunatics, but persons under frenzies ; or Who lose their 
 intellects by disease ; those that grow deaf, dumb and blind, not being 
 born 80, or such, in short, as are adjudged by the court incapable of con- 
 ducting their own affairs.^ 
 
 The question with respect to the mental capacity necessary to make a 
 valid deed arose in an action of ejectment, and was decided by the su- 
 preme court, in a leading case.^ It was there laid down, that to establish 
 incapacity in a grantor, he must be shown to have been at the time non 
 compos mentis, in the legal acceptation ; that by that term was meant 
 not a partial but an entire loss of the understanding. The ground was 
 taken by the learned judge, that the common law seems not to have 
 drawn any discriminating line by which to determine how great must be 
 the imbecility of mind to render a contract void, or how much intellect 
 must remain to uphold it. Weakness of understanding is not, of itself, 
 any objection to the validity of a contract. If a man be legally compos 
 mentis, he is the disposer of his own property, and his will stands for 
 the reason for his actions. These principles have been frequently affirm- 
 ed since, as well in relation to deeds as to wills.* Th« full discussion of 
 this branch of the subject belongs to treatises on medical jurisprudence.'' 
 
 Such being the law with respect to mental competency, we will pro- 
 ceed to show in what manner courts of equity deal wij;h the subject. As 
 persons laboring under this malady are incapable of entering into a valid 
 
 See post, Chapter onldiots, &c. v. Fisher, 1 Paige, 171. Blanohard v. 
 
 " 1 Bl. Com. 315. Nestle, 3 Denio, 37. Osterhout v. Shoe- 
 
 ' Jackson v. OaJdwell, 4 Oowen, 207. maker, I'd. note. 
 
 * Odell v. Buck, 21 Wend. 142. Stew- " See Dean's Med. Juris. 555 et seq. 3 
 
 art T. Lispenaxd, 26 id. 298 et seq. Clark Mad. Ch. Pr. 565 et seq. 
 
Ch. 8.] Relief in Cases of Weakness of Mind. 197 
 
 contract, any individual -who knowingly deals -with them, is chargeable 
 with fraud. 
 
 The extreme anxiety of courts of law to protect the authority of their 
 records, has, in former times, led them to give efficacy to a fine levied by 
 a man who was obviously an idiot, and obtained by a gross contrivance. 
 Eut in equity, the remainderman was relieved against a fine levied by an 
 idiot, even against a purchaser. The court of chancery, however, in the 
 case of fraud, it is said, does not set aside or vacate the fine ; but con- 
 sidering those who have taken it under such circumstances, as trustees, 
 decrees a reconveyance of the estate to the persons prejudiced by the 
 fraud.* 
 
 The deed of a person non compos mentis, may be avoided for fraud, in 
 a court of law, but the action of ejectment must be brought in the name 
 of the lunatic, and not in that of his committee.^ And this is so though 
 the inquisition find the party of unsound mind from his nativity.' And 
 the action may be brought against the lunatic, by his grantor, if the 
 lunatic be in possession ; but to constitute a defense it must be shown 
 that there was a total want of understanding in the grantor, at the time 
 the deed was executed.* In analogy to these cases, it should seem that 
 if the lunatic seek to set aside the deed, in a court of equity, for fraud, the 
 action should be in his own name if he be living, notwithstanding there 
 be a committee of his person and estate. The committee is a mere bailiff 
 or servant, and the interest and right of action remain in the lunatic. 
 And the action should be brought by him who has the legal interest. 
 And this is so, whether the action be for the recovery of real or personal 
 property, and whether the action be at law or in equity.' 
 
 ' Mansfield's case, 12 Coke, 124. Fonb. 3 Barb. Oh. K. 24. But now, by statute, 
 Eq. B. 1, oh. 2, § 2, and note k. Rush- L. of 1845, p. 91, § 2, receivers and oom- 
 loy v. Mansfield, Tothill's Trans. 42. Ad- mittees of lunatics and habitual drunk- 
 dison V. Mascall, 2 Vern. 678. Wilkin- ards, appointed by any order or decree 
 Eon V. Brayfield, 2 Id. 307. of the court of chancery, may sue in 
 " Lane v. Schermerhorn, 1 Hill, 97. their own name, for any debt, claim or 
 Petrie V. Shoemaker, 24 Wend. 85. Oster- demand transferred to them, or to the 
 hout V. Shoemaker, 3 Denio, 37, note. possession or control of which they are 
 ' Id. entitled as such receiver or committee , 
 * Odell V. Buck, 21 Wend. 142. and when ordered to sell such demands, 
 ' Lane v. Schermerhorn, 1 Hill, 97. the purchaser thereof may sue and re- 
 Stewart V. Graham, 19 Ves. 312. Oox cover therefor in his own name, but shall 
 V. Dawson, Noy's R. 27. Shelf, on Lun. give such security for costs to the de- 
 395. But see 2 Madd. Ch. Pr. 592, 593; fendant, as the court in which such suit 
 Teal V. Woodworth, 3 Paige, 470 ; New is brought may direct. 
 V. New, 6 id. 237; Gorham v. Gorham, 
 
198 Of Fraud. [Oh. 3. 
 
 It was held by Chancellor Kent that it is not necessary for the lunatic 
 to be a party plaintiff with his committee, to set aside an act done by the 
 lunatic while under mental imbecility. He deemed it matter of form ; 
 and thought the lunatic might be joined with his committee, or omitted.' 
 The general practice was said to be to unite the lunatic with the commit- 
 tee, as was done in 2 Vern. 678.' The provisions of the New- York code 
 of procedure would seem to require the action to be brought in the name 
 of the lunatic, he being the real party in interest.* But it must undoubt- 
 edly be conducted under the direction of the committee.^ 
 
 A person deaf and dumb from his nativity is not therefore an idiot or 
 non compos mentis ; though such perhaps may be the legal presumption 
 until his capacity is proved, on inquiry and examination for that purpose.* 
 
 Irrespective of fraud in other respects, it should seem that a convey- 
 ance, executed by a person who at the time was a fit subject for a com- 
 mission, under the statute, to a party knowing of the incapacity, would 
 be relieved against in equity ;' but a weakness and incapacity falling 
 short of this, will not afford ground for the interposition of the courts, 
 without some other evidence of fraud, imposition, surprise, or inade- 
 quacy of consideration.' For, as was said by Sir Joseph Jekyl, when a 
 weak man gives a bond, if there be no fraud or breach of trust in the 
 obtaining it, equity will not set it aside, for the weakness of the obligor, 
 if he be compos mentis ; neither will the court measure the size of peo- 
 ple's understanding or capacities, there being no such thing as an equita- 
 ble incapacity, where there is a legal capacity.'' But in the case he was 
 considering, there was both fraud and a breach of trust in obtaining the 
 bond, and it was given for a sum grossly disproportioned to the services 
 of the obligee, and the court set it aside, on the ground of fraud. 
 
 But a party making a contract with a person whom he knows to be a fit 
 subject for a commission, is guilty of a fraud. Such is the inference of 
 law. And the case must be very special indeed, which should induce the 
 court to withhold relief against this act. 
 
 ' Ortley v. Messere, 7 J. Ch. R. 139. that situation, upon a bill filed for tJiat 
 
 " Oode, § 111. Grinnell v. Schmidt, 2 purpose, when the court would not have 
 
 Sandf. S. 0. E. 706. _ the power to deprive him of the right to 
 
 ' L. of 1846, p. 91, § 2. the possession and control of his property, 
 
 * Brown v. Fisher, 4 J. Oh. E. 441. on the supposition that he was a person 
 
 ' In the matter of Morgan, 7 Paige, of unsound mind." And see Blackford 
 
 236. In this case the chancellor says : v. Christian, 1 Knapp's E. 77. 
 
 " Many cases may arise in which the mind ' Spragne v. Duell, 11 Paige, 480, Odell 
 
 and memory are so far impaired as to v. Buck, 21 Wend. 142. Osterhout v. 
 
 afiford grounds for setting aside an im- Shoemaker, 3 Denio, 37, n. 
 
 provident agreement made by a person in ' Osmond v. Fitzroy, 8 P. "Wms. 130. 
 
Ch. 3.] Transacsions in Cases of Lunacy. 199 
 
 At law, the acts of a lunatic before office found are not void but void- 
 able ; alienations by a lunatic, or other person of unsound mind, after office 
 found, are absolutely void.' But a court of equity will not interfere to 
 set aside a contract, overreached by an inquisition in lunacy, if fair and 
 without notice, especially when the parties cannot be reinstated.* Re- 
 lief in equity in such cases, depends, it is said, very much upon the circum- 
 stances, and no general rule can be laid down upon it.' 
 
 And it has been held in Massachusetts, that'a person under guardian- 
 ship as non compos mentis may make a will, if he is in fact of sound mind, 
 at the time of its execution. The existence of the relation of guardianship 
 affords, indeed, prima facie evidence of insanity, but it may be repelled 
 by showing a testamentary capacity. The act of making a will is dis- 
 tinguishable from contracts, and other acts to be done inter vivos, and 
 involves no conflict of authority with the guardian, in this respect, because 
 the will cannot operate to any purpose, till the death of the testator, and 
 by that event, the authority of the guardian is determined.* 
 
 An inquisition is only presumptive evidence of insanity, and not con- 
 clusive ; so that upon an action in respect of any contract or deed, it is 
 for a jury to determine, whether, at the time of executing it, the party 
 was non compos, though by the inquisition he was found to he^non com- 
 pos at such period.' Such inquisition is admissible, though not conclu- 
 sive evidence of the lunacy of the party, in an action brought against him 
 upon a contract.' Where upon a bill for a specific performance of a con- 
 tract overreached by a commission of lunacy, the plaintiff not having 
 traversed the inquisition, an issue was directed to inquire whether the 
 defendant was a lunatic at the execution.' 
 
 In one case where the lunatic was possessed of a large estate, and had 
 so far recovered his reason as to be capable of disposing of his estate by 
 will, with sense and judgment, the chancellor suspended the proceedings 
 against him, partially, so as to enable him to make a will.' The effect of 
 such suspension, if its terms were complied with, removed the prima 
 
 ' Jackson v. Gumaer, 2 Cowen, 568. Lunacy, 462. Bac. Abr. tit. Idiots and 
 
 Burnby's case, 4 Coke, 124. 2 Madd. Oh. Lunatics, B. 
 
 Pr. 594. ° Hart v. Deamer, 6 "Wend. 497. Oster- 
 
 ' Niell V. Morley, 9 Ves. 478. hout* v. Shoemaker, 3 Hill, 513. Cowen 
 
 3 Id. & Hill's Kotes, '942. Shelf, on Lunacy, 
 
 * Breed v. Pratt, 18 Pick. 115. Stone 63, 65. 1 Phil. Ev. 300. Sergeson v. 
 
 V. Damon, 12 Mass. 487. Leonard t. Sealy, 2 Atk. 412. 
 
 Leonard, 14 Pick. 280. Hall v. Warren, ' Hall v. Warren, 9 Ves. 605. 
 
 9 Ves. 610. " In the matter of Burr, 2 Barb. Ch. E. 
 
 ' 2 Mad. Oh. Pr. 678. 1 OoUinson on 208. 
 
200 Of Fraud. [Oh. 3. 
 
 farAe presumption of a want of testamentary capacity, and left it, as in 
 other persons, a matter of proof. But tte case does not show that a 
 person against whom an inquisition of lunacy remains in full force, may 
 not, if his competency be in truth restored, make a valid testamentary 
 disposition of his property. 
 
 But a court of equity relieves not only against acts done by idiots 
 and lunatics, but by acts done and contracts made by one under the 
 influence of drunkenness. In this state, where an habitual drunkard, 
 equally with an idiot or lunatic, is the subject of a commission, no valid 
 objection can be urged to relief against an act committed in a fit of 
 intoxication in which the party was utterly deprived of his reason and 
 understanding.' Lord Hardwicke on one occasion was of opinion that 
 the drunkenness of one of the parties was not suflicient to set aside an 
 agreement, unless some unfair advantage was taken ; and, therefore, in 
 the case before him, the agreement not being unreasonable, and no unfair 
 advantage appearing to have been taken, he refused to set it aside, 
 though the party complaining of it was drunk when he executed it.' But 
 that was a case where parties had come to a reasonable agreement, in 
 family matters, in which the court goes a great way to carry it into exe- 
 cution.' 
 
 Courts of equity have manifested a disposition not to give assistance 
 to a person who has obtained an agreement or deed from another in a 
 state of intoxication'; and, on the other hand, not to assist a person to get 
 rid of any agreement, or deed, merely upon the ground of his having been 
 intoxicated at the time ; but if there was any unfair advantage taken of 
 his situation, or any contrivance or management to draw him in to drink, 
 he might be a proper object of relie'f in a court of equity.^ As to that 
 extreme state of intoxication that deprives a man of his reason, I appre- 
 hend, says Sir William Grant, that even at law, it would invalidate a deed. • 
 obtained from him while in that state.' And this seems so to have been 
 decided, and to be admissible in evidence in an action upon a bond under 
 the plea of non est factum.^ But the courts have not enforced agree- 
 ments specifically which were obtained by a party while in a state of 
 intoxication. 
 
 ' 1 Fonb. Eq. B. 1 ch. 2, § 3 and notes. ' White v. Cox, 3 Hayw. 82. 
 
 '' Oorey v. Corey, 1 Ves. 19 ; and see ° Cook v. Claywortb, 18 Ves. 16; 
 remarks of Lord Eldon in this case, in ° Cole v. Bobbins, Bull. N. P. 172. 
 
 Stockley v. Stookley, 1 Ves. & B. 31. Mad. Ch. Pr. 289. 
 
 " Id. ' Seymour v. Delancy, 3 Cowen, 445. 
 
CL 3.] Mental Weakness. 201 
 
 As the validity of agreements depends on the intelligent assent of the 
 reason thereto, it would seem to be unimportant whether the deprivation of 
 mental capacity be from the visitation of God, or from the act of the party 
 himself. It seems to be a fraud to make a contract with a man who is so 
 drunk as to be incapable of deliberation; and if so, the contracts of such 
 persons would, one might think, be relievable in equity.' The writers 
 on natural law, Heineccius, Puffendorff and Pothier, all agree in consider- 
 ing contracts under such circumst9.nces as invalid.^ With respect to wills, 
 it is said by Svinburn, that "he that is overcome by drink, during the time 
 of his drunkenness i? compared to a madman, and, therefore, if he make 
 his testament at that time, it is void in law ; which is to be understood, 
 when he is so excessively drunk, that he is utterly deprived of the use of 
 his reason and understanding ; otherwise, albeit, his understanding i§ ob- 
 scured, and his memory troubled, yet he may make his testament being in 
 that case."^ 
 
 It has already been said that, at la.w'; mere weakness of mind, if th^ 
 man be legally compos mentis, is no defense to an action founded on the 
 contract, or other acts of such party.' To establish any standard of in- 
 tellect or information beyond the possession of reason in its lowest (de- 
 gree, as in itself essential to legal capacity, would, as was well said by 
 Verplanck, senator, in a great case,' create endless uncertainty, difficulty 
 and litigation ; would shake the security of property, and wrest from the 
 aged and infirm that authority over their earnings or savings which is 
 often their best security against injury and neglect. If you throw aside 
 the old common law test of capacity, then proofe of wild speculations or 
 extravagant and peculiar opinions, or the forgetfuln^ss or the prejjidices of 
 old age, might be sufficient to shake the fairest conveyance^, or impeach 
 the moat equitable will. The law, therefore, in fixing the standard of pos- 
 itive legal competency, has taken a low standard of capacity ; but it is a 
 clear and definite one, and therefore wise and safe. It holds, (in the lan- 
 guage of a late English commentator, Shelford on Lunacy, p. 39,) that 
 weak minds differ from strong ones only in the extent and power of their 
 faculties ; but unless they betray a total loss of understanding, or idiocy, 
 or delusion, they •c£|,nnot properly be considered unsound. 
 
 ' 1 Mad. Oh. Pr. 239. Eeinieker v. Oowen, 218. Osmond v. Fitzroy, 3 P. 
 
 Smith, 2 Harr. & J. 422. Wigglesworth Wms. 129. 1 Foab. Eq. B. 1, oh. 2, § 3. 
 
 V. Steers, 1 Hen. & Munf. 70. ' Stewart's Executors v. Lispenard, 26 
 
 « Id. 1 Ponb. Eq. B. 1, oh. 2, § 3. Wend. 303. Odell v. Buoks, 21 Wer^d. 
 
 » Swinb. Pt. 2, § 6. 1 Will. Ex. 33. 142. Petrie v. Shoemaker,. 24 id. 85. 
 
 * Ante, p. 196. Jackson v. Caldwell, 4 Blanehard v. Nestle, 3, Penio, 37. 
 
 E,i. JuB. 26 
 
202 Of Feaud. [Ch. S. 
 
 But, ttougli ttis be so, when an action at law* is brought upon the con- 
 tract made by a person alleged to be of feeble intellect, or the question be 
 on the legal capacity of the grantor in a deed, or the maker of a last 
 ■will and testament, it is quite obvious that in a court of equity, when an 
 application is made to set aside the instrument for fraud, or to enforce it 
 specifically, weakness of mind is an element of great importance in ex- 
 amining whether the contract was obtained by. fraud, undue infinence, im- 
 position or surprise. A rash or hard bargain entered into by men dealing 
 upon equal terms, and where the mental capacity of both is compar- 
 atively of the same grade, would create no suspicion of fraud or imposi- 
 tion, while the like bargain obtained by an artful and designing man, from 
 one of weak understanding, would create an inference of circumvention 
 or undue influence.* 
 
 Accordingly, it has been held, that mental imbecility, not amounting 
 to absolute disqualification, induces a strict and vigilant examination in 
 chancery of the contracts made by one laboring under it, and when coupled 
 with gross inadequacy of consideration, they constitute such evidence of 
 fraud as may vacate a contract.^ It has already been shown that mental 
 weakness, short of this, is not alone sufficient to authorize the court to in- 
 terfere ; but there must be some other evidence of fraud, imposition, sur- 
 prise, or inadequacy of consideration.^ 
 
 Nor is inadequacy of consideration alone, a sufficient ground in ordi- 
 nary cases, for setting aside a conveyance of property.* In the leading 
 case on this subject^ Lord Thurlow said, if the court should take such 
 ground as to rest upon the market price, every transaction of the 
 kind would come into equity. It should seem that mere inadequacy is 
 scarcely a sufficient ground, but there is a difference between that and 
 evidence arising from inadequacy. If there is such inadequacy as to 
 show that the person did not understand the bargain he made, or that 
 knowing it, he was so oppressed as to be glad to make it, it will show such 
 a command over the grantor as may amount to fraud. If the transaction 
 be such as marks overreaching on one side, and imbecility on the other, it 
 
 1 1 Fonb. Eq. B. 1, ch. 2, § 3, note r. * Fonb. Eq. B. 1, ch. 2, § 9, noted. Os- 
 
 '' Cruise v. Christopher's Adminstra- good- v. Franklin, 2 J. Ch. R. 23. Blaok- 
 
 tor, 5 Dana, 182. ford v. Christian, 1 Knapp's R. 77. Dunn 
 
 ' Ante, p. 196. In Reinicker v. jSmitb, v. Chambers, 4 Barb. 376. 
 
 2 Harr. & John., imbecility of mind of ' Heathcote v. Paignon, 2 Bro. C. 0. 
 
 one of the contracting parties was held 167. 
 
 to be sufficient evidence of fraud to set 
 
 aside the contract. 
 
Ch. S.] Inadequacy of Consideration. 203 
 
 puts the parties in such a situation as to show that it could not have taken 
 place without superior power on the one side over the other. And in an- 
 other case' Lo^rd Thurlow said, that to set aside a conveyance, there must 
 he an inequality so strong, gross and manifest, that it must be impossible 
 to state it to a man of common sense, without producing an exclamation 
 at the inequality of it. This doctrine has been approved by Lord Eldon,* 
 and by Sir William Grant' And in this state by Chancellor Kent,* and 
 Chief Justice Savage.^ And in one case Lord Eldon said, if the terms 
 of a bargain are so extremely inadequate, as to satisfy the conscience of 
 the court by the amount of the inadequacy, that there must have been im- 
 position, or that species of pressure upon his distress, which, in the view 
 of a court of equity, amounts tO' oppression, the court would set it aside, 
 though courts of law might hold that judgment not within the sphere of 
 their powers.' What shall be called gross inadequacy^ has not been de- 
 fined, unless .the saying, " what shakes the conscience," be a definition ; 
 but when a sale was for one half the worth, it has been said, that it would 
 be relieved against.' 
 
 The question of inadequacy, must be determined by reference to the 
 state of things when the bargain was made, and not by changes occasioned 
 by subsequent events-^ 
 
 In cases where imbecility of mind, and inadequacy of consideration 
 unite, though neither standing alone is sufficient under ordinary circum- 
 stances to invalidate a contract, the court has granted relief without 
 other evidence of imposition. Thus, in one case, when a weak man sold 
 an inheritance worth forty pounds a year for an annuity of twenty pounds 
 a year, and this annuity secured only by a covenant instead of a mortgage 
 of the estate ; and this too, to a person seventy-two years old, and who 
 had not the deed itself in his hands, it was declared by the court to be 
 fraud apparent, and judging upon the face of a deed is judging upon evi- 
 dence which cannot^ err ; whereas the testimony of witnesses may be 
 false." 
 
 So where imbecility of mind and inadequacy of consideration, were 
 united with an abuse of confidence which the one party reposed in the 
 
 ' Gwynne v. Heaton, 1 Bro. 0. C. 9. ' Underbill v. Horwood, 1 Ves. 249. 
 
 ' Coles V. TreootWok, 9 Ves. 246. Crib- ' 1 Mad. Cb. Pr. 214. 
 
 son V. Leyes, 6 id. 273. ' Batty v. Eloyd, 1 Vern. 141. 
 
 ' Peacock v. Evans, 16 Ves. 512. ' Olarkson v. Han way, 2 Pierre Wms. 
 
 « Osgood V. Franklin, 2 J. Oh. E. 23. 204. 
 
 ' Seymour v. Delancy, 3 Oowen, 516, 
 617. 
 
204 Of Fraud. fCh. 3. 
 
 other, the court Interposed and set aside the sale of an annuity by the 
 attorney to his client.' 
 
 So a purchase and repurchase of a legacy, expectant on a death, the 
 consideration being inadequate apd advantage taken of the pecuniary 
 distress of the party, the whole transaction was set aside, as was also a 
 subsequent boiid given as a confirmation, because given under an idea 
 that the obligor was bound by the former transaction.^ 
 
 So on a bill for a specific performance of a contract for the sale of an 
 efetate, it was said that the court was not bound to decree a specific per- 
 formance in every case, where it would not set aside the contract ; nor to 
 set aside every contract, that it would not order to be specifically per- 
 formed. Under circumstances amounting to a breach of truS't, inadequacy 
 of consideration arising froiH gross negligence of the agent and a want 
 of due authority, the bill was dismissed, though the plaintiff was tinim- 
 peached ; and it was said that ho specific performance would be decreed 
 if the party labored wnder any surprise making it not fair aiid honest 
 to call for it.^ 
 
 These principles have been often applied in this country, by courts of 
 fef^ffity. Thus a pretended purchaser, holding influence over the mind of 
 a weak and credulous man, was not permitted to enjoy a contract gained 
 Et ail inadequate price.* A conVteyance obtained by children, from a 
 lather, will not be sanctioned by a court of equity, if it appear to have 
 been 'procTii^ed by ah abuse of confidence reposed by him in his children ; 
 •^ho for the purpose of procii'ring it, took advantage of his age, imbecility 
 tod partiality for them ; the conveyahee being also for an inadequate 
 feonsideratioh.* So an unconscibnable bargain obtained by imposition 
 itiid fraud, from a weak or intemperate man, it was said would be relieved 
 
 It has been shown under the hfead of dealings between parties standing 
 to each either in confidential or fidiiciary f elations, "with what jealousy the 
 transactions of the parties are watched, and what circumstances super- 
 added to the brieach of confidence would be seized on by the court, in 
 ot'der to grant relief Though inadequacy of price will not alon^ be a 
 ground for setting aside a contract, yet it has been seen that if the con- 
 tract be obtained by one standing in a peciiliar relatioh; of confidence to 
 the party from whom it was obtained ; if the latter be of wejik hi^er- 
 
 ' Gibson v. Jeyes, 6 Ves. 266. * Dealty's HeirS v. Murphy, 8 A. K. 
 
 ' Crowe V. Ballard, 1 Ves. jr. 215. Msrsb. 475. 
 
 " Mortlook V. Bnller, 10 Ves. 292. " Whelan v. Whelan, 3 Cowen, 537. 
 
 • Whipple V. MeClure, 2 Root, 216. 
 
Ch. 3.J Surprise. 205 
 
 standing ; if there be misrepresentation, or surprise ; if the latter be in 
 circumstances of great pecuniary distress, a court of equity will interfere. 
 In like manner, though weakness of mind alone, be not enough to set 
 aside a contract, if the party be compos mentis, yet, if there be other 
 circumstances, such as inadequacy of price, imposition, surprise, abuse of 
 confidence and the like, the benign jurisdiction of the court can be suc- 
 cessfully invoked.' 
 
 The term surprise does not seem to have any precise, or peculiar 
 definition in a court of equity. Like fraud, it does not admit of being 
 described by its constituent parts, but is infinitely variable. It is defined 
 by Webster, as the act of coming upon unawares, or of taking suddenly 
 and without preparation. The state of being taken unexpectedly. This 
 is sufficiently accurate for all practical purposes. On a bill for a specific 
 performance of an agreement brought by the vendor against the purchaser 
 at an auction sale, the agent Of the vendor bid at the sale^ without any 
 previous intimation to the purchaser, who was ignorant of that fact, and 
 Lord Kenyon refused to decree a specific execution, saying that the 
 court was not bound to execute every contract, and if there was any sort 
 of surprise, that made it not fair and honest to call for an execution, he 
 would not give the relief of a specific performance; but leave the parties 
 at law." This was approved by Lord Eldbn.' In this case, the word 
 surprise means, that an unexpected event occurred at the sale, without 
 the fadlt of the purchaser, and prejudicial to his interest. Whatever 
 happens without the agency or feult of the party affected by it, tending 
 to disturb and confuse his judgment, or to mislead him, and of which the 
 opposite party takes an undue advantage, is a surprise. It is treated by 
 a celebrated author under the head of mistake; and as analogous to 
 the misapprehension of the party, which has been held a ground of 
 relief. But he very properly observes that it is not every surprise that 
 will avoid a deed duly made ; nor is it fitting ; for it would occasion great 
 uncertainty, and it would be impossible to fix what is meant by surprise ; 
 for a man may be said to be stirprised in every action which is not done 
 with so much discretion as it ought to be. But the surprise here intended 
 must be accompanied with fraud and 'circumvention,^ and like other acts 
 of fraud, must be proved, or priesumed from the facts and circumstances 
 of the case. 
 
 • Pet Harris, P. J. in Dunn v. Cham- ' Mortlock v. Buller, 10 Ves. 301. 
 bars, 4 Barb. 379. * 1 Fonb. Eq. B. 1, ch. 2, § 8. 
 
 ' Turning v, Morrison, 2 Bro. 0. 0. 826. 
 
206 Op Fraud. [CL 3. 
 
 Lord Eldon, in one case, uses the term surprise and mistake, in oppo- 
 sition to fraud, as grounds of relief,' or as ground of objection to a bill 
 for specific performance. And in another case, a conveyance by- lease 
 and release and fine, was set aside upon great inadequacy of consid- 
 eration, combined with misrepresentation and sttrprLte upon parties 
 in extreme distress, ignorant of their interest, and not properly pro- 
 tected.2 
 
 It is seldom that a transaction rests upon surprise alone. The equity 
 to be relieved from an act occasioned by surprise, is referable more prop- 
 erly to fraud than mistake, though perhaps there is a mixture of both. 
 The party who obtains an advantage from another, knowing him to be 
 acting without deliberation, and without the counsel of friends ; or that 
 he is acting upon an event which has happened suddenly and unexpect- 
 edly, without time to calculate the consequences, is guilty of fraud. In 
 granting relief in such cases, the court acts upon the same principles 
 which govern it in vacating contracts obtained by imposition and fraud. 
 As full assent is necessary to a valid agreement, if that is prevented by 
 surprise, and without fault of the party, it would seem to be a fit case 
 for equitable relief. 
 
 There are numerous other cases where equity grants relief on the 
 ground of actual fraud, and which are not referable to either of the 
 foregoing heads. Equity sometimes interferes and prevents the pirating 
 of trade marks. The question, in such cases, is not whether the com- 
 plainant was the original inventor or proprietor of the article made by 
 him, and upon which he now puts his trade mark, nor whether the article 
 made and sold by the defendant, under the complainant's trade mark, is 
 an article of the same quality or value. But the court proceeds upon the 
 ground that the complainant has a valuable interest in the good will of 
 his trade or business ; and that having appropriated to himself a partic- 
 ular label or sign, or trade mark, indicating that the article is manufac- 
 tured or sold by him, or by his authority, or that he carries on business 
 at a particular place, he is entitled to protection against any other per- 
 son who attempts to pirate upon the good will of the complainant's 
 friends, or customers, or of the patrons of his trade or business, by 
 using his trade mark without his consent.' 
 
 This same principle has been extended to restrain the publication of 
 
 ' The Marquis of Townshend v. Stan- " Patridge v. Menok, 2 Barb. Oh. 101 ; 
 groom, 6 Ves. 339. S. 0., 2 Sandf. Oh. E. 622. Taylor v. 
 
 " Packet V. Lagoon, 14 Ves. 215. Oarpenter, 11 Paige, 292. 
 
Ch. 3.] Fraud on Powers. Illusory Appointment. 207 
 
 a newspaper, ■when the name of the complainant's newspaper was used 
 by the defendant, in such a manner as to be calculated to deceive or mis- 
 lead the public, and to induce them to suppose that the paper printed by 
 the defendant is the same as that which was previously published by 
 the complainant ; and thus to injure the circulation thereof." 
 
 The same principle was applied by Lord Langdale, who restrained a 
 defendant from running an omnibus having upon it such names, words 
 and devices as to form a colorable imitation of the words, names and 
 devices on the omnibuses of the plaintiff.' 
 
 Numerous other cases of a similar character are found in the books, 
 but the consideration of them more appropriately belongs to a subsequent 
 head, that of preventing fraud by injunction and otherwise. We will 
 notice the case of fraud on powers, and illusory appointments, and then 
 proceed to some cases more properly' referable to constructive fraud 
 than moral fraud. 
 
 A party will not be allowed to execute a power for his own benefit. 
 Thus in Lord Landank's case, a father having a power of appointment, 
 and thinking one of his children was in a consumption, appointed in favor 
 of that child ; and the court was of opinion that the purpose was to take 
 the chance of getting the money as administrator of that child.^ That 
 was a fraud upon other persons having an interest in the execution of the 
 power. But the court will not act against the title upon the mere suspi- 
 cion that a transaction was of that nature.* 
 
 The subject of the due execution of a power of appointment, and 
 whether the disposition inade, was or was not within the power, or whether 
 part of the subject being appointed to one of the objects was so insignifi- 
 cant as to be considered by the court as illusory, caused in former-times 
 more doubt and difiSculty in the mind of judges than most others. The 
 remarks of the master of the rolls in an important case, explain the gen- 
 eral nature of this subject, and the course of the court." In a later case,« 
 Sir William Grant strongly questioned the propriety of the interference 
 of courts of equity in matters of this kind, and said that he found it im- 
 possible to understand how the question, whether a power was well or ill 
 executed} could receive different interpretations in different courts. As 
 the doctrine is now abolished in England, it seems unnecessary to review 
 
 ' Bell v. Locke, 8 Paige, 75. Snowden ' Id. 467. 
 
 T. Noah, Hopkins' R. 347. ' Vanderzee v. Aolom, 4 Ves. 784, 785, 
 
 ' Knott V. Morgan, 2 Keene, 213. " Butcher v. Butcher, 9 Ves. 382. 
 ' McQueen v. Farquar, 11 Ves. 479. 
 
208 Of Fraud. [Oh. 3. 
 
 the cases, especially as the revised statutes of this state have introduced 
 a principle which effectually abrogates it with us.' By the revised stat- 
 utes it is declared that when a power is directed to be made to, or among, 
 or between several persons, without any specification of the share or sum 
 to be allotted to each, all the persons designated shall be entitled to an 
 equal proportion. But when the terms of the power import that the es- 
 tate or fund is to be distributed between the persons so designated, in 
 such manner or proportions as the trustee of the power may think proper, 
 the trustee may allot the whole to any one or more of such persons, in 
 exclusion of the others. The object of these sections, the revisers remark 
 in their notes, (3 R. S. 591, 2d ed.) was to prevent the interference of 
 equity in correcting what are called illusory appointments — a jurisdic- 
 tion very questionable in itself, and of which the limits were uncertain." 
 
 It has already been said that it is essential to every contract that there 
 be the free assent of the parties ; and that consent supposes a physical 
 power, a moral power, and a serious and free use of both. Hence agree- 
 ments entered into under duress are void at law and relievable in equity. 
 
 Duress is of two kinds ; duress of imprisonment and duress per minas. 
 Duress of imprisonment is defined by the older cases to be the illegal re- 
 straint of liberty.' And duress per minas is the fear of loss of life, or 
 the fear of mayhem, or loss of limb. And this fear must be upon suffi- 
 cient reason. A fear of battery, or being beaten, though never so well 
 grounded, is no duress ; neither the fear of having one's house burned, or 
 one's goods taken a,way and destroyed ; because in these cases should the 
 threat be performed, a man may have satisfaction by recovering equiva- 
 lent damages.* The modern cases hold that there may be duress of im- 
 prisonment even when the imprisonment is under legal process, and that 
 to constitute duress per minas, it is not essential that the party be threat- 
 ened with loss of life or limb, or with mayhem ; but it is enough if he acts 
 from fear excited by threats of illegal imprisonment.^ 
 
 It is in analogy to this principle that a court of equity watches with ex- 
 treme jealousy all contracts made by a party under the pressure of great 
 
 ' 1 E. 8. 784, § 98. for a note obtained under duress, will not 
 
 " See remai'ks of Oh. Walworth in be set aside in equity. 
 
 Walker v. Devereaux, 4 Paige, 249, 250. " Foshay v. Ferguson, 5 Hill, 164. 
 
 ' 1 Black. Oom. 189. Thompson v. Lockwood, 15 J. E. 256. 
 
 ' Id. 188. 2 Inst. 488. Co.Lit. 263, b. Ohamplain v. The People, 2 Oomst. 88. 
 
 See note 1. to Oole v. Gibbons, 8 P. Wms. Evans v. Begleys, 2 Wend. 248. Watkins 
 
 294, showing that a bond given freelyy v. Baird, 6 Mass. E. 506. Eiohardson v. 
 
 Duncan, 8 K H. 608. 
 
Ch. 3.] Underhand Agreements. 209 
 
 pecuniary distress ; and contracts made with persons wlio are in a condi- 
 tion to exercise a controlling influence over the mil or conduct of others. 
 Some of them have already been considered under their proper heads, 
 and others perhaps are referable to cases of constructive fraud. 
 
 Contracts with infants or femes covert are also relievable on the ground 
 of incapacity to contract, or the constraint under which they are placed. 
 
 SECTION IV. 
 
 OF CONSTKUCTITE, OR IMPLIED FRAUD. 
 
 In this chapter, we have hitherto treated of cases having their origin 
 in actual moral fraud, and relievable under that head, and of cases of a 
 mixed character, arising out of the confidential or fiduciary relation of the 
 parties, and which are watched with peculiar jealousy by a court of equity, 
 from their great temptation to abuse, and which are often mingled with 
 transactions partaking more or less of actual fraud, either towards third 
 persons, or one or more of the parties themselves. And we have also 
 treated of cases where an iinconscientious advantage has been taken of 
 the mental weakness of a party. "We shall now proceed to the considera- 
 tion of another class of cases, relievable in equity, either on the ground 
 of their being against public policy, or the provisions of some statute. 
 These cases, too, sometimes embrace all the elements of moral fraud., 
 But, in general, the design is not to deceive the individual with whom 
 the contract is made, but to gain some advantage inconsistent with fair 
 dealing or the rights of third persons. These acts, from their tendency 
 to defraud, are forbidden by law, though the motive of the parties in the 
 particular case, be not shown to be fraudulent and corrupt. They are 
 usually denominated, by the courts, constructive or implied frauds. 
 
 The first of this class of constructive frauds which we will notice, are 
 what are usually denominated underhand agreements. These are agree- 
 ments by which a creditor who has executed a deed of composition with 
 an insolvent debtor, reserves to himself a greater advantage than the 
 other creditors would have under the deed. If this be done without the 
 knowledge or consent of the other creditors, it is a fraud upon them, and 
 will be set aside.' So a bond to one creditor, to secure the deficiency of 
 
 " Mawson v. Stock, 6 Ves. 800. 
 Bq. Jub. 2V 
 
210 Of Feadd. [OL. 3. 
 
 composition, not commttnicated to the others, is bad. But if taken with 
 their privity and consent, is not open to objection.' Between the parties 
 to the transaction, there is no design by the one to defraud the other. 
 But its tendency is to defraud the other creditors, and hence, on the 
 ground of public policy, it is condemned both at law and in equity.^ 
 
 The invalidity of marriage brocage bonds rests upon the same prin- 
 ciple of public policy. It is laid down as a rule in the civil law, that 
 marriage ought to be free, and the same policy has obtained in equity. 
 And therefore in case of a bond in common form for payment of 
 money, but proved that the agreement was, that the obligor should marry 
 such a man, or should pay the money due bn the bond, the court will de- 
 cree this bond to be canceled as being contrary to the nature and design 
 of marriage, which ought to proceed from free choice, and not from any 
 compulsion.' Thus,- when it appeared that the marriage was brought 
 about without the consent of the young woman's parents, who were then 
 living, the lord chancellor, for that reason alone, on a bill filed to be re- 
 lieved against a marriage brocage bond, decreed the bond to be delivered 
 up, terming it a sort of kidnapping ; and said there was a material dif- 
 ference, where the parties were at their own disposal, and when their 
 parents were living ; though such a bond was in no case to be counte- 
 nanced.* So, whenever a father or mother or guardian insists upon a 
 private gain, or security for it, and obtains it of the intended husband, it 
 shall be set aside j for the power of a parent or guardian ought not to be 
 made use of to such purposes. You shall not have my daughter, unless 
 you do so and so, is to sell children and matches. And these contracts 
 with the father seem to be of the same nature with brocage bonds, but of 
 more mischievous consequences, as that which would happ^i more fre- 
 quently ; and it is now a settled rule, that if the father, on the marriage 
 of his son, takes a bond of the son to pay him so much, it is void, being 
 done by coercion, while he is under the awe of his father. Nor will 
 the court only decree a marriage brocage bond to be delivered up, but a 
 gratuity of fifty guineas actually paid to be refunded ; for such bond is 
 
 ' Jackman v. Mitchell, 13 Ves. 586. ' 1 Fonb. Eq, B. 1, ch. 4, § 11. 
 
 ' Yeoman v. Ohatterton, 9 J. E. 295. ' Drury v. Hook, 1 Yern. 412. Key- 
 Payne v. Eden, 8 Gaines' R. 213. Wig- v. Bradshaw, 2 id. 102. Lamlee v. Han- 
 gins V. Bnsh, 12 J. R. 306, Tnxbnry v. man, S id. 499. Duke of Hamilton v. 
 Miller, 19 id. 811. Leicester t. Rose, Mohun, 2 id. 652. Keaf v. Allen, id. 588. 
 4 East, 872. Child v. Danbridge, 2 Vern. Toche v. Atkins, 1 id. 451. Gale v. Lin- 
 71. Small V. Brackly, 2 id. 602. 1 Atk. do, id. 475. Kemp v. Coleman, 1 Salk. 
 105. 156. Baker v. "White, 2 Vern. 216. 
 
Ch. 3.] Marriage Brocage Bonds, 211 
 
 in BO case to be countenanced. And a bond to procure marriage, though 
 between persons of eqaal rank and fortune, is void, as being of dangerous 
 consequence,' 
 
 The principles contained in the foregoing extract are supported by the 
 American, as -well as by the English cases. Thus, in one case, Chief 
 Justice Parsons says that marriage brocage bonds, which are not fraudu- 
 lent on either party, are yet void, because they are a fraud on third per- 
 sons, and are a public mischief, as they have a tendency to cause matri- 
 mony to be contracted on mistaken principles, and without the advice of 
 friends ; and they are relievable against as a general mischief, for the 
 sake of the public.^ 
 
 On the same principle of public policy a secret settlement by a woman 
 on the eve of her marriage, and in contemplation of that event, is fraudu- 
 lent and void against the husband.^ Agreements on marriage, are very 
 different from common contracts ; and all underhand agreements, deroga- 
 tory therefrom, are in fraud of the marriage, and Void.* 
 
 The good faith which is required in all contracts is eminently neces- 
 sary in a contract so important both to the parties and the public, as that 
 of marriage. Although the court cannot, after the marriage has taken 
 place, fully restore the parties to the condition in which they were before 
 the marriage, it can set aside conveyances made in fraud of the marriage. 
 An unmarried woman has a right to dispose of her property as she pleases, 
 and as a conveyance made by her, immediately before her marriage, is 
 prima facie good, it is to be impeached only by the proof of fraud. This 
 fraud may be accomplished by false representations, or by undue conceal- 
 ment. A widow having children by a former husband, and contemplating 
 marriage, is performing a moral duty if she makes provision out of her 
 property, for such children. But in performing this duty, she has no 
 right to act fraudulently towards her second hiiSband. 
 
 If a woman, entitled to property, enters into a treaty for marriage, and 
 during the treaty represents to her intended husband that she is so 
 entitled, that upon the marriage, he will become entitled jure mariti, 
 and if during the same treaty, she clandestinely conveys away the prop- 
 erty, in such manner as to defeat his marital right and secure to herself 
 the separate use of it, and the concealment continues till the marriage 
 takes place, there can be no doubt that a fraud is thus practiced on the 
 husband, and he is entitled to relief.^ 
 
 ' 1 Fonb. Eq. B. 1, oh. 4, § 11 ; and see * Per Smith, J., Lessee of "Whitehill v. 
 
 cases under last note. Dorsay, 2 Yeates, 109. 
 
 " Boynton v. Hubbard, 7 Mass. R. 118. ' Per Lord Langdale, in England v. 
 
 ^ Linker v. Smith, 4 Wash. C. 0. 224. Downs, 2 Beavan, 528. 
 
212 Of Fraud. [Oh. 3. 
 
 The equity in cases of this nature d'epends upon the peculiar circum- 
 stances of each case, as bearing upon the question, whether the facts 
 proved do or do not amount to suflScient evidence of fraud practiced on 
 the husband. It is not doubted that proof of direct misrepresentation, 
 or of willful concealment with intent to deceive the husband, would entitle 
 him to relief; but it was insisted that mere concealment was not in such 
 case any evidence of fraud ; and if a man, without making any inquiry 
 as to a woman's affairs and property, thinks fit to marry her, he must 
 take her and her property as he finds them, and has no right to complain, 
 if, in the absence of any care on his part, she has taken care of herself 
 and her children without his knowledge." 
 
 This proposition, however, said Lord Langdale in the same case, cannot 
 be admitted as stated ; and, clearly, a woman in such circumstances can 
 only reconcile all her moral duties by making a proper settlement on 
 herself and her children, with the knowledge of her intended husband.' 
 
 Although the husband has no notice of the existence of property of 
 the wife, upon the marriage, and is, therefore, not in fact disappointed in 
 not receiving any, yet if she had property before the consummation of 
 the marriage, and made ja, settlement, concealing from him both her right 
 to the money and the existence of the settlement, it is a fraud upon his 
 marital rights ; and a court of equity, even ten years after her death, in 
 one case, relieved against such a settlement and ordered the money paid 
 to the husband.' 
 
 It is a principle which has long prevailed both at law and in equity, 
 that if a representation is made upon the circumstances of a person about 
 to form a connection in marriage, and that representation is of such a 
 nature, that, if not made good, or if varied, it will materially affect the 
 circumstances in life of that party, courts both of law and equity, will 
 hold the party bound to make good that representation, even at the suit 
 of individuals concerned in fraudulently defeating such a representation 
 upon which that connection was proceeding.* 
 
 Upon this principle, when upon a marriage of a son the father made a 
 settlement of an annuity on the intended wife in full of her jointure, and 
 in lieu of dower, and the son secretly gave a bond of indemnity of the 
 same date, to his father, against the annuity, the bond was held to be a 
 fraud upon the marriage contract, and was set aside. The open agree- 
 
 'Per Lord Langdale, in England v. wellin v. Cobbold, 19 Eng. L.andEq.43. 
 
 Downs, 2 Beavan, 528. 17 Jurist, 448. 
 
 ' Id. 529. • De Manneville y. Crompton, 1 Ves. & 
 
 ' Godard v. Snow, 1 Kuss. 485. Le- Beame, 855. 
 
Ch. 8.] Marriage Brocage Bonds. 213 
 
 ment put the parties contracting marriage, in one situation, and the pri- 
 vate agreement put them in another and worse situation. By the open 
 agreement, the son apparently finds the means of providing for his wife 
 without resorting to his own fortune ; whereas the effect of the private 
 agreement is to throw the burden entirely upon his own fortune ; hy 
 which he is to that extent prevented from providing for his family as he 
 otherwise might. This was just as much a fraud upon the marriage 
 contract, as if receiving a fortune, he returns part of it. His capacity 
 for providing for his family is equally diminished in both cases.' 
 
 The same principle arose in another case, when the brother, on a treaty 
 of marriage of his sister, let her have £160 privately, that her fortune 
 might appear to be as much as was insisted on by the other party, and took 
 the bond of the sister to repay it, the bond was relieved against after 
 the death of the son and the sister who survived her husband.' 
 
 The foregoing were cases where the fraud was perpetrated by one of 
 the parties to the settlement. But the principle is applicable to a stran- 
 ger who interferes in the matter with a material concealment, misleading 
 one of the parties. Thus, where a party holding a bond against a man 
 about forming a treaty of marriage, at the request of the latter, concealed 
 the existence of the same from the wife's father, equity restrained the cred- 
 itor, by injunction, from enforcing his debt, although it did not appear 
 that there was any actual stipulation on the part of the wife's father, in 
 respect of the amount of the intended husband's debts.^ 
 
 As contracts of this nature are avoided on reasons of public inconven- 
 ience, they do not admit of subsequent confirmation of the party.^ 
 
 Equity, it is said, abhors underhand agreements in cases of marriage, 
 and perhaps this may be the only instance in equity, said the master of 
 the rolls, when a person, though particeps criminis, shall yet be allowed 
 to avoid his own acts.^ In general, but not always, courts of equity act 
 upon the maxim, in pari delicto potior est conditio defendentis, et possi- 
 dejitis. But in cases where relief is sought on the ground that the agree- 
 ment or transaction is against public policy, the circumstance that the 
 plaintiff is particeps criminis, is not, in equity, controlling. The public 
 interest is the paramount consideration in these cases, and that can only 
 
 ' Palmer v. Feave, 11 Ves. 164. 480. Dezell v. Odell, 3 Hill, 215. Pres- 
 
 '' Gale V. Lindo, 1 Vern. 475. Lamlee byterian Congregation of Salem v. Wil- 
 
 V. Hanman, 2 id. 499. liams, 9 Wend. 147. Pierpont v. Barn- 
 
 = Neville v. Wilkinson, 3 P. Wms. 76, ard, 5 Barb. 364. 
 
 note. ' The doctrine of estoppel in pais, ' Shirley v. Martin, 8 P. Wms. 75, note. 
 
 is applicable to this kind of frauds. See ' Roberts v. Eoberts, 3 id. 74. 
 
 Welland Canal Co. v. Hathaway, 8 Wend. 
 
214 Op Fraud. [Oh. 3. 
 
 be attained through the party. It applies not only tc agreements in re- 
 straint of marriage, but to all others falling within the like reason, and 
 ■when public policy requires the agreement should be repudiated." 
 
 It is on the principle of public policy that contracts in restraint of mar- 
 riage are void, both at law and in equity. On this ground a promise by 
 A. to B. to marry her if he marries any body is void.'' Such promise, 
 without a reciprocal obligation on the part of the promisee, becomes, at 
 the option of the promiser, an engagement not to marry at all. In like 
 manner a wagering contract that the plaintiff would not marry within six 
 years, was held to be frima facie in restraint of marriage, and therefore 
 void.^ And, in another case, an agreement by a man not to marry with 
 any person but the promisee, and if he did, that he would pay one thou- 
 sand dollars, within three months after he should so marry another, was 
 held to be in restraint of marriage and illegal and void.* Though there 
 may be a difiference in degree between the restraint of a, first marriage and 
 a restraint of a second marriage, yet the principle is the same, and a bond 
 given in restraint of a second marriage, has been relieved against in equity.' 
 
 And when mutual bonds were entered into (without the knowledge of 
 their friends,) between a man and woman of suitable age, to marry each 
 other at the expiration of thirteen months, and there was no actual fraud 
 between the parties, Lord Hardwicke relieved against the bond on public 
 and general considerations, and as a fraud on the father.' The objection to 
 contracts of this kind, he said, is, that the parents and friends of one of 
 the parties are deceived thereby, and they tend to encourage disobedience, 
 and operate as a fraud on the parents.'' 
 
 ' Douglass, 697, note. Van Dyck v. ing was at law, and the authorities on the 
 
 Hewett, lEast, 96. Howson v. Haneook, subject are well considered. Equity, 
 
 8 D. & E. 575. Osborne v. "Williams, 18 though it follows the law, administers 
 
 Yes. 379. 1 Eonb. Eq. B. 1, ch. 4, § 4, the same doctrine upon more enlarged 
 
 and notes. MoOullam v. Gourlay, 8 J. principles. 1 Fonb. Eq. B. 1, ch. 2, § 13, 
 
 E. 147. O'Malley v. Eeese, 6 Barb. 658. and notes. Boyd v. Dunlap, 1 J. Ch. B. 
 
 Morgan v. Groflf, 5 Denio, 864 ; disap- 482. Sands v. Oodwise, 4 John. E. 536. 
 
 proved in 8. 0., 4 Barb. 528. Like v. " Conrad v. Williams, 6 Hill, 445. 
 
 Thompson, 9 id. 316. Watts v. Brooks, " Hartley v. Bice, 10 East, 22. 
 
 3 Ves. jr. 612. Arden v. Patterson, 5 ■" Lowe v. Peers, Burrows, 2225. 
 
 J. Ch. E. 49. The distinction taken by ' Baker v. White, 2 Verm. 215. 
 
 Paige, J., inMorganv. Grofi;4Barb.527, ° Woodhouse v. Shipley, 2 Atk. 585, 
 
 is, that the action will be sustained, when it 589. 
 
 provides in disaffirmcmce of the contract, ' Id. There does not seem to be any 
 
 mid on the ground that it is void^cmd seeks objection, in a reciprocal contract to 
 
 to prevent the defendant from retaining marry, that the consummation of the con- 
 
 the ienefit which he has derimed from an tract is to be deferred to a future day. 
 
 unlawful act. The case he was consider- Such contract made in good faith is, 
 
CL 3.] Conditions in Eestraint op Marriage. 215 
 
 Tlie foregoing are cases where the contracts were made by the parties. 
 But the principle of public policy which renders such contracts void, has a 
 wider scope than the mere action of the parties themselves. Conditions in 
 restraint of marriage may be imposed by others, in connection with leg- 
 acies or other gifts, and as these are of no unfrequent occurrence, and 
 form a subject on which numerous decided cases may be found, it may be 
 expedient to take a cursory glance at the rules by which they are gov- 
 erned. The subject will be resumed in a subsequent part of this treatise, 
 when w.e come to speak of legacies generally. 
 
 By the doctrine of the civil law, which seems at one time to have been 
 adopted by the English ecclesiastical courts, and in a great manner by 
 theip courts of equity, all conditions in restraint of marriage were regard- 
 ed as illegal, and legacies were discharged of such conditions, whether 
 precedent or subsequent.' But the ancient rule has been greatly relaxed 
 in modern times ; and it is now settled that conditions which do not directly 
 or indirectly import an absolute injunction to celibacy are valid.^ Thus, 
 conditions restraining marriage under twenty-one, or other reasonable age, 
 without consent of executors, guardians, »fec.,' or requiring or prohibiting 
 marriage with particular persons, and the like, are valid conditions. 
 
 It is impossible to reconcile all the cases on the subject in question ; but 
 the better opinion seems to be that a condition in restraint of marriage with- 
 out consent, under the age of twenty-one, or other reasonable age, is, like a 
 condition in restraint of litigating the will, regarded as a declaration of 
 the testator in terrorem merely, if there be no disposition over ; and 
 whether precedent or subsequent, is inoperative for the vesting or divest- 
 ing of the legacy.* 
 
 But if there be a direction, that, in the event of a breach, or non-per- 
 formance of such condition, the legacy shall go over to another legatee, 
 the condition is valid ; for the court is bound to protect the interest of the 
 party in whose favor the ulterior limitation is made.' A mere residuary 
 
 doubtless, valid. It is only when so made Hardwioke. Maloom v. O'Callaghan, 
 
 as to work a fraud on the parents and 2 Madd. Oh. E. 353, by Sir T. Palmer, 
 
 friends, that it is objectionable. Lowe v. 1 Atk. 382, n. 1. Harvey v. Aston, 
 
 Beers, Bnrr. 2229, 2230. Key v. Brad- id. 361. 1 Fonb. Eq. oh. 4, § 10, note q. 
 
 shaw, 2 Vern. 102. Bnt long engage- The origin of the doctrine on this sub- 
 
 ments are not to be encouraged. ject is traced by Lord Eoslyn, in Staok- 
 
 ' Scott V. Tyler, 2 Dick. 720. pole v. Beaumont, 3 Ves. 96 ef seq. and 
 
 » Id. 2 Wills. Exr. 791. Bac. Abr. by Lord Thurlow, in Scott v. Tyler, 
 
 tit. Legacy, F. of Conditional Legacies. 2 Dick. 716 to 721. 
 
 = Stackpole V.Beaumont, 3 Ves. 89. Clif- ° Stratton v. Grimes, 2 Vern. 357. 
 
 ford V. Beaumont, 4 Russell's Oh. Oas. 325. Wheeler v. Bingham, 2 Atk. 864. 
 
 * Kayner v. Martin, 3 Atk. 331, by Ld. 
 
216 Op Fraud. [Oh. 3. 
 
 bequest is not such a limitation over, unless the legacy be directed in case 
 of breach of the condition to fall into the residue.' Different reasons 
 have been assigned for this rule. But the most satisfactory one is that 
 assigned by Sir William Grant, in Lloyd v. Branten, that the bequest over 
 affords a manifestation of the intention that the condition was not merely 
 in tcrrorem, but that the legatee over should take in that event. 
 
 A condition in restraint of marriage generally, is undoubtedly void, as 
 against public policy, whether there be a devise over or not." 
 
 A condition to marry with consent is a lawful condition, and when it is 
 made a precedent condition, nothing vests until it is performed.' 
 
 The foregoing is enough for the present purpose. The subject of con- 
 ditional legacies will be treated under its appropriate head." 
 
 Although the defense of usury is available at law, yet there are nume- 
 rous cases where the interposition of a court of equity is essential to 
 complete relief, especially if discovery is necessary. If a lendet on such 
 contract seeks to enforce his securities in equity, and the boirower seta 
 up usury as a defense and proves it, the securities will be declared void, 
 and ordered to be delivered up and canceled.^ 
 
 On the principle that he who seeks equity must do equity, it was the 
 invariable practice of the court of chancery, unless when its practice was 
 controlled by some positive statute, to require of the party seeking to be 
 relieved from a usurious contract, to bring into court and offer to pay the 
 money actually lent, with lawful interest thereon.' 
 
 The early New-York cases, indeed all prior to the revision of 1830, 
 were made under the act for preventing usury, of the 8th of February, 
 1787,'' and which was framed from the English statutes upon the same 
 subject. The doctrine that he who asks relief in a court of equity must 
 himself do equity, was applied to a complainant seeking to set aside a 
 usurious security in the court of chancery. The subsequent cases in 
 New- York are not intelligible without a reference to the changes intro- 
 duced at different times, by our legislation on this subject. The eighth 
 section of the title of the revised statutes, " Of the interest of money,'" 
 is in these words : " Whenever any borrower of any money, goods or 
 
 ■ 2 Atk. 368. Lloyd v. Branten, ' Rogers v. Rathbun, 1 J. Oh. E. 867. 
 
 S Meriv. 118. Tupper v. Powell, id. 439. Morgan v. 
 
 " Bao. Abr. tit. Legacy, F. Schermerhorn,. 1 Paige, 544. 1 Fonb. Eq. 
 
 ' Harvey v. Aston, 1 Atk. 379. B. 1, ch. 1, § 3, note h. 
 
 * See post, " Conditional Legacies." ' 1 R. L. 64. 
 
 ' Fanning v. Dunham, 6 J. Oh. E. 122. » 1 E. S. 773. 
 
CL 3.] Usury. 217 
 
 things in action, shall file a bill in chancery for a discovery of the money, 
 goods or things in action, taken or received, in violation of either of the 
 foregoing provisions, it shall not be necessary for him to pay, or offer to 
 pay, any interest whatever on the sum or thing loaned ; nor shall any 
 court of equity require or compel the payment or deposit of the principal 
 sum, or any part thereof, as a condition of granting relief to the bor- 
 rower, in any case of a usurious loan forbidden by this chapter." 
 
 Soon after this statute took effect, it received a construction in the 
 court of chancery, and which was affirmed on appeal by the court of errors. 
 The case arose upon a bill filed by the surety to a promissory note, 
 against the holder, who had brought an action at law against both prin- 
 cipal and surety, for discovery and relief, and for an injunction against 
 the suit at law. The bill contained no offer to pay the principal sum 
 actually lent, or legal interest thereof, nor was any money deposited or 
 brought into court. On the part of the complainant it was insisted, that 
 under the provision of the eighth section of the act, above quoted, the de- 
 fendant was not bound to pay, or offer to pay, any part of the principal, or 
 legal interest of the money actually lent, to entitle him to an answer from 
 the defendant, and to a decree declaring the security void. The counsel 
 for the defendant (the plaintiff in the action on the note) contended, on 
 the other hand, that the provisions of the section in question were only 
 intended to deprive the lender of money upon usury of the interest on 
 the sum loaned, when the borrower was compelled to resort to a court of 
 equity for a discovery of the usurious contract ; and also to relieve the 
 complainant from the inconvenience of paying or depositing the sum actu- 
 ally due, in the first instance, as a condition of granting relief, by com- 
 pellijag a discovery and granting an injunction to stay proceedings at law 
 in the mean time. He also contended that the section was limited to the 
 case of a suit by the borrower ; and was not applicable to the case, in 
 which the complainant was not the actual borrower, but merely the surety 
 for the person to whom the money was loaned. On these questions 
 Chancellor Walworth made the following remarks : " This section of the 
 revised statutes has undoubtedly introduced a new principle in the law 
 of usury, as administered in this court. And to ascertain its true con- 
 struction it is necessary to inquire how the law previously stood, and what 
 change the legislature intended to introduce. The usury laws having 
 declared all bonds, bills, notes, contracts, and assurances which were 
 contaltninated with usury, void, it followed of course, that no suit could be 
 sustained by the usurer or his assignee, either at law or in equity ; even 
 to recover back the money actually lent, with the legal interest thereon. 
 This, however, was found by the courts to be an insufficient protection 
 Eq. Juk. 28 
 
218 Of Fraud. [CL 3. 
 
 to the borrower, from his inability to establish the fact of usury by the 
 ordinary modes of proof adopted in courts of common law. It was also 
 found that in many cases where the borrower had the means of proving 
 the usury, the nature of the security taken by the lender was such as to 
 give the borrower no opportunity to plead and establish the fact in a 
 court of law. A common case of this kind was the taking of a bond and 
 warrant of attorney, and entering a judgment thereon ; by which means 
 the defendant was precluded from pleading the usurious consideration of 
 the bond. And when the lender had taken a mortgage for the loan, con- 
 taining the usual power of sale, he also had the right to foreclose the 
 equity of redemption of the borrower by advertising under the statute, 
 and without applying to any court. In these, and some other cases of a 
 similar nature, it became necessary for the borrower to resort to the ex- 
 traordinary jurisdiction of the court of chancery to obtain discovery, or 
 relief. But wheu he applied to this court as a complainant, or actor, he 
 found himself differently situated in respect to his rights under the 
 usury laws, from what he would have been when placed in the situation 
 of a defendant, either at law or in equity. Coming here to ask the equi- 
 table interference of this court, he was met by the standing maxim of 
 courts of equity, that ' he that will have equity must do equity.' (Fran- 
 cis' Maxims, 1.) And this court could not afford him any relief against 
 the usurious premium included in the security which he sought to set 
 aside, except upon the terms, or conditions, that he should repay to the 
 defendant the money actually lent, with legal interest thereon. If a dis- 
 covery was necessary either to aid him in a defense at law, or otherwise, 
 he was also met by another settled principle of this court, that it will not 
 extort from the defendant an answer on oath, and thus compel him to be 
 a witness against himself, when such answer might subject him to a 
 criminal proceeding, or to a penalty or forfeiture, or to any loss in the 
 nature of a forfeiture." 
 
 " In accordance with these two principles, it had become the settled 
 law of the court of chancery, previous to the adoption of the revised stat- 
 utes, that a defendant was not bound to answer a bill seeking a discovery 
 as to any usurious transactions, when a disclosure of the usury would, or 
 might, subject him to the forfeiture or loss of the. whole, or any part of 
 the money actually lent, or of the legal interest thereon. And even in 
 cases where the complainant could establish, the usury without the aid 
 of the defendant's answer, no relief could be granted to him in this court, 
 except upon the equitable terms, or condition, that he should pay to the 
 defendant what was justly due. (Whitmore v. Francis, 8 Price's R. 616. 
 Tupper v. Powell, 1 J. Ch. C. 439. Scott v. Nesbitt, 2 Cox's C. C. 183. 
 
CL 3.] Usury.' 219 
 
 Fanning v. Dunham. 5 J. Ch. R. 122.) These two principles are dis- 
 tinct in their nature, although they were both applicable to the case of 
 a complainant seeking discovery and relief in this court, against a usuri- 
 ous contract ; and the last might be entirely abolished by the legislature, 
 without interfering with any of the natural rights of the defendant, or 
 doing any thing inconsistent with the spirit of our free institutions. The 
 rule that this court will not lend its aid to a party to enforce a penalty 
 or a forfeiture, and the maxim that a party coming here to ask equity 
 must do equity relates merely to the principles upon which this court 
 acts in the exercise of its general jurisdiction." 
 
 After conceding that it was competent for the legislature to abolish 
 these, maxims of a court of equity, provided the right of trial by jury 
 was not infringed, and no other provision of the constitution violated, he 
 expressed the opinion that the legislature intended to alter the princi- 
 ples on which a court of equity acts in setting aside usurious contracts 
 and securities, in those cases where the complainant has the means of 
 establishing the usury without resorting to the oath of the defendant ; 
 but to leave those principles unaltered, when the nature of the security 
 was such as to compel the borrower to resort to a court of equity for 
 relief. Henee, he says, " when the complainant wishes to examine the 
 defendant, as a witness against himself, to establish the fact of usury, he 
 must in his bill offer to pay the amount of principal actually due or 
 loaned. And if the answer of the defendant can be used by a third per- 
 son to avoid the security, or to relieve himself from responsibility for 
 that amount, the complainant must also bring into court the amount 
 claimed" to be due, or must give such security as the court may direct, 
 for -the payment of the principal sum according to the offer in his bill, 
 ■whenever that sum shall have been ascertained. If there is no such offer 
 in the bill, and the subject is not of equitable jurisdiction otherwise .than 
 for the purpose of discovery, and an injunction to stay proceedings at 
 law, the defendant may demur both as to the discovery and relief, on 
 the ground that the plaintiff's remedy, if any, is at law. When a case 
 of equity is made out by the bill which renders it necessary for the com- 
 plainant to come into a court of equity for relief, he may waive an 
 answer from the defendant on oath, and may proceed to establish the 
 facts by proofs, as in other cases. When an answer on oath is not waived, 
 the defendant may demur to so much of the discovery as relates to the 
 charge of usury, and may answer as to the relief, as in other cases, 
 when the complainant is entitled to relief, but when the defendant 
 cannot make a discovery as to the facts upon which the relief is asked, 
 
220 Of Fraud. [Ch. 3. 
 
 ■without subjecting himself to a criminal prosecution, or a penalty, leaving 
 the complainant to establish the allegation of usury, if he can by proof" 
 
 The chancellor did not decide whether a surety could be treated as 
 the borrower within the meaning of the statute.' 
 
 This cause went to the court for the correction of errors, where the 
 order of the chancellor was affirmed.^ In that court the prevailing opin- 
 ion was pronounced by Mr. Justice Sutherland, who, after reviewing the 
 history of the changes introduced by the revisers into the law of usury, 
 says, with reference to the first part of the section, that the legislature 
 intended to relieve the borrower from the necessity of paying the inter- 
 est on the sum loaned, as a condition to a discovery, but meant to leave 
 him with respect to the principal as the law was before ; and that the 
 provision in the other clause of the section, forbidding a court of equity 
 to require or compel the payment or deposit of the principal sum as a 
 condition of granting relief, applies only to cases where the complainant, 
 although he could prove the usury without resort to the oath of the lender, 
 has no opportunity of setting up the defense, in consequence of the 
 nature of the securities executed by him ; as for instance, a judgment 
 entered on bond and warrant of attorney,, a mortgage with power of 
 foreclosure under the statute, &c. On the other point, both Mr. Jus- 
 tice Sutherland, who gave the prevailing opinion, and Mr. Senator Tracy, 
 who dissented on a part of the case, concurred, that a surety is a bor- 
 rower within the meaning of the law, and entitled to all the remedies 
 and means of defense which are given to the principal. 
 
 The decision in Livingston v. Harris, supra, doubtless led to the pass- 
 age of the act of 1837,^ the fourth section of which is in these words : 
 " Whenever any borrower of money, goods, or things in action, shall 
 file a bill in chancery for relief, or discovery, or both, against any viola- 
 tion of the provisions of the title of the revised statutes, ' Of the inter- 
 est of money,' or of this act, it shall not be necessary for him to pay or 
 offer to pay any interest or principal on the sum or thing loaned ; nor 
 shall any court of chancery require or compel the payment or deposit 
 of the principal sum or interest, or any portion thereof, as a condition of 
 granting relief or compelling, or discoveritig to the borrower in any case, 
 usurious loans forbidden by said title or by this act." 
 
 By a subsequent section^ it was enacted that whenever it should sat- 
 isfactorily appear by the admission of the defendant, or by proof, that 
 any bond, bill, note, assurance, pledge, conveyance, contract, security, or 
 
 ' Livingston v. Harris, 8 Paige, 628. " Laws of 1837, p. 486. 
 
 ' S. 0. in Error, 11 "Wend. 329. ■* Id. § 6. 
 
Ch. 3.] Usury. 221 
 
 any evidence of debt, had been taken or received in violation of the 
 provisions of the said title or that act, the court of chancery should 
 declare the same to be void, and enjoin any prosecution thereon, and 
 order the same to be surrendered and canceled. 
 
 Under the provisions of the act of 1837, the chancellor held that the 
 word borrower, as used in the revised statutes, and in the 8th section of 
 ^he act of 1837, was not confined to the person to whom the original 
 loan was made ; but embraced his sureties, heirs, devisees and personal 
 representatives. He also held that it embraced subsequent grantees of 
 premises subject to a usurious mortgage, who took the premises adverse 
 to the claim of the mortgagee, but who subsequently guarantied the 
 payment of the bond and mortgage, including the usurious premium for 
 the loan.' These questions were brought into the court of errors, on ap- 
 peal from the decision of the chancellor, in another case, involving the 
 same principles, and decided about the same time, and that court con- 
 curred with the chancellor in the opinion that the word " borrower," in 
 the statutes before mentioned, embraced not only the party to whom the 
 original loan was made, but also his sureties, heirs, devisees and personal 
 representatives, but differed from him with respect to its embracing 
 subsequent grantees. Accordingly, when lands were purchased at a 
 sheriff's sale, with knowledge that they were covered by a prior usurious 
 mortgage, and the purchaser, after obtaining the sheriff's deed, filed a 
 bill in equity to set aside the mortgage, to which the mortgagee demurred 
 on the ground that it contained no allegation of payment or offer to pay 
 the sum actually loaned, (fcc, it was held that the demurrer was well 
 taken, and the bill was dismissed.^ This was upon the principle, that- 
 the legislature had not relieved any other person save the borrower, and 
 those standing in legal privity with him, from the necessity of complying 
 with the long established practice of the court, of offering to pay the sum 
 actually due, as a condition to the relief prayed. 
 
 The surety of the borrower is entitled to all the privileges under these 
 acts of the borrower according to the foregoing cases. This doctrine 
 was questioned by Bronson, J., and approved by Gardiner, J., in the court 
 of appeals, but the point was not passed upon by the court.' It stands, 
 therefore, upon the decision of the court of errors. 
 
 With regard to the validity of securities taken under usurious agree- 
 ments, the English statute of the 12th Ann, stat. 2, ch. 16, enacted that all 
 
 ' Cole V. Savage, 10 Paige, B83. » Vilas v. Jones, 1 Comst. 274. 
 
 " Post V. The Bank of Utica, 7 Hill, 
 891. Post V. Dart, 8 Paige, 639. 
 
222 Op Fraud. [Oh. 3. 
 
 hands, conlructs and assurances whatsoever, made for payment of any 
 principal, or money to be lent, whereby usurious interest was taken or 
 received, should be utterly vojid.^ Under this statute, it was held by the 
 English courts, that a bill or note was void for usury, even in the hands 
 of a bona fide holder.'' , The extreme hardship of this rule led to the 
 statute of 58 Geo. 3, eh. 93, which enacted that all bills and notes there- 
 after made upon usurious consideration, or contract, should not be void 
 in the hands of an indorsee for valuable consideration, unless such in- 
 dorsee had, at the time of discounting or paying such consideration for the 
 same, actual notice that such bill or note had been originally given for a 
 usurious consideration, or upon an usurious contract.' The New- York 
 statute of 1787, for preventing usury," like the English statutes of 
 12th Ann, made all bonds, bills, notes, contracts and assurances what- 
 soever, made or taken upon an usurious consideration, utterly void. 
 The New- York statute specified "bills and notes,'' by name, which were 
 not mentioned in the English statute, but which were held to be within 
 it, by the courts. The English cases under the statute were authority 
 for our courts under the statute of 1787, and were followed accordingly.^ 
 And this continued to be the rule until the revised statutes took efiect, 
 in 1830. By the fifth section of the act " Of the interest of money," 
 the provisions of the English statute of 58 George 3d were adopted. 
 After declaring all bonds, bills, notes, assurances, conveyances, all other 
 contracts or securities whatsoever, and all deposits of goods or other things 
 whatsoever, whereupon or whereby there shall be reserved or taken, or 
 secured or agreed to be reserved or taken, any greater sum or greater 
 value, for the loan or forbearance of any money, goods or things in action, 
 than is prescribed by the act (seven per cent) to be void ; it enacts that 
 the section shall not extend to any bills of exchange or promissory notes, 
 payable to order or bearer, in the hands of an indorsee or holder, who 
 shall have received the same in good faith, and for valuable consideration, 
 and who had not, at the time of discounting such bill or note or paying 
 such consideration for the same, actual notice that such bill or note, had 
 been originally given for a usurious consideration, or upon a usurious 
 contract. 
 
 This statute was held to have no retrospective effect, but to be opera- 
 tive only upon contracts subsequently made.* The decisions under it, 
 
 ■ Chitty on Bills, 99, Springfield eel. ' Chitty on Bills, 110. 
 
 " Low v. Waller, Doug. 735. Cuth- * 1 R. S. 64. 
 
 bert V. Haley 8 T. R. 890. Ferrall v. ' "Wilkie v. Roosevelt, 3 J. 0. 20C. 
 
 Shaen, 1 Saund. 296. Parr v. Eliaaon, • Haokley v. Sprague, 10 Wend, 173, 
 1 East, 92. Chitty on Bills, 110. 
 
CL 3.] Usury. 223 
 
 ■were similar to those under the corresponding English statute. On 
 proof that a note was usurious in its inception, it was incumbent on the 
 holder to show that he paid a valuable consideration for it.' The opera- 
 tion of the English statute, says Mr. Chitty, seems to be, that if in an ac- 
 tion on a bill or note, the defendant should succeed in establishing that it 
 was founded in a usurious contract' or consideration, then the plaintiff 
 must prove that he gave value for it ; and then the defendant must show 
 that the plaintiff, nevertheless, had notice of the usury at the time he 
 took the security.* 
 
 A court of equity, when applied to by the borrower, or party standing 
 in legal privity with him, for relief against a usurious contract, declared 
 utterly void by the act of 1787, and by the revised statutes of 1830, in- 
 variably refused so to declare it, except upon the terms of payment of the 
 sum actually due, of the principal and interest of the loan. Had the in- 
 validity of the security depended upon actual fraud in obtaining the 
 instrument, as, that one instrument was fraudulently substituted for 
 another, or that it was without any consideration, no such terms would 
 have been imposed by the court as a condition of relief. But when there 
 is no moral fraud in the case, and the contract is void only by reason ';^f 
 its contravening a rule of public policy, or a positive statute, a court of 
 equity, it has been seen, would not interfere, and declare it void, and set 
 it aside, except upon the terms of reimbursing the lender the sum actually 
 due for his advances and-interest.'' 
 
 The act of New- York of 1837, so far as it declared usurious contracts 
 void, was not more stringent than the act of 1787 and the revised stat- 
 utes ; but by repealing the last clause of the 5th section of the revised 
 statutes, it left commercial paper void even in the hands of a bona fide 
 holder, without notice.* 
 
 But a bill, or note, or other chose in action, valid in its inception, may 
 be purchased at a discount beyond the legal rate of interest, although the 
 payer indorses the note. In a case of that kind the indorser was allowed 
 to recover against the maker, the full amount of the note ;' but was per- 
 mitted to recover against the indorser only the sum actually paid on the pur- 
 chase, with interest thereon. In cases of this character, however, it is always 
 open to inquiry, whether the transaction be a bona fide transfer and pur- 
 
 ' Seymour v. Strong, 1 Hill, 563. S. C. 11 Wend. 329, and cases before 
 
 ' Chitty on Bills, 110, 652. cited, f 
 
 • Livingston v. Harris, 3 Paige, 528. * Lawsof 1837, p.4,6'r. 1^8.772,15. 
 
 ' Cram v. Hendricks, 7 Wend. 569. 
 
224 Of Fraud. [Ch. 3. 
 
 chase of the security, or a mere device, to evade the statute of usury.' In 
 a subsequent case, the same principle was applied to the purchase of a 
 bond and mortgage at a discount beyond legal interest 
 
 If the borroiver has paid the money upon an usurious agreement, he 
 may by statute, within one year thereafter, recover against the person 
 V ho shall have taken or received the same, or his personal representative, 
 the amount of the money so paid.' But, independently of the statute, 
 the excess of interest may be recovered in equity, and even at law, in an 
 action for money had and received.' The rule, iji ppari delicto, otior est 
 conditio defendentis, applies only when both parties are equally guilty, 
 as in bribery, and the like. But the statute of usury was made to protect 
 needy and necessitous persons from the oppression of the usurer and 
 moneyed men, who are eager to take advantage of the distress of others ; 
 while they, on the other hand, from the pressure of their distress, are 
 ready to come into any terms, and M'ith their eyes open, not only break 
 the law, but complete their ruin. It is an abuse of terms to say, that he 
 who is driven by great pecuniary distress to submit to the exactions of 
 the usurer, is a particeps criminis with his oppressor.^ 
 
 An action may be framed under the code in analogy to a bill in equity 
 for discovery and relief against a usurious transaction. No other bill, or 
 action of discovery has been abolished, except such as formerly was used 
 in aid of another action.' Every action, whether at law or in equity, 
 may be, at the election of the plaintiff, an action for discovery and relief.' 
 If the plaintiff desires the answer of the defendant to be under oath, he 
 can require it, by verifying the complaint. If the pleadings be properly 
 framed, the answer of the defendant, in such case, will make discovery 
 as to the facts set forth in the complaint. »cAnd the provision in the code, 
 that no pleading can be used in a criminal prosecution against the party, 
 of a fact admitted or alleged in such pleading, is merely the enactment 
 of the practice in this respect, which existed in courts of equity before the 
 adoption of the code.' Whether the action be brought at law or in equity 
 for relief against a usurious agreement, the party seeking to repudiate 
 the agreement must pay, or offer to pay, in cases where he is not excused 
 
 ' Cram v. Hendricks, 7 Wend. 669. ' 21 "Wend. 285. 1 Fonb. Eq. B. 1, ch. 
 
 ' Rapelye v. Anderson, 4 Hill, 472. 4, § 7 and notes. 
 
 Mitchell V. Oakley, 7 Paige, 68. Judd • Code, § 889. 
 
 V. Traver, 8 Paige, 648. 21 Wfid. 285. ' Id. § 157. 
 
 " 1 R. S. 772, § 8. » Livingston v. Harris, 3 Paige, 634, 
 
 ' Browning v. Morris, Cowp. 792. see opinion of Chancellor. Code, § 157. 
 
Ch. 3.] Wager Contract. 225 
 
 from so doing by the act of 1837, the sum actually due before he com- 
 mences his action; and that fact must appear in his complaint." 
 
 It was conceded in an early case, that at common law, a wager is recov- 
 erable wherein the parties have no other interest than that which they 
 create by the wager itself.'^ But it was decided in the same case, and 
 has been repeatedly since, that a wager which is against public policy 
 is void, equally as if it contravened a positive law.' In one case before 
 Lord Hardwick, where the defendant had won £500 of the plaintiff at 
 backgammon, for which he some time afterwards gave the defendant a 
 bond, and after that paid part of the money, on a bill brought to be 
 relieved against the bond, and to be repaid the money which he had paid 
 in part discharge of it, his lordship decreed accordingly with great clear- 
 ness ; and said by statute 9th Ann, all securities for money won at play 
 are made void ; consec[uently the payment under any security cannot be 
 supported- That the time limited by that statute, for suing for the 
 recovery of money paid, means money actually paid at the time it is lost, 
 and does not extend to securities.* 
 
 In this state, the remedy has been in general asserted at law, under the 
 provisions of the statutes, but there can be no doubt that the equitable 
 jurisdiction of the court may be invoked, to vacate the securities taken 
 for a gambling debt, or a debt originating in any transaction forbidden 
 by the law. 
 
 We shall proceed now to the consideration of another class of cases, 
 where the benign interposition of a court of equity may be invoked tp 
 relieve against frauds upon the rights and interests of third persons, 
 comprising all those acts which tend to delay, hinder or defraud creditors. 
 These acts are sometimes the result of actual, intentional and premedi- 
 tated fraud, and of course relievable either at law or in equity ; but they 
 more frequently, perhaps, fall within the class of constructive frauds ; 
 being acts in contravention of the requirements of the statute, or against 
 the policy of the law, and tending to defraud creditors and subsequent 
 purchasers. The two classes of frauds are often found so blended together, 
 that it is impossible to separate them, and both perhaps exist in the same 
 
 ' Fitzroy v. Guillam, 1 T. K. 151, and 9 Oowen, 169. Morgan v. Groff, 6 Depio, 
 
 the oases in Chancery already cited. S64. S. 0. 4 Barb. 524. 
 
 ' Bunn V. Riker, 4 J. E. 426. * Bawden v. Shadwell, Amb. 269. Por- 
 
 » Mount V. Wait, 7 J. K. 434. Denni- tarlington v. Sonlby, 3 Myl. & K. 104,. 
 
 nison v. Cook, 13 id. 876. Lansing "Woodroffe v. Farnham, 2 Vern. 291. . 
 V. Lansing, 8 id. 454. Bust v. Gott, 
 
 Eq. JnB, 29 
 
226 Of Fraud. [Oh. 3. 
 
 transaction. Lord Mansfield is reported to have said, on one occasion, 
 that the principles and rules of the common law, as now universally under- 
 stood, are so strong against fraud in every shape, that the common law 
 would have attained every end proposed by the statutes 13 Eliz. ch. 5, . 
 and 27 Eliz. ch. 4.' This is perhaps stating the doctrine too broadly, 
 as courts of equity afford relief in cases not mentioned in those statutes. 
 And there are many instances of fraud that would affect instruments in 
 equity, of which a court of law cannot take notice.^ 
 
 The English statutes on the subject of frauds have been closely copied 
 by the revised statutes of this state. The first section of title two, chap- 
 ter seven, part two, R. S.' enacts, that all deeds of gift, all conveyances, 
 and all transfers or assignments, verbal or written, of goods, chattels, or 
 things in action, made in trust for the use of the person making the same, 
 shall be void as against the creditors, existing or subsequent, of such per- 
 son. This was taken from the English statute of 3d Henry 7th, ch. 4, 
 but is made somewhat more broad and comprehensive. The 13th Ehz. 
 ch. 5, makes all gifts of goods and chattels, as well as of lands, by writing 
 or otherwise, made with intent to delay, hinder and defraud creditors, 
 void as against the persons to whom such fraud would be prejudicial. 
 This is embraced in the first section of title three, chapter seven, of part 
 two of the revised statutes. And the exception in the English statute, 
 in favor of bona fide purchasers upon good consideration, without notice 
 of the fraud, is adopted in substance and with some qualification, in the 
 fifth section of the same title of the New- York statute.* The statute of 
 the 27th Eliz. ch. 4, was made against fraudul eat conveyances of lands to 
 defeat subsequent bona fide purchasers, and it applied in favor of subse- 
 quent purchasers for valuable consideration, even in cases of fair volun- 
 tary conveyances, provided they were purchasers without notice of the 
 voluntary conveyance. The corresponding provision of the New- York 
 statute, (2 R. S. 134, §§ 1, 2,) avoids every conveyance of any estate or 
 interest in lands, or the rents and profits of lands, and every charge upon 
 lands, or upon the rents and profits thereof, made or created with the in- 
 tent to defraud prior or subsequent purchasers for valuable consideration, 
 of the same lands, rents or profits, as against such purchaser. The sec- 
 ond section enacts that no such conveyance or charge shall- be deemed 
 fraudulent, in favor of a subsequent purchaser, who shall have actual or 
 legal notice thereof, at the time of his purchase, unless it shall appear 
 
 • 
 
 ' Oadogan v. Kennett, Oowp. 484. Per " Per Lord Eldon in Butcher v. Botoh- 
 Marshall, Oh. J. ia Hamilton v. Russell, er, 1 Ves. & B. 98. 
 1 Oranoh, 316, and per Spencer, J. in "2 R. S. 135. 
 Sands V. Hildreth, 14 J. R. 493. * 2 R. S. 137, §§ 1, 5. 
 
CL 3.] In Fraud of Ceeditors and Purchasers. 227 
 
 that the grantee in such conveyance, or person to be benefited by such 
 charge, was privy to the fraud intended. 
 
 It is very properly remarked by a learned writer,' that the object of 
 the legislature by the 13th Elizabeth, was to protect creditors from those 
 frauds which are frequently practiced by debtors under the pretense of 
 discharging a moral obligation. The want of a good or meritorious con- 
 sideration to a conveyance, seems always to haye been a sufficient ground 
 to conclude that it was fraudulent. While the statute protects the legal 
 rights of creditors against the fraud of their debtors, it excepts from such 
 imputation the ionafide discharge of a moral duty. It does not declare 
 all voluntary conveyances, but all fraudulent conveyances, to be void ; 
 and whether the conveyance be fraudulent or not, is declared to depend 
 on the consideration being good and honafde. 
 
 It is not enough that the conveyance is made upon a. good consideration, 
 it must also be made bona fide. In the New-York statute it is also pro- 
 vided that no conveyance or charge shall be adjudged fraudulent as 
 against creditors or purchasers, solely on the gr mind that it was not found- 
 ed on a vcduahle consideration.^ A good consideration is sometimes used 
 in the sense of a consideration valid in point of law ; and then it includes 
 a meritorious as well as valuable consideration. The meaning of the word 
 " good" in the statute of frauds is settled to be the same as " valuable."' 
 The revised statutes use the term " valuable" eonsideration. A good con- 
 sideration is most generally used as denoting the consideration of blood, 
 or of natural love and affection.* A deed upon a good consideration 
 ought to prevail, unless it conflicts with the rights of creditors ; in which 
 case it should be set aside in their favor, for though the consideration be 
 good, it is not bona fide. 
 
 When the , actual design and intent of a purchase is to defraud the 
 creditors of the vendor, be the consideration paid, or agreed to be paid, 
 what it may, the sale is doubtless void as against creditors either at com- 
 mon law or under the statute. It thus becomes a purchase in bad faith, 
 which no court can uphold. This principle has been extended to a pur- 
 chase made with intent to defeat the recovery by a third person for damages 
 in an action then pending for a tort, and before trial, when it could not 
 be known with certainty, whether there would be a recovery or not." » 
 But it is not of this kind of intentional frauds that we are now treating. 
 
 » 1 Fonb. Eq. B. 1, oh. 4, § 12, note. Twyne's case, 3 Rep. 81, b. Taylor v. 
 
 " 2 B. S. 187, § 4. Jones, 2 Atk. 601. 
 
 ' Hodgson V. Butts, 8 Oranoh, 140. * 2 Bl. Com. 297. 
 
 Copis V. Middleton, 2 Mad. K. 480. ' Jackson v. Myers, 18 J. K. 425. 
 
228 Of Fraud. [Cli. 3. 
 
 There is a class of cases which have led to much discussion, and to 
 some conflict of opinion, -whether a voluntary conveyance made hj a party 
 indebted at the time be per se, fraudulent as against the creditors of the 
 grantor, or whether the circumstance of the indebtedness of the grantor 
 is to be taken only as one of the badges of fraud which may be explained. 
 This question has sometimes arisen between a creditor of the grantor and 
 a person holding under a marriage settlement ; and sometimes between 
 such creditor and a son or daughter of the grantee, to whom the convey- 
 ance was made as an advancement. 
 
 This subject was very much considered by Chancellor Kent, in 1818, 
 arising on the question as to the validity of a post nuptial marriage set- 
 tlement.' After a critical review of the English cases, he came to the 
 general conclusion that if the party be indebted at the time of the volun- 
 tary settlement, it is presumed to be fraudulent in respect to such debts, 
 and no circumstance will permit those debts to be affected by the settle- 
 ment, or repel the legal presumption of fraud. The presumption of law 
 in this- case, said the chancellor, "does not depend upon the amount of 
 the debts, or the extent of the property in settlement, or the circumstances 
 . of the party. There is no such line of distinction set up or traced in 
 any of the cases. The attempt would be embarrassing, if not dangerous 
 to the rights of the creditor, and prove an inlet to fraud. The law has, 
 therefore, wisely disabled the debtor from making any voluntary settle- 
 ment of his estate, to stand in the way of existing debts. This is the 
 clear and uniform doctrine of the cases." 
 
 With respect to the claims of subsequent creditors, he held that the 
 presumption of fraud, arising from the circumstance that the party was 
 indebted at the time, may be repelled ; that it ia repelled by the fact that 
 these debts are secured by mortgage, or by a provision in the settlement ; 
 that if no such circumstance exists the subsequent creditor may show a 
 prior indebtedness ; that as to subsequent indebtedness there is no neces- 
 sary legal presumption of fraud, from a voluntary conveyance y and that 
 there must be proof of fraud in fact ; and the indebtedness at the time of 
 the conveyance, in order to be available to a subsequent creditor, must bo 
 such, in its circumstances and amount, as to justify the conclusion of fraud. 
 
 It is believed that the doctrine of the chancellor, to the extent pro- 
 mulgated by him, was not fully in accordance with the opinions, then en- 
 tertained, by eminent judges of the supreme court. The learned jurist 
 who delivered the opinion of the court of errors in Verplank v. Sterry, 
 
 ' Eeade v. Livingston, 3 J. Oh. Oasea, 481, 500. S. P. Bayard v, HofOnan, 4 J, 
 Ch. B. 450. 
 
Ch. 3.] In Fraud of Creditors and Purch4.sers. 229 
 
 decided in 1815,' evidently did not consider that indebtedness alone would 
 be sufficient to impeach a settlem^t in favor of existing creditors. If 
 the voluntary settlement was made on a meritorious consideration, it was 
 not only necessary that the grantor should be indebted, but should be in- 
 solvent, or in doubtful circumstances, at the time. In such case it is ob- 
 vious that the settlement deprives the creditors of the means of satisfying 
 their debts, and the case plainly falls within the statute ; but if the gran- 
 tor be not indebted to such a degree as that the settlement will deprive 
 the creditors of an ample fund for the payment of their debts, the con- 
 sideration of natural love and affection will support the deed, although a 
 voluntary one, against his creditors. 
 
 In the case of Verplank v. Sterry, supra, the question was raised by a 
 subsequent purchaser, but the learned judge, after adverting to the Eng- 
 lish cases, evidently thought that subsequent purchasers stood on the 
 same footing as subsequent creditors, with respect to their right to im- 
 peach a voluntary settlement.^ 
 
 But whether the doctrine of Chancellor Kent, in Reade v. Livingston, 
 was in accordance with the judicial opinions of his cotemporaries or not, 
 it was at length in 1825 fully approved and adopted by the supreme court 
 in Jackson v. Seward.^ In that case, the lessor Of the plaintiff deduced 
 title under a judgment and execution against the father, and the defend- 
 ant, under a deed froni the father, made before the recovery of the judg- 
 ment or the commencement of the action in which it was obtained. The 
 question of actual fraud in the conveyance was not relied upon, and a 
 verdict was taken for the plaintiff subject to the opinion of the supreme 
 court upon the single question, whether the deed was fraudulent in law, 
 as against the lessor of the plaintiff. 
 
 After a full discussion of the subject, the supreme court adopted the 
 reasoning of Chancellor Kent in Reade v. Livingston. They held that 
 a voluntary settlement, or conveyance by way of advancement of children, 
 after marriage, by a person indebted at the time, is fraudulent and void 
 against all his creditors, who were such prior to the settlement or ad- 
 vancement ; and that without regard to the amount of their debts, or the 
 extent of the property settled, or the circumstances of the person who 
 made the settlement or advancement. They thought it was as well ap- 
 plicable to a debt due upon a contingent liability, as for a debt then 
 actually due ; but with regard to debts contracted subsequently to the 
 
 ' Per Spencer, J. in Verplank v. Sterry, " Id. p. 556. 
 12 J. K. 557. ' 5 CoWen, 67. 
 
230 Op Fraud. [Ch. 3. 
 
 settlement, or advancement, the presumption of fraud, they thought, 
 might be repelled by circumstances. 
 
 The case of Jackson v. Seward was taken to the court of errors ; and 
 in the subsequent year (1826) underwent a most elaborate discussion by 
 the, then, Chancellor Jones, and Senator Spencer, when the judgment of 
 the supreme court was reversed by nearly a unanimous vote.' On this 
 branch of the case the chancellor, after questioning the doctrine of Chan- 
 cellor Kent in Reade v. Livingston, adopts the language of Mr. Justice 
 Thompsen in Hinde's Lessees v. Longworth.' " A deed from a parent to 
 a child, for the consideration of love and affection, is not absolutely void 
 as against creditors. It may be so under certain circumstances ; but the 
 mere fact of being in debt to a small amount, would not make the deed 
 fraudulent, if it could be shown, that the grantor was in prosperous cir- 
 cumstances, and unembarrassed, and that the gift to the child was a rea- 
 sonable provision according to his stat,e and condition in life, and leaving 
 enough for the payment of the grantor's debts. The want of a valuable 
 consideration may be a badge of fraud, but is only presumptive, and not 
 conclusive evidence of it, and may be met and rebutted by evidence on 
 the other side." 
 
 Other combinations of circumstances might produce the same effect, in 
 repelling this presumptive evidence of fraud. It would be the duty of 
 the court, before it pronounced its judgment, to look at the whole case, 
 to determine whether the deed from the father to the son was voluntary 
 or for a consideration ; and, if voluntary, how far the other facts of the 
 case would repel the presumption of fraud, which the character of the 
 conveyance would create. 
 
 The opinion of Senator Spencer was no less decided on the doctrine in 
 question. He treated the case as if the jury had found specially that 
 there was no actual fraud. This was doubtless the true ground on which 
 to place the case. The question then became, on this branch of the case, 
 whether a voluntary conveyance by a father to a child is in law fraudu- 
 lent as against creditors, or only evidence of fraud to be passed upon by 
 the jury. He held that it was not conclusive evidence of fraud, but was 
 a fact to be submitted, with other circumstances, to the consideration of 
 the jury. 
 
 A voluntary conveyance is a deed without any valuable consideration." 
 The adequacy of the consideration is another matter, and becomes mate- 
 
 ' Seward v. Jackson, 8 Oowen, 406, 422. ' Per Spencer, in Seward v. Jackson, 8 
 " 11 Wheat. 199, 218; and see Sexton Oowen, 430. Jackson v. Peck, 4 Vend. 
 V. Wheaton, 8 id. 229, 242. 800. 
 
Ch. 3.] In Fkaud of Creditors and Purchasers. 231 
 
 rial only in ascertaining the fraudulent intent. Strictly speaking, says 
 Spencer, senator, in the same case, there is no such thing as fraud in 
 law ; fraud or no fraud is, and ever must be, a fact ; the evidence of it may 
 be so strong as to be conclusive ; but still it is evidence, and as such 
 must be submitted to a jury. No court can draw it against the finding 
 of a jury.' 
 
 The lessor of the plaintiff having thus failed at law, filed his bill in the 
 court of chancery to set aside the deed in question, on the ground of its 
 being a voluntary conveyance from the father to the son, without con- 
 sideration, and fraudulent as respects the complainant, a creditor of the 
 grantor. The cause was decided in the first instance by the vice chan- 
 cellor of the first circuit,'' who after a careful examination of the subject 
 dismissed the bill, mainly upon the ground that the matter was res adju- 
 dicata, by the decision of the court of last resort in Jackson v. Seward, 
 in eighth Cowen. The cause then went by appeal into the court of 
 chancery, where it was thoroughly argued. In examining the question 
 under consideration, the chancellor said that it could not be seriously 
 urged that when a parent makes an advancement to his child, honestly 
 and fairly retaining in his own hands at the same time, property sufiScient 
 to pay all his debts, such child will be bound to refund the advancement, 
 for the benefit of creditors, if it afterwards happens that the parent either 
 by misfortune or fraud does not actually pay all his debts which existed 
 at the time of the advancement. And he adds : when a parent makes a 
 voluntary gift or conveyance of his property without any valuable con- 
 sideration, and for the purpose of defrauding creditors, equity may well 
 follow it into the hands of the donee for the benefit of the creditors, 
 although such donee was not privy to the intended fraud.^ The cause 
 was then taken by appeal to the court of errors, where the decree of the 
 chancellor was afiirmed, apparently upon the ground that the doctrine 
 of the court of errors, established in the same controversy, in the eject- 
 ment suit, was decisive of the case.* 
 
 The fact that other questions than the one under consideration, existed 
 and were noticed by the members of the court of errors, when the case 
 of Jackson v. Seward was before them, as reported in eighth Cowen, has 
 cast some doubt as to the extent to which the doctrine of Chancellor Kent, 
 in Keade v. Livingston, has been shaken. The opinions, on this point. 
 
 ' Per Spencer, in Seward v. Jackson, 8 ' Van Wyck v. Seward, 1 Ed. Ch. 327. 
 Cowen, 430. Jackson v. Peck, 4 "Wend. ' Van Wyck v. Seward, 6 Paige, 67. 
 300. * S. 0. 18 Wend. 376. 
 
232 Of Fraud. [OL 3. 
 
 by the supreme court, in subsequent cases, become therefore important 
 to be examined. In a case which arose shortly after the decision of the 
 court of errors, the same question was again brought under discussion.' 
 On this branch of the subject, Sutherland, J., in delivering the opinion 
 of the court, said : The doctrine of voluntary conveyances has recently 
 been very fully considered in the court of errors, in the case of Seward 
 V. Jackson,( 8 Cowen, 406,) and the distinction which had previously 
 been supposed to exist between fraud in law and fraud in fact or actual 
 fraud, appears to have been entirely exploded. The language of Judge 
 Thompson in Hinde's Lessees v. Longworth, (11 Wheaton, 213,) and 
 which has already been quoted,' is cited by Chancellor Jones and Sena- 
 tor Spencer with marked approbation, as containing a clear and sound 
 exposition of the law upon this subject. The language of the learned 
 judge in that case, it will be remembered, makes the question of fraud 
 or no fraud in a voluntary conveyance from the parent to a child, upon 
 the consideration of natural love and affection, a question of fact for the 
 jury, and not of law for the court ; and that it treats the indebtedness 
 of the father at the time, not as conclusive evidence of fraud, but as a 
 badge of fraud, open to explanation, and capable of being repelled by 
 circumstances. The same question arose in the same court in a still 
 later case,' and was decided the same way. 
 
 The same question has also arisen in the court of chancery since the 
 decision in Jackson v. Seward, and Van Wyck v. Seward. In Wickes 
 V. Clarke, a bill was filed by judgment creditors of the husband to set 
 aside a post nuptial settlement by the husband upon his wife of property 
 which came to her by descent from her uncle, upon the ground that it was 
 voluntary and not upon any valuable consideration. The cause was heard 
 by the vice chancellor of the first circuit. On this branch of the sub- 
 ject the vice chancellor said : The doctrine that a voluntary settlement 
 after marriage by a person indebted at the time, is in law presumed to be 
 fraudulent and void against all such antecedent creditors, without regard 
 to the amount of existing debts, or the extent of the property settled, or 
 the circumstances of the party ; and that no circumstances will permit 
 such debts to be affected by the settlement, or repel the legal presump- 
 tion of fraud, as stated by Chancellor Kent in Reade v. Livingston, as 
 being the result of the English cases, and reiterated by him in Bayard v. 
 Hoffman, (4 J. Ch. R. 450,) has undergone some modification since, by 
 the decision of the court of errors in Seward v. Jackson, (8 Cowen, 406.) 
 
 ' Jackson v. Peck, 4 Wend. 808. ' Jackson t. Zimmerman, 7 Wend. 43. 
 
 ' Ante, p. 230. 
 
CL 2.] Fraudulent Settlements. 233 
 
 To authorize the court to interfere with and declare a voluntary set- 
 tlement void, even as to creditors whose debts existed when the deed was 
 made, intentional fraud must appear ; and prior indebtedness is but a 
 badge or argument of fraud, which may be explained away or repelled 
 by circumstances.' Although the decree of the vice chancellor was mod- 
 ified by the chancellor, it was not upon a point which affects the correct- 
 ness of that portion of his opinion. 
 
 When the case of Van Wyck v. Seward was in the court of errors on 
 appeal from the chancellor, Mr. Justice Bronson gave an elaborate and 
 able opinion, in which thirteen senators concurred, in favor of reversing 
 the decision of the chancellor. His opinion was based upon several other 
 points, not necessary to be noticed at this time, but on the question wheth- 
 er the doctrine of Chancellor Kent, in Reade v. Livingston, that if the 
 parti/ be indebted at the time of the voluntary settleme?it,. it is to be pre- 
 sumed to be fraudulent in respect to such debts, and that, no circum- 
 stances will perwjit those debts to be affected by the settlement, or repel 
 the legal presum,ption of fraud, be law, the learned judge remarks: 
 " that the rule has not always been carried to that extent, and he was not 
 prepared to say, that the language of the chancellor should not be taken 
 with some qualifications."^ Judge Story, in his learned commentaries on 
 equity jurisprudence, reviews, with his accustomed industry and ability, 
 the cases on this subject, and speaking of the doctrine of Chancellor Kent 
 in Reade v. Livingston, says, that it is strictissimi juris. And he settles 
 down upon the conclusion under the statute of the 13th Eliz., that mere 
 indebtedness at the time, would not, per se, establish that a voluntary 
 conveyance is void, even as to existing creditors, unless the other circum- 
 stances of the case justly created a presumption of fraud, actual or con- 
 structive, from the condition, state and rank of the parties, and the di- 
 rect tendency of the conveyance to impair the rights of creditors.' And 
 Chancellor Kent, in a note to his commentaries, admits that the tendency 
 of the decisions, both in England and America, is in the same direction, 
 that the conclusion of fraud is, in every case, to be left to a common jury.* 
 
 From the foregoing review of the New- York cases, it may be afiirmed, 
 that indebtedness alone, without reference to its amount and other cir- 
 cumstances, will not render a voluntary conveyance by a parent to a 
 child, fraudulent and void as against existing creditors, and much 
 less against subsequent creditors ; that if a parent, indebted art the 
 
 ' "Wiokes V. Clarke, 8 Paige, 165. See ' Van Wyck v. Seward, 18 Wend. 393. 
 
 S. P., The Bank U. S. v. Houseman, 6 ' Story's Com. Eq. Juris. § 360, 865. 
 
 Paige, 526. * 2 Kent's Com. 443, note. 
 
 Eq. Job. 30 
 
234 Of Fraud. [Ch. 8. 
 
 time, makes an advancement to a child, and retains in Ms own hands 
 at the same time, property sufficient to pay all his debts, the child 
 ■will' not be bonnd to refund the advancement for the benefit of cred- 
 itors, should it afterwards happen that the parent, either by misfortune or 
 fraud, does not actually pay all his debts which existed at the time of 
 the advancement.' If it be shown that the grantor was in prosperous 
 circumstances and unembarrassed, though indebted, and that the gift to 
 the child was a reasonable provision, according to his state and condition 
 in life, and leaving enough for the payment of the debts of the grantor, 
 these circumstances, in the absence of proof of an actual intention to de- 
 fraud, will repel the inference of fraud resulting from the want of a valu- 
 able consideration. The want of such consideration may be, and doubtless 
 is, a badge of fraud, but it is only presumptive and not conclusive evi- 
 dence, and may be met and rebutted by evidence oh the other side. 
 
 This doctrine it has been seen is in conformity to the construction of 
 the statute of 13 Eliz£fbeth by the supreme court of the United States.* 
 
 It is not denied that there are numerous English cases sustaining the 
 doctrine of Chancellor Kent in Reade v. Livingston. They are ably re- 
 viewed by him and by Judge Bronson in the dissenting opinion in Van 
 Wyck V. Seward, in the 18th Wendell. The English courts hold the 
 rule more strictly in favor of subsequent purchasers, than in favor of 
 creditors. Thus, in one case it was held, that a voluntary settlement of 
 lands made in consideration of natural love and affection is void as against 
 a subsequent purchaser, for a valuable consideration, though with notice 
 of the prior settlement ; and though the settlor had other property at the 
 time of such prior settlement, and did not appear to be then indebted, 
 and there was no fraud in fact in the transaction.' This case adopts a 
 more severe rule than has ever been followed in this state. It was shown 
 by Judge Spencer in Verplank v. Sterry,* that the rule with respect to 
 Hibsequent purchasers stands in principle, upon the same footing as the 
 rule as to creditors. In this state, it is a waste of time to review the 
 cases on this point, since the revised statutes have removed the distinc- 
 
 ' Van "Wyck v. Seward, 6 Paige, 67. chasers or creditors, solely on the ground 
 
 ' Hinde's Lessees v. Longworth, 11 that it was not founded on a valuable 
 
 Wheat. 218. Sexton v. Wheaton, 8 id. consideration. 
 
 229, 2a0. Verplanck v. Sterry, 12 J. B. And see also Frazei- v. Western, 1 Barb. 
 
 636, 666-B68, per Spencer. 2 R. S. 137, Oh. R. 220. Jackson v. Post, 15 Wend. 
 
 §4, which makes the question of a fraudu- 688. Plank v. Scherraei-horn, 3 Barb. 
 
 lent intent, a question of fact for a jury ; Ch. R. 644. 
 
 and enacts that no conveyance or charge ° Doe v. Manning, 9 East, 59; 
 
 shall be adjudged fraudulent against pur- ' 12 J. R. 558. 
 
Ch. 3.] ■ Voluntary Settlements. 235 
 
 tion between them, if any in truth existed, and placed both on the same 
 footing.' 
 
 The doctrine of the supreme court of the United States, and of the 
 courts of this state on the subject of the claims bf creditors against vol- 
 untary settlements, is in accordance with that of Lord Mansfield. In one 
 case where the contest was between a creditor and the party holding un- 
 der a voluntary settlement,^ his lordship said, such a construction of the 
 statute of 13 Eliz. is not to be made in support of creditors, as will make 
 third persons sufferers. Therefore, the statute does not militate against 
 any transaction bona fide, and- when there is no imagination of frjiu'd. 
 And so is the common law. But if the transaction be not bona fide, the 
 circumstance of its being done for a valuable consideration will not 
 alone take it out of the statute. And in another case where the question 
 arose between a purchaser, and a party claiming under a settlement,' 
 his lordship said, the statute does not say a voluntary settlement shall 
 be void, but that a fraudulent settlement shall be void. There is no 
 part of the act of parliament, which affects voluntary settlements eo 
 nomine unless they are fraudulent. To be sure, he says, it is very dif- 
 ficult against fair honest creditors to support a voluntary settlement, and 
 in another place he says, one great circumstance which should always be 
 attended to in these transactions, is, whether the person was indebted at 
 the time he made the settlement ; if he was, it is a strong badge of fraud. 
 But he nowhere asserts that the existence of an indebtedness, without 
 reference to its amount, affords a conclusive presumption of fraud. 
 
 The more recent decisions in England, it has already been said, are 
 vibrating towards those made nearest to the time of the statute. In 
 one of the late cases,* Lord Langdale said he could not think the real and 
 just construction of the statute warranted the proposition that the exist- 
 ence of any debt at the time of the execution of the deed would be 
 such evidence of a fraudulent intention as to induce the court to set aside 
 a voluntary conveyance under the statute of Elizabeth. A man may in- 
 tend to pay every debt as soon as it is contracted, and constantly use hia 
 
 ' 2 K. S. 137, § 4. Reviser's notes on only upon a conveyance of the ^eeifio 
 
 this section, S id. 658, 2d ed. It was said property in controversy, and in confidence 
 
 . by Gould, J. in Salmon v. Bennett, 1 of acquiring an immediate title to it, are 
 
 Conn. E. 557, that purchasers have always regarded as having a higher equity than 
 
 been more favored in the constmction of general creditors, 
 
 the statute 27 Eliz. than creditors under ' Oadogan v. Kennett, Cowp. 434. 
 
 the 13 Eliz. Purchasers not having trust- ° Doe v. Eoutledge, id. 705. 
 
 ed to the personal responsibility of the * Townsend v. 'Westaoott, 2 Beav. 344, 
 grantor, but having advanced theirmoney 
 
236 Of Fraud. [Ch. 3. 
 
 best endeavors, and have ample means to do so, and yet be frequently 
 indebted in some small sum ; there may be a -withholding of qlaims, 
 contrary to his intention, by which he is kept indebted in spite of him- 
 self; it would be idle to allege this as the least foundation for assuming 
 fraud or any bad intention. On the other hand, he thought it inconsistent 
 ■with the principles of the act, and with the judgments of the most emi- 
 nent men, to require something amounting to insolvency to be proved in 
 order to set aside a voluntary conveyance. It seems to follow from this 
 reasoning, that in his lordship's opinion, the indebtedness of a man who 
 has ample means to pay all his debts, lays no foundation alone for 
 presuming fraud. To raise that presumption there must be a larger 
 indebtedness, though not a present insolvency ; but an indebtedness so 
 disproportionate to his means as to raise the inference of bad faith, in 
 the voluntary conveyance. 
 
 The doctrine held by the supreme court of errors of Connecticut in a 
 case decided in 1816, coincides with that at present held in this state.' 
 In that case, where a conveyance was made to a child, in consideration of 
 natural affection, without any fraudulent intent at a time when the grant- 
 or was' free from embarrassment, the gift constituting but a small part of 
 his estate and being a reasonable provision for the child, it was held that 
 such conveyance was valid against a creditor of the grantor, whose claim 
 existed when the conveyance was made. 
 
 The learned chief justice in delivering the opinion of the court said : 
 " In order to enable parents to make a suitable provision for their chil- 
 dren, and to prevent them from defrauding creditors, these principles 
 have been adopted, which appear to be founded in good policy : When 
 there is no actual fraudulent intent, and a voluntary conveyance is made 
 to a child in consideration of love and affection, if the grantor is in pros- 
 perous circumstances, unembarrassed, and not considerably indebted, and 
 the gift is a reasonable provision for the child according to his state and 
 condition in life, comprehending but a small portion of his estate, leaving 
 ample funds unencumbered for the payment of t^e grantor's debts ; then 
 such conveyance will be valid against cofir^swfees existing at the time. 
 But though there be no fraudulent intent, yet if the grantor was consid- 
 erably indebted and embarrassed, at the time, and on the eve of a bank- 
 ruptcy ; or if the value of the gift be unreasonable considering the con- 
 dition in life of the grantor, disproportioned to his property, and leaving 
 a scanty provision for the payment of his debts ; thfen such conveyance 
 will be void as to creditors." And Gould, J. said, " As to creditors, the 
 
 ' Salmon v. Bennett, 1 Conn. E. 525. 
 
Ch. 3.] As TO Choses in Action. 237 
 
 ■want of a valuable consideration may be under circumstances, a badge 
 of fraud ; but does not per se, render the conveyance fraudulent.'" 
 
 There is a question which has been agitated in the English courts, 
 whether the statute of 13 Eliz, extends to voluntary settlements of 
 property which a creditor could not reach by a common law execution, 
 such as choses in action, bank stock and the like ; and the opinion seems 
 to be that in order to make a voluntary conveyance void as to creditors, 
 either existing or subsequent, it is indispensable that it should transfer 
 property, liable to be taken in execution.' The difficulty of reaching 
 that species of personal property was discussed and considered by Chan- 
 cellor Kent in Bayard v. Hoffman.' The cases were found to be contra- 
 dictory, and the question unsettled. The early cases in the time of Lord 
 Hardwicke favored the doctrine, that personal property, not tangible by 
 an execution at law, could be reached by the assistance of a court of 
 equity. The later cases, in the time of Lord Thurlow and Lord Eldon, 
 were the other way. In a subsequent case,* a judgment creditor who 
 had issued an execution which had been returned nulla bona, was held to 
 have acquired a priority of right to the property of his debtor, in the 
 hands of a trustee, and was thus aided by the court in obtaining satis- 
 faction of his judgment out of property which could not have been seized 
 by the sheriff. That case was affirmed on appeal by the court of errors.^ 
 The doctrine of that case was limited to cases of fraud, or trust, &c. by 
 the subsequent case of Donovan v. Finn.' But the New- York Revised 
 Statutes of 1830 enacted the principle contained in Hadden v. Spader, 
 and conferred upon the court of chancery ample power over the choses 
 in action of the judgment debtor, in favor of the creditor who had 
 exhausted his remedy at law.' Under this provision, it has become thie 
 practice of a court of equity to decree satisfaction of the plaintiff's debt 
 out of any personal property, money or things in action, belonging to the 
 
 ' It is not deemed expedient to pursue doctrine of the chancellor in that case, 
 
 this branch of the subject more at large. Also, see 2 Kent's Com. 440 et seq. and 
 
 He who wishes to examine it more fully notes, and 4 id. 463. 
 
 will find the cases collected, and many ' Atherly oh Marriage Settlements, 
 
 valuable remarks, in 1 Fonb. Eq. B. 1, ch. 220. 1 Rob. on Fraud. Conv. 421, 422. 
 
 4, § 12, and notes. He will find the cases Dundas v. Duten,' 1 Ves. jr. 196. 
 
 cited and relied on by Kent, ph., in " 4 J. Ch. E. 460. 
 
 Eeade v. Livingston, 3 J. Ch. 500, col- * Spader v. Davis & Hadden, 6 id.' 280. 
 
 lated and reviewed in a note to Story's ° Hadden v. Spader, 20 J. K. 554. 
 
 Eq. Juris, under § 863, and a doubt ex- ' 1 Hopk. 69. 
 
 pressed whether they fully sustained the ' 2 R. S. 173, §§ 38, 39. 
 
238 Of Fraud. [Ch. 3. 
 
 defendant, or held in trust for him, whether the same were originally 
 liable to be taken in execution or not. The code of procedure, moreover, 
 has given a far wider scope to an execution upon a judgment against the 
 property of the debtor, than existed formerly. It authorizes the seizure 
 by the sheriif, not only of tangible property, but also of money, things 
 in action, and evidences of debt.' And it has provided stringent and 
 summary proceedings for reaching the equitable interests of the debtor, 
 and making them available to the creditor.' 
 
 As the reason on which the English courts have declined interfering 
 in favor of the creditor, with respect to property not liable to be seized 
 under an execution, at common law, do not exist in this state ; and as the 
 right of the creditor to reach the debtor's choses in action, either by his 
 execution directly, or by the aid of the equitable powers of the court, is 
 perfect, it would seem that a fraudulent conveyance of choses in action 
 should stand on the same footing as a fraudulent assignment of any other 
 property. Such assignment forms as much an obstruction to the remedy 
 of the creditor, as an assignment of tangible property. And accordingly, 
 in this state, before the revised statutes, the weight of authority was in 
 favor of reaching, through the aid of a court of equity, the property of 
 the- debtor' which could not be taken on an execution at law, after the 
 ordinary remedy at law was exhausted.' 
 
 The non-existence of any bankrupt laws in this state, the ineflSciency 
 of the insolvent laws, and the abolition of imprisonment for debt in 1831,^ 
 rendered it necessary, in order to protect the rights of creditors, that 
 some more efficient mode, than existed at common law, should be devised 
 for reaching the equitable rights of the debtor, and to make them avail- 
 able to the creditor. The revised statutes, indeed, preceded the act to 
 abolish imprisonment for debt, but the latter was doubtless anticipated 
 when the provisions of the former were framed, relative to the seizure of 
 rights in action. "We accordingly find, that subsequent to the revised 
 statutes, and especially after imprisonment for debts was abolished, the 
 aid of a court of equity was very extensively used in favor of creditors, 
 
 ' Code of Prooedure, §§ 289, 463. Edgell v. Haywood. 3 id. 352. But seeDo- 
 
 " Id. § 292 et seq. novan v. Finn, Hopk. 59, limiting the doo- 
 
 " Spader v. Davis, 6 J. Oh. R. 280, af- trine to oases of fraud, trusts, &c. Qhan- 
 
 flrmed in error, 20 J. R. 554. MeDer- cellor Walworth evidently preferred the 
 
 mott V. Strong, 4 J. Ch. E. 687. Will- doctrine as settled by Lord Hardwicke 
 
 iams V. Brown, id 682. Brinkerhoflf v. to that as modified by Lord Thurlow and 
 
 Brown, id. 671. Egbert v. Pemberton, Lord Eldon. 
 7 id. 207. Candler v. Petit, 1 Paige, 168, * Laws of 1831, p. 896. 
 following Taylor v. Jones, 2 Atk. 600. 
 
Ch. 3.] As TO Choses in Action. 239 
 
 •whose executions at law were returned unsatisfied, in whole or in part. 
 So far from being confined to avoiding conveyances of tangible property, 
 it was more frequently employed in aiding the creditor, in reaching pi;op- 
 erty which an execution at law could not take. The judgment creditor 
 was held to acquire a specific lien upon the equitable property which be- 
 longed to the defendant, at the time of filing his bill, or upon the pro- 
 ceeds thereof.' 
 
 A court of equity enabled the judgment creditor to reach the defend- 
 ant's residuary interest as a copartner in the efiects of the firm,' to 
 reach the husband's interest as tenant by the curtesy initiate, in a fund 
 produced by a sale in partition of. his wife's interest in land ;3 to reach 
 a right of dower, before the same had been set out and while it was still 
 a right in action merely ;* to reach an annuity given by will in lieu of 
 dower ;^ and an absolute legacy, though the will declared it should not 
 be liable for the legatee's debts ;^ to reach the rents and profits of the 
 debtor's real estate sold upon execution, for the fifteen months' possession 
 after the sale to which he was entitled by law ;' and an interest as next 
 of kin in the personal estate of a decedent f to reach the debtor's inter- 
 est in a contract for the purchase of land ;' to reach the interest of a 
 vendee who had paid for the land ; '° to reach the beneficial interest of 
 the debtor in the income of a fund for his support, under a valid trust 
 created before the revised statutes ; but not to the principal, or any 
 part of the principal of the fund," These principles remain unchanged 
 by any subsequent legislation. 
 
 But there are some things which could not be reached, and which can 
 not now be reached, by the aid of a court of equity. Thus, for example, 
 the creditor cannot reach by a creditor's bill, a salary not yet earned and 
 due, but he can reach a salary earned before filing the bill, though not 
 payable.'^ He cannot reach a right of action for a conversion of property 
 exempt from execution, nor for a personal tort ; but he can reach 
 such right of action, for the destruction or injury of property liable to 
 execution;" he cannot reach a mere possibility, as a right one may ac- 
 
 ■ Eager v. Price, 3 Paige, 333. Corn- *'Degraw v. Classon, 11 Paige, 136. 
 
 ing V. White, 2 id. 567. Pitcli v. Smith, ' Hallett v. Thompson, 5 id. 583. 
 
 10 id. 9. SeeLynchv.TJticalns. Co 18 ' Farnham v. Campbell, 10 id. 598. 
 
 "Wend. 236, as to the preference given to ' MbA'rthur v. Hoysradt, 11 id. 496. 
 
 judgment creditors over the assignee of ° Ellsworth v. Cuyler, 9 id. 418. 
 
 the debtor. " Watson v. Le Eow, 6 Barb. 481. 
 
 " Eager v. Price, 2 Pa;ige, 333. " Bryan v. Knickerbocker; 1 Barb. 
 
 = Ellsworth v. Cook, 8 id. 643. Ch. R. 409. 
 
 * Tompkins v. Fonda, 4 id. 448. " Browning v. Pettis, 8 Paige, 568. 
 
 Stewart v. McMartin, 4 Barb. 438. " Hudson v. Plets, 11 id. 180. 
 
240 Of Fraud. '[Ch.-3. 
 
 quire in an estate as next of kin ;' nor can he reach personal property of 
 the deceased in the hands of the next of kin ;" nor real estate, nor equi- 
 table interests descended to the heirs.' 
 
 Although the act to abolish imprisonment for debt^ and the code of 
 procedure contain^ provisions for a summary proceeding against the 
 debtor, on the return of an execution unsatisfied, in whole or in part, to 
 compel the application of his property and rights in action to the judg- 
 ment, yet these provisions are merely cumulative and not exclusive ; and 
 do not take away the right of the creditor to resort to a court of equity 
 for relief When the amount of the debt is small, and the transaction 
 is not complicated, the summary remedy thus provided, is adequate and 
 satisfactory. But the obstructions to the claims of the creditor are 
 sometimes so artfully contrived, and surrounded by such plausible ap- 
 pearances of fairness, that they cannot be effectually encountered and 
 removed but by the agency of a court of equity. An action, in the 
 nature of a creditor's bill, is still as important and necessary as it was 
 before the code, and the principles of equity on which that bill was based, 
 remain now, as heretofore, an essential part of our system of remedial 
 justice. 
 
 A voluntary conveyance, though void as against creditors and bona 
 fide purchasers, is still good between the parties, and their personal rep- 
 resentatives.' As between the parties, they are expressly excluded from 
 the operation of the statute, and are left ais they stood at the common 
 law. Before the statute, the heir could never set up his title against the 
 voluntary alienee of his ancestor, nor call upon him for contribution, when 
 both were amenable to the creditors of the ancestor as tertenants ; nor 
 would courts of equity assist the party making a voluntary conveyance, 
 or his representative claiming as such, by setting them aside.' But. 
 since the revised statutes, an executor or administrator may, for the ben- 
 efit of the creditors of their testator or intestate, avoid a sale or assign- 
 ment of the party whom they represent, made to defraud creditors.' In 
 this respect, with us, the executors and administrators represent the rights 
 of creditors, in like manner as the assignee of a bankrupt, or of an in- 
 solvent debtor.' 
 
 ' Smith V. Kearny, 2 Barb. Oh. R. B33. ' Id. Osborne v. Moss, 7 J. E. 161. 
 
 ' Wilber v. Oollier, id. 427. Randall v. Philips, 3 Mason's R. 378. 
 ' Id. ' Baboock v. Booth, 2 Hill, 181. Dox 
 
 * Laws of 1831, p. 396. v. Backenstose, 12 Wend. 543. McKnight 
 
 ° Oode of Procedure, 292 et seq. v. Morgan, 2 Barb. S. 0. E. 171. 
 " Jackso<i V. Garnsey, 16 J. R. 189. " Doe v. Ball, 11 M. & W. 631 
 Jackson v. Oaldwell, 1 Cowen, 622. 
 
CL. 3.] In Fraud of Creditors and Purchasers. 241 
 
 We pass now to another class of assignments, or conveyances, either 
 absolute or by way of mortgage, which a court of equity will aid'creditors 
 or subsequent purchasers in good faith, to avoid on the ground either of 
 actual or constructive fraud. Such conveyances may be void because 
 made with the intent to defraud ; and they may be void as against cred- 
 itors, without proof of moral fraud, if they fail to conform to the require- 
 ments of the common law, or the provisions of the statute. Cases of 
 intentional fraud are not now under review. The points which have 
 most frequently been litigated, with respect to the validity, as against 
 creditors, of assignments of personal property,- have arisen on the con- 
 tinued possession of the grantor, subsequent to the sale, and the want 
 of consideration. 
 
 The early cases in New- York, treated the non-delivery of goods at the 
 time of the sale or mortgage, as only prima facie evidence of fraud, and 
 susceptible of explanation.' In a later case, decided in 1812, the subject 
 underwent a more thorough examination, and the English and American 
 cases were extensively collected and reviewed by the then Chief Justice 
 Kent." And he came to the conclusion that a voluntary sale of chattels, 
 with an agreement either in or out of the deed, that the vendor may keep 
 possession, is, except in special cases, and for special reasons, to be shown 
 to, and approved of, by the court, fraudulent and void as against credit- 
 ors. He considered fraud as a question of law, when there was no dis- 
 pute about the facts. He termed it the judgment of the law on facts and 
 intents. This case was pr6fessedly based upon Edwards v. Harben, (2 
 T. E. 587 ;) (Hamilton v. Kussell, 1 Cranch, 309 ;) and those of a kin- 
 dred character. In a case decided by the supreme court in 1821, Chief 
 Justice Spencer spoke of the retaining possession by the vendor as indi- 
 caf ive of fraud, and thus leaving it uncertain whether the want of a change 
 of possession was prima facie or conclusive evidence of fraud.' And 
 in a later case, decided in 1824, Chief Justice Savage treated the retaining 
 of possession by the mortgagor or vendor, as only prima facie evidence 
 of fraud, and open to explanation ;* a doctrine to which he ever after- 
 wards adhered.' 
 
 The fluctuating state of the decisions upon this, and some other points, 
 in relation to sales, led the legislature, at the time the statutes were under- 
 going a revision, to put the question at rest by legislative enactment. And 
 
 ' Beals V. Guernsey, 8 J. R. 446. Bar- ' Divver v. McLaughlin, 2 Wend. 596. 
 
 row V. Paxter, 5 id. 358. Hall v. Tnttle, 8 id. 878. In the latter 
 
 ' Sturtevant v. Ballard, 9 id. 337. case is an able and extensive review of 
 
 ' Ludlow V. Hurd, 19 id. 222. the cases on this subject. 
 * Bissell V. Hopkins, 3 Oowen, 188. 
 Eq. Jub. 31 
 
242 Of Fraud. [Oh. 3. 
 
 for this purpose they enacted, that every sale made by a vendor of goods 
 and chattels in his possession or under his control, and every assignment of 
 goods and chattels, by way of mortgage or security, or upon any condi- 
 tion whatever, unless the same be accompanied by an immediate deliv- 
 ery, and be folloired by an actual and continued change of possession, of 
 the things sold, mortgaged or assigned, shall be presumed to be fraudu- 
 lent and void as agahist the creditors of the vendor, or the creditors of 
 the person making such assignment, or subsequent .purchasers in good 
 faith ; and shall be conclusive evidence of fraud, unless it shall be made 
 to appear, on the part of the persons claiming under such sale or assign- 
 ment, that the same was made in good faith, and without any intent to 
 defraud such creditors or purchasers.' A subsequent section makes the 
 question of fraudulent intent, in all cases under the provisions of that 
 chapter, a question of fact and not of law ; and forbids that a conveyance 
 or charge should be adjudged fraudulent as against creditors or purcha- 
 sers, solely on the ground that it was not founded on a valuable consid- 
 eration.'^ And another section^ provides that the title of a purchaser for 
 a valuable consideration, shall not be affected or impaired, by the provis- 
 ions of this chapter, unless it shall appear, that such purchaser had pre- 
 vious notice of the fraudulent intent of his immediate grantor, or of the 
 fraud rendering void the title of such grantor. 
 
 The object of the statute was, as can be gathered from the notes of the 
 revisers, to adopt the doctrine of Chief Justice Kent, in Sturtevant v. 
 Ballard, and to substitute an artificial presumption of fraud, arising from 
 the continued possession of the vendor or mortgagor, for the proof of 
 actual fraud ; and to make that presumption conclusive evidence of fraud, 
 unless the person claiming under the sale or assignment should make it 
 appear that the same was made in good faith, and without any intent*to 
 defraud creditors or purchasers. The burden of proof, in a case falling 
 within the statute, was thus shifted from the creditor, who at common 
 law would have had to establish the fraud, to the party claiming under 
 the sale or mortgage, who was now required to repel the presumption of 
 fraud, arising from an unchanged possession of the subject, by proof of 
 good faith and an absence of an intention to defraud.* So far as the Stat- 
 ute introduced a new rule of evidence, it was an innovation upon the 
 common law. 
 
 A distinction had formerly been held to exist between an absolute sale, 
 
 ' 2 R. S. 186, § 6. « Gardner v. Adams, 12 Wend. 299, 
 
 ' Id. p. 187, § 4. per Savage, Oh. J. 
 
 • Id. § 5. 
 
CL 3.] Fraudulent Sales. 243 
 
 and a sale by way of mortgage, and a more strict rule with regard to the 
 necessity of a change of possession was adopted in the former than in 
 the latter case.' This distinction was abrogated by the statute ; and an 
 absolute sale, and a sale or assignment by way of mortgage, were placed 
 upon the same footing.' 
 
 Although the statute was intended by the legislature to put an end to 
 the various questions which had so long been agitated in the courts, on 
 this fruitful subject of litigation, yet experience has shown that that de- 
 sirable object has not been accomplished. And it is believed that the 
 decisions of the courts have been more fluctuating and contradictory since, 
 than they were before the statute was enacted. A history of the decis- 
 ions on this subject, would perhaps be interesting and instructive, but it 
 does not seem to be appropriate to a treatise on equity jurisprudence. 
 There can be no doubt that a court of equity can afford relief against a 
 fraudulent sale or mortgage of chattels in all cases, remediable at law, and 
 in many cases, in which a court of law is inadequate to afford redress. 
 As equity in general follows the law, it may be expedient to say, that the 
 present course of the decisions of the New- York courts of law, with re- 
 spect to the effect of the continuance of the possession of the vendor or 
 mortgagor, after the sale or mortgage, is, that it is merely evidence of 
 fraud, which may be explained ; that the explanation must be passed upon 
 by the jury ; and that it is not competent for the court to direct them to 
 find fraud, at all events, from the non-delivery of the property alone. But 
 it is their duty to instruct them, that the continuance of possession of the 
 vendor or mortgagor, is a circumstance from which they may find fraud, 
 if such continued possession be not satisfactorily explained.^ 
 
 ' Barrow v. Paxton, 5 J. E. 258. Bis- The decisions of the English courts 
 
 sell V. Hopkins, 3 Oowen, 166. Marsh have undergone a like fluctuation since 
 
 V. Lawrence, 4 id. 461. Ferguson v. Edwards v. Harben, 2 T. E. 587; and 
 
 The Union Fire Ins. Co. 9 Wend. 345. according to the later cases, the rule 
 
 " 2 R. S. 136, § 5. seems to be, that the questipn of fraud, 
 
 " Hall V. Tuttle, 8 Wend. 375. Cole v. arising from the retention of possession, 
 
 White, 26 id. 511. Stodard v. Butler, on a sale or mortgage of chattels, is not 
 
 20 id. 507. Hanford v. Artcher, 4 Hill, an absolute inference of law, but one of 
 
 271. Vance v. Philips, 6 id. 533. Smith fact for the jury ; and if the personal 
 
 & Hoe V. Acker, 23 Wend. 653. Butler chattels savor of the realty, no presump- 
 
 V. Miller, 1 Comst. 496. Griswold v. tion of fraud will arise from the want of 
 
 Shelden, 4 id. 597, perMuUett, J. concur- delivery. And in all cases, the inference 
 
 red in by Gardiner, Paige and Gray, Jus- of fraud arising from the want of an ao- 
 
 tices. tual delivery and continued change of 
 
 See contra, Doane v. Eddy, 16 Wend, possession may be rebutted, by explana- 
 
 522. Eandall v. Cook, 17 id. 63. Beek- tiohs showing the transaction to be fair 
 
 man v. Bond, 19 id. 444. and honest. See Steward v. Lombe, 1 
 
244 Op Fraud. [Ch. 8. 
 
 The distinction between absolute sales and mortgages of chattels hav- 
 ing been abolished by the revised statutes so far as relates to the neces- 
 sity of a change of possession, and the latter having been to a considerable 
 extent adopted as a mode of security, it was found necessary, in order to 
 give publicity to the transaction, and to prevent subsequent purchasers 
 and creditors, in good faith, from being defrauded, that such mortgages 
 should be filed in the cleric's office of the town in which the mortgagor 
 resided. It was accordingly enacted in 1833,' that every mortgage, or con- 
 veyance, intended to operate as a mortgage of goods and chattels there- 
 after made, which should not be accompanied by an immediate delivery, 
 and be followed by an actual and continued change of possession of the 
 things mortgaged,' should be absolutely void as against the creditors of 
 the mortgagor, and as against subsequent purchasers and mortgagees in 
 good faith, unless the mortgage, or a true copy thereof, should be filed as 
 directed by the act. If the mortgagor be a resident of the state, the 
 statute requires that the mortgage shall be filed in the town where he re- 
 sides ; if he be not a resident, then in the city or town where the prop- 
 erty so mortgaged shall be at the time of the execution thereof. In the 
 city of New- York such instrument is required to be filed in the office of 
 the register of the city. In the other cities, and in the several towns of 
 the state in which a county clerk's office is kept, in • such office ; and in 
 each of the other towns in this state in the office of the town clerks 
 thereof; and such register and clerks were required to file such instru- 
 ments aforesaid when, presented to them respectively for that purpose^ 
 and to indorse thereon the time of receiving the same, and to deposit the 
 same , in their respective offices, to be kept there for the inspection of 
 all persons interested. In a subsequent section, it is enacted that every 
 mortgage filed in pursuance of the act, shall cease to be valid as against 
 the creditors of the persons making the same, or against subsequent pur- 
 chasers or mortgagees in good faith, after the expiration of one year from 
 the filing thereof, unless within thirty days next preceding the expira- 
 tion of the said term of one year, a true copy of such mortgage, together 
 with a statement exhibiting the interest of the mortgagee in the property 
 thereby claimed by him by virtue thereof, shall again be filed in the office 
 
 Brod. & Bing. 606. Kidd v. EawlinsoB, Taunt. 838. Dawson v. 'Wood, 8 id. 256. 
 
 2 Bos. & Pul. 59. Watkins v. Buroh, 4 Eeed v. Blades, 5 id. 212. Storer v. 
 
 Taunt.. 823. Lady Arundell v. Phipps, Hunter, 3 Barn. & Cress. 368. Martin- 
 
 10 Ves. 145. Wooderman v. Baldook, 8 dale v. Booth, 3 Barn. & Adolph. 498. 
 
 Taunt. 676. Leonard v. Baker, 1 Maule ' Laws of 1888, p. 402, cb. 279. 
 & Selw. 261. Jeseph v. Ingrabam, 8 
 
Ch. 3.] Chattel Mortgages. 245 
 
 of tlie clerk or register aforesaid, of the town or city where the mort- 
 gagor shall then reside. 
 
 The statute of 1833 does not repeal the provisions of the revised stat- 
 utes as to the sale or assignment by way of mortgage of goods and chat- 
 tels.' It adds thereto another ground on which, if the contingency 
 happen, such mortgage is declared void as against creditors.'' The object 
 of filing the mortgage, as was said by MuUett, J. in one case,' is to give 
 notice of its existence to all persons who choose to inspect it, and, when 
 properly filed it is legal presumptive notice, binding on all persons in- 
 terested. 
 
 ^f there be a defect in the filing of the -mortgage, or the filing of it be 
 entirely omitted, a creditor who has actual notice of such mortgage, can- 
 not impeach the validity on the ground of such omission.^ The actual 
 notice, is equivalent to the constructive notice, provided for by the stat- 
 ute. But when such mortgage was taken upon a stock of goods, and was 
 written in a book lettered " Day book," containing an inventory of the 
 goods and store accounts, and deposited in a desk in the clerk's office 
 where personal mortgages weiie kept in pigeon holes, it was left in doubt 
 by the court of appeals,^ whether it was a filing of the mortgage within 
 the act. 
 
 Although it be a general maxim that equality among creditors is equity, 
 yet the courts have reluctantly held that an insolvent debtor, making an 
 assignment of his property for the payment of his debts, may give the 
 preference to one creditor over another, in cases where he is not prohib- 
 ited from doing so, by the provisions of a bankrupt or insolvent law.* 
 
 But to make an assignment valid, it should devote the whole of the 
 property of the assignor to the payment of his debts, without clogging it 
 with any terms or conditions, or making any provision for himself, which 
 will impair the .rights of his creditors.' 
 
 Accordingly it has been held that when an insolvent debtor assigns all 
 his property in trust to pay certain specified creditors, and then without 
 making provisions' for other creditors, in trust to reconvey the residue to 
 the debtor, this assignment is fraudulent and void as to creditors not provi- 
 
 ' 2 E. S. 136, § 6. * S. 0. in supreme court on the second 
 
 ° "Wood V. Lowrey, 17 Wend. 495, per trial. 
 
 Bronson, J. Smith v. Acker, 23 id. ' Griswold v. Sheldon, 4 Comst. 580. 
 
 068, per Edwards, senator. But see Ben- " Wintringham v. Lafoy, 7 Co wen, 735. 
 
 edict v. Smith, 10 Paige, 128, remarks of Boardman v. Halliday, 10 Paige, 229, per 
 
 Walworth, chancellor, which seem to be Walworth, Ch. Grover v. Wakeman, 11 
 
 contra. Wend. 187. 
 
 • Griswold v. Sheldon, 4 Comst. 598. 'Id. 
 
246 Op Fraud. [Ch. 3. 
 
 ded for in the deed.' This provision, in favor of the assignor, is not only 
 forbidden by the express terms of the statute," but is contrary to the 
 principles of the common law. A trust in favor of the assignor of goods 
 and chattels was one of the badges of fraud in Twyne's case.' 
 
 On the principle that an assignment or sale with the intent to hinder^ 
 delay or defraud creditors, is expressly forbidden by the statute,^ as well 
 as by the common law, any provision contained in such assignment which 
 tends to that result, will invalidate the instrument. An assignment, in 
 which, by the terms of the deed, the trustees were authorized to sell the 
 property on credit, was declared by the court of appeals to be void against 
 creditors.^ The chancellor held otherwise in one case," and the doctuyie 
 has been controverted in the New- York superior court.' But the supreme 
 court has repeatedly decided that an authority in an assignment to sell 
 upon credit, renders the assignment void as against creditors, and that 
 doctrine has subsequently been reaflSrmed by the court of appeals.^ 
 
 On the same principle, an assignment that makes it a condition that 
 the creditor shall, on receiving a dividend, execute a release to the 
 debtor of all claims against him, whether his debt be paid in full or not, 
 is void ; and being void in part, is void in toto.' So an assignment con- 
 taining a provision authorizing the assignee in his discretion, to change 
 the order of the preferences given therein to the preferred creditors, 
 is void.'" 
 
 An assignment in trust to pay debts which covers real and personal 
 property, cannot be upheld unless the trusts be such as are authorized 
 by the revised statutes. It must provide for debts in existence at the 
 time it is made, and not for debts thereafter to be created. And if pre- 
 ferences among the creditors are contemplated to be made, they must be 
 declared by the assignor in the assignment itself The power of grant- 
 ing preferences cannot be delegated by the assignor to the trustees ; nor 
 can an authority to incumber property by a mortgage or other security, 
 be conferred upon the trustees. The only trust authorized by the revised 
 
 ' Barney v. Griffin, 2 Oomst. 365. " Kellogg v. • Slawson, 15 Barb. 60. 
 
 = 2 E. 8. 185, § 1. Porter v. Clark, 5 How. Pr. E. 445, de- 
 
 ' 3 Coke, 80. cided by the supreme court, 3d district, 
 
 * 2 E. S. 137, § 1. and affirmed unanimously by the court 
 
 ' Barney v. Griffin, 2 Oomst. 365. Nich- of appeals, Dec. T. 1853. 
 
 olson V. Leavitt, 2 Selden, 510. " Graver v. "Wakeman, 4 Paige, 23, 
 
 " Eogers v. DeForest, 7 Paige, 272. affirmed on appeal, 11 Wend. 187. Good- 
 
 ' Nicholson v. Leavitt, 4 Sand. 8. C. E. rich v. Downs, 6 Hill, 441. 
 
 298 et seq., reversed by court of appeals, '» Strong v. Skinner, 4 Barb. 559. 
 
 2 Seld. 510; but see Meacham v. Sternes, 
 
 9 Paige, 398, contra. 
 
Oh. 3.] Fhauduliint Assignments. 247 
 
 statutes in this respect, is a trust to sell lands for the benefit of credit- 
 ors ;' and if a trust in such assignment be created, for any purpose not 
 enumerated in the statute, no estate vests in the trustee." These princi- 
 ples were enforced by the chancellor in an important case, and have been 
 repeatedly acted upon in setting aside assignments in courts of equity, 
 in behalf of the execution creditors of the assignor. 
 
 An assignment to be valid must be for a lawful purpose and must be 
 made in good faith. It must be for the payment of such debts or claims 
 as can be enforced either at law or in equity, and be made by a party 
 insolvent, or believing himself to be insolvent at the time. The remarks 
 of Chancellor Walworth on this subject, in a recent case, present in a 
 succinct form, some of the leading principles in this class of cases. In 
 that case, he held that an assignment for the benefit of creditors was 
 void as against creditors, because it attempted to appropriate a part of 
 the assignor's property for the use of his wife, to satisfy an alleged claim 
 in her favor, which she could not have recovered from the assignor by 
 any suit or proceeding either at law or in equity. For that reason, he 
 observes, if the property of the assignor, at the time of the assignment, 
 was not sufficient to pay all his other debts, and this alleged claim also, 
 or so much of it as was attempted to be secured by the assignment, then 
 such assignment was a fraud upon the creditors ; inasmuch as it would 
 deprive them of the power of ever obtaining payment of the whole of 
 their debts. On the contrary, if the defendant had ample property to 
 pay all his debts, including the debt due to the complainant, then it was 
 a fraud upon his creditors to assign all his property to an assignee, and 
 to authorize such assignee to employ the proceeds thereof in defending 
 suits which might be brought against the assignor, by his creditors to 
 recover their several debts. For it is equally fraudulent, under the 
 statute, to make an assignment of property for the purpose of delaying 
 creditors in the collection of their debts, as it is to assign it for the pur- 
 pose of defeating the final collection of such debts. And this provision 
 of the assignment could have been inserted for no other reason than to 
 enable the assignee to leave the property in the possession or under the 
 control of the assignor ; and thus to defend suits which might be brought 
 against the latter to obtain possession of the assigned property, and 
 retain the expenses of such defenses out of the proceeds of such property. 
 
 ' 1 K. S. Y28, § 55. 223. Grover v. "Wakeman, 11 Vend. 
 
 ° Id. § 58. Barnnm v. Hempstead, 7 403 ; affirming S. C, 4 Paige, 23. Strong 
 
 Paige, 668. Sheldon v. Dodge, 4 Denio, v. Skinner, 4 Barb. 559. 
 217. Boardman v. Halliday, 10 Paige, 
 
248 Op Fraud. [CL 3. 
 
 The creditors are entitled to payment in cash when their debts become 
 due. And when a man has ample means to pay all his debts in cash, as 
 they become due, there seems to be no reason for making a general assign- 
 ment, and giving preferences, except for the purpose of delaying the 
 creditors in the assertion of their legal rights. 
 
 The power in an assignment to lease or mortgage the estate assigned 
 has been held also void ; and the reservation of the right of the assignee 
 to name the successor of the trustee, in case the trustee named in the 
 assigntnent wished to resign the trust, has also been said, to be objec- 
 tionable. For it might deprive the court of the power to remove the 
 trustee and appoint another in his place, upon the application of his cr^- 
 itors. For if a creditor should make an application for that purpose, the 
 present trustee, with the assent of the assignor, might immediately sub- 
 stitute another in his place, of the assignor's own selection ; and so on 
 from time to time as often as the trustee should be liable to removal by 
 neglect of duty to the creditors.' 
 
 A sale of goods and chattels may be fraudulent and void as against 
 creditors, although accompanied with an actual delivery and followed by 
 a continued change of possession. It depends on the intent of the 
 parties, and this may be inferred from the surrounding circumstances. 
 If the sale be by a party insolvent at the time, to a relative who is an in- 
 fant, and no security be taken for the payment of the consideration of 
 the purchase, except the infant's promissory notes, and if the vendor 
 immediately absconds on making the sale, the transaction is so obviously 
 fraudulent, that it is the duty of the court to grant a new trial, when a 
 jury find in favor of the validity of the sale." The foregoing case turned 
 upon the question .of actual moral fraud, and in some of the other cases 
 which have been stated intentional fraud appears to be mingled with con- 
 structive fraud. 
 
 It has already been remarked that the revised statutes place the cred- 
 itors and 'subsequent bona fide purchasers of the fraudulent vendor, in 
 the same category, a fraudulent sale being alike void as to both.? A 
 purchaser without notice, and a creditor, being equally meritorious and 
 equally innocent, the first in title is to be preferred, upon the well known 
 maxim of courts of equity ; Qui prior est in tempore, portior est in 
 jure. But a subsequent purchaser, bona fide and for a valuable consid- 
 eration, without notice of a previous voluntary or fraudulent grant, will 
 
 ' Planck V. Sohermerhorn, 3 Barb. Oh. = Vance v. Philips, 6 Hill, 433. 
 E- 645, 646. ' 2 R. S. 136, § 5. 
 
CL 3.] Purchase -^tith Notice. 249 
 
 be protected poth. at law and in equity.' But though he will thus be 
 protected, when prosecuted by a party having no greater equity, yet he 
 will not be assisted against the party upon whom the fraud was commit- 
 ted.' Public policy requires that a purchaser, who advances his money 
 upon the faith of a good title to the specific thing, and without notice of 
 any adverse claim, should not be postponed to a prior creditor at large, 
 having no actual lien. 
 
 A party who takes a conveyance, with notice of the trust, becomes 
 himself a trustee, unless indeed he purchases from one who had not no- 
 tice of such claim. In the latter case he may protect himself by want 
 of notice in his vendor.' A purchaser without notice from one who has 
 fraudulently purchased, is not affected by the fraud ;* and it is also a well 
 settled rule of equity, that a man who is a purchaser, with notice himself 
 from a person who bought without notice, may protect himself under 
 the first purchaser.* The reason is to prevent a stagnation of property, 
 and because the first purchaser being entitled to hold and enjoy, must be 
 equally entitled to sell. 
 
 But a party who purchases with notice of the legal or equitable title 
 of another, cannot protect himself against such claim. His purchase 
 with notice is a constructive fraud upon the rights of the other party, 
 and may, in some cases, be an actual moral fraud. It cannot be made 
 available to defeat the just rights of others, but his title will be made 
 subservient to that of the party thus sought to be defrauded. If he pur- 
 chase from a trustee with notice of the trust, the purchaser will himself 
 be treated as a trustee, if it be necessary, in order to protect the rights 
 of others.' 
 
 With regard to what shall be a sufficient notice, it has been held that 
 a purchaser who has sufficient information to put him on inquiry is 
 chargeable in equity with full notice.' Notice of an equity to an attor- 
 ney employed to investigate a title, is notice to his client.* Notice to 
 an agent is notice to the principal.' But in these cases, in order to affect 
 
 ' Maiden v. Merrill, 2 Atk. 8. 2 Fonb. The M. Bank v. Louisa, 1 Peters, 309. 
 
 Eq. B. 2, ch. 6, § 2. Beekman v. Frost, 2 Mad. Oh. 125. Marray t. Ballon, 1 J. 
 
 18 J. E. 644, 563. Oh. K. 566. Murray v. Finster, 2 id. 168. 
 
 ' Id. Shepherd v. McEvers, 4 id. 136. 
 
 ' 2 Fonb. Eq. B. 2, oh. 6, § 2. ' Green v. Slayter, 4 J. Ch. R. 46. 
 
 * Jackson v. Henry, 10 J. R. 185. 2 Fonb. Eq. B. 2 ch. 6, §§ 8, 4, and notes. 
 
 " Demarest v. Wynkoop, 3 J. Oh. R. Pendleton v. Fray, 2 Paige, 202. 
 
 147.^ Alexander v. Pendleton, 8 Oranoh, ^ Griffith v. Griffith, 9 id. 315. 
 
 462. • The M. Bank v. Seton, 1 Peters, 809. 
 
 " Gilchrist v. Stevenson, 9 Barb. 9. 
 
 Eq. Jub. 32 
 
250 Op Fraud. [Oh. 3. 
 
 the principal or client, the notice to the agent or attorney must, in gen- 
 eral, arise in the same transaction to which the agency applies.' To 
 make the notice available, it must be shown that the agent had authority 
 to receive it, and the natural inference is, that he had such authority if 
 it be given, or arise in the same negotiation or business. Where, there- 
 fore, to an action brought for improperly loading a cargo of timber, 
 whereby it was lost, the answer was, that it had been so loaded with the 
 assent of the plaintiff, but the only evidence of such assent was, that the 
 plaintiff's agent knew the manner in which it had been loaded, without 
 having made any objection thereto ; it was held that the knowledge and 
 assent of the plaintiff could not be inferred from that fact, as it was not 
 shown that the agent had authority to interfere with the loading of the 
 timber in question.^ 
 
 The reason why notice to the agent must in general be in the same 
 transaction in order to affect his principal, is, not only that otherwise the 
 agent may have had no authority to receive it, but also that he may not 
 be presumed to remember what was casually communicated to him, when 
 he had no interest to remember it.' When the reason ceases, the rule 
 itself ceases. An agent must be presumed to remember his written or 
 printed instructions, and those who deal with him are chargeable with 
 the like notice,* for they can peruse the instructions and judge for them- 
 selves. And when one transaction is closely followed by and connected 
 with another, or when it is clear that a previous transaction was present 
 to the mind of the agent, when engaged in another transaction, there is 
 no ground for the distinction, by which the rule that notice to the agent 
 is notice to the principal, has been restricted to the same transaction.^ 
 
 There is no difference between personal and constructive notice, except 
 as to guilt ; for if there were it would produce great inconvenience, and 
 notice would be avoided in every case by employing an agent. This 
 principle is adopted equally at law and in equity.' 
 
 With regard to real property, if the vendee be in possession under a 
 
 ' Dunlap's Paley on Agency, 263, and Hargra^es v. Eothwell, 1 Keene, 154. 
 
 cases there cited. Bank TJ. S. v. Davis, Perkins v. Bradley, 1 Hare, 230. Mount- 
 
 2 Hill, 461, 463. Hiern v. Mill, 13 Ves. ford v. Soott, 1 T. & R. 2T4. 
 
 120. Meoh. Bank of Alexandria v. Se- * Sandford v. Handy, 23 Wend. 267. 
 
 ton, 1 Peters, 309. Warwick v. War- North River Bank v. Aymar, 3 Hill, 263, 
 
 wick, 8 Atk. 294. 266. 
 
 ' Gould V. Oliver, 2 Soott N. R. 241, ' Hargraves v. Eothwell, 1 Keene, 
 
 268. Dunlap's Paley on Agency, 286, 164, and cases cited under note 3. 
 
 notes. ' » 2 Scott, N. R. 262. McEwen v. The 
 
 ' Warwick v. Warwick, 3 Atk. 294. Mont. Ins. Co. 6 Hill, 101. 
 
Ch. 3.] Notice. Lis Pendens. 251 
 
 contract to purchase, a subsequent purchaser or mortgagee has construct- 
 ive notice of his equitable rights, and takes the land subject thereto.' 
 On this principle, a defendant cannot set up that he is a bona fide pur- 
 chaser, if the complainant was in possession at the time of the purchase, 
 claiming the fee.'' And in like manner, if any person other than the 
 vendor, was in possession of the land, the purchaser has constructive 
 notice of his rights, and takes it subject to them.'' 
 
 The possession of the vendee's tenant is notice to a subsequent mortgo- 
 gee.* A party dealing with real estate, of which another is in the actual 
 possession, is bound to make inquiries of the occupants, and to ascertain 
 the nature and extent of their interests. The legal presumption is that" 
 he will make these inquiries, and he is estopped to deny that he made 
 them. I^ for instance, a tenant is occupying under a lease for forty-five 
 years, the purchaser is bound by the fact, that he is entitled to that term, 
 if he does not choose to inquire into the nature of the possession, the 
 tenant being in no fault, but enjoying according to his title.^ 
 
 There is, however, a limitation to the extent of the constructive notice 
 in cases of this kind, notwithstanding it is difficult, and perhaps impossible 
 to define it. Though it is true, that when a tenant is in possession of the 
 premises, a purchaser has implied notice of the nature of his title ; yet if at 
 the time of his purchase, the tenant in possession is not the original lessee, 
 but merely holds under a derivative lease, and has no knowledge of the 
 covenant contained in the original lease, it has never been Considered that 
 it was want of due diligence in the purchaser, which is to fix him with 
 implied notice, if he does not pursue his inquiries through every deri- 
 vative lessee, until he arrives at the person entitled to the original lease, 
 which can alone convey to him information of the covenant.' 
 
 With regard to what shall be sufficient to put a party on inquiry, no 
 definite rule can be laid down. It must be something more than vague 
 rumor. And perhaps each case must depend upon its own circumstan- 
 ces. Every person is presumed to be cognizant of what is passing in 
 courts of justice ; and hence the established rule is that a lis pendens 
 duly prosecuted and not collusive, is notice to a purchaser, so as to afiect 
 and bind his interest by the decree. This rule, was stated, explained and 
 vindicated by Chancellor Kent, on several occasions, and it is firmly estab- 
 
 > Gonvemenr v. Lynch, 2 Paige, 300. * The Bank of Orleans v. Magg, 8 
 Grimstone v. Carter, 3 id. 421. Ohes- Barb. Oh. E. 421. 
 
 terman v. Gardner, 5 J. Oh. E. 29. ' Daniels v. Davison, 16 Ves. 264. 2 
 
 ' Spofford v. Manning, 6 Paige, 383. Fonb. Eq. B. 2, ch. 6, § 8. 
 
 > Brice V. Brioe, 5 Barb. 533. • Hanbury v. Litchfield, 2 Myl. & K. 
 
 629, 632, 683. 
 
252 Op Fraud. [Ch. 3. 
 
 lished in our jurisprudence.' That it sometimes operated -vvitli hardship 
 upon a purchaser without actual notice, was admitted. And the fact that 
 it did so led to the provision in the statute modifying the rule in relation 
 to real estate. It was enacted in 1823, and re-enacted with a slight 
 amendment, in 1880,' that to render the filing a bill in chancery, con- 
 structive notice to a purchaser of any real estate, it shall be the duty of 
 the complainant to file with the clerk of the county in which the lands to 
 be affected by such constructive notice are situated, a notice of the pen- 
 dency of such suit in chancery, setting forth the title of the cause and 
 the general object thereof, together with a description of the land to be 
 affected thereby. Each county clerk is required by the act, to place in 
 an index to be kept in his office, such references to the said notices as 
 will enable all persons interested, to search his office for such notices, 
 without inconvenience. The code of procedure requires this notice to be 
 filed at the time of filing the complaint, or at any time afterwards ; and 
 if the object of the action be to foreclose a mortgage, it requires it to be 
 filed twenty days before judgment, and in the latter case, it must contain 
 the date of the mortgage, the parties thereto, and the time and place 
 of recording the same.^ In other respects the doctrine with respect to 
 the effect of a lis pendens remains as before.'' 
 
 The revised statutes provide for the recording of all conveyances of 
 real estate, within this state, in the office of the clerk of the county 
 where such real estate is situated, and enact that every conveyance not 
 so recorded, shall be void as against any subsequent purchase?' in good 
 faith and for a valuable consideration, of the same real estate, or any 
 portion thereof, whose conveyance shall be first duly recorded.' This is 
 a revision of the acts relative to deeds* and mortgages,' of 1813 and of 
 several other acts on the same subject.^ The decisions of the courts un- 
 der the registry act, are applicable to similar questions arising under the 
 recording acts now in being.' The effect of the statute is to let in the 
 whole of the English equity doctrine of notice. 
 
 As one object of the act is to apprise purchasers and subsequent mort- 
 
 ' Murray v. Ballou, 1 J. Ch. R. 576. » 1 R. S. 756, § 1. 
 
 Heatly v. Finster, 2 id. 158. Green v. " 1 R. L. 3-69.- 
 
 Slayter, 4 id. 48. Preston v. Tubbin, ' Id. 872. 
 
 1 Vern. 286. " Laws of 1819, p. 269 ; of 1821, p. 
 
 ' Laws of 1828, p. 213, § 11. 2 R. S. 127; of 1822, p. 261, 284; of 1823, p. 
 
 174, §43. 412. 
 
 ' Code of Procedure, § 132. » See a review of the several N. Y. re- 
 
 * See as to lis pendens, 2 Fonb. Eq. cording acta, by Paige, P. J., in Fort v. 
 
 B. 2, oh. 6, § 8 and notes. Buroh, 6 Barb. 65 et seq. 
 
Ck 3.] Notice, Actual or Implied. 253 
 
 gageea of the existence of the incumbrance, if the first mortgage be not 
 recorded, and the subsequent mortgagee or purchaser have notice thereof 
 the effect is the same as to him, as if the first mortgage were recorded. 
 But the notice which is thus to supersede the necessity of a recording 
 of the first mortgage, must be direct and positive or implied. A notice 
 which is barely sufficient to put a party on inquiry is not sufficient. 
 Nor is is a suspicion of a notice sufficient.' Whatever would in equity 
 charge the party with notice of the equitable ^rights of a prior pur- 
 chaser, or incumbrancer so as to deprive him of the privilege of 
 pleading that he is a bona fide purchaser without notice, must, in a 
 court of law, be sufficient to protect the legal rights acquired under the 
 unrecorded deed, against the subsequent recorded conveyance.'' It is 
 the settled doctrine of the courts, that when the equities of the parties 
 are equal, and neither has the legal title, the one who has the prior equity 
 must prevail. Nor will a court of equity permit the party having the 
 subsequent equity to protect himself, by obtaining a conveyance of the 
 legal title, after he has either actual or constructive notice of the prior 
 equity.^ To protect a party, therefore, and to enable him to defend him- 
 self as a bona fide purchaser, for a valuable consideration, he must aver 
 in his plea, or state in his answer, not only that there was an equal equity 
 in himself, by reason of his having actually paid the purchase money, 
 but that he had also clothed his equity with the legal title before he had 
 notice of the prior equity. And if the person claiming the prior equity 
 is in the actual possession of the estate, and the purchaser has notice of 
 that fact,'it is sufficient to put him on inquiry as to the actual rights of 
 such possessor, and is good constructive notice of such rights.* 
 
 The notice of the prior unregistered conveyance, in order to be available, 
 must be to the party to whom the second conveyance is executed, or to 
 his legal agent. Where land was purchased with the property of the 
 wife, and the conveyance taken to the husband and wife jointly, notice to 
 the husband of the prior unrecorded mortgage will not prejudice the wife. 
 She, on surviving her husband, becomes seised of the entire estate, not 
 under or through her husband, but by the original conveyance, and is un- 
 affected by any notice given to her husband, and not communicated to her.^ 
 
 ' Tort v. Buroh, 6 Barb. 78, per Paige, J. E. 555. Jackson v. Elston, 12 id. 452. 
 
 P. J. Tuttle V. Jackson, 6 "Wend. 226, Jackson v. Leekj 19 Wend. 339. 
 
 per Walworth, Oh. ' Touville v. Nash, 3 P. Wms. 30T. 
 
 ' 2 id. p. 227. Jackson v. Bnrgott, 10 Wigge v. Wigge, 1 Atk. 384. 
 
 J. R. 457. Jackson V. Sharp, 9 id. 163. " Grimstone v. Carter, 3 Paige, 436, 437, 
 
 Jackson v. Humphrey, 8 id. 137. Dey " Snyder v. Sponable, 1 Hill, 567. 
 V Dunham, 2 J. Ch. E. 182. S. 0. 15 
 
254 Of Fraud. [Oh. 3. 
 
 The doctrine of constructive notice arising from the recording of a con- 
 veyance, is not to be understood of all deeds and conveyances which may 
 be de facto registered or recorded, but only of such as are authorized and 
 required by law to be registered or recorded. Upon this principle it was 
 held, that the recording of an assignment of a mortgage was not notice 
 to a mortgagor, so as to render payments by him to the mortgagee, in his 
 own wrong ;' and this principle is now adopted and declared by the 
 statute.'' 
 
 It is the duty of the incumbrancer to see that his mortgage is correctly 
 recorded ; and a subsequent mortgagee or purchaser, in good faith, is not 
 to be charged with notice of the contents of the mortgage, any further 
 than they may be contained in the mortgage as recorded or registered. 
 Where a mortgage for three thousand dollars was, by mistake, registered 
 as being only to secure the payment of three hundred dollars, it was 
 held to be notice to subsequent bona fde purchasers, to the extent only 
 of the latter sum.' 
 
 As the statute requires that deeds and mortgages should be recorded 
 in separate books, it follows that a mortgage recorded only in the book 
 of deeds will not be constructive notice, because a purchaser or subsequent 
 mortgagee is not bound to search among deeds for mortgages.* An 
 absolute deed with a subsequent defeasance is a mortgage, and must be 
 recorded as such ; and is not constructive notice of a mortgage, if recorded 
 only in the book of deeds. It seems both the deed and defeasance should 
 be recorded in the book of mortgages, to be available against subsequent 
 purchasers or mortgagees without notice.' 
 
 If the deed or mortgage be improperly recorded, as when the acknowl- 
 edgment or proof of the execution of the instrument is insufficient, it is 
 not available as notice.' And it is equally unavailable if there be any 
 other material defect in the record, having a manifest tendency to mislead 
 the inquirer. In one case, when the record of a mortgage did not state 
 the name of the nlortgagee, nor the time when the money was payable, 
 and the acknowledgment did not state that the mortgagor was known to 
 the officer taking the acknowledgment, it was held by the supreme court 
 in the fourth district, not to be constructive notice to subsequent pur- 
 chasers." And although this case was reversed on appeal, by the court 
 
 ' James v. Mowry, 2 Oowen, 246. 6 J. Oh. E. 432. S. 0. on appeal, 2 Oow- 
 
 " 1 R. S. 763, §41. en, 247. White v. Moore, 1 Paige, 651. 
 
 " Frost V. Beekman, 1 J. Oh. R. 288. » Id. 
 
 S. 0. 18 J. R. 044. " Frost v. Beekman, 1 J. Oh. E. 300. 
 
 * Dey V. Dunham, 2 J. Oh. E. 182. Hodgson v. Butts, 8 Cranoh, 140. 
 
 S. 0. 15 J. R. 665. James v. Johnson, ' Peck v. Mallam, MS. 
 
Ch. 3.] Priority. Notice. Tacking. 255 
 
 of appeals, it was on a ground not affecting the question as to the suf- 
 ficiency of the registry. 
 
 A mortgage not recorded has preference over a subsequent docketed 
 judgment. The statute gives priority in case of several mortgages, to 
 the one first recorded, and it provides that every conveyance of real estate 
 shall be void as against any subsequent purchaser, in good faith and for a 
 valuable consideration, of the same real estate, or any portion thereof, 
 ■whose conveyance shall be first duly recorded.' Were there no statute 
 requiring conveyances to be recorded, a mortgage would stand upon the 
 footing of any other lien on real property. There is nothing in the stat- 
 ute which gives a preference to a judgment docketed over an unregistered 
 mortgage. The judgment being by act of law, does not destroy the lien 
 acquired by an unregistered mortgage, nor gain_a preference over it. 
 Should the mortgagee permit a sale to take place, prior to the recording, 
 of his mortgage, and the vendee of the sheriff have his deed first recorded, 
 he will then gain a preference by means of the record over the mortgage, 
 and the latter will then lose its priority.'' When a mortgage is given 
 for the purchase money and is executed at the same time as the deed, 
 such mortgage is preferred to any previous judgment which may have 
 been obtained against such purchaser.' In all other cases it is believed 
 a judgment first docketed, will have priority over a mortgage subsequently 
 made, whether recorded or not. 
 
 The effect of our recordin§(laws has been, among other things, to abro- 
 gate the English doctrine of tacking a junior to a senior mortgage, and 
 thus squeeze out the intervening security of another party.* The as- 
 sumed equity of the principle is, that the last mortgagee, when he lent 
 his money, had no notice of the second incumbrance, and the equities 
 between the second and third incumbrancers being equal, the latter, in 
 addition thereto, has the prior legal estate or title and shall be preferred. 
 In the language of the books, " he hath both law and equity." The legal 
 title and equal equity prevail over the equity .= 
 
 The rule with respect to the effect of notice, resulting from the regis- 
 try of an incumbrance, is different in England from that which prevails 
 with us. In both countries, the registry operates as constructive notice 
 to subsequent mortgagees. But in England it is not deemed equivalent 
 
 ' 1 E. S. 756, § 1. in error, 112. Parkist v. Alexander, 1 
 
 " Jackson v. Dubois, 4 J. E. 221, 222. J. Ch. E. 899. 
 Schmidt v. Hoyt, 1 Edw. V. Oh. E. 652. ' Brace v. Duchess of Marlborough, 2 
 
 ' IE. S. 749, § 5. P. Wms. 491. 
 • Grant v. Bank of U. S. 1 Gaines' Oas. 
 
256 Of Fraud. [CL 3. 
 
 to actual notice for any other purpose. And hence in that country, the 
 registry of incumbrances does not interfere with the doctrine of tacking, 
 or affect subsequent purchasers.' Nor with us is the record or registry 
 notice to subsequent incumbrancers or purchasers, unless the instrument 
 be legally registered or recorded ; nor then is it notice of collateral mat- 
 ters ; or of any thing, if it be a mortgage, except the fact that it is a 
 mortgage, the names of the parties, the amount specified in the record, 
 and the time when payable ; and in case it be a deed, of the fact that such 
 deed has been executed by the parties thereto of the premises therein 
 described.^ 
 
 To constitute a bona fide purchase for a valuable consideration, such 
 purchase, says Chancellor Kent, must be without notice and with the 
 money actually faid, or else, according to Lord Hardwicke, you are not 
 hurt. The averment must be, not only that the purchaser had not notice, 
 at or before the time of the execution of the deed, but that the purchase 
 money was paid before notice. There must not only be a denial of no- 
 tice before the purchase, but a denial of notice before payment of the 
 money.' Even if the purchase money be secured to be paid, yet if it be 
 not in fact paid, before notice, the plea of a purchase for a valuable con- 
 sideration will be overruled.'' As a general rule, says Chancellor Wal- 
 worth, a purchaser of the legal title, who receives his conveyance merely 
 in consideration of a prior indebtedness, is not entitled to protection ; be- 
 cause he has lost nothing by the purchase. But the relinquishment of 
 a valid security, which he before held for his debt, and which cannot bo 
 revived so as to place him in the same situation, substantially, as to secu- 
 rity, as he was in, prior to his purchase, may of itself be sufficient to 
 entitle him to protection as a bona fide purchaser.^ 
 
 The rule seems to be the same in this state, with respect to the indor- 
 see of negotiable commercial paper. It is not enough to shut out the 
 equities of the prior parties to the note, that the holder received it in 
 good faith, and before maturity, unless he paid value, or parted with a 
 consideration upon the faith of the paper. If he merely received it on 
 account of a previous indebtedness, although upon a valid consideration 
 between the parties, he is in no worse condition with respect to such in- 
 debtedness, than he was before, if he fails to recover the note. His 
 equity is not superior to that of the prior owner of the note, if it was 
 
 ' Latouch v. Donsany, 1 Soh. & Lefr. Harrison v. SoutLcote, 1 Atk.588. Story 
 
 167. Ex parte Knott, 11 Ves. 619. v. Lord "Winasor, 2 Atk. 630. 
 ' Dey v. Dunham, 2 J. Oh. E. 190, 191. * Id. Hardingham v. Nichols, 3 Atk. 804. 
 " Jewett V. Palmer, 7 J. Oh. E. 68. ' Padgett v. Lawrence, 10 Paige, 180. 
 
Ch. 3.] Collusive Subscriptions. 257 
 
 fraudulently put in circulation. The principle in this class of cases 
 is, that the person passing the note, from the fact of having possession, 
 is the ostensible owner of it, and the holder having, in the usual course 
 of business, given credit to these appearances, which he was justified in 
 doing, has been induced to part with his money or property, bona fide ; 
 and that, as between him and the real owner, there must be a loss on one 
 side or the other, the law will not divest the holder of fruits he has hon- 
 estly acquired, without the possibility of remuneration. In other words, 
 the equities of the parties being equal, the law leaves him in possession 
 who already has it. But if the holder, at the time he received the paper, 
 parts with no new consideration on the faith of the same, he may be a 
 gainer if the note prove available ; and if not, he remains as he was be- 
 fore. He stands in a different condition from one who makes advances 
 on the credit of the paper ; for if that fails, his loss is certain. This is 
 the doctrine of the cases in New- York, and has been upheld by the courts 
 for more than half a century.' This doctrine, as explained in Codding- 
 ton v. Bay, was disapproved by the supreme court of the United States, 
 in Swift V. Tyson," but it was ably vindicated by the chancellor subse- 
 quently, in Stalker v. M'Donald,' and received the unanimous concur- 
 rence of the court of errors. It is still followed by the courts of this 
 state. 
 
 Another class of constructive fraud may be seen where one or more 
 subscribers to a common fund, for a charitable object, becomes a party to 
 the subscription paper, under a secret agreement to be released or reim 
 bursed his subscription by the party for whose benefit the fund is raised. 
 The essense of every agreement of this kind is, that there should be a per- 
 fect equality among the subscribers as to the nature and extent of their 
 respective liabilities for the several sums subscribed by them respectively. 
 Any understanding or agreement, therefore, which gives to one subscri- 
 ber an advantage over his associates, not known to or approved by them, 
 
 ' Rosa V. Brotherson, 10 Wend. 86, as Stalker v. M'Donald, 6 id. 93. Fnrniss 
 
 explained in Smith v. Van Loan, 16 v. Gilchrist, 1 Sandf. 53. Wardell v. 
 
 id. 659. Jones v. Swan, 6 id. 589. Hart Howell, 9 Wend. 170. Stewart v. Small, 
 
 V. Palmer, 12 id. 523. Ontario Bank v. 2 Barb. S. 0. E. 659. Spear v. Myers, 
 
 Worthington, 12 id. 593. Payne v. Cut- 6 id. 445. Francia v. Joseph, 3 Ed. V. 
 
 ler, 13 id. 606. Bank of St. Albans v. Oh. R. 182. Bank of Salina v. Babcock, 
 
 Gilliland, 23 id. 311. Small v. Smith, 21 Wend. 499. Bank of Sandusky v. 
 
 1 Denio, 583. Coddington v. Bay, 20 J. Scoville, 24 id 116. 
 
 R. 637, affirming S. 0. 5 J. Oh. R. 54. = Swift v. Tyson, 16 Peters, 1. 
 
 Manhattan Oo. v. Reynolds, 2 Hill, 140. ' 6 Hill, 93. 2 Kent's Com. 81 to 83. 
 
 Eq. Jur. 33 
 
258 Op Fraud. [Ok 3; 
 
 is a fraud upon their rights. Thus, where a Stifcs&tiption was Set ofi foot 
 to raise a fund of fifty thousand dollars for the trusteed of Hamilton 
 College, and the subscription paper contained a clause, stating that the 
 subscribers should not be holden to pay the sums subscribed by them, 
 unless the aggregate of all the subscriptions should, by a certain day, 
 amount to the Sum of fifty thousand dollars, it was held that an agree- 
 ment by certain individuals of undoubted responsibility to pay the trus- 
 tees the amount of the deficiency in the subscription which should exist 
 on that day, the trustees by a resolution pledging themselves to continue 
 to raise funds beyond the day mentioned to make good said deficiency, was 
 not a compliance with the terms of the subscription. Such agreement 
 was a fraud upon the prior subscribers. The subscribers who became 
 such, under a contract to be reimbursed, did not stand on terms of equal- 
 ity and mutuality with the other subscribers. To make the general 
 subscription valid, so as to fill up the whole sum of fifty thousand dollars, 
 within the terms of the agreement, it should have been an absolute do- 
 nation of the amount of the deficiency, to be paid at the same time as 
 the other subscriptions, and no part of it to be restored or refunded to 
 them upon any contingency or in any event, other than such as was com- 
 mon to the subscriptions of all the other subscribers. The chancellor 
 likened it to an ordinary composition deed, where there is an express 
 agreement between the creditors themselves to discharge the debtor, upon 
 receiving a ratable proportion of their respective debts, in which case it 
 is settled, that any private agreement or understanding between the 
 debtor and any particular creditor that the latter shall, at any time, or in 
 any contingency, receive a greater sum than the amount of his debt, as 
 specified in the composition deed, is held void, as a fraud upon the other 
 creditors.' 
 
 On the same principle, it is obvious, that all the subscriptions which 
 are taken into the estimate to make up the sum to be raised, must be 
 binding and operative subscriptions, and such as could be enforced in a 
 court of justice. Hence a subscription by a minor, or other person, not 
 competent to contract, should be laid out of the estimate, unless the same 
 were paid in cash.' It is a fraud upon the other subscribers to take a 
 subscription, with a view to make up the requisite amount, which is not 
 binding on the party by whom it was made. 
 
 Similar questions have sometimes arisen under acts of incorporation 
 granted to railroad companies, turnpike companies, and the like. Thus, 
 
 ' Stewart v. The Trustees of Hamilton ° Id. 
 College, 2 Denio, 418, 419. 
 
Ch. 3.J Collusive Subscriptions. 259 
 
 •ffhen a charter Las been obtained by means of fictitious subscriptions for 
 part of the stock, and a fraud has been committed on a real subscriber, 
 by -which he has sustained, or by which he might sustain injury, no action 
 can be maintained against him by the corporation, for the amount of his 
 subscription ; but when such subscriber has accepted the charter, and by 
 his own acts put it in operation, he cannot avail himself, as a defense of 
 the fact, that part of this stock was fictitious.' 
 
 ' 0. & K. Turnpike Oo. v. MoConably, 16 S. & E. 142. Angel & Ames on Cor- 
 porations, 481. 
 
. 1 
 
CHAPTER IV. 
 
 OF SPECIFIC PERFORMANCE, CORRECTION, RE-EXECTJTION OP AGREE- 
 MENTS, AND COMPENSATION. 
 
 HAVING- treated the general subject of fraud in various aspects, we 
 propose, in this and the two succeeding chapters, to treat briefly 
 of some of the modes by which fraud is anticipated and prevented. Some 
 of these remedies point to some active duty to be performed by the de- 
 fendant, and others, to his desisting from doing what is contrary to equity 
 and good conscience ; or they require third persons to adjust, between them- 
 selves, controversies with which the plaintiff has no interest, but in which 
 he is in danger of being involved. We shall treat, in this chapter, of some 
 of the cases in which some active duty is required of the defendant. 
 
 Every agreement made between parties capable of contracting, upon a 
 lawful subject matter, and upon an adequate consideration, and which is 
 not contrary to public pohcy, or against any positive statute, should, if 
 practicable, be performed. This is required no less by sound morals than 
 by law. Every well ordered society must provide some remedy for the 
 violation of agreements. The common law, which left no wrong without 
 some inode of redress, was defective in relation to the violation of con- 
 tracts, and, in general, afforded no remedy to the injured party but a com- 
 pensation in damages. 
 
 It was felt, at an early day, that this remedy, in numerous cases, was 
 wholly inadequate, and we accordingly find, as early as the reign of Ed- 
 ward the 4th, that courts of equity exercised a jurisdiction in decreeing 
 the specific performance of agreements." It is now well established, by 
 a series of decisions, that this relief will, in general, be granted, where- 
 ever a court of law would give damages for the non-performance of the 
 agreement, and such damages would not be an adequate compensation for 
 the non-performance, unless, indeed, circumstances shall have put it out 
 
 ' 1 Madd. Ch. Pr. 287. 1 Fonb. Eq. B. 1, ch. 1, § 5, and notes. 
 
 26X 
 
262 Specific Performance. [Ch. 4. 
 
 of the power of the party to perform, or the agreement shall be shown to 
 be unfair or unreasonable. 
 
 There are some cases where an action at law enables the plaintiff to 
 recover the specific thing in dispute. This is so in the action to recover 
 land, corresponding with the action of ejectment and the old real actions," 
 and in the claim and delivery of personal property, which takes the 
 place of the old actions of replevin and detinue.^ But these legislative 
 provisions afford a remedy for only a small portion of the cases, where a 
 recovery in specie is desirable. 
 
 The consideration of the doctrine of specific performance presupposes 
 that the original transaction is unimpeached and valid, and that nothing 
 remains but to enforce the equity resulting from the non-performance of 
 the agreement. But if the contract sought to be enforced, be lost or de- 
 stroyed — if through accident or mistake it has been incorrectly framed, 
 or if the transaction be vitiated by fraud — a new equity arises to have the 
 instrument re-executed, the error corrected, or the fraudulent contract re- 
 scinded or cancelled. A court of law is, in general, incapable of afford- 
 ing full and perfect relief in these cases, and hence the remedial power of 
 equity must be invoked. 
 
 We shall treat of the equities arising in all these cases, in the present 
 chapter. 
 
 SECTION I. 
 
 OF SPECIFIC PEEFOBMANCE. 
 
 BEFORE treating of the different kinds of agreements, of which equity 
 will decree performance, it may be well to consider some of the cir- 
 cumstances, which are common to all, with respect to this head of equita- 
 ble relief. It has been remarked by a learned and enlightened English 
 equity judge, that if the contract be entered into by a competent pg,rty, and 
 be in the nature and circumstances of it unobjectionable, \t is as much 
 of course for a court of equity to decree a specific performance, as it is to 
 give damages at law.' This doctrine is also well established in this state.* 
 The question then recurs, what are the nattire and circumstances of the 
 contract which may render the execution of it, in specie, objectionable. 
 
 ' 2 K. 8. 308. * Per Savage, Oh. J. in Seyroonr v. W 
 
 ' Code of Prooedure, § 206 et seq. lanoy, 3 Oowen, 506. 
 
 • Sir Wm. Grant, in Hall v. Warren, 9 
 Yei. 608. 
 
Ch. 4.] Consideration. 263 
 
 The question supposes that the right to a specific performance of an agree- 
 ment is not coextensive with a right to recover at law. The giving spe- 
 cific performance is, as was said by Lord Eldon, and has often been repeat- 
 ed by others, a matter of discretion ; not an arbitrary, capricious discre- 
 tion ; but regulated upon grounds that will make it judicial.' Audit has 
 been said by eminent judges, that a court of equity will often refuse to 
 enforce a contract, which it would also refuse to annul." 
 
 The equity to a specific performance does not arise upon a merely 
 gratuitous promise. Chancery will never decree, specifically, a mere 
 voluntary agreement.' To entitle the party to the aid of the court, the 
 contract must be supported by a valuable consideration, or, at least, by 
 what a court of equity considers a meritorious consideration, as payment 
 of debts, or making provision for a wife or child.* 
 
 The question whether inadequacy of consideration alone is sufficient to ' 
 induce the court to withhold its aid, when called upon to enforce a spe- 
 cific execution of the agreement, has led to much discussion and to some 
 conflict of judicial opinion. It has been shown, in a previous chapter, 
 that inadequacy of consideration is not alone a sufficient ground, in ordi- 
 nary cases, to set aside a conveyance of property.' If was said that 
 inadequacy of price might be so great as to afibrd evidence of fraud ; and 
 that even a less degree of inadequacy might, in connection with imbe- 
 cility of mind, oppression, undue advantage, surprise, or the like, justify 
 the interposition of the court. But in all such cases it is the /rawrf, rather 
 than the inadequacy of price, which afibrds the ground of relief' 
 
 But there is, according to some of the cases, a great distinction, in this 
 respect, between ordering a contract to be rescinded, and decreeing it to 
 be performed. Though inadequacy of price is not a ground for decreeing 
 an agreement to be delivered up, or a sale rescinded, (unless its gross- 
 ness amounts to fraud,) yet it may be sufficient to induce the court to 
 refuse to decree performance. It is not an uncommon thing, says Chan- 
 cellor Kent, for the court to refuse to enforce, for inadequacy, and, at the 
 same time, refuse to rescind.' And, in a subsequent case, the same learned 
 
 ' White V. Damon, 7 Ves. 35. Sey- " Barker v. May, 3 Marsh. 436. Acker 
 
 mour V. Delancy, 3 Oowen, 445. S. 0. v. Phdenix, 4 Paige, 305. Minturn v. 
 
 6 J. Oh. K. 222. St. John v. Benedict, Seymour, 4 J. Oh. R. 497. 
 
 6 id. 111. Goring V. Naish, 3 Atk. 187. *Id. Thompson v. Attfield, 1 Vern. 
 
 Bennett v. Smith, 10 Law and Eq. 272. 40. Longdale v. Longdale, 1 id. 456. 
 
 16 Jur. 421. Eogers v. Saunders, 4 Maine ' Ante, Ohap. III. 
 
 92. Frisby v. Ballan, 4 Scam. 287. Math- • OsgooiJ v. Franklin, 2 J. Oh. 0. 24. 
 
 ows V. Terwilleger, 3Barb. S. C. R. 50. ' Osgood v. Franklin, 2 J. Oh. R. 1. 
 
 ' Jackson v. Ashton, 11 Peters, 229. S, C. affirmed in error, 14 J. R. 527. 
 
264 Specific Performance- [Ch. 4. 
 
 chancellor said, that inadequacy of price may, of itself, and without fraud 
 or other ingredient, be sufficient to stay the application of the power of 
 the court to enforce a specific performance of a private contract to sell 
 land, though it may be true that mere inadequacy of price, independent 
 of other circumstances, is not sufficient to set aside the transaction.' And 
 he dismissed a bill filed for the specific performance of an agreement for 
 the exchange of certain lots for two farms, the inadequacy of price being 
 so great, in his judgment, (being half the value,) as to give to the contract 
 the character of unreasonableness, inequality and hardship. 
 
 The decree of the chancellor was reversed on appeal by the court of 
 errors ; but as the senator, who gave the prevailing opinion, differed from 
 the chancellor on the matter of fact, as to the degree of inadequacy, it is 
 impossible to know how far the doctrine of Chancellor Kent, as above 
 stated, is modified by the reversal. It becomes necessary to compare 
 the opinion of the chief justice who was for affirming the decree, with 
 that of the learned senator who went for reversing it, and decreeing a 
 specific execution of the agreement. The chief justice, after an elaborate 
 review of the English and American cases, came to the conclusion, on this 
 branch of the case ; that if there are circumstances of unfairness, though 
 not amounting to fraud or oppression, or, if the inadequacy of consider- 
 ation be so great as to render the bargain hard and unconscionable, the 
 court may refuse its aid to enforce the contract, and leave the parties to 
 contest their rights in a court of law.' 
 
 The learned senator, who delivered the prevailing opinion, admitted that 
 the exercise of the power, in a court of chancery, to enforce the specific 
 performance of contracts for the sale or exchange of land, rests in the 
 sound discretion of the court ; that this is a sound legal discretion ; and 
 not the exercise of an arbitrary power, interfering with the contracts of 
 individuals, and sporting with their vested rights. He admitted, that the 
 party claiming the specific performance must present a case, fair, just 
 and reasonable ; that the contract must be founded on adequate cortsid- 
 eration ; and that it must be free from fraud, misrepresentation, deceit 
 or surprise. He admitted, further, that' when the inadequacy of price in 
 a contract is so flagrant and palpable as to convince a man, at the first 
 blush, that one of the contracting parties had been imposed on by some 
 false pretense, such a contract ought not to be enforced by a court of 
 equity. It is not to be denied, he observed, that it is the settled doc- 
 trine of the court of chancery, that it will not carry into effect, specifi- 
 cally, a contract when the inadequacy of price amounts to conclusive 
 
 ' Seymom- v. Delancy, 6 J. Oli. K. 222. ' Seymour v. Delanoy, 3 Oowen, 531. 
 
Ch. 4.] Consideration. 265 
 
 evidence of fraud. But he could not assent to the doctrine, that inade- 
 quacy of price, of itself, and without fraud or other ingredient, was suf- 
 ficient to stay the application of the power of a court of equity, to enforce 
 a specific performance of a private contract to sell land. And in the 
 case then under consideration, he thought the diiference 'between the 
 price agreed on, and the actual valuation, taking the average of the sev- 
 eral witnesses, was but about one-sixth of the contract price, and too 
 small a difference to amount to evidence of fraud. 
 
 If the majority of the court agreed with him in the last position, which 
 is one of fact, there was no occasion for their dissenting from the doctrine 
 of the chancellor and chief justice on the important question of law, 
 whether inadequacy alone was sufficient to withhold a decree for a spe- 
 cific performance. 
 
 The English cases which have gone the farthest in holding that Inad- 
 equacy alone is not an answer to a bill for a specific performance, are ca- 
 ses where the sale was at public auction. This was the case of White 
 v. Damon,' in which Lord Roslyn dismissed the bill, on the ground of in- 
 a,dequacy, and Lord Eldon, upon a rehearing, remarked that the plaintiff 
 was not affected by any thing beyond suspicion ; that the sale taking place 
 at an auction, without any fraud, surprise or mistake^ — the estate being 
 offered upon any price the party would bid — and, without more, the de- 
 fendant became the purchaser. Such a sale, his lordship said, where there 
 is no fraud, or surprise, cannot be set aside for mere inadequacy of price. 
 It will be very difficult to sustain sales by auction, if a court of equity 
 will not specifically perform the agreement. In a later case, Lord Eldon 
 said, unless the inadequacy of price is such as shocks the conscience, and 
 amounts to conclusive and decisive evidence of fraud in the transaction, 
 it is not itself a sufficient ground for refusing a specific performance.* 
 That, too, was the case of an auction sale, in which there was in truth no 
 foundation for the charge of inadequacy of consideration. The recent 
 case of Borell v. Dann,^ was also a case of sale by auction. The vice 
 chancellor said : Fraud in the purchaser is of the essence of the objec- 
 tion to the contract, on the ground of inadequacy. The only exception to 
 the rule for decreeing the specific performance of an unexecuted contract, 
 on the ground of inadequacy of consideration, is, that it is so gross that, 
 of itself, it proves fraud or imposition on the part of the purchaser. The 
 case must, however, be strong indeed, in which a court of justice shall 
 say that a purchaser at a public auction, between whom and the vendors 
 there has been no previous communication, affecting the fairness of the 
 
 ' 7 Ves. 30. » Coles v. TreootMok, 9 Vea. 246. ' 2 Hare, 451. 
 
 Eq. JtiE. 34 ' 
 
266 Specific Performance. [Gh. 4. 
 
 Sale, is chargeable witli fraud or imposition, only becanse his bidding did 
 not greatly exceed the amount of the vendor's reserved bidding. 
 
 The early English cases, in the time of Lord Hardwicke, in transac- 
 tions between party and party, and where the sale was not at auction, 
 hold a diiferent language. Thus, in 1740, Lord Hardwicke said in the 
 case of a hard bargain, when it is not absolutely executed, but executory 
 only, the constant rule of the court is, not to carry it into e xecution.' 
 And in another case, he observed that nothing is more established in the 
 Court of equity, than that every agreement sought to be specifically en- 
 forced ought to be certain, fair and just in all its parts ; and if any of 
 those ingredients are wanting in the case, the court, will not decree a spe- 
 cific performance.^ In another case Lord Hardwicke refused to decree 
 specific performance, on the ground that the court was not obliged to do 
 so, when it would be attended with great loss and hardship to one of the 
 parties, and compensation in damages could be made.^ Lord Eldon ob- 
 served in one case, that there are many cases in which the court will not 
 disturb an agreement that has been executed ; though it would have re- 
 fused to carry that agreement into execution ; and where, refusing to 
 execute the agreement, it will leave the party to make the most of it at 
 law.* It is true his lordship was not then considering the question of 
 inadequacy. But if the court may refuse to carry into effect a hard bar- 
 gain, it may certainly refuse relief when the consideration is so far inad- 
 equate as to constitute a hard bargain. 
 
 The recent English cases incline to hold inadequacy alone as an insuffi- 
 cient ground to prevent a decree for a specific performance, thus placing 
 cases under this head of equity upon the same footing with bills to rescind 
 agreements for inadequacy of consideration, though the cases on the sub- 
 ject are not entirely consistent.^ 
 
 In this country the weight of authority is, that though equity will not 
 Bet aside an executed agreement for inadequacy of consideration, not 
 amounting to evidence of fraud, yet it will, in private sales, refuse its aid 
 to carry it into execution, though the inadequacy be not sufficient to set it 
 aside.' A bill in equity for the specific performance of a contract is an 
 
 ' Barnardiston V. Lingood, 2 Atk. 134. Pr. 836, contra; and Vigors v. Pike, 8 
 
 ' Buxton V. .Lister, 8 id. 386. Clarke & Fin. 562, 645. 
 
 • City of London v. Nash, 8 id. 515. " Olitherell v. Ogilvie, 1 Desaus. 250. 
 
 * Willan V. Willan, 16 Ves. 88. Osgood v. Franklin, 2 J. Ch. E. 28. S.O. 
 ' Western v. Eussell, 3 Ves. «fc Beams, on appeal, 14 J. B. 627. Seymour v. 
 
 198. Griffith V. Spratley, 2 Br. Ch. Cas. Belanoy, 6 J. Oh. R. 223. S. 0. on ap- 
 
 179. Adams v. Weare, 1 id. 667. Mor- peal, 3 Oowen, 445. St. John v. Benediet, 
 
 timer v. Oapper, id. 156. Adams' Eq. 6 J. Oh. E. 111. Gasque v. Small, 2 
 
 79, Phil. ed. 208. But see 1 Mad. Ch. Strobh. Eq. 72. 
 
1 
 
 Ch. 4.] Mutuality. 26T 
 
 application to the sound discretion of the court, which withholds or grants 
 relief, according to the circumstances of each particular case; and, in the 
 exercise of its extraordinary jurisdiction in such cases„the court, though 
 not exempt from the general rules and principles of equity, acts with 
 more freedom than when exercising its ordinary powers. The contract 
 must be fair and just and certain, and founded on an adequate amsidero' 
 tion ; an^ if deficient in either of these requisites, its performance will 
 not be decreed : hence, the plaintiff who seeks the enforcement must make 
 out a stronger case than he who resists the decree.' Greater latitude 
 will be allowed to the defendant in resisting, than will be allowed to the 
 plaintiff in making out his case.'' 
 
 The agreement to be enforced must be mutual in its character and cer- ; 
 tain in its terms.' If the party seeking to enforce the agreement was not j 
 himself liable, and the same could not be enforced against him, there is \ 
 no reciprocity in allowing him to enforce it against the other party. This ; 
 was one of the grounds on which Chancellor Kent denied relief in Bene- \ 
 diet V. Lynch, though there were other objections to the plaintiff's 
 recovery.* The same doctrine is explicitly recognized by Chancellor 
 Walworth ;« and by Edmonds, J.' Mutuality and certainty are, in general, 
 indispensable requisites to the granting of reliefs 
 
 The only exception to the rule, with respect to mutuality, is, when an 
 agreement, under the statute of frauds, has only been executed by the 
 party sought to be charged. In this class of cases, although the plaintiff 
 has not signed the agreement and it cannot be enforced against him, yet 
 he can enforce it against the other party, by whom it has been executed. 
 This seems to be well settled by the English and American cases.^ It 
 was at one time questioned by Lord Kedesdale,' who thought that the 
 contract ought to be mutual to be binding, and that if one party coul^ 
 not enforce it the other ought not. Chancellor Kent in Clason v. Bailey, 
 
 ' Tyson v. Watts, 1 Maryl. Ch. Deois. Bronson v. Cahill, 4 McLean, 19. Tjson 
 
 13^ V. "Watts, 1 Maryl. Ch. Deois. 13. Beard 
 
 = Casey v. Holmes et al., 10 Alabama, v. Linthionm, id. 345. 
 V76. Story's Eq. § 769. Cathcart v. ' Seton v. Slade, 7 Yes. 275. Fowle 
 
 Kobinson, 5 Peters, 264, 376. v. Freeman, 9 id. 351. Clason v. Bailey, 
 
 = Bromley v. Jeffers, 2 Vern. 416. 14 J. E. 484, per Kent. McOrea v. Pur- 
 
 • 1 J. Ch. K. 307. mort, 16 Wend. 406, affirming Att'y 
 " German v. Machin, 6 Paige, 288. m Gen. v. Pnrmort, 5 Paige, 620. Wood- 
 
 • Woodward v, Harris, 2 Barb. S. C. E. ard v. Aspinwall, 3 Sandf. S. 0. E. 272. 
 439. Philips V. Berger, id. 611 ; affirm- Sutherland v. Briggs, 1 Har^, 84. 
 ed on appeal, 8 id. 527. ° Lawrenson v. Butler, 1 Sob. & Leftoy, 
 
 ' Eogers v. Saunders, 4 Maine E. 92. IS. 
 
268 Specific Performance. [CL 4. 
 
 already cited, said that the weight of the argument was in favor of the 
 construction, that the agreement concerning lands, to be enforced in 
 equity, should be mutually binding, and that one party ought not to be at 
 liberty to enforce, at his pleasure, an agreement which the other was not 
 entitled to claim. And Verplanck, senator, in a case in the court of errors 
 in 1841, expressed the same opinion ;' but both agreed that the law was 
 well settled the other way, both in this country and Great Britain. The 
 law, as settled, grew out of the phraseology of the statute of frauds, which 
 did not, under the former statute, require the note or memorandum of 
 the agreement to be signed, nor, under the revised statutes, to be suh- 
 scribe,d, save by the party to be charged.^ The revisers recommended a 
 change in the language of the act, so as to conform it to the opinion of 
 Lord Redesdale and Chancellor Kent ; but the legislature rejected that 
 alteration and adhered to the old words.' The contract in these cases 
 is morally binding on both sides, and the promises to buy and sell are 
 mutual considerations for each other. The statute then requires written 
 evidence of the bargain. One party gives this, and it is his own neglect 
 that alone prevents him from obtaining the same evidence from the other. 
 But he ought not to take advantage of his own negligence, nor should 
 that free him from the legal effect of his own promise, duly evidenced 
 in writing, according to law.' 
 
 The cases already cited to show that a contract to be enforced speci- 
 fically, must be founded upon an adequate consideration, and must be 
 mutual and certain, prove also that it must be fair and just in all its 
 parts, and not a hard or unconscionable bargain. If the agreement be 
 a hard and unreasonable one,' if it lack mutuality, if it be uncertain, or 
 if it be upon an inadequate consideration, if it be tainted with fraud, or 
 if the performance of it be unlawful, or would subject the party to a 
 penalty, or if its performance has become impossible, equity will not 
 order it to be enforced, but leave the parties to their remedies at law.' 
 
 In general, specific performance will not be decreed, if the remedy at 
 law upon the agreement be adequate, and will afi"ord complete relief and 
 be not embarrassed by any circumstances rendering the interposition of a 
 court of equity necessary. If compensation in damages will put the ag- 
 
 ' DaTis V. Shields, 26 Wend. 362. • Kimberly v. Jennings, 6 Sim. 340. 
 
 » 1 R. L. 78, § 11. 2 R. S. 186, § 2. • Thompson v. Thompson, 7 Ves. 473. 
 
 ' S E. S. 2 ed. 656, revisers' notes. Piatt v. Adams, 7 Paige, 615, and sea 
 
 * Per Vei-planck, in Davis v. Shields, 26 ante. 
 Wend. aes. 
 
Ch. 4.] Infants. 269 
 
 grieyed party in a situation as beneficial to himself, as if the agreement 
 ■were specifically performed, he will, in general, be left to his remedy at law.' 
 The foregoing remarks are sufficient to show the general grounds on 
 which relief in equity is granted or refused in cases of this nature. They 
 will be again to a certain extent brought under review, when we come to 
 consider, more at large, some of the leading cases on the subject. 
 
 When specific performance of a contract would be decreed between the 
 original parties to a contract, it will be decreed between all claiming un- 
 der them, if there are no intervening equities controling the case." At 
 common law, if the estate of the contracting party devolved upon an in- 
 fant, by the death of the party to the contract, the remedy to enforce spe- 
 cific performance was delayed until the infant became of age ; and if the 
 party became lunatic, the remedy was deferred until the disability was 
 removed.' In England, by recent statutes, the court, in these cases, after 
 a decree has been pronounced, may direct a conveyance as in the case of 
 an incapacitated trustee.' In New- York it is enacted, that the court of 
 chancery (now the supreme court or county court) shall have power to 
 decree, and compel a specific performance, by any infant heir or other per- 
 son, of any bargain, contract or agreement, made by any party who may 
 die before the performance thereof, on petition of the executors or admin- 
 istrators of the estate of the deceased, or of any person or persons inter- 
 ested in such bargain, contract or agreement, and on hearing all parties 
 concerned, and being satisfied that the specific performance of such bar- 
 gain, contract or agreement ought to be decreed or compelled.' This 
 provision was first adopted by the act of 1814, to remedy the necessity 
 of a special application to the legislature, which before that time was the 
 only remedy, in case the obtaining of title, before the infant arrived at 
 mature age, was necessary.^ 
 
 This statute, however, has no extra-territorial efficacy ; and hence, if 
 the lands of an infant heir, which the ancestor was under an agreement 
 to convey, are situated in another state, and the infant be domi- 
 ciled in this state, the court may decree as pecific performance of 
 the agreement, and direct a conveyance when the infant arrives at 
 full age ; and that in the meantime the vendee be permitted to retain 
 the possession of the property.' The chancellor said it was per- 
 
 ' See remarks of Lord Redesdale, in " Hays v. Hall, 4 Porter, 374. 
 
 Harnet v. Yielding, 2 Soh. & Lefr. 552, ' Adams' Eq. 81. 
 
 553. Halsey v. Grant, 13 Ves. 77. Oath- ' lWm.4, o. 60, §§16, 17. Id. 65, §27. 
 
 cart v. Robinson, 5, Peters, 264. 1 Ponb. ' 2 E. S. 194, § 169. 
 
 Eq. B. 1, ch. 1, § 5 and notes. Plint v. • Laws of 1814, p. 128, 129, § 3. 
 
 Brandon, 8 Ves. 163. ' Sutphen v. Fowler, 9 Paige, 280. 
 
270 Specific Performance. [Ch. 4. 
 
 fectly well settled, that a court of equity has jurisdiction to decree the 
 specific performance of a contract for the sale of lands in another state, 
 when the person of the defendant is within the reach of its process.' 
 
 A contract to convey lands, which is signed by the husband and wife, 
 but is not duly acknowledged by tfie wife, is the contract of the husband 
 only ; and is neither binding upon the wife, nor upon her heirs after her 
 death. The court, therefore, cannot decree a specific performance of it 
 against the wife in her lifetime, nor against her heirs on her decease.' 
 
 In case the party to a contract afterwards becomes a lunatic, a court 
 of equity in New- York has authority, by statute, to decree and compel 
 the specific performance of any bargain, contract or agreement, which 
 may have been made by any lunatic or other person of unsound mind, 
 while such lunatic or person of unsound mind was capable to contract ; 
 and to direct the committee of such person to do and execute all necessary 
 conveyances and acts for that purpose.' This was merely the revision 
 of the act of 1801, which conveyed the like authority.^ But this act does 
 not reach the case where the contract was made by the ancestor, and the 
 duty to perform it descended to his lunatic heir. Other sections of the 
 act apply to such a case. Thus, by the 19th section,' it is enacted that 
 whenever any idiot, lunatic or other person of unsound mind, shall be 
 seised or possessed of any real estate by way of mortgage, or as a trustee 
 for others in any manner, his committee may apply to the court of 
 chancery (now the supreme court) for authority to convey and assure 
 such real estate to any other person or persons entitled to such convey- 
 ance or assurance, in such manner as the said court shall direct ; upon 
 which a reference shall be had, and the court, upon the hearing of the 
 parties interested, may order such conveyance or assurance to be made. 
 And by the 20th section it is further enacted, that on the application of 
 any person entitled to such conveyance or assurance, by bill or petition, 
 the committee may be compelled by the court of chancery, (now the su- 
 preme court,) on a hearing of all parties interested, to execute such con- 
 veyance or assurance. 
 
 The foregoing statutory provisions have been held by an eminent equity 
 judge," to confer upon the court suflScient authority to decree the specific 
 
 ' Sutphen v. Fowler, 9 Paige, 280. The ' 2 R. S. 65, § 22. 
 Earl of Arglasse v. Muschamp, 1 Vern. ' 1 R. L. 148, § 5. 
 135. Massie v. Watts, 6 Cranoh, 148. ' 2 E. S. 55, §§ 19, 20. 
 Penn v. Lord Baltimore, 1 Ves. sen. 144. " Swartwout v. Burr, 1 Barb. S. 0. E. 
 
 ' Enowles v. McCamly, 10 Paige, 342. 495, 499, per Paige, J. 
 Martin v. Dwelly, 6 Wend. 9. 
 
CL 4.] As TO Eersonal Property. 271 
 
 execution, by a lunatic heir, of a contract for the sale of land, made by 
 the ancestor in his lifetime. The same learned judge said on the same 
 occasion, that when a contract is made for the sale of land, the vendor is 
 in equity immediately deemed a trustee of the vendee of the real estate, 
 and the vendee a trustee of the vendor, of the purchase money. The 
 trust in the vendor, for the vendee, attaches to the land and binds the 
 heirs of the vendor.' This is the unquestioned doctrine of courts of 
 equity, and results from the principle, that what is contracted to be done 
 for a valuable consideration, is considered as done, and nearly all the con- 
 sequences arise, as if it had been so, and as if a conveyance had been 
 made at the time to the vendee.* At law, it is otherwise. There the 
 estate remains the estate of the vendor, until the conveyance is executed, 
 and the money that of the vendee, until it is paid. 3ut it is not so in 
 equity, as has already been shown.' Hence it follows, that on the death 
 of the ancestor, who had made a valid agreement to sell, the estate de- 
 scended to the lunatic heir, charged with the trust which the court was 
 authorized by the statute to cause to be executed. 
 
 The agreements which courts of equity will specifically enforce may be 
 divided into three general heads ; 1st. Those which relate to personal 
 property ; 2d. Those which relate to personal acts ; and 8d. Those 
 which relate to real property. It has been shown already, and will ap- 
 pear more fully as we proceed, that the remedy in equity, in the cases 
 comprehended under the foregoing heads, is not coextensive with the 
 wrongs which may happen under them. 
 
 (1.) With regard to contracts relative to personal property, courts of 
 equity have been less inclined to interpose than in those relating to real 
 estate. At an early day, it was held that a bill in equity did not lie for 
 a specific performance of an agreement to transfer stock.* The principle 
 on which relief was refused is, that there can be no difference between 
 one man's stock and that of another ; that the remedy at law is perfect, 
 and that compensation in damages will enable the party to purchase other 
 stock of equal value. But, in modern times, a bill has been held to lie for 
 the specific performance of a contract for the purchase of government 
 stock, where it prayed for the delivery of certificates which gave the legal 
 
 ' Swartwout v. Burr, 1 Barb. S. 0. E. 713. Lechmere v. Earl of Carlisle, 3 id. 
 499. Champion v Brown, 6 J. Ch. E. 215. Bash v. Dalway, 3 Atk. 533. 
 402etseq. Craigv.Leslie, 3 Wheat. 577. = Seton v. Slade, 7 Ves. 274. 1 Mad. 
 Peter v. Beverly, 10 Peters, 532. Oh. Pr. 289. 
 
 " Frederick v. Frederick, 1 P. Wms. * Cud v. Eutter, 1 P. "Wms. 570. Nut- 
 brown V. Thomton, 10 Ves. 160. 
 
272 Specific Performance. [Ch. 4. 
 
 title to the stock.' The plaintiff in that case, not being the original 
 holder of the scrip, but merely the bearer, the vice chancellor thought he 
 might not be able to maintain any action at law upon the contract, and 
 that if he had any title, it must be in equity. 
 
 But there are numerous cases in which equity will interpose, and order 
 a particular chattel to be given up. Thus, in an early case, where land 
 was held by the tenure of a horn or carnage, on which horn there was a 
 peculiar inscription, the court entertained a, bill for the delivery of it to the 
 plaintifF.2 This, as was said by Lord Eldon in Nutbrown v. Thornton, 
 (10 Ves. 163,) turned upon the pretium affectionis, independently of the 
 circumstance as to tenure. In the latter character it savored of the 
 realty, and in the former it was not susceptible of compensation in 
 damages. 
 
 There are cases, however, in which the court grants specific perform- 
 ance of agreements of a personal nature. Thus, in an early case,' the 
 defendants entered into an agreement in writing with the plaintiflf for the 
 purchase of large parcels of wood, consisting of oaks, ashes, elms and 
 asps, which are numbered, figured and cyphered, standing and being 
 within the township of Kir by, for the sum of £3050, to be paid at six 
 several payments, every lady day, for the six following years ; and the 
 defendants to have eight years for disposing of the same, and that arti- 
 cles of agreement should be drawn and perfected as soon as conveniently 
 could be, with all the usual covenants, (fcc. The agreement was signed 
 by all the parties, and the bill was brought by the vendor for the spe- 
 cific performance of it. After a discussion of the matter. Lord Hardwicke 
 observed, that the subject was divided into two questions ; first, whether 
 the plaintifi' is entitled to seek his remedy in a court of equity for a spe- 
 cific performance ; and secondly, whether as to the merits of his case he 
 is entitled to such a decree. 
 
 As to the first, his lordship said, I am of opinion, that this is such an 
 agreement, though for a personal chattel, that the plaintiflf may come 
 here to have a specific performance. 
 
 To be sure, in general, said he, this court will not entertain a bill for 
 a specific performance of contracts of stock, corn, hops, &c., for as these 
 are contracts which relate to merchandise, that yary according to differ- 
 ent times and circumstances, if a court of equity should admit such bills, 
 it might drive on parties to the execution of a contract, to the ruin of one 
 
 ' Doloret v. Rothsohild, 1 Sim. & Stu. v. Loaring, 6 Ves. 773. Livingston r. 
 690. Lynch, 4 J. Ch. K. 396. 
 
 " Pusey v. Pusey, 1 Vern. 278. Lloyd " Buxton v. Lester, 8 Atk. 882. 
 
Ch. 4.] As TO Personal Property. 273 
 
 side, when, upon an action, that party might not have paid above a shil- 
 ling damage. Therefore, the court have always governed themselves in 
 this manner, and left it to law, where the remedy is so much more expe- 
 ditious. As to the cases of contracts for the purchase of lands or things 
 that relate to realties, these are a permanent nature, and if a person 
 agrees to purchase them, it is on a particular liking to th? land, and is 
 quite a different thing from matters in the way of trade. 
 
 Notwithstanding this general distinction between personal contracts 
 and contracts for land, his lordship stated, that there were some cases 
 where persons may come 'into a court of equity, to enforce personal 
 contracts, and he cited as in point the case of Taylor v. Neville, which 
 was a bill for the performance of articles for the sale of eight hundred 
 tons of iron, to be paid for in a certain number of years, and by install- 
 ments, and a specific performance was decreed.' 
 
 In the same case Lord Hardwicke pointed out a distinction between 
 contracts of a personal nature, not immediately to be performed and 
 peculiar in their character, and those which are immediately to be execu- 
 ted. In the former case, several circumstances may concur. Thus, a 
 man may contract for the purchase of a great quantity of timber, as a 
 ship carpenter, by reason of the vicinity of the timber, and this on the 
 part of the buyer. 
 
 On the part of the seller, suppose a man wants to clear his land, in 
 order to turn it to a particular sort of husbandry, there nothing can 
 answer the justice of the case, but the performance of the contract in 
 specie. 
 
 In the case of John, Duke of Buckinghamshire v. Ward, a bill was 
 brought for a specific performance of a lease relating to alum works 
 and the trade thereof, which would be greatly damaged if the covenant 
 was not performed on the part of Ward. The covenants lay there in 
 damages, and yet the court considered if they did not make such a decree, 
 an action afterwards would not answer the justice of the case, and, there- 
 fore, decreed a specific performance. 
 
 Suppose, he furthers observes, two partners should enter into an 
 agreement to carry on a trade together, and it should be specified in the 
 memorandum that articles should be drawn pursuant to it, and, before 
 they are drawn, one of the parties flies off, I should be of opinion, upon a 
 bill brought by the other, in this court, for a specific performance, that 
 "notwithstanding it is in relation to a chattel interest, yet a specific per- 
 formance ought to be decreed, 
 
 ' Taylor v. Neville, cited in Buxton v. Lester, 3 Atk. 384. 
 Eq. Jub. 35 
 
274 Specific Pekfoemance. |01i. 4. 
 
 On the circumstances of the case before him, he thought the hill ought 
 to be entertained, but at the same time, he added, that courts ought to 
 weigh with great nicety cases of this kind, before they determine the 
 bill proper, when it is a mere personal chattel. 
 
 This case of Buxton v. Lister, already considered much at length, 
 affords an apt illustration of the principles as well of withholding as of 
 granting relief, when a specific performance of an agreement is invoked. 
 The defendants had only offered 2800 pounds for the timber, and the 
 plaintiff insisted upon 3500, and stated that F, and C, two timber mer- 
 chants, had valued it at so much, and that this was true on his honor, 
 and when he said a thing on his honor, the defendant ought to believe it. 
 The defendants afterwards agreed to give 3050 pounds for the wood, on 
 the opinion they had of the judgment of F. and C. It turned out, howT 
 ever, that F. and C. did not set any greater valuation than 2500 pounds 
 upon the timber, and this misrepresentation was the ground which in- 
 duced the defendants to enter into the agreement. And because of this 
 misrepresentation, the court refused to compel the defendants to execute 
 the agreement, and dismissed the bill. 
 
 The principle on which courts of equity decree the specific perform- 
 ance of contracts does not rest upon any distinction between realty and 
 personalty, but because damages at law may not, in the particular case, 
 afford a complete remedy. Thus, specific performance was decreed, at 
 the suit of the vendor, of a contract for the sale of debts proved under a 
 commission of bankruptcy.' The court said that damages at law could 
 not accurately represent the value of the future dividends ; and to com- 
 pel the purchaser to take such damages, would be to compel him to sell 
 these dividends at a conjectural price. 
 
 Nor did it alter the case that the vendor was the party seeking not 
 the uncertain dividends, but the certain sum to be paid for them. It is 
 well settled that the remedy in equity must be mutual, and that where 
 the bill will lie for the purchaser, it will also lie for the vendor.' 
 
 In one case, specific performance was decreed in the house of lords of 
 a contract to pay the plaintiff a certain annual sum for his life, and also a 
 certain other sum for every hundred weight of brass wire manufactured 
 by the defendant during the life of the plaintiff. Damages in such case 
 would be no complete remedy, being to be calculated merely by conjec- 
 ture ; a»d to compel the plaintiff in such a case to take damages, would 
 
 ' Adderlj v. Dixon, 1 Sim. & Stuart, 607. ' Id. 
 
Ch. 4.] As TO Personal Property. 275 
 
 be to compel Hm to sell the annual provision during his life, for which he 
 had contracted, at a conjectural price.' 
 
 The principle of the foregoing cases was well illustrated by a recent 
 case, in New- York.' In that case the plaintiff was the owner of a judg- 
 ment against a third party for $9837.66, on which a creditor's bill had 
 been filed. During the pendency of the suit the defendant entered into 
 a contract with the plaintiff, whereby the latter agreed that for $4500 of 
 the costs he would compromise the claim. The defendant afterwards de- 
 clined to perform the contract, and the plaintiff filed a bill for a specific 
 performance. The court treated the contract as one for the absolute pur- 
 chase, by the defendant, of the plaintiff's judgment, and entertained no doubt 
 that a bill for a specific performance would lie. And the learned judge 
 stated the principle to be, that where an award of damages would not put the 
 party in a situation as beneficial as if the agreement were specifically per- 
 formed, or if the compensation in damages would fall short of the redress 
 which his situation might require, it was a proper case to decree the exe- 
 cution of it in specie. The judge remarked that the contract in this case 
 respected a chose in action, viz. the sale or compromise of a judgment. 
 And for the defendant's refusal to complete his purchase, an action at \a,yt 
 would lie, and damages could be recovered against him. But what dan> 
 ages ? And would that be a complete and satisfactory remedy ? The 
 remedy of a specific performance is mutual- and reciprocal, as well for 
 the vendor as the purchaser ; and the true inquiry is, would an action at 
 law afford to the defendant a complete and satisfactory remedy, if the 
 plaintiff had refused to assign or release the judgment according to hia 
 contract ? The judge said he could well imiagine many uses to which 
 the defendant might have put the judgment, which could not be at all, 
 except by very vague conjectures, measured or estimated. And if, on 
 that account, he would have been entitled to a spebific performance, then, 
 for the same reason, the plaintiff would be entitled. 
 
 In some of the foregoing cases the covenant savored of the realty, but 
 the decision was not put upon that ground, but upon the imperfection of 
 the remedy at law. Though it be the general rule that courts of equity 
 do not ordinarily enforce the specific execution of contracts relating to 
 personal property, because courts of law usually afford a complete rem- 
 edy ; yet, whenever a violation of the contract cannot be correctly esti- 
 mated in damages, or, wherever, from the nature of the contract, a speoifie 
 
 ' Ball V. Coggs, 1 Bro. P. 0. 140. 608 ; affirmed on appeal, 8 id. 527. "Wopd 
 
 ' Philips V. Berger, 2 Barb. S. C. E. v. Kowcliff, 3 Hare, 304. 
 
276 Specific Performance. [Oh. 4. 
 
 performance is indispensable to justice, a court of equity -will not be de- 
 terred from interfering, because the contract relates to personal property.' 
 The courts in this country have inclined to carry the doctrine of specific per- 
 formance, with respect to personal property, further than it is in England.' 
 
 In considering the cases where equity interferes to enforce contracts 
 specifically, relative to personal -property, some of the illustrations would 
 not be inappropriate under the second head ; namely, contracts which re- 
 late to personal acts. Indeed, no division of the subject can be so accu- 
 rately drawn that the cases will not run into each other. 
 
 (2.) We proceed now to notice the doctrine with respect to decreeing the 
 performance of personal acts. 
 
 These cases depend upon the same principle, that da,mages afford an 
 inadequate relief, and that performance in specie will alone answer the pur- 
 poses of justice. Thus, in a recent case,^ Chancellor Walworth held that 
 the court had jurisdiction to compel the specific performance, by the de- 
 fendant, of a covenant to do certain specified work, or to make certain 
 improvements, or erections upon his own land, for the benefit of the com- 
 plainant, as the owner of the adjoining property, who had an interest in 
 having such work done, or such improvements or erections made ; and 
 where the injury to the complainant, from the breach of the covenant;, was 
 of such a nature as not to be capable of being adequately compensated 
 in damages. The case was this : The complainant granted to the cor- 
 poration of the city of New- York certain lands, for the purposes of a 
 public square, upon condition that such lands should forever be used and 
 appropriated, for the purposes of a public square, exclusively, and 
 upon the further condition, that the corporation should immediately 
 proceed to regulate the lands granted, and should inclose and improve 
 the same in the manner specified in the conveyance thereof. The 
 ■corporation joined in such deed, by executing it under the corporate 
 seal, and covenanted to stand seised of the premises for the purpose 
 of a public square, exclusively, and that such corporation would abide 
 by, observe and perform the conditions imposed upon it by the accept- 
 ance of such agreement and conveyance. The chancellor held that the 
 corporation was bound to perform the conditions specified in the convey- 
 ance, and was liable to respond to the complainant, in damages, for the 
 non-performance thereof. And it was further held, that the complain- 
 
 ' Fells V. Eecd, 3 Voa. 70. Sullivan v. " Barr v. Lapsly, 1 Wheat. 152. Philips 
 Turk, 1 Maryl. Ch. Deoia. 59. "Waters v. v. Bot-ger, 2 Barb. S. 0. R. 608. 
 Howard, id. 112. » Stuy vesant v. The Mayor of K Y., 11 
 
 Paige, 414, 427. 
 
Ch. 4.] Contracts as to Personal Acts. 277 
 
 ant had a right, at his election, to re-enter for a non-performance of the 
 conditions of the deed ; or to bring an action for the damages sustained 
 hy the breach of the covenants of the corporation ; or to file a bill in 
 equity, to compel a specific -performance of these -covenants." 
 
 On the same principle, ■where a railroad company, upon an adequata 
 consideration, agreed with the plaintiff, through whose pleasure grounds 
 they laid their railroad, to construct and forever maintain one neat arch- 
 way, sufficient to permit a loaded carriage of hay to pass under the arch- 
 way, at such place as the plaintiff, his heirs and assigns should think 
 most convenient, in his pleasure grounds, and to form and complete the ap- 
 proaches to such archway, it was held that the court had jurisdiction to 
 enforce the specific performance of the contract." 
 
 In this case damages would not be an adequate compensation ; and 
 there is no principle on which they could be accurately estimated. The 
 case is, therefore, distinguishable from those where relief at law is adequate 
 and complete.' 
 
 The personal acts with respect to which courts of equity entertain 
 jurisdiction to decree performance specifically, have reference to property 
 of some kind. There is none where a contract for personal, services alone 
 has been actively enforced.* There are several, however, in which the 
 court has interfered negatively. Thus, in the case of a theater consid- 
 ered as a partnership, a contract with the proprietors not to write dra- 
 matic pieces for any other theater is valid, and a violation of it will be 
 restrained by injunction.' As was intimated by Lord Eldon in that case, 
 it is not unreasonable that an actor and a writer for the stage should en- 
 gage for the talents of each other ; and that neither should write or act 
 but for the theater in which they are jointly interested. But when there 
 is no partnership between the parties, and the defendant has violated 
 his engagement to one theater and formed a conflicting engagement with 
 another, a court of equity will not interfere either actively to compel per- 
 formance of one contract, or negatively to prevent the performance of 
 the other.' 
 
 Suppose the contract be, to act at a particular theater, or to sing at a 
 particular opera, and it be broken, there is clearly no way in which the 
 
 ' Stuyvesant v. The Mayor of N. Y., 11 622. De Eivafinoli v. Oorsetti, 4 Paige, 
 
 Paige, 414, 427. 264. Sanquirico v. Benedetti, 1 Barb. S. 
 
 ^ Storer v. Great Western Railway Co. C. E. 315. Kemble v. Kean, 6 Sim. 333. 
 
 2 Y. & Col. 48. ' Morris v. Colman, 18 Vesey, 437, 
 
 ' Flint V. Brandon, 8 Ves, 160. Clarke v. Price, 2 Wilson, 157. 
 
 * Haight V. Badgley, 15 Barb. 501. • Kembl© v. Kean, 6 Sim. 333. 
 Hamblin v. Dunneford, 2 Ed. V. Ch. K. 
 
278 Specific Performance. [Ch. 4. 
 
 court can compel performance. Sequestration of his property, or a com- 
 mitment to jail on his refusal, is a substitute for performance no better 
 than damages at law. The court has no process by which a fulfillment of 
 the contract can be compelled. And in such cases it is proper to leave 
 the parties to a court of law, and let the damages be adjusted by a jury." 
 
 There are, however, numerous cases arising between landlord and ten- 
 ant, and in cases of partnership, where personal covenants will be decreed 
 to be enforced. They generally rest upon the reasons already stated, the 
 inadequacy of the remedy at law, and the difiiculty of ascertaining the 
 damages. Thus a covenant to give a lease, or to renew a lease, has been 
 required to be executed, and to contain also a covenant for a further 
 renewal.' So an agreement to form a partnership and execute articles 
 accordingly may be specifically enforced.^ So a covenant to sustain and 
 repair the banks of a river.* 
 
 In many cases the court interferes negatively, and restrains a cove- 
 nantor from a breach of his agreement, and thus, in effect, enforces a spe- 
 cific performance. Thus, injunctions to restrain waste ; to prevent the 
 cutting down and removal of timber ; to prevent the removal of manure, 
 or crops at the end of the lease, and the like ; but these cases more prop- 
 erly belong to the head of injunctions. 
 
 Where a party agrees, for a certain consideration, to permit a railroad 
 corporation to construct a road over his land, on any one of two or more 
 routes, at their option, and to convey the land to the corporation for 
 certain sums, according to the route that shall be taken, after the road 
 shall be definitely located, he cannot defend against a bill for specific 
 performance of his agreement, by -showing that he was induced to 
 believe, either by his own notions or by the representations of thfrd per- 
 sons, as to the preference of one route over another, that the corporation 
 would select a route different from that which they finally adopted ; nor 
 by showing that the corporation or its agents made representations as to 
 the probability that one route would be adopted in preference to another, 
 or as to the relative advantages of each route.' Having, by the terms of 
 the contract, stipulated for the right to adopt either route, and to pay a 
 consideration for such right of choice, all representations respecting the 
 probability of their adopting one rather than the other must be considered 
 as merged in the agreement. In a contract of this kind, it is obvious 
 that a specific performance is the only adequate remedy. The use of the 
 
 ' Kemble v. Kean, 6 Sim. 333. Do ' Buxton v. Lister, 3 Atk. 387. 
 
 Eiv,afln61i v. Corsetti, 4 Paige, 264. Kim- * 8 Kent's Com. 467. 
 
 berly v. Jennings, 6 Sim. 840. ' Western R. E. Corporation v. Bab- 
 
 " Turnival V. Crew, 3 Atk. 83. cook, 6 Metoalf, 846. 
 
Ch. 4.] Contracts as to Land. 279 
 
 land, Tyhen the location is fixed, is absolutely essential to their franchise, 
 and a compensation in damages, in an action at law, would afford them 
 no relief.' 
 
 (3.) "We proceed now to the third class of cases, where equity decrees a 
 specific performance, viz. contracts reletting to real property. This class 
 embraces by far the most numerous instances in which the jurisdiction of 
 a court of equity is invoked, to enforce this peculiar remedy for the viola- 
 tion of contracts. With respect to the interference of the court to enforce 
 contracts specifically, relative to personal property, or to perform specifi- 
 cally personal acts, we have seen that the jurisdiction is not universal ; 
 and that peculiar circumstances must exist to call forth the remedial agen- 
 cy of the court ; the reason for which is, that, in general, a compensation 
 in damages is coextensive with the merits of the case. But it is other- 
 wise with respect to contracts relative to real estate. Here the jurisdici- 
 tion to enforce performance is universal, not because of the real n9,ture of 
 the land, but because damages at law, which must be calculated upon the 
 general money value of land, may not be a complete remedy to a pur- 
 chaser, to whom the land may have a peculiar and special value.^ 
 
 The cases in which equity grants specific performance of contracts rel- 
 ative to land, may be considered under two heads ; first, contracts by 
 parol within the statute of frauds, and second, contracts in writing not 
 within the statute. 
 
 Although it be true as a general maxim that equity follows the law, 
 yet there are numerous cases where relief will be granted by a court of 
 equity in enforcing contracts upon which no action for damages could be 
 maintained at law. This happens when the party seeking relief has 
 failed, without fault or unreasonable delay, to perform literally the terms 
 of the contract, either in point of time, or other immaterial circumstance. 
 The strict performance which the law requires of a plaintiff, of the parts 
 of -the contract on his part, operates sometimes oppressively. Thus, for 
 example, performance or an offer to perform at the day, even where time 
 is not of the essence of the contract, is indispensable to the maintenance 
 of an action at law ; but affords no conclusive objection to relief in a court 
 of equity. 
 
 Again, as the interposition of courts of equity is in some respects dis- 
 cretionary, they will not enforce a specific performance in every case 
 where an action at law to recover damages might be maintained. If there 
 
 ' Western E. E. Corporation v. Bab- ' Adderly v. Dixon, 1 Sim. & Stu. 607. 
 cook, 6 Metcalf, 346. 
 
280 Specific Performance. [Ch. 4. 
 
 be circumstances whicli render a specific performance inequitable ; as, for 
 instance, if the title of the vendor -n-ho seeks relief be involved in diffi- 
 culties ; or if, in any case, the party seeking aid has conducted unfairly ; 
 if the consideration be grossly inadequate ; if the agreement were obtained 
 by fraud, or misrepresentation ; by surprise, mistake or undue advantage ; 
 if it be a hard or an unconscionable agreement ; if its performance will in- 
 volve the violation of law or public policy ; or if the circumstances under 
 which it was made, have so far changed that it would be unconscientious 
 to enforce it ; equity in all these, and the like cases, leaves the parties to 
 their remedy at law.' 
 
 But, as has been stated in this chapter already, if the contract relative 
 to real property is in its nature and circumstances unobjectionable, it is 
 as much a matter of course for a court of equity to decree a specific per- 
 formance, when the contract is in writing, and is certain and fair in all 
 its parts, and is for an adequate consideration, and is capable of being 
 performed, as it is for a court of law to give damages for the breach of it ; 
 what those objections are, have in part been considered, and will be again 
 brought to our notice. 
 
 We will now consider, in the first place, under what circumstances a 
 specific performance will be decreed of contracts respecting land, which 
 come within the purview of the statute of frauds. The English stat- 
 ute of frauds (29 Charles 2d, ch. 3) was substantially enacted in this 
 state in 1787, (1 R. L. 75,) and it has been pretty generally adopted in this 
 country. Some slight changes were made at the revision in 1830, and, 
 as now in force, the enactments are as follows : "No estate or interest in 
 lands, other than leases for a term not exceeding one year, nor any trust 
 or power, over or concerning lands, or in any manner relating thereto, 
 shall hereafter be created, granted, assigned, surrendered or declared, un- 
 less by act or operation of law, or by a deed or conveyance in writing, 
 subscribed by the party creating, grafting, assigning, surrendering or 
 declaring the same, or by his lawful agent, thereunto authorized by ivri- 
 ting.'" § 8 : " Every contract for the leasing for a longer period than ono 
 year, or for the sale of any lands, or any interest in lands, shall be void, 
 unless the contract, or some note or memorandum thereof, expressing the 
 consideration, be in writing, and be subscribed by the party, by whom 
 the lease or sale is to be made." 
 
 ' Seymour v. Delanoy, S Oowen, 445. 652. Taylor v. Longworth, 14 Pet. K. 
 
 6 J. Oh. K. 222. Hall v. "Warren, 9 Ves. 172. King v. Hamilton, 4 id. 829. Pratt 
 
 608. The Duke of Bedford v. The Trus- v. Adams, 7 Paige, 615. 
 
 tees of the British Museum, 2 Myl. & Z. " 2 E. S. 134, § 6. 
 
Ch. 4.] Contracts as to Land. 281 
 
 " In the following cases, every agreement shall be void, unless such 
 agreement, or some note or memorandum thereof, expressing the consid- 
 eration, be in wi'iting, and subscribed by the party to be charged there- 
 with. 1. Every agreement that, by its terms, is not to be performed 
 within one year from the making thereof; 2. Every special promise to 
 answer for the debt, default, or miscarriage of another person. 3. Every 
 agreement, promise, or undertaking, made upon consideration of marriage, 
 except mutual promises to marry.'" By the act concerning uses and 
 trusts, all resulting trusts are abolished except where the alienee named 
 in the conveyance shall have taken the same as an absolute conveyance, in 
 his own name, without the consent or knowledge of the person paying the 
 consideration, or where such alienee, in violation of some trust, shall have 
 purchased the lands so conveyed, with moneys belonging to another.' The 
 statute, however, in order to prevent frauds, upholds a resulting trust in 
 favor of the creditors of the party by whom the consideration money is 
 paid, to the extent that may be necessary to satisfy their just demands.' 
 
 The policy of the law in thus requiring certain contracts, and espe- 
 cially those relating to real estate, to be reduced to writing and subscribed 
 by the party to be charged, is founded in wisdom. The common law had 
 forbidden a resort to parol evidence to vary, contradict or explain a writ- 
 ten instrument, for reasons founded on the fallibility of memory.* The 
 same reasons exist in relation to the proof of the entire contract ; and 
 hence, in relation to cases within the statute, unless there be some cir- 
 cumstances which remove the danger against which the statute was in- 
 tended to guard, or some new equity arises in favor of their execution, 
 parol contracts relative to real estate cannot be enforced. Before the 
 statute of frauds, it has been shown by learned writers, that courts of 
 equity were not in the habit of enforcing specifically parol contracts for 
 the sale of real estate, unless the same were confessed in the answer, or, 
 they had been partly performed.^ 
 
 It is not upon any assumed power of dispensation, that courts of equity 
 entertain jurisdiction, and compel the performance of agreements within 
 the statute of frauds, and for the breach of which no action would lie at 
 law. Courts of equity, as well as courts of law, are alike bound by the 
 statute. But whenever they intervene to enforce contracts, not made in 
 conformity to the statute, they do so, not out of disregard to the act, but 
 for the purpose of administering equities which exist in subordination to 
 
 ' 2 R. S. 135, § 2. '1 Phil. Ev. 661. 
 
 ' 1 R. 8. 728, § 53. ' Sugden's Vendors, ch. 4, § 2, pp. 107, 
 
 »Id. §§51, 62. 108. Greenl. Ev. § 262. 
 
 Eq. Juk. 36 
 
282 Specific Performance. [CL4. 
 
 its spirit, and in no respect inconsistent with its policy, or when the par- 
 ties themselves have waived its protection. 
 
 The modification of legal rules, which occur the most frequently in ad- 
 ndnistering the equity of specific performance, are those where parol 
 contracts relative to land are enforced on the ground that they have 
 already been performed in part ; in disregarding tif?ie as of exclusive im- 
 portance ; and of allowing a conveyance with compensation for defects. 
 To these may be added the further rule, that where a parol contract is 
 definitely stated in the bill, and admitted in the answer, and the statute 
 is not urged as a bar, a specific performance will be enforced. 
 
 In the first place, when, the answer allows the bargain to be complete, ' 
 and does not insist on any fraud, there can be no danger of perjury. If 
 the agreement be specifically set forth in the complaint, and admitted in 
 the answer, there can be no objection to the decree for a specific per- 
 formance.' Whatever may be the rule elsewhere, there can be no doubt 
 that in this state, under the code, the defendant, unless he chooses to de- 
 mur, can be compelled to answer whether the agreement set forth in 
 the complaint was ever made or not.'' And if the answer merely refrains 
 from controverting the matters set forth in the complaint, those matters 
 are taken as true for the purpose of the suit.' 
 
 Under the former practice of courts of equity, the statute of frauds 
 might have been plead to a bill for the specific performance of an agree- 
 ment. If it appeared on the face of the bill that the agreement was 
 within the statute of frauds, and no sufiicient equity was set up entitling 
 the complainant to a decree for a specific performance, the objection might 
 properly be taken by demurrer. And, in either case, the defendant, 
 instead of pleading or demurring, might have answered, and insisted in 
 his answer, on the protection of the statute.* But, it is believed, that 
 under the code, .this latter mode cannot now be adopted. The defendant 
 must either demur to the complaint, if enough is not stated therein to 
 entitle the complainant to the relief prayed, or he must set up in his 
 answer the facts which constitute his defense, in ordinary and concise lan- 
 guage, without repetition, unless he rests his defense upon the denial of 
 the material allegations of the complaint.' 
 
 There are three grounds on which the plaintiff, when an agreement 
 by parol for the sale of land is admitted in the answer, may be well 
 entitled to the relief prayed ; 1st, the admission of the agreement, by the 
 
 ' 1 Fonb. Eq. B. 1, oh. 8, § 8, note d. * Cozine v. Graham, 2 Paige, l^V. Har- 
 
 • Code of 1852, §§ 156, 143, 149. _ ris v. Kniokerbaoker, 6 Wend. 638. 
 
 • Code, § 168. ■ » Code, §§ 149, 148. 
 
Ch. 4.] Part Performance. 283 
 
 defendant, takes the case out of the mischief against which the statute 
 ■was intended to guard ; 2d, the agreement, although originally by parol, 
 is now reduced to writing, and subscribed by the party in his sworn 
 answer ; and 3d, the defendant, by admitting the agreement, and not 
 insisting on the statute, either by answer or demurrer, may be taten aa 
 having waived it, upon the well known maxim, quilibet renunciare po- 
 test juri pro se introducto} A man may, on principle, as well renounce 
 the benefit of the statute of frauds as a defense, as the statute of limita- 
 tions, or a discharge in bankruptcy. 
 
 But though the admission of the agreement be a sufiScient ground on 
 which to found a decree for specific performance, yet the agreement so 
 admitted must correspond with the contract set forth in the bill, or a 
 specific performance will not be decreed.^ If the contract admitted in the 
 answer varies in a manner essentially affecting the contract, relief can- 
 not be granted. But if the variation in the terms does not enter into the 
 substance of the contract, a decree will be made.' Thus, where the bill 
 alleged that the contract sought to be enforced, required the purchase 
 money to be paid in seven annual installments with interest annually^ 
 from the date of the contract, and the answer wholly denied that interest 
 was reserved by the contract, although it admitted that the purchase 
 money was to be paid in seven annual installments, it was held that the 
 admission in the answer did not entitle the complainant to the specific 
 performance of the agreement set out in the bill. The variance was too 
 far material to be disregarded.* In such case, if the plaintiff wishes to 
 avail himself of the agreement confessed by the answer, he should amend 
 his complaint so as to conform to it.' 
 
 It is a well settled doctrine of courts of equity, that a parol contract 
 for the conveyance of real estate, void by the statute of frauds, will, if 
 partly executed by the party seeking relief, be specifically enforced. The 
 principle in this class of cases is, that if one of the contracting parties 
 induces the other so to act, that if the contract be abandoned, he cannot 
 be restored to his former position, the contract must be considered as per- 
 fected in equitv and a refusal to complete it at law, is in the nature of a 
 fraud.' 
 
 » 1 Fonb. Eq. B. 1, oh. 3, § 8. Broom's ' Byrne v. Eomaine, 2 Edw. Oh. K. 445. 
 
 Maxims, 546. Harris v. Kniokerbaoker, " Newton v. Swazy, 8 N. H. 9. Annan 
 
 5 Wend. 638. v. Merrit, 13 Conn. 478. Pugh v. Good, 
 
 " Harris v. Knickbacker, 5 Wend. 638. 3 Watts & Serg. 56. Harris v. Knicker- 
 
 ' M- backer, 6 Wend. 638. Parkhurst v. Van 
 
 * H. Cortland, 14 J. E. 15. Tilton v. Tilton, 
 
284 • Specific Performance. [Ch. 4. 
 
 But though this principle be well established, as a general rule, the 
 application of it to particular cases is not free from difficulty. At an 
 early day part payment of the purchase money was thought to be an act 
 of part performance, taking the case out of the operation of the statute.' 
 This has been overruled by later cases.' A part payment does not place 
 the party in a condition in which he cannot be restored to what he has 
 lost, because he can obtain compensation in a court of law. The statute 
 of frauds, moreover, by making special provision for a part payment on 
 the sale of goods, and no corresponding provision on the sale of real es- 
 tate, seems to imply that a partial payment in the latter case does not 
 take the case out of the statute.^ The foregoing remarks apply to a case 
 of pdrtial payinent of the consideration. But if the whole purchase 
 money be paid by the vendee and accepted by the vendor, it would seem, 
 on principle, that the latter should be compelled to execute the contract. 
 An entire performance by either party, raises an equity in his favor to a 
 corresponding performance by the other party. It is a waiver of all ob- 
 objection to the contract ; and the party who has thus accepted a per- 
 formance, cannot withhold an execution on his part, without being guilty 
 of a fraud.* 
 
 In one case the vice chancellor of the first circuit, after remarking that 
 the payment of the consideration was not in general deemed such a part 
 performance as to relieve a parol contract from the operation of the stat- 
 ■ ute, took a distinction between a payment in money, and a payment in 
 labor and services. In the former case, as the re-payment would place 
 the parties in the same situation in which they were before, he thought 
 the payment should not be treated as an act of part performance ; whereas 
 in the latter, as the value of the labor and services were uncertain', and 
 could not be measured by any certain standard, and it was thus out of 
 
 9 N. H. 386. 1 Fonb. Ett. B. 1, ch. 8, § 8, ' Pierce v. Nichols, 1 Paige, 244. 
 
 notes a, b. Philips v. Thompson, 1 J. Rhodes v. Ehodes, 3 Sand. Oh. E. 279. 
 Ch. E. 131. German v. Machin, 6 Paige, The rules stated in the text are snp- 
 
 288. Lowry v. Tew, 8 Barb. Oh. R. 407. posed to be law in Few-York and most 
 
 ' Laoon v. Mertins, 3 Atk. 4. Main v. of the states. In Massachusetts, jnris- 
 
 Meibourhe, 4 Vesey, 720. 1 Bridgman's diction to enforce performance of a parol 
 
 Digest, 62, § 412. "Wetmore v. White, contract for the sale of land, when there 
 
 2 Oai. Oas. in Error, 109. 1 Fonb. Eq. has been a part performance, or a full 
 
 B. 1, ch. 3, § 8, note e. performance has been declined^ on the 
 
 = Sugden's Vendors, oh. 3, § 3, 107-112. ground that it is not conferred by the 
 
 Olinan v. Oooke, 1 Sob. & Lefr. 25, 40, statute of that state, vesting the supreme 
 
 41. Ooles V. Trecothick, 9 Ves. 234, 242. court with chancery powers. Brooks v. 
 
 = Compare 2 E. S. 185, § 8, with § 3 "Wheelock, 11 Pick. 489. 
 on. p. .136. 
 
Ch. 4.] Part Performance. 285 
 
 the power of tlie other party to restore the party who had rendered the 
 services to the same condition he was in before the services were rendered, 
 he thought the case was clearly within the rule which governs the court 
 in decreeing the specific performance of contracts.' But this distinction 
 is not founded in principle. Whether the purchase price of real estate be 
 money, or services to be rendered in taking care of a sick person, during 
 his lifetime, as in Rhodes v. Rhodes, the result is precisely the same, 
 when the entire services have been performed, as when, in the other case, 
 the money has been paid. The contract is, in both cases, fulfilled by the 
 purchaser. 
 
 The act of part performance which raises an equity in favor of the party 
 to a complete performance, should be an act unequivocal in its character, 
 and be done solely with reference to the agreements being carried into 
 full effect. Thus, where the purchaser takes possession of the lands sold 
 by virtue of the agreement, with the assent of the vendor, a court of equi- 
 ty will decree a specific performance ; and, especially, if improvements on 
 the premises be made at the expense of the party thus taking possession, 
 on the faith of the fulfillment of the agreement.* 
 
 The doctrine on this subject was thus expounded by Chancellor Wal- 
 worth in a recent case :' " The principle upon which courts of equity 
 hold that a part performance of a parol agreement is sufficient to take a 
 case out of the statute of frauds, is that a party who has permitted 
 another to perform acts on the faith of an agreement, shall not be allowed 
 to insist that the agreement is invalid, because it was not in writing, and 
 that he is entitled to treat those acts as if the agreement, in compliance 
 with which they were performed, had not been made. In other words, 
 upon the ground of fraud in refusing to execute the parol agreement after 
 a part performance thereof by the other party, and where he cannot be 
 placed in the same situation that he was in before such part performance 
 by him. Taking possession under a parol agreement, and in compliance 
 with the provisions of such agreement, accompanied with other acts which 
 cannot be recalled so as to place the party taking possession in the same 
 situation that he was in before, has always been held to take such agree- 
 ment out of the operation of the statute of frauds." 
 
 The party who goes into possession of premises under a contract to 
 purchase, is at law a tenant at will to the owner of the legal title. On 
 refusing to comply with the agreement, he becomes at once a trespasser, 
 
 ' Khodes v. Ehodes, Sandf. Ch. 279, " Lowry v. Tew, 8 Barb. Oh. R. 413. 
 
 284. "Wetmore v. White 2 Gaines' Oas. in Er- 
 
 " Parkhnrst v. Van Cortland, 14 J. K. ror, 87. Foxcraftv. Lister, 2 Vern 456. 
 15. 1 Fonb.Eq.B. 1, oh, 3, §9. 
 
286 Specific Performance. [Ch. 4. 
 
 not entitled to notice to quit, and liable to be turned off by an ejectment.' 
 But if he is in under a written agreement, made by the owner, to sell and 
 convey the premises to him, or under a parol agreement which has been 
 BO far consummated as to entitle him to a specific performance, he is in 
 equity considered as the owner of that title for which he contracted, 
 and which the vendor is able to give him.^ 
 
 To entitle a party to take the case out of the statute, on the ground of 
 part performance of the contract, he must make out by clear and satis- 
 factory proof the existence of the contract, as laid in his bill, and the act 
 of part performance must be of the identical contract set up by him. It 
 is not enough that the act is evidence of some agreement, but it must be 
 unequivocal and satisfactory evidence of the particular agreement charged 
 in the bill.^ Whether the agreement be in writing or by parol, it should, 
 in order to entitle the party to a specific performance of it, be certain in 
 its terms and mutual in its character.' 
 
 The wisdom and policy of the rule, allowing part performance of a pa- 
 rol contract to take the case out of the statute of frauds, have been often 
 questioned.' In cases where the contract is not admitted by the answer, 
 the trial of the cause is attended with all the evils which the statute was in- 
 tended to prevent. On one occasion, the chancellor observed, that the 
 beneficial provisions of the statute of frauds have been sufficiently broken 
 in upon already ; and the doctrine of part performance should not be ex- 
 tended to new cases which do not come clearly within the equitable prin- 
 ciples of previous decisions.' 
 
 The general rule in equity is the same as at law, that parol evidence is 
 inadmissible to contradict, vary or explain the terms of a written con- 
 tract, except in an action to reform it. A contract cannot rest partly in 
 writing and partly in parol. What was said at the time of making the 
 contract and all antecedent conversations, are merged in the written 
 contract.' 
 
 There is a settled distinction between the case of a vendor coming into 
 a court of equity to compel a vendee to performance, and of a vendee 
 resorting to equity to compel a vendor to perform. In the first case, if 
 
 ' Smith V. Stewart, 6 J. E. 46, 49. ' German v. Machin, 6 Paige, 293. 
 
 " Lowi-y V. Tew, 8 Barb. Ch. R. 414. Cooth v. Jaoltson, 6 Ves. 27. 
 
 ' Philips V. Thompson, 1 J. Oh. R. 131. ' 1 Phil. Evi 561, 567. 0. & H. Notes, 
 
 Parkhurst v. Van Cortland, 14 J. R. 15. 1467. Adams v. Wilson,- 12 Mete. 135. 
 
 * German v. Matohin, 6 Paige, 288. Parkhurst v. Van Cortland, 1 J. Ch. B. 
 
 ' Lindsay v. Lynch, 2 Sch. & Lefr. 4, 283. 8. 0. in error, 14 J. K. 15. 
 6, 7. Forster v. Hale, 8 Ves. 712, 713. 
 
CL 4.] Part Performance. 287 
 
 the vendor cannot make out a title, as to part of the subject matter of 
 the contract, equity ■will not compel the vendee to perform the contract 
 ■pro tanto. But where a vendee seeks a specific execution of an agree- 
 ment, there is much greater reason for affording him the aid of the court, 
 when he is desirous of taking the part to which a title can be made.' 
 
 In cases where the application for relief has come from the vendee, the 
 courts have not been inclined to avoid the exercise of jurisdiction, if the 
 case could be reasonably brought within the range of previous determi- 
 nations. In a recent case in England, in a suit for the specific perform- 
 ance of a parol agreement for a lease of a farm to be granted by the 
 defendant to the plaintiff, it was alleged in the bill that by the terms of 
 the agreement the plaintiff was to drain the land at his own expense, 
 and was to lay down a certain arable field in pasture. The plaintiff 
 entered upon the farm shortly after the agreement was made, and expend- 
 ed a considerable sum in drainage and repairs, and also laid down the 
 field in pasture. That field was subsequently severed from the farm, 
 a,nd an abatement of the rent was made in respect of it. The vice chan- 
 cellor was of opinion, upon the facts, that so much of the agreement set 
 up in the bill as related to the laying down of the field in pasture was 
 not proved, and consequently the agreement as proved differed from 
 that alleged, and he dismissed the bill.' On. appeal to the lord chancel- 
 lor. Lord Cottingham was of opinion, upon the facts, that there was sufii- 
 cient evidence of the agreement, and he reversed the decision of the court 
 below, and referred it to a master to settle a lease pursuant to the terms 
 of the agreement. In pronouncing his judgment, his lordship indicated 
 a willingness rather to extend than to contract, the jurisdiction. " Courts 
 of equity," he observed, " exercise their jurisdiction in decreeing specific ^ 
 performance of verbal agreements, where there has been part performance, 
 for the purpose of preventing the great injustice which would arise from 
 permitting the party to escape from the engagements he has entered into 
 upon the ground of the statute of frauds, after the other party to the 
 contract has, upon the faith of such engagement, expended his money, or 
 otherwise acted in execution of the agreement. Under such circumstan- 
 ces, the court will struggle to prevent such injustice from being effected ; 
 and with that object, it has at the hearing, when the plaintiff has failed 
 to establish the precise terms of the agreement, endeavored to collect' 
 what the terms of it really were."' This case did not adopt any new 
 principle. It merely applied to conflicting evidence liberal and enlight- 
 
 ' Waters v. Travis, 9 J. K. 450. Suth- ' Mnndy v. Joliff, 9 Sim. 413. 
 orland v. Briggs, 1 Hare, 34. » Mundy v. Joliff, 5 Myl. & Oraig, 177. 
 
288 Specific Pkrfobmance. [Ch. 4. 
 
 ened views, without seeking to introduce any new rule with reference to 
 this important branch of equity jurisprudence. 
 
 On bills for a specific performance of an agreement in writing, the de- 
 fendant has frequently been admitted to show, by parol proof, a mistake 
 in such agreement, and by that means to destroy the equity of the bill. 
 The relief on such bills is said to rest in discretion, and if the defendant 
 can show surprise or mistake, a decree for specific performance of such an 
 agreement would be unjust.' In one case Lord Hardwicke said, an omis- 
 sion in an agreement by mistake, stood upon the same ground as an omis- 
 sion occasioned by fraud.^ 
 
 With respect to this class of cases, the propriety of showing an omis- 
 sion, or mistake, or surprise, by a defendant in answer to a bill for a spe- 
 cific performance, does not seem to have been doubted. But there is 
 another class of cases where the object of the parol proof is to correct 
 mistakes in agreements in aid of the plaintiff's bill for specific perform- 
 ance. Lord Hardwicke, in Joynes v. Statham, (supra,) seemed to think it 
 might be done. But such proof has been sometimes rejected, when intro- 
 duced on the part of the plaintiff to sustain his bill.' Chancellor Kent, 
 on the contrary, held, that a mistake might thus be corrected on the 
 application of the plaintiff, and the agreement so corrected enforced 
 specifically, and that there would be a most deplorable failure of justice, 
 if the mistake could only be shown and corrected when set up by a defend- 
 ant to rebut an equity.' Why, he justly asks, should not the party ag- 
 grieved by a mistake in the agreement, have relief as well when he is 
 plaintiff, as when he is defendant ? It cannot make any difference, in the 
 reasonableness and justice of the remedy, whether the mistake was to the 
 prejudice of one party or the other. If the court has a competent juris- 
 diction to correct such mistakes, (and of that there is no doubt,) the agree- 
 ment when corrected and made to speak the real sense of the parties 
 ought to be enforced, as well as any other agreement perfect in the first 
 instance. It ought to have the same eflScacy, and be entitled to the same 
 protection, when made accurate under the decree of the court, as when 
 made accurate by the act of the parties.' And Chancellor Walworth, in 
 
 ' Gillespie v. Moon, 2 J. Ch. R. 598. " Higginson v. Clowes, 15 Ves. 516. 
 
 Joynes v. Statham, 3 Atk. 388. The ■Woolam v. Hearne, 7 Ves. 211. Clinan 
 
 Marquis of Townsond v. Stangroora, 6 v. Oooke, 1 Sch. & Lef. 39. 
 Ves. 828. Eamabottom v. Gordon, 1 » Gillespie v. Moon, 2 J. Ch. E. 699. 
 
 Ves. &Beame, 165. Clowes v. Higgin- Keisselbrack v. Livingston, 4 id. 148. 
 
 son, 1 id. 524. Gooding v. M'Allister, 9 How. Pr. E. 12S. 
 
 "Joynes v. Statham, 3 Atk. 388. ' Keisselbrack v. Livingston, 4 J. Oh. K. 
 
 Eamsbottom v. Goi-don, 1 Ves. & B. 168. 148. 
 
CL 4.] As TO Personal Property. 289 
 
 a later case, assumed that tte court had jurisdiction, on a bill for a spe- 
 cific performance, if it was properly framed, to correct such error in the 
 agreement as was the result of fraud, accident or mistake,'and decree its 
 execution in the corrected form.' 
 
 It sometimes happens that a written agreement, subsequently to its 
 execution, is varied by a parol contract between the parties. In such 
 cases, it is said that the variation, to be available as a defense, must be 
 accompanied by such a part performance as would enable the court to 
 enforce it if it were an original, independent agreement f subject, never- 
 theless, to the doctrine of equity, which allows parties by their acts to 
 vary the original agreement in respect of matters relating to title and the 
 time for completion.' 
 
 A parol rescission of a written contract may be set up in bar to a bill 
 for a specific performance.* 
 
 In like manner a party may, by parol, waive his right to call for a spe- 
 cific performance of his contract ; but such waiver must be clearly and 
 distinctly proved.' So a party may, voluntarily and by parol, abandon 
 an agreement in writing for the sale or exchange of lands, with the assent 
 of the other party, because he is not in a situation to perform the same ; 
 and if he does so, he cannot afterwards demand a specific performance.' 
 
 It was said by Lord Macclesfield, that in cases of fraud equity would 
 relieve against the words of the statute ; and he put a case, and said, if 
 one agreement in writing should be prepared and drawn, and another 
 fraudulently and secretly brought in, and executed in lieu of the former, 
 in this or such like cases of fraud, equity would relieve ]' but where there 
 is no fraud, only relying upon the honor, word or promise of the defend- 
 ant, the statute making these promises void, equity will not interfere.^ 
 
 The court will not decree a specific performance, on the application of 
 the vendor, when he cannot make a clear and undoubted title to the prem- 
 ises, unless the purchase has been made at the risk of the vendee as to 
 the title,' or the latter has agreed to accept such title as the vendor was 
 able to give. In general, however, it is not necessary for the complainant 
 to show that he was able to give a good title at the time of making the 
 agrd^e^ to sell, or even at the commencement of the suit. It will be 
 8ufl5cienfc»if he can give a perfect title at the time of the decree, or at the 
 
 ' Ooles V. Brown, 10 Paige, 585. Id. ' M'Corkle v. Brown, 9 Sm. & Marsh. 
 
 842. 167. 
 
 ' Price V. Dyer, 17 Ves. 356. • Baldwin v. Salter, 8 Paige, 473. 
 
 " Dart on Vendora, 488. ' Vicountess Montacnte v. Maxwell, 1 
 
 * Walker v. Whateley, 2 Humphrey, T. P. "Wms. 620. 
 
 B. 119. England v. Jackson, 3 id. 684. > Id. 
 
 Eq. J0R. 37 
 
290 Specific Peeformance. [CL 4, 
 
 time when the master makes his report.' And this, too, is a good answer 
 to the bill of the vendee to rescind the contract. For though the vendor 
 may not have been able to convey at the time he made the contract, or 
 at a later day when the vendee called for performance, yet, if he can give 
 a good title at the time of the decree, the complainant must accept it ; 
 but in that case he will be entitled to an equitable compensation for the 
 delay.'' 
 
 The vendor may maintain a bill for a specific performance, though it 
 consists only in the payment of money ; especially when the contract is 
 lost, and the bill is for discovery as well as relief.* In such case, when 
 the bill charges that the contract, which was lost, was executed by the 
 complainant and the vendee, and sets forth its contents, and the defendant 
 denies the exeution of any svLch contract, but states that the contract was 
 executed by himself only, and points out no other difference, it seems he 
 admits the contents of the agreement as charged in the bill. 
 
 It has already been said that equity will sometimes decree the execu- 
 tion of an agreement, with a compensation for defects. The vendor, it 
 has been shown, when he seeks relief against the vendee, must himself 
 be able to perform the contract on his own part.'' A mere trifling, imma- 
 terial defect, will not defeat a decree. If the defendant obtain by a perform- 
 ance the same title which he expected to obtain when he made the con- 
 tract, a performance will be decreed.^ Thus, when the land sold was 
 subject to a fine for alienation, of which the vendee was aware, but which 
 the scrivener omitted to mention in the.agreement, the court in decreeing 
 performance refused to require compensation to be made. 
 
 So it is no objection to the vendor's title that the conveyance under 
 which he holds reserves minerals and water privileges, if there be no 
 such things on the land. A reservation of a peppercorn or other nominal 
 rent, or a nominal fine reserved on alienation, is no objection to the 
 title ; but a pre-emptive right of purchase reserved is.' 
 
 But where the vendor has contracted to convey a title to a tract of land, 
 the title to a part ijf which fails, the vendee may claim a specific per- 
 
 ' Brown v. Haff, 5 Paige, 241. Lang- » Pleree v. Nichols, 1 Paige7%4J. y 
 
 ford v. Pitt, 2 P. Wms. 630. Olute v. » Orary v. Smith, 2 Comst. 60, 64. 
 
 Robinson, 2 J. E. 595. Coffin v. Oooper, * Brown v. Haff, 5 Paige, '2S5, and see 
 
 ■14 Ves. 206. Seymour v. Delanoy, 8 references, ante. 
 
 Oowen, 445. Dutch Church v. Mott, 7 ' Winne v. Reynolds, 6 Paige, 407. 
 
 Paige, 77. ■ Id. 
 
Oh. 4.] Compensation for Defects. 291 
 
 formance as to the residue of the land, with compensation in damages for 
 the part the vendor is unable to convey.' 
 
 Where the vendor never had title to the land contracted to be sold, or 
 where he has conveyed the same subsequent to the making of the contract, 
 80 that he has not the power specifically to perform his contract, and that 
 fact is known to the vendee, the latter cannot file a bill in equity, for the 
 mere purpose of obtaining compensation in damages for the non-perform- 
 ance of the contract by the vendor ; but he must resort to his remedy at 
 law for that purpose.^ But where the defendant deprives himself of the 
 power to perform his contract specifically, during the pendency of a- suit 
 against him, to compel such performance, the court will retain the suit ; 
 and will award to the complainant a compensation in damages, for the 
 non-performance of the contract by the defendant.^ The principle on 
 which this is based, is to prevent a multiplicity of suits. Besides, the 
 plaintiff, who had a good cause of action when his bill was filed, ought 
 not to be turned out of court, by the mere act of the defendant, without 
 either the relief for which he originally filed his bill, or a compensation 
 in lieu of it.' 
 
 While a court of equity does not entertain jurisdiction where the sole 
 object of the bill is to obtain a compensation for the breach of a contract, 
 except when the contract is of equitable cognizance merely, it would seem 
 that if the complainant filed his bill in good faith, supposing at the time 
 he instituted his suit, that a specific performance could be granted, and 
 not knowing that the defendant had previously parted with the title, the 
 bill may be retained for compensation." 
 
 The plaintiff who seeks for the specific performance of an agreement 
 must show that he has performed, or offered to perform on his part, the acts 
 which formed the consideration of the alleged underta,king on the part of 
 the defendant.* For if the plaintiff will not, or through negligence can- 
 not perform the whole on his side, he has no title in equity to the perform- 
 ance of the other party, since such performance could not be mutual.'' 
 
 It is upon similar reasoning, that where the plaintiff has shown a back- 
 wardness in performing his part of the contract, equity will hot decree a 
 Specific performance in his favor, especially if circumstances are altered.* 
 The rule which withholds the aid of a court of equity from a party who 
 has been guilty of negligence in performing his own part of the agree- 
 
 ' Mo8S V. Elmendorf, 11 Paige, 277. ' Woodward v. Harris, 2 Barb. 439. 
 
 " Id. Hatch V. Cobb, 4 J. Oh. E. 659. ' Id. 
 Eempshall v. Stone, 5 id. 193, " Colson v. Thompson, 2 Wheats 326'. 
 
 ' Moss v. Elmendorf,, 11 Paige, 288. ' 1 Fonb. Eqi. B. 1,. cb. 6. §2. 
 
 •Id. 
 
292 Specific Performance. [Ch. 4. 
 
 ment, is founded in the soundest principles of policy and justice. Its 
 tendency is to uphold good faith and punctuality in dealing. The notion 
 that a party may disregard his own part of a contract, and obtain relief 
 in equity from the penalty of his gross negligence, is injurious to good 
 morals, to a lively sense of obligation, to the sanctity of contracts, and 
 to the character of the court. The maxim, vigilantibus non dormienti- 
 bus, leges subveniunt, is not without good sense in its general bearing- 
 but it has peculiar force and pertinence in a case where specific perform- 
 ance of agreements is sought. In a country where the value of real 
 estate is fluctuating, and where competition, enterprise and speculation 
 are constantly changing the relative importance of different kinds of 
 business, as well as the relative value of property, parties ought not to 
 be permitted to lie by and speculate on their own contracts, fulfilling them 
 if advantageous, or disregarding them if their interest seems to lead in 
 that direction.' Accordingly, if the plaintiff has been guilty of gross 
 laches, or if he has not applied for relief until after a long lapse of time, un- 
 explained by equitable circumstances, his bill will be di&missed. A court 
 of equity will not administer relief to gross negligence any more than a. 
 court of law." The party, to entitle himself to the aid of the court, for 
 the specific execution of a contract, should show himself ready and desi- 
 rous to perform on his part.^ And if he voluntary abandons a written 
 agreement, with the assent of the other party, though the abandonment 
 be by parol, he cannot afterwards demand a specific performance* Nor 
 will equity interpose if the agreement has not been insisted on for many 
 years.^ 
 
 The question whether time is of the essence of the contract, may arise 
 as well in relation to personal as to real property. A court of equity, in 
 holding that time is not of the essence of a contract, proceeds upon the 
 principle that, having regard to the nature of the subject, time is immate- 
 rial to the value, and is urged only by way of pretense or evasion. But 
 that principle can have no application to a case of a contract for the de- 
 livery of the scrip of government stock, where from the nature of the 
 subject the value is exposed to daily variation, and a contract which 
 was disadvantageous to the plaintiff on one day, might be highly advan- 
 
 ' Smedberg v. Moore, 26 Wend. 2i7. ' King v. Hamilton, 4 Peters, 329. 
 
 Beneidiot v. Lynch, 1 J. Ch. E. 375, 870, * Baldwin v. Salter,-. 8 Paige, 473. 
 
 879. Watts V. Waddle, 6 Peters, 889. 1 Fonb. Eq. B.l, ch. 6, § 2,.note E. Go- 
 
 ' Brashier v. Gratz, 6 Wheat. 528. man v. Salisbury, 2 Vern. 240. Botsfori 
 
 Pratt V. Carroll, 8 Cranch, 471. King v. Burr, 2 J. Ch. R. 416. . 
 
 T. Hamiltsn, 4 Paters, 811, 82». ' PoweU v. Hankey, 2 P. Wms. 83; 
 
Oh. 4.] EuLE AS TO Time. 293 
 
 tageous on another. In such cases, time may be of the essence of tho 
 contract." 
 
 In contracts relative to real estate, it is not always an indispensable 
 requisite, to . the granting of relief in equity, that the party seeking re- 
 lief has not himself performed precisely at the day. If he has not been 
 guilty of gross neglect, if his laches can be reasonably explained, and be 
 shown to be consistent with fairness and good faith, if the delay can bo 
 compensated to the other party, and time has not been made material by 
 the contract of the parties, a court of equity will still- afford relief 
 
 Where, in a contract for the sale of lands, the purchase money is to be 
 paid or secured, and the conveyance executed on a particular day, and 
 neither party performs, or offers to perform on that day, neither can 
 maintain an action at law upon the contract. In such case, however, 
 either party may claim specific performance in equity, on making tho 
 oifer incumbent on him in the bill ; and the failure to make a tender, be- 
 fore the commencement of the suit, will only affect the question of costs.^ 
 
 These principles result from the doctrine that time is not, in general, 
 the essence of the contract, and may in a court of equity, under certain 
 circumstances, be disregarded. A court of equity frequently decrees 
 specific performance, when the action at law has been lost by the default 
 of the very party seeking the specific performance, if it be, notwithstand- 
 ing, conscientious that the agreement should be performed ; as in cases 
 where the terms of the agreement have not been strictly performed on 
 the part of the party seeking specific performance, and to sustain an ac- 
 tion at law performance must be averred according to the very terms of 
 the contract. Nothing but specific execution of the contract, so far as it 
 can be executed, will do justice in such a case.^ And again, in another 
 case,' Lord Redesdale said : The courts, in all cases of contracts for es- 
 tates in land, have been in the habit of relieving, where the party, from 
 his own neglect, had suffered a lapse of time, and from that, or other 
 circumstances, could not maintain an action to recover damages at law. 
 And even where nothing exists to prevent his suing at law, so many 
 things are necessary to enable him to recover at law, that the formalities 
 alone render it very inconvenient and hazardous so to proceed ; nor could, 
 in many cases, the legal remedy be adequate to the demands of justice. 
 Courts of equity have, therefore, enforced contracts specifically, where no' 
 action for damages could be maintained, for at law the party plaintiff 
 t 
 
 ' Doloret v. Kothschild, 1 Sun. & Stn. ' Davis v. Hone, 2 Schoales & Lefr. 
 590. 347. 
 
 ' Stevenson v. Maxwell, 2 Coznst. 409, * Lennon v. Napper, id. 684. 
 41S. 
 
294 Specific Performance. [Ch. 4, 
 
 must have strictly performed his part, and the inconvenience of insisting 
 upon that, in all cases, was sufficient to require the interference of courts 
 of equity. They dispense with that, which would make compliance with 
 what the law requires oppressive ; and in various cases of such contracts, 
 they are in the constant habit of relieving the man who has acted fairly, 
 though negligently. Thus, in the case of an estate sold at auction, where 
 there is a condition to perfect the deposit, if the purchase be not com- 
 pleted within a certain time; yet the court is in the constant habit of 
 relieving against the lapse of time. And so in the case of mortgages, and 
 in many instances, relief is given against mere lapse of time, when lapse 
 of time is not essential to the substance of the contract. 
 
 There are some cases in which courts will not decree performance ac- 
 cording to the letter, where from change of circumstances, mistake or 
 misapprehension, it would be unconscientious so to do. In such a case, 
 the court may so modify the agreement as to do justice, as far as circum- 
 stances will permit ; and refuse specific execution, unless the party seek- 
 ing it will comply with such modification as justice requires.' 
 
 On the principle that time is not of the essence of a contract for the 
 payment of money, upon a contract for the sale of real estate, it has 
 been held that a provision in a contract that, in case the vendee makes 
 default in any of his payments, he shall forfeit all previous pay- 
 ments, and give up peaceable possession, affords no bar to a decree for 
 a specific performance.' 
 
 But the parties may make time the essence of the contract ; and they 
 do so when a condition precedent is required to be performed by a certain 
 day, before the vesting of an estate. In such case the vendor, after default 
 of payment by the vendee, may convey to a third person, and no decree for a 
 specific performance will be sustained, either against such subsequent pur 
 chaser or his vendor.^ So where the agreement was that the vendee should 
 erect a house on the premises by a certain day, or on that day pay a certain 
 sum of money as the first payment of the purchase money, and he did nei- 
 ther ; and when it was further agreed, that if the vendee failed to perform 
 ■ any of his covenants at the time or times limited, all his rights and interest 
 in law or in equity in the premises should cease, and th^ vendor be dis 
 charged ; and it was expressly stipulated that no deed should be given 
 until the vendee performed on his part ; it was held that the parties had 
 
 • The Mechanics Bank v. Lynn, 1 Pe- ' Hatch v. Oobb, 4 J. Oh. E. 559. 
 ters, 883. Kempshall v. Stone, 5 id. 193. 
 
 ' Edgerton V. Peckham, 11 Paige, 852. 
 
CL 4.] Doubtful Title. 295 
 
 made time essential, and a bill filed by tlie vendee for a specific perform- 
 ance, after such failure, was dismissed.' 
 
 The rule applies equally to both parties, when time has been made 
 material. Neither party can call upon a court of equity for a specific 
 performance, unless he has shown himself ready, desirous, prompt and 
 eager.2 But though time be made an essential ingredient in the con- 
 tract, a strict compliance with it may be waived by either party, either 
 by words or acts. The party seeking performance must show that he 
 has used due diligence, or if not, that his negligence arose from a just 
 cause, or has been acquiesced in.^ 
 
 In cases where time is made essential, it is not necessary for the 
 party resisting performance to show that he has sustained any particular 
 injury or inconvenience by the delay of the plaintiff. It is sufficient if 
 he has not acquiesced in it, but considered it as releasing him.* 
 
 Equity never compels a vendee to accept the conveyance of a doubt- 
 ful title.^ If there be a defect in the paper title of the vendor, it seems 
 that if his possession under color of title has been sufficient to establish 
 a good adverse possession, it is sufficient to be the ground of a decree.' 
 If he is able to give a good title at the time of the decree, it has already 
 been shown that that will suffice.' 
 
 The remedial agency of the court is often invoked by the vendor in 
 the case of the sale of real estate at auction, and when the objection is 
 that there has been a misdescription of the property. On this subject it 
 has been held that if the title be good, and the description of it be substan- 
 tially true, though in a slight degree defective or variant, a specific per- 
 formance of the contract will be decreed," Thus, where two adjoining lots 
 of land were sold together, in one parcel, for one price, and on one of the 
 lots were buildings which projected two feet on the other lot, it was held 
 by Chancellor Kent that this was not so material a defect in the subject, 
 or variation from the terms of the description at the sale, as would en- 
 title the purchaser to abandon the contract. But as the projection was 
 not so obviously visible as to conclude the purchaser, if he had exercised 
 ordinary vigilance, and as the vendor, in the advertisement of sale, de- 
 
 ' "Wells V. Smith, 7 Paige, 22. Edger- ' Seymour v. De Lancey, 1 Hopk. 436. 
 
 ton, v. Peckham, 11 id. 364. Benedict Hepburn v. Auld, 6 Cranch, 263. 
 
 V. Lynch, 1 J. Oh. E. 370. ' Seymour v. De Lancey, 1 Hopk. 436. 
 
 ' MUward v. Thanet, 5 Ves. 720, note. ' Ante. See also Hepburn v. Auld, 5 
 
 Guest V. Homfray, 5 Ves. 818. Oranch, 262. 
 
 = Benedict v. Lynch, 1 J. Oh. Pv. 379. ' King v. Bardean, 6 J. Oh. K. 88. 
 
 'Id. 
 
296 Specific Perpormanck. [CL 4. 
 
 scribed the buildings as being on one of the lots, the purchaser was en- 
 titled to compensation for any diminution of value arising from the 
 projection upon the other lot, to be deducted from the price.' Courts of 
 equity look to the substance of the contract, and do not allow small mat- 
 ters of variance or deficiency to defeat a claim in other respects founded in 
 equity, especially when a full compensation can be made for the deficiency.' 
 
 On the other hand, if there be a substantial defect, either in the title 
 or description of the property, unknown to the vendee, and in regard to 
 which he was not put upon inquiry, the court will not compel the pur- 
 chaser to complete the purchase, and accept compensation for defects, 
 though they will allow him at his election to compel the vendor to execute 
 the bargain, as far as in his power, and make compensation for deficiency.^ 
 While courts of equity will not permit the forms of law to be instru- 
 ments of injustice, and will not allow advantage to be taken of a failure 
 to perform literally the terms of a contract, they will, nevertheless, see 
 that the purchaser shall not be compelled to take what he never intended 
 to buy ; that he shall not be required to complete a bargain, unless it can 
 be carried into eflfect substantially as made.' 
 
 According to the settled practice in this state, which is different from 
 that in England in that respect, on an executory contract for the sale of 
 real estate, the party who is t.o give the deed has the same drawn at his 
 own expense, but he is not bound to prepare it until the party who is to 
 receive it is in a situation rightfully to demand it. And after such de- 
 mand, the grantor is allowed a reasonable time for drawing and execut- 
 ing the deed ; and he is then to hold it ready for delivery when called 
 for, and is in no default until a second demand is made. The purchaser, 
 nevertheless, may prepare the deed and tender it for execution, and then 
 only one demand is necessary.' Indeed, the necessity for a second de- 
 mand of a deed, in any case, after waiting a reasonable time, was strongly 
 questioned by Gridley, J., in a recent case, if it was not directly overruled.' 
 
 ' King V. Bardeau, 6 J. E. 38. ' Hill v. Buckly, 17 Vos. 895. Paton 
 
 " 1 Fonb. Eq. B. 1, ch. 6, § 2, note E. v. Eogers, 1 Ves. & Beame, 351. Watera 
 
 Calcraft v. Roebuck, 1 Ves. jr. 221. Cal- v. Travis, 9 J. K. 465. 
 
 verlyv. "Williams, 1 Ves. jr. 211. Dyer V. * Halsey v. Grant, 18 Ves. 76, 77. 
 
 Hargrave, 10 Ves. 506. Guest v. Hom- Portman v. Mill, 2 Bus. 570 ; and see 
 
 fray, 5 id. 818. Halsey v. Grant, 18 id. 78.. cases under note f), supra. 
 
 Drew v. Hanson, 6 id. 675. Hanbery v. ' Wells v. Smith, 2 Edw. Ch. R. 81, 
 
 Litchfield, 2 Myl. & K. 629. Hornblow affirmed by chancellor, 7 Paige, 73. Ful- 
 
 V. Shirley, 18 Ves. 81. Osborne v. Bre- ler v. Hubbard, 6 Oowen, 1. Connelly 
 
 mar, 1 Desaus, 586. Wainwright v. Reid, v. Pierce, 7 "Wend. 129. 
 
 id. 573. • Carpenter v. Brown, 6 Barb. 147. 
 
Ch. 4.] Of Contracts not mtithin the Statute. 297 
 
 When a party gives notice to the plaintiff that he will not complete 
 the contract on his part and abandons the agreement and refuses fo per- 
 form, such refusal dispenses with the necessity of an offer, or a readiness 
 to perform on the part of the plaintiff, as it shows that such a step would 
 be an idle ceremony.' Even a strictly legal tender may be waived by 
 an absolute refusal to receive the money, on the principle that no man is 
 bound to perform a nugatory act. An offer and readiness to perform, on 
 the part of the plaintiff, is enough ; especially when the defendant refuses 
 to convey at all. Even the performance of a condition precedent need not 
 be averred, where performance was waived or prevented by the party to 
 be benefited by it." 
 
 After what has been said, it scarcely need be added, that if a plaintiff 
 has failed to perform his part of an agreement, or if it has become im- 
 possible to perform it, he cannot insist on a specific performance.' 
 
 But if the plaintiff has performed so much of his part of the agree- 
 ment that he cannot be put in statu quo, and is in no default for not per- 
 forming the residue, or is prevented from completing it, by the default of 
 the defendant, he is entitled to a specific performance.* 
 
 In discussing the doctrine with respect to enforcing specifically con- 
 tracts in relation to real estate, which are within the statute of frauds, wo 
 have necessarily anticipated much that has reference to contracts not 
 within the statute. The authorities which are used to illustrate the prin- 
 ciples which govern in the former case, often contain the doctrine which 
 governs in the latter. If an agreement for the sale of real estate be made 
 by proper parties, able and .willing to contract, and be in the forms pre- 
 scribed bylaw, and be certain and defined, equal, fair and just iji all its 
 ■parts, it will in general be decreed to be specifically executed.^ The cir- 
 cumstances under which such agreements will be enforced, and the grounds 
 of objection which may be taken, growing out of a want of mutuality, in- 
 adequacy of consideration, mistake, hardship, surprise and the like, 
 have been already considered, and need- not be repeated. It is scarcely 
 necessary to add, to what has already been said, that if the contract could 
 be enforced between the original parties, it can be enforced by and against 
 
 ' North V. Pepper, 21 Wend. 633. Oar- ' Lord Walpole v. Lord Oxford, 3 Vea. 
 
 pentep v. Brown, 6 Barb. 151. 420. Buxton v. Lister, 3 Atk. 380. Un- 
 
 ' Bellinger v. Kitts, 6 Barb. 281. derwood v. Hitchoox, 1 Ves. 279. Sey- 
 
 ' 1 Mad. Ch. Pr. 331. mour v. Delanoy, 3 Cowen, 445. S. 0. 
 
 'Id. 1 Fonb. Eq. B. 1, ch. 6, §3, 6 J. Ch. E. 222. St John v. Benedict, 
 
 id. 111. 
 Eq. Jur. 33 
 
298 Specific Performakce. [Gh. 4. 
 
 those ttIio stand in legal privity with them, as the heir, devisee or pur- 
 chaser, with notice. 
 
 A conveyance for a valuable consideration made bona fide to a third 
 person, without notice of the agreement, and before it has been carried 
 into effect by a deed, will pass the legal title to such grantee.' In such 
 case the remedy is at law, and not in equity, because the party is dis- 
 abled after such conveyance to execute the agreement in specie." But 
 should the vendor, while the contract remains executory, and while he is 
 under an equitable obligation to enforce it, convey the premises to a 
 third person, with notice of the contract, and of his liability, the pur- 
 chaser could enforce the contract by an action against the vendor and his 
 vendee. The last purchaser, in such case takes the estate, incumbered 
 with the equitable right of the original contractor to a completion of his 
 bargain.' The chancellor said, in Champion v. Brown, (supra,) that if 
 A. enters into a contract to sell land to B., and afterwards refuses to 
 perform his contract, and sells the land to C. for a valuable considera- 
 tion, B. may, by bill, compel the purchaser to convey to him, provided he 
 be chargeable with notice at the time of his purchase of B.'s equitable 
 title under the agreement. (Lord Macclesfield in Atcherly v. Vernon, 10 
 Mod. 518. Winged v. Lofebury, 2 Eq. Cases Ab. 32, pi. 43. Taylor 
 V. Stibbert, 2 Ves. jun. 437. Daniels v. Da\dson, 16 Ves. 249 ; 17 id, 
 433, S. C.) The rule that affects the purchaser is just as plain as that 
 which would entitle the vendee to a specific performance against the 
 vendor. If he be a purchaser with notice, he is liable to the same 
 equity, stands in his place, and is bound to do that which the person he 
 represents should be bound by the decree. The purchaser from the 
 vendor takes the estate subject to the charge, and so does a purchaser 
 from the vendee, and he is equally, responsible in respect to the estate. 
 The vendor cannot make him personally liable for the purchase money, 
 but the estate is liable ; and if he be a purchaser with notice, it is the 
 same thing, whether the estate had or had not been actually conveyed 
 by the vendor. 
 
 The general principle on which this doctrine rests is, that equity looks 
 upon things agreed to be done as actually performed, as money covenanted 
 to be laid out in land to be in fact real estate, which shall descend to the 
 heir.< It considers land directed to be sold and converted into money 
 as money, and money directed to be employed in the purchase of land 
 
 ' Waters v. Travis, 9 J. E. 463. Bc^d v. Vanderkemp et al. 1 Barb. Cb. 
 
 ' Hatch V. Oobb, 4 J. Oh. K. 559. R. 278. 
 
 ' Champion v. Brown, 6 M. 402, 403. * 1 Fonb. Eq. B. 1, ch. 6, § 9. 
 
Ch. 4.J Money treated as Land 299 
 
 as land.' The rule must be understood with this qualification, that 
 things are not considered in that light in favor of every bddy, hut only 
 for those who have a right to pray it may be done ;' and that it does not 
 apply, if the special purpose for which the money is directed to be laid 
 out in land, or the land to be converted into money, fail.' It also con- 
 siders the vendor, from the time the contract for the sale of real estate is 
 consummated, as the trustee with respect to the land for the vendee, and 
 the vendee, as to the purchase money, the trustee for the vendor, and 
 that the latter has a lien on the land for the same.* 
 
 When money is agreed by articles to be laid out in land, the party 
 who would have the sole interest in the land when bought may elect to 
 have the money paid to him, and that it shall not be laid out in land.* 
 And the rule is the same, in case of a bequest of money to be laid out in 
 the purchase of land.* 
 
 It is observable, that when money is agreed and direeted to be laid 
 out in land, to be settled to particular uses, it will, while uninvested, be 
 considered as land in regard to succession, and accordingly go to the heir 
 of the person entitled to the inheritance in the land to be purchased, in 
 the same manner as the land, if purchased, would have done ;' until 
 some person competent to dispose of the lands^ under the limitation of 
 the uses, shall clearly manifest and decide his intention to terminate the 
 trust, and to dispose o^ or have the universal fund again considered as 
 mere personal property.' 
 
 And where, a sum of money is given by the will of a testator, to bo 
 laid out in the purchase of lands, or of lands in a particular county, and 
 after they are bought, to be settled upon such and such persons, if a bill 
 is brought in equity the constant course of the court is to direct a pur-, 
 chase, and the produce of the money to go as the land itself, till pur- 
 chased.' So, if there be a direction by will to purchase a particiflar estate, 
 which is swallowed up by an inundation ; or, suppose the will was to 
 purchase an estate in such a county, and it cannot be procured, the 
 money will not go to the executors, but in such manner as the rents and 
 profits, when the land is purchased.'" 
 
 • Craig V. Leslie, 3 Wheat. 563, S77. ' Benson v. Benson, 1 P. Wms. 130. 
 " Crabtree v. Bramble, 3 Atk. 680, and " Seeley v. Jago, id. 389. 
 
 n. 1. Guidot v. Guidot, id. 254, and n. 1. ' Att'y Gen. v. Milner, 3 Atk. 114. 
 
 • 1 Fonb. Eq. B. 1, ch. 6, § 9, note v. ' Earlom v. Saunders, Amb. 242. Brad- 
 Ante, 47, 48. ish v. Gee, id. 329. 
 
 • Champion v. Brown, 6 J. Ch. E. 403. ° Earl of Coventry v. Coventry, 3'Atk.. 
 Green v. Smith, 1 Atk. 572. Makreth v. 269. 
 
 Symmons, 15 Ves. 329. Swartont v. Id. 
 Burr, 1 Barb. S. C. E. 499. 
 
300 Specific Performance. [Oh. 4. 
 
 The foregoing is sufficient to illustrate the general principles by which 
 courts of equity are governed in decreeing the specific execution of 
 agreements. The authorities to- show that money agreed or directed to 
 be laid out. in land is to be considered as land, are very numerous, and 
 the whole subject is very thoroughly discussed ilti many of the cases.' 
 
 SECTION II. 
 
 or THE RE-EXECUTION AND COREECTION OF AGREEMENTS. 
 
 We will proceed now to the consideration of the doctrine of re-execu- 
 tion and correction of agreements, and of other matters not already dis- 
 cussed. The two first precede a decree for a specific performance, and the 
 last results from an inability to perform the agreement, either in whole 
 or in part. 
 
 The jurisdiction for re-execution and other similar relief arises, not 
 only on a destruction or concealment by the defendant, but also on an 
 accidental destruction or loss, when the missing instrument is such, that 
 its non-production would perpetuate a defect of title, or would preclude 
 the plaintiff from recovering at law.' This subject was considered, to some 
 extent, under the head of accident and mistake. And it has already 
 been incidentally alluded to in this chapter. And it has been shown that 
 Chancellor Kent, on several occasions, entertained bills to reform an agree- 
 ment, and to carry it into execution in its corrected state.^ Similar doc- 
 trine has been held elsewhere. Thus, in North Carolina, it has been 
 held that equity relieves against mistakes, as well as against frauds, in a 
 deed or contract in writing ; and parol evidence is admissible to prove 
 the mistake, though it is denied in the answer ; and this, when the plain- 
 tiff seeks relief, affirmatively, on the ground of mistake. As when the 
 owner of two adjoining tracts of land having sold one of them, in de- 
 scribing the metes and bounds, in a deed executed to the purchaser, by 
 mistake included both tracts : the proof of the mistake being perfectly 
 
 ' 1 Fonb. Eq. B. 1, ch. 6, § 9, note t. ' Adams' Eq. 166. 
 
 Craig V. Leslie, 3 Wheat. 577, opinion of 'Gillespie v. Moon, 2 J. Ch. R. 585. 
 
 WashiDgton, J., who has elaborately Keisselbrack v. Livingston, 4 id. 148. 
 
 treated the whole subject. See ante, p. 280. 
 
Gh. 4.] Vendor's Lien. 801 
 
 satisfactory, the vendee was decreed to conyey to the vendor the tract of 
 land not intended to be conveyed.' 
 
 "Where the vendee contracted for the.purchase of land and took pos- 
 session, but neglected to pay the purchase money for nine months after 
 it fell due, during all which time the vendor held the bond for the pur- 
 chase money, and did not offer to surrender it, but recognized the con- 
 tract as still subsisting, it was held, that having allowed the contract to 
 subsist after the default, the vendor could not put an end to it, without 
 a previous formal and reasonable notice to the purchaser, to come for- 
 ward and fulfill it, or he would not hold himself bound. And it was held, 
 that upon such purchaser paying the money, he could demand a specific 
 performance from the vendor, or call for the legal title from a person who 
 had purchased with full notice of the contract.^ 
 
 It often happens that one or the other of the parties to a contract, for 
 the sale of land, has assigned his right and title to a third person. In 
 such case, if the assignee would entitle himself to a specific performance 
 thereof, he must do every thing which his assignor would have been 
 bound to do, if the contract had not been assigned ; unless the person 
 against whom the specific performance is claimed has relinciuished his 
 rights in favor of the assignee.' 
 
 A vendor of real estate has a lien upon the same for the unpaid pur- 
 chase money. And when a decree is made for a specific performance of 
 a contract of sale, the court will, if the vendor asks for it, direct a pro- 
 vision to be inserted in the decree, that if the vendee refuses to accept 
 the conveyance and pay the purchase money, the premises may be sold 
 by a master for the purpose of raising such purchase money ; and that if 
 the proceeds of the sale are insufficient to pay the amount due, the ven- 
 dee shall pay the deficiency. Or the court may decree that if the ven- 
 dee does not pay the purchase money, within such time as shall be 
 directed by the court, he shall be foreclosed, or barred of his right to a 
 specific performance of the contract.'' 
 
 It has been shown that when the vendor has disabled himself to per- 
 form in whole or in part, the bill may, in some cases, be retained for 
 compensation. But when a vendor, under a contract to sell to the plain- 
 tiff, conveyed to a third person with notice of the plaintiff's rights, a bill 
 filed against the vendor and his vendee with notice in the alternative, for 
 a specific performance or compensation, can be sustained only in the 
 
 » Newson v. Bufferlow, 1 Dev. Eq. 379. ' Jones v. Lyndes, 7 Paige, 801. 
 Wesley v. Thomas, 6 Har. & John. 24. * Clark v. Hall. id. 383. i 
 
 » PaUs v. Carpenter, 1 Dev. & Batt, 287. 
 
302 Specific Performance. [Ch. 4. 
 
 former character. The subsequent purchaser, having admitted that he 
 purchased with notice of the plaintiff's contract, is liable to a decree for 
 a specific performance. The plaintiff is thus entitled to the land, with 
 the improvements, if any, which the purchaser put thereon, upon the 
 payment of the original purchase money and interest.' 
 
 The doctrine with respect to compensation, on bills for specific per- 
 formance, will be more fully treated in a subsequent section.' 
 
 SECTION III. 
 
 OF EESCISSION, CANCELLATION, AND THE DELIVEEING UP OF AGREEMENTS. 
 
 The rescission, cancellation or delivering up of agreements, securities or 
 deeds, is the converse of a specific performance. The equity to relief, in 
 each case, originates in the fraud which, but for the interposition of the 
 court, would be perpetrated upon the complaining party. The relief, how- 
 ever, in each case, cannot be demanded, as of strict right, but is granted 
 or refused by courts of equity upon their own notions of what is reason- 
 able and just, under all the surrounding circumstances.^ And though, 
 in strictness, a specific performance and a cancellation of an agreement 
 be the opposites of each other, yet a court of equity is not bound to de- 
 cree a specific performance in every case, where it will not set aside the 
 contract ; nor to set aside every contract that it will not specifically per- 
 form.* And it is generally agreed that the relief, by delivering up a 
 contract, requires a stronger case, than to resist a specific performance.' 
 
 Nor will relief be granted universally, even though the defendant be 
 in the wrong.* The plaintiff must also show a title to relief, beyond the 
 mere technical breach of duty, which would confer a right of action at 
 law. The court will, as has been seen already, decree a specific perform- 
 ance on the application of a vendee, either with or without compensa- 
 tion, when it would deny the like relief on the application of the vendor. 
 And the court will, in like manner, order an agreement to be canceled, 
 or set aside on the application of one party, and deny similar relief at 
 
 ' Boyd Vi Yanderkemp, 1 Barb. Ch. E. ' Id. M'Leod v. Drnmmond, 17 Ves. 
 
 273. 167. 
 
 " See post, Sec. 4 of this Chapter. ° Savage v. Brobksopp, 18 Ves. 837. 
 
 ■ Mortlook v. Buller, 10 Ves. 292. • Hamilton v. Oummings, 1 J. Oh. R. 
 
 Tonb. Eq. B. 1, ch. 3, § 9, note i. 517. 
 
Ch. 4.] Rescission. Cancellation. 303 
 
 the instance of another.' The discretion -which courts of equity exer- 
 cise, in matters of this kind, is not a tnere ' arbitrary discretion, but is 
 a sound and reasonable discretion, and regulated upon grounds that make 
 it judicial.' The court often considers whether the relief prayed would 
 be attended -with hardship or not; or whether a superior or inferior 
 equity arises on the part of the person who comes for a specific perform- 
 ance.' And as it is a maxim of the court, that he who seeks equity must 
 , himself do equity, the court, in all cases, when the justice of the case 
 requires it, imposes such terms upon the party, to whom relief is granted, 
 as will fulfill the requirement of that maxim. A convenient illustration 
 of this principle is found in the practice of the court, whei\ not controlled 
 by the statute, of refusing to entertain a bill, either for discovery or relief, 
 by the borrower or other person standing in legal privity with him, on 
 the ground of usury, without an offer to pay the sum actually loaned, 
 with lawful interest.* 
 
 Although, in cases where an instrument is absolutely void, either by 
 statute or by the principles of the common law, no action can be main- 
 tained thereon, and the other party has a perfect defense in a court of 
 law, yet it has long been held that courts of equity will interpose, either 
 by injunction, or by its plenary powers of setting aside, or canceling the 
 agreement.% The principle upon which relief seems to be granted in such 
 cases is, upon the ground that equity will often interpose and prevent an 
 injury which is impending over the complaining party. This is the doc- 
 trine on which bills, Q,uia Timet, are sustained ; and it is thus expounded 
 by an able writer upon equity jurisprudence :' "When a person is appre- 
 hensive of being subjected to a future inconvenience, probable or even 
 possible to happen, or be occasioned by the neglect, inadvertence or cul- 
 pability of another ; or when any property is bequeathed to one, after 
 the death of another in existence, and which the former is desirous of 
 having secured safely for his use, against the effects of any accident 
 which may happen to it previous to the accruing of his possession ; in 
 either of these cases a bill of the above description may be exhibited, 
 which, in the one instance, will quiet the party's apprehension of a future 
 inconvenience, by removing the causes which may lead to it ; and, in the 
 
 ' Cook V. Clayworth, 18 Ves. 12. Tapper v. Powell, id. 439. Livingston 
 
 ' Seymour v. DelaDcy, 3 Cowen, 505, v. Harris, 3 Paige, 528. S. 0. on appeal, 
 
 per Savage, Oh. J. White v. Damon, 7 11 'Wend. 329. Post v. Dart, 8 Paige, 
 
 Ves. 35. Buckle v. Mitchel, 18 id. 111. 639. S. 0. 7 Hill, 391, on appeal. Pan- 
 
 " Goring v. Nash, 3 Atk. 188. Pinch ning v. Dunham, 5 J. Oh. R. 142 et seq. 
 V. Earl of Wlnchelsea, 1 P. Wms. 277. ' ' 1 Mad. Oh. Pr. 178. See post, Chap. 
 
 ' Rogers v. Eathbun, 1 J. Ch. R. 367. V, Sec. 3, Of Bills Quia Timet. 
 
304 Specific Performance. [Ch. 4. 
 
 other, will secure for the use of the party the property, by compelling 
 the person in the present possession of it to guaranty the same by 
 proper security, against any subsequent disposition or willful destruction." 
 It is under the former branch of the definition that the remedies we are 
 considering are comprehended. The jurisdiction of a court of equity to 
 set aside deeds and other legal instruments, which are a cloud upon the 
 title to real estate, and to order them to be delivered up and canceled, 
 appears to be now fully established.' It will do so, though the instru- 
 ments be void at law as well as in equity. Much more, therefore, is the 
 party entitled to relief in this court, if he have a defense which is of a 
 purely equitable nature, and not available at law. So a person, who has 
 a perfect remedy at law, to recover for the breach of an agreement con- 
 nected with a note, if he cannot avail himself of it as a defense to an ac- 
 tion on the note, can come into a court of equity to have the note can- 
 celed, and to recover the balance, if any, which may be due to him.' 
 
 The cases in which equity relieves, by setting aside or canceling deeds, 
 bonds, or other securities, are when there has been actual fraud in the 
 party defendant, in obtaining the deed or security ; or constructive fraud 
 against public policy, and the plaintifi" is not a partaker in the fraud. It 
 will also interpose in some cases of constructive fraud when public policy 
 requires the agreement should not stand, though both parties have been 
 alike guilty.^ And there are other cases of constructive fraud where it 
 will relieve, if the parties do not stand i7i pari delicto. Many of these 
 cases have already been considered under the head of fraud, and need 
 not be repeated.* 
 
 But the court in general will leave the parties to the consequences of 
 their own act, and to the remedies afforded at law, if they stand in pari 
 delicto.^ Thus, after a verdict on a bond at law, equity will not relieve 
 against it, or the judgment thereon, upon the ground that the considera- 
 tion of it was an agreement by the defendant to cohabit with the plain- 
 tiff as his wife, and that she had violated that agreement.' Such agree- 
 ment is void at common law, and cannot be enforced either at law or 
 equity, nor will the court aid the obligor in getting relieved from it. 
 
 ' Petit V. Shepherd, 5 Paige, 501. « Lord St. John v. Lady St. John, 11 
 
 Ward v. Ward, 2 Hay. E. 226. Leigh v. Ves. 535. 
 
 Everhart's Executors, 4 Monroe's R. 380. ' Looinis v. Cline, 4 Barb. 453. 
 Hamilton v. Cummins, 1 J. Oh. R. 517. ' Bolt v. ISogers, 3 Paige, 154. 
 Apthorp v. Comstook, 2 Paige, 482. • Franco v. Bolton, 3 Ves. 368. Gray 
 
 Grover v. Hngell, 3 Kuss. Ch. E. 432. v. Mathias, 5 id. 280. 
 
 ' Reed v. The Bank of Newburgh, 1 
 Paige, 215. 
 
Ch. 4.] Delivering up Deeds, &c. 305 
 
 When a till is filed for the delivering up or cancellation of a deed, or 
 other instrument, on account of its being void, either by fraud, or as a 
 forgery, it was usual if the fraud be denied to award an issue, and direct 
 it to be tried by a jury. But it was nevertheless held, that it was dis- 
 cretionary with the court whether an issue should be directed or not.' 
 And it was well settled that the court might, if it pleased, retain the 
 cause and decide the matter of fact itself, without the intervention of a 
 jury, except on bills for a divorce, or an issue devisavit vel non. There 
 are numerous cases, says Chancellor Kent, in which a court of equity has 
 set aside conveyances from persons of weak or diseased intellects, with- 
 out referring the case to a jury ; and all such cases rest upon the exer- 
 cise of the undoubted jurisdiction and discretion of the court.'' On a bill 
 to deliver up a bill of exchange, improperly issued, where the testimony 
 was clear. Lord Loughborough refused to award an issue, and determined 
 the question of fact himself.' 
 
 But the present practice in New- York, under the constitution of 1846, 
 
 is to try the issue in the same manner as issues in actions at law are 
 
 , tried.' A feigned issue no longer exists, but the actual issue raised by 
 
 the parties must be tried by jury, unless the parties elect to have it tried 
 
 by the court or referee.' 
 
 It was, however, before the adoption of the constitution, the most usual 
 practice of the court to award an issue to try the validity of deeds, notes 
 or other instruments alleged to have been forged, or obtained by fraud, 
 or by undue influence, and the motion for a new trial, or for a judgment 
 founded on the verdict, was properly addressed to the court awarding 
 the issue.' The courts in this state in former years, before the constitu- 
 tion of 1846, awarded an issue to try the allegation of usury in a bond 
 and warrant of attorney, on which judgment had been obtained, the fact 
 of such usury being denied.' In like manner, they ordered an issue to 
 try whether the bond and warrant of attorney, on which judgment was 
 entered, was forged.' But the court was not in the habit of awarding an 
 issue where an application' was made to its equity powers for relief against 
 a judgment, and there was no conflicting evidence or question of credibility 
 
 ' Jervis V. White, 7 "Ves. 413. " Lansing v. Rnssell, 3 Barb. Ch. R. 
 
 ' Smith V. Carl, 5 J. Ch. R. 120. New- 325. S. 0. 13 Barb. 510. 
 
 man v. Mihier, 2 Ves. jr. 483. ' Starr v. Schuyler, 2 J. R. 139. "War- 
 
 ° M. dell V. Eden, 2 J. C. 258. Gilbert v. 
 
 • Constitution of 1846, art. 6, § 10. Eden, 2 id. 280. 
 
 • Code of Procedure," §§ 266, 270, 272. ' King v. Shaw, 3 J. R. 142. 
 Eq. J0H. 39 
 
306 Specific Performance. [Oh. 4. 
 
 involved.' Nor when a motion was made to set aside a release granted 
 in a cause pendente lite? 
 
 As the ground of relief by cancellation, or delivering up of deeds 
 and other agreements, is the danger that the rights of the complaining 
 party will be put at hazard, or a cloud be cast over his title, if the instru- 
 ment be suffered to remain, it was said by Chancellor Walworth, that 
 if the objection appear upon the face of the writing or proceedings, 
 through which the adverse party can alone claim any right to the com- 
 plainant's land, it is not in law such a cloud upon the complainant's title 
 as can authorize a court of equity to set aside or stay such proceedings.^ 
 Equity, in general, interferes only where the claim of the adverse party ia 
 valid upon the face of the instrument, or the proceedings sought to be set 
 aside ; as where the defendant has procured and put upon record a deed, 
 obtained from the complainant by fraud, or upon a usurious consideration, 
 which requires the establishment of extrinsic facts to show the supposed 
 conveyance to be inoperative and void. In such case, a use may, prima 
 facie, be made of the instrument by the defendant prejudicial to the com- 
 plainant. It thus creates a cloud upon his title which equity will re- 
 move.'' On the same principle, a bill will not be entertained to deliver 
 up a bill of exchange or bond, after an action has been brought and a 
 recovery of judgment thereon been had at law, and the amount received.^ 
 By such recovery the instrument is merged in the judgment, and there ■ 
 no longer exists any well founded danger that it will be again put in cir- 
 culation, or that the party will be subjected to any expense or trouble in 
 relation to the same. The record will show that the instrument is no 
 longer an available security. The case stands upon a different footing 
 from forged securities, or those which are void for fraud and the like, 
 where the invalidity of the instrument depends upon the proof of collateral 
 facts resting in the memory of witnesses. . 
 
 Chancellor Kent, on the contrary, at an early day, expressed the opinion 
 that the weight of authority, and the reason of the thing, were equally in 
 favor of the jurisdiction of the court, whether the instrument be or be not 
 void at law, or whether it be void from matter appearing on its face, or 
 from proof taken in the cause. And he thought the distinctions in this 
 respect were not well founded.^ It is every day's practice, he observed, 
 
 ' M'lnstry v. Thurston, 12 Wend. 222. Yes. 286. Bromley v. Holland, 7 id. 16, 
 
 ' Ferris v. Crawford, 2 Denio, 695. 20, 22. 
 
 " Van Doren v. Mayor &c. of N. Y., 9 * See foregoing cases. 
 Paige, 888. Simpson v. Lord Howden, " Threlfall v. Lunt, 7 Sim. 627. 
 8 Myl. & Oraig, 97. Gray v. Mathias, 5 ' Hamilton v. Oummings, 1 J. Oh. R. 
 
 522. 
 
Ch. 4.] Delivering up Dkeds, (fcc. 307 
 
 to order instruments to be delivered up, of which a bad use might be at- 
 tempted to be made at law, although they could not even there entitle the 
 holders to recover. It is indeed not very apparent, why a doubt should 
 have been started in some of the modem cases as to the general jurisdic- 
 tion of the court, when we consider the uniform tenure and language of 
 the more ancient decisions, and which do not appear to have turned upon 
 the distinction,*whether the instruments were or were not void at law. In 
 Whittingham v. Thornburgh, (2 Vern. 206,) and Goddart v. Garrett, (id. 
 269,) and De Costa v. Scandret, (2 P. Wms. 170,) policies of insurance, 
 procured by fraud, were ordered to be delivered up and canceled, though 
 the fraud was equally a defense at law. And in another case, (Law v. 
 Law, (Cases temp. Talbot, 140 ; 3 P. Wms. 391,) Lord Talbot ordered 
 a bond to be canceled, and charged the defendant with costs, without de- 
 ciding whether or not it was good at law. 
 
 It is quite clear that the cases on this subject cannot all be reconciled, 
 except by the general principle that the exercise of this power is to be 
 regulated by sound discretion, as the circumstances of the individual case 
 may dictate : and that the resort to equity, to be sustained, must be ex- 
 pedient, either because the instrument is liable to abuse from its nego- 
 tiable nature, or because the defense arising on its face may be difficult, or 
 uncertain at law, or from some other special circumstances peculiar to the 
 • case ; and rendering a resort to equity highly proper, and clear of all sus- 
 picion of any design to promote expense and litigation. If, however, the 
 defect appears on the bond itself, the interference of the court will still 
 depend on a question of expediency, and not on a question of jurisdiction.' 
 
 The delivering up of deeds and other instruments to the party entitled 
 to them, when they are improperly withheld, is an ancient head of equity 
 jurisprudence. The heirs at 'law or devisees, or any party standing in 
 legal privity with them, and who are entitled to the possession of the mu- 
 niments of their title, may maintain a bill for the delivery to them of such 
 title deeds.^ 
 
 It is true an action at law will lie for illegally withholding deeds or other 
 instruments in writing relating to the title of property ; but in such case 
 damages only can be recovered. Equity administers a better and more 
 efficient remedy, by requiring the delivery of the instrument to the party 
 to whom it belongs.^ 
 
 ' Hamilton v. Oummings, 1 J. Oh. E. v. Wise, 3 P. Wms. 396. Duncomb v. 
 
 623. Mayer, 8 Ves. 820. 
 
 " Harrison v. Southcote, 1 Atk. 639. ' Jackson v. Butler, 2 Atk. 306. Gray 
 
 Ford V. Peering, 1 Ves. jr. 72. Tanner v. Cookerell, id. 114. 
 
308 Specific Performance. [Ch. 4. 
 
 On the like principles, a remainderman, whose interest is expectant on 
 a mere tenancy for life, may obtain the aid of a court of equity for the 
 better security of bis title, to have the deeds and writings relative to the 
 estate, in the hands of tenant for life, taken from such custody and de- 
 posited in court. But where there are intervening estates between that 
 of the tena,nt for life and the plaintiif, and his interest is remote, the 
 court will not interfere in his behalf.' 
 
 It is no inconsiderable part of the duty of equity to prevent mischief." 
 Courts of law redress an injury after it has been perpetrated, by the in- 
 fliction of damages, the fear of which, indeed, no doubt greatly tends to 
 deter from the commission of wrong. Courts of equity, on the other hand, 
 anticipate the evil, and by a seasonable interposition of their authority, 
 prevent it. With a view to this object, bills quia timet are entertained, 
 and various evils are prevented by injunction, which will be more fully 
 discussed under the proper head. 
 
 On the same principle, courts of equity will decree the delivery up of 
 deeds, or of securities for the payment of money, upon which the defend- 
 ant ,might, against conscience, recover at law.^ 
 
 The Revised Statutes,^ Code of Procedure^ and Eules of the Supreme 
 Court,' have conferred upon the supreme court ample power to compel the 
 parties, to any suit pending therein, to produce and discover books, papers 
 and documents, in their possession or power, relating to the merits of any 
 such suit, or of any defense therein. This renders a resort to a court of 
 ,, equity, in cases within these legislative provisions, in a great many in- 
 stances unnecessary, but does not supersede the jurisdiction of courts of 
 equity, in any case, and much less in cases not covered by the statutes. 
 A similar legislative provision exists at this time in England.' 
 
 SECTION IV. 
 
 OF COMPENSATION AND DAMAGES. 
 
 We will now bring this chapter to a close, by a few additional remarks 
 on the subject of compensation and damages ; a branch of equitable relief 
 ■which is incidental, though not exclusively so, to bills for specific per- 
 
 ' Ivie V. Ivie, 1 Atk. 431. » Eules of Supreme Court, 8. 
 
 » 1 Fonb. Eq. B. 1, ch. 1, § 8, note y. ' 15 and 16 Vict. ch. 86. Fiott v. 
 
 ' Ryan v. Macmeth, 8 Bvo. Oh. E. 15. MuUins, 15 L. & E. E. S50. 16 Jurist, 
 
 « 2 E. S. 199, § 21 6t seq. 946. 
 
 »9ode,§388. 
 
Ch. 4.] Compensation and Damages. 809 
 
 formance. It has already been occasionally adverted to in discussing the 
 subject of' specific performance, and many of the adjudged cases on the 
 subject have already been brought to our notice. It has been stated, in 
 preceding pages, and may well be repeated, that ^Yhere the object of the 
 action is to recover damages alone, not connected with any peculiar equi- 
 table relief, the remedy is at law and not in equity.' The ground for the 
 interference of a court of equity does not, in such case, exist, because 
 there is no failure of the remedy at law. 
 
 But when the defendant, having entered into a contract to convey, sub- 
 sequently puts it out of his power to perform, specifically, the bill will be 
 retained, and an equivalent in damages awarded.'' This doctrine must 
 be understood with the qualification that the party puts it out of his 
 power to perform, after the commencement of the s^it. This seems to be 
 the view taken of the case of Denton v. Stewart, (supra,) by Lord Eldon, 
 and without which it cannot be supported.^ Except in very special cases, 
 it is not the course of proceeding in equity to file a bill for a specific 
 performance of an agreement ; praying in the alternative,, if it cannot be 
 performed, an issue, or an inquiry before the master, with a view to 
 damages. 
 
 The mode in which damages ar^ assessed in such cases, is either by 
 an issue to be tried by a jury, or by a reference to a master.' Under 
 the practice in this state, the damages may doubtless be assessed by a 
 jury, but the most convenient mode is by a reference. The same mode 
 of assessing damages is doubtless applicable where the compensation only 
 extends to the part wherein the defendant is unable to perform, the plain- 
 tiff being willing to accept such performance as the defendant is able to 
 make, with compensation for deficiency.' 
 
 Whatever may be the rule elsewhere, and it cannot be denied that 
 there is some conflict in the cases on the subject, a bill in equity will not 
 lie for compensation alone, except in some peculiar cases, nor will an 
 action for specific performance be retained for compensation, unless in 
 cases where the defendant has put it out of his power, after the com- 
 mencement of the suit, to fulfill the agreement in specie." In this state, 
 
 ' Boyd V. Vanderkemp, 1 Barb. Ch. R. Hatch v. Cobb, 4 J. Oh. K. 560. Eemp- 
 
 273.' Clifford v. Brooke, 13 Yes. 131. shall v. Stone, 5 id. 194. 
 
 ' Denton v. Stewart, cited 1 Fonb. Eq. * Woodcock V; Bennett, 1 Cowen, 755. 
 
 B. 1, ch. 1, § 8, z. Greenaway v. Adams, Philips v. Thompson, 1 J. Oh. E. 151. 
 
 12 Yes. 395. Philips v. Thompson, 1 J. » Hepburn v. Auld, 5 Cranch, 262. Pratt 
 
 Ch. E. 150. 'Woodoock Vy Bennett, 1 v. Law, 9 id. 492, 494. 
 
 Cowen, 711. ' Philips v. Thompson, 1 J. Ch. E. 151. 
 
 • Todd V. Gee, 17 Yes. 275, n., 278. 
 
310 Specific Performance. [Ch. 4. 
 
 the controversy upon these points is, under our present practice, of no 
 moment, and not worth the trouble of an examination of the authorities- 
 If the complaint contains a cause of action, it is immaterial whether it 
 be termed legal or equitable, whether it be for specific performance, or 
 for compensation, or for both together. If it be sustained by the admis- 
 sion of the defendant, or by the testimony in the cause, the plaintiff is 
 entitled to such relief as the nature of his claim and the justice ©f the 
 case require. 
 
 The question with respect to the right to compensation, is not confined 
 to cases where the plaintiff is the actor and prays for affirmative relief. 
 It sometimes arises in behalf of a defendant in resisting the claim of the 
 plaintiff, and is presented by way of set-off or recoupment. At common 
 law, whoever takes and holds possession of land, to which another has a 
 better title, whether he be a boncB fidei or a malm fidei possessor, is 
 liable to the true owner for all the rents and profits which he has received ; 
 but the disseizor, if he be a boncB fidei occupant, may recoupe the value 
 of the meliorations made by him against the claim for damages.' The 
 New- York revised statutes have regulated the right of the plaintiff to 
 mesne profits, consequent upon a recovery in an ejectment upon this 
 equitable principle, adopting, with some modifications, the law as it then 
 existed.* And the defendant is allowed to set off permanent improve- 
 ments made on the premises, to the amount of the plaintiff's claim.' 
 The action for mesne profits has always been deemed by the courts of 
 law as an equitable action, in which the defendant is to be allowed an 
 equitable defense.* The statute has limited the plaintiff's recovery to 
 the rents and profits for six years, in estimating which, the value of the 
 use by the defendant of any improvements made by him, shall not be 
 allowed to the plaintiff.' 
 
 In analogy to these principles, when industrial accessions have been 
 made to property, in good faith, by a person who has the legal title to 
 the property, so that the real owner is compelled to resort to a court of 
 equity to assert his equitable title to such property, the court acts upon 
 the civil law rule of natural equity, and compels the complainant to com- 
 pensate the adverse party for such industrial accessions, or improvements, 
 as a condition of granting th"e equitable relief asked for in the suit.' 
 
 The law does not deprive the legal owner of property of the natural 
 
 ' Green v. Riddle, 8 "Wheat. 1. Coul- " Id. § 49. Jackson v. Loomis, snpra. 
 
 ter's case, 5 Co. 30. Jackson v. Loomis, " Murray v. Gouverneur, 2 J. Cas. 438. 
 
 4 Cowen, 168. Putnam v. Ritchie, 6 ' 2 R. S. 811, § 49. 
 
 Paige, 404. " Putnam v. Ritchie, 6 Paige, 390. 
 
 '2R. 8. 310, §§44 to 53. 
 
Ch, 4.] Compensation and Damages. 311 
 
 accessions to it. It treats land as including not only the ground or soil, 
 bat every thing which is attached to the earth, whether by the course of 
 nature, as trees, herbage and water, or by the hand of man, as houses 
 and other buildings." He who owns the land, prima facie, is supposed 
 to own all the buildings upon it, and which are parcel of the freehold. 
 
 But the rule of natural equity appears to be different in regard to in- 
 dustrial accessions, or permanent improyements, made upon the property 
 of another by a bona fide possessor. By the rules of the civil law, the 
 possessor of the property of another, who had erected buildings or 
 made improvements thereon in good faith, supposing himself to be the 
 owner, was entitled to payment for such improvements, after deducting 
 from the value thereof a fair compensation for the rents or use of the 
 property during the time he occupied it." The Code Napoleon gives the 
 owner of the soil, upon which buildings and works have been made by 
 another, with his own materials, an election either to retain them, or to 
 oblige such third person to remove them at his own expense. If he 
 elects to retain them, he is bound to reimburse the other party for the 
 value of the materials and the price of the work, without regard to 
 the greater or less augmentation of value which the soil has . received. 
 If the buildings be erected by a party in good faith, the proprietor 
 recovering the. land shall not demand a demolition of the buildings, but 
 shall have his election, either to repay the value of the materials and 
 the price of the workmanship, or to reimburse a sum equal to the aug- 
 mented value of the estate.' The rule to this extent has not been 
 adopted in this country. The rule of natural equity is, however, con- 
 stantly acted upon by courts of equity when the legal title is in the person 
 who has made the improvements in good faith, and when the equitable 
 title is in another who is obliged to resort to equity for relief The court 
 in such case acts upon the principle, that he who comes as a complain- 
 ant to ask equity must himself be willing to do what is equitable.^ 
 
 Whether this principle sheuld be carried out in practice, in all cases, 
 to the extent that it exists in the civil law, may, perhaps, admit of doubt. 
 Chancellor Walworth, in Putnam v. Ritchie, said he had not been able 
 to find any case, either in this country or in England, wherein the court 
 of chancery had assumed jurisdiction to give relief to a tfomplainant, 
 who had made improvements upon land, the legal title to which was in 
 the defendant, where there had been neither fraud nor acquiescence on 
 
 ' Oo. Litt. 4, a. 3 Kent's Oom. 401. 655. Bell's Law of Scotland, 130, art. 
 " Putnam v. Eitohie, 6 Paige, 404. 538. Eutherf. Inst. 71. 
 Puff. B. 4, ch. 6, §- 6. Code Nap. art. ' Code Nap. § 555, 
 
 ' Putnam v. Eitchie, 6 Paige, 405. 
 
312 Specific Performance. [Ch. 4 
 
 the part of the latter, after he had knowledge of his legal rights. And 
 he expressed the apprehension that the introduction of that principle 
 into the law of the court, in its application to future cases, might be pro- 
 ductive of more injury than benefit.' On the other hand, Mr. Justice 
 Story, whose labors have so much enlightened the world on the subject 
 of equity jurisprudence, inclines to the adoption of the civil law rule.* 
 In speaking of permanent meliorations and improvements made by a 
 bona fide possessor, and of the propriety of sustaining a bill in his favor 
 for relief against the true owner, he says, " that the denial of all com- 
 pensation to such bona fide possessor in such a case, where he has mani- 
 festly added to the permanent value of an estate by his meliorations and 
 improvements, without the slightest suspicion of any infirmity in his 
 own title, is contrary to the first principles of equity. Take," says he, 
 " the case of a vacant lot in a city, where a bona fide purchaser builds a 
 house thereon, enhancing the value of the estate to ten times the orignal 
 value of the land, under a title apparently perfect and complete ; is it 
 reasonable or just that, in such a case, the true owner should recover 
 and possess the whole, without any compensation whatever to the bona 
 fide purchaser? To me it seems manifestly unjust and inequitable, thus 
 to appropriate to one man the property and money of another, who is in 
 no default." 
 
 But, however strong and persuasive may be the equity of the civil 
 law rule, the courts of this state have not gone to that extent in cases of 
 this kind. They have contented themselves' with the application of it 
 in a qualified manner, by requiring a party who comes into equity for 
 relief, against a party who has expended his money in the erection of 
 permanent improvements on the estate, to do equity himself as a con- 
 dition of the relief. There may, indeed, be a moral beauty in this and 
 many other principles of the civil law ; but the adoption of them, in their 
 broadest extent, would change our habits of business, and unsettle prin- 
 ciples which have ever been regarded as sound. The common law rule, 
 moreover, leads to caution in the examination of titles, and operates as 
 a restraint upon the appropriation of the property of others. The loss 
 of compensation for industrial accessions to land of which the title fails, 
 though apparently harsh and inequitable, is in truth but a penalty for an 
 invasion of the rights of others. If one of two innocent persons must 
 sustain a lofes in such a case, it should be borne rather by him who did 
 it, whether wickedly or not, than by him upon whom it was inflicted. 
 
 ' Putnam v. Ritchie, 6 Paige, 405. 494; S. C. 2 Story's R. 605. 2 Eq. Juris. 
 
 " Bright V. Boyd, 1 Story's R. 478, § 799, b, and note. 
 
CHAPTEE V. 
 
 OP BILLS OF INTERPLEADER, BILLS OP PEACE, BILLS aUIA TIMET, 
 AND BILLS TO MARSHAL SECURITIES. 
 
 SECTION I. 
 
 OF BILLS OF INTEKPLEADEB. 
 
 THE remedy by interpleader existed at coramon law ; but it had but a 
 limited scope. It happened in the case of a joint bailment by both 
 claimants.' But, as the remedy at law has long since given place to a 
 bill in equity for the same purpose, it seems unnecessary to devote any 
 time to the ancient mode of proceeding. 
 
 A bill of interpleader, strictly so called, is, according to Chancellor 
 Walworth, where the complainant claims no relief against either of the 
 defendants, but only asks that he may be at liberty to pay the money, or 
 deliver the property to the one to whom it of right belongs, and may there- 
 after be protected against the claims of both.'' In such cases, the only 
 decree to which the complainant is entitled, is a decree that the bill is 
 properly filed ; that he be at liberty to pay the fund into court, and have 
 his costs ; and that the defendants interplead and settle the matter be- 
 tween themselves.' Judge Sutherland, in delivering the judgment of 
 the court pf errors, in a certain case,^ compiles from approved books of 
 equity pleading and practice, and adopts as his own, this definition of 
 the bill : It is, he says, defined to be a bill exhibited, where two or more 
 persons claim the same debt or duty from the complainant by different 
 or separate interests ; and he, not knowing, to which of the claimants he 
 ought of right to pay or render it, fears that he may be damaged by the 
 
 " Orawshay v. Thornton, 2 Mylne & Mitchell v. Hayne, 2 Simmons & Stu- 
 Craig, 1, 21. art, 68. 
 
 ' Bedell v. Hofiman, 2 Paige, 200. ' Id. 
 
 * Atkinson v. Manks, 1 Oowen, 703. 
 Bq. Juk. 40 
 
314 Interpleader. [Oh. 5. 
 
 defendants, (as by paying his money to a wrong hand,) and, therefore, 
 exhibits his bill of interpleader against them, praying that the court 
 may judge between them, to whom the thing belongs, and that he may be 
 indemnified. It claims no right in opposition to those claimed by the 
 persons against whom, the bill is exhibited, but only prays the decree of 
 the court, to decide between the rights of those persons for the safety of 
 the complainant." 
 
 The nature of the allegations, therefore, says the learned judge, in 
 every bill of interpleader, are, 1st. That two or more persons have prefer- 
 red a claim against the complainant ; 2d. That they claim the same 
 thing ; 3d. That the complainant has no beneficial interest in the thing 
 claimed ; and 4th. That he cannot determine, without hazard to himself, 
 to which of the defendants the thing of right belongs.' A recent and 
 approved writer on equity jurisprudence, has condensed the definition 
 into these words : It is a bill filed for the protection of a person, from 
 whom several persons claim legally or equitably the same thing, debt or 
 duty ; but who has incurred no independent liability to any of them, and 
 does not himself claim an interest in the matter. The equity is, that 
 the conflicting claimants should litigate the matter amongst themselves, 
 without involving the stakeholder in their dispute.' 
 
 The definition given by Mitford, Jeremy, Story and Eden,* is substan- 
 tially the same. The origin of the remedy in equity is, that the legal 
 remedy in such cases is inadequate, or that there is none at all. 
 
 Before proceeding to an examination of the adjudged cases on this sub- 
 ject, it may be well to observe that, in England, a recent statute has 
 given power to the common law courts to administer relief, to a certain 
 extent, in favor of a party sued in the courts of law, in any action of as- 
 sumpsit, debt, detinue or trover, in the subject matter of which suit the 
 defendant claims no interest ; and when he denies collusion with either 
 party, and is ready to bring the money into court, &c. The court make an 
 order, on a proper application, for the third party to appear and state his 
 claim, &c. And powers are given to the court to direct an issue, &c.^ 
 The jurisdiction in equity does not seem to have been superseded, or 
 impaired, by this summary remedy at law, as will be seen more fully 
 when the cases are examined.' 
 
 • Ooopev's Eq. PI. 46, 46. Har. Oh. 142. Story's Eq. § 806. Eden on Iiy. by 
 
 Pr. 96. 1 Mad. Oh. Pr. 143. Waterman, vol. 2, p. 893, 894, and notes. 
 
 ' Atkinson v. Manks, 1 Oowen, 703. ' Stat. 1 and 2, Will. 4, ch. 68. 
 
 ' Adams' Eq. 202. « Langton v. Horton, 3 Beav. 464. 
 ' Mitf. Eq. R. by Jeremy, 48, 49, 141, 
 
Ch. 5.] Interpleader. 315 
 
 In New- York, a summary remedy was given by the code of 1851, but 
 it is believed that it does not cover all the cases to which bills of inter- 
 pleader, and bills in the nature of bills of interpleader were applied.' 
 The enactment is as follows : " A defendant, against whom an action is 
 pending upon a contract, or for specific, real or personal property, may, at 
 any time before answer, upon affidavit, that a person, not a party to the 
 action, and without collusion with him, makes against him a demand for 
 the same debt or property, upon due notice to such person, and the ad- 
 verse party, apply to the court for an order to substitute such person in 
 his place, and discharge him from liability to either party on his deposit- 
 ing in court the amount of the debt, or delivering the property, or its 
 value, to such person as the court may direct ; and the court may, in its 
 discretion, make the order." 
 
 The summary remedy above provided does not extend to cases where 
 no action has been commenced. In this respect it falls short of the remedy 
 by bill of interpleader. It is settled that when a complainant is in dan- 
 ger of being doubly vexed, as when one of the adverse claimants of the 
 fund or property in hand has commenced a suit, and the other threatens 
 to do so, he may file his bill and ask the protection of a court of equity. 
 Nor does it seem to be necessary *hat both parties should appear to have 
 a legal demand for the same debt or duty, adverse to each other ; for if the 
 demand of one is of such a nature as to be sueable at law, and the claim 
 of the other grows out of equitable considerations, and is cognizable only 
 in equity, still it may be proper to file a bill ; at the same time bringing 
 the money into court, and bringing the parties before the court, in order 
 that their conflicting claims may be adjusted.^ A complainant, too, 
 against whom no action has been brought by either claimant, but who 
 is merely threatened by parties having conflicting rights, may maintain 
 a bill of interpleader.' Although it usually happens that a bill of inter- 
 pleader is not filed until one or other of the several claimants has com- 
 menced an action against the plaintifi", yet it is well settled that it is 
 enough that a claim is made against him and that he is in danger of being 
 harassed by conflicting suits.* A claim alone is a ground of interpleader. 
 So a bill of interpleader lies where no action is thratened or brought, 
 but where a proceeding has been instituted which may subject the party 
 
 ' Code of Procedure, § 122. Code of - Richards v. Salter, 6 J. Ch. E. 445. 
 
 1851. Morganv. Marsaok, 2Meriv. 107. Angell 
 
 = Yates V. Tisdale, 3 Edw. Ch. E. 74. v. Hadden, 15 Ves. 244. S. 0. 16 id. 202. 
 
 'Martinu's v.Helmuth, 2Ves. &B.412. Langston v. Eoylston, 2 Ves. jr. 107. 
 
 Gibson v. Goldthwaite, 7 Ala. E. 281. Atkinson v. Manks, 1 Oowen, 691, and 
 
 Beck V. Stephani, 9 How. Pr. E. 193. cases under preceding note. 
 
316 Interpleader. [Oh. 5. 
 
 to a double payment for the same debt or duty. On this principle it has 
 been held, that a person taxed in two difierent towns or counties, for the 
 same property, when he is only liable to be taxed once, and when it is 
 doubtful to which town or county the right to tax belongs, may file a bill 
 of interpleader, to compel the collectors of the tax to settle the right be- 
 tween themselves." 
 
 The foregoing remarks will suffice to show that there are many 
 cases where relief by bill of interpleader, or by bill in the nature 
 of interpleader, was formerly granted, that are not embraced with- 
 in the provisions of the code of procedure. And it is believed, though 
 the question has not yet been decided, that in cases where summary re- 
 lief may be granted under the code, the plaintiff may still have his elec- 
 tion to proceed by action. The principles which before governed the 
 courts in administering this remedy, will be found important to be under- 
 stood, and will furnish a safe guide. 
 
 It is no objection to an interpleader, as before said, that one of the 
 claims is of an equitable, and the other of a legal nature. The jurisdiction 
 attaches, as well in such case as when both are legal or both equitable." 
 J To sustain a bill of interpleader, strictly so called, the complainant must 
 be indifferent between the respective .complainants, and stand in relation 
 to them as a stakeholder. He must not have lent himself in any way to 
 further the claim of either party to the fund in controversy, or to aid 
 one in obtaining the possession thereof to the exclusion of the other.' The 
 plaintiff cannot sustain the bill if he has colluded with either party ; and 
 indeed, the practice of the court requires that an affidavit, denying all 
 collusion, should be annexed to the bill, and without which it is demurra- 
 ble.* If it be a case of money due by the plaintiff, he should bring it 
 into court, and if of other property, he should offer to do with it what the 
 law requires." 
 
 As the proper case for a bill of interpleader is, where two or more per- 
 sons claim from a third party the same debt or the same duty, the bill can- 
 not be sustained between landlord and tenant, principal and agent, or 
 attorney and cUent. Those parties stand in a fiduciary relation to each 
 other. The tenant has nothing to do with any claim adverse to his land- 
 
 ' Thompson v. Ebbetts, 1 Hopk. 272. ' Marvin v. EUwood, 11 Paige, 874. 
 
 The Mohawk and H. Eailroad v. Olute * 1 Mad. Oh. Pr. 144. Mitf. Tr. 126. 
 
 et al. 4 Paige, 884. Shaw v. Oorter, 8 Paige, 889. Atkinson 
 
 " Richards v. Salter, 6 J. Oh. R. 445. v. Manks, 1 Oowen, 704. 
 
 Yates V. Tisdale, 8 Edw. Oh. R. 71, and ' Id. 
 ante. 
 
Ch. 5.] Interpleader 317 
 
 lord. When attacked, he throws himself upon his landlord, who is put 
 in his place. If his landlord does not recover for him, he recovers upon 
 the covenants in his lease an ample recompense.' With respect to prin- 
 cipal and agent, there is invariably a contract express or implied existing 
 between them. The agent is always liable to account to his principal. 
 Should he refuse to account to his principal on the ground that a stranger 
 made claims against him for the same matter, it is obvious that a bill 
 of interpleader, filed by the agent against his principal and such 
 stranger, could not determine the rights between the principal and agent. 
 Lord Cottenham remarks, in one case,' that it is familiarly said, that 
 there is no interpleader between landlord and tenant, or principal and 
 agent ; but it will be found that the reason for this lies deeper than might 
 be inferred from the statement of this rule ; and that it is to be consid- 
 ered not so much as an independent rule, as a necessary consequence of 
 the principle vi interpleading. In both these cases rights and liabilities 
 exist between the parties, independent of the title to the property, or to 
 the debt or duty in question, and which may not depend upon the decision 
 of the question of title. 
 
 The same principal applies, between attorney and client. The rela- 
 tion between them creates a duty different from that which exists between 
 the attorney and a stranger. The one is that of confidence and trust ; the 
 other, merely the duty which one citizen owes to another. A voluntary 
 payment to his client, of money collected by an attorney, in that char- 
 acter, is always a protection to him. To permit an attorney to maintain 
 a bill of interpleader against his own client and a stranger, in refer- 
 ence to funds collected by him, as such attorney, in order to transfer the 
 fruits of the suit to another party, would be contrary to sound morals. 
 It would be to offer a premium to professional infidelity.' 
 
 A bailee, agent, or attorney, cannot dispute the original title of the 
 person from whom he received the property. Nor can he maintain a strict 
 bill of interpleader to settle conflicting claims of bailor, or principal, and 
 a stranger, who claims the property by a distinct and independent title.^ 
 Whether, under any circumstances, an attorney can sustain a bill of 
 interpleader against his client and a stranger, when the client is wholly 
 irresponsible, and when he refuses an indemnity against a claim appa- 
 rently well founded, has been doubted.' To sustain such a bill, the 
 
 ' Dnngey v. Angoor, 2 Ves. jr. 310. ' Marvin v. Ellwood, 11 Paige, 871. 
 
 Marvinv.EUwood, 11 Paige, 870. ■* Id. 865. 
 
 " Crawshaw v. Thornton, 2 Myl. & ' Id. 
 Craig, 20. 
 
318 Interpleader. [Oh. 5. 
 
 complainant at least must show that he has good reason to believe the 
 adverse claim is well founded, and that there is no possibility of protect- 
 ing himself from loss by any other means than by the interference of the 
 court.' But he cannot sustain the bill, to settle the claim to money 
 which he has collected from his client, when a mere stranger claims the 
 money, upon the ground that the security upon which the money was col- 
 lected was originally obtained by the client wrongfully.'^ 
 
 It seems, however, that a bill of interpleader may be sustained by an 
 attorney againsj defendants who set up a derivative claim to money col- 
 lected for his client, and that his lien on the same for his costs is no 
 objection to the action.' In such case, there is no privity between the 
 attorney and the claimants, and no duty is owing by the former to the 
 latter, but what is common to both. In short, he stands indifferent 
 between them, with respect to the matter in controversy. 
 
 In a strict bill of interpleader the same thing, debt or duty, must be 
 claimed by both, or all the claimants, if there be more than two. Sup- 
 pose the" vendee of goods should be sued by the vendor for the price, and 
 by a third person claiming a right paramount to that of the vendor. Here 
 it is obvious that a bill of interpleader will not lie, because one of the 
 claimants merely seeks to enforce a contract, and the other claims the 
 value as for an unlawful conversion.^ And such a case has been held in 
 England not to be within the interpleader act.^ On the same principle, 
 where a party, having purchased a rick of hay from an executor de son 
 tort, was threatened with a suit from the rightful administrator of the 
 same estate, and payment demanded, he was held not to be entitled to 
 maintain a bill of interpleader, or to have relief under the interpleader 
 act. As actual purchaser he was liable on his express contract, unless he 
 could defend the action. To the rightful administrator he was liable only 
 in tort for the conversion. Though the property claimed was the same, 
 the duty, or obligation, was dififerent.* 
 
 A party who is under an independent liability to one of the claimants, 
 cannot maintain an interpleader. In such a case he does not stand 
 indifferent between the claimants. It is on this principle, as already 
 shown, a bill of interpleader does not lie between landlord and tentant, 
 principal and agent, and attorney and client. But a tenant, not disputing 
 
 ' Marvin v. Ellwood, 11 Paige, 865. ' Slaney v. Sidney, 14 Mess. & Welsb. 
 
 ' Id. 800. 
 
 ' Gibson v. Goldthwaite, 7 Ala. R. 281. • James v. Pritchard, 7 Mess. & Welsb. 
 
 * Slaney v. Sidney, 14 Mess. & Welsb. 216. Glyn v. Duesbury, 11 Sim. 139. 
 800. 
 
CL 5.] Interpleader. 819 
 
 the title of his landlord, but afiSrming that title, the tenure and the con- 
 tract, by which the rent is payable, may file a bill of interpleader, when 
 it is uncertain to whom the rent is to be paid.' Though the tenant, on 
 notice of an ejectment by a stranger under a title adverse to that of the 
 landlord, cannot file a bill of interpleader against his landlord,' yet this 
 rule does not hold where the question arises upon the act of the landlord 
 subsequent to the lease.' The- landlord has no right to complain in such 
 a case, because the necessity for the interposition of equity is occasioned 
 by his own act, and is in no sense an act of hostility by the tenant to 
 the title under which he holds. 
 
 If the plaintiff claims a beneficial interest in the subject in controversy 
 he cannot maintain a bill of interpleader.* In an action brought against 
 an auctioneer for a deposit, he cannot file a bill of interpleader, if ho 
 insists upon retaining either his commission or the auction duty.' With 
 respect to the commission and duty, the plaintiff is not indifferent. He 
 claims that amount as his own, and proposes only to bring into court the 
 balance. If the defendants claim the whole sum without such deduction, 
 and threaten to prosecute for the same, the offer of the plaintiff to bring 
 into court the balance, after deducting the commissions and auction duty, 
 is not as broad as the claim, and thus leaves a part an open subject of 
 controversy between the complainant and the defendants. This is incom- 
 patible with the rights of the plaintiff in a bill of interpleader. 
 
 But it is no objection to a bill of interpleader, that the complainant 
 has an interest in respect of other property not in the suit, but which 
 might be litigated, that one party rather than the other should succeed 
 in the interpleade'r, so as to increase his own chance of success, in re- 
 spect of such other property. Such interest may be termed an interest 
 in the question, but not in the particular suit, and does not prevent him 
 from filing an interpleader. If, however, the complainant be liable to 
 either party in respect of the specific fund in dispute, beyond the ques- 
 tion of property, or makes claim on the fund, which either of the defend- 
 ants contests, it is not a proper case for an interpleader.' So the' li.en 
 of an attorney for his costs of collecting the money is no objection to a 
 bill of interpleader, filed against defendants, who set up a derivative 
 claim from the person for whom the attorney undertook the collection.' 
 
 ' Dungey v. Angove, 2 Ves. jr. 312. ' Id. 
 
 ' Id. ' Oppenheim v. Leo Wolf, 3 Sandf. Ob. 
 
 ' Cowtan v. Williams, 9 Ves. 107. R. 571. 
 
 * Atkinson v. Manks, 1 Oowan, 703. ' Gibson v. Goldtbwaite, 7 Alabama 
 
 Moore v. Usher, 7 Sim. 384. Mitchell Rep. 281. 
 V. Hayne, 2 Sim. & Stu. 63. 
 
320 Interpleader. [Oh. 5. 
 
 Those persons take in subordination to the attorney's lien, and what re- 
 mains, after deducting the costs, is alone the subject of controversy. 
 
 The complainant cannot sustain the bill if he is obliged to admit, that 
 as to either of the defendants, he is a wrongdoer.' 
 
 He must show that he is ignorant of the rights of the respective par- 
 ties, who are called upon by him to interplead, and settle their rights 
 between themselves ; or at least that there is some doubt, in point of fact, 
 to which claimant the debt or duty belongs. And, therefore, if he states 
 a case in his WX which shows that one defendant is entitled to the debt 
 or duty, and that the other is not, both defendants may demur.^ 
 
 The plaintiff, by filing a bill of interpleader, admits a title as against 
 himself in all the defendants.^ He cannot, therefore, after filing the bill, 
 set up a right in himself to the fund in controversy.' 
 
 When the plaintiff has a complete protection at law against the con- 
 flicting claims, a bill of interpleader will not lie. Hence, in the city of 
 New- York, the owner of a building cannot interplead the contractor by 
 whom it was erected^ and the creditors of such contractor, in relation to 
 the balance due from the owner upon the building contract, when the 
 creditors make claim under the act for the better security of mechanics,* 
 and such claims are disputed by the contractor.' The plaintiff has a 
 complete protection at law, without the necessity of a resort to equity. 
 
 The objection in the last mentioned case was not on the ground that 
 there were more than two claimants. There appears to be no difficulty 
 in principle in maintaining, in favor of a stakeholder, a bill against three 
 or more persons, each claiming in a distinct and different right, the same 
 property, as well as against two persons claiming in the same manner.' 
 
 A bill of interpleader, it has already been shown, lies only where the 
 plaintiff; claims no interest in the subject matter. There are, however, 
 many cases, where a bill in the nature of a bill of interpleader will lie by a 
 party in interest to establish his own rights, where there are other con- 
 flicting; rights between third persons.* If, for example, a plaintiff is en- 
 
 ' Shaw V. Oosteri 8 Paige, 339. Gwin " The Dry Dock Meth. Ep. Church v. 
 
 V. Green, 1 Iredell's Eq. E. 229. Carr, 2 Barb. S. 0. K. 60. 
 
 » Shaw V. Ooster, 8 Paige, 339. Bell ' Story's Eq. § 814. Adams' Eq. 202. 
 
 T. Hunt, 8 Barb. Oh. R. 891. Hoggartv. Cutis, 1 Cr. & Philips, 197. 
 
 ' Gwin V. Green, 1 Iredell's Eq. E. Briggs v. Konns, 7 Dana, 411. Hays v. 
 
 229. Anderson v. Wilkinson, 10 Sm. dt Johnson, 4 Ala. E. 267. Atkinson v. 
 
 Marsh. 601. Manks, 1 Oowen, 703. 
 
 * M. » Bedell v. Hoffman, 2 Paige, 199. 
 
 ' Laws of 1880, ch. 830, p. 412. 
 
Ch. 5.] Interpleader. 821 
 
 titled to equitable relief against the owner of property, and the legal 
 title thereto is in dispute between two or more persons, so that he cannot 
 ascertain to which it actually belongs, he may file a bill against the sev- 
 eral claimants in the nature of a bill of interpleader for relief.' So it 
 seems a purchaser may file a bill in the nature of a bill of interpleader, 
 against the vendor, or his assignee, and any creditor who seeks to avoid the 
 title of the assignee, and pray ^he direction of the court as to whom the pur- 
 chase money shall be paid. So, if a mortgagor -wishes to redeem the mort- 
 gage estate, and there are conflicting claims between third persons as to 
 their title to the mortgage money, he may bring them before the court, to 
 ascertain their rights, and to have a decree for a redemption, so that he 
 may make a secure payment to the party entitled to the money. In these 
 cases the plaintiff seeks relief for himself; whereas, in an interpleading 
 bill, strictly so called, the plaintifi" only asks that he may be at liberty 
 to pay the money, or deliver the property to the party to whom it belongs, 
 and may thereafter be protected against the claims of both.' 
 
 As the plaintifi", in a strict bill of interpleader, claims no relief against 
 either of the defendants, the only decree to which he is entitled is, that 
 the bill is properly filed ; that he be at liberty to pay the fund into court, 
 and have his costs, and that the defendants interplead and settle the mat- 
 ter between themselves.' If the bill be rightly filed, the plaintiff is of 
 course entitled to his costs out of the fund, and which are eventually to 
 fall upon the party who is in the wrong.* 
 
 If the bill be not a strict bill of interpleader, but only in the nature of 
 a hill of interpleader, costs are not a mere matter of right, but as in oth- 
 er equity cases, rest in the discretion of the court.' 
 
 The New-York code of procedure has made no provision for costs in 
 actions of interpleader, by name, but the 30&th section probably vests 
 the court with the same discretion in such actions, as existed before. And 
 costs should doubtless be granted or withheld, under the like circum- 
 stances and in the same manner, as under the former practice. 
 
 If the plaintiff's right to file the bill be contested by either of the de- 
 fendants, the issues must be tried as in other cases. When it appears by 
 the answers of the defendants, or by the proofs, that there is enough be- 
 
 ' Mohawk and H. Railroad Oav.Olnte, 'Bedell v. Hoffman, 2 Paige, 200. 
 
 4 Paige, 384. Mitchell v. Hayne, 2 Sim. & Stu. 63. 
 
 ' 2 Eden on Inj. by Waterman, 400, * Tates v. Tisdale, 3 Edw. Ch. E. 74. 
 
 note. Oanfleld v. Morgan, 1 Hopk. 224. 
 
 ' Bedell v. Hoffman, 2 Paige, 200. 
 
 Eq. Juk. 41 
 
322 Interpleader. [Oh. 5, 
 
 fore the court to decide the whole controversy between all the parties, 
 without directing the defendants to interplead each other, it is usual to 
 grant a decree accordingly.' This seems also to\be the English practice. 
 Questions arising in such actions, said Sir William Grant,'' are disposed 
 of in various ways, according to the nature of them. An interpleading 
 bill is considered as putting the defendants to contest their respective 
 claims, just as a bill by an executor or trustee to obtain the direction of 
 the court upon the adverse claims of the different defendants. If, there- 
 fore, at the hearing, the question between the defendants is ripe for 
 a decision, the court decides it ; and if it is not ripe for decision, di- 
 rects an action, or an issue, or a reference to a master, as may best suit 
 the nature of the case. In the Duke of Bolton v. Williams,^ the ques- 
 tion was ripe for decision ; and was decided in favor of one defendant 
 against the other ; and that decree was affirmed upon the rehearing. Lord 
 Kenyon made a similar decree at the rolls, in Hodges v. Smith,- (1 Coxe's Eq. 
 357.) The bill in that cause was filedby a tenant, for the purpose of ascertain- 
 ing to which of two different claimants he was to pay his rent : one of the de- 
 fendants established his title by evidence ; the other made default at the' 
 hearing. Lord Kenyon directed the rent for the future to be paid to the 
 one ; and granted a perpetual injunction against the other. That could 
 not be such a decree as is ordinarily made at the prayer of the plaintiff, 
 when the defendant makes default, for the plaintiff in an interpleading 
 bill does not pray any decree in favor of one defendant against another. 
 It must, therefore, have been either a decree prayed by one of the defend- 
 ants, or such as the court thought it right to pronounce between them. 
 In Atkinson v. Manks,* already cited, no replication was filed, and a ref- 
 erence was ordered on the answer of the defendants, and the question 
 came up on exceptions to the master's report. In that case, too, the costs 
 of all the parties, plaintiffs and defendants, were deducted from the fund. 
 The provisions of the code of procedure are broad enough to embrace 
 any ordinary form of decree in bills of interpleader. Thus, it is enacted, 
 that judgment may be given for or against one or more of several plain- 
 tiffs, and for or against one or more of several defendants, and it may 
 determine the ultimate rights of the parties m each side, as between 
 themselves.' This provision is obviously inapplicable to actions at law, 
 
 ' City Bank v. Bangs, 2 Paige, 570. ' Angell v. Hadden, 16 Ve8. 208, 
 
 Yates V. Tiadale, 8 Edw. Oh. E. 71. Sperry » 2 Ves. jr. 138. 
 
 V. S.OarolinaIns.Oo.8Wheat.268. Gib- • 1 Oowen, 693. 
 
 son V. Goldthwaite, 7 Ala. 281. ' Oode of Procedure, § 274. 
 
Ch. 5.] Bills op Peace. 323 
 
 and is the appropriate termination of a bill of interpleader in many 
 cases, and occasionally of other actions in equity. 
 
 The transactions of individuals are sometimes of such a character that 
 the remedial agency of a bill of interpleader, or a bill in the nature of 
 an interpleader, becomes indispensable. But, though this be so, the 
 courts do not look with favor upon them in general, and express an un- 
 willingness to countenance new inventions, in bringing such actions.' 
 
 SECTION IL 
 
 OF BILLS OF PEACE. 
 
 A BILL of peace, to prevent litigation at law, is allowed only in case the 
 plaintiff has satisfactorily established his title at law, or when the per- 
 sons who controvert the right are so numerous as to render an issue 
 under the direction of the court necessary to bring in all the parties con- 
 cerned, and prevent a multiplicity of suits. ^ The court does not gene- 
 rally interfere, by means of this remedy, between two individuals, until the 
 right has been established at law.^ But where a man sets up a general 
 exclusive right, and where the persons who controvert it with him are 
 very numerous, and he cannot by one or two actions at law quiet that 
 right, he may come into equity ^r*< by bill of peace, and the court will 
 direct an issue to determine the right, as in disputes between lords of 
 manors and their tenants, and between tenants of one manor and another ; 
 for in these cases there would be no end of bringing actions of trespass, 
 since each action would determine only the particular right in question 
 between the plaintiff and defendant. 
 
 There appears, therefore, to be two classes of cases in which a court of 
 equity entertains jurisdiction by bill of peace, to quiet the rights of par- 
 ties, and to put an end to further litigation upon the same subject : 
 First, when the plaintiff has been in the actual possession for some con- 
 siderable time, and his rights are contested by numerous parties, either 
 in the same, or upon distinct rights ; and second, when the plaintiff, 
 after repeated trials at law, has established his right at law, and is never- 
 theless in danger of further litigation by parties who controvert that 
 right. 
 
 ' Metcalf V. Harvey, 1 Ves. 249. Be- ' Eldridge v. Hill, 2 J. Oh. E. 281. 
 dell V. HoflEinan, 2 Paige, 201. 1 Mad. ' Tenham v. Herbert, 2 Atk. 483. 
 Oh. Pr. 148. 
 
824 Bills of Peace. [Ch. 5. 
 
 A few examples under each head ■will be sufficient to illustrate the 
 jurisdiction exercised by courts of equity in such cases. 
 
 Thus, it has been held that a man, who had been in possession of a 
 water-course sixty years, might bring a bill to be quieted in his posses- 
 sion, although he had not established his right at law.' So, also, when 
 there has been a possession of a fishery, for a considerable length of 
 time, a person who claims a sole right to it may bring a bill to be quieted 
 in the possession, though he has not established his right at law ; and it 
 is no objection to such bill that the defendants have distinct rights.' As 
 where a right of fishing upon the river Ouse, for nine miles in extent, 
 was claimed by the corporation of York, who had constantly exercised 
 that right, but which was opposed by different lords of manors, a bill of 
 this description was admitted to establish the right against these several 
 opponents, for it would have been endless for the corporation to have 
 brought actions at law.^ In another case, where the plaintiff brought 
 his bill in order to establish his right to an oyster fishery, and to be 
 quieted in the possession of it, against the defendant, who claimed the 
 piece of ground where the fishery was, as belonging to his manor, a de- 
 murrer was allowed, because when the question about a right of fishery 
 is only between two lords of manors, neither of them can come into a 
 court of equity till the right is first tried at law. And Lord Hardwicke 
 said, it is certain that where a man sets up a general exclusive right, and 
 where the persons who controvert it with him are very numerous, and he 
 cannot by one or two actions at law quiet that right, he may come into 
 a court of equity first, which is called a Bill of Peace, and the court ffill 
 direct an issue to determine the right, as in disputes between lords of 
 manors and their tenants, and between tenants of one manor and another ; 
 for in these cases there would be no end of bringing actions of trespass, 
 since each action would determine only the particular, right in question 
 between the plaintiff and defendants.* 
 
 Such a bill may be brought as well by tenants against a lord, as by a 
 lord against tenants.^ 
 
 Such a bill was entertained at the instance of the New River Com- 
 pany, to quiet them in the possession of pipes laid through the defend- 
 ant's field.' It was sustained where several tenants claimed the right 
 
 ■ Bush V. Western, cited in Mayor of • Conyers v. Lord Abergavinny, 1 Atk. 
 
 York V. Pilkington, 1 Atk. 284. 285. 
 
 ' Mayor of York v. Pilkington, id. 282. • New Eiver Oo. v. Graves, 2 Vera. 
 
 • Id. Tenham v. Herbert, 2 Atk. 483. 431. 
 
 * Id. How V. Bromsgrove, 1 Vern. 22. 
 
Ch. 5.] Bills of Peace. 325 
 
 to the profits of a fair.' And it has been sustained in numerous analo- 
 gous cases.' 
 
 • The distinction between the two classes of cases in which this species 
 of relief is granted, has been recognized by the court of errors in New- 
 York.' The object of the equity power, in such cases, says Kent, Ch. 
 J., in his learned opinion, is as beningn as it is rational ; and Van Ness, 
 J., in the same case said, courts of law, in some cases, have not the power 
 of putting an end to vexatious and oppressive litigation. Actions of 
 ejectment, and in some cases actions of trespass, may be repeated again 
 and again, until the sinews of litigation are exhausted, and until the 
 resources, but not the spirit, of the parties fail. This is, perhaps, a de- 
 fect in the common law system ; which is supplied, in certain cases, by 
 the enlarged and superintending powers of a court of chancery. 
 
 In one case, in the supreme court of the United States, Marshall, Ch. 
 Justice, said, that an application to restrain a person from the assertion 
 of title in the ordinary course of judicial proceedings ought not to be 
 granted in a doubtful case ; but if the case is a clear one, the interposition 
 of equity is allowable ; and the situation of the land adjoining a growing 
 city, the number of persons who are consequently interested in the 
 settlement of the question, and the numerous titles which depend on it, 
 give it peculiar claim to the attention of the court.^ And Chancellor 
 Sanford said, in one case, that where the right of the plaintiff is an abso- 
 lute and clear title, requiring no trial at law to establish it, and sup- 
 ported by a long possession, if it be disputed by the defendants, the 
 violation of it will be restrained by injunction. In that case, too, the 
 parties were numerous.^ 
 
 The right claimed must affect many persons, to warrant the court to 
 interfere in this way ; for if the controversy be between two persons only, 
 on their own account, and not as representing large numbers, it is said 
 the bill will be dismissed. On this principle, Lord Chancellor King 
 decided that a bill could not be brought, by a single copy-holder, to be 
 relieved against an excessive fine. He admitted, in the same case, that 
 a bill might lie in order to settle a general fine to be paid by all the copy- 
 hold tenants of a manor, to prevent multiplicity of suits.' So when a bill 
 
 ' New Elme Hospital v. Andover, 1 ' Alexander v. Pendleton, 8 Oranch, 
 
 Vern! 266. 220. 
 
 = Trustees of Huntington v. Niooll, 3 ' Eeid v. Gifford, 1 Eopk. 418. 
 
 J. B. 566, 689, 602, 604. ° Cowper v! Clerk, 3 P. Wms. 157, 
 
 ' Eden on Injuno. by Waterman, 418 Disney v. Eobertson, Bunb. 41. 
 et 8eq. and notes. 
 
326 Bills of Peace. [CL 5. 
 
 was brought by one tenant of a manor, suggesting a custom for the ten- 
 ants of a manor of A., of which he was one, to cut turves yi the manor of 
 B. to quiet him, and to have the issue directed as to the right ; upon this 
 occasion, the court said, this bill is improper, and inconsistent with the 
 nature of a bill of peace, which is. that where several persons having the 
 same right are disturbed, on application to the court to .prevent expense 
 and multiplicity of suits, issues will be directed, and one or two determi- 
 nations will establish the right of all parties concerned, on the foot of 
 one common interest, and the bill is preferred by all the parties inter- 
 ested, or a determinate number in the name of themselves and the rest ; 
 but in this case one only brings the bill on the general right, and not on 
 the foot of any particular distinct right, and therefore the bill was dis- 
 missed.' 
 
 The other class of ca,ses, under the head of Bills of Peace, comprises 
 cases where the plaintiff, after repeated trials at law, has established his 
 right at law, and is nevertheless in danger of further litigation, by 
 parties who claim that right. Lord Redesdale thus describes this juris- 
 diction : " In many cases the courts of ordinary jurisdiction admit, at least 
 for a certain time, of repeated attempts to litigate the same question. 
 To put an end to the oppression occasioned by the abuse of this privi- 
 lege, the courts of equity have assumed jurisdiction. Thus, actions of 
 ejectment having become the usual mode of trying titles at the common 
 law,, and judgments in those actions not being in any degree conclusive, 
 the courts of equity have interposed ; and after repeated trials, and satis- 
 factory determination of questions, have granted perpetual injunctions to 
 restrain further litigation ; and thus have in some degree put that restraint 
 upon litigation, which is the policy of the common law in the case of real 
 actions."* This jurisdiction was, at an early day, questioned. In a cele- 
 brated case,' the title was a mere legal one, and the complainant, after 
 five trials in ejectment, and verdicts in each case for him, brought a bill 
 of peace for a perpetual injunction. Lord Cowper refused to grant the 
 relief, on the ground that it was only a controversy between two indi- 
 viduals, and not a proper case for a Bill of Peace. But the decree of 
 the chancellor was reversed by the house of lords, and a perpetual 
 injunction granted. The principle thus established has ever since been 
 followed, that when the right has been established by several trials, 
 
 ■ Harrison's Oh., vol. 1, p. 124. 1 Mad. = Earl of Bath v. Sherwin, Free. Ch. 
 Oh. Pr. 140. 261. 
 
 ' Mitford's Eq. PI. by Jeremy, 148, 144. 
 
Ch. 5.] Bills of Peace. 827 
 
 equity ■will quiet the title by Bill of Peace, and put an end to further 
 litigation. In a later case,' a trust estate having been devised by will 
 and the -will vras disputed, the court, after two trials in favor of the will, 
 granted a perpetual injunction. The chancellor said, it is certainly an 
 inconvenience in the law that there should be no end of trials in eject- 
 ment, and that one trial in a real action, which perhaps may be a trial 
 at nisi prius, should be final, when, at the same time, twenty trials in 
 ejectment and at the bar in "Westminster Hall will not be conclusive." 
 
 The reasons above given for a Bill of Peace, after two or more recov- 
 eries in an ejectment, do not exist in New- York, since the adoption of the 
 revised statutes of 1830. The abolition of fictitious parties to the action, 
 and the making of the judgment rendered upon the verdict conclusive, as 
 to the title established, in such action, upon the party against whom it 
 was rendered, and against all claiming under him, and the provision fof 
 two new trials, upon the application of the failing party, granted within a 
 limited time after the first verdict, and upon payment of costs, were de- 
 signed to prevent the endless litigation which, but for a court of equity, 
 might be carried on by actions of ejectment.' 
 
 There is, however, some scope for the bill in matters of a personal na- 
 ture. There are some cases where it partakes of the nature of a bill fof 
 specific performance, and some where it resembles the remedy by bill 
 quia timet. Thus the surety may have relief in equity against the prin- 
 cipal, ' after the debt becomes due, and before it has been paid by the 
 former, and the latter be decreed to save the surety harmless.^ 
 
 The code contains no provision which renders the remedy by Bill of 
 Peace impracticable. It allows all persons having an interest in the sub- 
 ject of the action, and in obtaining the. relief demanded, to be joined as 
 plaintiffs ; and any person who claims an interest adverse to the plaintiff, 
 or who is a necessary party to a complete determination or settlement of 
 the questions, to be defendant.' And the plaintiff is allowed to join in 
 the same complaint several causes of action, whether legal or equitable, 
 or both, when they all arise out of the same transaction, or transactions 
 connected with the same subject of action.' When the grievance is 
 common to all, and they all claim the same relief, the objection of multi- 
 fariousness cannot be entertained.' * 
 
 ' Leighton v. Leighton, 1 P. Wins. 671. ' Hays v. "Ward, 4 J. Ch. R. 132. Cliam- 
 
 ° Trustees of Huntington v. NicoU, 3 pion v. Brown, 6 id. 406. 
 
 J. E. 566, 589-595, 601, 602. Eeid v. ' Code, §§ 117, 118. 
 
 Gifford, 1 Hopk. 418-420. » Id. §167. 
 
 ' 2 E. 8. 304, § 6, p. 309, §§ 36, 37, and ' Eeid v. GifiEbrd, 1 Hopk. 419. Oonro 
 
 notes of tho revisers. 3 E. S. 2d ed.709. • v. Port Henry Iron Co. 12 Barb. 27, 69. 
 
328 Quia Timet. '[Ch. 5. 
 
 SECTION IIL 
 
 BILLS QUIA TIMET, 
 
 A BILL Quia Timet is a preventive remedy, and may be filed by a 
 party apprehending a future inconvenience, which may probably happen, 
 or be occasioned by the neglect or culpable act of another. It has already 
 been alluded to under other heads, and will be mentioned again when we 
 come to treat of injunctions. 
 
 The name of the bill was probably borrowed from the title of some 
 ancient writs at the common law. Lord Coke says, " there be six writs 
 in law that may be maintained, quia timet, before any molestation, dis- 
 tress or impleading ; as 1. A man may have his writ of mesne (whereof 
 Littleton here speaks) before he be distrained. 2. A warrantia chartcs, 
 before he be impleaded. 3. A monsti-averunt, before any distress or 
 vexation. 4. An audita querela, before any execution sued. 5. A curia 
 claudenda, before any default of enclosure. 6. A ne injuste vexes, 
 before any distress or molestation. And these he called brevia antici- 
 pantia, writs of prevention."' These remedies have all been so long 
 antiquated, that but few traces remain of their former existence. In 
 modern times, courts of equity have administered relief in the foregoing, 
 and many other cases, and arrested the commission of anticipated injuries, 
 by the bill quia timet. The foundation of the jurisdiction is the proba- 
 bility of irreparable misciiief, the inadequacy of a pecuniary compensation, 
 and the prevention of a multiplicity of suits." 
 
 The application of this remedy to rights of an equitable nature, may 
 be illustrated by the interference of the court in favor of a legatee, whose 
 legacy is payable at a future day, and compelling the executor to bring 
 the money into court, or to give security.' In an early case, where the 
 legacy was not payable until ten years after the death of the testator, 
 and though no particular reasons were assigned, as wasting assets, or in- 
 solvency of the defendant, yet the executor was decreed to give security, 
 by Sir Thomas Clarke, master of the rolls, on the general rule of the 
 court.* 
 
 To render an application to equity unnecessary, and to afford in all 
 
 ' Oo. Litt. 100, a. " Lupton v. Lupton, 2 J. Ch. R. 627. 1 
 
 ' 1 Fonb. Eq. B. 1, oh. 1, § 2, note. Mad. Oh. Pr. 179. 
 
 • Ferrard v. Prentice, Ambl. 273. 
 
Ch. 5.] Quia Timet. 329 
 
 cases adequate security for the faithful administration of the estates of 
 testators, executors are required in many of the states to give bonds like 
 administrators ; and the revised statutes have made provision for requiring 
 such bonds to be given, through the intervention of the surrogate, in all 
 cases, on the application of a party interested in the estate, when the ex- 
 ecutor has become incompetent by law to serve as such, or his circum- 
 stances are so precarious as not to afford adequate security for his due 
 administration of the estate, or he has removed, or is about to remove 
 from the state.' 
 
 The power thus granted to surrogates does not supersede the jurisdiction 
 of a court of equity to interpose its authority to protect the assets from 
 the improvidence of the executor and from the danger of loss, resulting 
 from his poverty, incapacity, or any other cause ; where not only the right 
 of enjoyment is future or contingent, but in other cases. On one occa- 
 sion. Chancellor Kent said, it is the settled principle of the court that an 
 executor or other trustee, who mismanages or puts the assets in jeopardy 
 by his insolvency, either existing or impending, should be prevented from 
 further interfering with the estate, and that the funds should be with- 
 drawn from his hands.'' And in the same case, where one of three exec- 
 utors obtained possession of a bond and note belonging to the estate, 
 from the custody of his associates, without their assent, and with an une- 
 quivocal disposition to convert them to his own use, the court directed 
 him to restore the bond and note to his co-executors, and restrained him 
 from acting or intermeddling any further with the assets, or in the ad- 
 ministration thereof as co-executor. 
 
 The cases of most frequent occurrence, are where the property or rights 
 to be secured are of an equitable nature with a present right of enjoy- 
 ment, or where the right of enjoyment is contingent or future. The ju- 
 risdiction attaches in either case. A few more examples will suflSce for 
 illustration. Thus, where the testator gave a legacy to his child, an in- 
 fant, payable at his age of twenty-three years, and made his wife execu- 
 trix and residuary legatee ; she married again and died, whereupon her 
 husband took out letters de bonis non, with the will annexed ; upon a> 
 bill suggesting insolvency, the second husband was ordered to give security 
 to pay the legacy when due.' So where a testator by will gave out of his 
 personal estate several legacies, and among others an annuity of twenty 
 pounds a year to J. S. for life, on the executors threatening to defeat 
 
 ' 2 R. S. 72, § 18, &o. Mandeville v. » Elmendorff v. Lansing, 4 J. Oh. E. 
 MandeviUe,8Paige,475. "Wood v. Wood, 565. 
 
 4 id. 299. ' Eonse v. Noble, 2 Vera. 249. Slan- 
 
 ning v. Style, 8 P. Wma. 336. 
 
 Eq. Jub. 42 
 
830 Quia Timet. [Oh- 5. 
 
 the annuity, the court, on a bill by the annuitant, ordered a sufficient part 
 of the personal estate set apart and assigned to a trustee in trust to se- 
 cure the annuity.' So where a legacy was left to one, to be paid at 
 twenty-four, the plaintiff being only twelve years old, the father filed a 
 bill to invest the legacy in the funds, and so it was decreed, though it 
 was at the same time declared that the plaintiff was not entitled to the 
 money.* 
 
 If personal chattels are bequeathed to A. for life, remainder to B., the 
 former will be entitled to the possession of the goods upon signing and 
 delivering to the executor an inventory of them, admitting their receipt, 
 expressing that he is entitled to them for life, and that afterwards they 
 belong to the person in remainder.' The old practice of the court of 
 chancery, was to require the tenant for life to give security for the pro- 
 tection of the remainderman ; but such security is not now required, 
 except a case of danger is shown.* 
 
 Where there is a charge upon a personal estate, though it is not im- 
 mediately payable, yet the person entitled may come into equity, and 
 pray that a sufficient sum may be set apart to answer the legacy when 
 it shall become due.^ The rule is otherwise when the legacy is to be 
 raised out of real estate.* 
 
 So in Johnson v. Mills,' the sum of two thousand pounds was left to 
 the testator's daughter at twenty-one ; and in default, to her child ; and if 
 no child, to one Mills ; a bill was filed to secure the fund ; which was 
 opposed by the executrix, on the ground that there was no danger or in- 
 solvency in the case ; but Lord Hardwicke, said, " I thought nothing was 
 better settled than what is now endeavored to be made a question ; that 
 ■whenever a demand was made out of assets certainly due, but payable at 
 a future time, the person entitled thereto might come against the execu- 
 tor, to have it secured for his benefit, and set apart in the mean time, 
 tha,t he might not be obliged to pursue these assets through several hands. 
 Nor is there any more useful part of the jurisdiction of this court in the 
 administration of assets ; therefore it is admitted to be done in the case 
 of a legacy always, although contingent and payable at a future day, so 
 that it might fall into the bulk of the estate ; and this is done to secure 
 
 ' Batten v. Earnley, 2 P. Wms. 168. ler, 2 Paige, 123. De Peyster v. Olen- 
 
 ^ 1 Mad. Oh, Pr. 179. dining, 8 id. 296. 
 
 « Slanning v. Style, 3 P. Wins. 336. « Bill v. Kinaston, 2 Atk. 82. 
 Leeke v. Bennett, 1 Atk. 471. Bill v. " Phipps v. Annesley, 2 Atk. 58. 
 Kinaston, 2 id. 82. Oovenhoven v. Shu- " Gawler v. Standerwioke, 2 Cox, 16. 
 
 ' 1 Ves. sen., 282. 
 
CL 5.] Quia Timet. 33I 
 
 the interest of every party, of course, as a common equity, without ex- 
 pecting any suggestion of insolvency of the executor, or of wasting the 
 assets." 
 
 Again, in another case,' a legacy was given to 'a female infant, to be 
 paid at twenty-one or marriage, with interest at four per cent ; but 
 if she died before, it was directed by the will that the legacy should 
 sink into the residue ; and Lord Thurlow ordered the sum of five thou- 
 sand pounds, with interest at four per cent, from the end of the year 
 after the testator's death, forthwith to be laid out in the three per. cents, 
 in the name of the accountant general, upon the trusts and subject to 
 the contingencies in the testator's will 5 and his lordship said that he did 
 not see any distinction as to the legacy being contingent or merely fu- 
 ture. 
 
 So, where A. was entitled to the use of goods and a library for life. 
 with remainder to the plaintiff's wife, who died, the plaintiff, as his ad- 
 ministrator, brought a bill of this description to have the goods, &;c., 
 secured to him after the death of A., and a decree was made accordingly.*' 
 
 So, also. Lord Keeper North thought, that if A. is bound for B. and 
 has a counter bond from B., and the money is become payable on the 
 original bond, equity will compel B. to pay the debt, although A. is not 
 troubled or molested for the debt, since it is unreasonable that a man 
 should always have such a cloud hanging over him.' This doctrine'has 
 been approved in this state ; and it was applied by Chancellor Kent to 
 the ordinary cases of principal and surety.* 
 
 It is now the settled rule, that a surety, apprehending danger from 
 the delay of the creditor, may resort to a court of equity, and compel the 
 creditor to sue the principal debtor, though probably he must indemnify 
 the creditor against the consequences of risk, delay and expense.^ It is 
 the right of a surety to call upon a creditor having another fund, which 
 the surety cannot make available, and to require him to resort to that 
 fund in the first instance and exhaust it.' Lord Eldon in one case said : 
 We have gone this length, that if a creditor has a right to go upon two 
 funds, and another creditor of the same debtor upon one, the first shall 
 take payment from that fund to which he can resort exclusively ; that by 
 these means of distribution, both may be paid.' The foregoing cases be- 
 
 ' Green v. Pigot, 1 Bro. 0. 0. 103. ' Hayes v. Ward, 4 J. Ch. E. 132. 
 
 ' Braokeu v. Bentley, 1 Oh. E. 110 ; Champion v. Brown, 6 id..406. 
 6. C, 1 Eq. Oas. Abr. 78, pi. 1. ' Id. King v. Baldwin, 2 id. 663. 
 
 ' Eanelaugh v. Hayes, 1 Vera. 190. • Id. 
 
 ' Kendall ex parte, 17 Vesi^520. 
 
333 Quia Timet. [Ch. 6. 
 
 long to other heads of equity jurisdiction, as well as the one we are now 
 considering. 
 
 There is a distinction between a bequest of specific chattels, and the 
 bequest of a general residue. We have already stated the rule in the 
 former case. In the latter case the rule is, that where there is a general 
 bequest of a residue for life, with remainder over, the whole must be sold 
 and converted into money by the executor, and the proceeds must be in- 
 vested in permanent securities, and the interest or income only is paid 
 to the legatee for life.' Though the legacy be of articles which must 
 necessarily be consumed in the using, as of hay, grain, &c., or be of ar- 
 ticles capable of a separate use for life, or of both together, the rule is 
 the same, and the first legatee is not entitled to the use of the fiind, in 
 the mean time, without giving ample security for the return of the prin- 
 cipal at the termination of the particular estate therein. In general, 
 however, the executor, which is, perhaps, the preferable course, retains 
 the fund, and pays over the income as it accrues to the first legatee." 
 
 In all cases where property is held by one party in trust for others, 
 and there is danger of its being squandered or diverted to the prejudice' 
 of any one having a present or future, a vested or contingent interest in 
 it, the court, on a bill for that purpose, will appoint a receiver, and direct 
 the property to be vested in him for the benefit of all concerned. " This 
 power," said Lord Hardwicke, on one occasion,^ " is a discretionary power 
 exercised by a court of equity with as great utility to the parties as any 
 s,ort of authority that belongs to the court, and is provisional only for the 
 more speedy getting in of a party's estate, and securing it for the bene- 
 fit of such person who shall appear to be entitled, and does not at all affect 
 the right." At common law, and independently of statute regulations, 
 a receiver is treated as an ofiScer of the court, subject to its orders, and 
 entitled to its protection. This appointment is not for the benefit of any 
 particular party, but of all who are or may become interested in the fund.* 
 The money in his hands is in the custody of the law for whoever can 
 make out a title to it. The order for the appointment of a receiver, fol- 
 lowed up by giving the requisite security in equity, vested the property 
 in the receiver, without any assignment from its former owner.^ At law, 
 an ordinary receiver was not considered as having the legal title, so as to 
 
 ' Oovenlioven v. Shuler, 2 Paige, 122. ' Green v. Bostwiok, 1 Sand. Ch. Ht. 
 
 Clark v. Clark, 8 id. 160. 185. 
 
 " Id. ' Mann v. Pentz, 2 Sand. Oh. E. 25T. 
 
 ' Skip V. HftTwood, 8 Atk. 664. Wilson v. AlleB, 6 Barb. 542. 
 
Ch. 5.] Quia Timet. 333 
 
 authorize him to institute a suit in his own name, for any debt or demand 
 transferred to him, or to the possession or control of which he was enti- 
 tled under the order of the court." He had the mere custody or charge 
 ' of the property, under the direction of the court, and could use the name 
 of the person of whose estate he was receiver, in prosecuting actions to 
 reduce the property to possession. 
 
 The frequent necessity of resorting to the appointment of receivers, in 
 winding up the estates of insolvent debtors, sued by creditors' bills, and 
 in a great variety of other cases, led in New- York to legislative provi- 
 sions, essentially altering the common law in this respect. Thus, by the 
 act entitled " An act in relation to the powers of receivers and committees 
 of lunatics and habitual drunkards,'"* a receiver, appointed by virtue of 
 an order or decree of the court of chancery, was empowered to take and 
 hold real estate upon such trusts and for such purposes as the court might 
 direct, subject to its further order or direction, from time to time, in re- 
 lation to its disposition. And the second section authorized receivers and 
 committees of lunatics and habitual drunkards, appointed by any order or 
 decree of the court of chancery, to sue, in their own names, for any debt, 
 claim or demand transferred to them, or to the possession and control of 
 which they are entitled as such receiver or committee ; and when ordered 
 or authorized to sell such demands, the purchaser thereof was authorized 
 by the same section to sue and recover therefor, in his own name, he gi\*- 
 ing such security for costs to the defendant as the court in which such 
 suit is brought might direct. The chancellor, in Wilson v. "Wilson, already- 
 cited, did not consider this act broad enough to transfer the title of real 
 estate to the receiver, by the mere order of the court, and without an ac- 
 tual conveyance from the party to the suit in which such legal title is 
 vested. And hence it was usual to direct an assignment of his real es- 
 tate by the debtor to the receiver. The New- York code of procedure, 
 adopted in 1848, and successively afterwards amended, in several respects, 
 seems to have placed real property and personal property, with reference 
 to this question, on the same footing.' If one passes, by force of the 
 order- of the court, and becomes vested in the receiver, without an as- 
 
 ^ "Wilson V. Allen, 6 Barb. 545. WU- receiver, would not pass the title to tLe 
 
 son v. Wilson, 1 Barb. Ch. Eep. 594. latter, (see Ouhatauque Co. Bank v. White, 
 
 Ohautauque County Bank v. White, 6 6 Barb. 589,) was expressly overthrown 
 
 Barb. 589 ; S. C. in court of appeals, 4 by the court of appeals in the same case 
 
 Seld. Verplank v. The Mercantile Ins. on appeal. See 4 Seld. 
 
 Co. 2 Paige, 452. = L. of 1845, p. 90, ch. 112. 
 
 The doctrine of the supreme court in ° Code of Procedure of 1851 : compare 
 
 the third district, that an assignment by §§ 462, 463, 464. 
 the debtor of his real property to the 
 
334 Quia Timkt. [Ch. 5. 
 
 signment by the debtor, as it has been shown that personal property does, 
 the other, since the adoption of the code, follows the same rule.' But 
 whether this be so or not, it is well settled that the title to real property 
 will pass by an assignment by the debtor to the receiver, made in pursu- 
 ance of an order of the court.' 
 
 The appointment of a receiver does not operate in such a manner as to 
 derange the priority of legal or equitable liens upon the property. As 
 the object of the appointment of a receiver is to preserve the property 
 for the person or persons entitled to it, the court will ultimately make 
 such disposition of it as to preserve the legal as well as equitable rights 
 of every claimant. Before the statute of 1845, the appointment of a re- 
 ceiver, in a creditor's suit, was treated as an equitable sequestration of the 
 property of the defendant.^ And even if the tenant of real estate was 
 not a party to the bill, he could be made to attorn to the receiver, and pay 
 the rents and ptofits to him.< Much more could he be so required, when 
 he was made a party. 
 
 If a receiver takes possession of property under the express direction 
 of the court, though there be conflicting claims to the property, the court 
 will not permit its officer to be harassed by a suit for obeying its order.' 
 It will enjoin any suit brought against the receiver, and administer 
 justice to the parties according to its own notions of equity. 
 * But if the receiver, without any direction to that effect from the court, 
 forcibly take goods belonging to others exclusively, under pretense that 
 they are goods belonging to the party for whom he was appointed receiver, 
 the court may, in its discretion, either take to itself the cognizance of the 
 complaint, and do justice between its officers and the parties aggrieved, or 
 it may permit the latter to bring a suit at law for the alleged injury.* 
 This is upon the principle that the possession of the receiver, when right- 
 ful, is the possession of the court ; and no one can disturb it but through 
 an application to the court. The acts of the receiver, in the administra- 
 tion of the estate, are the acts of the court ; and the court may, therefore, 
 if it pleases, prevent any other jurisdiction from questioning those acts, 
 because, strictly speaking, that would be to question the court's adminis- 
 
 ' See opinion in court of appeals, Porter ' Albany City Bank v. Sohermerhom, 
 
 V. "Williams, decided Dec. T. 18B3 ; S. 0., 9 Paige, 372, 377. 
 6 Howard's Pr. E. 441. Ohautauque Oo. * Id. Sea Ins. Co. v. Stebbins, 8 Paige, 
 
 Bank v. White, in court of appeals, re- 565. 
 versing S. 0., 6 Barb. 589. » Parker v. Brt)wning, 8 Paige, 389. 
 
 ° Id. ' Id. 890. Aaton v. Heron, 2 Myl. & 
 
 Eeene, 39Q. 
 
Ch. 5.] Quia Timet. 335 
 
 trative proceedings. But the court may leave the acts of the receiver to 
 be questioned elsewhere, for the purpose of trying the right.' 
 
 The duties which devolve on a receiver do not, in any case, make it 
 necessary for him to put himself in a situation in which he will not be 
 entitled to the full protection of the court. He is under no obligation to 
 attempt to take property out of the possession of a third person, or even 
 of the defendant, by force, and without an express order of the court 
 directing him to do so.* 
 
 In New- York the practice was well settled, that where the defendant 
 was directed to deliver over his property to the receiver under the direc- 
 tion of a master, it was customary for the receiver to call upon the master 
 to decide, upon the examination of the defendant, and other evidence, if 
 any before him, what property, legally or equitably belonging to the de- 
 fendant, and to which the receiver was entitled under the order of the 
 court, was in the possession of the defendant or under his power and 
 control. And it was the duty of the master to direct the defendant ■ to 
 deliver over to the receiver the actual possession of all such property, in 
 such manner, and within such time, as the master might think reasonable. 
 Where such direction was given, the defendant, if he was dissatisfied 
 with the decision of the master, could apply to the court to review the 
 same ; and he could, if the same was confirmed, be compelled, by process 
 of contempt, to comply with that decision. 
 
 If the property was in the possession of a third person, claiming a right 
 to retain it, the receiver could proceed by suit against such person in the 
 ordinary way, and thus try the right, cv the complainant could amend his 
 bill, making such third person a party, and have the receivership ex- 
 tended to the property in his hands ; so that the order for the delivery 
 of the property might be binding upon him, and be enforced, if necessary, 
 by process of contempt.' 
 
 Where the property was legally and properly in the possession of the 
 receiver, it was the duty of the court to protect that possession, not only 
 against acts of violence, but also against suits at law ; so that a third 
 person, claiming the same, might be compelled to come in and ask to be 
 examined pro interesse sua, if he wished to test the justice of such 
 claim. But where the property was in the possession of a third person, 
 under a claim of title, the court would not protect the officer, Who attempt- 
 ed by violence to obtain possession, any further than the law would pro- 
 
 ■ Parker v. Browning, 8 Paige, 390. ' Parker v. Browning, 8 Paige, 390. 
 Aston V. Heron, 2 Myl. & K. 890. ' Parker y. Browning, 8 Paige, 391. 
 
336 Quia Timet. [Ch. 5. 
 
 tect him ; his right to take possession of property, of which he 'had been 
 appointed receiver, being unquestioned.' 
 
 These principles remain the same at this day, though the duties, for- 
 merly devolving upon a master, are now discharged by the court, or a 
 referee. The act of 1845, already referred to, has enlarged the powers 
 of the receiver; and the abrogation of the court of chancery by the 
 present constitution, and the vesting of law and equity jurisdiction in 
 the same court, have produced some change in the mode of procedure, 
 not necessary to be discussed in this treatise, and which properly belongs 
 to books of practice. 
 
 The appointment of a receiver is, in general, one of the objects of a 
 bill quia timet. The cases to which it is applied, and the nature of the 
 relief, show that it belongs to that form of remedy. Where an executor 
 or other trustee is charged with abusing his trust, a receiver may be 
 appointed.'' A creditor filing a bill against an executor cannot make a 
 debtor of the testator a party. If there is a suspicion that the executor 
 is insolvent, and a proper case in other respects is made out, the court 
 will appoint a receiver, and restrain the executor from intermeddling 
 with the estate.' And if it be necessary to bring actions at law to 
 recover part of the effects, it must be in the name of the executor, and 
 the court will compel him to allow his name to be used.* Whether the 
 act of 1845,' in conjunction with the provisions of the code, will author- 
 ize the receiver of an executor to bring actions in his own name to recover 
 debts due to the estate, has not yet been decided. It would seem that 
 a person expressly authorized to sue in his own name by statute, may 
 do so, whether the party he represents had a cause of action in his own 
 right or in auter droit. But this question belongs rather to practice 
 and pleading, than to jurisdiction. 
 
 There are numerous other cases where the relief is granted on the 
 principle of quia timet, which have already been considered under 
 other heads, or which will appropriately fall under the head of injunc- 
 tion. Creditors' bills are in part founded upon this principle. 
 
 The question whether a receiver merely stands in the shoes of the party 
 whose estate is entrusted to him, or whether he represents the creditors, 
 and other persons interested therein, has been settled in this state in 
 
 ' Parker v. Browning, 8 Paige, 391. « Id. S. C, 4 Bro. 0. 0. 2T7. 
 
 " Boyd V. Murray, 8 J. Oh. E. 48. » L. of 1845, p. 90. Code, §§ 111, 112, 
 
 " Utterson v. Mairs, 2 Ves. jr. 95, 98. 113. 
 
Ch. 5.] Marshaling Securities. 337 
 
 favor of the latter position.' Hence, it is competent for him, in that 
 character, to maintain an action to set aside a fraudulent assignment, 
 made by the party whose estate he administers. An executor or admin- 
 istrator, under the Revised Statutes, represents other interests than 
 those of his testator or intestate, and can impeach the acts of the former, 
 ■when the claims of creditors make it necessary.' This is contrary to the 
 earlier cases, prior to 1830, which were decided on the principles of the 
 common law.' 
 
 The foregoing cases and remarks are sufficient to illustrate the gene- 
 ral principles whicTi govern in cases of Bills of Interpleader, Bills of 
 Peace, and Bills Quia Timet. A more extended discussion would lead 
 to a repetition of much that is more appropriate to the^ head of in- 
 junction. 
 
 SECTION IV. 
 
 OF BILLS TO MARSHAL SECURITIES. 
 
 In considering the doctrine of apportionment and contribution, we 
 have already had occasion to bring to the notice of the reader, principles 
 analogous to that of the subject of this section. We shall also, in a sub- 
 sequent chapter, be led to discuss, at some length, the principles on 
 which the assets of deceased persons are marshaled, and which bear a 
 close resemblance to those which prevail in marshaling securities where 
 the parties are still living.^ The doctrine in cases of this kind, as ex- 
 pounded by Lord Hardwicke, Lord Eldon, Chancellor Kent and others, is, 
 that where there are several creditors, having a common debtor, who has 
 several funds, all of which can be reached by one creditor, and only a 
 part of the funds by the others, the former shall take payment out of 
 the fund to which he can resort exclusively, so that all may be paid.« 
 
 ' Porter v. Williams, 5 How. Pr. R. ' Ex parte Kendall, 17 Ves. 520. Dorr 
 
 441 ; S. 0. on appeal, 4 Seld. "Wilson v. v. Shaw, 4 J. Oh. R. 17, 20. Aldrioh v, 
 
 ■Allem, 6 Barb. 544', 545. Cooper, 8 Ves. 382. White's Leading 
 
 * Doi V. Backenstose, 12 Wend. 542. Cas. in Eq. vol. 2, part 1, pp. 175, 192 to 
 Babcock v. Booth, 2 Hill, 181. .Brownell 237, notes by American editor. Chees- 
 V. Curtis, 10 Paige, 210, 218. 2 R. S. 87, borough v. Millard, 1 J. Oh. R. 413. La- 
 § 28. Id. .449, § 17. - noy v. The Duke of Athol, 3 Atk. 446. 
 
 » Osborne v. Moss, 7 J. E. 161. The N. Y. Ferry Co. v. The N. J. Co. 
 
 * See post, Chap. VII, Sec. 14. Hopk. 460. Evertson v. Booth, 19 J. R. 
 Eq. Jub. . 43 
 
338 Marshaling Securities. ' [Oh. 5 
 
 This principle applies to mortgages, judgments, or any other security 
 ■which creates a lien in favor of the creditor ; and it rests upon the 
 natural equity, that one man shall not so use the right which he enjoys, 
 as to prejudice, unnecessarily, the rights or remedies of others. The 
 law does no injustice to the creditor, whose lien is the most extensive, if 
 
 I it prevents him from wasting or sacrificing the fund. It permits him to 
 
 I he paid in full, but out of such portions of the fund that will work the 
 least inconvepience to the creditors, whose liens are confined to a part of 
 it only. It is obvious that in this way no wrong is done to the creditor 
 who could reach all the funds, and the common debtor receives a benefit 
 
 , by the discharge of a larger portion of his debts, than if the fiinds 
 were needlessly exhausted by a single creditor. 
 
 The relief in these cases is never granted, except where the plaintiff 
 and the party against whom it is prayed, are creditors of a common 
 
 f debtor ; and the relief can be granted without prejudice to the latter. The 
 principle is not applicable, where the first creditor has a judgment or 
 other security against two persons, and the second creditor has a like 
 judgment or other lien against one of the same persons, unless it be 
 averred and proved that the latter alone is bound to pay both debts ; for, 
 in that case, he becomes the common debtor. This is illustrated by the 
 case of Dorr v. Shaw, already cited. In that case, the defendant held 
 a judgment against A. and B., binding upon seventy-two acres of land 
 owned by A., and thirty acres of land owned by B. The plaintiff was 
 the owner of a younger judgment against A. only, and binding on the 
 seventy-two acres alone. The defendant, as owner of the elder judgment, 
 purchased in the thirty acres, on which his judgment originally attached, 
 in part payment of his judgment, and the plaintiff, as owner of 
 the junior judgment, purchased in the seventy-two acres, bound by 
 his judgment. The defendant then pursued his execution, to collect 
 the balance of the elder judgment, against the seventy-two acres. The 
 plaintiff -sought by his bill to prevent this, by requiring the defendant 
 to be satisfied by his sale of the thirty acres, already purchased by 
 him, averring in his bill that the said thirty acres were worth more than 
 enough to pay the defendant's judgment, though bid off by the defend- 
 ant for a less sum. The chancellor held that relief could not be granted, 
 inasmuch as it did not appear which of the debtors ought to pay the 
 debt. Treating both A. and B. as original debtors, there was no reason 
 
 486. Besley v. Lawrence, 11 Paige, 581. Doyle, 1 Paige, 568. Wilder v. Keeler, 
 Hunt V. Townaend, 4 Sand. Oh. E. 510. S id. 167. 
 Averill v. Loucks, 6 Barb. 470. Purdy v. 
 
Ch. 5.] Marshaling Securities. 339 
 
 ■why the court should interfere, and charge the debt upon one of them 
 instead of the other. They were not parties to the suit.' If, in truth, 
 the thirty acres were worth enough to pay the elder judgment, the plain- 
 tiff should have attended the sale, and bid the property up to that amount, 
 and thus relieved the seventy-two acres from the lien of that judgment. 
 Having ommitted to avail himself of that remedy, he had no equity to 
 compel the elder judgment creditor to forego his legal advantage, aris- 
 ing from the priority of his lien on the seventy-two acres. The latter 
 was entitled to the payment of his judgment in full. 
 
 Marshaling securities will not be enforced to the prejudice of a third 
 party. Thus, where a person being seised of several estates, and indebted 
 by judgments, settled one of the estates for valuable consideration, with 
 a covenant against incumbrances, and subsequently acknowledged other 
 judgments, it was insisted by the subsequent judgment creditors that as 
 they only affected the unsettled estates, on the principle in Aldrich v. 
 Cooper, they, having only one fund, had a right to compel the prior judg- 
 ment creditors, who had two funds, the settled and the unsettled estates, to 
 resort to the former ; or at any rate, that the settled estates ought to eon- 
 tribute to the payment of the prior judgments. But Sugden, lord chan- 
 cellor, held, that the subsequent judgment creditors had no equity to 
 compel the prior judgment creditors to resort to the settled estates ; on 
 •the contrary, that the prior judgments should be thrown altogether on 
 the unsettled estates, and that the subsequent judgment creditors had no 
 right to make the settled estate contribute; observing, after a close 
 examination of Aldrich v. Cooper, that, upon the whole of the case. Lord 
 Eldon, in the application of the principle, carefully avoided dealing with 
 the rights of third persons intervening." 
 
 Where a creditor buys in an incumbrance at an under value, he is en- 
 titled to be allowed the whole amount, unless he be a trustee, agent, &c., 
 or stand in confidential relations to the party, in which latter case, he is 
 allowed for it no more than he actually paid as against his cestui que 
 trust, principal, «fec.' 
 
 Enough has been said to illustrate the general principles on which secu- 
 rities are marshaled by the court. It is truly one of the remedies to pre 
 vent fraud. Examples of the doctrine will be found under other heads', 
 which it is unnecessary to repeat. 
 
 ' Dorr V. Shaw, 4 J. Oh. R. 17. Ex Barnes v. Eacster, 1 Young & Ool. 0. 0. 
 
 parte Kendall, 17 Ves. 520. Hawley v. 401. 
 Mancius, 7 J. Ch. E. 184. ' Monet v. Parke, 2 Atk. 54. 'Williams 
 
 ■■'Averallv.'Wade,L.&G.t. Sngden252. v. Springfield, 1 Vern. 476. Philips v. 
 
 "White's Eq. Oas. vol. 2, B. 1, p. 192, notes. Vaughn, id. 336. 
 
CHAPTER VI. 
 
 OF INJUNCTIONS. 
 
 SECTION I. 
 
 GENERAL VIEW OF THE SUBJECT. 
 
 AN injunction is a mandate in writing, issued by a court or officer of 
 competent jurisdiction, either under the seal of the court, or by order, 
 commanding the party to whom it is addressed to do, or to refrain from 
 doing, some particular thing, as is required in such writ or order. Ac- 
 cording to the former practice of the court of chancery of this state, an 
 injunction usually issued under the seal of the court, in pursuance of an 
 order for that purpose, granted by the chancellor, a vice chancellor, or 
 an injunction master. But there were numerous cases in which the court 
 expressed its commands, in the shape merely of an order in the nature of 
 an injunction. And the court treated the negligence or disobedience of 
 its order as a contempt, and enforced the performance of it by imprison- 
 ment. The object sought by an injunction was as well attained by the 
 order as by the writ of injunction.' 
 
 Injunctions, with reference to their duration, are of two kinds, prelim- 
 inary and final. The first are granted beftyre, and the last after the 
 final decree or judgment in the cause.'' With reference to their objects, 
 they are of two kinds, commanding a party to do, or to refrain from doing, 
 a particular thing. 
 
 The granting of a preliminary injunction rests in the discretion of the 
 court.' There are many cases in which the complainant may be entitled 
 to a perpetual injunction on the hearing, when it would manifestly be 
 
 ' Eden on Injuno. ch. 14. 2 B. S. 173. ' Potter v. Chapman, Ambl. 99. Kob- 
 Ohancery Rules, 30, 31. erts v. Anderson, 2 J. Oh. B. 202, ' 
 
 » 1 Barb. Oh. Pr. 608. 
 
 341 
 
342 Of Injunction. [Ch. 6. 
 
 improper to grant an injunction in limine. The Jinal injunction is in 
 many cases matter of strict right, and granted as a necessary consequence 
 of the decree made in the cause.' A preliminary injunction should not 
 be granted before answer, unless it is necessary to protect some interest 
 or right, which may be injured or endangered by the defendants' proceed- 
 ings in the mean time.' 
 
 An injunction is never granted against persons who are not parties to 
 the suit.' And it should only be granted where the rights sought to be 
 protected are clear, or at least free from reasonable doubt.^ And a pre- 
 liminary injunction should never be granted unless specifically prayed for 
 in the bill.^ In this state, the pleading on the part of the plaintiff is 
 called a complaint instead of a bill under the old pratice. But the com- 
 plaint, as has been before stated, must contain, like the bill, a statement 
 of the facts which constitute the cause of action, and the appropriate 
 prayer or dSmand for the relief sought. The rule with respect to the ne- 
 cessity of filing the bill, is probably applicable to the complaint, which is 
 substituted for it. 
 
 When the court obtains jurisdiction of the cause by bill or complaint, 
 an injunction should not be issued until the bill is filed.* If the injunc- 
 tion be granted perfding the action, upon a petition for that purpose, the 
 filing of the petition before granting the injunction is a substantial compli- 
 ance with the act.' 
 
 According to the English practice, a distinction is made between com- 
 mon and special injunctions. An injunction which issues for the default 
 of the defendant, either in appearing or answering, is called a common 
 injunction. Special injunctions are such as are granted only upon special 
 application to the court. This distinction is inapplicable to our practice, 
 as all injumctions are granted upon special application to the court, or to 
 a judge ; and these, with respect to preliminary injunctions, are granted 
 either ex parte on filing the bill or petition, or upon notice, where the 
 practice requires it, or it is ordered by the court or judge. 
 
 In New- York, the writ of injunction, as a provisional remedy, ia abd- 
 ished by the Code of Procedure, and an injunction by order substituted.* 
 The order may be made by the court in which the action is brought, or 
 
 ' TS. T. Printing and Dyeing Establish- • Snowden v. Noah, Hopk. 347. 
 
 ment v. Fitch, 1 Paige, 98. " Ogden v. » "Walker v. Devereanx, 4 Paige, 229. 
 
 Kip, 6 J. Oh. E. 60. ' 2 K. S. 179, § 71. 
 
 ' Osborne v. Taylor, 5 Paige, 515. ' In the matter of Hemiup, 2 Paige, 
 
 ' Fellows V. Fellows, 4 J. Oh. E. 25. 816. 
 
 Waller v. Harris, 7 Paige, 167. • Code, § 218. ' 
 
Ch. t.] Of Injunctions, 343 
 
 by a judge thereof, or by a county judge, and when made by a judge, may 
 be enforced as the order of the court.' 
 
 The code defines in what cases a preliminary injunction may be grant- 
 ed. It makes no provision in relation to Jinal injunctions, which are con- 
 sequently governed by th« former practice, except as modified by other 
 parts of the code. 
 
 The provision in relation to preliminary or temporary injunctions is 
 thus : " Where it shall appear by the complaint that the plaintiff is enti- 
 tled to the relief demanded, and such relief, or any part thereof, consists 
 in restraining the commission or continuance of some act, the commission 
 or continuance of which, during the litigation, would produce injury to the 
 plaintiff; or when, during the litigation, it shall appear that the defend- 
 ant is doing, or threatens, or is about to do, -or procuring or suffering 
 some act to be done in violation of the plaintiff's rights, respecting the 
 subject of the action, and tending to render the judgment ineffectual, a 
 temporary injunction may be granted to restrain such act. And where, 
 during the pendency of an action, it shall appear, by affidavit, that the 
 defendant threatens, or is about to remove, or dispose of his property, 
 with intent to defraud his creditors, a temporary injunction may be 
 granted to restrain such removal or disposition."^ A subsequent section' 
 provides that an injunction may be granted at the time of commencing 
 the action, or at any time afterwards, before judgment, upon its appear- 
 ing satisfactorily to the court or judge, by the affidavit of the plaintiff, or 
 of any other person, that sufficient grounds exist therefor. A copy of the 
 ■affidavit must be served with the injunction. Other sections regulate tho 
 practice as to notice, security, and motions to vacate injunctions. 
 
 If the cause for granting the injunction exist at the time of filing the 
 complaint, an injunction should not be granted unless a demand for an 
 injunction is contained therein ; if the grounds for issuing it arose after 
 filing the complaint, the application for it may be made upon affidavit 
 disclosing such grounds.'' The complaint may be so drawn, that an affi- 
 davit verifying the same will entitle the party to an injunction.' But a 
 party will not be entitled to a temporary injunction pending the action, 
 unless the complaint discloses a case entitling the plaintiff to final re- 
 lief by injunction.* The law with respect to injunctions has not been 
 
 • Code, § 218. Hogan, 4 id. 225. Miliken v. Carey, 5 id. 
 » Id. § 219. 272, contra. 
 
 ' Id. § 220. • Coming v. Troy Iron Co. 6 How. 89. 
 
 * Hovey v. McOrea, 4 How. 31. Ward v. Dewey, 7 id. 17. Hulce v. 
 ' Roome v. Webb, 8 id. 327. Krom v. Thompson, 8 id. 476. Wordsworth v. 
 
 Lyon, 6 id. 463. 
 
344 , Of Injunctions. [Ch. 6. 
 
 iaaaterially changed by the code.' The cases to which the remedy is ap- 
 plicable are the same now as before the code. The former decisions on 
 this subject are still good authority on all questions of jurisdiction. 
 
 It has been held that no court in this state can now rightfully enjoin a 
 defendant from proceeding in a suit in another court of the state,, having 
 equal power to grant the relief sought by the complaint." 
 
 The, foregoing remarks are sufficient by way of introduction to the sub- 
 ject under discussion. It will be impossible to notice, in this chapter, all 
 the cases in which the remedy by injunction is appropriate. It will be 
 BuflScient to bring under review a few of the cases under the leading heads 
 of equity jurisdiction, where this remedy has been applied. We shall 
 treat the subject under the following subdivisions : 
 
 1. Injunctions to stay proceedings in courts of law or equity. 
 
 2. To restrain the indorsement or negotiation of notes and bills of ex- 
 change, the sale of land, the sailing of a ship, the tra.nsfer of stock, or 
 the alienatioa of a specific chattel, and for the delivering up of bonds, 
 notes, &c. 
 
 3. To prevent the wasting of assets or other property pending the 
 litigation. 
 
 4. To restrain trustees from assigning . the legal estate, or assignees 
 from making a dividend. 
 
 5. To prevent the removing out of the jurisdiction, marrying or having 
 any intercourse, which the court disapproves of, with a ward. 
 
 6. To restrain the commission of waste and trespass. 
 
 7. To prevent the infringement of patents and the violation of copy 
 rights, and the unauthorized publication of letters, <fcc. 
 
 8. To suppress the continuance of public or private nuisances, pur- 
 prestures, &c. 
 
 9. To restrain the multiplicity of suits, to quiet possessions, and to 
 repress vexatious litigation ; and to protect corporations in the enjoyment 
 of their franchises. 
 
 10. To restrain a judgment debtor from disposing of his property. 
 
 11. To restrain the usurpation of corporate powers, and the alienation 
 of corporate property, and to restrain insolvent corporations. 
 
 These are far from being all the cases to which this remedial process 
 has been, or may be applied, but the discussion of them will afford a 
 general view of the nature of the jurisdiction. 
 
 > Ooming v. Troy Iron Oo. 6 How. 92. = Grant v. Quick, 5 Sandf. S. 0. K. 612. 
 ■Wordsworth v. Lyon, 5 id. 468. 
 
Ch. 6.] To Restrain Suits in other Courts. S45 
 
 SECTION IL 
 
 OF IKJUNCTIONS TO RESTRAIN PROCEEDINGS IN OTHER COURTS. 
 
 There is no branch of equity jurisprudence wbich met with so much 
 disfavor and opposition, in the early stages of the law, as the granting 
 of injunctions generally; and more particularly so, when the object was 
 to restrain the proceedings of other courts. It was one of the charges 
 against Cardinal Wolsey, that he examined many matters in chancery 
 after judgment had been given at law, and that he unduly granted injunc- 
 tions.' His successor. Sir Thomas More, was cautious in granting 
 injunctions, but when granted he upheld them with firmness, when he 
 thought that justice required his interference with the judgments of the 
 courts of common law.^ The struggle between the courts of law and 
 equity, with respect to this jurisdiction, was not brought to a crisis, till the 
 time of Lord Ellesmere, chancellor to James the 1st. Lord Coke, chief 
 justice of the king's bench, denied the power of the chancellor, and boldly 
 gave judgment in a case in which the chancellor had granted an injunc- 
 tion to stay proceedings ; he bailed, and afterwards discharged a person 
 who had been committed by the lord chancellor for breach of an injunc- 
 tion against suing out execution on a judgment ; and, in another case, he 
 got Justice Dodderidge, a puisne judge of the king's bench, to express a 
 strong opinion, along with him, that the interposition of equity in actions 
 at law was illegal. 
 
 Still the chancellor continued to exercise his jurisdiction as before ; 
 and in a case where a judgment had been fraudulently obtained in the 
 court of king's bench, he pronounced a decree to set it aside, and granted 
 a perpetual injunction against execution. The matter was at length 
 brought before the king, who, by the advice of the law officers of the 
 crown, decided in favor of the, jurisdiction of equity.' 
 
 But though the jurisdiction was thus firmly established, yet the 
 practice of issuing injunctions to restrain proceedings at law, and indeed 
 in other cases, was sparingly exercised until the time of Lord Eldon, more 
 
 ' Lord Oampbell's Life of Cardinal ' Lord Campbell's Life of Lord Ch. 
 Wolsey, p. 385. Ellesmere, where the controversy is stat- 
 
 " Lord Campbell's Life of Lord Ch. ed at length, 210, 213. 
 More, p. 415. 
 
 Eq. Jue. 44 
 
346 Of. Injunctions. [Ch. 6. 
 
 than a century later. Lord Thurlow, it is said, would hardly grant an 
 injunction where the parties had a remedy at law. Before his time, there 
 are not more than half a dozen instances of each species of injunction, 
 and in these relief was as often denied as granted. " Now," says an 
 admirer of Lord Eldon, "injunction is, it is well known, the right arm of 
 the court, pervading the workshop of the artizan, the studio of the artist ; 
 entering alike the miner's shaft, and the Aerchant's counting house. 
 Almost all the principles upon which this relief is granted or refused, 
 the terms and conditions upon which it is dissolved, revived, continued, 
 e;stended or made pei-petual, are to be found in Lord Eldon's judgments 
 alone.'" 
 
 A bitter controversy, at one time, existed in New- York, between the 
 supreme court and the court of chancery, with respect to the power of 
 the former to commit for contempt.'^ And there has always been, while 
 the two courts were kept separate, a strong party adverse to the existence 
 of the court of chancery as a distinct tribunal. Nevertheless, the su- 
 preme court held that an existing injunction, although operating only on 
 the parties, their attorneys and agents, would be noticed by the court, 
 for the purpose of promoting the ends of justice, and of preserving har- 
 njony between the two courts.^ 
 
 Injunctions to stay proceedings at law are sometimes granted before 
 the action is at issue ; sometimes after issue and before trial ; sometimes 
 after verdict and before judgment, and sometimes after judgment. 
 
 The causes for which the injunction in these cases may be allowed, are 
 various. In one instance, in an action at law against an accommodation 
 indorser, the court granted an injunction in his favor until the creditor 
 should have first pursued his remedy against the principal debtor, from 
 whom he had ample security by bond and mortgage.* Where the princi- 
 ples of equity require that the action against the surety should be post- 
 poned until the creditor has exhausted his remedy against the principal 
 debtor, the action against the surety will be stayed by injunction ; and if 
 sg.tisfaction of the debt be obtained from the principal, the injunction 
 against the further prosecution of the surety will be made perpetual. As 
 the surety, on paying the debt, is entitled to be subrogated, to all the 
 rights of the creditor, and is entitled to the securities which he has 
 tai;en, if there be any suspicion as to the validity of those securities, 
 
 ' Lord Campbell's Life of Lord Eldon, error, 6 id. 837. Yates v. Lansing, 5 id. 
 pp. 501, 502, 282 ; S. 0. in error, 9 id. 396. 
 
 ' Ex parte Yates, 4 J. R. 817; S. 0. in ' Hoyt v. Gelston 13 J. R. 139. 
 
 * Hayes v. Ward, 4 J. Oh. R. 123. 
 
(jh. 6.] To Restrain Suits in other Courts. 347 
 
 it was thouglit by the chancellor that their validity should be tested by 
 the creditor in an action brought in his own favor, and at his own ex- 
 pense, rather than that the surety should be at once called upon to pay the 
 debt, and then be turned over to a doubtful remedy. And accordingly he 
 restrained, by injunction, the action against the surety, until the further 
 order of the court, to enable the creditor to enforce the collection of a 
 bond and mortgage taken to secure the debt, and which, as between the 
 creditor and the surety, was the primary fund.' 
 
 The cases in which relief in equity may be granted, against actions at 
 law, are infinite. The jurisdiction does not spring from any superiority 
 of a court of equity over a court of law, but originates in the fact, that 
 the party complained of is making a use of the jurisdiction at law, con- 
 trary to equity and good conscience.^ There are numerous instances 
 where a defendant has a good defense to an action at law, which, by mis- 
 take, accident or fraud of the other party, he is prevented from making. 
 In all these cases equity will interpose, and make the defense available. 
 In most of the cases we have considered under the head of fraud, acci- 
 dent and mistake, the remedy was made effectual by injunction. 
 
 We can learn when equity will stay an action at law, by adverting to 
 some of the instances in which it will not interpose. In the first place, 
 it is well settled that equity will not restrain an action at law by a pre- 
 liminary injunction, on the application of the defendant in such action, 
 if he has a perfect defense at law.' Unless the injunction is necessary 
 to make the defense available ; if it will be as effective without, as it will 
 be with the aid of equity, there is no reason for withdrawing the action 
 from the forum which the plaintiff has sought.* 
 
 On the same principle, a party is not entitled to an injunction to stay 
 proceedings in an action at law upon an award, on the ground that the 
 award was obtained by the fraud or corruption of the arbitrators, or that 
 there never was any submission to them as arbitrators.^ In such a case 
 there is a perfect defense at law upon the award, and relief in equity is 
 not necessary. Nor will equity afford relief to-a party who, by his own 
 negligence, has lost the opportunity of making a defense at law.* Nor 
 will it grant an ex parte injunction upon a mere fishing bill ; as where 
 
 ' Hayes v. Ward, 4 J. Ch. E. 134. * Osborne v.Taylor, 5 Paige, 515. Grant 
 
 = Hill V. Turner, 1 Atk. 516. v. Quick, 5 Sand. S. 0. E. 612. 
 
 ' N". T. Dry Dock Oo. v. The Am. Life " Snediker v. Pearson, 2 Barb. Ch. E. 
 
 Ins. Oo. 11 Paige, 384. Mitchell v. Oak- 107. 
 
 ley, 7 id. 68. "Dodge v. Strong, 2 J. Oh. JR. 228; 
 
 Murray v. Graham, 6 Paige, 622i 
 
^8 Of Injunctions. [Ch. &. 
 
 it is sought to restrain a suit at law,, and no fact is positively sworn to as 
 being in the knowledge of the defendant, which, if proved, would defeat 
 him in the action.' 
 
 The court will not, unless perhaps in some very special case, exercise 
 the power by injunction, of restraining proceedings which have been pre- 
 viously commenced in the courts of another state. Not only comity, but 
 public policy, forbids the exercise of such a power .^ As was said by Chan- 
 cellor Walworth, in Mead v. Merritt : If this court should sustain an in- 
 junction bill to restrain proceedings previously commenced in a sister 
 fitate, the court of that state might retaliate upon the complainant, who 
 was defendant in the suit there ; and by process of attachment might 
 compel him to relinquish the suit subsequently commenced here. By 
 this course of proceeding, the courts of different states would indirectly 
 be brought into collision with each other in regard to jurisdiction ; and 
 the rights of suitors might be lost sight of in a struggle for what might 
 be considered the legitimate powers and rights of courts. Nor will the 
 courts of the United States enjoin proceedings in a state court.' Nor 
 can the state courts enjoin proceedings in the courts of the United States,* 
 
 The cases which have hitherto been considered, are where relief has been 
 Bought against an action at law, in its early stages, and before it has pro- 
 ceeded to issue. At the revision of the laws in 1830, it was deemed ad- 
 visable to impose some restrictions upon the power of granting injunctions 
 in actions at law, after issue ;= and the code of procedure extended some 
 of these restrictions to all cases.^ In addition to this, the rules of the 
 court, at an early day, contained salutary provisions against the abuse of 
 the power, the principles of which were incorporated in the statutes be- 
 fore mentioned, with other improvements.'' As these enactments affect 
 the jurisdiction of the court, as well as its practice, they seem important 
 to be stated in this connection. 
 
 The Revised Statutes enact, that no injunction shall be issued to stay the 
 trial of any personal action at issue in a court of law, until the party ap- 
 plying therefor shall execute a bond, with one or more sufficient sureties, 
 to the plaintiff in such action at law, in such sum as the chancellor or 
 master allowing the injunction shall direct, conditioned for the payment 
 
 ' Burgess v. Smith, 2 Barb. Oh. E. 276. ' McKee v. Voorhees, 7 Cranoh. 279. 
 Mead v. Merritt, 2 Paige, 402. "Williams ' 2 R. S. 188 et seq. 
 V. Harden, 1 Barb. Oh. E. 298. • Code, § 222. 
 
 " Mead v. Merritt, 2 Paige, 405. Bur- ' See Chancery Eules of Oh's Lansing 
 
 gess V. Smith, 2 Barb. Ch. E. 280. and Kent, 41, 42, 48. 
 
 ' Diggs V. "Woloott, 4 Oranch, 179. 
 
Ch. 6.] To Restrain Suits in other Courts. 849 
 
 to the said plaintiff and his legal representatives, of all moneys which 
 may be recovered by such plaintiff or his representatives, or the collec- 
 tion of which may be stayed by such injunction, in such action at law, for 
 debt or damages and for costs therein ; and also for the payment of such 
 costs as may be awarded to them in the court of chancery in the suit in 
 which such injunction shall issue.' The foregoing relates to actions at 
 law at any stage between issue and trial. The next section provides, 
 that no injunction shall be issued to stay proceedings at law in any per- 
 sonal action, after verdict, and before judgment thereupon, unless a sum 
 of money, equal to the amount for which the verdict was given, and the 
 costs of the suit, shall be first deposited with the court of chancery, by 
 the party applying for such injunction, or a bond for the payment thereof, 
 shall be given as thereafter directed. And the succeeding section enacts, 
 that no injunction shall issue to stay proceedings at law, in any personal 
 action, after judgment, unless, 1st. A sum of money, equal to the full 
 amount of such judgment, including costs, shall be first deposited by the 
 party applying for such injunction, or a bond in lieu thereof be given, as 
 thereafter directed. And, 2d. Unless such party in addition to such de- 
 posit-shall also execute a bond, with one or more sufficient sureties, to the 
 plaintiff in the said judgment, in such sum as the chancellor or officer 
 allowing the injunction shall direct, conditioned for the payment to the 
 said plaintiff and his legal representatives, of all such damages and costs 
 as may be awarded to them by the court, at the first hearing of the cause. 
 It is also provided, that money so deposited to obtain an injunction, after 
 verdict or judgment, may be paid over to the plaintiff in the action at 
 law, on his giving adequate security to refund it, when ordered by the 
 court. 
 
 The foregoing provisions relate to personal actions. To cover the 
 whole ground of equity jurisdiction it was further enacted, that no in- 
 junction should issue to stay proceedings at law, in any action, for the 
 recovery of lands, or of the possession thereof, after verdict, unless the 
 party applying therefor shall execute a bond, with one or more sureties, 
 to the plaintiff in such action at law, in such sum as the chancellor or 
 officer allowing the injunction shall direct, conditioned for the payment 
 to the plaintiff in such action, and his legal representatives, of all such 
 damages and costs as may be awarded to them, in case of a decision 
 against the party claiming the injunction. 
 
 Such were the salutary provisions of the Revised Statutes, restrictive 
 of the power of courts of equity to stay proceedings at law. It does not 
 
 ' a K. S. 188, § 189. 
 
350 Of Injunctions. [Oh. 6. 
 
 belong to this treatise to point out the mode of ascertaining damages, 
 and enforcing the securities directed to be taken. But it is obvious that 
 cases may arise in which a deposit of the whole sum recovered, as a con- 
 dition to the allowance of an injunction, would be inequitable and oppres- 
 sive. The chancellor was, therefore, empowered to dispense with any 
 deposit of moneys required by any of the preceding sections, and, ia 
 lieu thereof, to direct the execution of a bond, with sureties, conditioned 
 to pay the amount so required to be deposited, whenever ordered by the 
 court of chancery ; or if a bond was already required, in addition to such ' 
 deposit, then to direct the enlargement of the penalty and condition of 
 such bond as might be requisite. But whenever such deposit shall be 
 dispensed with, the bond so substituted or enlarged, shall be executed by 
 at least two sufficient sureties. It was also foreseen that some cases might 
 arise in which the yiterposition of the court might be invoked, in which 
 both a deposit of money or the giving of a bond might be dispensed with. 
 It was, therefore, accordingly enacted, that whenever an injunction should 
 be applied for, to stay proceedings at law, in any action after judgment 
 or verdict, on the ground that such judgment or verdict was obtained by 
 actual fraud, the chancellor should have power to dispense with the de- 
 posit of any moneys or the execution of any bond.' 
 
 On the abrogation of the court of chancery by the present constitution, 
 and the transfer of its jurisdiction to the supreme courtj all the laws then 
 in force, relating to the court of chancery and its officers, were made ope- 
 rative, as far as applicable, to the supreme court and its judges and offi- 
 cers.^ And the Code of Procedure assumes that the foregoing provisions 
 of law are in force, and it merely requires that when no provision is 
 made by statute as to security upon an injunction, the court or judge shall 
 require a written undertaking, on the part of the plaintiff, with or with- 
 out sureties, to the effect, that the plaintiff will pay to the party enjoined 
 such damages, not exceeding the amount to be specified, as he may sus- 
 tain by reason of the injunction, if the court shall finally decide that the 
 plaintiff was not entitled thereto.' This was a mere revision and mod- 
 ification of the 31st rule of Chancellor Walworth. 
 
 A compliance with the statute requirments is essential to the jurisdic- 
 tion of the court, and without which the injunction will be discharged. 
 
 As an injunction to restrain proceedings at law is directed only to the 
 parties, and assumes no superiority over the court in which the action 
 
 ' 2 R. S. 190, § Ut. » Code, § 222. 
 
 " Judiciary Act, L. of 1847, § 16, p. 328. * Jenkins v. "Wilds, 2 Paige, 394, 
 
Oh. 6.] To Restrain Suits in other Courts. 351 
 
 is pending, but is granted solely on the ground that some equitable cir- 
 cumstances exist which render the prosecution at law against conscience, 
 there is no reason why an injunction should not be granted, by the court 
 in which the action is pending, if the court has jurisdiction both at law 
 and in equity. To make the injunction effectual, it may be necessary to 
 bring in other parties, and the transaction out of which the equity arises 
 may be of too complicated a nature to be investigated in a motion in the 
 same court for summary relief. To prevent fraud, or great injustice, in 
 such a case, although the court has jurisdiction to grant relief by a motion in 
 the same cause, it will, nevertheless, merely stay proceedings for a limited 
 time, to enable the complaining party to seek the aid of a court of equity.' 
 The court does not in such cases enjoin itself, but restrains the plaintiff 
 from proceeding in a manner that deprives the defendant of some defense 
 to which he is equitably entitled, or which gives to the plaintiff an advan- 
 tage which, in conscience, he should not possess. The New- York code 
 of procedure has afforded some facilities for investigating facts on a mo- 
 tion, which the courts did not formerly have, unless in an expensive and 
 imperfect manner by directing an issue. Now a reference may be taken, 
 for this ;^urpose, in any stage of the action." But it is believed that many 
 cases may still arise where this remedy, if not entirely ineffectual, is great- 
 ly inadequate. 
 
 The general rule is, that equity will not relieve against a judgment at 
 law, on the ground of its being contrary to equity, unless the defendant 
 below was ignorant of the fact in question, pending the suit, or it could 
 not have been received as a defense. If a party will suffer a judgment 
 to pass against him by neglect, he cannot have relief in equity for a mat- 
 ter of which he might have availed himself at law." 
 
 Suppose a plaintiff should recover a verdict for a debt which had been 
 paid, it would be manifestly inequitable that he should enjoy the fruits 
 of his recovery. Still, even in such a case, equity could not relieve, un- 
 less the Jplaintiff knew the fact to be otherwise, and the defendant was 
 ignorant of it at the trial.* But should the defendant, knowing of the 
 payment, submit to go to trial, without obtaining the plaintiff's answer to 
 a bill of discovery, or, under the present practice, without calling the 
 
 ■ Lansing v. Oroott, 16 J. R. 4. Smith Gnin v. Gouverneur & Eemble, 1 J. Gas. 
 V. Paige, 15 J. R. 395. 
 
 ' Code, § 271, sub. 3. * "Williams v. Lee, 3 Atk. 223. Gains- 
 
 ' Lansing v. Eddy, 1 J. Ch. R. 51. Le- borough v. GifEbrd, 2 P. Wms. 424. 
 
352 Of Injunctions. f*^^'ifc' 
 
 plaintifF as a witness to prove the fact on the trial, equity would not 
 relieve.' 
 
 There may be cases where the rule is subject to some modification, 
 but, in general, where a party has neglected his means of defense at law, 
 equity will not interfere. Thus, where a defendant at law knew of the 
 existence of facts constituting a defense and omitted to prove 'them on 
 the trial, and acquiesced nearly three years in the recovery, the court 
 refused to relieve him." So if the judgment be paid, and the plaintiff in 
 the execution still claims to enforce it, a bill in equity to stay the pro- 
 ceeding is in general unnecessary, because there is a prompt and adequate 
 relief at law by motion.' But should the relief be sought by a person 
 not a party to the judgment, on whose land it was attempted to be enforced, 
 a resort to an action might be indispensable, and an injunction would be 
 an appropriate remedy.* 
 
 Where the whole or a part of the judgment has been paid, and the 
 plaintiff, notwithstanding, is proceeding to collect the whole judgment, or 
 the part thereof which has been paid, the proper remedy of the defend- 
 ant is by a summary application to the court in which the judgment was 
 recovered.' Such court can, in general, afford relief either by an order 
 to stay execution, and in case of full payment, by an order directing sat- 
 isfaction to be acknowledged. The statute requiring a deposit of the 
 amount of the judgment, as a condition of relief, does not apply to summary 
 applications in the court which pronounced the judgment. With respect 
 to judgments obtained by confession by virtue of a bond and warrant of 
 attorney, it has long been settled that the court in which the judgment 
 is entered has an equitable jurisdiction, and may examine and decide 
 whether it was fairly obtained or not, either on the application of the 
 defendant, or of a creditor having an interest in the inquiry.' 
 
 If, in case of an alleged payment of a judgment, it becomes necessary 
 to seek relief in a court of equity, and it is desirable that the giving of a 
 bond, or the making of the deposit of the amount, should be dispensed 
 with, it is incumbent on the party thus seeking to be excused to state in 
 his complaint the time, circumstances and amount of each payment, so as 
 to enable the court, by mere computation, to fix the amount of the bond 
 or deposit ; and to give the party who is sought to be enjoined an oppor- 
 tunity to meet and deny the fact of such payments, if they have not been 
 
 ' Williama v. Lee, 3 Atk. 223. Gams- - Lansing v. Orcott, 16 J. B, 4. 
 
 borough v. GiflFord, 2 P. "Wms. 424. Le- ° Christie v. Bogardus, 1 Barb. Oh. E. 
 
 Gwin v. Gouverneur, 1 J. Gas. 436. 167. 
 ° Lansing v. Eddy, 1 J. Ch. E. 61. " Frazer v. Frazer, 9 J. E. 80. Brink- 
 
 = Id. erhoof v. Marvin, 5 J. Oh. E. 310. 
 
Ch. 6.] To Restrain Suits in other Courts. 353 
 
 actually made as charged in the complaint." A mere general statement 
 that th« judgment has been paid, is, it seems, not enough to warrant the 
 court in excusing the party from complying with the requirements of the 
 statute, and notice should be given to the adverse party of the intended ap- 
 plication, that the court, after hearing both sides, may be enabled to judge 
 of the propriety of granting the injunction, and of dispensing with a bond 
 or a deposit." If the facts be not within the personal knowledge of the 
 plaintiff, he should obtain the affidavits of those by whom they can be 
 proved, or such other evidence as will satisfy the court, beyond all reason- 
 able doubt, that the facts alleged in the complaint are true.' 
 
 A plaintiff, whose remedy was complete at law, but who by accident 
 was prevented to make it there, may be relieved in equity against the 
 judgment.^ The same reason applies, where the defense has not been 
 made by reason of a mistake of the defendant. As where a plaintiff re- 
 covers a debt at law against a defendant, and the latter afterwards finds a 
 receipt, under the plaintiff's own hand, for the money in question. In 
 such case the recovery is against conscience, and though the receipt was 
 at the time of the trial in the defendant's haijids, yet if he was not ay- 
 prised of it, it seems he is entitled to relief in equity. It is against con- 
 science that the plaintiff should be twice paid for the same debt ; so if 
 the plaintiff 's own book appeared to be crossed, and the money was paid 
 before the action brought,^ 
 
 But the court will not relieve against a judgment at law, on the ground 
 of its being contrary to equity, unless the defendant in the judgment was 
 ignorant of the fact in question pending the suit, or it could not have 
 been received as a defense, or unless he was prevented from availing him- 
 self of the defense by fraud or accident, or the act of the opposite party, 
 unmixed with negligence or fault on his part.' 
 
 The cases in which relief against proceedings at law has been most 
 frequently sought, are where the rights of the party are of an equitable 
 nature, or were incapable of being asserted in a court of law. If the 
 claims of the defendant arise out of the same transaction, there is a natu- 
 ral equity that one should compensate the other, and that the balance 
 only should ^e recovered. This natural equity was, by the civil law, ex- 
 
 ' Christie v. Bogardus, 1 Barb. Oh. R. id. 105. Degraffenreid v. Donald, 2 H. 
 
 172. & M. 10. 
 
 ' Id. Campbell v. Morrison, 7 Paige, ' G^insborongh v. Grifford, 2 P. Wma. 
 
 157. 424. 
 
 » Id. ' Foster v. Wood, 6 J. Oh. E. 90. Lan- 
 
 ♦ Jones V. Woodhull, 1 Root, 298. Doty sing v. Eddy, 1 id. 51. D«iioan y. I-yon, 
 
 V. Whittlesey, id. 310. Gay v. Adams, 8 id. 851. 
 
 £q. Jub. 45 
 
354 Of Injuncttons. [Ch. 6. 
 
 tended even to unconnected claims whicli were liquidated, or were capable 
 of liquidation by mere computation. The common law' required that dis- 
 tinct and independent demands should be sued for by the respective par- 
 ties, in separate actions, against each other.' r There are numerous cases 
 not coming within the statute of set-off, where evidence, in mitigation of 
 damages, is admissible at law. Where, on the sale of a chattel, there is 
 either warranty or fraud with reference either to its quality or value, the 
 defendant might, under the general issue, upon notice of such defense, in 
 an action brought against him for the price, prove the fraud or breach of 
 contract in mitigation of damages. This is the foundation of the doctrine 
 of recoupment.* 
 
 Under the New- York code of procedure, the distinction between ac^ 
 tions at law and suits in equity, and the forms of all such actions and 
 suits, heretofore existing, are abolished ; and it is provided, that here- 
 after there be but one form of action for the enforcement or protection 
 of private rights, and the redress of private wrongs, to be denominated a 
 civil action.' The code, however, allows the plaintiff to unite in the 
 same complaint several causes of action, whether they be such as have 
 been heretofore denominated legal or equitable, or both, where they all 
 arise out of the same transaction, or transactions, connected with the 
 same subject of action. But the causes of action so united must all be- 
 long to one of the classes into which actions are divided, and must affect 
 all the the parties to the action, and not require different places of trial, 
 and must be separately stated.* 
 
 These provisions of the code give rise to a great variety of questions, 
 some of which have already been subjected to legal discussion, and to the 
 decision of the courts. There are far more which remain yet to be de^ 
 cided. In an ejectment it has been held that a defendant cannot, in an 
 answer, denying the plaintiff's legal title, set up an equitable defense, 
 looking to affirmative relief.' One objection to this uniting of an equi- 
 table with a legal defense is, that the latter requires a trial by jury, 
 and the former by the court.' That decision, however, was made prior 
 to the amendments of the code in 1852. By the amendments, a defend- 
 ant is allowed not only to deny generally or specifically each material 
 
 ' Eeab v. M'AUister, 8 "Wend. 115. • Code, § 69. 
 
 » Id. Battennan v. Price, 3 Hill, 171. ' Id. § 167. 
 Van Epps v. Harrison, 6 id. 63. Mayor • Ooohran v. Webb, 4 Sandf. S. 0. B. 
 
 of Albany v. Trowbridge, 5 id. 71. Bar- 653. 
 ber V. Rose, id. 76. Niooll v, Dnsienbury, ° Id. 
 2 Oomst. 288. 
 
Ch. 6.] To Restrain Suits in other Courts. 355 
 
 allegation of the complaint, whicli is controverted by him, or any knowl- 
 edge or information thereof sufficient to form a belief, but he is also al- 
 lowed to set forth, by answer, a statement of any new matter constituting 
 a defense or counterclaim.' The counterclaim must be one existing in 
 favor of a defendant, and against a plaintiff, between whom a several 
 judgment may be had in the action, and arising out of one of the follow- 
 ing causes of action : 1. A cause of action arising out of the contract or 
 transaction set forth in the complaint as the foundation of the plaintiff's 
 claim, or connected with the subject of the action : 2. In an action aris- 
 ing on contract, any other cause of action arising also on contract, and ex- 
 isting at the commencement of the action. The defendant may set forth, by 
 answer, as many defenses and counterclaims as he may have, whether they 
 be such as have been heretofore denominated legal or equitable, or both. 
 They must each be separately stated, and refer to the causes of action which 
 they are intended to answer, in such manner that they may be intelligi- 
 bly distinguished." 
 
 If matter of set-off or of recoupment exist, which is the subject of a 
 separate action, it need not be used by the defendant as a defense, either 
 in whole or in part, but redress may be sought by a cross-action.' But 
 such matter will afford no ground for an injunction against the judgment. 
 The remedy at law is perfect. 
 
 If the matter of defense originates in the transaction out of which the 
 cause of action springs, and affords either a legal or equitable defense to 
 it, and is within the knowledge of the defendant, it should be used as a 
 defense to the original action ; and if it is voluntarily omitted, it would 
 seem, on principle, that it can never be the subject of a fresh action, or 
 afford ground for staying the proceedings in the original action.* The 
 same rule, since the code of 1852, should apply to an equitable defense 
 available at law, which the defendant .omitted to make, that before 
 governed when a legal defense was voluntarily abandoned. 
 
 It is probable that the legislature intended, by the amended code of 
 1852, to permit an equitable defense to be set up to a legal claim. Thus, 
 for example, in an action to recover the possession of land, it would seem 
 to be competent to allow a defendant, by his answer, to set up an agree- 
 ment to purchase, followed up by such circumstances as entitle him to a 
 specific performance of the contract. In such case the answer should 
 
 ■ Code, 149, as amended in 1852. can v. Lyon, 3 id. 351. Le Gnin v. Gout- 
 
 » Id. erneur, 1 J. Oas. 492 and notes, Shep- 
 
 • Halsey v. Carter, 1 Puer, 667. herd's ed. 
 
 • Foster v. Wood, 6 J. Ch. K. 90. Dnn- 
 
356 Op Injuncttons. [Ch. 6. 
 
 6laim affirmative relief, in order that tlie plaititiff may, if he pleases, 
 reply to the same. An answer, in such a case, partakes of the nature of 
 a Complaint. The power conferred on the court to give judgment, under 
 the code of 1852, is broad enough to reach every case of this nature, as 
 well as cases of interpleading.* We are not without precedent for cases 
 mndCr the old practice, where hoth parties are actors. The action of 
 replevin affords an example, and the corresponding action under the cod6, 
 for the claim and delivery of personal property, is another instance of the 
 is'ame kind. Sttch an action will become more or less complicated, and 
 Will be attended with many difficulties.'' Under the original code, the 
 better opinion was, that an equitable defense could only be made avail- 
 able by a. cross-action.' An original and cross-bill were always treated 
 as one suit, add the proceeding was less complicated than if the whole 
 Were embraced in a single set of pleadings. 
 
 If a judgment be obtained by fraud, relief may sometimes be had by 
 iiiotion in the same court ; but when that relief cannot be obtained, or is 
 i'nadequate, a court of equity will interpose. In one case, Lord Lough- 
 borough said, if a judgment Was obtained at law against conscience, by 
 concealment, relief could be afforded in equity.* So a decree obtained 
 by fraud and covin, may be relieved against, not by rehearing or appeal, 
 but by an original bill.^ And the general principle was stated, on a 
 i'Ccent occasion, in the supreme court of the United States, with regard 
 to injunctions after a judgment at law, that any fact which proves it to 
 be against conscience to execute such judgment, and of which the party 
 Could not haVe availed himself in a court of law, or of which he might 
 have availed himself at law, but was prevented by fraud or accident, 
 unmixed by any fault or negligence in himself, or his agents, will author- 
 ize a court of equity to interfere, by injunction, to restrain the iidverse 
 party from availing himself of silch judgment.* 
 
 This relief is also Sometimes granted by requiring satisfaction to be 
 alcknowledged by the plaintiff,' and sometimes by granting a new trial 
 in the court of law. 
 
 Thus, in one case in New- York, it was said, that the court of chancery 
 would, on a bill filed for that purpose, grant a new trial in thfe doiirt of 
 
 ' Code of 1852, § 274. ' Mitchell v. Harris, 3 Ves. jr: 135. 
 
 » Dewey v. Hoag, 15 Barb. 866. Hair© ' Bradish v. Gee, AmWer, 229. 
 
 v. Barker, 1 Seld. 362. " Truly v. Wanser, 5 How. 141. 
 
 » Otis V. Sill, 8 Barb. 201. Crary v. ' Barnsly v. Powell, 1 Ves. 269, 119. 
 Goodman, 9 id. 657. Cochran v. Webb, 
 4 Sandf. S. 0. B. 663. 
 
Ch. 6.] To Eestrain Suits in other Courts. 357 
 
 common pleas, on the ground of newly discovered evidence, that court not 
 having at that time jurisdiction to grant a new trial, except for irregulai*— 
 ity. But it was said, to entitle the party to that relief, he must ha.ve used 
 all the means in his power to establish at the trial the fact which he seeks 
 to prove.^ 
 
 Applications to courts of equity for a new trial, after a verdict at law, 
 are very rare in modem times, since courts of law exercise the same juris- 
 diction, and to a liberal extent. Lord Redesdale, oh one occasion^ said, 
 that a bill for a new trial was watched by equity With extreme jealousy, 
 and it must see that injustice has been done, not merely through the in- 
 attention of the parties ; and he held it to be unconscientious and vexa- 
 tious to bring into a court of equity a discussion which might have been 
 had at law. Even in the old cases, before new trials were" much known, 
 and used at law, the court of chancery proceeded with great caution in 
 awarding a new trial at law. And Lord Hardwicke, in Richards v. Syines, 
 (2 Atk. 319,) refused a new trial, on the suggestion that the party was not 
 apprised of a particular evidence, and therefore not prepared to meet it. 
 The chancery cases have generally agreed in granting a new trial on the 
 discovery, since the trial, of a receipt or acquittance in fullof the demand.' 
 
 It is only in cases of newly discovered evidence, surprise, fraud, or 
 being deprived of the means of defense by circumstances beyotid the con- 
 trol of the party, and the like, that will in any case warrant the interposi- 
 tion of equity in granting a new trial at law.' It will not be granted to 
 enable a party to impeach a witness,^ or because the verdict was against 
 evidence. And in all these and many other cases, courts of law are now 
 in the habit of granting new trials, if the application be made promptly, 
 and the party was not in fault in going to trial unprepared, or was misled 
 by the artifice of the adverse party.^ 
 
 When the remedy at law is adequate, it is in general contrary to the 
 settled practice of the court to interfere by an injunction from a court of 
 equity. 
 
 A court of equity will not disturb the verdict of a jury because the 
 
 • Floyd V. Jaynes, 6 J. Oh. E. 479. Gales v. Shipp, 2 Bibb, 241. Pegram v. 
 ' Bateman v. "Willoe, 1 Sch. & Lefr. King, 2 Hawks, 605. 
 
 201. ' Woodworth v. Van Buskirk, 1 J. OL. 
 
 » Smith V. Lowry, 1 J. Ch. E. 320, 324. E. 432. 
 
 Gainsborough v. Gifford, 2 P. Wms. 424. " Vandervoort v. Smith, 2 Caines, 155. 
 
 Williams t. Lee, 3 Atk. 223. HoUingsworth v. STapier, 3 id. 182. Palm- 
 
 * Harrison v. Harrison, 1 Litt. 140. er v. Mulligan, id. 307. Williams v. 
 
 Baldwin, 18 J. K. 489. 
 
°'^° Op Injunctions. [Oh. 6. 
 
 damages are excessive. Relief in such cases in courts of law is plenary 
 and adequate.' Nor will an injunction be granted to stay proceedings at 
 law on a judgment, on the ground that the defendant at law was prevent- 
 ed, by public business, from making due preparations for, and attending 
 at the trial, and that the plaintiff had, on the evid6nce of one witness, 
 whom he had suborned to swear falsely, recovered a verdict for a much 
 larger sum in damages than he was justly entitled to ; and that the su- 
 preme court had refused to grant a new trial in the cause.* 
 
 On the same principles, if the same court have granted a new trial, on 
 conditions which the party failed to perform within the time prescribed 
 by the rule, and such failure be not occasioned by the act of the adverse 
 party, or by unavoidable necessity, equity will not grant relief And it 
 will never gjant relief for the purpose of a new trial, where the party 
 lost his opportunity of defense by his own negligence. 
 
 An award of arbitrators stands on the same footing, in this respect, as 
 a judgment. The court will not grant an injunction to stay an action at 
 law, on an award, on the ground that the plaintiff was surprised by the 
 principal witness for the defendants swearing falsely before the arbitra- 
 tors, and that he could have proved the falsehood of the testimony, if the 
 arbitrators would have adjourned the hearing for that purpose, which 
 they refused to do, though requested by the plaintiff, who offered to 
 enlarge the time of making the award.* The rule is the same in equity 
 as at law, where a new trial will not be granted, merely to give a party, 
 who has gone voluntarily to trial, an opportunity to impeach the testi- 
 mony of witnesses against him.' 
 
 SECTION in. 
 
 OF INJUNCTIONS TO BESTEAIN THE INDOESEMENT OR NKOOTIATION OF COM- 
 MERCIAL PAPER, THE SAILING OF SHIPS, THE TRANSFER OF STOCK, THE 
 ALIENATION OF LAND, OB OF SPECIFIC CHATTELS. 
 
 We proceed, in the next place, to consider some of the cases in which 
 courts of equity will interfere, by injunction, to restrain the indorsement 
 of promissory notes and bills of exchange, the sale of land, the sailing of 
 
 ' M'Oonnell v. Hampton, 12 J. R. 284, * Woodworth v. Van Buskirk, 1 J. 
 » Smith V. Lowry, 1 J. Oh. K. 820. Oh. R. 4,82. 
 
 ' Dodge V. Strong, 2 id. 228. ' Id. 
 
Ch. 6.] To Restkain Transfer of Bills. 359 
 
 a ship, the transfer of stock, the alienation of specific chattels, and to 
 compel the delivering up of instruments, «fcc. 
 
 Relief under this head is very generally accompanied with an injunc- 
 tion restraining an action at law. 
 
 It is a general principle, applicable to the transfer of commercial paper, 
 as bills of exchange, promissory notes and the like, that a transfer before 
 the paper is dishonored carries no suspicion on the face of it, and the 
 holder, receiving it on its own intrinsic credit, is not bound to inquire into 
 any circumstances existing between the assignor and any of the previous 
 parties to the bill or note, as he will not be affected by them, unless, 
 indeed, the circumstances under which he takes the same be such as 
 would naturally have excited the suspicion of a prudent and careful man.' 
 Hence, should the note or bill be affected with fraud in its, inception, but 
 transferred in the usual course of business, for a fair and valuable con- 
 sideration, parted with at the time, and without notice of the fraud, or 
 other infirmity in the title, it cannot be impeached by the maker.' The 
 consideration for the transfer, in order to shut out the equities of the 
 party primarily liable, must be a payment of value, or the relinquishment 
 of some available security or valuable right on the credit of it. The 
 receiving it as security for an antecedent debt, or as a nominal payment 
 for such debt, without giving up any security which the party originally 
 had for such debt, is not enough for this purpose.^ A party, therefore, 
 who has given a biU or note under circumstances which, as between him 
 and the payee, will entitle him to a defense, has an equity to restrain the 
 holder from putting it in circulation ; for, should it pass into the hands of 
 a bona fide transferree, the defense of the former will be shut out.* Upon 
 this principle, where a note had been given by the plaintiff to the defend- 
 ant on a marriage brocage agreement, the lord chancellor restrained the 
 defendant from parting with or assigning it until further order." 
 
 The jurisdiction in these cases does not rest solely on the inadequacy 
 of the remedy at law, for in many cases instruments have been ordered 
 to be delivered up, and their circulation restrained, though they were void 
 at law. But, in these cases, there has in general been some other ground 
 
 ' Brown v. Davis, 3 T. E. 82, per " Id. Swift v. Tyson, 16 Peters, R. 1, 
 
 Buller, J. O'Keefe v. Dunn, 6 Tannt. contra. 
 
 305, per Gibbs, Oh. J. Nelson v. Oow- * Smith v. Haytwell, Ambler, 67. 1 
 
 ing, 6 Hill, 339, per Bronson, Ob. J. Fonb. Ex. B. 1, oh. 1, § 8, n. y. Ohitty 
 
 " Bay V. Coddington, 5 J. Oh. E. 54. on Bills, 120. , 
 
 S. C. on appeal, 20 J. E. 637. Story v. » Smith v. Haytwel;!, Ambler, 66. 
 American Life Ins. Oo. 11 Paige, .635. 
 Stalker v. M'Donsid, .6 Hill, 93. 
 
360 Of Injunctions. [Gh, 6. 
 
 pf equity, suet as fraud, the necessity of a discoTery, thft age of the party 
 entitling him to protection, or the like, which called for the interposition 
 of the court. Thus, where an unconscionable bargain was made with an 
 infant before he became of age, and a note of hand taken from him 
 immediately on his coming of age, the court, on a bill by the executor, 
 ordered it to be cancelled.' The court, however, allowed the defendant 
 to bring an action against the executor for the original considera.^ion of 
 the note, if brought within a specified time. And the chancellor said, 
 that the attempt to substantiate such a bargain with an infant was a 
 principal ingredient with the court to relieve. 
 
 In Minshaw v. Jordon, (3 Bro. 18, n.) a bill wag filed to have a promis- 
 sory note delivered up and canceled, as obtained by fraud, and without 
 consideration. The master of the rolls retained the billj and allowed 
 the defendant to proceed at law upon the note, and the verdict being found 
 against it, he then decreed it to be given up to the plaintiff to be can- 
 celled. 
 
 The question, whether an instrument void on its face, or only void 
 upon collateral circumstances, shall be delivered up, or whether the par- 
 ty shall not be left to make his defense at law, has niet with conflicting de- 
 cisions. Chancellor Kent, after reviewing the cases, inclines to think 
 that the weight of authority, and the reason of the thing, are equally 
 in favor ©f the jurisdiction of a court of equity, whether the instrument 
 js or is not void at law, and whether it be void from matter appearing on its 
 face, or from proofs taken in the cause, and that these assumed distinctions 
 are not well founded.^ And in the case before him, where an action at 
 law was brought to recover a bond good upon its face, but to which the 
 obligor had a good defense in equity, arising from matters dehors the bond, 
 he ordered it to be delivered up and canceled, and that the plaintiff in 
 the action at law be perpetually enjcjined against the prosecution at law. 
 Lord Eldon evidently favored the jurisdiction. He thought it no objec- 
 tion that there was a defense at law ; that it extended to bills to deliver 
 up promissory notes, in complicated cases, where the evidence of the de- 
 fense might b,e lost, and to bills to have void policies of insurance delivr 
 ered up. And he thought it was not unwholesome, that an instrument 
 should be delivered up, upon which a demand may be vexatiously made 
 as often as the purpose of vexation may urge the party to make it.' In 
 one case, in New- York, Chancellor Kent entertained a bill to set aside 
 and cancel a deed, on the ground of a fraudulent alteration, fully proved 
 
 " Brooke V. Gaily, 2 Atk. 34. 621, 622, where many of the English 
 
 ' Hamilton v. Gumming, 1 J. Oh. K. cases are reviewed. 
 
 ' Bromley v. Holland, 7 Yes. 8-21. 
 
CL 6.] To Order Deeds to be Canceled. 861 
 
 la court, and wHck had been also proved in an action of ejectment brought 
 by the defendant against the plaintiff, and a verdict found for the defendant 
 in possession. In that case the defendant, after being defeated at law, 
 caused the deed to be proved by an aged witness and recorded, and threat- 
 ened to bring another action of ejectment. The court there&re not 
 only ordered the deed to be canceled, but enjoined the defendant from 
 using the record as evidence of title.' 
 
 Chstncellor Sandford entertained jurisdiction against a deed fraudu- 
 lently obtained ; and he directed that the contested deed and promissory 
 note be brought into court for inspection, and he restrained proceedings at 
 law during the pendency of the bill in equity for the same matter.^ His 
 decision was affirmed by the court of errors,' and met the approbation of 
 Chancellor "Walworth.* The jurisdiction to set aside and cancel deeds 
 and other instruments fraudulently obtained, and which were attempted 
 to be set up inequitably, has been fully asserted by learned judges 
 in other cases.^ In a recent case, the jurisdiction was held to apply to a 
 bill to procure the cancellation of promissory notes, given upon an illegal 
 consideration. Though such notes are void at law, yet equity has power 
 to decree that they be given up.* 
 
 But a court of equity will not entertain a bill to stay proceedings in 
 an action at law upon a promissory note, upon the ground of usury, where 
 the bill praying for an injunction alleges no defect in the means of es- 
 tablishing his defense at law, and seeks for no discovery, and the objection 
 is taken by the defendant in his answer that the remedy at law is perfect.^ 
 The objection that there is nothing in the complainant's bill to show that 
 he has not a perfect defense at law upon the note, is an objection which 
 goes to the jurisdiction of the court of equity ; and such objection, when 
 taken by demurrer, or insisted on in the answer, is fatal to the complain- 
 ant's right to sue in a court of equity.' 
 
 Nor will the court enforce the penal laws of the state or the by-lawa 
 of a corporation, by injunction, unless the act sought to be restrained is 
 a nuisance.' Nor vill it restrain, by that process, the publication of a 
 libel, though its publication might injure the business or character of 
 
 " Bnshnell v. Harford, 4 J. Ch. E. 301. • Thompson v, GraJiam, 1 Paige, 384. 
 ' Apthorpe v. ComBtoek, Hopk. 143. ' Mintum v. Farmers' L. and T. Co., 
 
 ' S. 0. in error, 8 Oowen, 386. 3 Oomst. 498. 
 
 « S. b. 2 Paige, 482. ^ « Id. Morse v. Hovey, 9 Paige, 198. 
 
 " Loomis V. Oline, 4 Barb. 453. Har- " Mayor of Hudson v. Thorne, 7 id. 
 
 rington v. Bigelow, 11 Paige^ 349. 264. 
 Eq. J0B. 46 
 
362 Of Injunctions. [Ch. 6, 
 
 the plaintiff.' Nor will it restrain the collection of a tax, where the 
 assessment is merely erroneous and not void.' 
 
 An injunction will be granted agaiijst the sale of real estate, when the 
 ends of justice require it. Accordingly, where the owners of land, 
 through which a turnpike road was laid, were entitled to construct the 
 road, under the inspection of the company, by a certain time, in lieu of 
 paying assessments by the commissioners, and where the latter, without 
 giving the requisite time, were proceeding to sell the lands of the plain- 
 tiffs to raise the assessment, the court granted a temporary injunction 
 to enable the latter to build the road without such sale.^ So a vendor 
 defendant to a bill for specific performance of an agreement for the sale 
 of an estate, will be restrained from conveying the legal estate, on the 
 ground that the plaintiff might thus be put to expense, by the necessity 
 of making another party, when the cause might be just ready for 
 hearing.* 
 
 In most countries, it is said to be in the power of the majority, either in 
 number or value, of the part owners, to send the ship on a voyage. But 
 the court of admiralty has authority to arrest and detain the ship, upon 
 the application of a dissenting part owner, until security be given by the 
 other part owners to the full value of his share. But if the respective 
 shares be not apparent, and their amount he a subject of dispute, it has 
 been said that it has not then the power to order security to be given. 
 But, in such case, equity will interfere, and by injunction restrain the 
 Bailing of the ship, till the amount of the share for which security is to 
 be given shall be ascertained. But the court will decline to interfere, if 
 the plaintiff has been guilty of delay.' 
 
 Another subject, to which the remedy by injunction has been applied, 
 is to restrain the transfer of stock. In one case. Lord Eldon restrained 
 by injunction the transfer of stock standing in the name of the defendant, 
 who was attorney and steward of the plaintiff, upon strong proof that 
 it was the produce of the money of his principal. In that case, the 
 sum which the defendant had invested in government securities was very 
 large, and the agent had not discriminated between his own funds and 
 
 » Brandeth v. Lance, 8 Paige, 24. ♦ Eohliff v. Baldwin, 16 Ves. 267. 
 
 ' Livingston v. Hollenbeok, 4 Barb. 9. 'HalyT.Goodson,2Meriv. 77. Christie 
 
 Van Eensselaer v. Kidd, id. 19. v. Oraig, id. 137. Oolly. on Part. 678-9. 
 
 • Oouch V. Ulster and Orange Turnpike, Abbott on Ship. 104, and see notes. 
 4 J. Oh. E. 26. 
 
Gh. 6.] To Restrain Transfer of Stock, &c. 363 
 
 those of his principal. He had rendered no aceount for many years ; 
 and the court, for these reasons, thought that the defendant, having im- 
 properly confounded the money of the principal with his own, in the 
 purchase of stock, should not be permitted to dispose of it, until he 
 showed, by his answer and an account, what belonged to himself and what 
 to the plaintiff.' 
 
 There is much good sense in the rule, that casts the burden of proof 
 upon the guilty party in case of the confusion of goods. If an inconven- 
 ience or a loss results from the agent's confounding his own money with 
 that of his principal, it should be borne by the former ; and if he can- 
 not distinguish his own from the property of his employer, he should 
 lose it.^ So, where there are opposite claims to the stock under different 
 wills, which are in contest, the court will restrain the transfer and ap- 
 point a receiver.' So, also, where there is a well founded apprehension 
 that stock in the funds will be transferred, and its proceeds removed 
 beyond the reach of creditors, or beyond the jurisdiction of the court, 
 a transfer will be restrained by injunction. Thus, where French stock, 
 the property of the bankrupt, was transferred by him to his wife, who 
 afterwards transferred it to her three sisters ; the wife, who had a 
 general po'wer of appointment over moneys standing in the name of trus- 
 tees in the English funds, made a will, by which she exercised that power, 
 and died in her husband's lifetime ; one of the three sisters, who was 
 also an appointee and residuary lagatee, and usually resided in France, 
 took out administration to her, with the will annexed : an injunction was 
 granted, at the suit of the assignee of the bankrupt,^ to restrain the 
 trustees from transferring any of the stocks in the English funds, over 
 which the deceased's power of appointment extended.'' 
 
 It has already been shown, under other heads, that an injunction will 
 be granted^ at the instance of a judgment creditor, who has exhausted 
 his remedy at law, to restrain the defendant from parting with his property 
 and for the appointment of a receiver. In such case the command is 
 general, and is not restricted to any article in particular. 
 
 But there may be cases where the value of the article consists in its 
 being a matter of curiosity and antiquity ; and where the recovery of its in- 
 trinsic value in money would be no satisfaction to the owner ; and where, 
 
 ' Lord Ohedworth v. Edwards, 8 Ves. °>King v. King, 6 id. 172. 
 46. * Stead v. Clay, 4 Buss. 550. 
 
 ' Hart V. Ten Eyck, 2 J. Oh. K. 108. 
 Lnpton v. White, 15 Ves. 432. 
 
364 Op Injunctions. [Ch. 6. 
 
 too, there is danger of its being injured and defaced in tie mean time. 
 In such case, the action of replevin, or its substitute under the code, ia 
 inadequate ; and no remedy is complete which does not require the spe- 
 cific article to be delivered to the plaintiff, and restrain the defendant 
 in the mean time from marring and defacing it. In one case, before Lord 
 Talbot,' the plaintiff became entitled, as a treasure-trove, within his ma- 
 nor, to an old altar-piece, made of silver, remarkable for a Greek inscrip- 
 tion and dedication to Hercules, and it came to the defendant's possession 
 with notice of the plaintiff's title. The plaintiff could have recovered its 
 value in an action of trover, but still the chancellor thought he was en- 
 titled to relief in equity. The bill also was to prevent the defendant from 
 defacing the altar-piece, which would have depreciated its value, and per- 
 haps destroyed its identity. The chancellor overruled a demurrer to the 
 bill, thus affirming the jurisdiction of equity. 
 
 The right to be protected in the use and beneficial enjoyment of prop- 
 erty in specie, is not confined to articles possessing any peculiar or in- 
 trinsic value. In a recent case, where certain specific chattels were 
 placed in the possession of an agent to be held for the plaintil^ and the 
 agent in violation of bis duty to his principal contracted to sell them to a 
 third party, whereby the plaintiffs title would be embarrassed, the court, 
 at the instance of the principal, restrained by injunction the agent from 
 committing the threatened act of alienation.* The fiduciary relation 
 which the parties bore to each other, gave jurisdiction to the court in 
 that casp. The threatened mischief was also another source of juris- 
 diction. 
 
 In general, thp cases where equity interposes by injunction to compel 
 the delivering up of a specific chattel, or to protect it from injury, or from 
 being alienated, are cases where the chattel has some peculiar value, as an 
 article of curiosity, or meni,orial of affection, or insignia of office ; or where 
 the parties have stood in some relation of confidence to each other ; or the 
 case falls under some other head of equity. The altar-piece, in the Duke 
 of Somerset V. Cookson, and silver tobacco box, in Fells v. Read, were of the 
 former description ; the masonic dresses and decorations in Lloyd v. Loar- 
 ing,' were of the third character ; and the other cases we have pjted 
 fall under the last bead. If there be nothing in the case but title ito the 
 chattel in the plaintiff on the one side, an unlawful withholdipg of pas- 
 session by the defendant, and the chattel be one capable of being, estimar 
 
 ' Duke of Somerset v. Oookson, 3 P. ' -Wood v. Bowoliffe, 3 Hare, 30S. 
 Wms. 390. Fells v. Eead, 3 Ves. 70. ' 6 Ves. 773. 
 Lloyd V. Loaring, 6 id. 774. 
 
Oh. 6.] To Deliver tjp Chattels. 365 
 
 ted in money and compensated in damages, there will be no occasion to 
 depart from the ordinary remedies at law. 
 
 The cases already cited show that equity has jurisdiction to order chat- 
 tels to be delivered up. Some of the cases on this subject were adverted 
 to under the chapter on specific performance of agreements. But the 
 jurisdiction is not confined to cases resting in contract, and will frequent- 
 ly be necessary where possession is wrongfully withheld. Lord Eldon 
 said,' in discussing a demurrer to a bill to have the dresses, decorations 
 books, papers and other pfi'ects of a masonic society delivered up, that he 
 had no doubt of the jurisdiction of the court to haye a chattel delivered 
 up, though, in the case before him, the deinurrer was allowed for defect of 
 parties. 
 
 The principle on Krhich relief is granted in these cases i? substantial- 
 ly the same as that which controls the court in restraining the alienation 
 of a chattel. It is based upon the peculiar nature of the chattel, or the 
 relation which the parties bare to each other. If the value of the chattel 
 depends on other circumstances than those which regulate the price of 
 articles in the commercial world ; if it be priced as the gift of a friend ; 
 or if it has been held in trust, a foundation is in either case laid for the 
 jlirisdiction of the court. In the case before Jiord liOughboropgh. the 
 principles are disclosed which usually govern the courts in cases of this 
 kind. In that case,'' the plaintiffs were members of a club, which con- 
 sisted of persons who had served the office of overseer of the poor of their 
 parish- The society had been for a long period in possession of a silver to- 
 bacco box, inclosed in two large silver cases, all which were adorned with sev- 
 eral engravings of public transactions and heads of distinguished persons. 
 The ornaments which had been added by different overseers, during the time 
 the box and cases remained in their custody, begap in the year 1713. 
 This box and the cases were -always kept by the overseer for the time be^ 
 ing ; who, upon coming into office, received them from the church-warden 
 with a particular charge, in which he was enjoined) under a penalty, to 
 produce them at all meetings of the society, and to deliver them up, on 
 going out of office, to the senior church-warden, to be by him delivered to 
 the succeeding overseer. They were delivpred in the usual form to the de- 
 fendant on his coming into office as overseer. On going out of office he 
 refused to deliver them up, unless the vestry would pass his accounts ; in 
 which they had refused to allow him certain payments. Upon this a 
 nieeting was called, and it was resolved, by those members who attended, 
 
 ' Lloyd v. Loaring, 6 Ves. 777. ' Fells v. Read, 3 id. 70. 
 
366 Of Injunctions. [Ch. 6. 
 
 that legal steps should be taken ; and, after some negotiation, an action 
 ■was brought and the defendant was arrested. Two of the number in 
 •whose names the action was brought executed a release to the defendant, 
 who thereupon delivered the box to one of them, and the bill in chancery 
 was brought against the party originally holding the box and the two 
 members who gave the release, to have the box and cases delivered up. 
 
 Lord Loughborough said, in all cases where the object of the suit is 
 not liable to a compensation by damages, it would be strange if the law 
 did not afford a remedy. It would be great injustice- if an individual 
 cannot have his property without being liable to the estimate of people, 
 who have not his feelings upon it. 
 
 He then proceeds to the peculiar circumstances of this case. The box 
 was delivered to and accepted by the defendant upon an express trust to 
 keep it and produce it at the meetings of the club, and at the expiration 
 of his office to deliver it over to the senior church-warden, in order that 
 he might give it to the next overseer. He was thus a depositary upon an 
 express trust, and he does not perform the trust. Upon the common 
 ground of equity, there was a right in the plaintiffs to have called upon 
 him during the term to use it according to the trust. If he had 
 not produced it at the meeting, he could have been compelled to produce 
 it. So if he retains it after the expiration of the term, he can be com- 
 pelled to use it according to the trust. And, in conclusion, his lordship said : 
 " Where the right is not to use the thing as his own, but coupled with a 
 trust to deliver it'at a certain time, .there is a clear jurisdiction upon the 
 ordinary equity to compel the execution of the trust by the delivery of 
 the thing at the time."- 
 
 In this case there was an undoubted remedy at law. And the juris- 
 diction of a coiirt of equity was sustained on two grounds : first, the 
 nature of the chattel not being susceptible of an estimate in damages, 
 and second, the violation of an express trust. 
 
 In this state, whenever a person shall be removed from office, or the 
 term of his office shall expire, he is required to deliver over to his suc- 
 cessor, on demand, all the books and papers in his custody as such officer, 
 or in any way appertaining to his office ; and his refusal to do so is a mis- 
 demeanor.' The delivery of these books and papers may also be com- 
 pelled by a judge of the supreme court or county judge of the county, if 
 the title of the applicant be clear and free from reasonable doubt. But 
 if the title to the office is in dispute, it must be tested by a proceeding 
 in the nature of a quo warranto.^ These statute remedies would seem 
 
 ' 1 E. 8. 124. ■^ Id. § 51. The People v. Stevens, 6 
 
 HUl, 616. Code, §428. 
 
Ch. 6.] To Restrain Wasting Assets. 367 
 
 to render unnecessary a resort to equity, in cases of this kind, if its juris- 
 diction be not entirely superseded. But as the jurisdiction of equity is 
 not expressly taken away, perhaps the statute remedy is merely 
 cumulative. 
 
 SECTION IV. 
 
 or INJUNCTIONS TO HESTEAIN THE WASTING OF ASSETS, OH OTHER PKOPEHTY 
 PENDING THE LITIGATION: EESTRAINING TRUSTEES FROM ASSIGNING, AND 
 A PARENT FROM EEMOTING HIS CHILD OUT OF THE JURISDICTION, AND 
 THE WARD FROM MARRYING, WITHOUT CONSENT. 
 
 We will now proceed to notice cases in which equity restrains by in- 
 junction the wasting of assets, or other property, pending the litigation. 
 
 If the contest be as to the proof of the will, or relative to granting let- 
 ters testamentary, or of administration with the will annexed, or of 
 administration in cases of intestacy, or where, by reason of absence from 
 this state of any executor named in a will, or for any other cause, a delay 
 is produced in granting such letters, the surrogate authorized to grant 
 them may, in his discretion, issue special letters of administratibn, 
 authorizing the preservation and collection of the goods of the deceased.' 
 The administration pendente lite was always granted in England by the 
 ordinary, in case of a Controversy in the spiritual court concerning the right 
 of administration to an intestate.' Such officer was treated merely as an 
 officer of the court, and held the property only till the termination of the 
 suit.' But notwithstanding this power of the ecclesiastical court, a court 
 of equity would, during a litigation for probate or administration, enter- 
 tain a bill for the mere preservation of the property of the deceased till 
 the litigation was determined, and appoint a receiver.* 
 
 In analogy to that practice, it would seem that a court of equity, in this 
 state, might still interpose by injunction to protect the property pending 
 the litigation. The power given to the surrogate, though in most cases 
 adequate, does not exclude the jurisdiction of courts of equity, which is 
 in general more effective. 
 
 The jurisdiction will also be exercised against an executor or adminis- 
 trator who puts the assets in jeopardy by his insolvency, either existing 
 
 > Laws of 1837, p. 528, § 23. " King v. King, 6 Ves. 172. Atkinson. 
 
 ' 1 Will. Ex. 311. V. Henshaw, 2 Ves. & B. 85. Ball v. 
 
 " In goods of Graves, 1 Hagg. 813. Oliver, id. 96. 
 
368 Of Injunctions. [CL 6. 
 
 or impendirig.' So, where the husband of an executrix was in the "West 
 Indies, and in indifferent circumstances, and not a re&potlsible pel-son, if 
 the executrix should get the assfets into her hands, and should waste them, 
 the plaintiff would have no remedy, because the husband must be joined 
 in the action. And the court accordingly restrained the executrix from 
 getting possession of the assets, and appointed a receiver with power to 
 bring actions in the name of the executrix.' 
 
 The occasion for a resort to equity, in such cases, will not as often occur 
 in the state of New- York, since the revised statutes, as formerly. By 
 these statutes, a non-resident executor is required to give a bond, like that 
 required of administrators, before letters testamentary can be issued to 
 him.' And in other cases, if an executor becomes incompetent by law to 
 serve, or his circumstances are so precarious as not to afford adequate se- 
 curity for his due administration of the estate, or he has removed or is 
 about to remove from the state, the surrogate is empowered, on the appli- 
 cation of any person interested in the estate, to require from the executor 
 a bond like that required by law of administrators, and, on neglect to 
 comply with the order, to supersede the letters testamentary and issue 
 letters of administration to a proper person, with the will annexed.' The 
 mere fact, that the executor has not in his own right an estate equal to 
 that which he is about to administer, is not enough to warrant the surro- 
 gate to interfere. If there be ho ground for supposing that the trust 
 funds in his hands are in danger from his improvidence, or want of pecu- 
 niary responsibility, he cannot be required to give security .= 
 
 The jurisdiction of courts of equity in cases of this kind arises from 
 their general jurisdiction over trusts, which cannot be taken away but by 
 express legislation. The special power given to surrogate's courts, in these 
 cases, is merely auxiliary to that of the supreme court, now having the 
 same jurisdiction in equity that was formerly possessed by the court of 
 chancery. 
 
 It is under this same jurisdiction that a trustee will be restrained 
 from assigning the legal estate, in those cases, where trusts are allowed 
 by law ; and assignees may be restrained from making dividends.' 
 
 The court of chancery in England has restrained by injunction the 
 
 ' Elmendoi-ff v. Lansing, 4 J. Oh. R. ' Taylor v. Allen, 2 Atk. 2l3. 
 
 665. Ballou v. Earnley, 2 P. Wms. 163. » 2 R. S. 70, § 7. 
 
 Taylor v. Allen, 2 Atk. 213. Lake v. « Id. 72, §§ 18, 19, 20. 
 
 Delambert, 4 Ves. 592. Mansfield v. ' Mandeville v. Mandeville, 8 Paige, 
 
 Shaw, 3 Mad. Oh. R. 100. Utterson v. 475. Oolegrove v. Horton, 11 id. 261. 
 
 Mairs, 2 Ves. jr. 95. Middleton v. Dods- » 2 Eden on Inj. by Waterman, 351. 
 well, 18 Ves. 266. 
 
Ch. 6.] To Prevent Waste. 369 
 
 father from moving his infant child out of the kingdom.' And though 
 the father has a natural and legal right to the control of his infant chil- 
 dren,' yet it must be exercised subordinate to the power of the court, to 
 take the child from him, in cases of gross habits of drunkenness and blas- 
 phemy.' But this branch of the subject belongs more appropriately to 
 another head, as we are here only treating of the means by which the power 
 is carried out. 
 
 Where it appears that an infant ward is about to make a marriage 
 without the consent of the court, an injunction will be granted not only 
 to restrain the marriage, but also all communication with an infant, and 
 all intercourse, either personal or by letter ; and if the guardian is sus- 
 pected of countenancing the intended marriage, he will be restrained from 
 giving his consent without the leave of the court.* 
 
 The guardianship of a daughter determines with her marriage, as a 
 general rule ; though a doubt has been expressed whether a female ward 
 of court be necessarily discharged, upon her marriage, from the protec- 
 tion of the court, without a special order from the court.' 
 
 If a man marry a ward of the court, without the consent of the court, 
 he shall be committed for such contempt, though it appears that he knew 
 not that she was a ward of the court. Every one, it seems, is bound to 
 take notice of the appointment by the court as of a lis pendens.' , And 
 there must be a proper settlement made on the wife, before the contempt 
 can be cleared.' 
 
 SECTION V. 
 
 OF INJUNCTIONS TO PREVENT WASTE AND TRESPASS. 
 
 Another and frequent ground of injunction is the prevention of waste. 
 It is not, in this case, necessary to wait until the waste has been commit- 
 ted. A mere threat to commit waste is a sufficient cause for an 
 injunction.' 
 
 Waste, at common law, was either voluntary or permissive. By volun- 
 
 'De Manneville v. De Manneville, 10 id. 451. 2 Fonb. Eq. B. 2, pt. 2, oh. 2, 
 
 Ves. 64. § 1, and notes. 
 
 " Ex parte Hopkins, 8 P. Wms. 154. ' Matter of Whitaker, 4 J. Ch. R. 380. 
 
 ' Per Lord Eldon, 10 Ves. 62. ' Herbert's case, 8 P. Wms.- 115. But- 
 
 ' Eden on Inj. 849. Pearce v. Omtoh- ler v. Freeman, Ambler, 301. 
 
 field, 14 Ves. 206. "Water v. Yorke, 19 ' Stevens v. Savage, 1 Ves. jr. 154. 
 
 ' Gibson v. Smith, 2 Atk. 182. 
 
 Eq. Jur. 47 
 
370 Of Injunctions. [Ch. 6, 
 
 tm-y Tvaste, -was meant the actual and designed dem&lition of the lands, 
 woods and houses ; while permissive waste arose only from mere negli- 
 gence, and want of sufficient reparation.' In general, whatever does a 
 lasting damage to the freehold or inheritance, is waste.'' But the doc- 
 trine of waste, as understood in England, is not applicable to a new and 
 unsettled country. Where the whole of a farm, when leased, is in a wild 
 and uncultivated state, with the exception of a few acres, and for the use of 
 it the lessee agrees to pay rent, the parties are held to have intended that 
 the lessee should be at liberty to fell part of the timber, in order to fit 
 the land for cultivation. But this right will not authorize the lessee to 
 destroy all the timber, and thereby irreparably injure the premises, or 
 permanently injure their value.' 
 
 Where nearly the whole demised premises are covered with timber, and 
 cannot be enjoyed without a portion of it is cleared up, to what extent 
 such clearing may be carried, before the tenant is guilty of waste, must, 
 in an action at law, be determined by the jury. Rules of good husbandry 
 would, doubtless, require that enough of the land should be left in woods 
 to supply the farm with all necessary timber, to keep the buildings and 
 fences in repair, and probably to erect new ones, if necessary, and to sup- 
 ply the farm with fuel. But the tenant could not, under such a lease, 
 cut down timber merely for the purpose of sale and profit, without refer- 
 ence to preparing the land for cultivation.* 
 
 Rules somewhat similar have been adopted on the same subject in 
 several of the states.^ 
 
 Where land is annexed to a furnace, cutting wood sufficient to supply 
 the furnace has been held not to be waste.'' 
 
 Waste in timber consists in cutting down, lopping, topping, or doing 
 any act whereby it may be brought to decay. In England, oak, ash and 
 elm are timber in all places, and by custom of different countries, birch, 
 beech, walnut, willow, hornbean, blackthorn, «fec.' In this state, pine 
 timber has, perhaps, more frequently than any other, been protected by 
 injunction : and it constitutes the greatest portion in bulk and value of 
 the timber of commerce.^ 
 
 ' 3 Bl. GDm. 223. " "Waterman's note, Eden on Injuno. 
 
 » 2 id. 281. 179. 
 
 • Kidd v. Dennisson, 6 Barb. 9. Jack- " Den v. Kinney, 2 South. 552. 
 son V. Brownson, 7 J. K. 227. ' Eden on Inj. ch. 8. 
 
 * Kidd V. Dennison, 6 Barb. 10. Jack- » Watson v. Hunter, 6 J. Cli. B. 169; 
 8on V. Brownson, 7 J. R. 227. Cooper where injunction was granted to restrain 
 V. Stower, 9 id. 888. Mooers v. Waite, the cutting of pine timber. Ensign v. 
 8 Wend. 107. Oolburn, 11 Paige, 503; the timber ia 
 
 controversy was pine timber. 
 
CL 6.] To Prevent Waste. 371 
 
 The cutting of many sorts of trees, which are not otherwise timber, 
 may be waste ; as if they be planted or be preserved for the support of a 
 bank, or as a shelter for a house, and the like, or fruit trees in a garden, 
 or trees planted or preserved for ornament. ' 
 
 In general, courts of equity only interfere to prevent future waste, and 
 not to control the disposition of that already cut, before an injunction was 
 applied for," But an injunction was allowed to restrain the removal of 
 timber already cut, on the application of the mortgagee against the mort- 
 gagor, in a ease where the latter had been decreed a bankrupt, and the 
 timber constituted the principal value of the premises, and was cut by 
 the mortgagor in an unconsciencious manner, and with a view of defraud- 
 ing the mortgagee out of his security. In that case, too, the mortgagor 
 had no longef any interest in the mortgaged premises, nor any hope of 
 paying the debt.' 
 
 It is not waste in a tenant for life to cut down timber trees for the 
 purpose of making necessary repairs on the estate, and to sell them and 
 purchase boards with the proceeds for such 'repairs, provided this be 
 proved to be the most economical mode of making the repairs.* Every 
 tenant for life, unless restrained by covenant, has a right to house-bote, 
 Jire-bote, plough-boie, and fence-bote. This is a right to take from the 
 premises such wood as is necessary for fuel, for fences, and for agricul- 
 tural erections.^ 
 
 It may in general be said that waste, which ensues from the act of God, 
 is excusable. Thus, if a house fall by a tejppest, or be abated by light- 
 ning ; if apple trees be torn up by a great wind, and the lessee after- 
 wards cuts them up ; if the banks of a river be well repaired by the les- 
 see, and the water notwithstanding subvert them, and surround the 
 meadow, by which it has become rushy ; in these, and the like cases, it 
 is not waste in the tenant.' 
 
 At common law, a tenant for life, without impeachment of waste, was 
 treated like the owner of the estate, except as to the duration of his 
 estate. He might pull up, or cut down wood and timber, or dig mines, 
 &c. at hij pleasure.'' But whatever effect this clause in a lease may have 
 in an action at law to recover the place wasted, or damages, or both, courts 
 of equity will restrain the tenant from doing any act destructive of the 
 
 ' Coke Litt. 53, a. Hob. 219. • Ooke Litt. 416. 
 
 ' Watson V. Hunter, 5 J. Ch. E. 169. « Bao. Ab. "Waste, F. 
 
 ' Ensiga v. Oolbum, 11 Paige, 504. ' Id. F. 
 
 * Loomis V. Wilbur, 5 Mason, 13. Bao. 
 Ab. Waste, F. contra. 
 
 f 
 
372 Of Injunctions. [Ch. 6. 
 
 estate granted, and from cutting down trees planted for ornament or 
 shelter, and from destroying the house itself.' 
 
 With regard to what shall be deemed ornamental, it seems to be settled 
 that it is not the taste of the court, or of the tenant for life, that is to 
 control. If the testator or author of the interest by deed had gratified 
 his own taste by planting for ornament, though he had adopted the 
 species the most disgusting to the tenant for life, and the most agreeable 
 to the tenant in tail, and upon the competition between the parties tho 
 court should see that the tenant for life was right, and the other wrong, 
 in point of taste, yet the taste of the testator, like his will, binds them, 
 and it is not competent to them to substitute another species of ornament 
 for that which the testator designed.* 
 
 It is not enough, therefore, in an application for an injunction, in cases 
 of that kind, to allege that the trees cut down were ornamental. It must 
 be shown that they were planted, or left standing, for the purpose of 
 ornament.^ 
 
 The principle has been extended from ornament of the house, to out- 
 houses and grounds, then to plantations, vistas, avenues, and all the rides 
 about the estate for ten miles round ; and in the case of the Marquis of 
 Downshire v. Sandys, (supra,) it was held to extend to clumps of firs on 
 a common, two miles distant from the house, they having been planted 
 for ornament.'' 
 
 The principle has been extended to granting an injunction against 
 cutting trees which were planted to exclude objects from view.= 
 
 The species of waste we are considering is denominated equitable 
 waste. It is so called because it is restrained only by courts of equity, 
 and is not punishable in courts of law. 
 
 The clause in leases, which give rise to these decisions, is not usually 
 inserted in leases in this state. 
 
 Though a tenant for life may open the earth in new places, in pursuit 
 of an old vein of coals, where the coal mines had been opened before he 
 came to the estate,^ yet he has no power to open new mines, such as had 
 not before been opened.^ The same rule was applied by the courts of 
 New-York to mines of iron ore." 
 
 ' Vane v. Lord Bernard, 2 Vern. 733. " Day v. Merry, 16 Ves. 875. "Williams 
 
 Partington's case, 3 Atk. 216. v. M'Namara, 8 id. 70. Newdegate c 
 
 " Marquis of Downshire v. Lady San- Newdegate, 1 Sim. 131. 
 
 dys, Ves. 110. • Olavering v. Olavering, 2 P.Wms. S89. 
 
 " Coffin V. Ooffin, Jacob, 70. ' Whitfied v. Bewit, 2 P. Wms. 240. 
 
 • Ld. Tarn worth v. Ld. Ferris, 6 Ves. 41 9. ' Ooates v. Oheever, 1 Oowen 477. 
 
Ch. 6.] "Waste and Mines. 373 
 
 In Saunders' case' many points were decided on ttis subject. Thus 
 It was held, that if a man hath land, in part of which there is a coal mine 
 open, and he leases the land to one for life, or for years, the lessee may 
 dig in it ; for inasmuch as the mine is open at the time, &c. and he leases 
 all the land, it shall be intended that his interest is as general as his 
 lease is ; viz. that he shall take the profit of all the land, and by conse- 
 quence of the mine in it. If, however, the mine were not open, but in- 
 cluded within the bowels of the earth at the time of the lease made, in 
 such case, by leasing of the land, the lessee cannot make new mines, for 
 that shall be waste. 
 
 If a man hath mines hid within his land, and leases his land, and all 
 mines therein, there the lessee may dig for them, for quando aliquis 
 aliquid concedit, concedere videtur et id sine quo res ipsa esse non 
 potest. 
 
 Courts of equity are, in general, reluctant in granting injunctions 
 restraining mining operations, from the great expenditures required to 
 renew operations after they have been suspended ; and they will refuse 
 to interfere, if the plaintiff has been guilty of laches.' 
 
 Any material change in the nature and character of -the buildings, 
 made by the tenant, is waste, although the value of the p^^perty should 
 be enhanced by the alteration.' In one case, the, court say that a tenant 
 cannot, under the pretense of advantage to the reversioner, change the 
 nature of the buildings ; and many cases show that such changes, though 
 beneficial, would be waste.' The ground on which alterations in the de- 
 mised premises, not prejudicial to the value of the property, have been 
 declared to be waste, is, that they change the identity of the estate. Ac- 
 cordingly, the conversion of arable land into wood, or of meadow into 
 arable, provided it be ancient pasture, is waste ; and injunctions have 
 been granted in all times to prevent it.' So, converting a meadow into 
 an orchard, or ploughing up a hop ground and sowing it with grain, is 
 waste. The conversion of one building into another, as the changing a 
 logwood mill into a cotton mill, is waste.' So, it has formerly been held, 
 that if the lessee pulls down the house and builds a new one, it is waste, 
 if the new one is either larger or smaller than the one demised.'' So, the 
 making material alterations in a dwelling bouse is waste. ^ 
 
 ' 6 Coke, 22. ' Jackson y. Andrews, 18 J. E. 434. 
 
 ' Grew V. The Dnke of Northnmber- ' Wilton v. Saxon, 6 Ves. 106. 
 
 land, 17 Ves. 284. 13 id. 236. Birm- • Bridges v. Kilburn, cited 5 id. 691. 
 
 Ingham Canal Co. v. Lloyd, 18 id. 515. ' 22 Vin. Ab. 439. 
 
 ' Edd V. Denuison,- 6 Barb. 13, per ' Douglass v. Wiggins, 1 J. Ch. K. 435. 
 Paige, J. 
 
374 Of Injunctions, [Ct. 6. 
 
 But the doctrine of some of these cases is not applicable to the state 
 of agriculture in this country. If applied literally, they would put a stop 
 to all improvemenf s in- husbandry, and prevent the growth and expansion 
 of the country. ' In speaking on this subject Chancellor "Walworth said : 
 Some of the ancient cases restricted the tenant within very narrow limits, 
 as to his right to alter or improve the premises held by him, without 
 subjecting him to an action of waste, or to a forfeiture of the estate. 
 It was for a time questionable whether a tenant or a copyholder could 
 erect a new building upon the premises, without subjecting himself to a 
 loss of the property. (See Ward's case, 4 Leon. 241. Gray v. Ulysses, 
 2 Dyer, 211, note b. Paston v. Utberts, Litt. R. 264 ; Hutton, 102, S. C. 
 Cecil V. Cave, D'Anver's Abr. 194. 2 RoUe's Abr. 815. Coke Litt. 
 53, a. Keilway, 38. Darcy v. Askwith, Hobart's R. 234.) But what- 
 ever doubts may have formerly been entertained on this subject, be had 
 no hesitation in saying, that by the law of this state, as now understood, 
 it is not waste for the tenant to erect a new edifice upon the demised 
 premises ; provided it can be done without destroying or materially in- 
 juring the buildings or other improvements already existing thereon. 
 He admitted that the tenant has no right to pull down valuable buildings, 
 or to mako improvements or alterations, which would materially and 
 permanently change the nature of the property, so as to render it impos- 
 sible for him to restore the same premises, substantially, at the expira- 
 tion of the term. But to apply the ancient doctrines of waste to modern 
 tenancies, even for short terms, would, he thought, in some of the cities and 
 villages, put an entire stop to the progress of improvement, and deprive 
 the tenant of those benefits which both parties contemplated, at the time 
 of the demise, without any possible advantage to the owner of the rever- 
 sion. The modern cases as to the right of the tenant to remove fixtures, 
 or even some kinds of buildings, erected for the purposes of trade or 
 manufacture, show the change which has gradually, if not imperceptibly, 
 taken place in the law upon this subject. And upon the principles of 
 these modern cases, it cannot be waste to make new erections upon the 
 demised premises, which may be removed at the end of the term without 
 much inconvenience, leaving the property in the same situation it was at 
 the commencement of the tenancy; and the materials of which new 
 buildings, if left on the premises, would more than compensate the owner 
 of the reversion for the expenses of their removal. On these principles, 
 when the lessee of a house and lot, in the city of New- York, for eight 
 years, on one end of which was a house and lot containing a druggist 
 store, commenced erecting a brick building on the rear of the lot, which 
 
Ch. 6.] Fixtures. 375 
 
 ■was vacant, for a livery stable, the chancellor refused the application of 
 the landlord for an injunction.' 
 
 Waste may be done by the act of the tenant in pulling down houses, or 
 by his neglect to repair them. But if the house be uncovered when 
 the tenant comes in, it is no waste in the tenant to suffer it to fall down. 
 The same rule applies to glass windows, wainscots, doors, furnaces, and 
 the like ; these being parcel of the house, it is waste if they are suffered 
 to be broken, &c.^ 
 
 As the material alteration of the premises demised, from their natural 
 condition, is, under many circumstances, waste, so also is the removal of 
 things annexed to the freehold by the tenant. 
 
 The term fixtures is always applied to articles of a personal nature 
 which have been aflSxed to land. It is sometimes used to denote the 
 mere fact of annexation, and that the things so annexed cannot be re- 
 moved ; and at other times, to designate those personal chattels which 
 have been annexed to the land by the tenant, and which he, or his repre- 
 sentatives, may sever and remove without the consent of the owner of 
 the freehold. 
 
 It is not enough, to constitute a fixture, that the article should be merely 
 laid upon the land. Something more than mere juxta-position is required ; 
 as that the chattel has been let into the soil, or fastened to some fabric 
 previously attached to the ground, in such way that it cannot be detached 
 without some injury thereto. 
 
 It is a very ancient maxim, that whatever is fixed or annexed to the 
 realty is thereby made a part of the realty to which it adheres, and par- 
 takes of its incidents and properties. By the mere act of annexation a 
 personal chattel immediately becomes parcel of the freehold itself^ 
 
 Land includes not only th& ground or soil, but every thing attached 
 to it above or below, whether by the course of nature, &,s trees, herbage, 
 mines and water, or by the hands of man, as houses.* Many articles, 
 though originally goods and chattels, yet when affixed by a tenant to his 
 freehold, cease to be goods and chattels, by becoming part of the free- 
 hold ; and though it is in his power to reduce them to a state of goods 
 and chattels again by severing th«m during his term, yet, until they are 
 severed, they are a part of the freehold, as wainscots screwed to the wall, 
 
 ' Winchip v. Pitts, 3 Paige, 259. " Ferard's Law of Fixtures, ch. 1. 
 
 " Coke Litt. 63, a. . ' Billiard on Keal Property, oh. 1, § 8. 
 
^'6 Of Injunctions. [Oh. 6. 
 
 trees in a nursery ground, which when severed are chattels, but standing, 
 are part of the freehold ; certain grates, and the like.' 
 
 The ancient rule was, that all annexations made by the tenant during 
 the term became part of the freehold, and could not be severed without 
 the consent of the landlord.^ But the strictness of the ancient rule has 
 been greatly relaxed in modern times.' 
 
 The doctrine of the court of kings bench, in Elwes v. Maw, has been 
 adopted in New- York. Thus, in a case arising before the late revision 
 of the statutes, and decided in 1827,^ the court, adopting the language of 
 Lord Ellenborough, in Elwes v. Maw, say, that the law relative to fixtures 
 arises principally between three classes of persons : 1st, between the 
 heir and executor ; 2d, between the executors of tenant for life and the 
 remainderman and reversioner; and 3d, between landlord and tenant : and 
 observe, that in the first case the rule obtains with the most rigor in 
 favor of the inheritance, and against the right to disannex therefrom, and 
 to consider, as a personal chattel, any thing which has been affixed thereto. 
 In the latter cases, the reasons for relaxing the rule are obvious, upon 
 motives of public policy. The tenant is thereby encouraged to make 
 improvements, and the interest of trade promoted, while the landlord or 
 reversioner has no cause to complain, inasmuch as the farm is restored 
 to him in the same state as when he parted with it. A different rule 
 would effectually check all improvements by the tenant, when it is known 
 that, at the end of the term, they are to be surrendered to the landlord, 
 or the reversioner of tenant for life. But the case between heir and 
 executor, and vendor and vendee, is widely different. The ancestor or 
 vendor has the absolute control, not only of the land, but of the improve- 
 ments. The heir and executor are both representatives of the ancestor ; 
 the vendor has an election to sell or not to sell the inheritance. The 
 court accordingly decided that, as between the vendor and vendee, all fix- 
 tures pass to the latter, though they were erected for the purpose of trade 
 or manufactures. 
 
 The rule between the executors of tenant for life, and the remainder- 
 man and reversioner, with regard to the right to fixtures, is more favorable 
 to the executors than in the case of heir and executor, and vendor and 
 vendee. An illustration of the rule will be found in an early case, before 
 Lord Hardwioke, in which it was held that a fire engine, set up for the 
 
 ' Per Gibbs, Oh. J., in Lee v. Kisdon, ' Elwes v. Maw, S East, 88. "Walker 
 
 7 Taunt. 88. '^- Sherman, 20 "Wend. 636. 
 
 ' Coke Litt. 53, a. Herlakenden's case, * Miller v. Plumb, 6 Cowen, 667. 
 4 Ooke, 62. 
 
Ch. 6.] Fixtures. 377 
 
 benefit of a colliery by a tenant for life, should be considered^ a part of 
 his personal estate, and go to his executors, and not belong to the owner 
 of the inheritance.' 
 
 The rule between landlord and tenant is more favorable to the latter, 
 with r^pect to the right of removal, than in either of the other cases. 
 A case in our own courts, decided before the late revision of the statutes, 
 will afford a convenient illustration. A cider mill and press, erected by 
 a tenant holding from year to year, at his own expense, and for his own 
 use, in making the cider on the farm, were held not to be fixtures, but 
 personal property, belonging to the tenant, who might remove them at the 
 expiration of his tenantey.' In a case of this kind, it does not seem to 
 be important, whether the mill be let into the ground or not. Nor will 
 the title to it be affected, by its not being removed during the continuance 
 of the tenantcy ; though the tenant, if he enters and removes it after the 
 termination of his tenantcy, may be a trespasser on the soil, and be an- 
 swerable for breaking the close, there can be no recovery against him for 
 the value of the mill.^ 
 
 In the Revised Statutes, an attempt was made to put the title of an 
 executor or administrator to things annexed to the freehold, or to any 
 building, for the purpose of trade or manufacture, and not fixed into the 
 wall of a house, so as to be essential to its support, upon the same footing 
 as that of the tenant, as between him and his landlord.'' It declared such 
 annexations assets in the hands of the personal representatives, to be ap- 
 plied and distributed as part of the personal estate of the testator or in- 
 testate, while it left other annexations to the -freehold, to descend with it 
 to the heirs, or pass to the devisees.' But this provision of the Revised 
 Statutes has not been thought sufficient to define what is to be considered 
 a part of the freehold itself, and what are mere fixtures or things annex- 
 ed to the freehold, for the purposes of trade or manufactures. And it was 
 deemed still necessary to go back to the common law, and to the decisions 
 of the courts, for the purpose of ascertaining what is a substantial part 
 of the freehold, and what is a mere fixture or thing annexed to such 
 freehold. We must also resort to the same sources of information to as- 
 certain what is to be considered a part of a building, and what is in its 
 nature mere personal property, and only annexed to such building tern* 
 porarily, for the purpose of trade or manufaoture. And the chancellor 
 accordingly held, notwithstanding the statute, that the water wheels, 
 
 ' Lawton v. Lawton, 3 Atk. 13. * 2 E. S. 83, sub. 4. 3 K. S. 639, re- 
 
 ' Holmes v. Tremper, 20 J. R. 29. visers' notes. 
 
 • Id. '2 id. 82, 88, §§ 6, 7, 8. 
 
 Eq. Jub. 48 
 
378 Of Injunctions, fCh. 6. 
 
 milla stones, running geer and bolting apparatus of a grist and flouring 
 mill, and other fixtures of the same character, are constituent parts of 
 the mill, and descend to the heirs at law as real property ; and do not 
 pass to the executors or administrators of the deceased owner of the mill 
 as a part of his personal estate, although they were not so fixed into the 
 wall as to be essential for its support.' It would seem that fixtures of 
 this character, which are essential to the enjoyment of the inheritance, 
 are as much a part of the freehold as the building and water power, which 
 with them constitute the mill.' 
 
 It is obviously not the purpose of this treatise to discuss the law of 
 fixtures at large.^ It is not waste for the tenant to sever from the free- 
 hold such annexations as the law does not consider as indissolubly a part 
 of the inheritance, and he therefore cannot be restrained by injunction for 
 doing, or threatnii^ to do, what the law allows him to perform. 
 
 Having thus considered, in a general way, what constitutes waste, it 
 will be convenient, in the next place, to consider the remedy, and between 
 what parties a court of equity will interpose.* 
 
 All the ancient remedies for the prevention of waste have, in modem 
 times, given place either to an action on the case, or to a bill in equity 
 to stay waste either threatened, or while the party is committing it, and 
 for an account of such waste as may have already been done. The latter 
 remedy is the one which falls within the compass of this treatise, and is 
 open to many persons who could not take the advantage of the ancient 
 legal remedies. It is not defeated by the existence of an intermediate 
 estatej between the parties to the action ; and will be sustained, where 
 the rights of the complaining party are only of an equitable nature. 
 
 The action of waste is abolished by the code, but the wrongs remedi- 
 able by that action are, like other wrongs, the subject of action, in 
 ■which there may be judgment for damages, forfeiture of the estate of 
 the offending party, and eviction from the premises.' The remedy in 
 equity is unaffected by the code, except it must be conducted according 
 to the forms of the code. There are also statutory remedies for staying 
 waste, pending an action by an order of the same court.' 
 
 ' House V. House, 10 Paige, 158, 163, common law, see 3 Bl. Com. 227, 228. 
 
 164. Jefferson v. Bishop of Durham, 1 Bos. & 
 
 " M. Pul. 120, opinion of Eyre, Oh. J. Eden 
 
 ' See "Walker v. Sherman, 20 Wend. 688 on Inj. eh. 9. 1 Fonh. Eq. B. 1, oh. 1, 
 
 to 657, for an elaborate review of all § 5, note, 
 
 the cases on this subject, by Oowen, judge. ' Code, § 451. 2 E. S. 388. 
 
 * For an account of the remedy at " 2 R. S. 336, § 18. 
 
Ch. 6.] Waste. Remedy. 379 
 
 At law a mortgag«e cannot maintain an action of waste, against the 
 mortgagor, before the forfeiture of the mortgage. The reason is, that 
 waste is a remedy given to him who has the inheritance in expectancy, 
 in remainder or reversion. The interest of the mortgagee is contingent, 
 and may be defeated by payment of the money secured by the mortgage.' 
 But in equity an injunction lies against a mortgagor in possession, to 
 stay waste. The court will not suffer him to prejudice the security.* 
 For every substantial purpose, the mortgagor is, in this state, the real 
 owner of the land, and the mortgagee has merely a lien upon it.' 
 Though in general the owner of the legal estate can deal with it as he 
 pleases, yet if there be equitable circumstances, incompatible with that 
 right, equity will restrain him.* Lord Hardwicke said, in one case,' that 
 he should have no scruple to grant an injunction to stay waste in favor 
 of a child in ventre sa mere. An action at law would not lie in such a 
 case ; and there are various other contingent rights, not cognizable at 
 . law, which equity will protect 
 
 1/ At common law the assignee of the tenant by the curtesy could not 
 be used in waste. The action must be brought against the tenant him- 
 self by the heir ; and the books state, that thereby he shall recover the 
 lands against the assignee for the privity which is between the heir and 
 tenant by the curtesy. So if tenant in dower, or tenant by the curtesy, 
 grant over their estate, yet the privity of action remains between the 
 heir and them, and he shall have an action of waste against them for 
 waste committed after the assignment ; but if the heir grants over the 
 reversion, there the privity of action is destroyed, and the grantee cannot 
 have any action of waste but only against the assignee ; for between them 
 there is privity in estate ; and between them and the tenant in dower, or 
 the tenant by the curtesy, is no privity at all ; so that at law, if the as- 
 signee is suable in waste, there must be a privity of estate.' 
 
 The action of waste could not be maintained against a tenant for life, 
 except by him who had the immediate estate of inheritance, expectant on 
 the determination of the estate for life. So that if, between the estate 
 of the tenant for life, who commits waste, and the subsequent estate of 
 inheritance, there was interposed an estate of freehold, to any person in 
 
 ' Peterson v. Clark, 15 J. B. 205. 3 ' Astor v. Milles, 2 Paige, 68. Astor 
 
 Bl. Com. 225. v. Hoyt, 5 Wend. 602. 
 
 ' Brady v. Waldron, 2 J. Ch. R. 148. ' Eobinson v. Listen, 3 Atk. 210. 
 Eobinson v. Litton, 3 Bi. 210. Down- ' Id. 
 
 ing V. Palmateer, 1 Monroe, 65. Spear ° Bates v. Scliraeder, 13 J. K. 268. 
 
 v. Cutler, 5 Barb. 489. Van Vyok v. Coke's Inst. 54, a. 2 id. 301, a. Walk- 
 
 Alliger, 6 id. 507. er's case, 3 Coke, 23. 
 
380 Op Injunctions. [Ch. 6. 
 
 esse, during the continuance of such interposed estate, the action of 
 waste was suspended.' Nor could any person at common law, unless he 
 was in the actual possession of the land, maintain trespass for an injury to 
 the inheritance.' The act for the amendment of the law provided for 
 both these cases,^ and which is preserved by the Revised Statutes.' It 
 is there enacted that a person seised of an estate in remainder, or rever- 
 sion, may maintain an action of waste or trespass for any injury done to 
 the inheritance, notwithstanding any intervening estate for life or years. 
 This provision merely relieved the plaintiff from the technical objections 
 above mentioned. It gives to the remainderman or reversioner an action 
 of waste, when waste is the appropriate remedy, and trespass, when tres- 
 pass is the appropriate remedy, notwithstanding any intervening estate 
 for life or years.^ It does not give the action of waste against a stranger, 
 nor alter the law as to the requisite privity of estate between the heir 
 and the tenant by the curtesy or tenant in dower, so that the principle 
 continues the same as to his assignee, who, without such privity, is not 
 liable at law to an action of waste.^ 
 
 An injunction to stay waste between tenants in common will be sus- 
 tained in special cases ; as where the defendant is insolvent, or where the 
 waste is destructive of the estate, and not within the usual and legitimate 
 exercise of enjoyment ; or where one tenant in common occupies as ten- 
 ant under another.' The statute of W. 2, 13 Ewd. 1, ch. 22, and which has 
 been adopted in this state,' gives an action of waste by one tenant in 
 common or joint tenant against another. The injury is, therefore, one 
 recognized by law ; and the remedial power of equity may be called in, 
 whenever the legal remedy is inadequate or defective. 
 
 In all cases after the commencement of an action for the recovery of 
 land, or for the recovery of the possession of land, if the defendant shall 
 commit waste, the court in which the suit is pending is empowered, on 
 the application of the plaintiff, to make an order restraining the defendant 
 from the commission of any further waste thereon, and to enforce the or- 
 der as courts of equity enforce an injunction.' 
 
 ' Livingston v. Haywood, IIJ. R. 430, " Id. 
 
 431- ' Hawley v. Clowes, 2 J. Oh. K. 122. 
 
 ' Id. Hole v. Thomas, 7 Ves. 588. 
 
 • 1 B. L. 527, § 88. « 2 E. S. 384, § 8. 
 
 • 1 R. S. 750, § 8. • Id. 336, §§ 18, 19. And see former 
 
 • Bates V. Sohraeder, 18 J. E. 268. act, 1 E. L. 88, § 89. 6 Edw. 1, oh. 13. 
 Livingston v. Haywood, 11 id. 431. 
 
Ch. 6.] To Restrain Trespasses. 381 
 
 A summary jurisdiction is also vested by law, in justices of the supreme 
 court and county judges, or any one of them, to restrain by an order the 
 commission of waste, committed or threatened, by the person whose real 
 property has been sold on execution, or by any person in possession of 
 the premises so sold, between the sale and time of redemption, and to 
 punish the violation of such order in the same manner as courts of equity 
 punish the violation of an injunction.' 
 
 The jurisdiction of courts of equity to restrain waste is a wholesome 
 one, to be liberally exercised in the prevention of irreparable injury, and 
 depends on much latitude of discretion in the court. Equity goes to 
 greater length in staying waste than courts of law. There are numerous 
 cases in chancery, in which the court has interposed to stay waste by the 
 tenant, where no action could be maintained against him at law. Thus, 
 where there is lessee for life, remainder for life, remainder in fee ; the 
 mesne remainderman cannot bring waste, nor the remainderman in. fee, . 
 but equity will interpose and stay waste.' So equity will in many cases 
 restrain waste, though the lease contain the clause, without impeach- 
 ment of waste, and which takes away the remedy at law, as where this 
 power is exercised in an unreasonable manner and against conscience.^ 
 Nor is it essential to the remedy that there should be an actual lis pen- . 
 dens in a court of law.* ( 
 
 The remedies against the person are less efficient than they were 
 formerly ; while the progress of society, the increase of wealth, and the 
 competition to which it gives rise, call for and receive the more ener- 
 getic protection of the law. The courts of equity have accordingly yielded 
 to the pressure of public necessity, and, as was remarked by Vice Chan- 
 cellor Bruce, on a recent occasion, do not treat questions of destructive 
 damage to property now, exactly as they did forty years back — that their 
 protection in such respects is more largely afforded than it then generally 
 was. And in adverting to cases where relief by injunction had formerly 
 been denied, he ventures to say that relief would be given, at the present 
 day, in cases of an analogous character.^ 
 
 Cases of trespass upon land-, attended with irreparable injury, are anal- 
 ogous to waste, and in modern times, and with certain limitations, injunc- 
 
 ' 2 R. S. 837, § 23 et seq. 'Id. Aston v. Aston, 1 Ves. 264. 
 
 ' Kane v. Vanderburgh, 1 J. Ch. E. 12. Strathmore v. Bowes, 2 Bro. 88. 
 
 Perrot v. Perrot, 3 Atk. 94. Robinson v. * Kane v. Vanderburgh, 1 J. Oh. R. 11. 
 
 Ijtton, id. 210. Farrant v. Love], id. 728. " Haigh v. Jaggar, 2 OoUyer, 236. 
 
B82 Of Injunctions. [Ch. 6. 
 
 tions have been granted. Lord Eldon said, on one occasion,' that there 
 was no instance of an injunction in trespass 'till the case before Lord 
 Thurlow, in Fleming's case, cited and followed by himself," where the 
 defendant had worked from his own land into the coal mine of the 
 plaintiff. It went upon the principle that irremediable mischief and ruin 
 of the property, as a mine, would be the consequences, if the party was 
 not stopped. On the same ground, the injunction is granted against di- 
 verting a water course from a mill, (1 Bro. 588 ;) against the destruction 
 of' timber, (10 Ves. 290 ;) against the taking of stones of peculiar value,' 
 or stones from a quarry.* But all these are cases of great and irremedi- 
 able mischief, which damages could not compensate, because the mischief 
 reaches to the very substance and value of the estate, and goes to the 
 destruction of it in the character in which it is enjoyed.' This doctrine 
 was approved by Chancellor Kent, who refused an injunction to restrain 
 a trespass, where the injury was not irreparable and destructive to the 
 plaintiff's estate, but was susceptible of perfect pecuniary compensation, 
 and for which the party might obtain adequate satisfaction in the ordi- 
 nary course of law.^ 
 
 In Fleming's case, (supra,) which Lord Eldon says was the first instance 
 of granting an injunction in trespass, the nature of the injury was very 
 near waste, and there was no dispute whatever about the right.' The an- 
 cient doctrine of the court no doubt was, not to interfere by injunction- 
 in cases of trespass, but to leave the party to his legal remedy. But the 
 practice of the court is now more liberal ; yet, in cases of trespass, it ex- 
 pects a strong case of destruction or irreparable mischief to be present- 
 ed.' While, for a mere naked trespass, when the remedy at law is full 
 and adequate, equity will not interpose ; yet, for the purpose of quieting a 
 possession, or preventing a multiplicity of actions, or where the value 
 of the inheritance is in jeopardy, or irreparable mischief is threatened, 
 in relation either to mines, quarries, or woodland, the court will interfere 
 by injunction, even against a person acting under a claim of right.= 
 The injury may be irreparable, either from the nature of the injury it- 
 self, or from the want of responsibility in the person committing it.' 
 
 When the right of a party is. doubtful, the court will not grant an in- 
 junction, to prevent an illegal interference with the same, until the right 
 
 ' Smith V. OoUyer, 8 Ves. 90. « Smith v. Collyer, 8 Ves. 90. 
 
 ' Mitchell V. Dors, 6 id. 147. Hanson ' "West v. Walker, 2 Green's Oh. K. 279. 
 
 v. Gardiner, 7 id. 808. Van "Winkle v. Curtis, id. 422. 
 
 » Earl Oowper v. Baker, 17 id. 128. » Kerlin v. "West, 8 Green's gh. R. 449 
 '■ Thomas v. Oakly, 18 id. 184. 
 ' Jerome v. Koss, 7 J. Oh. E. 815. 
 
Ch. 6.] Patents. Copyrights. 383 
 
 is established at law.' To warrant an injunction, to prevent a mere tres- 
 pass, the party invoking the aid of the court must have been in the pre- 
 vious undisturbed enjoyment of the property, under claim of right, or 
 relief at law must be unattainable, from the irresponsibility of the de- 
 fendant or otherwise." 
 
 It requires a strong case to restrain a trespass by a party in possession, 
 claiming by an adverse title. Unless a complaint shows some other ground 
 of equitable relief, such as the insolvency of the defendant, the peculiar 
 nature of the injury, and the like, accompanied with proof of the plain- 
 tiff's title, equity will not interfere till the right has been established at 
 law. If it admits the defendant's possession under claim of right, and 
 does not countervail it by some other statement, the complaint is defective.' 
 
 SECTION VI. 
 
 OF INJUNCTIONS TO KESTKAIN THe' INFRINGEMENT OF PATENTS, THE VIOLATION 
 OF COPYHIGHTS, AND THE tTNAUTHOKIZED PUBLICATION OF LETTERS, AND 
 THE LIKE. 
 
 Another ground of injunction is to restrain the infringement of pat- 
 ents and of copyrights. By the constitution of the United States, con- 
 gress is empowered to promote the progress of science and useful arts, by 
 securing, for limited times, to authors and inventors, the exclusive right 
 to their respective writings and discoveries.' And by a subsequent ar- 
 ticle, (art. 3, § 2,) the judicial power of the general government is, amongst 
 other things, made to extend to all cases in law and equity, arising under 
 the constitution and the laws of the United States. Congress has exer- 
 cised its power, both with respect to authors and inventors, by securing 
 to them, for limited periods, the product of their genius and labors. And 
 by the act of the fifteenth of February, 1819, entitled an act to extend 
 the jurisdiction of the circuit courts of the United States to cases arising 
 imd'er the law relating to patents, original cognizance, as well in law as 
 
 ' Hart V. Mayor of Albany, 8 Paige, " Hart v. Mayor of Albany, 3 Paige, 
 
 213. Nevitt V. Gillespie, 1 How. (Miss.) 214. Storm v. Mann, 4 J. Oh. K. 21. 
 
 108. Partridge v. Meuok, 2 Barb. Oh. » Pillsworth v. Hopton, 6 Ves. 51. 
 
 E. 101. Van Bergen v. Van Bergen, 3 Davenport v. Davenport, T Hare, 222. 
 
 J. Oh. E. 282. Dana v. Valentine, 5 Met- Storm v. Mann, 4 J. Oh. E. 22. 
 
 calf, 8. * Const. U. S. art. 1, § 8, snbd. 8. 
 
384 Of Injunctions. [CL 6. 
 
 in equity, is given to the circuit courts of the United States, of all ac- 
 tions, suits, controversies and cases arising under any law of the United 
 States, granting or confirming to authors or inventors the exclusive right 
 to their respective writings, inventions and discoveries ; and authority ia 
 conferred on said courts, upon any bill in equity, filed by any party aggrieved 
 in any such cases, to grant injunctions, according to the course and princi- 
 ples of courts of equity, to prevent the violation of the rights of any authors 
 or inventors, secured to them by any laws of the United States, on such 
 terms and conditions as the said courts may deem reasonable, subject to ap- 
 peal to the supreme court of the United States.' And by the act of July 4, 
 1836, entitled an act to promote the progress of useful arts, and to repeal 
 all acts and parts of acts heretofore made for that purpose, it is enacted, 
 that all actions, suits, controversies and cases arising under any law of 
 the United States, granting or confirming to inventors the exclusive right 
 to their inventions or discoveries, shall be originally cognizable, as well 
 in equity as at law, by the circuit courts of the United States, or any dis- 
 trict court of the United States having the powers and jurisdiction of a 
 circuit court. And it then confers, in express terms, upon those courts, 
 the power of granting injunctions, according to the course and principles 
 of courts of equity, to prevent the violation of the rights of any in- 
 ventor, secured to him by any laws of the United States, on such terms 
 and conditions as said courts, may deem reasonable, with a right of ap- 
 peal to the supreme court of the United States.' 
 
 Under the foregoing constitutional and legislative provisions, it has 
 been held, by the court of appeals of the state of New- York, that the 
 jurisdiction in the case of infringements of patents is exclusively in the 
 courts of the United States, and that the courts of this state have no 
 jurisdiction to entertain a suit instituted to restrain the infringement of 
 a patent right.^ Under previous acts of congress, the supreme court of 
 this state disclaimed jurisdiction in actions brought to recover damages for 
 the infringement of patents.^ Chancellor Walworth held, in 1830, that 
 the act of 15th February, 1819, extending jurisdiction of the circuit 
 courts of the United States to suits both at law and in equity, arising 
 under the patent laws, did not, in terms, or by implication, render that 
 jurisdiction exclusive.' But he admitted, in a subsequent case, that the 
 jurisdiction is exclusive, under the revised act of 1836.' 
 
 The reasoning of the learned judge, in the case of Dudley v. Mayhew, 
 
 • Laws of U. S. 6th vol. 369. • Parsons v. Barnard, 7 J. E. 144. 
 
 ' Laws of 1836, p. 242, § 17. ' BurraU v. Jewett, 2 Paige, 134, 145. 
 
 ' Dudley v. Mayhew, 8 Oomst. 9. ' Gibson v. Woodworth, 8 id. 182. 
 
Ck 6.] .To Restrain Pxtblication op Letters. 885 
 
 (supra,) in tlie New- York court of appeals, tends to show that the juris- 
 diction, "with respect to literary works and mechanical inventions, stands 
 upon the same ground. Neither the author or inventor has any right 
 which can be protected otherwise than through the instruttientality of 
 the acts of congress. And when a statute confers a right, and prescribes 
 adequate means for protecting it, the proprietor is confined to the statu- 
 tory remedy. In the case of authors and inventors, the remedies given 
 by the statute are fully adequate for the protection of the rights created, 
 and the courts designated, competent to declare and enforce them. It is 
 believed that the jurisdiction to restrain by injunction the infringement 
 of a patent, or the invasion of a copyright, is exclusive in the courts of 
 the United States, and cannot be exercised concurrently by the state 
 courts. 
 
 It is foreign to the design of this work to go into the discussion of 
 questions relative to patents and copyrighte. The whole subject is ex- 
 hausted in Eden on Injunctions, to which Mr. Waterman has appended 
 the American cases. Whoever wishes to learn how those rights are pro- 
 tected and enforced, and to observe the subtle principles on which many 
 of the cases turned, will find the whole subject admirably discussed in 
 the author to which reference is made." 
 
 Of a nature similar to the violation of a copyright is the publication, 
 without the consent of the author or legal owner, of any manuscript ^hat' 
 ever, whether it be a manuscript treatise, or letters written by or to him, 
 either of business or friendship, or on any other occasion. The ground 
 for an injunction, in these cases, rests on the property which the com- 
 plaiiiing party has in the manuscripts or letters, or on the trust and con- 
 JidavCe reposed in the other party, and which will be violated by the un- 
 authoriaed publication. 
 
 The act of congress, to amend the several acts respecting copyrights, 
 passed February 3, 1831," enacts that any person or persons, who shall 
 print or publish any manuscript 'whatever, without the consent of the 
 author or legail proprietor first obtained, (if such author or proprietor be 
 a citizen of the United States, or resident therein,) shall be liable to suffer, 
 and pay to the author or proprietor all damages occasioned by such 
 
 ' 2 Eden on Injunctions by 'Waterman, 1 id. 11. Bramwell v. Holoomb, 3 Myl. 
 
 277 to 337, ch. 12, 13. Curtis on Copy- & Craig, 737, 738. Saunders v. Smith, 
 
 right. Campbell v. Scott, 11 Sim. 31. 3 id. 711 
 
 Emerson v. Davis, 3 Story's B. 768. Fol- " Laws of 1831, p. 1 1, ch. 15, § 9. 
 som v. Marsh, 2 id. 100, Gray v. Bnssell, 
 
 Eq. Jue. 49 
 
386 Op Injunctions. [Oh. 6. 
 
 injury, to be recovered by a special action on tbe case, founded upon that 
 act, in any court having cognizance thereof; and it empowers the several 
 courts of the United States, having authority to grant injunctions to pre- 
 vent the violation of the rights of authors and inventors, to grant injunc- 
 tions, in like manner, according to the principles of equity, to restrain 
 such publication of any manuscript as aforesaid. Here, no exclusive 
 jurisdiction is given to the courts of the United States, and it is quite 
 apparent that the state courts have the same jurisdiction, in this respect, 
 as existed at common law. 
 
 If the letters or manuscripts be of a literary character, the jurisdic- 
 tion of a court of equity to restrain their publication, by injunction, does 
 not seem to have been doubted. Lord Hardwicke, in an early case, grant- 
 ed an injunction restraining the defendant from publishing the letters of 
 the plaintiff, Pope, but not those which were written to him. He con- 
 sidered that the writing a letter to a man, and sending it to him, does 
 not give to the receiver a right to publish it. The latter may possibly 
 own the paper on which it is written, and have a special property in the 
 letter itself But he thought the right to obtain a copyright for the 
 letter remained in the writer, notwithstanding its transmission to the 
 party addressed, and that neither the latter, or any other person, had a 
 right to publish it without the consent of the writer.' This case was 
 followed by Lord Bathurst, in 1773, and an injunction was granted on a 
 bill filed by the executors of Lord Chesterfield, to restrain the publica- 
 tion of letters written by his lordship in his lifetime, to his son in the 
 lifetime of the latter, and the injunction was granted against the widow 
 and personal representative of the son and the publisher." In a mod- 
 ern case, the vice chancellor held, that an injunction, restraining the pub- 
 lication of private letters, having the character of literary compositions, 
 whether of a private nature, or upon general subjects, stood upon the 
 same foundation as the protection of literary property.' He tho»ght that 
 mercantile or other correspondence stood upon a different footing, and 
 whether the publication should be restrained or not, depended upon cir- 
 cumstances. And that if the publication became necessary for the 
 vindication of the party receiving the letters, against any unjust asper- 
 sion cast upon him by the writer of the letters, the publication of them 
 would not be enjoined by a court of equity.* 
 
 The decision of the vice chancellor of the first district, in an important 
 
 ' Pope V. Curl, 2 Atk. 842. • Percival v. PWpps, 2 Ves. & B. 28. 
 
 ' Ambler, 787. ' Id. 27. 
 
Ch. 6.] To Restrain Publication of Letters. 387 
 
 case before him, disclaimed for the court of chancery all jurisdiction to 
 restrain the publication of private letters, whether written' in the confi- 
 dence of friendship or otherwise, except upon the ground of literary 
 properly } Accordingly, though the publication might wound the feel- 
 ings of the writer, and be a breach of confidence reposed in the party to 
 whom they were addressed, yet if the letters contained no attribute of 
 literary composition, an injunction should be refused. And there is a 
 dictum of the chancellor, in another case," that thfe utmost extent to 
 which the court of chancery has ever gone in restraining any publication 
 by injunction has been upon the principle of protecting the rights of 
 property. And he doubts whether Lord Bldon, in Gee v. Pritchard,' in 
 assuming to restrain a publication of letters as a matter of property 
 merely when in fact the object of the complainant's bill was not to pre- 
 vent the publication of her letters on account of any supposed interest 
 she had in them as literary property, but to restrain the publication of a 
 private correspondence, as a matter of feeling only, did not intrench up- 
 on the liberty of the press. The chancellor, in a still more recent case, 
 reviewed the whole subject, and concluded by saying that the court of 
 chancery cannot properly exercise a power to restrain the publication of 
 private letters, on the ground of protecting literary property, where they 
 possessed no attributes of literary composition.* In Hoyt v. Mackenzie, 
 the bill charged no breach of confidence in any person, but rested the 
 case upon the violation of the right of property of the complainant in 
 the letters. In Brandreth v. Lance, the object of the bill was to prevent 
 the publication of a libel upon the plaintiff' or his business, which the 
 chancellor refused to sustain. The' ground of the reluctance of the court, 
 to entertain bills for an injunction in these cases, is the apprehension 
 that it wUl lead to an infringement of the liberty of the press.' 
 
 If the question turns upon the right of property which the writer haa 
 in a letter which he has addressed and sent to another person, it is diffi- 
 cult to see the principle on which the court can, as matter of law, say 
 that the writer has a property in one class of letters, because they are 
 literary compositions, and none in another class, because they have no 
 literary merit. How can the court decide the literary excellence of the 
 letters ? How can it know that the one is worthy of publication by the 
 writer, and that its publication by the person addressed should therefore 
 
 » "Wetmore v. Scovell, 3 Edw. Ch. K. * Hoyt v. Mackenzie 3 Barb. Ob. E. 
 
 ei5. 323. 
 
 ' Brandreth v. Lance, 8 Paige, 27. ' Brandreth v. Lance, 8 Paige, 28. 
 ' 2 Swanst. Kep. 408. 
 
388 Of Injunctions. [OL 6. 
 
 be restrained, while another is destitute of merit, and therefore the court 
 should not interfere 1 Would not the right to decide these questions, if 
 conceded, leave one class of letters without protection, and that class the 
 one which roost impressively called for it ? On principle, it would seem, 
 that if the" writer has a property in a letter written like a scholar, he has 
 a property in a letter written like a tyro. It is not the business of the 
 court to inquire which letter will command the highest price among pub-- 
 lisners. It is enough that it is the property of the writer, a^id he alone 
 must decide whether it shall be published or not. The writer of a poor 
 letter is as much entitled to have his property protected, as the writer of 
 a good one. Indeed, in the former case, the unauthorized publication 
 may be tnore distressing and injurious to the writer than in the latter.' 
 But though the right of property is enough to lay the foundation for 
 an injunction to restrain the unauthorized publication of another's manu- 
 scripts or letters, still it is believed that, where the publication involves a 
 breach of trust and confidence, a court of equity may, on that ground 
 alone, interfere.' An injunction was granted to restrain the publication 
 of letters from an old lady, under a weak attachment to a young man, 
 there having been an agreement not to pubUsh the letters, but to deliver 
 them up for a valuable consideration, and a sum of money having been 
 actually paid to the defendant.' 
 
 SECTION VII. 
 
 OF INJUNCTIONS TO SUPPEESS THE CONTINUANCE OP PUBLIC OB PRIVATE NUI- 
 SANCES, PURPEESTUKES, AND THE LIKE. 
 
 Another ground for an injunction, is to restrain the continuance of 
 public or private nuisances, purprestures, and the like. The term nui- 
 sance is not confined to such erections or employments as are prejudicial 
 to health, but embraces every thing that incommodes and offends, and ren- 
 ders the enjoyment of life and property uncomfortable.* It is of two 
 
 ' Curtis on Oopyriglit, 93 etseq. Story's 'Id. Granard v. Duuken, 1 Ball & 
 Eq. Jurisp. §§ 945, 948. Gee v. Pritohard, Beaty, 209. 
 2 Swanst. R. 403. * Aldred's case, 9 Co. 58, a. Tanner 
 
 " Peroival v. Phipps, 2 Ves. & B. 19. v. The Trustees of Albion village, 5 Hill, 
 Eden on Inj. 325. 121. Rex v. Papinean, Stra. 686. Brady 
 
 V. Weeks, 3 Barb. S. 0. E, 15T. 
 
Ch. 6.] To Suppress Nuisances. 389 
 
 kinds,, common aad private nuisances. The first is an offense against 
 tlie public, either by doing a thing which tends to the annoyance of the 
 public generally, or by neglecting to do a thing which the common good 
 requires." The last, is where the injury either relates to an individual 
 or his property. For punishing or suppressing a public or common nui- 
 sance, the remedy is, by indictmeat, at the suit of the people. No action 
 lies by an individual for a common nuisance, except when a private per- 
 son suffers some extraordinary damage, beyond the rest of the people ; 
 in which case he shall have a private satisfaction by action.'' 
 
 Courts of equity do not restrain nuisances, except in such cases as 
 where an action at law could be maintained. In this respect equity fol- 
 lows the law. Bills to restrain nuisances, said Lord Hardwic^e, must 
 extend to such only as are nuisances at law. The fears of mankind, 
 though they may be reasonable ones, will not create a nuisance.' Aa 
 injunction has been refused, to restrain the building of a house to inoc- 
 ulate for the small pox,* and in another case, to restrain the burning 
 of bricks near the habitations of men.° 
 
 In many of the cases which are indictable, as common nuisances, courts 
 of equity have no cognizance. The remedy at the suit of the people by 
 a, public prosecution will, in general, accomplish the object of suppress- 
 ing the injury, and render unnecessary the prosecution by individuals. 
 It may not be without use to notice some of the instances in which cer- 
 tain acts have been adjudged at law public nuisances. 
 
 With regard to offensive trades, it has been held that a brew-house, 
 erected in such an inconvenient place that the business cannot be carried 
 on without greatly incommoding the neighorhood, may be indicted as a 
 common nuisance ; and so, in the like case, may a gla,ss-kouse or swine- 
 yard. With respect to a candle manufactory, it has been held that it 
 is no common nuisance to make candles in a town, because the needful- 
 ness of them shall dispense with the noisomeness of the smell ; but the 
 reasonableness of this opinion seems justly to be questionable, because, 
 whatever necessity therfe may be that candles be made, it cannot be pre- 
 tended that it is necessary to make them in a town.^ 
 
 It is not necessary, to constitute' a nuisance, that the smell created by 
 it is injurious to health. If there be smells offensive to the' senses, that 
 is enough, as the neighborhood has a right to fresh and pure air. Nor 
 
 • Bac. Abr. title Nuisance. Boom v. City of Utica, 2 Barb. S. 0. E. 
 
 » 3 Bl. Com. 220. Lansing v. Smith, 104. 
 
 4 Wend. 9, per Walworth, Oh. '- Dnke of Grafton v. Hillard, cited 18 
 
 » 3 Atfc. 751. Yes. 219. 
 
 ' Id. Baines v. Baker, Ambler, 158. ' Eussell on Crimes, B. 2, § 1. 
 
390 Of Injunctions. [Ch. 6. 
 
 will the presence of other nuisances justify any one of them. One is 
 not the less subject to prosecution, because others are culpable. The 
 question, with regard to that class of nuisances, is whether the business 
 carried on is productive of smells offensive to persons passing along 
 the public highway.' 
 
 Erecting gunpowder mills, or keeping gunpowder magazines near a 
 town, is a nuisance at the common law. Disorderly inns, ale houses, 
 bawdy houses, gaming houses, play houses, unlicensed or improperly 
 conducted booths and stages for rope dancers, mountebanks, and the 
 like, are public nuisances, and may be indicted." 
 
 So, it seems, erections of every kind, adapted to sports or amusements, 
 having no useful end, and notoriously fitted up and continued, in order to 
 make a profit for the owner, are regarded by the common law as nui- 
 sances. On this principle the supreme court of New- York held, in a 
 recent case, that a bowling alley kept for gain or hire is a public 
 nuisance at common law, though gambling therein be expressly prohibited 
 by its owner.^ So, a house in a populous town, divided for poor people 
 to inhabit during the prevalence of an infectious disease, is a nuisance.* 
 Such a building, during the prevalence of the Asiatic cholera in 1832, 
 in the city of Albany, was adjudged a public nuisance, and the party 
 who tore it down, by order of the board of health, obtained a verdict, 
 when sued for damages by the owner.* So manufactures, lawful in 
 themselves, may become nuisances, if carried on in parts of towns where 
 they cannot but greatly incommode the inhabitants and destroy their 
 health.* So a mill for steeping sheepskins in water, near to and adjoining 
 the highway and several dwelling houses, by which the air was corrupted, 
 has been held to be a nuisance.' 
 
 Not only the party who continues a nuisance, but the party who 
 originally began it, is responsible to the public. One who demises his 
 property for the purpose of having it used in a way offensive to others, 
 may himself be treated as the author of the mischief The renting of 
 a house for purpose of prostitution is indictable, as well as the keeping 
 of such a house.* 
 
 ' Eussell on Crimes, B. 2, § 1. Eex v. * Meeker v. Van Rensselaer, 15 'Wencl. 
 
 Neil, 2 0. & P. 486. 397. 
 
 ' Russell on Crimes, vol. 1 p. 322. • Per Savage, in the above case. 
 
 ' Tanner v. Trustees of Albion. 6 Hill, ' Rex v. Papineau, 1 Str. 686. 
 
 121. ' The People v. Erwin, 4 Denio, 129. 
 
 * Id. 128, per Cowen, J., citing 1 Roll. Fish v. Dodge, id. 817. 
 Abr. 189, tit. Nuisance. 
 
Ch. 6.] To Suppress Nuisances. 391 
 
 The foregoing cases are enough to illustrate the general principles by 
 •which the court is governed in these cases. The remedy by indictment 
 is at the suit of the people, and embraces all cases of common nuisance. 
 At common law, an assize of nuisance lay against him who committed the 
 nuisance. But the ancient remedies long since gave way to an action 
 on the case, or to a bill in equity. The Revised Statutes retain the 
 writ of nuisance, with some modifications.' But few actions were ever 
 brought under the statute,' and the writ itself was expressly abolished by 
 the Code of Procedure, and the injuries formerly remediable by it were 
 made subjects of action as other injuries, and a judgment for damages, 
 or for the removal of the nuisance, or both, is prescribed.^ 
 
 In this state, the aid of a court of equity has frequently been invoked 
 to restrain the commission or the continuance of a nuisance, as well in be- 
 half of the attorney general suing for the people, as of individuals to 
 protect their own property. 
 
 In one case Chancellor Walworth held, that the/3ccupation of a building, 
 in the city of New-York, as a slaughter house, was prima facie a nui- 
 sance to the neighboring inhabitants, and might be restrained by injunc- 
 tion. The injunction was at first granted to prevent the erection of the 
 building for a slaughter house, and was afterwards so modified as to per- 
 mit the defendant to proceed with the erection of the building, but re- 
 straining him from using it, or permitting it to be used for that purpose. 
 The defendant, by his answer, insisted that he intended to use the slaugh- 
 ter house in such a manner that it would not be a nuisance to the com- 
 plainants or to the other inhabitants in the neighborhood, and on that 
 ground applied to the vice chancellor to dissolve the injunction, which the 
 vice chancellor refused, and his order was, on appeal, affirmed by the chan- 
 cellor." The doctrine of this case was approved by Paige, J. in a recent 
 case, and was so far extended as to apply to a party whose slaughter house 
 was, when erected, remote from the thickly settled parts of the city 
 and incommoded no one, and in favor of a plaintiff', who, after the erection 
 of the nuisance, built his dwelling house beside it.= The learned judge 
 remarked, that as the city extends, such nuisances should be removed to 
 the vacant ground beyond the immediate neighborhood of the residences 
 of the citizens. 
 
 The principle which gives a party who builds on his own land, beside a 
 nuisance previously erected, a right to have the nuisance abated is, that 
 
 ' 2 K. 8. 332. ' Catlin v. Valentine, 9 Paige, 575. 
 
 » Brown v. "Woodworth, 5 Barb. 560. ' Brady v. "Weeks, 8 Barb. S. 0. R. 159. 
 
 » Code, § 454 
 
392 Of Injunctions. fCJ^- ^■ 
 
 a Ccmtimiatioh of a nuisance is regarded as a new nuisance.' So wliere a 
 man erected a house on his own land, so near the land of his neighbor that 
 it overhung his neighbor's land three fleet, and threw the water upon the 
 land of the latter, it was adjudged that a subsequent feoffee of the latter 
 could maintain an action against the feoffee of the wrongdoer, if the 
 nuisance be not reformed after request made ; but against him who did 
 the wrong the action lies without request. And this went upon the ground 
 that the dropping of the water was a new wrong.^ 
 
 To justify the interposition of the court by injunction to restrain a 
 nuisance, the plaintiff's title must be free from doubt. If his title be 
 conceded, there is no occasion to have it established by a verdict in a 
 court of law. Where a plaintiff has been, immemorially, in the enjoyment 
 of a stream of water flowing through his land, and is in the actual pos- 
 session, equity will restrain the obstruction or diversion of the water, or 
 any important part of it, to the injury of the plaintiff. The diversion or. 
 obstruction of a water course is a private nuisance.' 
 
 •The court will restrain a defendant from obstructing a public street in 
 a city, by building a house thereOn, if it produces a special injury to the 
 plaintiff, by affecting the enjoyment of his property and the value. of it." 
 Though the act be a public nuisance, still, if it work a special grievance 
 to the plaintiff, he is entitled to the aid of the court. 
 
 Where the thing complained of is in itself a nuisance, and there is no 
 doubt as to the plaintiff's right, the court will interfere to stay irreparable 
 mischief, without waiting for the result of a trial.^ But where the thing 
 sought to be restrained is not in itself noxious, but only something which 
 may, according to circumstances, prove to be so, the court will await the 
 result of a trial at law, or of an issue awarded by itself Hence, in case 
 of a dispute as to the right of the enjoyment of portions of the water of 
 a stream, for manufacturing purposes, equity ought not to interfere by 
 injunction, unless the right of the complainant is capable of clear ascer- 
 tainment ; and then, only, to prevent irreparable mischief.' 
 
 An injunction lies to protect an individual or corporation in the enjoy- 
 
 ■ Per Paige, in Brady v. "Weeks, 8 Barb. * Corning v. Lowrie, 6 J. Oh. R. 439. 
 
 S. 0. R. 160. = Mohawk Bridge Co. v. U. & S. Rail- 
 
 ' Penruddook's case, 5 Co. 101. Blunt road, 6 Paige, 654, 563. 
 
 T. Aiken, 15 Wend. 624. Westbourn v. « Id. The Hudson and D. Canal Co. 
 
 Mordant, Oro. Eliz. 191. Stapple v. Story, v. Erie Railroad Co. 9 id. 323. The Earl 
 
 10 Mass. 74. of Ripon v. Hobart, Cooper's R. 843. 
 
 " Gardner v. Village of Newburgh, 2 S. C, 3 Myl. & K. 169. 
 
 J. Oh. R. 164. Gifford v. Reid, Hopk." ' Fisk v. Wilbur, 1 Barb. 395. 
 416. 
 
Ch. 6.] To Suppress Nuisances. 393 
 
 ment of a franchise or privilege conferred by statute or prescription. Thus, 
 vrliere a turnpike company, incorporated with the exclusive privilege of 
 erecting toll gates, and receiving toll, had opened and established a road, 
 and certain persons, to avoid paying toll, opened a by-road, at their own 
 expense, near the turnpike, by which travelers were enabled to avoid 
 passing through the gate, the court granted a perpetual injunction to pre- 
 vent the use of such road, and ordered it to be shut up.' The ground of 
 the jurisdiction, in such cases, is the avoiding of multiplicity of suits, and 
 the protection of the plaintiff's right from a fraudulent evasion. The 
 plaintiff must be in possession of the franchise, and his title be beyond 
 dispute, to entitle him to the relief by injunction. 
 
 The principle applies as well to a bridge or ferry, at which toll may be 
 lawfully received by the plaintiff, as to a turnpike company. When one 
 has a grant of a ferry, bridge or road, by prescription, with the exclusive 
 right of taking toll, the erection of another ferry, bridge or road, so near 
 it as to create a competition injurious to the franchise, is in respect to 
 such franchise a nuisance, and equity will grant a perpetual injunction to, 
 secure the enjoyment of such statute franchise, and prevent the use of the 
 rival establishment^ The same doctrine applies to any exclusive privi- 
 lege created by statute ; all such privileges come within the equity and 
 reason of the principle ; no rival road, bridge, ferry, or other establish- 
 ment of a similar kind, and for like purposes, can be tolerated so near to 
 the other as materially to affect and take away its custom. It operates as 
 a fraud upon the grant, and goes to defeat it. The consideration by 
 which individuals are invited to expend money upon great, expensive and 
 hazardous public works, as roads and bridges, and to become bound to 
 keep them in constant and good repair, is a grant of a- right to an exclu- 
 sive toll. This right, thus purchased for a valuable consideration, cannot 
 be taken away by direct or indirect means, devised for the purpose, both 
 of which are equally unlawful.' 
 
 In the cases above mentioned, the rival establishment of the defendant 
 was not sanctioned by any statute, but was the act of the individual de- 
 fendant alone. His act was held to be wrongful and fraudulent as against 
 the plaintiff deriving his title by statute, or prescription. But if the 
 grant by statute to the plaintiff of the franchise of a bridge, for example, 
 contains no words, excluding the right of the legislative power to grant a 
 
 ' Oroton Turnpike v. Eyder, 1 J. Ch. Oh. R. 101, 111. Ogden v. Gibbons, 4 
 
 E. 611. Livingston v. Van Ingen, 9 J. id. 160, 160. 
 
 R. 507. Whitchurch v. Hide, 2 Atk. » Per Kent, Oh., in Newburgh Turn- 
 
 391. piEe V. Miller, 5 id. 112. 
 
 ' Newburgh Turnpike v. Miller, 6 J. 
 
 Eq. Juk. 50 
 
894 Of Injunctions. [Ch. 6 
 
 similar franchise to others, accommodating the same line of. traval, the ex- 
 clusive privilege of the first grantee must be treated as subordinate to 
 the right of the legislature to make such other or further grants as they 
 may deem expedient.' The second grant, being derived from the same 
 source as the first, cannot be treated as a nuisance to the franchise first 
 conferred. Public grants are construed strictly ; and the grantees take 
 nothing by implication.' Although the first grantee will be protected in 
 his franchise as against an unauthorized and fraudulent competition, yet 
 he has no claim to an injunction against subsequent grantees, from the 
 same legislative power, unless he can show in its grant an express exclu- 
 sion of all power to make another grant, which will conflict with it. 
 
 To constitute a private nuisance to a dwelling house, so as to give 
 to the owner a right of action, it is not necessary that the latter 
 should have been driven from it. It has already been said, that it is 
 enough that the enjoyment of life and property has been rendered un- 
 comfortable.' This may be produced by trades that occasion great noise, 
 dust and saaoke, as well as by occupations which immediately afiect the 
 health. Thus, the manufacturing of steam engine boilers, though a 
 lawful business, may be carried on in such places, and in such a manner, 
 as to become a great annoyance to the impiediate neighbors, and to en- 
 title them to redress by a civil action.^ 
 
 An ordinary instance of the granting of an injunction in England, is to 
 restrain a party from building so near the plaintifi"'s house as to darken 
 his windows. But the injunction in these cases will not be granted, un- 
 less the windows in question be ancient lights, and the act is in violation 
 of some agreement, either express or implied." According to the modern 
 English doctrine, the quiet and uninterrupted enjoyment and possession of 
 wmdow lights for twenty years is sufficient ground for a jury to presume 
 a covenant, provided the evidence be such that the owner of the adjoin- 
 ing premises had knowledge, during that perio'd, of the fact. The knowl- 
 edge of the tenant alone is not enough for this purpose.^ This right 
 cannot be claimed in opposition to a grant, without reservation, by the 
 owner of the adjoining land.' 
 
 An action for opening a window to disturb the privacy of the plaintiff 
 
 ' Charles River Bridge v. "Wan-eu " Eden on Inj. 269. 
 Bridge, 11 Peters, 420. « Cross v. Lewis, 2 B. & 0. 686. Dan- 
 
 " Id. iel V. North, 11 East, 372. 
 
 ' Rex T. White, 1 Burr. 887^ per Lord ' Pahner v. Fletcher, I'Lev. 122.' 3 
 
 Mansfield. Fish v. Dodge, 4 Denio, 326. Steph. N. P. 1015. 
 
 •Id. 
 
Ch. 6.] Ancient Lights. 395 
 
 cannot be maintained, and the only remedy is to build on the adjoining 
 land opposite to the offensive window.' 
 
 The Englis'h doctrine with respect to ancient lights has not been gen- 
 erally adopted in this country. In one case, Ch. Justice Savage assumed 
 that an action upon the case lay for stopping the ancient lights of anoth- 
 er, but the case he was considering called for no decision of the point.' 
 In a later case, the reasoning of Bronson, J., tends to disprove the exist- 
 ence, in this state, of the modern English doctrine on the subject of lights. 
 He thinks it cannot be applied to the growing cities and villages of this 
 country, without working the most mischievous injustice ; and that it has 
 never been- deemed a part of our law.' The case did not call for a decis- 
 ion to that extent. The learned judge at the circuit having ruled that 
 the law presumed a grant as to windows, from a user of twenty years, and 
 declined leaving to the jury the question of presumption, and instructed 
 them that the plaintiff was entitled to their verdict, the court held that 
 the defendant was entitled to a new trial, in order that the question of 
 presumption of a grant might be submitted to the jury. It would seem 
 that though the court cannot, as matter of law, yet a jury may, as matter 
 of fact, presume a grant, from a quiet and uninterrupted possession of 
 ancient lights, for a period of twenty years.* And it would seem, also, 
 that the presumption in these cases is a mixed one of law and fact, to 
 be passed upon by the jury, under the direction of the court. Lord 
 Mansfield, on one occasion, said the enjoyment of lights, with the defend- 
 ant's acquiescence for twenty years, is such decisive presumption of a 
 right by grant, or otherwise, that, unless contradicted or explained, the 
 jury ought to believe it ; but it is impossible that length of time can be 
 said to be an absolute bar, like a statute of limitations ; it is certainly a 
 •presumptive bar, which ought to go to a jury.' In a plain case, where 
 there is no evidence to repel the presumption arising from twenty years 
 uninterrupted adverse user of an incorporeal right, the judge may very 
 properly instruct the jury, that it is their duty to find in favor of the par- 
 ty who has had the enjoyment ; but still it is a question for the jury.' 
 
 If the right at law be clear, and not doubtful or in dispute, the same 
 principle, which justifies the interposition of courts of equity to restrain 
 
 ' Chandler v. Thompson, 3 Camp. 80, ' Id. 
 per Le Blanck, J. Mahan v. Brown, 13 ' Darwin v. Upton, 2 Saund. 175, b, 
 
 Wend. 261. n. 2. Parker v. Fpote, 19 Wend. 314. 
 
 ' Mahan v. Brown, id. 263. ' Per Bronson, J., in same case, 816. 
 
 « Parker v. Joote, 19 id. 318. And see 3 Kent's Com. M8. 
 
396 Op Injunctions. [Ch. 6. 
 
 or prevent other private nuisances, will sanction its interference to prevent 
 by injunction the obstruction of ancient lights.' 
 
 Notwithstanding the doubt cast upon the subject by some dicta in Par- 
 ker V. Foote, (supra,) it is, nevertheless, believed, that where the enjoyment 
 of the easement has been uninterrupted for the period of twenty years, 
 and under a claim or assertion of right, and with the knowledge and ac- 
 quiescence of the owner of the adjoining land, and where no circumstances 
 exist tending to repel the presumption, the jury may infer the right. 
 
 Nor is it indispensable in order to acquire the right in question, that 
 the building should be erected on the extremity of the plaintiff's lot. If 
 it be erected so near the line, that a building erected on the extremity of 
 the adjoining lot will darken the windows, the plaintiff is entitled to the 
 like protection as if his own house was erected on his own line.^ But this 
 does not entitle the plaintiff to relief, unless the obstruction be such as 
 materially to affect the light in the plaintiff's house. It must be such 
 as to occasion a real diminution of the value of the plaintiff's property .=" 
 It is not sufiBeient, to constitute an illegal obstruction, that the plaintiff had 
 in fact less light than before ; nor that his house could not be used for all 
 the purposes to which it might otherwise have been applied. In order to 
 give a right of action, there must be a substantial privation of light, sufficient 
 to render the occupation of the house uncomfortable, and to prevent the 
 plaintiff from carrying on his accustomed business on the premises, as ben- 
 eficiallj as he had formerly done.'' 
 
 The obstruction of a prospect, or of the free circulation of air, occa- 
 sioned by building on one's own land, in the usual and reasonable manner, 
 will not be enjoined by a court of equity. The erection of a building in a 
 crowded city, on the opposite side of the street, is clearly lawful, although 
 it may intercept the view from the plaintiff's premises, and impede, to a 
 certain extent, the circulation of air.^ 
 
 It is said to be the usual and most correct mode of proceeding in equity, 
 in cases of public nuisance, for the attorney general to file an information.^ 
 But it is thought, nevertheless, that he may maintain a bill for that pur- 
 pose. In a case in this state, where the proceeding was by information 
 to enjoin an unincorporated banking company from the exercise of the 
 
 ' Eobeson v. Pettinger, 1 Green's Oh. Best, Ch. J. Parker v. Smith, 5 0. & P. 
 
 E. 67 ; and see Banks v. American Tract 438, per Tindal, Oh. J. 
 
 Society, 8 Saund. Oh. R. 438. ' Gwin v. Melmoth, Freeman's Ch. R. 
 
 ' Cross V. Lewis, 2 B. & 0. 686. 505. 
 
 ■ Pringle V. Wernham, 7 0. & P. 877, ' Baines v. Baker, Ambler, 159. S 
 
 per Lord Denman. Atk. 851. 
 
 ' Back V, Stacey, 2 C. & P. 465, per 
 
Ch. 6.] Against Corporations. 397 
 
 franchise of banking,' Chancellor Kent thought that unauthorized bank- 
 ing was not such a nuisance as a court of equity could restrain, and that 
 the remedy was in a court of law. Whatever ground formerly existed for 
 doubts on this subject, the Revised Statutes have removed them. By the 
 act concerning proceedings against corporations in equity the chancellor 
 was empowered, upon a bill filed by the attorney general, to restrain by 
 injunction any corporation from assuming or exercising any franchise, lib- 
 erty or privilege, or transacting any business, not allowed by its charter ; 
 and in the same manner, to restrain any individual from exercising any 
 corporate rights, privileges or franchises, not granted to them by any law 
 of this state." The jurisdiction over the directors and the funds of the cor- 
 poration is most ample, for all purposes of relief; and authority is given, 
 when the court is possessed of the cause, to restrain all proceedings at 
 law, by any creditor, against the defendant in the suit. 
 
 The jurisdiction which courts of equity exercise over individuals ex- 
 tends to acts done, or omitted to be done, by corporations, whether munici- 
 pal or private. Where the plaintiff, and those under whom he claimed, 
 had been in the quiet and uninterrupted possession of a lot of land for 
 twenty-five years and upwards, the court restrained by injunction the 
 corporation of the city of New- York frorh entering upon and disturbing 
 such possession, under pretense that the buildings encroached on the pub- 
 lic street, until the right of the corporation was first established at law.' 
 
 In the owning of title to land, a municipal corporation exercises not a 
 public but a private function. In respect to such property, the corpora- 
 tion stands upon the same footing as an individual, and has no more right 
 to erect and maintain a nuisance on its land than possessed by a private 
 citizen,* and it will be restrained in like manner. So where land is con- 
 veyed to a city in trust, to be kept open as a public street, one who owns 
 a lot upon and has been assessed for opening it, can enforce the execution 
 of the trust ; and if the corporation permits the adjoining owners to 
 inclose portions of it for court yards, he may have an injunction against 
 it.^ So where the trustees of a village are not authorized by their char- 
 ter to alter the grade of a street, after the same has been regulated and 
 established by them, as directed by the act of incorporations, the owners 
 of adjoining land, which will be seriously injured by an alternation of the 
 grade, are entitled to the interposition of a court of equity by injunction 
 
 ' Att'y Gen. v. tftica Ins. Co. 2 J. Ch. ■■ Brown v. Mayor of N. Y. 3 Barb. S. 
 
 R. 375. 0. E. 255, 258. 
 
 « 2 B. S. 462, § 1. ' Lawrence v. Mayor of N. Y. 2 Barb. 
 
 ' Variok v. Mayor of N. Y. 4 J. Ch. S. C. E. 678. 
 E. 53. 
 
398 Of Injunctions. , [Oh. 6. 
 
 to restrain trustees from altering the grade." In like manner an injunc- 
 tion will lie at the suit of the people, to prevent the tapping of a public 
 canal by an individual ; and, it seems, the fact that the encroachment will 
 not be injurious to the canal, is no objection to granting the writ. The 
 belief of the officer in charge of the work that the encroachment will be 
 injurious is decisive, though opinions to the contrary be sworn to." 
 
 Analogous to nuisance is a purpresture. A purpresture, according to 
 Coke, is where one encroacheth, or makes that several to himself, which 
 ought to be common to many.^ In its common acceptation, it is at pres- 
 ent understood to mean an encroachment upon, and inclosure of the prop- 
 erty of the public in a highway, river, harbor or street.* The remedy 
 for this species of injury is either by information of intrusion at common 
 law, or by information at the suit of the attorney general in equity.^ In 
 case of judgment upon an information of intrusion, the erection complained 
 of, whether it be a nuisance or not, is abated ; but upon a decree in an 
 information in equity, if it appears to be a purpresture, without being 
 at the same time a nuisance, the court may direct an inquiry whether it 
 be most beneficial to the crown to abate the purpresture, or to suffer the 
 erection to remain, and be arrented.^ But if the purpresture be also a 
 nuisance, this cannot be done, for the crown cannot sanction a nui- 
 sance.' 
 
 A purpresture which is not a nuisance, can be suppressed only on the 
 application of the public, through the attorney general, and is not the foun- 
 dation of a private action, either at law or in equity. 
 
 A purpresture may exist without being a nuisance. But in most cases 
 an inclosure of a street, river or harbor, amounting to a purpresture, is 
 also a nuisance, either public or private, or perhaps both ; and may be 
 suppressed, like other nuisances, by indictment, or by a proceeding in 
 equity. Prima facie, says Chancellor "Walworth, the person who appro- 
 priates any part of a public street, or harbor, exclusively and permanent- 
 ly to his own use, without the consent of the legislature or the municipal 
 authorities, is guilty of a nuisance, and he subjects himself to the burden 
 of proving that it is no injury to the pnfelic, and that a public right has 
 
 ' Oakley V. Trustees of "Williamsburgh, "Eden on Inj. 259. Att'y Gen. v. 
 
 6 Paige, 262. Trustees of Watertown v. Utica Ins. Oo. 2 J. Oh. R. 381. 
 
 Oowen, 4 id. 510. Att'y Gen. v. Forbes, ' Id., and Att'y Gen. v. Eiohards, 2 
 
 2 Myl. & Craig, 123. Anst. 603. 
 
 ° The Att'y Gen. v. The Cohoes Oo. » Id. 
 
 6 Paige, 188. ' Id. Eex v. Grosvenor, 2 Stark. N. P. 
 
 = 2 Inst. 38. 511. 
 
Ch. 6.] Wharves. Bridges. • 899 
 
 not been violated. On this principle, where a floating store-house was 
 permanently moored in the Albany basin, secured in its place by means 
 of spiles or posts driven into the earth, in the bottom of the river, and 
 "which was of great convenience to the complainants, and those having 
 dealing with their transportation line, in the transaction of their business, 
 the court of chancery held it to be a nuisance, and refused to restrain the 
 corporation of the city of Albany from removing it as such.' This erec- 
 tion fell clearly within the definition of a purpresture, but it was also a 
 nuisance, from its tendency to obstruct the free passage of boats and other 
 craft. 
 
 The erection of a wharf in a public river is a nuisance, and it has been 
 held to be no justification, in an indictment, that it has been beneficial to 
 the public." In one case, on an indictment for a nuisance, by erecting 
 staiths in a navigable river for loading ships with coal, the learned judge 
 charged the jury that the use of a navigable river was not for passage 
 only, but for other important rights, which might supersede the right of 
 passage ; and thit where a great public benefit accrued from that which oc- 
 casioned the abridgment of the right of passage, that abridgment was not 
 a nuisance, but proper and beneficial f and this ruling was approved by 
 two judges against the opinion of Lord Tenterden. But the doctrine of 
 this case was distinctly overruled in a later case, founded upon better 
 reasons.* It was thus shown that the violation of rights, which belong to 
 *one part of the public, cannot be vindicated by the benefits which may 
 arise to another part of the public elsewhere. 
 
 Many of the principles applicable to nuisances to navigable rivers, and 
 the remedies therefor, are elaborately discussed in a recent case in the 
 supreme court of the United States.' While it is admitted that the fed- 
 eral courts have no jurisdiction of common law ofienses, and cannot sus- 
 tain an indictment for a nuisance, yet their chancery jurisdiction gives 
 them a right to interpose and to restrain by injunction a nuisance which 
 is a private injury to the complainants. 
 
 The right of navigating a public river does not conflict with the right 
 of bridging it. These two rights may be so exercised as not to be incom- 
 
 ' Hart v. Mayor of Albany, 3 Paige, 'State of Pennsylvania v. Wheeling 
 
 213 ; afBrmed on appeal, 9 "Wend. 571. Bridge Oo. 13 How. 515, and S. 0. 9 
 
 " Kespublica v. Caldwell, 1 Dallas, 150. id. 647. 11 id. 528. Devoe v. The Pen- 
 Rex V. Grosvenor, 3 Stark, K P. 511. rose Bridge Co. 3 Am. L. Eeg. 79. And 
 
 ' King V. Eussell,-6 B. & 0. 56. see an able article in 3 Am. L. Register 
 
 * The King v. Ward, 4 Adolph. & EU. p. 1, on the question, are state bridges 
 
 884. constitutional? 
 
400 Of Injunctions. [Ch. 6. 
 
 patlble with eacli other. It is not necessary to constitute the bridge a 
 nuisance, that it should entirely stop the navigation of the river. If it 
 be such an obstruction as to change, to any considerable extent, the iine 
 of transportation through Pennsylvania, whose public works were injured 
 by the interruption of the navigation of the river, so as to divert it to 
 other routes, an injury is done to that state, as the proprietors of those pub- 
 lic works. Such an injury could not be adequately compensated ^.t law. 
 From the nature of the wrong, the compensation could not be measured 
 or ascertained with any degree of precision. It would be of daily occur- 
 rence, and would require numerous if not daily prosecutions. It was 
 therefore a proper case for the interposition of the equity powers of the 
 court. In the application of these powers, if the obstruction by the 
 bridge be shown to be a purpresture, or a nuisance, there is no room for a 
 calculation and comparison between the injuries and benefits which it 
 produces. 
 
 The ground of equity jurisdiction, in such cases, is the inadequacy of 
 the remedy at law, the necesssity of restraining irreparable mischief, and 
 the suppressing vexatious and interminable litigation. Formerly, courts 
 of equity were reluctant to interfere by injunction, until the right had 
 been established by a verdict. But if the thing sought to be suppressed 
 be in itself a nuisance, and if the plaintiff's title to relief be undoubted, 
 there is no occasion to wait the result of a trial.' The doubts expressed 
 by Lord Eldon,' and Chancellor Kent,' do not now exist, whatever grounds 
 for them there may have been at the time they were expressed.* 
 
 The remedy in equity to suppress purprestures and nuisances is great- 
 ly preferable to an action at law for damages, or a proceeding by indict- 
 ment. In the latter remedy, there is less facility of protecting the rights 
 of all parties than by the former. In a bill to restrain a bridge as a 
 nuisance, on the ground of its obstructing the navigation of a river, by 
 steamboats, the court can direct such modifications and alterations in the 
 bridge, without abating it altogether, as will remedy the evil complain- 
 ed of 
 
 It was said by Lord Brougham, that the jurisdiction of courts of equity 
 over nuisances by injunction is of recent growth. It is not, therefore, 
 a matter of astonishment, that doubts should formerly have been started, 
 
 ' Ripen v. Hobart, 3 Myl. & K. 169. * State of Peiin. v. Wheeling Bridge 
 6 Paige, 663. Co. 13 How. 668. 
 
 " Att'y Gen. v. Cleaver, 18 Ves. 218. ' Id. 625, 626 the decree in that case. 
 
 ' Att'y Gen. v. Utica Ins. Co. 2 J. Oh. 
 R. 371, 883. 
 
CL 6.] ' Miscellaneous Cases. 401 
 
 where none exist now ; nor can that be called an unwise discretion, which 
 will induce the court to pause before they will interrupt men in those 
 modes of improving their property, which are prima facie harmless and 
 praiseworthy ; and which may be beneficial to one party, and possibly 
 prejudicial to none.' 
 
 SECTION VIIL 
 
 OF IN/UNCTIONS TO EESTHAIN THE MULTIPLICITY OP SUITS, TO QUIBT POSSESSIONS, 
 TO EEPKESS TEXATIOUS LITIGATION, TO PROTECT COHPORATIONS IN THE EN- 
 JOYMENT OF THEIK FRANCHISES, AND IN MISCELLANEOUS CASES. 
 
 The interference of equity to restrain a multiplicity of suits, to quiet 
 possession, and to repress vexatious litigation, was considered, to some ex- 
 tent, under the head of bills of peace and quia timet The mode in which 
 relief is given is, in general, by injunction. The restraining of a judgment 
 debtor from disposing of his property, is often granted at the instance of 
 a judgment creditor, who has exhausted his remedy at law. A common 
 interest in the relief sought, is sufficient to authorize several judgment 
 creditors of the same debtor to unite in the same bill.^ But enough has 
 been said on this subject, under the head of fraud. The court also exer- 
 cises the power of restraining the usurpation of corporate powers, the 
 alienation of corporate property, and a benign jurisdiction in the case 
 of insolvent corporations. This jurisdiction is regulated by statute in 
 this state,' and will be treated more fully in a subsequent chapter.* And 
 the process of injunction is very freely used as the instrument of effect- 
 ing justice, in most of these cases. 
 
 A few cases not falling under the preceding heads will now be advert- 
 ed to, in order that the jurisdiction in this class of cases may be more 
 fully illustrated. In some the injunction was granted, and in some re- 
 fused. 
 
 Where there are two rival works, the court will restrain the propri- 
 etor of one of them from advertising it in terms calculated to induce the 
 public to believe that it is the other work, but will not restrain him from 
 publishing an advertisement tending to disparage the other work.' 
 
 ' Eipon V. Hobart, 3 Myl. & K. 169. * See post. Chap. 51. 
 
 ' Edmeston v. Lyde, 1 Paige, 637. ' Seeleyv.Fisher, 11 Sim. 581. Bran- 
 Conro V. Port Henry Iron Oo, 12 Barb. 27. dreth v. Lance, 8 Paige, 24. 
 ' 2 E. S. 462. 
 Eq. Jur. 51 
 
^02 Of Injunctions. [Ch. 6. 
 
 A court of equity will not restrain a man from making a reasonable 
 improvement on his own premises, upon the ground that it cannot be 
 made without endangering an edifice erected on the adjacent premises, 
 if the owner of the adjacent premises does not possess any special privi- 
 leges protecting him from the consequences of such improvement, either 
 by prescription or by grant, from the person making the improvement, or 
 from those under whom he claims title.' A man is not answerable for 
 the consequences of enjoying his own property in the way in which such 
 property is usually enjoyed, unless an injury results to another from the 
 want of proper care or skill on his part.' 
 
 A railroad in a street, pursuant to law, and so constructed and used as 
 not to impair the public right of way, is not such a nuisance to the own- 
 ers of property upon the street as will authorize an injunction.^ 
 
 We alluded, under the head of fraud, to the subject of imitating trade- 
 marks, newspapers and the like, and remarked that equity granted relief 
 in such cases on the ground of fraud.* The mode of redress is in such 
 cases by injunction. A party may have a property in the good will of 
 an established trade, the custom of an inn and the like, which will be pro- 
 tected by injunction. The competition between rival establishments will 
 not be restrained, if there be no imposture or deception. The assuming 
 of the name and dress of the plaintiff's newspaper, by the defendant, for 
 the purpose of imposing upon the public, and supplanting the plaintiffs 
 paper, is an injury which will be redressed by injunction.^ 
 
 But the party has a property in trade-marks, which have been long 
 used by him, and which are generally understood as designating his own 
 articles of manufacture, which will be protected from invasion by a court 
 of equity, independent of the fraud of the defendant.' Much stronger is 
 the claim to the protection of the court, when the defendant, with full 
 knowledge of the plaintiff's rights, and with the fraudulent intention of 
 supplanting him, simulates his marks, so as to deceive the public' And 
 it is wholly immaterial whether the simulated articles be or be not of equal 
 goodness and value to the original article, made for sale by the plaintiff 
 Nor is it important whether the plaintiff was the original inventor or pro- 
 prietor of the article made by him, and upon which he now puts his trade- 
 mark, nor whether the article made and sold by the defendant, under the 
 
 ' Lasala v. Holbrook, 4 Paige, 169. * Ante, p. 206. 
 
 ' Eadoliff's Ex'rs v.Mayorof Bi-ooklyn, ' Bell v. Look, 8 Paige, 75. Snowden 
 
 4, Oomst. \%. •»■• Noah, Hopk. 347. 
 
 • Hamilton v. N. Y. and Harlem Kail- * Millington v. Fox, 8 Myl. & 0. 338. 
 
 road, 9 Paige, 171. Drake v. Hudson ' Taylor v. Carpenter, 11 Paige, 292. 
 B. Bailroad, 7 Barb. 608. 
 
Ch. 6.] Miscellaneous Cases. 403 
 
 plaintiffs trade-mark, is an article of the same quality or value. The court 
 proceeds upon the ground, that the plaintiff has a valuable interest in the 
 good will of his trade or business ; and that having appropriated to him- 
 self a particular label or sign, or trade-mark, indicating to those who wish 
 to give him their patronage, that the article is manufactured or sold by 
 him, or by his authority, or that he carries on his business at a particular 
 place, he is entitled to protection against any other person who attempts 
 to pirate upon the good will of his friends or customers, or the patronsof 
 his trade or business, by sailing under his flag, without his authority or 
 consent.' 
 
 The alienage of the person whose trade-marks are simulated, and his 
 residence in a foreign country, do not affect his right to their exclusive 
 use, when he has introduced them here. And it seems the commission 
 merchant who sells the spurious article, knowing its character, is equally, 
 with the maker of it, liable to a suit to restrain the further sale of it.* 
 
 On similar principles, the surviving partner is entitled to an injunction 
 against the executor of the deceased partner, to restrain him from using 
 the name of the partnership in carrying on his business.^ The good 
 will of a partnership goes, it seems, on the death of one of the partners, to 
 the survivors. * 
 
 The cases where the aid of a court of equity has been invoked to re- 
 strain the use of trade-marks are numerous, and the doctrine of the 
 court is well established. The same principle applies here as in other 
 cases in equity. The title of the plaintiff must be clear and beyond dis- 
 pute, and he must not have been guilty of fraud upon the public in the 
 thing represented by his trade-marks.' 
 
 The right claimed to a trade-mark does not partake of the nature and 
 character of a patent or copyright.' The defendant may sell the same 
 goods, or manufacture goods of a like description. The ground of relief 
 in equity, after the plaintiff has been shown or admitted to be in the use 
 of the particular trade-marks, is, that the defendant had no right to sell his 
 own goods as the goods of another. As was said by Lord Langdale, on 
 one occasion, no man has a right to dress himself in colors, or adopt and 
 
 ' Partridge v. Menok, 2 Barb. Oh. K. ° Lewis v. Landon, 7 Sim. 421. 
 
 104 Amoskeag Manuf. Co. v. Spear, 2 * Id. 
 
 Sand. Oh. R. 659. Ooates v. Holbrook, ' Pidding v. How, 8 Sim. 477. Perry 
 
 id. 586. v. Trueflt, 6 Beavan, 66. 
 
 ' Ooates V. Holbrook, 2 Sand. Oh. E. ' Per Spencer, senator, in Taylor v. 
 
 686, 603. Taylor v. Oarpepter, id. 603. Oarpenter, 2 Sand. Oh. R. 617. 
 Partridge v. Menck, 2 id. 622. S. 0. 2 
 Barb. Oh. R. 104, 
 
^0* Of Injunctions. [Oh. 6- 
 
 bear symbols, to wbicb he has no peculiar or exclusive right, and thereby 
 personate another person, for the purpose of inducing the public to suppose 
 either that he is that other person, or that he is connected with, and sell- 
 ing the manufacture of such other person, while he is really selling his 
 own. It is perfectly manifest, that to do these things is to commit a fraud, 
 and a very gross fraud.' 
 
 In New-York, the willful counterfeiting of private stamps and labels of 
 the mechanic or manufacturer, with intention to defraud either the pur- 
 chaser or the manufacturer, is made a misdemeanor, punishable by fine 
 and imprisonment; and the same principle is applied to the vendor ofther 
 counterfeited article, knowing it to be such, as to the counterfeiter himself* 
 The object of this law is to place under the ban of legislative condemna- 
 tion a species of fraud, which courts of civil jurisdiction are not always 
 able to suppress. 
 
 The application for an injunction should be promptly made, by the 
 plainti£F, on the discovery of the wrong committed by the defendant. If 
 he is guilty of unreasonable delay, the court will not interfere in a sum- 
 mary way, but perhaps retain the bill, with liberty to the plaintiff to es- 
 tablish ^his right at law.' After a decree for an injunction restraining 
 the defendant from using trade-marks, the acquiescence of the plaintiff, 
 and his low estimation of the value of the right protected, will be an 
 answer to a motion to commit the defendant for a breach of the injunc- 
 tion.* The consent of the manufacturer to the use or imitation of his 
 trade-marks by another, may be inferred from his knowledge and silence ; 
 but such consent, when purely gratuitous, is merely a revocable license, 
 and is no cause for refusing an injunction.' 
 
 It may be added, that if it is not clear that the simulated marks will 
 deceive the public, an injunction will not be granted until the right has 
 been established.' 
 
 By the constitution of this state, all corporations have the right to sue, 
 and are subject to be sued, in all courts, in like cases as natural persons.' 
 This applies as well to municipal corporations as to corporations of a 
 different description. While a court of equity will not interfere to con- 
 trol the exercise of a discretionary power, where the discretion is legally 
 
 ' Croft V. Day, 7 Beav. 88. ' Amosieag Mannf. Oo. v. Spear, 2 
 
 ' Laws of 1845, p. 804, oh. 279. Sand. Oh. E. 599. 
 
 ' Flavel V. Harrison, 19 Eng. L. & E. ■ Id. 
 16. ' Const, of 1846, art. 7, § 8. 
 
 ' Rodgers v. Nowill, 17 id. 88. 
 
Ch. 6.] MiSCKLLANEOUS Cases. 405 
 
 and honestly exercised, it will interfere whenever it has grounds for 
 believing that its interference is necessary to prevent abuse, injustice or op- 
 pression, the violation of a trust, or the consummation of a fraud.' When- 
 ever a corporation is about to exceed its powers, and apply its funds or 
 credit to some object beyond its authority, and whenever the purpose of 
 the corporation, if carried out, would constitute a breach of trust, a court 
 of equity cannot refuse to interfere and give relief by an injunction.^ 
 The jurisdiction thus rests upon the same foundation as the jurisdiction 
 to control the action of individuals, or copartnerships, under similar cir- 
 cumstances. In dealing with questions of property, a municipal corpo- 
 ration is amenable to the judicial tribunals of the country. But the 
 performance of its legislative duties, when it has a discretion to exercise, 
 will not be controlled. For its violation of duty in that respect it is 
 amenable only to its constituents.' 
 
 In some cases the court will, on account of the heavy injury arising to 
 a railway company, from having its works stopped, refrain from issuing 
 an injunction, provided it undertakes to do that which the court decides 
 it is bound to do. Thus, where a railway company was bound by its act 
 of incorporation, if it crossed a turnpike road, to raise or sink such road, 
 so that either the road should pass over the railway, or the railway pass 
 over the road by means of a bridge of stated height and width, and Jhe 
 company laid down rails across a turnpike road, and used them for carry- 
 ing on the works, by conveying materials thereon in wagons drawn by 
 horses, the court held, that before making the railway, the company was 
 bound to build a bridge, but having regard to the long continued injury 
 which would be inflicted on the company, by restraining it till the bridge 
 was built, the court, instead of granting an injunction simpliciter, put the 
 company on terms to build a proper bridge, otherwise an injunction to be 
 granted.* The same principle was settled in another case.' 
 
 But in a case where a railway act enacted that whenever it should be 
 found necessary to cut through, take, or so much injure any part of any 
 quay, wharf, or other communication, as to render the same impassable or 
 inconvenient for transporting, &c. any goods, the company should cause 
 another equally convenient quay or other communication to be construct- 
 ed ; an injuncrtion, restraining the company from prosecuting any works 
 which rendered the plaintiff's wharf inconvenient, was sustained, pending 
 
 • Davis V. Mayor of K Y. 1 Duer, 498. . * Northern Bridge and Road Co. v. 
 
 ' Id. Agar v. Eegenta' Canal Co. London and Southampton Eailway Co. 
 
 Cooper's Eq. Cases, 77. Milhau v. Sharp, 1 Eailway Gases, 63D. 
 
 15 Barb. 194. ' Jones v. Great Western E. Co. 1 Eail- 
 
 » Milhau V. Sharp, id. 193. way Cases,e84. 
 
406 Of iNJTJNCTroNS. [Ch. 6. 
 
 an inquiry at law, whether the company, having carried the railroad in 
 front of his wharf, so as to cut ofiF its general access to the water, and 
 having made a jetty leading from the water to the wharf, had complied 
 with the terms of the act. And the injunction was so sustained, notwith- 
 standing it appeared that the further prosecution of the works would do 
 no greater amount of injury to the plaintiff than had already been done, 
 and that the only effect of sustaining the injunction would be to stay the 
 completion of the railway.' 
 
 Persons who contribute to a fund on condition that a literary and theo- 
 logical seminary shall be loc&i^A. jjermanently in a specified place, and 
 which, in consideration thereof, is accordingly located there permanently, 
 have a right to apply to a court of equity for an injunction to prevent an 
 illegal and imauthorized removal of the seminary to another place." 
 
 A railway in a city is not per se a nuisance or a purpresture.' In the 
 city of New- York, the corporation has the power and right to authorize 
 the use of its streets for a railway. The owners of real estate in the city 
 and its tax payers have such an interest in preventing the misapplication 
 of the property of the corporation, as to enable them to institute a suit in 
 equity to restrain them from making an improvident grant.* 
 
 An injunction to prevent a public nuisance is never granted on the ap- 
 plication of a private individual, unless the apprehended nuisance would 
 be specially dangerous to himself or injurious to his property.^ 
 
 An injunction to prevent a public nuisance, merely from apprehended 
 dangers to the community, can only be granted on the application by the 
 attorney general in behalf of the people.* And the court will not, 
 on the appplication of an individual, grant an injunction to the agent 
 of the state prison and a contractor, to prevent the making of contracts 
 contrary to the act which restricted the labor of convicts, except in cer- 
 tain cases, to the trades which they had learned previous to their convic- 
 tion.' The statute in question is entirely prohibitory, and does not con- 
 fer any individual right. It is designed for the public good, and any 
 infringement of it is a wrong to the public, for which the people in their 
 
 ' Bell V. Hull and Selby R. Co. 1 Kail- road, 11 id. 414. Hodgkinson v. L. I. 
 
 way Oases, 616. Railroad, 4 Edw. Ch. R. 411. 
 
 " Hasoall v. The Madison University, ' Milhau v. Sharp, 15 Barb. 193. 
 
 8 Barb. 174. ' Smith v. Lookwood, 13 Barb, 220, 
 
 'Milhau v. Sharp, 15 Barb. 193. Plant per Strong, P. J. 
 
 V. Long Island Railroad Co. 10 id. 26. ' Smith v, Lockwood, id, 209, 320. 
 
 Chapman v. Albany and Sheneotady Rail- ' Laws of 1847, p. 614, § 71, 
 road, id. 360. Adams v. S. and W. Rail- 
 
Ch. 6.] Miscellaneous Cases. 407 
 
 collective capacity alone are entitled to redress.' An injunction will not 
 be granted to prevent the perpetration of an act prohibited by a public 
 statute, because it might diminish the profits of a trade or business pur- 
 sued by the applicant in common with others.' 
 
 If an ordinance of a municipal corporation be void, an injunction will 
 be granted, on a proper application, to prevent its enforcement.' 
 
 Courts of equity sometimes recognize rights which a court of law would 
 be inadequate to protect. They will not permit a defendant to derive an 
 advantage from a breach of faith or of contract. Thus, where a secret 
 for compounding a medicine, not protected by a patent, was imparted to 
 the defendant in breach of faith and contract on the part of the party by 
 whom it was communicated, the court restrained the defendant by injunc- 
 tion from using the secret.* So where a defendant had been an assist- 
 ant of the plaintiff in his business, Lord Eldon, upon the express ground 
 of breach of trust and confidence, granted an injunction to restrain the 
 defendant from using or communicating recipes, which he had surrepti- 
 tiously copied whilst in the plaintiff's service.^ 
 
 On this same principle of breach of confidence, the court will restrain 
 the publication of the lectures of a professor, against his consent, although 
 the lectures were not written, but were in whole or in part oral.* The 
 student acquires no right to publish them. 
 
 The observations of Vice Chancellor Wigram, on one occasion, illus- 
 trates the same principle. He says, that every clerk employed in a mer- 
 chant's counting house is under an implied contract, that he will not make 
 public that which he learns in the execution of his duty as clerk. If 
 the defendant (speaking of the case before hin^) has obtained copies of 
 books, it would very probably, said his lordship, be by means of some 
 clerk or agent of the plaintiff; and if he availed himself surreptitiously 
 of the information, which he could not have had except from a person 
 guilty of a breach of contract in communicating it, he thought he could 
 not be permitted to avail himself of that breach of contract.' 
 
 It has been shown that courts of equity interfere by injunction, to pro- 
 tect individuals in the enjoyment of a franchise created by statute. It 
 may be added, that an injunction will be granted to prevent the franchise 
 
 ' Smith V. Lookwood, 13 Barb. 217, ' Tovatt v. Winyard, 1 Jac. & W. 896. 
 
 per Strong, P. J. Williams v. Williams, 3 Meriv. 169. New- 
 
 ' Id. bery v. James, 2 id. 447 
 
 = Wood v. City of Broqklyn, 14 Barb. " Abernethy v. Hutchinson, 8 L. J. Oh. 
 
 425. 209. 6 L. & E. 29. 
 
 ♦ Morrison v. Moat, 6 Eng. L. & E. 14. ' Tippmg v. Clarke, 2 Hare, 898. 
 
408 Op Injunctions. [Ch. 6. 
 
 of a corporation from being destroyed, as well as to restrain a party from 
 violating it, by attempting to participate in its exclusive privileges.' 
 
 The foregoing view of the jurisdiction of courts of equity, in matters 
 remediable by injunction, is far from being perfect. The extent to which 
 the jurisdiction may be carried is not marked out by any adjudged case, 
 and from the nature of things, it must forever remain undefined. In 
 modern times the injunction has been more extensively used than in the 
 earlier stages of the law. It is not only the great preventive remedy of 
 fraud and injustice, but is often used to enforce the performance of an ac- 
 tive duty. In many of the cases cited, its twofold ofiSce has been exem- 
 plified. The process to give possession of land to the purchaser, on the 
 forclosure of a mortgage, partakes of this character.* 
 
 In treating the subject, we have necessarily repeated some matters 
 which have already been partially discussed under other heads, and an- 
 ticipated others, which will be again brought to our notice. It is only by 
 viewing a principle in its various bearings, that it can be thoroughly un- 
 derstood, and its application to human a£Fairs be properly appreciated. 
 
 ^ Oabovn v. U. 8. Bank, 9 Wheat. 788. " Eden on Injuno. 425. 
 
CHAPTER VII. 
 
 OF USES AND TRUSTS. 
 
 THE Eevised Statutes of New- York enact, that uses and trusts, 
 except as authorized by the act, are abolished ; and that every estate 
 and interest in lands shall be deemed a legal right, cognizable as such 
 in the courts of law, except when otherwise provided. > It is impossi- 
 ble to understand the full force of the legislative enactments on this sub- 
 ject, without some general understanding of the doctrine of uses and 
 trusts in force at the time of the revision. We shall, therefore, before 
 treating of trusts in particular instruments, give, by way of introduction, 
 a brief general view of the doctrine of trusts before the adoption of the 
 Revised Statutes, and of the changes introduced by the revision. 
 
 SECTION I. 
 
 GENERAL VIEW OF USES AND TRUSTS BEFORE, AND AS MODIFIED BY THE 
 
 REVISED STATUTES. 
 
 At common law, trusts were of two kinds ; the simple trust, and the 
 special trust. The simple trust, which also was called a use, was defined 
 to be, " a confidence not issuing out of the land, but as a thing collateral, 
 annexed in privity to the estate of the land, and to the person touching 
 the land, viz. that cestui que use should take the profits, and that the 
 terre-tenant should execute estates according to his direction, and plead 
 such pleas as he should supply him with, at the cost and expense of the 
 cestui que use."' ' 
 
 The feoffee to whom the estate was thus conveyed had the freehold or 
 sole property in him. And the cestui que use had neither jms in re, nor 
 
 ' 1 E. S. 727, § 45. Abr. tit. Uses and Trusts, part 1. Ooko 
 
 ' 2 Fonb. Eq. B. 2, ch. 1, § 2. Bao. Litt. 272, b. 
 Eq. Jub. 52 
 
410 Of Uses and Trusts. [Ch. 7. 
 
 jus ad rem, but only a confidence or trust, for Tvliich he had no remedy at 
 the common law, but for the breach of the trust his remedy was in a court 
 of equity.' 
 
 To every use at common law there were two inseparable incidents — a 
 privity in .estate, and a confidence in the person. And when either of 
 these failed, the use was suspended or destroyed. 
 
 The equitable right of cestui que use extended to all who claimed in 
 privity under the feoffee ; that is, who came to the estate by contract with 
 him. But it did not extend to those who did not take the identical estate 
 in the land to which the use was attached, nor to one who claimed by title 
 paramount. And thus, a disseisor would take the estate discharged of 
 the use ; for with regard to him, there was neither privity of estate, or 
 confidence in the person creating the use, and both must concur in order 
 to continue the use. 
 
 Confidence in the person was either express or implied. There was an 
 express confidence in the original feoffee to uses. If the feoffee, for a 
 good consideration, enfeoffed a stranger who had no notice of the use, the 
 latter took the estate discharged of the use, and the use was destroyed. 
 In such case, the feoffee having no notice of the use, it could hot be said 
 that a trust was reposed in him to let the cestui que use take the profits ; 
 but if he had notice, a trust might be said to be reposed in him, since he 
 took the estate with knowledge of the charge. So, also, if the feoffment 
 had been made without consideration, though the feoffee had no notice of 
 the use, yet he would nevertheless have stood seised to the use. The law 
 in this case implied notice of the use, and consequently the trust 
 remained." In simple trusts, the trustee was merely passive. The cases 
 just considered are of that character. In special trusts, an active duty 
 was imposed upon the trustee, for the breach of which the remedy was in 
 equity. 
 
 Both the simple trust or use, and the special trust, were applicable to 
 chattels, real and personal, as well as to freeholds. Trusts of chattels 
 were conducted upon the same principles as trusts of freeholds. The 
 right to enforce their performance depended on privity. 
 
 It is quite obvious that this system could readily be perverted into an 
 instrument of fraud. Lord Bacon observes, that by this course of put- 
 ting lands into use, there were many inconveniences, as the practice 
 which originated in a reasonable cause, (viz. to give men power and lib- 
 
 '2Fonb. Eq. B. 2, ch. 1, § 2. Bao. ' Bac. Abr. tit. Uses and Trusts, part 1. 
 Abr. tit. Uses and Trusts, part 1. Coke 
 Litt. 272, b. 
 
Oh. T.}- General View. 411 
 
 erty to dispose of their own,) was turned to deceive many of their just 
 and reasonable rights ; as, namely, a man that had cause to sue for his 
 land, knew not agp,inst whom to bring his action, nor who was owner of 
 it. The wife was defrauded of her thirds, the husband of being tenant 
 by the curtesy, the lord of his wfirdship, relief, heriot and escheat ; the 
 creditor of his extent for debt ; the poor tenant of his lease for the rights 
 and duties were given by law from him that was owner of the land, and 
 none other, which was now the feoffee in trust, and so the old owner 
 which we call the feoffor, should take the profits, and leave the power to 
 dispose of the land at his discretion to the feoffee. To remedy these and 
 and other inconveniences, various statutes were from time to time enacted, 
 during the period of upwards of a century, all tending to fix upon the 
 cestui que use the obligations of an owner, until at length, by the act 
 of 27 Henry 8th, commonly called the statute of uses, it was enacted, after 
 reciting the said grievances, that when any person should be seised of 
 lands, &c., to the use, confidence or trust of any other person or body 
 politic, the person or corporation entitled to the use in, fee simple, fee 
 tail for life or years, or otherwise, should thenceforth stand, or be seized 
 or possessed of the lands, &c., of and in the like estate, as they have in 
 the use, trust, or confidence ; and that the estate of the person so seised 
 to uses, shall be deemed to be in him or them that have the use, in such 
 quality, manner, form or condition as they had before in the use.' This 
 statute was re-enacted in this state.' 
 
 Uses, by the opereition of the statute, became merged in the legal 
 estate ; but special trusts and tru^t of chattels were not within the pur- 
 view of the statute ; the former, because the use, as well as the legal 
 interest, was in the trustee ; the latter, because a termor is said to be 
 possessed, and not to be seised of the property. 
 
 The uses which were thus transferred into possession became legal es- 
 tates, and were governed by the doctrines of courts of la,w. They be- 
 came an extensive branch of the law of real property. 
 
 It was probably the object of the act to abolish uses altogether. But 
 the construction put upon it by the judges, at an early day, in a measure 
 defeated that intent. Thus, in the limitation of an estate to A. and his 
 heirs, to the use of B. and his heirs, in trust for D., it was held that B.'s 
 estate was executed, and that D. took nothing. The statute was held to 
 be satisfied by executing the first use. Courts of equity took hold of this 
 
 ' 2 Fonb. Eq. B. 3, ch. 1, § 3, note. " R. L. of 1813, vol. 1, 72. Act of 
 See an abstract of these statutes in Bac. Feb. 20, 1787. 
 Abr. tit. TTses and Trusts. 
 
412 Op Uses and Trusts. [Cli. 7. 
 
 construction, and said that the intention must be supported. It is plain 
 that B. was not intended to take. His conscience was affected. To this 
 the reason of mankind assented, and it has stood on this footing ever since. 
 And by this means a statute, made upon great consideration, introduced in 
 a solemn and pompous manner, by this construction has had no other ef- 
 fect than to add at most three words to a conveyance.' The second use, 
 in these cases, though void under the statute, was treated by courts of 
 equity as a trust, and enforced as such. The remedy was in equity alone, 
 and courts of law took no cognizance of it. This was the origin of 
 trusts, as they have been administered since the statute of uses. A trust, 
 says Kent, Ch. J., is merely what a use was before the statute of uses. 
 It is an interest resting in conscience and equity, and the same rules ap- 
 ply to trusts in chancery which were formerly applied to uses." 
 
 A use at common law might be created two ways : 1st, by the intent 
 of the parties upon the transmutation of possession ; or 2d, by an agree- 
 ment, upon an effectual consideration, without transmutation of posses- 
 sion. Uses, which pass by transmutation of possession, were raised by a 
 feoffment, fine or recovery, or lease and release. Those raised without 
 transmutation of possession were raised either by way of bargain and 
 sale enrolled, in Consideration of money, or by way of covenant to stand 
 seised, in consideration of blood.' The intent upon transmutation of pos- 
 session might be declared by writing or by parol. Upon common law, 
 says Gilbert,* an use might have been raised by. word upon a conveyance 
 that passed the possession by some solemn act, as a feoffment ; but when 
 there was no such act, then it seems a deed declaratory of the uses was 
 necessary, for as a feoffment which passed the estate might be made 
 at common lajy by parol, so, by the same reason, might the uses of the 
 estate be declared by parol ; but when a deed was requisite to the pass- 
 ing of the estate itself, it seems it was necessary for the declaration of 
 the uses : therefore a man could not covenant to stand seised to an use 
 without a deed, there being no solemn act.^ 
 
 An agreement to raise an equity to have the land, ought to have an 
 effectual consideration ; as money, pains and travail, marriage or natural 
 affection. For an use will not arise by deed without an actual considera^ 
 tion ; although a deed for the solemnity imports a consideration in law. 
 
 • Per Lord Hardwicke, Hopkins v. ' Gilbert on Uses, IB, 82. 2 Fonb. 
 
 Hopkins, 1 Atk. 691. Jackson v. Gary, Eq. B. 2, ch. 2, § 1 and notes. 
 16 J. E. 802. Jaokson v. Fleet, li Wend. * Gilbert on Uses, 270. 
 l'?^9- * Shepherd's TouoLstone, 519. Gilbert 
 
 " Fisher v. Fields, 10 J. R. 606. John- on Uses, 2T0. 2 Fonb. Eq. B. 2, oh. 2, 
 
 ion V. Fleet, 14 Wend. 180, per Nelson, J, § 1, note. 
 
Ch. 7.] General View. 413 
 
 And there are two sorts of good consideration ; a consideration of nature 
 and blood, and a valuable consideration.' But though a consideration be 
 absolutely requisite to the raising of an use, upon a covenant to stand 
 seised, yet no consideration need be mentioned in the deed. But if the 
 cestui que use stand in a relation which affords of itself a consideration, 
 an use shall presently arise to him ; as if a man covenant to stand seised 
 to the use of his wife, or brother, or any of his kindred, this is suflScient 
 to raise an use to them, without any mention of a particular express con- 
 sideration ; for the love and affection between them is obvious ; which 
 being a consideration in itself sufficient to raise an use, the limiting of the 
 use shall be referred to such consideration.- And so with respect to uses 
 raised by bargain and sale, for though they can only be raised for an ac- 
 tual and valuable consideration, yet the consideration need not be neces- 
 sarily expressed in the deed, in order to raise the use ; for the bargainee 
 may aver that money or other valuable consideration was given or paid*; 
 and if shown, the bargain and sale shall be good.' But if a considera- 
 tion be required by the statute, as in some instances under the statute 
 of frauds, to be expressed in the instrument, the omission to specify it 
 therein will, it seems, be fatal. But if the contract be not within the stat- 
 ute, the consideration may be shown by parol.^ 
 
 The inconveniences which were found to arise from allowing parol decla- 
 rations of trust, induced the legislature, by the act of 29th Charles 2d, 
 chapter 3, § 7, re-enacted in this 'state in 1787,' to require all declarations 
 or creations of trust or confidences of any lands, tenements or heredita- 
 ments, to be manifested and proved by some writing signed by the par- 
 ty who is or shall be by law enabled to declare such trust, or by- his 
 last will in writing. The statute excepted trusts arising or resulting 
 by implication or construction of law, or to be transferred or extinguished 
 by act or operation of law. -But it did not extend to declarations of trusts 
 of personalty, but they were left as at common law.' It was sufficient, 
 under the statute, if the terms of the trust could be ascertained by the 
 writing. It was not essential that it should be created by an instrument 
 in writing ; if it was evidenced by a writing, it was enough, and which 
 writing might be subsequent to the commencement of the agreement,^ 
 the statute merely required the declaration of the trust to be mani- 
 
 » 2 Fonb. Eq. B. 2, ch. 2, § 2. » 1 R. L. 79, § 12. 
 
 ' Gilb. Uses, 251, 252. Bedell's case, « 2 Fonb. Eq. B. 2, oh. 2, § 4, note x. 
 7 Eep. 40. ' Forster v. Hale, S Ves. 696. Steera 
 
 ' 2 Inst. 672. v. Steere, 5 J. Ch. K. 1. Fisher v. Fields, 
 
 • Barnes v. Ferine, 15 Barb. 250 ; aff. 10 J. E. 495. Malin v. Malin, 1 Wand, 
 
 on appeal. C25. 
 
414 Op Uses and Trusts. fCh. 7. 
 
 fested and proved by some writing signed by the party, <fcc. Hence 
 the trust could be proved by any subsequent acknowledgment of the 
 trustee, however informally or indirectly made, as by a letter under his 
 hand,' by his answer in chancery,'' or by a recital in a deed,' and the like. 
 
 The New- York Revised Statutes have made some alterations in the 
 former law. Thus, they enact that no estate or interest in lands, other 
 than leases for a term not exceeding one year, nor any trust or power, 
 over or concerning lands, or in any manner relating^thereto, shall hereafter 
 be created, granted, assigned, surrendered or declared, unless by act or 
 operation of law, or by a deed or conveyance in writing, subscribed by 
 the party creating, granting, assigning, surrendering or declaring the 
 same, or by his lawful agent thereunto, authorized by writing.* It was 
 evidently the intention of the legislature to alter the former law, and to 
 require a writing in order to create, &c. the trust ; and. to give more 
 Sblemnity to the transaction, they required this writing to be subscribed 
 by the party creating, &c. the trust, or by his lawful agent, &c. This 
 is plain from a reference to the notes of the revisers, and to the decis- 
 ion of the court of errors in 1841, under a corresponding change of phra- 
 seology in the second title of the same chapter.' The section must then 
 be understood as requiring the declaration creating the trust to be re:- 
 duced to writing at the time it was made, and to be subscribed by the 
 party who thus creates it. Under the former statute, which required con- 
 tracts to be signed, it had been held that the statute was satisfied, if the 
 contract was in writing, and the names of the parties appeared therein.' 
 The plain intent of the revised act was to change the rule which formerly 
 prevailed, and to substitute subscribing, by which was meant a literal 
 subscribing of the agreement at the end thereof. The chancellor con- 
 sidered that the provisions under the section, relative to real property, 
 should receive the same construction as the section relative to personal 
 property or contracts." 
 
 The statute also extends to assignments, so as to embrace the transfer 
 of terms for years, or other chattel interests. 
 
 In New- York, the law with respect to uses and trusts underVent a great 
 change at the revision of the statutes in 1830. The object of the legislature 
 
 ' Forster v. Hale, 3 Ves. 696. • g R. S. 135, § 2. of title 2. Davis v. 
 
 ' Hampton v. Spencer, 2 Vern. 288. Shields, 26 Wend. 341. 
 Oottington v. Fletcher, 2 Atk. 155. ' Merritt y. Classen, 12 J. R. 102 ; af- 
 
 • Deg V. Deg, 2 P. Wms. 412. firmed on error, 14 id. 487. Davis v. 
 
 ♦ 2 R. S. 184, § 6. Shields, 26 Wend. 851. 
 
 ' See Beviserg' notes, 3 R. S. 665 et seq. ■ S R. S. 584, Revisers' notes. Johnson 
 
 V. Fleet, 14 J. R. 180. 
 
(jh. Y.] General View. 415 
 
 ■was to put an end to mere forma;!, passive trusts, by eonvertiag them into le- 
 gal estates in the beneficial owner, and thus effectuate the original intention 
 of the statute of uses.' To accomplish this purpose, uses and trusts, except as 
 authorized and modified by the act, were abolished, and every estate and in- 
 terest in lands was declared to be a legal right, cognizable as such in courts 
 of law, except when otherwise provided by the act.' This general abolition 
 of uses was not intended to effiact estates then held as uses, executed un- 
 der any former statute, but the same were confirmed as legal estates.' 
 And the section which accomplished the main purpose of the legislature 
 was in these words : " Every person, who by virtue of any grant, assign- 
 ment, or devise, now is or hereafter shall be entitled to the actual posses- 
 sion of lands, and the receipt of the rents and profits thereof, in law or in 
 equity, shall be deemed to have the legal estate therein, of the same qual- 
 ity and duration, and subject to the same conditions, as his beneficial 
 interest."^ 
 
 By a subsequent article, the legislature abolished the mode of convey- 
 ing lands by feoffment with livery of seisin^ — a mode of conveyance, 
 previously lawful, but which was not used in practice.' And they adopt- 
 ed grants as the instrument for conveying a fee or a freehold estate. A 
 grant must be subscribed and sealed by the person from whom the estate 
 or interest conveyed is intended to pass, or his lawful agent. And if not 
 acknowledged as required by the recording acts, must be attested by at 
 least one witness. And if not so attested, it shall not take effect, as 
 against a purchaser or incumbrancer, until so acknowledged." The grant 
 takes effect only from its delivery. Deeds of bargain and sale, and of 
 lease and release, are still permitted to be used, and are deemed grants.' 
 The operation of the 47th section, as was remarked by the court in one 
 ease,' accomplishes all that cotfld have been effected by the most liberal 
 construction claimed for the statute of uses. All former trusts created, 
 however numerous or extended the series, are as by magic transformed 
 into legal estates. A conveyance to A. in trust for B., in trust for C, 
 at once vests the title in C, and would vest the title in the cestui que 
 trust last named, however numerous the 'trusts created. Whether the 
 legal title would pass through each cestui que trust, or at once pass from 
 the grantor or devisor to the last, has not yet been decided. 
 
 ' 3 R. S. 584, Revisers' notes. Johnson • Id. 738, § 136. 
 V. Fleet, 14 J. R. ISO. • 4 Kent's Com. 489. 
 
 " 1 R. S. 727, g 45. ' 1 R, S. 738, § 187. 
 
 ' Id. § 46. • Id, §§ 138, 142. 
 
 * Id. § 47. ' Johnson v. Heel, .14 Wend. 180. 
 
416 Op Uses and Trusts. [Ch. 7- 
 
 It is further enacted, ttat the effect of the 47th section shall not divest 
 the estate of any existing trust, where the title of such trustee is not 
 merely nominal, but is connected with some power of actual disposition or 
 management in relation to the lands which are the subject of the trust.' 
 That class of trusts was left unexecuted by the statute of uses, and was 
 enforced only in equity. The legal estate was in the trustee, because, 
 without such legal estate, the latter could not fulfill the purposes of the 
 trust.' 
 
 The benefits resulting from tie abolition of uses and formal trusts could 
 not be accomplished, unless their future creation was prevented. This 
 object was attained by the 49th section, which enacts that every disposi- 
 tion of lands, whether by deed or devise, hereafter made, shall be directly 
 to the person in whom the right to the possession and profits shall be in- 
 tended to be invested, and not to any other, to the use of, or in trust for, 
 such person ; and if made to one or more persons, to the use of or in trust 
 for another, no estate or interest, legal or equitable, shall vest in the 
 trustee.' In a case of this kind, the title, by operation of the 47th sec- 
 tion, vests directly in the party entitled to the beneficial interest.* 
 
 The statute recognizes the existence of two kinds of trusts : 1st, ex- 
 press trusts ; and 2d, implied trusts, under which are included resulting 
 trusts. The former are created by deed or will, and the latter arise in 
 general by construction of law, upon the acts or situation of the parties.' 
 
 Before the Revised Statutes, it was well settled that a resulting trust 
 did not come within the statute of frauds, and that it could be proved by 
 parol.* If A. purchased land with his own money, but took the deed in 
 the name of B., a trust resulted by operation of law to A.' So if a per- 
 son purchased land with the money of anotherj and took a deed for it in 
 his own name, a trust resulted in favor of the one to whom the money be- 
 longed.^ In all these cases parol evidence was admissible to establish the 
 trust, not only against the face of the d^eed itself but in opposition to the 
 answer of the trustee denying the trust, even after the death of the nom- 
 inal purchaser. If part only of the consideration was paid, the trust re- 
 sulted only pro tanto.^ 
 
 » 1 K. S. 727, § 48. ' Boyd v. M'Lean, snpra. 
 
 » 1 Mad. Oh. Pr. 856, 357. • Jackson v. Sternbergh, supra. Jaok- 
 
 • 1 K. S. 728, § 49. son v. Matsdorf, 11 J. E. 91. Jackson 
 
 • Braker v. Devereaux, 8 Paige, 518. v. Mills, 13 id. 463. Jackson v. Morse, 
 ' Johnson v. Fields, 14 J. E. 181. 1 16 id. 197. 
 
 Mad. Oh. Pr. 864. 1 E. S. 728, §§ 50-55. • Boyd v. M'Lean, supra. Botsford v, 
 
 • Boyd v. M'Lean, 1 J. Oh. E. 682. Burr, 2 J. Oh. E. 405. 
 Jackson v. Sternbergh, 1 J. 0. 163. 
 
Ch. 7.] General View. 417 
 
 But now, by the Revised Statutes, resulting trusts are abolished, except 
 in favor of creditors of the party paying the consideration, to the extent 
 that may be necessary to satisfy their just demands ; and except in cases 
 ■where the person taking the absolute conveyance in his own name, does it 
 without the consent or knowledge of the person paying the consideration, 
 or where such alienee, in violation of some trust, shall have purchased the 
 lands so conveyed with moneys belonging to another person.' 
 
 But it is expressly enacted, that no implied or resulting trust shall be 
 alleged or established to defeat or prejudice the title of a purchaser, for a 
 valuable consideration, and without notice of such trust.' The considera- 
 tion of implied trusts will form the subject of remark in a subsequent 
 part of this chapter.^ 
 
 Express trusts are allowed by the statute to be created for any or 
 either of the following purposes : (1.) To sell lands for the benefit of cred- 
 itors. (2.) To sell, mortgage or lease lands for the benefit of legatees, or for 
 the purpose of satisfying any charge thereon. (3.) To receive the rents and 
 profits of lands, and apply them to the use of any person, during the life 
 of such person, or for any shorter term, subject to the rules prescribed 
 in the first article of title 2, chapter 1, of part 2. (4.) To receive the 
 rents and profits of lands, and to accumulate the same, for the purposes 
 and within the limits prescribed in the said first article.* In addition 
 to the express trusts above mentioned, the act of 1840' permits real 
 and personal property to be granted and conveyed to any incorporated 
 college or other literary incorporated institution in this state, to be held 
 in trust for either of the following purposes : (1.) To establish and main- 
 tain an observatory ; (2.) To found and maintain professorships and scho- 
 larships ; (3.) To provide and keep in repair a place for the burial of the 
 dead; and (4.) For any other specific purposes comprehended in the 
 general objects authorized by their respective charters. By the same 
 statute, real and personal estate may be granted and conveyed to the cor- 
 poration of any city or village of this, state, to be held in trust for any 
 purpose of education, or the diffusion of knowledge, or for the relief of dis- 
 tress, or for parks, gardens, or other ornamental grounds, or grounds for the 
 purposes of military parades and exercise, or health and recreation, within 
 or near such incorporated city or village, upon such conditions as may 
 be prescribed by the grantor or donor, .and agreed to by such corpora- 
 tion 3 and all real estate so granted or conveyed to such corporation may 
 
 ' 1 R. S. 728, §§ 51, 52, 53. ' 1 R. S. 728, § 55. 
 
 ' Id. § 55. ' Act of 1840, ch. 818, p. 267. 
 
 ' See post, § 16 of Chap. VII. 
 
 Eq. 3v&. 53 
 
418 Of Uses and Trusts, -[CH- T. 
 
 be held by tbe same, aubjeet to such conditions as may be prescribed 
 and agreed to as aforesaid. 
 
 And by the same act, real and personal estate may be granted to 
 commissioners of common schools of any town, and to trustees of any 
 school district, in trust for the benefit of the common schools of such 
 town, or for the benefit of the schools of such district. The trusts au- 
 thorized by the act are allowed to continue for such time as may be 
 necessary to accomplish the purposes for which they may be created. 
 And by an act the following year, devises and bequests of real and per- 
 sonal property in trust were authorized for any of the purposes for 
 which the trusts under the act of 1840 were authorized ; and were made 
 valid in like manner, as if such property had been granted and conveyed 
 according to the provisions of the former act.' By force of the forego- 
 ing statutes, trusts for the specified purposes may be created either by 
 grant or will. And by a subsequent act, the income arising from any real 
 and personal property granted, conveyed, devised, or bequeathed in trust 
 to any incorporated eollege or other incorporated literary institution, for 
 any of the purposes specified in the said act of 1840, or for the purpose 
 of providing for the support of any teacher in any grammar school or in- 
 stitute, maybe permitted to accumulate till the same shall amount to a 
 sum sufiBcient, in the opinion of the Regents of the University, to carry 
 into effect either of the purposes designated in said trust." 
 
 And by an act passed in 1845, any receiver appointed by virtue of an 
 order or decree of the court of chancery was authorized to take and hold 
 real estate upon such trusts and for such purposes as the court might di- 
 rect, subject to the further order or direction of the court, from time to 
 time, in relation to the disposition of such real estate.' 
 
 In addition to the foregoing, there are several acts upholding trusts, to 
 a certain extent, in favor of the United Society of the people commonly 
 called Shakers, and in favor of the Religious Society of Friends, and in 
 favor of the community of True Inspiration, the consideration of which 
 do not fall within the scope of this treatise.^ 
 
 It has already been said that a purchaser for a valuable consideration 
 with notice of the trust, and a purchaser without consideration without 
 notice, were, in each case, held to be trustees for the persons beneficially 
 
 ' laws of 1841, oh. 261, p. 266. Porter v, Williams, in Court of ARieals, 
 
 ' Laws of 1846, oh. 74, p. 76. 1858. 
 
 ' Laws of 1845, ch. 112, p. 90. "Wil- * 2 R. S. 4th ed. 188, 139, where these 
 
 Eon V. Wilson, 1 Barb. Oh. Bep. 694. acts are colleeted. 
 
CL 7.3 General View, 419 
 
 interested.' To discourage secret trusts, which are the «onsimon instru- 
 ments of fraud, and to make it the intent of the parties that the trust 
 should be expressed in the deed, the Revised Statutes have provided that 
 where the trust shall be expressed in the instrument creating the estate, 
 every sale, conveyance or other act of the trustees, in cointra ntion of the 
 trust, shall be absolutely void.' Of course, in such case,, no estate passes 
 to the purchaser. But if the trust be not expressed in the instrument, 
 the purchase from the trustees is governed by the rules of the common 
 law. And the purchaser is not chargeable with notice, without proof. 
 
 The Revised Statutes have also provided, that no person, who shall ac- 
 tually and in good faith pay a sum of money to a trustee, which the lat- 
 ter is authorized to receive, shall be responsible for the proper application 
 of such money, according to the trust ; nor shall any right or title de- 
 rived by him from such trustee, in consideration of such payment, be im- 
 peached or called in question, in consequence of any misapplication, by 
 the trustee, of the moneys paid.' 
 
 At common law the trustee might devise the trust estate, but the de- 
 visee took subject to the original trust.* The cases show that it may be 
 devised by general words. But if there be other expressions or purposes 
 in the will that indicate an intention to the contrary, the trust was held 
 not to pass.' So, a trust estate descended in the same manner as legal 
 estates.' If the trust was of personal property, it passed to the personal 
 representatives of the trustee, subject to the trust. In short, it followed 
 in general the rules of law with respect to the transmission of property.'' 
 
 These rules have been wisely abrogated by the Revised Statutes, with 
 respect to express trusts, which enact, that upon the death of the sur- 
 viving trustee of an express trust, the trust estate shall not descend to his 
 heirs, nor pass to his personal representatives ; but the trust, if then un- 
 executed, shall vest in the court of chancery, now the supreme court, with 
 all the powers and duties of the original trustee, and shall be executed by 
 some person appointed for that purpose, under the direction of the court.* 
 
 When the purposes for which an express trust shall have been created 
 shall «ease, the estate of the trustee also ceases.' This is merely declar- 
 atory ©f the existing law." 
 
 Murray v. Ballou, 1 J. Ch. B. 575. ' Id. 
 Frost V. Beekman, id. 301. Johnson v, • Banks v. Sntton, 2 P. Wms. 713, 786. 
 Fleet, 14 Wend. 181. ' Id. 
 
 = 1 E. 8. 730, § 65. '1 E. S. 730, § 68. 
 
 ' Id. § 66. ■ Id, § 67. 
 
 *Marlow v. Smith, 2 P. "Wms. 198. *> Parks v. Parks, 9 Paige, 107. Irving 
 Braybroke v. Inskip, 8 Ves. 417. i. Deksy, id. 523. 
 
420 Of Uses and Trusts. [Ch. T. 
 
 The purpose of the legislature to abolish passive trusts would have 
 Bometimes worked injustice but for some substituted provision. Thus, 
 while it is enacted that a devise of lands to executors or other trus- 
 tees, to be sold or mortgaged, when the trustees are not also empowered 
 to receive the rents and profits, shall vest no estate in the trustees, it is 
 nevertheless declared that the trust shall be valid as a power, land the 
 lands shall descend to the heirs, or pass to the devisees of the testator, 
 subject to the execution of the power.' At conjmon law, such devise car- 
 ried the fee of the estate, because the devisee could neither sell or mort- 
 gage the estate without being first clothed with the title." An absolute 
 power of disposition was, at common law, incompatable with an estate less 
 than a fee. 
 
 Where a trust is created to recive the rents and profits of lands, and 
 no valid direction for accumulation is given, the surplus of such rents 
 and profits, beyond the sum that may be necessary for the education and 
 support of the person for whose benefit the trust is created, is liable, in 
 equity, to the claims of the creditors of such person, in the same man- 
 ner as other personal property, which cannot be reached by an execution 
 at law.' And no person, beneficially interested in a trust for the receipt 
 of the rents and profits of land, can assign or in any manner dispose of 
 such interest.^ The efiFeet of the two last provisions is, when taken to- 
 gether, that after the creditor of the cestui que trust has exhausted his 
 remedy at law, by execution against the property of his debtor, he may 
 by a creditor's bill reach the surplus income of such debtor's interest in 
 rents and profits, or income of property, which the cestui que trust cannot 
 alienate and dispose of in anticipation ; so as to satisfy the judgment 
 out of that I part of the income which may not be necessary, from time to 
 time, for the education and support of the cestui que trust.^ 
 
 But suppose this provision be made for a married woman, it seems 
 that as she cannot pledge or create a charge upon her interest in such a 
 trust, in anticipation of the income which may thereafter accrue, or be- 
 come payable to her, and as she cannot contract a personal liability upon 
 which a judgment can be recovered, her interest even in the surplus 
 income which is not necessary for her support, cannot be reached except 
 for a debt contracted before marriage.' 
 
 ' 1 E. S. 729, § 66. Germond v. Jones, " 1 E. S. 729, § 57. 
 2 Hill, 570, 678. « Id. 730, § 63. 
 
 'Helmer v. Shoemaker, 22 Wend. 137. ' L'Amoureux v. Van Rensselaer, 1 
 
 Jackson v. Delancy, 11 J. E. 86. S. C. BarK Cli. E. 87. 
 in error, 13 id. 537. Jackson v. Eobinson, • Id. 
 15 id. 169. S. 0. iu error, 16 id. 637. 
 
Oh. 7.] Genenal View. 421 
 
 "*. 
 
 Previous to the adoption of the Revised Statutes, a trustee might hold 
 
 the mere naked legal estate in real property, for a feme covert, while the 
 whole equitable interest and estate therein was in her, and subject to her 
 control. In relation to such an estate, therefore, she was considerd as a 
 feme sole, and could charge her equitable interest in the property with 
 any debt she might think proper to contract on the credit thereof, which 
 was not inconsistent with the trust, or with the nature of her interest 
 in the premises, and which was authorized by the instrument or convely- 
 ance creating the trust. All such mere formal trusts, even in favor of 
 femes covert, are now abolished. And in the few trusts which are 
 authorized by the Revised Statutes, the whole estate, both legal and equi- 
 table, is vested in the trustee. The statute also declares, in terms, that * 
 the person for whose benefit the trust is created, shall take ho estate or 
 interest in the land, but may enforce the performance of the trust in 
 equity.' 
 
 Though the owner of real or personal estates, may create an interest in 
 the rents and profits, or the income thereof, under the provisions of the Re- 
 vised Statutes, in trust for the use or benefit of a third person, whom from 
 improvidence or otherwise the donor does not think proper to intrust with 
 the absolute disposition and control of his beneficial interest in the trust 
 property, by anticipation, yet neither law or sound policy will allow an abso- 
 lute and unconditional right to property to be vested in a person, which he 
 may use and dispose of as he pleases, by anticipation or otherwise, but in re- 
 lation to which property he may set his creditors at defiance, by means of 
 a mere nominal trust.' Hence an annuity bequeathed by. the testator to 
 his widow in lieu of dower, and charged upon his real and personal estate 
 by his will, is liable to the claims of the creditors of the widow, and may 
 be reached by a creditor's bill against her.' Such annuity is in no sense 
 a trust, within the meaning of the Revised Statutes. It stands on the 
 footing of an ordinary pecuniary legacy charged upon real estate.^ 
 
 The trust, which is not assignable, and which cannot be anticipated, or 
 reached by a creditor's bill against the cestui que trust, is a trust to re- 
 ceive the rents and profits of lands. But the rights and interest of every 
 person for whose benefit a trust for the payment of a sum in gross is cre- 
 ated are assignable, and consequently can be reached by a creditor's 
 bill against the party beneficially interested in it.= 
 
 ' L'Amonrenx v. Van Eensselaer, 1 " Id. 
 
 Barb. Ch. E. 37. 1 B. S. 729, § 60. Bard ' Id. 141. 
 
 V. Fort, 3 Barb. Ch. B. 634. ' 1 E. S. 730, § 63. Degraw v. 01a- 
 
 ' Degraw v. Olason, 11 Paige, 140. son, 11 Paige, 136. 
 
422 Of Uses and Trusts. [Oh. 7. 
 
 Where an express trust is created for any purpose not enumerated in 
 the act, po estate vests in the trustees ; but the trust, if directing or au- 
 thorizing the performance of any act -which may be lawfully performed 
 under a power is valid as a power in trust, subject to the provisions in 
 relation to such powers, contained in the Revised Statutes.' 
 
 In one case it was said, that a general power in trust is where an au- 
 thority is given to the grantee to do some act, in relation to lands, which 
 the grantor might lawfully perform ; and when he is authorized to alien- 
 ate the lands in fee, by means of a conveyance to any alienee whatever ; 
 and where some persons, other than the grantees of the power, are de- 
 signated as entitled to the proceeds or other benefits to result from the 
 alienation according to the power." Thus, a trust to sell lands and divide 
 the proceeds among the cestui que trusts, as beneficial owners, and not as 
 creditors, is void as a trust, but valid as a power in trust.' 
 
 In every case where the trust is valid as a power, the lands to which 
 the trust relates remain in or descend to the persons otherwise entitled, 
 subject to the execution of the trust as a power.* And the general prin- 
 ciple is declared that every express trust, valid as such, in its creation, 
 except as is otherwise provided, vests the whole estate in the trustees, in 
 law and in equity, subject only to the execution of the trust. And the 
 beneficiary, as already stated, takes no estate or interest in the lands, 
 but may enforce the performance of the trust in equity.^ 
 
 Where an express trust is created, but is not contained or declared in 
 the conveyance to the trustees. Such conveyance is deemed absolute, as 
 against the subsequent creditors of the trustees not having notice of the 
 trust, and as against purchasers from such trustees, without notice, and for 
 a valuable consideration.' This enactment is merely declaratory of the 
 existing law, as has already been shown in the commencement of this chap- 
 ter. A purchaser with notice of the trust, though upon full considerar 
 tion, and a purchaser without consideration, are still bound by the trust. 
 Unless indeed the trust is expressed in the instrument creating the estate, 
 in which case, instead of converting the purchaser into a trustee, as at 
 common law, we have seen that the statute makes the sale absolutely 
 void.' 
 
 The supreme court having now the jurisdiction formerly possessed by 
 the court of chancery, is clothed with power to accept the resignation of a 
 
 • 1 R. S. 729, § 68. 'Id. 729, §69. 
 
 " Selden v. Vermilyea, 1 Barb. S. 0. R. ' Id. § 60. 
 
 68. ' Id. 780, § 64. 
 
 •Id. 1 R. a 728, § 66. ' Id. § 66, and ants. 
 
Ch. 7.] General View. 423 
 
 trustee, and discharge him from his trust, under such regulations as shall 
 be established by the court for that purpose, and upon such terms, as the 
 rights and interests of the persons interested in the execution of the trust 
 may require. The court also possesses the power of removing a trustee 
 who has violated or threatened to violate his trust, or who is insolvent, or 
 for apprehended insolvency, or who for any other cause shall be deemed 
 an unsuitable person to execute the trust. It possesses power also to ap- 
 point a new trustee in the place of the one who has resigned or been re- 
 moved. And when, in consequence of such resignation or removal, there 
 shall be no acting trustee, the court in its discretion may appoint new 
 trustees, or cause the trust to be executed by one of its officers, under its 
 direction.' And it is a general principle, that the court never permits a 
 valid trust to fail for want of a trustee." 
 
 The trusts which we have been considering, are those which have been 
 authorized or modified by the Revised Statutes, and have reference only 
 to real estates.' They have of themselves nothing to do with personal 
 property, either directly or by reference.' The Revised Statutes have 
 not attempted to define the objects for which express trusts of personal 
 estate may be created, as they have done in relation to trusts of real 
 estate. Such trusts, therefore, may be created for any purposes which 
 are not illegal. Indeed it would be very difficult, if not impossible, in 
 many cases, to create and preserve future and contingent interests in per- 
 sonal property, without the intervention of a trustee ; although trustees 
 would not be necessary, under the provisions of the Revised Statutes, to 
 create and preserve such future and contingent interests in lands or other 
 real estate. In all other respects, however, except as to the mere vesting 
 of the legal title to the property in the trustee, instead of the cestui que 
 trust, the conveyance or bequest of personal estate must be governed by 
 the same rules, which are applicable to a grant or a devise of a similar in- 
 terest in lands or real property. Independent of the common law prin- 
 ciple of analogy between estates or interests in real and pergonal property, 
 the statute creates such analogy, by restricting the power of suspendiiig 
 the absolute ownership, or the right of alienation, within the same limits ; 
 by confining the power of accumulating the income of personal estate, 
 and the rents and profits of real estate, to the same objects and within the 
 same bounds ; and finally declaring, in general terms, that in all other re- 
 spects, limitations of future or contingent interests in personal property 
 
 • 1 R. B. 730, §§ 69, 70, 71. ' 1 B. S. 727 to 731. 
 
 " De Peyster v. Clendining, 8 Paige, * Kane v. Gott, 24 Wend. 661, per 
 296. King v. Donnelly, 6 id. 46. Oowen, J. 
 
424 Op Uses and Trusts. [Oh. 7. 
 
 shall be subject to the rules prescribed by the Revised Statutes in rela- 
 tion to future interests in lands.' 
 
 Previous to the Revised Statutes, a trust for the accumulation of the 
 rents of real estate, or of the income of personal property might be 
 created, to continue for the same length of time that the power of aliena- 
 tion or the absolute ownership of such property might legally be sus- 
 pended. And the accumulated fund might be limited to any person or class 
 of persons who should he in esse at the termination of such trust.' But such 
 cannot now be created in this state. For by the provisions of the Re- 
 vised Statutes a valid trust for the accumulation of the rents and profits 
 of real estate, or the interest or income of personal property, can only 
 be created for the benefit of a minor or minors, who is or are in existence 
 when the accumulation is to commence ; and the accumulation must 
 cease with the termination of such minority.' 
 
 The efifect which an invalid trust will have upon one authorized by law 
 and contained in the same instrument, or which is created at the same 
 time, has often Tseen considered, in this state, since the Revised Statutes. 
 If the trust relates to personal property, the courts will sustain such 
 as are legal and valid, if they can be separated from those which are ille- 
 gal and void.'' 
 
 The same rule applies, it seems, to trusts of real property. In one case 
 it was said, that though some of the objects for which a trust is created, 
 or some future interest limited upon the trust, are illegal or invalid, if any 
 of the purposes of the trust are valid, the legal title vests in the trustees 
 during the continuance of the valid objects of the trust, unless the legal and 
 valid objects of the trust are so mixed up with those which are illegal and 
 void, that it is impossible to sustain the one without giving effect to the other.' 
 
 Where property is bequeathed in trust and no trustee is appointed, the 
 court, in case of real estate, considers the heir at law as a trustee, and 
 in regard to personal estate, it considers the personal representatives as 
 the trustee. And when an estate is devised in trust to a body incapable 
 of taking, the trust will attach upon the estate, and the heir become the 
 trustee.' 
 
 ' 1 E. S. 773, § 2. Gott V. Cook, 7 Bryan v.. Knickerbacker, 1 Barb. Oh. E. 
 
 Paige, 634, 534. S. 0. on appeal, 24 425, 426. 
 
 Wend. 641. De Peyster v. Olendining, * Van Veohten v. Van Veghten, 8 
 
 8 id. 305. Paige, 104. De Peyster v. Olendining, 
 
 ' Bryan v. Knickerbacker, 1 Barb. Oh. id. 306. 26 Wend. 21, S. C. affirmed. 
 
 E. 425. TheUnsson v. Woodford, 4 Ves. ' Irving v. Dekay, 9 Paige, 523. S. 0. 
 
 227. 11 id. 112, S. 0. on appeal, 5 Denio, 646. 
 
 • 1 R. S. 726, §§ 87, 88. Id. 778, §§3, 4. • 1 Mad. Oh. Pr. 864. 
 
Ch. 7.] General View. 425 
 
 As a general rule, it may be said, that when the legal and equitable 
 title are both united in the same person, in the same right, the equitable 
 is merged in the legal title, and is extinguished by the unity of seisin.' 
 There are some exceptions to this rule, which are the most frequently 
 exemplified in mortgage securities. If the situation of the estate, or the 
 interest of the mortgagee, requires that the lien of the legal estate should 
 be kept distinct, or if the mortgagee, by reason of infancy, lunacy, or 
 other disability, is unable to make an election, or if there be a decisive 
 intention of the mortgagee to keep them separate, a court of equity will 
 prevent a merger, and preserve the estates distinct." But this subject 
 will be treated more fully under the head of Mortgages. 
 
 It was formerly held that the trusts, which were the creatures of a 
 court of equity, and were not cognizable in a court of law, were not with- 
 in the statute of limitations.' The Revised Statutes enacted, that when- 
 ever there is a concurrent jurisdiction in the courts of common law and 
 in courts of equity, the statute of limitations is alike applicable to both 
 courts. But that provision was not extended to cases, over the subject 
 matter of which a court of equity had a peculiar and exclusive jurisdic- 
 tion, and which subject matter was not cognizable in the courts of common 
 law.* Bills for relief, on the ground of fraud, were limited to six years 
 after the discovery of the fraud by the aggrieved party. And bills for 
 relief in case of the existence of a trust not cognizable by the courts of 
 common law, and in all other cases not otherwise provided for, were limited 
 to ten years after the accruing of such action.* The code fixes the limi- 
 tation of six years to an action for relief, on the ground of fraud, in cases 
 which heretofore were solely cognizable by the court of chancery. The 
 cause of action in such case was not deemed to have accrued, until the 
 discovery by the aggrieved party of the facts constituting the fraud.= 
 
 The foregoing general view of the nature of trusts, as they are affected 
 by the Revised Statutes, is sufficient by way of introduction to the sub- 
 jects hereinafter discussed. 
 
 We have said that trusts are either express or implied ; express trusts 
 are also executed or executory. And they may relate either to real or 
 personal property. 
 
 Express trusts may be created either by deed or devise. We shall, 
 in the remainder of this chapter, notice in the next place such express 
 
 ' Nicholson v. Halsey, 1 J. Oh. E. 417. ' Kane v. Bloodgood, 7 J. Oh. R. 114. 
 
 ' James v. Johnson, 6 id. 417. James Murray v. Coster, 20 J. B. 576. 
 
 V. Mowry, 2 Oo'wen, 246. Russell v. Aus- * 2 E. S. 801, §§ 49, 50. 
 
 tin, 1 Paige, 192. ' Id. §§ 51, 52. 
 
 Eq. Jub. 54 
 
 • Code, § 91, aub. 6. 
 
426 Trusts. [Ch. 7. 
 
 trusts as occnr in deeds, mortgages, assignments, marriage settlements, or 
 in executory contracts, and then notice such express trusts as are usually 
 contained in wills, embracing legacies, charities, &c. We shall then 
 briefly notice the doctrine of implied trusts, and several other topics in- 
 cidental to the general subject, and conclude with a brief account of the 
 duties of a trustee. 
 
 SECTION II. 
 
 or MORTGAGES, BOTH OF BEAL AND PERSONAL PBOPEETT ; EQUITABLE MORT- 
 GAGES; LIEN FOR THE PURCHASE MONEY; PLEDGES AND HYPOTHECATION. 
 
 In the early stages of the English law there were two modes of pledg- 
 ing lands as a security for debts ; the first by the debtor to his creditor, to 
 be held until the rents and profits should equal the amount borrowed, 
 when on discharge of the debt the land returned to the borrower. This 
 was called vivum vadium, or a living pledge. 
 
 The second mode of pledging land is thus described by Littleton, § 332 : 
 " If a feoffment be made upon such condition, that if the feoffor pay to 
 the feoffee at a certain day, <fcc. forty pounds of money, that then the feoffor 
 may re-enter, «fcc., in this case the feoffee is called tenant in mortgage, 
 which is as much to say in French as mort gage, and in Latin mortuum 
 vadium. And it seemeth that the cause why it is called mortgage is, for 
 that it is doubtful whether the feoffor will pay at the day limited such sum 
 or not ; and if he doth not pay, then the land which is put in pledge upon 
 condition for the payment of the money, is taken from him forever, and 
 so dead to him upon condition, &c. And if he doth pay the money, then 
 the pledge is dead as to the tenant, dtc." This was called a mortgage. 
 
 Littleton treats of the subject under the head of estates upon condi- 
 tion. And it thus appears, from the foregoing passage, that a mortgage 
 was created by a conveyance of the lands from the debtor to the creditor, 
 upon condition, that if the money was paid on a certain day, the convey- 
 ance should be void ; and the debtor might enter and have his former 
 estate. But if default was made in payment of the money on the day ap- 
 pointed, then the lands became absolutely vested in the creditor, freed 
 from the condition. And all the maxims of the common law, respecting 
 the breach of a condition, were strictly applied to this kind of con- 
 veyance. 
 
 The inconvenience resulting from this mode of pledging land was, that 
 
Ch. 7.] MOE'TGAGES. 427 
 
 if the money was not paid at the day named in the deed, the estate was 
 absolutely forfeited ; and a subsequent tender of the money would be un- 
 available to the debtor, notwithstanding the estate mortgaged greatly 
 exceeded in value the sum borrowed.' 
 
 The obvious injustice of this doctrine of the common law courts in- 
 duced the court of chancery to interpose, and by an equitable and liberal 
 construction, to mitigate the rigor of the common law. The latter court 
 treated the lands mortgaged as a mere security for the payment of the 
 sum borrowed, and the condition of forfeiture consequent upon non-pay- 
 ment at the day, in the nature oi a, penalty, against which it was the prov- 
 ince of equity to relieve. The court said that the creditor was, in justice 
 and conscience, entitled only to his principal, interest and costs, and they 
 adopted the maxim, that though the condition was not strictly performed, 
 whereby the estate was forfeited at law, yet if the debtor reimbursed the 
 creditor within a reasonable time the money borrowed, with interest, he 
 should be entitled to call on the creditor for a reconveyance-^ 
 
 This right acquired the name of an equity of redemption, and became 
 firmly established as a part of the equitable jurisdiction of the court of 
 chancery as early as the reign of James the first. 
 
 At one time it was conceived that if the money loaned was not paid at 
 the day, and the estate became absolute in the feofiiee, that the lands would 
 become chargeable with the dower of the wife of the feoffee, and be liable 
 to forfeiture or escheat by his acts, and that the mortgagor could not be 
 relieved against those who came in, in the post. But equity soon set this 
 matter right, by holding that the subsequent payment of the money, re- 
 invested the mortgagor with his former estate ; and thus the redemption 
 overreached all claim under the feoffee, such as dower, forfeiture and es- 
 cheat.^ 
 
 In equity, the mortgagee after forfeiture was treated with respect to 
 the surplus, after payment of the mortgage money, as the trustee for the 
 mortgagor. And though, in general, a trust is created by the contract 
 of the parties, and they only are bound by it who come in, in privity of 
 estate, or with notice, or without consideration, yet, a power of redemp- 
 tion was treated as an equitable right, inherent in the land, and bind- 
 ing all persons in the post or otherwise ; and this, because it was an 
 ancient right, to which the party was entitled in equity.* 
 
 It is upon the principle that an equity of redemption is a part of the 
 
 ' Litt. § 332. Cruise's Dig. tit, 15 • 2 Fonb. Eq. B. 3, oh. 1, §§ 1, 2. 
 Mortgage, §§ 1 to 5. « Id. § 3. 
 
 ' Cruise's Dig. tit. 15, ch. I. 
 
428 Trusts. [Cli. 7. 
 
 law of the land, that it cannot in any way be provided by agreement, in 
 case of a mortgage, that a court of equity should not give relief-' Though 
 the deed be absolute on its face, yet if intended only as security, and 
 accompanied by an agreement in writing or by parol, operating as a de- 
 feasance, it will be treated as a mortgage, and no agreement in it will pre- 
 vail to change its character.' 
 
 A mortgage of lands, at the present day, is a conveyance by a debtor 
 to his creditor, as a pledge or security for the repayment of a sum of 
 mon«y borrowed, or for the performance of some other act, and to be void 
 upon such payment or performance.' It may«be of an estate in fee, for 
 life, or for years. It may also be of personal chattels, but the considera- 
 tion of the latter will be postponed till the conclusion of the present 
 subject. 
 
 A mortgage of real estate, of which we are now treating, may be made 
 to secure the payment of money, or. to do some collateral act. Thus, when ^ 
 a deed in fee simple was made with a condition, to be void if the grantor 
 paid off and discharged certain legacies to the legatees therein named, and 
 in the manner therein specified, and which were a charge upon the lands 
 mortgaged, it was held to be a mortgage, and the remedy of the mort- 
 gagee to be in equity by a bill of strict foreclosure.'' The assignment of a 
 land contract for the security o{ a debt due to the assignee, upon the con- 
 dition that if the debt was paid at the time stipulated, the assignee 
 should reassign the contract, is in equity a mortgage, and the assignor has 
 a right of. redemption,' So a sealed instrument, granting land for the 
 term of one year, on rent, and conditioned to be void on payment of a cer- 
 tain sum, and with a covenant on the part of the grantor to pay it at the 
 end of the year, is a mortgage.' So a mortgagee may himself assign to 
 a third person his mortgage as security for a sum of money, or other 
 thing, and the assignment will be treated as a mortgage which he may 
 redeem.' So an absolute assignment of a lease, accompanied with a, 
 bond, executed at the same time, reciting the assignment, and stating it 
 to have been made to secure the payment of a sum of money to the 
 
 ' 2 Fonb. Eq. B. 8, ch. 1, § 4. Btenry ' Cruise's Dig. tit. 15, Mortgage, oh. 1, 
 
 V. Davis, 7 J. Oh. R. 40. Howard v. § 11. Hilliard, vol. 1, ch. 29, §1. 
 
 Harris, 1 Vern. 191. James v. Oades, * Stewart v. Hucthins, 18 Wend; 485. 
 
 2 id. 402. Affirmed, 6 Hill, 143. 
 
 * Olark V. Henry, 2 Oowen, 832. Day * Broekway v. Wells, 1 Paige, 617. 
 
 V. Dunham, 2 J. Ch. K. 189. Peterson • Elliot v. Pell, id. 263. 
 
 V. Olark, 15 id. 205. ' Slee v. Manhattan Co. id. 48. 
 
Ch. T.] Mortgages. 429 
 
 assignee, and an agreement to reassign on payment of the money, is a 
 mortgage.' 
 
 It is not necessary, in order to constitute the instrument a mortgage, 
 that it should contain, or be accompanied by an agreement to reconvey, 
 on payment, or performance of the condition. If there be evidence that 
 the land was conveyed for the purpose of securing the repayment of a 
 sum of money, or the performance of some collateral act, the instrument, 
 though absolute on its face, will in a court of equity be treated as a mort- 
 gage, and be subject to all the incidents of that estate. The defeasance 
 need not be contained in the deed, but if it be subsequently executed by 
 the grantee, it is sufficient Nor is it indispensable that the defeasance 
 should be by an instrument in writing. It is well settled that parol evi- 
 dence is admissible, in a court of equity, to show that a conveyance abso- 
 lute in its terms, was intended as a security for a debt.' If such was the 
 object of the instrument, the setting it up as an absolute conveyance, is a 
 fraud upon the grantor, and may afford evidence that the defeasance was 
 omitted by accident or mistake. And under either head, equity can afford 
 relief. As between the parties themselves, or purchasers with notice, or 
 without consideration, the true character of the transaction may be shown j 
 notwithstanding the statute of frauds. 
 
 The doctrine that parol evidence was admissible in a court of law to 
 turn an absolute deed into a mortgage was for a time held in this state, 
 but was overruled in a case in the court of last resort.* But the rever- 
 sal does not affect the doctrine with respect to its admissibility in courts 
 of equity, which remains now the same as heretofore. Indeed, the 
 ground on which the doctrine was resisted when it was first introduced, was 
 not that the evidence was under no circumstances admissible, but that it 
 was not admissible in a court of law, and could only be received in equity 
 where the rights of all parties could be properly guarded.^ 
 
 ' Jackson v. Green, 4 J. E, 186. Enssell, 3 Barb, Ch. K. 325. James v. 
 
 ' Dey v. Dnnliam, 2 J. Ch. B. 182. Johnson, 6 J. Ch. E. 417. 3 Atk. 389. 
 
 S. 0. on appeal affirmed, 15 J. E. 555. 2 id, 99. 
 
 » Strong V. Trustees of Mitchell; 4 J. ' Webb v. Eice, 6 Hill, 219 ; reversing 
 
 Ch. E. 167. Marks v. Pell, 1 id. 594. the decision 8.' 0., 1 Hill, 606. Eoach v. 
 
 Clark V. Henry, 2 Cowen, 324. Dey v. Cosine, 9 Wend. 227. Walton v. Cranly, 
 
 Dunham, 2 J. Ch. E 189. Peterson v. 14 id. 63. Swart v. Service, 21 Wend. 
 
 Clark, 15 J. E. 205. Gilchrist v. Onnning- 36. 
 
 ham, 8 Wend. 641. Tarborongh v.Newell, ' See dissenting opinion of Bronson in 
 
 10 Yerg. 376. Whittick v. Kane, 1 Paige, Swart v. Service; supra, and in Webb v. 
 
 202. Slee v. Manhattan Co. id. 48. Van Eice, 1 HiU, 608. ' 
 Buren v. Olmstead, 5 id. 9. Lansing v. 
 
430 Trusts. [Ch, 7. 
 
 A mortgage may contain a covenant from the mortgagor for himself, 
 his heirs, executors and administrators, to repay the money borrowed, with 
 interest. In this state it is not the practice to insert a covenant in the 
 mortgage for repayment, and the Revised Statutes have enacted that no 
 mortgage shall be construed as implying a covenant for the payment of the 
 sum intended to be secured ; and that where there shall be no express 
 covenant for such payment contained in the mortgage, and no bond or 
 other separate instrument to secure such payment shall have been given, 
 the remedies of the mortgage shall be confined to the lands mentioned in 
 the mortgage.' They have also abolished all implied covenants in any 
 conveyance of real estate, whether such conveyance contains special cov- 
 enants or not.' The general practice is to take a separate bond, or prom- 
 issory note for the payment of the sum intended to be secured by the 
 mortgage. And the mortgage usually contains a power of sale author- 
 izing the mortgagee or his 'assigns, or personal representatives, or on 
 non-performance of the condition of the mortgage, to sell the premises 
 at vendue to the highest bidder, and to convey the estate to the purchaser, 
 rendering the surplus money, after paying the debt and costs, to the mort- 
 gagor, or his assigns or personal representatives. The object of the 
 power of sale is to enable the mortgagee to foreclose the mortgage at law, 
 by advertisement, and without an action, the proceedings to do which 
 are pointed out in the statute.' But an account of this proceeding does 
 not belong to the present treatise. An instrument conveying lands by 
 mortgage is no less a mortgage without a power of sale than with one. 
 If it contains no power of sale, and no covenant to pay, and is accompa- 
 nied by no obligation to pay, the only remedy of the mortgagee is in 
 equity, and is confined to the lands mentioned in the mortgage. 
 
 If a deed, absolute on its face, be iatended as a mortgage, it should bo 
 recorded as a mortgage, in order to protect the land against the title of 
 a subsequent bona fide purchaser. Recording it as a deed, is in such a 
 case of no avail, for the purchaser is not bound to search the record of 
 deeds, in order to be protected against the operation of a mortgage. 
 Third persons have a right to know from the record, or from some other 
 source, the object and intent of the conveyance.* Independent of the 
 recording act, conveyances would take effect according to their priority. 
 The recording act renders void an unrecorded conveyance as against any 
 
 ' 1 E. S. 788, § 139. ■■ Dey v. Dunham, 2 J. Oh. R. 132; 
 
 » Id. § 140. S. 0. on appeal, 15 J. K. 569, 570. 1 K. 
 
 ' 2 R. S. 646 ; see 2 R. S. 777, 4th ed. S. 756. 
 where the various amendatory acts are 
 colleoted. 
 
Ch. 7.J Mortgages. 431 
 
 subsequent purchaser, in good faith, and for a valuable consideration, of 
 the same real estate, or of any portion thereof, whose conveyance shall 
 be first' duly recorded.' And the statute expressly provides, that every 
 deed, conveying real estate, which, by any other instrument in -writing, 
 shall appear to have been intended only as a security, in the nature of a 
 mortgage, though it be an absolute conveyance in terms, shall be con- 
 sidered as a mortgage ; and the person for whose benefit such deed shall 
 be made, shall not derive any advantage from the recording thereof, 
 unless every writing, operating as a defeasance of the same, or explana^ 
 tory of its being designed to have the effect only of a mortgage or con- 
 ditional deed, be also recorded therewith, and at the same time.'' But 
 if the subsequent purchaser have notice of an unrecorded mortgage, he 
 is not deemed a bona fide purchaser, within the meaning of the recording 
 laws, and as to him the unrecprded mortgage will take effect according 
 to the priority of date. Conveyances though unrecorded, are valid between 
 the parties.^ 
 
 It is not enough that an absolute deed intended as a mortgage is 
 recorded in the book of deeds. It is well settled, that in order to protect 
 the mortgagee, it must be recorded in the book of mortgages.* 
 
 When an absolute deed is intended only as a mortgage, a subsequent 
 purchaser with notice, stands in the place of the equitable mortgagee.^ 
 
 While a party who takes a mortgage subsequent to an unrecorded 
 mortgage with notice, is postponed in the same manner as if the first 
 had been recorded, his -assignee, without notice and for valuable con- 
 sideration, takes discharged of the previous mortgage.* 
 
 With respect to judgment creditors who seek either to set aside a 
 deed as fraudulent, or, who claim that, though absolute in its terms, it 
 was intended only as a security or mortgage, and thus seek to redeem, 
 they have a right, even in a court of law, and much more in a court 
 of equity, to show, by parol evidence, the character of the transac- 
 tion. Creditors who are in a condition to impeach the sale may show 
 any fact, either consistent or inconsistent with the deed, tending to 
 prove that it was without consideration, that it was made with intent 
 
 ' 1 K. S. 756, § 1. Grimstone v. Carter, 3 id. 421. 
 
 " Id. § 3. ' White v. Moore, 1 Paige, 551. Grim- 
 
 ' Dunham v. Dey, 15 J. R. 569. Mills stone v. Carter, S id. 321. Brown v. 
 
 V. Oomstock, 6 J. Oh. R. 214. James v. Dean, 3 Wend. 208. 
 
 Johnson, 6 id. 417. Jackson v. Van Val- ° Williams v. Thorn, 11 Paige, 459. 
 
 kenhurgh, 8 Cow. 260. Whittick v. Eane, ' Jackson v. Van Valkenburgh, 8 Oow- 
 
 1 Paige, 202. White v. Moore, id. 551. en, 260. 
 
432 Trusts. [Gh. 7, 
 
 to defraud creditors, that though absolute in terms, it was in truth a 
 mortgage.' 
 
 If a deed of lands be given, absolute on its face, and a contemporane- 
 ous covenant executed between the parties, expressing the object of the 
 conveyance, and importing a qualification of the title designed to be 
 conveyed, both should be regarded as one instrument.'' At law, it has 
 been doubted whether an instrument containing no reservation of a right 
 to redeem can be treated as a technical mortgage.* In an earlier case, 
 Savage, chief justice, did not consider these words as indispensable, and 
 he held that the intent to create a mortgage might be gathered from 
 other expressions in the deed, indicating that the grantor did not part 
 with all his interest, and that the overplus, beyond paying off certain 
 securities, should be paid back to him.* In a court of equity, it has 
 been seen that the interest, if not apparent on the deed, may be shown 
 by parol. That court looks at the real object and intention of the con- 
 veyances ; and when the grantor applies to redeem, upon the allegation 
 that the deed was intended as a security for a debt, that court treats it 
 precisely as it would an ordinary mortgage ; provided the truth of the 
 allegation is made out by the evidence. So too the grantee, in such a 
 deed, may treat it as a mortgage, and, acknowledging it to be such, may 
 apply to a court of equity to foreclose the equity of redemption, which 
 will be decreed in like manner as if an unexceptionable defeasance were 
 attached to the deed.^ 
 
 There are some cases, partaking of the character of a mortgage, 
 which may be upheld as trusts and enforced as such by a court of equity. 
 Thus, where a deed of lands was executed, and a covenant made between 
 the parties at the same time, declaring that the grantee should sell the 
 lands to pay certain of the grantor's debts, and return to him the sur- 
 plus, but containing no reservation of a right to redeem, the transaction 
 was regarded by Bronson, J., as constituting a conveyance in trust, and 
 not a mortgage.^ According to Palmer v. Gurnsey, (supra,) this would 
 be treated as a mortgage. But the later case of Baker v. Thrasher 
 (supra) disapproves the doctrine of Palmer v. Gurnsey, and perhaps 
 overrules it. But it does not affect the doctrine of courts of equity 
 upon this subject. 
 
 ' Per Savage, Ch. J., Jackson v. Myers, * Palmer v. Gurnsey, 7 Wend. 248. 
 
 11 Wend. 836, 837. Henry v. Davis, 7 But see Baker v. TSrasher, 4 Denio, 495, 
 
 J. Ch. E. 40. 1 Phil. Ev. 551. 0. & H. contra, per Bronson, J. 
 
 Notes, 1448. ' Hughs v. Edwards, 9 Wheat. 495. 
 
 ' Cooper V. Whitney, 3 Hill, 96. " Cooper v. Whitney, 3 Hill, 96. 1 
 
 ' Id. R. S. 728, § 65. 
 
Ch. 7.] Mortgages. 433 
 
 In this state, -whether the mortgage be of lands in fee, for life, or years, 
 no reconveyance is necessary on payment of the mortgage debt,' whether 
 it be paid before or after it became due, and whether the mortgagor re- 
 mained in possession or not.'* This is believed to be the general doc- 
 trine in this country, when there are no statute regulations on the sub- 
 ject. The New- York -Revised Statutes have provided for the discharge 
 of registered or recorded mortgages, on the presenting to the clerk, in 
 whose office the instrument is recorded, a certificate signed by the mort- 
 gagee, his personal representatives or assigns, acknowledged, or proved 
 and certified as required by the act, specifying that such mortgage has 
 been paid, or otherwise satisfied or diicharged.^ The statute does not 
 require any reconveyance, but treats the mortgage as extinguished by 
 payment. 
 
 In this state, it has been held, from an early day, that the mortgagor 
 is to be regarded as the owner of the land, and the mortgage treated as 
 a mere incumbrance. The land mortgaged descends to his heirs as real 
 estate. It is devisable as such. It is subject to the dower of the widow, 
 and the curtesy of the husband. And it may be sold on execution against 
 the mortgagor.* 
 
 It is, for these reasons, that the creditor in general requires that the 
 wife should join in the mortgage with her husband, so as to pass her con- 
 tingent right of dower. This would be unnecessary in England, where 
 dower is not given of an equityof redemption. (See 2 Sch. & Lefr. 888.) 
 But if the mortgaged premises be worth more than enough to satisfy 
 and discharge the debt secured thereby, the widow is, in equity, entitled 
 to her dower in the surplus.' 
 
 A mortgagee, whether before or after forfeiture, has no interest in the 
 land which can be sold on 'execution. Before entry under his mortgage, 
 he is not bound, as an assignee of the mortgagor, by a covenant running 
 with the land, and cannot, under the Revised Statutes, maintain eject- 
 ment before foreclosure.' The mortgagor is, for every substantial pur- 
 pose, the real o-vraer of the land, and the mortgagee has merely a lien upon 
 it.' The widow of the mortgagee is not entitled to dower, before fore- 
 
 ' Jackson v. Davis, 18 J. E. 7. ton v. STaDny, 8 Barb. 618. Coles v. 
 
 ' Jackson v. Stackhoven, 1 Oowen, 122. Coles, 15 J. R. 319. 
 
 Arnot V. Port, 6 Hill, 65. Jackson v. ' Titns v. Neilson, 5 J. Ch. E. 452. 
 
 Crafts, 18 J. E. 110. • Aymar v. Bill, 5 id. 570. Morris v. 
 
 » 1 E. 8. 761, § 28. Mowatt, 2 Paige, 586. Jackson v. "Wil- 
 
 * Waters v. Stewart 1 Oai. C. in Error, lard, 4 J. E. 40. 
 
 47. Hitchcock v. Harrington, 6 J. E. ' Astor v. Miller, 2 Paige, 68. Aster 
 
 290. Collins v. Torry, 7 id. 278. Den- v. Hoyt, 5 Wend. 602. 
 Eq. Jur. 55 
 
434 TBTJSTa. [Oh. 7. 
 
 ^osure, for the reason that nntil then the husband is not seised, and with- 
 out seisin, there is no dower.' 
 
 There is one exception to the rule that the widow of the mortgagor is 
 entitled to dower ; and that occurs when the seisin is instantaneous only, 
 and immediately passes back to the grantor. Thus, where a deed is giv- 
 en by the vendor of an estate, who takes back a mortgage to secure the 
 purchase money, at the same time he executes the deed, the deed and the 
 mortgage are to be considered as parts of the same contract, as taking 
 effect at the same instant, and as constituting but one act ; in the same 
 manner as a deed of defeasance forms, with the principal deed to which 
 it refers, but one contract, although it be by a distinct and separate in- 
 strument.' 
 
 With respect to growing crops, raised annually by cultivation on the 
 mortgaged premises, the title to these, on foreclosure, pass to the pur- 
 chaser on the mortgage sale. The crop as well as the land is a security for 
 the mortgage debt, and on the sale of the land passes to the purchaser.' 
 
 A mortgagor may cut timber on the mortgaged premises, if he does 
 not unreasonably weaken the security of the mortgagee, and the latter, in 
 such case, has no lien on the timber cut.* 
 
 If a mortgage be given as a security to cover unliquidated damages, 
 the only remedy of the mortgagee, it would seem, is, on breach of the con- 
 dition, in a court of equity. Such case is not supposed to be adapted to 
 the statute foreclosure at law, which contemplates only mortgages con- 
 ditioned for the payment of money .= 
 
 The English doctrine of tacking, was considered in a previous chapter, 
 and was shown to have been abrogated by our recording laws.' 
 
 If there be several equitable interests affecting the same estate, they 
 will, if the equities are otherwise equal, attach upon it, according to the 
 periods at which they commenced ; for it is a maxim of equity, as well as 
 of law, that qui prior est in tempore potior est jure.'' 
 
 It is said to have been the old rule in the English chancery, that if a 
 person took-^a mortgage, and voluntarily left the title deeds with the 
 piortgagor, he was to be postponed to a aubsequent mortgagee without 
 notice, and who was in possession of the title deeds. The reason of the 
 
 ' 1 R. S. 740,§ 1. * Ensign v. Oolburn, 11 Paige, 503. 
 
 ' Stow V. Tifft, 15 id. 158, 468. Hoi- ' Ferguson v. Kimball, 8 Barb, Ch. B. 
 
 brook V. Finney, 4 Mass. K. 569. 619. Ferguson v. Ferguson, 2 Oomst. 360, 
 
 ■ Shepherd v. PWlbrick, 2 Denio, 174. 2 E. S. 546. 
 
 Lane v. King, 8 Wend. 584. Aldrich v. ' Ante, pp. 255, 256. 
 
 ^^eynplds, 1 Barb. Oh. R, 618. Gillet v. ' Per Kent, Oh., in Berry v. Mut. Ii^s. 
 
 Balcolm, 6 Barb. STft, Oo. ? J. Ch. K. 608. 
 
Ch. 7.] MOETGAGES. 43S 
 
 rule was, that by leaving the title deeds, he enabled the mortgagor to im- 
 pose upon others who had no registry to resort to. But it is now the 
 settled English doctrine, that the mere circumstance of leaving the title 
 deeds with the mortgagor is not, of itself, sufficient to postpone the first 
 mortgagee, and to give the preference to a second mortgagee, who takes the 
 title deeds with his mortgage, and without notice of the prior incum- 
 brance. There must be fraud, or gross negligence, which amounts to it, 
 to defeat the prior mortgage.' 
 
 With us the recording of the mortgage is a beneficial substitute for the 
 deposit of the title deeds, and gives a more effectual security to subsequent 
 mortgagees. The recording of the mortgage is notice. Leaving the title 
 deeds with the mortgagor works no prejudice to the first mortgage, pro- 
 vided it is duly recorded.* 
 
 As between two unrecorded mortgages, they are to be paid according; 
 to their order of priority,^ unless the first has been guilty of some fraud, 
 other than leaving the title deeds in the possession of the mortgagor. 
 That alone is not enough. A subsequent bona fide purchaser, without 
 notice of an unrecorded mortgage, is protected by the statute against the 
 mortgagfl.* The statute here speaks of purchasers, in the popular sense, 
 as those who take an absolute estate in fee. A mortgage is in one sense 
 a purchase. But there is neither reason or necessity for treating the 
 mortgagee as a purchaser, within the meaning of the recording law, be» 
 cause by putting his mortgage on record he will gain priority over a pre- 
 vious unrecorded mortgage, of which he had no notice at the time he took 
 his mortgage.' 
 
 But the registry, or record of a mortgage, is only notice to the extent 
 of the sum specified therein.^ Thus, where a mortgage was given to se- 
 cure three thousand dollar^, but by the mistake of the clerk was regis- 
 tered for three hundred dollars, it was held to be notice to subsequent 
 bona fide purchasers to the extent only of the sum expressed in the 
 registry.' On the same principle a prior mortgagee is not allowed to 
 enlarge his demand beyond what appears upon the record, in consequence 
 of a separate agreement between him and the mortgagor, to the prejudice 
 of a second mortgagee, who had no notice or information, ait the time he 
 
 ' Evans v. Bicknell, 6 id. 183, 190. ' Berry v. Mut. Ins. Co. 2, J. Ch. E. 
 
 Barnett v. Weston, 12 Ves. 130. Berry 611. 
 
 V. Mnt. Ins. Oo. 2 J. Ch. E. 609, 610. • Beekman v. Erost, 1 id. 288. S. O. 
 
 'Id. 18 J. E. 544, 564. 
 
 ■' Per Savage, Oh. J. in James v. Mowry , - ' Id. 
 2 Oowen, 248. 
 
 M E. S. 756, § 1. 
 
436 Trusts. [Oh. 7. 
 
 took his mortgage, of the agreement between the mortgagor and the first 
 mortgagee, by which the latter claimed interest, when the bond and 
 mortgage were, on the face of them, without interest.* 
 
 We have hitherto treated of mortgages for existing debts or liabili- 
 ties, or for the performance of covenants, and explained some of the gen- 
 eral incidents of this security. It is obvious that occasions may arise, in 
 the vicissitudes of business, which will render it expedient to obtain the 
 security of a mortgage or judgment, for advances thereafter to be made, 
 or for responsibilities thereafter to be incurred ; or for general balances, 
 which may be due from time to time. It has accordingly been held that 
 this can be done. And it was suggested by the chancellor, in a recent case, 
 that the security should be taken in a sum sufficiently large to cover the 
 amount of the floating debt intended to be secured thereby.* And the 
 supreme court held, many years ago, that a judgment may be entered as 
 a security for future advances, beyond the amount then actually due.' 
 
 If a deed, absolute in terms, be intended as a mortgage, and it be 
 shown by parol to be intended also as a security for future advances, it 
 will, as between the parties, be treated as a mortgage, as well for the 
 original debt, as for the subsequent advances.^ 
 
 The extent to which a mortgage may be held as a security for future 
 advances, as against subsequent bona fide purchasers and mortgagees 
 without notice, has received the consideration of learned judges. In Gor- 
 don V. Graham, (cited in J Viner, 52, E. pi. 3, and in Powell on Mortg. 
 544,) it was held, by Lord Chancellor Cowper, that if a clause be con- 
 tained in a mortgage, making it a security for future loans, subsequent 
 loans will be taken as part of the original transaction, and paid before a 
 second mortgage intervening, with notice of the clause. And Chancellor 
 Kent intimated the opinion, that where a subsequent judgment or mort- 
 gage intervened, further advances after that period could not be cover- 
 ed.^ If a mortgage be intended as a security for subsequent advances, 
 it would seem to be the part of safety, that the agreement for such ad- 
 vances should appear upon the face of the security. Though without 
 such clause, it would be good between the parties, as mortgagees or pur- 
 chasers with notice, yet, if it be contained in the mortgage itself, the rec- 
 
 ' St. Andrew's Church v. Tompkins, 7 ° Livingston v. M'Inlay, 16 J. E. 165, 
 J. Ch. E. 14. This subject was treated * James v. Mowry, 6 J. Oh. E. 429. 
 
 of to some extent, under the head of S. 0. 2 Cowen, 247. 
 fraud. See ante, 253, 254. ' Brinkerhoff v. Marvin, 5 J. Ch. E. 
 
 " The Bank of Utica v. Finch, 3 Barb. 827. James v. Johnson, 6 id. 429. 
 Ch. E. 303. 
 
Ch. 7.] Mortgage foe Future Advances. 437 
 
 ord becomes notice to all the world of the extent and purpose of the 
 security.' The principal is, that when actual notice is not brought home 
 to the party, the record of the mortgage should give such reasonable 
 notice, that the creditor may, by the inspection of the record, and by 
 common prudence and ordinary diligence, ascertain the extent of the in- 
 cumbrance.'' 
 
 The general doctrine is certainly well established, that property may 
 be bound for future advances. It is frequent, said Marshall, Ch. J. 
 on one occasion, for a person who expects to become more considerably in- 
 debted, to mortgage property to his creditor, as a security for debts to be 
 contracted, as well as for that which is already due.' And the same 
 doctrine was afterwards established by the same court, where a mort- 
 gage was held to secure a debt contracted afterwards, on account of prior 
 advances or liabilities.* It was objected in the last mentioned case that 
 the real transaction did not appear upon the face of the mortgage. The 
 deed purported to secure a debt of thirty thousand pounds sterling, due 
 to all the mortgagees. It was really intended to secure different sums 
 due at the time from particular mortgagees, advances afterwards to be 
 made, and liabilities to be incurred to an uncertain amount. Upon this 
 point Marshall, Ch. J. said that it is not to be denied that a deed, which 
 misrepresents the transaction it recites, and the consideration on which it 
 was executed, is liable to suspicion. It must sustain a vigorous exami- 
 nation. It is, certainly, always advisable fairly and plainly to state the 
 truth. But if, upon investigation, the real transaction shall appear to 
 be fair, though somewhat variant from that which is described, it would 
 seem to be unjust and unprecedented, to deprive the person claiming un- 
 der the deed, of his real equitable rights, unless it be in favor of a per- 
 son who has been, in fact, injured and deceived by the misrepresen- 
 tation.^ 
 
 A mortgage given on the purchase of real estate, to secure the consid- 
 eration money, has preference over any other lien existing against, or cre- 
 ated by, the mortgagor. Hence, his widow is not entitled to dower as 
 against the mortgagee,* though she is, as against all other persons.' On 
 this principle, when the grantee, being indebted for the purchase money, 
 conveyed and took from the purchaser two mortgages, and they were re- 
 
 ' 4 Kent's Com. 176. St. Andrew's « Shirras v. Caig, 7 Oranch, 34. 
 Cliuroh V. Tompkins, 7 J. CL. E. 14. » Id. 
 Pettibone v. Griswold, 4 Conn. 158. ' Stow v. Tifft, 15 J. E. 458. 
 
 . " Pettibone v. Griswold, 4 Conn. 158. ' Collins v. Torrey, 7 id. 278. Coles v. 
 
 Stoughton V. Pastjo, 5 id. 442. Coles, 15 id. 319. 
 
 ' United States v. Hoe, 3 Cranch, 73. 
 
438 Trusts. [CL 7. 
 
 corded at the same time, and he assigned one of them to the grantor, to 
 secure his unpaid purchase money, and afterwards assigned the other for 
 value to a third person, it was held that the former was entitled to 
 priority.' 
 
 The recording act gives priority to conveyances according to the or- 
 der of time of their record, and they are considered as recorded from the 
 time of their delivery to the clerk for that purpose." Hence, where two 
 mortgages are taken and recorded simultaneously, the recording acts have 
 no application, and the priority must be determined by equitable rules.' 
 So where a trustee or agent takes two mortgages on the same property 
 at one time, for different cestui que trusts, or principals, the accidental 
 recording of one before the other gives it no priority. So where two 
 mortgages upon the same premises were recorded at the same time, and 
 each mortgagee being cognizant of the giving the other mortgage when he 
 took his own, the recording act has no application, and a court of equity 
 will recognize an agreement or understanding of the parties that one 
 should have priority, and will presume that it was delivered first.^ 
 
 A judgment has no lien upon the real estate of the judgment debtor, 
 until the judgment roll is signed and filed, nor has it any preference 
 as against other judgment creditors, purchasers, or mortgagees, until the 
 record thereof be filed and docketed.^ 
 
 Previous to the Kevised Statutes, a judgment in a court of record in 
 this state was a lien upon the lands of the judgment debtor from the 
 time of the entry of sueh judgment, whether docketed or not. But by 
 the statute then in force, if the judgment was not properly docketed, it 
 did not affect the lands of the judgment debtor as against subsequent 
 purchasers or mortgagees.' Even as to them, however, the undocketed 
 judgment was entitled to priority, in equity, if the purchaser or mort- 
 gagee had notice of its existence at the time of his purchase, or when he 
 took his mortgage.' That statute made no provision for priority in favor 
 of the lien of subsequent judgment creditors. The first judgment although 
 not docketed, was therefore entitled to a preference over the lien of a 
 junior judgment, which had been docketed as directed by the statute. 
 
 ' Van Rensselaer v. Stafford, Hop. 669 ; "2 E. S. 860, § 12. Barrie v. Dana, 20 
 
 aflSrmed on appeal, 9 Oowen, 316. J. R. 307. 
 
 " 1 R. S. 766, § 1. Id. 760, § 24. '1 E. L. of 1813, p. 601, § 8. 
 
 ' Stafford v. Van Rensselaer, supra. ' Bnohan v. Sumner, 2 Barb. Oh. E. 
 
 ' Rhoades v. Oanfield, 8 Paige, 545. 193. Butler v. Lewis, 10 Wend. 544. 
 
 ' Jones V. Phelps, 2 Barb. Oh. R. 440. Davis v. The Earl of' Strathmore, IS 
 
 Ves. 420. 
 
Ch. 7.] EauiTABLE Liens. 439 
 
 But if the land of the debtor had been sold by the sheriff, under an 
 execution upon the junior judgment, to a purchaser who was ignorant of the 
 existence of the prior undocketed judgment, such purchaser took the land 
 discharged of the lien of the undocketed judgment.' 
 
 The Revised Statutes, however, made a very material alteration in 
 the law relative to the liens of judgments. It is there enacted, that no 
 judgment shall affect any lands, tenements, real estate or chattels real, 
 or have any preference as against other judgment creditors, purchasers 
 pr mortgagees, until the record thereof shall be filed and docketed as 
 therein directed.'' The effect of this provision appears to be, to prevent 
 the common law lien of the judgment from attaching at all upon the real 
 estate of the judgment debtor until the judgment has been docketed ; 
 and not merely to protect bona fide purchasers and incumbrancers, who 
 had no notice of the existence of the judgment when their interests in, 
 or liens upon, the real estate of the judgment debtor accrued. The act 
 of 1840 so far modified the Revised Statutes, as to require the judgment 
 or decree, in order to create a lien upon real estate, to be docketed in 
 the county where the lands are situated.' This is slightly altered by 
 the code, which provides,^ that on filing a judgment roll upon a judg- 
 ment, directing in whole or in part the payment of money, it may be 
 docketed with the clerk of the county, upon the filing with the "clerk of 
 the county where it was rendered, and in any other county, upon the 
 filing with the clerk thereof, a transcript of the original docket, and shall 
 be a lien on the real property in the county where the same is docketed, 
 of every person against whom any such judgment shall be rendered, and 
 which he may have at the time of docketing thereof, in the county in 
 which such real estate is situated, or which he shall acquire at any time 
 thereafter, for ten years from the time of docketing the same in the 
 county where it was rendered. 
 
 A court of equity will enforce an equitable lien, either upon a legal or 
 an equitable estate in lands. And when the common law, or a statute, 
 creates a lien upon a legal interest in land, equity, by analogy, some- 
 times declares and enforces a mmilar lien upon an equitable estate. 
 But when this lien is created by statute, and the lien itself, as well as the 
 estate against which it is sought to bfe enforced, is purely legal, a court of 
 equity is not authorized to extend the lien to cases not provided by the 
 
 ' Buchan v. Sumner, 2 Barb. Oh. E. ' Laws of 1840, p. 894, § 25. 
 194. ' Code, § 282. Buohan v. Sumner, 2 
 
 ' 2 B. S. 360, § 12. Barb. Oh. E. 194. 
 
440 Trusts [CL T. 
 
 statute." And it seems equity gives effect to the lien of a judgment as 
 against subsequent purchasers and incumbrancers upon a legal title, only 
 BO far as the lien could have been enforced by execution at law. If, 
 therefore, the judgment be one upon which interest cannot be levied 
 upon the execution, although the judgment creditor may, in a suit upon 
 the judgment, recover interest by way of damages, he is not entitled to 
 a lien for the interest, but only for the amount of the judgment without 
 interest.'' 
 
 We have hitherto treated, in the main, of mortgages created by the 
 express contract of the parties in writing, or of such as are created by a 
 parol defeasance to a deed absolute in terms. It has long been settled 
 in England, notwithstanding the statute of frauds, that a mere deposit of 
 title deeds, upon an advance of money, gives an equitable lien' against a 
 subsequent purchaser with notice ;' and such deposit will cover future 
 advances, if it appear by evidence that they were made upon the faith 
 of the security.5 The doctrine of equitable mortgages received its firm- 
 est support from Lord Thurlow, in Russell v. Russell, (supra.) In that 
 case it was held, by his lordship, that a mere deposit of title deeds by a 
 debtor, for the purpose of securing a sum of money, gave his creditor, in 
 whose hands they were placed, an interest in the land to which they 
 related, so as to enable him to file a bill for a sale. The principle on 
 which the doctrine rests, is that a borrowing of money, on the deposit of 
 title deeds as a pledge of repayment, is not within the statute of frauds. 
 A court of law could not assist the borrower to recover back his title 
 deeds ; because to an action of trover it could be answered that the same 
 were pledged for the payment of a sum of money, and that till the money 
 was repaid, the party had no right to them. So, if the borrower came into 
 equity, for relief, he would be told that before he sought equity he must 
 do equity, by repaying the money, in consideration for which the deeds 
 had been lodged in the other party's hands. The doctrine of equitable 
 mortgages thus seems to have arisen from the necessity of the case.' 
 
 But this species of security has, notwithstanding, never been much fa- 
 vored, and Lord Eldon said, in one case, that nothing required to be 
 
 ' Buchan v. Sumner, 2 Barb. Oh. R. 194. ' Hiern v. Mill, 13 Ves. 114. 
 
 ° Mower v. Kip, 6 Paige, 91. Tunstall ' Ex parte Langston, 17 id. 22Y. Es 
 
 V. Trappes, 8 Sim. R. 299. De La Vergne parte Whitbread, 19 id. 209. Ex parte 
 
 V. Evertson, 1 Paige, 182. Mason v. Kensington, 2 Ves. & B. 79. 
 
 Sudam, 2 J. Oh. K. 172, 180. • Keyes v. "Williams, 3 Tonnge & C. 65, 
 
 ' Russell V. Russell, 1 Bro. 0. 0. 269. 61, per Lord Abinger. 
 White's Eq. Oas. 440. 
 
Ch. 7.] EauiTABLE Mortgages. 441 
 
 •ffatched -with more jealousy than this doctrine of lien by the deposit of 
 deeds ; especially when the inference contradicts a written instrument.' 
 And in an earlier case'' he said : " I remember previously to Russell v. 
 Russell it was very much doubted whether a mere deposit of deeds con- 
 stituted an equitable mortgage, if there was no writing to manifest the 
 purpose ; resting altogether upon parol ; and it is quite competent to the 
 man who put the deeds into the hands of a creditor, without reference to 
 the debt, afterwards, from favor to that creditor, to say, they were depos- 
 ited with him for the purpose of securing his debt ; and so all the perjury 
 the statute of frauds meant to avoid is introduced, and the rule changed. 
 But Lord Thurlow was of opinion, and that is not now to be disturbed, 
 that the fact of the adverse possession of the deeds in the person claiming 
 the lien, and out of the other, was a fact, that entitled the court to give 
 an interest." On several other occasions Lord Elden strongly disapproved 
 of the case of Russell v. Russell, but it has. nevertheless been constantly 
 acted upon and recognized in England as a binding authority.' 
 
 The doctrine of equitable mortgage, by the deposit of title deeds in 
 the hand of the lender of money, has been repeatedly recognized in this 
 state, though not permitted to be set up at law as a legal estate.* In 
 one case, in the absence of other proof, evidence of an advance of money, 
 and the finding of the title deeds of the borrower in the possession of 
 the lender, were held sufiicient to establish an equitable mortgage,; and 
 the assistant vice chancellor approved the remarks of Lord Eldon, in Ex 
 parte Kensington, already cited, where he says, " it has been so long set- 
 tled that a mere deposit of deeds, without a single word passing, operates 
 as an equitable mortgage, that whatever I might have thought originally, 
 . I must act upon that as settled law."- 
 
 But though an equitable mortgage be good between the parties, and 
 as against a subsequent mortgagee with notice, yet it will be postponed 
 in favor of a purchaser, or mortgagee who had no notice of the equitable 
 lien, and who have recorded their conveyances ; for the equities being 
 equal, the law must prevail.' In most of the cases of equitable mort- 
 
 ' Ex parte Coombe, 17 Ves. 370. Exch. Oaa. 303. Tylee v. Webb, 6 Beavan, 
 
 ' Ex parte Corning, 9 id. 117. 552. 
 
 " Ex parte Wetlierell, 11 Ves. 898. * Jackson v. Parkhiirst 4 "Wend. 369, 
 
 Ex parte Haigb, id. 403. Ex parte 376. Jackson v. Dunlap, 1 J. 0. 114. 
 
 Mountford, 14 id. 606. Ex parte Ken- Berry v. Mut. Ins. Co. 2 J. Ch. E. 603. 
 
 sington, 2 V. & B. 79. Ex parte Hooper, Parkist v. Alexander, 1 id. 394. Kock- 
 
 1 Meriv. 9. Ex parte Warner, 19 Ves. well v. Hobby, 2 Sandf. Ch. E. 9. 
 
 202. Winter v. Lord Anson, 3 Euss. • Heirn v. Mill, 13 Ves. 114. Plumb 
 
 498. Whitbread v. Jordon, 1 Y. ds 0. v. Flewitt, 2 Anst, 483. 
 
 £q. Jus. S6 
 
442 Trusts. [Oi. 7. 
 
 gages whicli have been raplield by the courts, they have been created on 
 the advance of money, or as security for money thereafter to be advanced, 
 and not as a security for antecedent indebtedness, not originating on the 
 faith of the security. Though the latter may be good between the par- 
 ties, they probably cannot be upheld against subsequent incumbrancers 
 ■without notice, unless it be against judgments whose liens are general. 
 
 . In one case, an agreement to give a mortgage for antecedent indebted- 
 ness was held to create a specific lien, and was preferred to the as- 
 signees of the equitable mortgagor and his general creditors.' And so 
 •where there is an incomplete agreement for a mortgage, Lord Lough- 
 borough said the court, after the death of the party, and all his engage- 
 ments are to be arranged, has given a specific lien. This doctrine was 
 evidently approved by the chancellor, in the Matter of Howe, (supra.) 
 General assignees for the benefit of creditors, created by the voluntary 
 act of the debtor, cannot be considered as bona fide purchasers. Judg- 
 ment creditors have no preference over prior equitable claims against the 
 estate of the debtor. And hence a contract for a mortgage, or for the 
 sale of real estate, has been preferred to judgments recovered subsequent 
 to the contract. And an agreement for a mortgage is, in equity, a spe- 
 cific lien upon the land-'' 
 
 It has been held, at law, that a legal tender of the money due on the bond 
 and mortgage, made to the mortgagee or his assignees, or his attorney, ac- 
 companied by a refusal, discharges the land from the lien of the mortgage, 
 though the debt still remains.' And though the tender be not at the day, 
 but at some day subsequent, but before foreclosure, the same consequences 
 have been said to follow.* But in equity, a tender, unless mad^ at the day, 
 does not turn what was before an equity of redemption into an absolute 
 estate discharged of the lien of the mortgage money, which remains un- 
 paid. But a tender of the money on the day it becomes due is a coinpli- 
 anoe with the condition, and by the terms of the mortgage divests the 
 whole interest or estate of the mortgagee in the premises.* If the money 
 be not paid at the day, the condition is broken, and the interest of the 
 mortgagor in the land is then reduced to a mere equity of redemption. 
 An actual payment, and not a mere tender, then becomes necessary to 
 
 ' Burn V. Burn, 8 Ves. jr. 576, 682. * Farmers' Fire Ins. Co. v. Edwards, 
 
 Case of Sir Simon Stuart, cited by coun- 21 Wend. 467. S. 0. 26 Wend. 541. 
 sel and court ; arid in matter of Howe, ' Merrit v. Lambert, 7 Paige, 344. 
 
 1 Paige, 128. Arnot v. Post, 2 Denio, 344. Burnett v. 
 
 ' latlie matter of Howe, 1 Paige, 125. Dennisoo, 5 J. Ch. K. 35. 
 
 ' Jaokeon v. Cralc, 18 J. B. 110. 
 
CL *!.] Lien for PcacHASE Money. 443 
 
 discharge the legal and equitable lien of the mortgage Upon the land. In- 
 deed, at common law, the actual payment of the mortgage money and in- 
 terest, after the day, was not sufiBcient to revest the legal title in the 
 mortgagor or his assignees ; but a reconveyance of the preniises was neces- 
 sary. And it is for these reasons that a bill to redeem becomes necessary 
 when the mortgagee, after forfeiture, refuses to receive what is justly due.' 
 
 Analogous to an equitable mortgage, in some respects, is the lien of the 
 Tender of real estate, for the whole or a part of the purchase money, where 
 there is no special agreement that the lien shall not be reserved.* Prima 
 facie the unpaid purchase money is a lien on the land, and it lies on the 
 purchaser to show that the vendor agreed to rest on other security, and to 
 discharge the lands. The death of the vendee does not alter the claim, for 
 the heir cannot be permitted to hold what his ancestor unconscientiously 
 obtained. And a thing is unconscientiously obtained when the consideratioij 
 is not paid.' 
 
 Nor is the taking of the negotiable note of the vendee a discharge of 
 the lien. And if a part of the purchase money be paid the lien is good as 
 to the residue, and the vendee becomesa trustee as to that which is unpaid.* 
 
 But if security be taken for the purchase money, upon the land, or in 
 any way, the lien is waived unless there be an express agreement retaining 
 it.' So the lien is waived when a note or bond is taken of the vendee for 
 the purchase money, in which a third person joins as security .° 
 
 This lien continues to exist against subsequent purchasers and incumi- 
 brancers, when they advance no new consideration, or had notice of the 
 lien at or before their purchase.^ But it is divested by a sale to a bona 
 fide purchaser without notice.* It is superior to the lien of a prior judg- 
 ment against the vendee.' 
 
 With respect to the mode of enforcing a lien for purchase money, the 
 remedy is in equity ; and although an action at law can be sustained^ yet 
 a court of law cannot grant the relief which is adapted to the necessity 
 of the case. The party holding the lien is not bound to exhaust hisremr 
 edy at law, but may come into equity in the first instance." 
 
 This equitable lien is not lost or waived, even though the vendor,, 
 
 ' Merrit v. Lambert, supra. ' Fish v. Howland, 1 Paige, 20. 
 
 » Nairn v. Prouse, 6 Ves. 753, 760. * Id. 
 
 Hughs V. Kearny, 1 Sch. & Lefr. 132. ' Hallock v. Smith, 3 Barb. S. C. E. 267. 
 
 » Id. Garson v. Green, 1 J. Ch. E. ■ Pish v. Howland, 1 Paige, 20. 
 
 809. Clark v. Hall, 7 Paige, 383. • Arnold v. Patrick, 6 Paige, 310. 
 
 * Garson v. Green, supra. Hallook v, " Bradley v. Bosley, 1 Barb. Cb. E. 152. 
 Smith, S Barb. S. G. E. 276. Blackburn 
 V. Grayson, 1 Bro. 0. 0. 420, 
 
444 Trusts. [Ch. 7- 
 
 through the fraud of the vendee, supposes himself fully paid. Thus, if upon 
 the sale of a farm, the purchaser should pay for half of it in good money, 
 and for the other half in the worthless bills of a broken and insolvent 
 bank, from which nothing could be obtained, the vendee fraudulently rep- 
 resenting such bills to be good and collectable, the vendor would have the 
 right to elect either to rescind the sale, and have a reconveyance of the 
 land, or to charge the land itself with the half of the purchase money which 
 remained unpaid, as an equitable lien upon such land.' 
 
 But this equitable lien for the purchase money does not exist in favor 
 of a person who indorses a note for the maker, to enable him to purchase 
 land, and who accordingly transfers the note to the vendor in part pay- 
 ment, and the indorser is compelled to pay it. The transaction of itself 
 imports a reliance on the personal liability of the maker, and docs not 
 imply an agreement for a lien.^ It might be otherwise, if the note was 
 indorsed upon the faith of an agreement between the purchaser and the 
 indorser, that the note, should be transferred to the vendor in payment of 
 the purchase money. In such case there would be an equity in favor of 
 the indorser, if compelled to pay the note, that he should be in as good 
 plight with respect to security as the vendor himself 
 
 This doctrine of lien for the purchase money, says Lord Eldon, is prob- 
 ably derived from the civil law as to goods, which goes further than our 
 law ; by which, though the right of stoppage in transitu is founded in 
 natural justice and equity, yet if possession, either actual or constructive, 
 was taken by the vendee, the lien was gone.* 
 
 With respect to the interest of the mortgagee, before foreclosure, it was 
 long well settled that it was in equity a chattel interest, and personal 
 assets, and went to the executor.' This question at law depended on the 
 fact, whether the mortgage was in fee or for years ; in the former case, the 
 legal estate went to the heir ; in the latter, to the executor. But with 
 regard to the money due upon the mortgage, it is fully established in 
 equity, that in every case it is to be paid to the executor or administra- 
 tor of the mortgagee ; by reason of the rule in equity, that the satisfac- 
 tion shall accrue to the fund that sustained the loss.* Doubts seem to 
 have existed at one time on this head, in cases in which the mortgage 
 ■was in fee, and there was neither bond, or covenant for payment of the 
 
 • Bradley v. Bosley, 1 Barb. Oh. R. 152. ley v. Audley, id. 193. Demarest v. 
 " M'Kay v. Green, 8 J. Ch. R. 68. Wynkoop, 3 J. Ch. E. 135. 
 
 ' Mackretli v. Symons, 15 Ves. 354. » Winn v. Littleton, 2 Ch. Oas. 51. 
 
 * Id. 342. S. 0. 1 Vern. 8. Tabor v. Tabor, 3 
 ' Tabor v. ©rover, 2 Tern. 887. Aud- Swanst. 688. 
 
Ch. 7.] Mortgagee in Possession. 445 
 
 money ; or where the consideration for redemption was upon payment to 
 the mortgagee, his heirs or executors ;' but the law is now clearly settled, 
 that whatever be the form of the mortgage, it will be part of the personal 
 estate of the mortgagee. Consequently, if the mortgage be in fee, the 
 heir or devisee of the mortgagee will be a trustee of the land for the ex- 
 ecutor or administrator ; and will, upon application, be directed to con- 
 vey to him.^ But in this state it has been shown, that the mortgage has 
 been treated as a security for a debt, and that the estate in the land, for 
 most purposes, remained in the mortgagor until foreclosure. And the 
 Revised Statutes have expressly declared, that the mortgage shall be 
 deemed assets in the hands of the personal representatives of the mort- 
 gagee.^ A mortgage is not considered a conveyance of land within the 
 statute of frauds, and it may be assigned by mere delivery.^ Even if 
 the assignment be in writing, as is most usual, and be recorded, it is not 
 in itself notice of such assignment to the mortgagor, his heirs or personal 
 representatives, so as to invalidate any payment made by them, or either 
 of them, to the mortgagee.^ The assignee, whether in writing or by 
 parol, should, for his own protection, give notice thereof to the mortgagor, 
 or other party bound to pay it.' 
 
 The assignee of a bond and mortgage takes them subject to all the 
 equities of the original mortgagor, but not to the latent equity of a third 
 person.'' 
 
 With respect to the rights and duties of a mortgagee in possession, it 
 may be stated, in general, that he is liable to account for the rents and 
 profits of the estate, and to surrender up the possession when the debt is 
 satisfied. He may pay off a senior incumbrance, and on a bill filed to 
 foreclose, and to be reimbursed the sum he has paid, he is entitled to a 
 decree of indemnity out of the proceeds of the sale of the mortgaged 
 premises.' And when a satisfaction of a senior mortgage would not be as 
 beneficial to the plaintiff' as an assignment thereof, he may file a bill in 
 equity against the holder of such senior mortgage, and compel an assign- 
 
 ' Cootc on Mortgages, 529. Paige, 467, S. 0. Murray v. Livingston, 
 
 " Demarest V. Wynkoop, 3 J.'Ch. R. 2 J. Ch. E. 441. Livingston v. Dean, id. 
 
 145. Ellis V. Graves, 2 Ch. Cases, 50. 479. James v. Mowry, 2 Cowen, 246. 
 
 » 2 R. S. 83, § 6, subd. 8. Pendleton v. Fay, 2 Paige, 202. Evert- 
 
 * Runyan v. Mersereau, 11 J. R. 534. son v. Evertson, 5 id. 644. L'Amoureus 
 ' 1 R. S. 763, § 41. James *v. Mowry, v. Vandenburgh, 7 id. 316. 
 
 2 Cowen, 246. = Dale v. M'Evers, 2 (?owen, 119. 
 
 • Id. Knch V. Brown, 3 Beavan, 70. Wilson 
 ' £vans r. Ellis, S Denio, 640. 11 r. Cliier, id. 126. 
 
446 Trusts. [Oh. 7. 
 
 ment of the same to himself, after tendering the amount due and demand- 
 ing an assignment.' 
 
 A mortgagee in possession is entitled to an allowance for necessary re- 
 pairs, to be allowed in stating his account for the rents and profits. He 
 may be allowed for money expended in supporting the title of the mort- 
 gagor, when it has been assailed. But he is allowed nothing for his trouble 
 in receiving the rents and profits of the estate. So where a mortgagee 
 entered and cleared up wild land, the expense of doing so was not allowed 
 him, though the estate was probably increased in value. To make such 
 an allowance, it was said, would be compelling the owner to have his lands 
 cleared, and to pay for clearing them, whether he consented to it or not.* 
 The precedent would be liable to abuse, and would be increasing the diffi- 
 culties in the way of the right of redemption. Many a debtor, said the 
 chancellor, in the same case, may be able to redeem by refunding the 
 debt and interest, but might not be able to redeem under the charge of pay- 
 ing for the beneficial improvements, which the mortgagee had been able and 
 willing to make. The English courts have always looked with jealousy 
 at the demands of the mortgagee, beyond the payment of his debt.' The 
 older and the modern English cases speak a uniform language on this 
 subject.^ 
 
 The mortgagee, however, is not bound to account for the proceeds of im- 
 provements made by himself' 
 
 In some of the states there are statutory regulations on this subject, 
 which modify the rules which have been laid down. 
 
 Taxes are a legal charge upon the estate, and if necessarily paid by the 
 mortgagee, may be added to the mortgage debt ; but it is otherwise of pay- 
 ments for insurances effected by the mortgagee, unless by special agree- 
 ment with the mortgagor.' So money paid by the mortgagee, to redeem 
 the premises from a tax sale, become part of the mortgage debt in equity.' 
 
 With respect to the mortgagor, he was treated at law as tenant at will 
 of the mortgagee, and was liable to be turned out of possession by an 
 ejectment, without even a notice to quit. In this state, the courts held, 
 at an early day, before an ejectment for a mortgagee was abolished, that 
 a notice to quit was necessary, as in other cases of tenancy.' But as 
 
 ' Pardee v. Van Anken, 8 Barb. S. 0. » Moore v. Cable, 1 J. Ch. E. 885. 
 
 B. 534. Bell v. Mayor of N. Y. 10 Paige, 49. 
 
 ' Moore v. Cable, 1 J. Ch. R. 387, 888. " Faure v. Winans, Hopk. 288. 
 
 ' Id- ' Burr v. Veeder, 3 Wend. 412. 
 
 * French v. Bacon, 2 Atk. 120. God- » Jackson v. Laughhead, 2 J. R. 75. 
 
 frey v, Watson, 8 id. 517. Bonethorn v, Jackson v. Green, 4 id. 186. 
 Hookmore, 1 Vern. 316. Sandon v. 
 Hooper, 6 Beavan, 246. 
 
Ch. 7.] Redemption. 44T 
 
 against all persons but the mortgagee he was treated, even at law, while 
 he remained in possession, as the beneficial owner of the estate. He is 
 permitted to receive the rents and profits of the estate. His estate is 
 liable to be sold on execution against him. It is liable to the dower of 
 the wife, and the curtesy of the husband.' Both the mortgagee and 
 mortgagor are treated in equity as trustees, and neither will be permit- 
 ted, while in possession of the estate, to do any act which will essen- 
 tially injure the rights of tho other party. It has been shown under the 
 iead of injunction, that both will be restrained from the commission of 
 waste." 
 
 With respect to the remedies which the law afibrds upon mortgages, 
 it may be observed, in the first place, that the right of redemption by tha 
 mortgagor or his representatives is incident to every mortgage, and that 
 the courts look with jealousy on all attempts to impair or embarrass the 
 exercise of it.^ This remedy can be asserted only in a court of equity, 
 for at law the estate becomes absolute on failure to pay at the day. Nor 
 is the right of redemption confined to the mortgagor, his heirs, executors, 
 administrators, or assigns, or subsequent incumbrancers. It extends to 
 all persons claiming any subsisting interest whatever in the premises as 
 against the mortgagor.'' A purchaser of lands at a sheriff's sale is en- 
 titled to redeem a prior mortgage.^ A subsequent judgment creditor is 
 entitled to redeem.^ So a junior mortgagee is entitled to redeem a prior 
 mortgage, if due, and to an assignment on redeeming.' So a junipr 
 incumbrancer, who was not made a party to the suit for foreclosure, is 
 not bound by the decree, and may thereafter redeem.' But if a junior 
 judgment creditor purchase on a statute foreclosure, and then conveys 
 with warranty, his right to redeem is extinguished. The effect of a stat- 
 ute foreclosure is to transfer to the purchaser the rights of the mort- 
 gagee, so far as he has any claim or interest in the mortgaged premises, 
 for the security of his debt, and also to transfer to him so much of the 
 equity of redemption as was not bound by the lien of a junior judgment 
 or mortgage.' Creditors, by judgment or mortgage, whose liens attach 
 
 ' See Ante. ' Matter of Scrngham, Hopk. 88. 
 
 ' Brady v. "Waldron, 2 J. Ch. E. 148. • Burnet v. Deunison, 6 J. Oh. R. 
 
 ' Holdridge v. Gillespie, 2 id. 30. Hen- 35, 40. 
 
 ry v. Davis, 7 id. 40. 8. C. on appeal, 2 ' Pardee v. Van Anken, 3 Barb. S. 0. 
 
 Oowen, 324. 2 Fonb. Eq. B. 3, ch. 1, § 8. E. 534. 
 
 Id. § 2. « Haines v. Beach, 3 J. Ch. E. 459. 
 
 * Grant v. Duane, 9 J. E. 591. ' Vroom v. Ditmas, 4 Paige, 531, 
 
448 Trusts. [CL 7. 
 
 intermediate a prior mortgage and a statute foreclosure of it, may 
 redeem.' 
 
 If the mortgage be by absolute deed, with a parol agreement that it 
 shall stand as security, one acquiring title under a judgment against the 
 mortgagor may redeem.' And he may so redeem against the mortgagee, 
 or his heirs, or personal representatives.' But if the mortgagee, by a 
 deed absolute on its face, sell to a bona fide purchaser and receives the 
 purchase money, the mortgagor's remedy is against the mortgagee, and 
 he cannot redeem. The bona fide purchasers who have actually paid 
 the purchase money, without notice of the equitable rights of the mort- 
 gagor, cannot be disturbed.* 
 
 A sale, or lease of part of the premises, by the mortgagee, before fore- 
 closure, does not affect or prejudice the mortgagor's right of redemption, 
 nor deprive the mortgagee of the right to foreclose.^ 
 
 With regard to the amount to be paid on redeeming, it may be said, 
 that as taxes are a legal charge upon the estate, they may, if necessarily 
 paid by the mortgagee, be added to the mortgage debt.' But as the 
 English doctrine of tacking is superseded by our recording laws, a prior 
 mortgagee who acquires the equity of redemption, or a judgment subse- 
 quent to a second mortgage, cannot compel the second mortgagee, on 
 redeeming, to pay the judgment as well as his mortgage.' Nor can a 
 prior mortgagee enlarge his demand beyond what appears upon the record, 
 in consequence of a separate agreement with the mortgagor, to the preju- 
 dice of a subsequent mortgagee, without notice of the agreement.^ Nor 
 can a mortgagee, as against subsequent bona fide grantees or incumbran- 
 cers, hold his mortgage as a lien for another distinct debt, upon parol 
 proof that it was intended to cover that also.' In general, however, prior 
 incumbrances must be paid off by a party coming to redeem, according 
 to their priorities ; and the party coming to redeem must pay the costs 
 of the suit.'" But a mortgagee may so conduct as not only to forfeit his 
 right to costs, but as to subject himself to the costs of the other party." 
 
 ' Benedict v. Gilman, 4 Paige 68. ' St. Andrews Church v. Tompkins, 7 
 
 Vroom V. Ditmas, id, 026. J. Ch. E. 14. 
 
 ' Van Baren v. Olmstead, 6 Paige, 9. " The Bank of TJtioa v. Pinoh, 3 Barb. 
 
 * Id. Oh. E. 293. 
 
 * Whittick V. Kane, 1 Paige, 202. " Benedict v. Gilman, 4 Paige, 58. 
 
 ' Wilson V. Troup, 7 Oh. E. 25. " Brockway v. Wells, 1 Paige, 191. 
 
 ° Fanre v. Winans, Hopk. 283. Burr Detillan v. Gale, 7 Ves. 583. Slee v, 
 
 V. Veeder, 8 Wend. 412. Eapelye v. Manhattan Oo. 1 Paige, 48. Henry v. 
 
 Prince, 4 Hill, 119. Davis, 7 J. Ch. E. 40. 
 
 ' M'Kinstry v. Marvin, 3 J. Oh.E. 466. 
 
Ch. 7.] Eemedies of Mortgagee. 449 
 
 A judgment creditor, redeeming premises after statute. forclosure, is not 
 bound to pay the costs of such foreclosure. The amount he is to pay 
 does not depend on the sum bid at the sale by the mortgagee at such 
 statute foreclosure, but on the amount actually due at the time of such 
 sale, unless it has been subsequently paid by the person who was equi- 
 tably bound to pay it.' 
 
 With regard to the remedies of the mortgagee to enforce payment of 
 the mortgage money, where the same was secured also by a bond, note, or 
 personal covenant, the rule formerly was that the creditor had three rem- 
 edies, all or either of which he might pursue until his debt was patisfigd. 
 He might bring an action at law on the bond, note or covenant, get pos- 
 session of the rents and profits of the land mortgaged, by an ejectment, 
 or foreclose the equity of redemption, and sell the land to pay the debt, 
 by a bill in chancery." And these remedies might all be pursued at the 
 same time. 
 
 But now by statute in this state, no action of ejectment can be main- 
 tained by a mortgagee, or his assigns or representatives, for the recovery 
 of the possession of the mortgaged premises.^ The object of the law 
 was to compel the mortgagee to resort to equity to enforce his security, 
 and to prevent the unnecessary multiplicity of suits.^ The party may, 
 however, bring a personal action to recover the mortgage debt, but ho 
 cannot sell, under his execution, issued upon the judgment, for si^chdebt, 
 the equity of redemption of the mortgagor, his heirs or assigns,* 
 
 In an action for the foreclosure or satisfaction of a mortgage, the 
 court is empowered to decree a sale of the mortgaged premises, or pf 
 such part as may be suflScient to discharge the amount due on the mort- 
 gage, and the costs of suit.« And ^hen the action is for the satisfaction 
 of a mortgage, the court has not only power to decree and compel the 
 deliverance of the po^^ession of the mortgaged premises to the purchaser 
 thereof, but, on the coming in of the report of sal,e, it has also power to 
 decree and direct the payment, by the mortgagor, of any balance of the 
 mortgage debt that may remain unsatisfied after a sale of the premises, 
 in the case, in which such balance is recoverable at law ; and, for that pur- 
 pose, may issue the necessary executions, as in other cases, against the 
 property of the mortgagor, or against his person, in cases where it is lia- 
 
 " Benedict v. Gilman, 4 Paige, 58. " 2 R. S. 312, § 57. 
 
 ' Jackson V.Hull, 10 J. K. 481. Dunkley * See notes of Revisers, 3 R. S. 673. 
 V. Van Buren, 8 J. Ch. R. 330. Jones v. ' 2 R. S. 368, § 31 ; and see Ties v. 
 
 Oonde, 6 id. 77. 'Hnghs v. Edwards, 9 Anin, 2 J. Ch. R. 125. 
 Wheat 489. » 2 R. S. 191, § 151. 
 
 Eq. Jur. 67 
 
450 Trusts. [CL 7. 
 
 ble to imprisonment.' After the commencement of an action in equity, 
 and while the same is pending, and after a decree rendered therein, no 
 proceedings whatever could be had at law for the recovery of the debt 
 secured by the mortgage, or any part thereof, unless authorized by the 
 court." The practice in foreclosure actions does not fall within the 
 scope of this treatise, and will be found at large in books devoted to that 
 subject. 
 
 A summary mode of foreclosing mortgages at law, by advertisement 
 and sale, is provided by statute for those cases, where the mortgage con- 
 tains a power to the mortgagee, or any other person, to sell the mortgaged 
 premises, upon default being made in any condition of the mortgage.' 
 The description of this remedy belongs to treatises on the practice at law. 
 There are many cases where this remedy cannot be applied,^ and there are 
 none in which it supersedes an action in a court of equity. The latter, 
 therefore, is with us the most usual, as well as the most effective remedy, 
 in cases of non-payment of demands secured by mortgage. 
 
 There are two modes of foreclosing mortgages in equity ; the one is 
 called a strict foreclosure, where by the decree the equity of the mortgagor, 
 and of those claiming under him, in the post, is barred, and the complete 
 title is vested in the mortgagee ;' the other is the ordinary foreclosure 
 and sale, where the premises are directed to be sold to pay the debt and 
 costs, and the surplus to be returned to the mortgagor or his personal rep- 
 resentatives or assigns. A strict foreclosure of the mortgaged premises 
 does not per se operate as an extinguishment of the debt. It does not 
 produce that effect, unless the lands mortgaged were of sufficient value to 
 pay the debt.^ Consequently, after a strict foreclosure, the mortgagee 
 may resort to the bond, if one was taken with the mortgage, and a plea of 
 strict foreclosure will be no answer to the action, unless it be averred 
 that the land was equal in value to the amount of the debt.' 
 
 If the mortgage is the only security for the debt, and the mortgagor is 
 
 ' 2 E. S. 191, § 152. See Non-impris- ' Id. Hatch v. White, 2 Gallison, 152. 
 
 ournent Act of 1831, p. 396. M'Carthy The Globe Ins. Oo. v. Lansing, 5 Cowen, 
 
 V. Graham, 8 Paige, 480. 380. Lansing v. Goelet, 9 id. 346, 402. 
 
 ' 2 E. S. 191, § 153. Dimkley v. Van Bm-en, 3 J. Oh, E. 330. 
 
 ' 2 E. S. 545. See the elaborate opinion of Jones, chan- 
 
 * See Ferguson v. Kimball, 3 Barb. Ch. cellor, in the court of errors, in Lansing 
 
 E. 016. S. 0. 2 Oomst. 360. v. Goelet, 9 Cowen, 348 et seq. on the 
 
 ' Ferine v. Dunn, 4 J. Oh. E. 140, 143. history and practice of foreclosure in 
 
 Buckman v. Astor, 9 Paige, 520. this state. 
 
 "Spencer V. Harford, 4 Wend. 385. 
 
Ch. 7.] Strict Foreclosure. 451 
 
 not personally bound for the payment of it, as sometimes is the case, the 
 only remedy of the mortgagee, for the recovery of his demand, is to take 
 the estate for the debt, on the mortgagor's failing to redeem when called 
 on in equity for that purpose. 
 
 Upon a strict foreclosure of a mortgage, if the value of the land be 
 equal to the debt, the debt is paid.^ ' 
 
 The practice of the court of chancery in England, on the foreclosure of 
 mortgages upon estates in possession, allows the creditor to proceed at 
 law, after the decree of foreclosure, upon the bond or personal contract of 
 the mortgagor, for the recovery of the debt. But, in such case, if the 
 creditor so elects to pursue his personal remedy, he waives the benefit of 
 his decree of foreclosure, and reinstates the mortgagor in his right to re- 
 deem the estate. He cannot at the same time retain the estate, which 
 has become absolute in him by the foreclosure, and recover the debt, which 
 is the consideration of that estate, by an action on the bond.' But the 
 practice in this state has been different. We have always treated 
 the mortgage as a security for the debt. And on a decree of foreclosure, 
 when there was a personal contract to pay the debt, directed a sale of the 
 premises, and the application of the purchase money to the satisfaction 
 of the decree ; and if a balance of the debt remained unpaid, allowed the 
 creditor to resort to the bond or other contract for the payment of the 
 money for the deficiency, without opening the foreclosure.^ 
 
 The principle on which the subsequent action on the bond was held in 
 England to open the previous decree of foreclosure, does not apply to de- 
 crees of foreclosure and sale. The principle is, that the mortgagee who 
 obtains a decree of foreclosure must be deemed, as long as he holds under 
 it, to take the estate for the debt ; and if he afterwards proceeds, as he 
 may do, on his bond for the recovery of the debt, he must be deemed to 
 waive his decree, and let in the mortgagor to the right of redemption.* 
 But that rule does not apply in the case of a judicial sale. The object of 
 the sale is to convert the estate into money, to be applied to the payment 
 of the debt. And when the proceeds are thus applied, the whole or some 
 portion of the debt, equal to the avails of the mortgaged premises, is sat- 
 isfied. The mortgagor has thus obtained the benefit of it by the appli- 
 cation of the purchase money to the payment or reduction of the debt. 
 
 ' Per Jones, Oh., in Lansing v. Goelet, Dashwood v. Blithway, Eq. Oases Abr. 
 
 9 Oowen, 352. 317. Perry v. Baker, 8 Yes. 528. 13 
 
 ' Morgan v. PInmb, 9 Wend. 292. id. 198. 
 
 Spencer v. Harford, 4 id. 385. « 9 Cowen, 346, 382. 
 
 ' Per Jones, Oh., in Lansing v. Goelet, ' Per Jones, in Lansing v. Goelet, 9 
 
 9 Oowen, 381. 1 Mad. Oh. Pr. 421. Oowec, 368. 
 
452 Trusts. fCh. 7. 
 
 If tke proceeds are insufficient to satisfy the debt, and a bond or person- 
 dl covenant tvas given ■with the inortgagor, the mortgage remains liable for 
 thte deficiiency ; and he cannot complain, upon being called upon to pay it ; 
 and upon no principle of equity can he be permitted for that cause to 
 disturb thfe sale, or reclaim the premises from the purchaser. 
 
 The doctrine seems to have been, in this state, prior to the Revised 
 Statutes of 1830, that on a decree of strict foreclosure, if the premises 
 mortgaged were of less value than the debt, and the mortgagor had given 
 a bond, note or covenant to pay the money, to hold him liable at law for the 
 deficiency, without opening the decree of foreclosure. In case of a decree of 
 foreclosure and Sale, or of a sale without a foreclosure, if the proceeds of the 
 sale were insufficient to pay the debt, the mortgagor was liable for the de- 
 ficiency at law, and the proceeding to enforce the collection, of the balance 
 did not affect the previous sale, or let in the mortgagor to redeem. And 
 thus a strict foreclosure did not extinguish the debt, except in cases where 
 there was no personal agreement of the mortgagor to pay the debt, or the 
 mortgaged premises were at least equal in value to the amount of the debt.' 
 
 The object of the Revised Statutes was, in part, to adopt the decisions 
 of the courts, and thus declare the power of the court, on a bill for a fore- 
 closure or a satisfaction of a mortgage, whether the defendant appear 
 or not ; to decree a sale of the inortgaged premises, or such part thereof 
 as might be sufficient to discharge the amount due on the mortgage, and 
 ihte costs of suit ; and in case of a deficiency, when the balafice was recov- 
 erable lat laW, to decree and dir-ect the payment of the balance by tho 
 mortgagol-, and to issue the necessary process for these purposes.*' Hence 
 the aid of a court of law became unnecessary, after the party had com- 
 menced his action in equity, and could not be resorted to unless 
 authorized by the court of chancery.' The same principles are ap- 
 plicable under the code, and a single action will enable the mortgagee 
 to foreclose his mortgage, and obtain a judgment for the balance^of the 
 debt, if any, against any party who is liable therefor. For though these 
 were formerly separate causes of action, the one equitable and the other 
 legal, they both arise out of the same transaction, and may property be 
 
 ' Lansing v. Gbelet, 9 Cowen 346. bigarre v. Bush, 4 J. R. 480. Perine v. 
 
 Spencer v. Harford, 4 "Wend. 381. Mor- Dunn, 4 J. Ob. K. 140. Globe Ins. Co. 
 
 gan V. Plumb, 9 id. 286. Lansing v. The v. Lansing, 5 Cowen 380. 
 
 Albany Ins. Co. Hopkins, 102. Ludlow '' 2 R. S. 191, §§ 151, 152. Revisers' 
 
 V. Lansing, id. 231. Sedgwick v. Fish, notes, 3 R. S. 673. 
 
 id. 594. Ferine v. Dunn, 3 J. Oh. R. " 2 id. 191, § 153. M'Carty v. Graham, 
 
 608. Campbell v. Macomb, 4 id. 534. 8 Paige, 480. The Bank cf Rochfester v. 
 
 Kershaw v. Thompson, id. 609. Dela- Emerson, 10 id. 115. 
 
Ch. 7.] Order of Payment. 453 
 
 united.' Abd, in truth, they have been so united in bills of foreclosure, 
 since the adoption of the Revised Statutes in 1830. 
 
 The mode of foreclosing mortgages, and of redeeming mortgaged prem- 
 ises, is regulated in most of the states, in a great rpeasure, by statute, 
 iand it is not proposed to collect the decisions which have been made by 
 their courts concerning them. The foundation of -the jurisdiction is in all 
 cases derived from the English practice. 
 
 Oh the foreclosure and sale of mortgaged premises, and in the distribu- 
 tion of the surplus money, there are often important questions as to the 
 frimary fund for the payment of the mortgage debt, and as to the order 
 in which lands charged with various liens shall be sold, and the avails 
 distributed. Courts of equity settle these questions upon broad and 
 comprehensive principles. The equities of successive incumbrances are 
 often adjusted in decrees for foreclosure and sale, without any bill to mar- 
 shal securities. The same object is often accomplished by prescribing 
 the order of sale, or directing the distribution of the surplus, after the 
 report of sale has been confirmed. 
 
 If no equitable circumstances intervene, the debt is considered the 
 principal, and the mortgage the security ; and consequently, on the death 
 of the mortgagor, his personal representatives are bound, as between 
 them and the heir, to pay off the mortgage." But when the land is ex- 
 pressly conveyed, subject to a mortgage thereon, the land is the primary 
 fund, as between grantor and grantee, and those deriving title from the 
 grantee, for the payment of the mortgage debt.' So the purchaser of an 
 equity of redemption, under a junior judgment, or mortgage, takes the 
 land subject to the prior mortgage, and the land becomes the primary 
 fund for the payment.^ By purchasing subject to the prior mortgage 
 expressly, he is presumed to bid only to the value of the equity, subject 
 to the payment of the prior mortgage thereon. And if he then takes an 
 assighnaeiit of the prior bond and mortgage, he cannot charge the mort- 
 gagor, by a suit on the bond, until he has exhausted his remedy upon the 
 niortgage.^ On the same principle, when a mortgagor sells a part of the 
 land, subject to the whole mortgage, the part sold is primarily liable for 
 the mortgage debt, and the personal estate of the deceased grantee is lia- 
 ble only for the deficiency.' And so when tenants in common mortgage 
 
 ^ Code, § 16Y. Allen, 10 Paige, 249. Vanderkemp v.- 
 
 » 2 'Willialms' Ez. 10^3. Shelton, 11 id. 28. 
 ' Jumel V. Jdiriel, 7 Paige, 591. ' Vanderkemp v. Shelton, 11 Paige, 
 
 * Tice V. Atin, 2 J. Oh. R. 125. M'Kins- 28. Mathews v. Aikin, 1 Ootost. 595. 
 try V. Curtis, 10 Paige, 603. Kussell v. ° Ealsey v. Eeed, 9 Paige, 446. 
 
454 Trusts. [Ch. 7. 
 
 for a joint debt, and afterwards make partition, each half is chargeable 
 primarily with one half of the debt and costs.' 
 
 But the rights and equities of the parties are sometimes as much 
 affected by the order in which separate incumbered pieces of land are 
 sold, as Ijy the determination as to which is the primary, and which the 
 auxiliary fund. Courts of equity, while they will preserve the rights 
 of the creditor, require them to be so exercised as not injuriously to 
 disturb the rights and equities of others. Thus, when a creditor has a 
 lien upon several parcels of land for the payment of his debt, and some 
 of the lands still belong to the person who in equity ought to pay and 
 discharge the debt, and other parcels have been sold by him, the lands 
 still belonging to such person are in equity first chargeable with the pay- 
 ment of the debt. And upon the principle that as between equal equities, 
 he who is prior in time is strongest in right, if the person who ought to 
 pay the debt has conveyed different parcels of the land, upon which it is a 
 lien, at several times to bona fide purchasers ; as between such purchasers, 
 the lands are chargeable in equity in the inverse order of their alien- 
 ation.^ That is to say, the lands last sold are to be first charged, and so 
 on in successive inverse order. 
 
 On the same principle, when there are general liens upon the whole 
 land, and subsequent mortgages on the parcels, the general liens are 
 primarily chargeable on the parcels, in the inverse order of their being 
 mortgaged.' In like manner, when mortgaged premises are sold, subse- 
 quent to the date of the mortgage, to different purchasers, such parcels, 
 upon a foreclosure of the mortgage, are to be sold in the inverse order of 
 their alienation, according to the equitable rights of the different pur- 
 chasers as between themselves." 
 
 This principle is not confined to the original alienations of the mort- 
 gagor, but extends to conveyances by his grantee, where he conveys with 
 warranty.^ It is applicable to subsequent incumbrances, upon different 
 parcels of the mortgaged premises, either by mortgage or judgment.' 
 
 So where the lands are mortgaged, and a part thereof subsequently 
 sold by the mortgagor, the part remaining unsold is the primary fund for 
 
 ' Rathbone v. Olark, 9 Paige, 648. ' Schry ver v. Teller, 9 Paige, 173. 
 
 " Skeel V. Spraker, 8 Paige, 182. Gill * Guion v. Knapp, 6 id. 35. Snyder v. 
 
 v. Lyon, 1 ,T. Oh. E. 447. Clowes v. StalTord, 11 id. 71. The N. T. Life Ins. 
 
 Dickinson, 5 id. 285. Gouverneur v. and T. Oo. v. Milnor, 1 Barb. Oh. E. 353. 
 
 Lynch, 2 Paige, 300. Guion v. Knapp, Stuyvesant v. Hall, 2 id. 151. 
 
 6 id. 85. Stoney v. Shultz, 1 Hill's Oh. ' Guion v. Knapp, 6 Paige, 86. 
 
 E. 500. Eathbone v. Clark, 9 Paige, ° Stuyvesant v. Hall, 2 Barb. Oh. R. 
 
 648. Schryver v. Teller, id. 173. 161. 
 
Ch. 7.]', Chattel Mortgages and Pledges. 455 
 
 the payment of the mortgage debt ; and if different parcels are sold, they 
 should be charged with the debt in the inverse order of alienation. In 
 like manner, where lands are contracted to be sold, and the purchaser con- 
 tracts to sell a part of such lands, the part remaining is the primary 
 fund for the payment of the original purchase money ; and if the original 
 purchaser transfers different interests, they are chargeable in the inverse 
 order of alienation." 
 
 The right to have the lands which have been sold by the mortgagor, 
 charged in the inverse order of their alienation, is not strictly a legal 
 but an equitable right ; and is governed by those equitable principles 
 upon which courts of equity protect the rights of sureties, or those who 
 are standing in the situation of sureties.'* And the conscience of the 
 party who holds the incumbrance is not affected, unless he is informed 
 of the existence of the facts upon which this equitable right depends ; 
 or he has a sufficient notice of the probable existence of the right, to 
 make it his duty to inquire, for the purpose of ascertaining whether such 
 equitable right does in fact exist.' 
 
 With respect to the surplus money, ia case the mortgaged premises 
 sell for more than enough to satisfy the amount due on the mortgage, 
 the mortgagor or his grantees are, prima facie, entitled to it* The 
 incumbrances subsequent to the mortgage under which the sale is had, 
 must be paid off in the order of time in which their respective liens 
 attached.^ And though, in general, the court is not bound to take notice 
 of any interest acquired by purchasers, in the subject matter of the suit, 
 pending the suit, yet a person who obtained a judgment against a mort- 
 . gagor, pending the suit, by the mortgagee for foreclosure, and prior to 
 the decree, was allowed to redeem, as against the purchaser at the 
 master's sale, acting with notice of the lien of the judgment creditor, and 
 under the peculiar circumstances of the case.* 
 
 We have hitherto treated of mortgages of real estate and their inci- 
 dents. As there may be trusts with respect to personal property, so 
 also there may be mortgages of the same. The mortgagee in such case, 
 is in equity a trustee for the mortgagor. Personal property may also be 
 pledged for the payment of debts. A mortgage and a pledge of chattels 
 are in some respects similar to each other, but there are important points 
 
 ' Crafts V. Aspinwall, 2 Comst. 289. ' Franklin v. Van Oott, 11 Paige, 129. 
 
 " 6 Paige, 42. ^ Barb. Ch. R. 158. " M'Kinstry v. Mervin, 3 J. Ch. E. 466. 
 
 ' Id. ' Cook V. Manoins, id. 96, 100 
 
456 Trusts. |Ch. T. 
 
 with respect to which they differ. A mortgage of chattels is a transfer 
 of personal property upon condition, on the non-performancg of which the 
 whole title vests at law in the mortgagee, in the same manner as ia 
 mortgages of land. But, in a pledge, a special property only passes to 
 the pledgee, with a right of possession, the general property remaining 
 in the pledgor. The distinction between the two securities is pointed 
 out in several of our cases, and is well established. A mortgage of goods, 
 say the court in an early case, is a pledge and more ; for it is an absolute 
 pledge to become an absolute interest, if not redeemed at the specified 
 time. After the condition forfeited, the mortgagee has at law an abso- 
 lute interest in the thing mortgaged, whereas a pawnee has but a special 
 property in the goods to detain them for his security.' 
 
 Delivery is essential to the validity of a pledge. When no time has 
 been fixed for its redemption, the pawnor may at any time redeem, and 
 the right of redemption does not terminate by his death, but survives to 
 his personal representatives against the pa\vnee and his representatives. 
 The pawnee does not acquire an absolute title, simply by the failure of 
 the pawnor to pay the' debt, or redeem the property at the time specified. 
 His interest is to retain the property for his security. There is no 
 forfeiture till the pawnor's rights are foreclosed.' 
 
 The pawnee may, by calling upon the pawnor to redeem, and his- refu- 
 sal, vest in himself the absolute property in the pledge. The usual course 
 is, on default of payment, to sell, on reasonable notice to redeem.* 
 
 An action in equity, by the pawnor, to redeem the property pledged, 
 has frequently been sustained ; and it is presumed that an action to fore- 
 close may, under peculiar circumstances, be maintained by the pledgee.' 
 
 It is settled, also, that a pledge may be taken as a security for future 
 loans. In this respect it stands on the same footing as a mortgage for 
 future advances, which we have already considered, and which is as appli- 
 cable to chattel mortgages as to mortgages of land.* 
 
 While delivery is said to be essential to the existence of a pledge, a 
 mortgage of chattels is good and valid between the parties without it. 
 
 ' Brown v. Bement, 8 J. R. 96, 98. Wilson, 1 P. "Wms. 261. Lockwood v. 
 
 Cortelou v. Lansing, 2 Cain. Gas. in Er. Ewer, 2 Atk. 303. 
 
 200. Barrow v. Paxton, 5 J. K. 258. " Id. 
 
 Jonea v. Smith, 2 Ves. jr. 378. M'Lean v. ° Hendrick v. Robinson, 2 J. Ch. R. 
 
 Walker, 10 J. R. 471. - 309. Jones v. Smith, 2 Ves. jr. 372. De 
 
 " Cortelou v. Lansing, 2 Gaines' Gas. ia Maimbray, 2 Vera. 698. United States 
 
 Error, 200. v. Hoe, 3 Cranch, 73. Shirras v. Caig, 
 
 » Brownell V. Hawkins, 4 Barb. 498. 7 id. 34. Brinkerhoff v. Marvin, 6 J. Ch. 
 
 ' Cortelou v, Lansing, supra. Hart R. 429. Jarvis v. Rogers, 15 Mass. 389. 
 
 V. Ten Eyok, 2 J. Oh. R. 100. Tucker v. Otis v. Sill, 8 Barb. 102. 
 
Ch. 7.] Chattel Mortgages and Pledges. 457 
 
 Possession continuing in the mortgagor is not inconsistent with the instru- 
 ment at common law, and was treated merely as a badge of fraud.' 
 
 A chattel mortgage transfers to the mortgagee the whole legal title to 
 the thing mortgaged, subject only to be defeated by performance of the 
 condition.' And upon failure to perform the condition, the mortgagee 
 acquires an absolute title to the chattel.' And, without a foreclosure, the 
 property may be levied upon by virtue of an execution against the mort- 
 gagee.' 
 
 And the mortgagor, after the expiration of the day for payment, looses 
 all legal right to the property, and cannot maintain an action for it, if it 
 be wrongfully taken. And even when the mortgage contains a clause, 
 authorizing the mortgagee, upon default of payment of the debt, at the 
 time agreed on, to sell the property at auction or private sale, the title 
 still vests in the mortgagee, absolutely, on failing to perform the condition, 
 without any sale being made.^ And he may take possession without any 
 further act.* 
 
 A chattel mortgage may contain a stipulation authorizing the mort- 
 gagor to retain possession until the time of payment has arrived. And 
 it may, in such case, empower the mortgagee, in case of any attempt of 
 the mortgagor to remove or dispose of the property, to seize the same and 
 sell it, and appropriate enough of the proceeds to pay the debt ; and this, 
 whether the debt has become due or not, by the terms of the mortgage.' 
 
 It is a legitimate inference, from the principles before stated, that after 
 the condition is broken, and the title of the mortgagee has become abso- 
 lute at law, no subsequent tender by the mortgagor to the mortgagee, of 
 the moneys secured thereby, will operate to reinvest the title in the 
 mortgagor.^ 
 
 The rigor of the common law rule has, in relation to chattel mortgages, 
 as well as mortgages of lands, been mitigated. In relation to both, the 
 mortgage is a security for a debt, and it is the business of courts of 
 equity to relieve against the forfeiture in one case as well as the other, 
 on payment of the debt, interest and costs. This doctrine is now well 
 settled in this state, and probably elsewhere. The mortgagor may bring 
 
 ' Barrow v. Paxton, 5 J. E. 261. Lewis * Ferguson v. Lee, 9 "Wend. 268. 
 
 V. Stevenson, a Hall's S. 0. K. 63. ' Burdick v. McVanner, 2 Denio, 171. 
 
 » Butler V. Miller, 1 Oomst. 496. Case v. Boughton, 11 Wend. 109. 
 
 ' Brown v. Bement, 8 J. K. 96. Ack- " Id. Langdon v. Buel, 9 Wend. 80. 
 
 ley V. Finoh, 7 Oowen, 290. Divver v. ' Eussell v. Butterfield, 21 id. 800. 
 
 McLaughlin, 2 Wend. 596. Langdon v. • Patohin v. Pierce, 12 id. 61. 
 Keed, 9 id. 80. Patehin v. Pierce, 12 id. 
 61. Fuller v. Acker, 1 Hijl, 473. 
 
 Eq. Jt7B., S8 
 
458 Trusts. [C^i, 7. 
 
 an action to redeem, and the mortgagee may have a corresponding one to 
 foreclose, though in general a sale of the property, as in case of a pledge, 
 upon reasonable notice to the mortgagor to redeem, is equally effective with- 
 out a resort to judicial proceedings.' There has long been a tendency in 
 our courts, to assimilate the equitable rights of mortgagor and mortgagee 
 of chattels to the corresponding rights of the parties to mortgages of real 
 estate. The right of redemption and of foreclosure, in case of mortgages 
 of chattels, has been repeatedly recognized by the most eminent judges 
 and in the highest courts.* 
 
 A pledge, and a mortgage of personal property, are both good without 
 being evidenced by any written contract.^ At common law, they were 
 created by delivery of the property, though, with respect to a mortgage, it 
 remained still good between the parties and purchasers with notice, though 
 not followed by a continued change of possession. The possession of the 
 mortgagor was not esteemed inconsistent with the nature of the contract. 
 The provisions of the Revised Statutes, and of the act of 1833, requiring 
 mortgages of personal property to be filed in the office of the town clerk,* 
 are for the benefit of creditors, subsequent purchasers and mortgagees 
 in good, faith. They have no application to their validity between the 
 parties and those who purchase with notice ;^ nor to the remedy in equi- 
 ty by mortgagor or mortgagee. This branch of the subject was sufficiently 
 considered under the head of fraud.* 
 
 When a pledge is not capable of manual delivery, as shares of stock 
 in an incorporated company, a pledge may be created by a written trans- 
 fer ; and the transaction may be a pledge, instead of a mortgage, although 
 the legal title passes to the creditor.' 
 
 Whether the transfer of the shares of stock of a corporation be a 
 pledge or a mortgage, dfepends, in doubtful cases, on the circumstances. 
 The general property which the pledgor is said usually to retain, is noth- 
 ing more than a legal right to the restoration of the things pledged on 
 payment of the debt. Where the plaintiff transferred to the defendants, 
 
 'Patohin v. Keroe, 12 Wend. 61. 'Ferguson v. The Union Furnace Co. 
 
 Charter v. Stevens, 3 Denio, 83. Hart v. 9 Wend. 345. Hall v. Tuttle, 8 id. 876. 
 
 Ten Eyck, 2. J. Ch. R. 100. Lansing v. * 2 E. S. 136, § 5, p. 137, § 1. Laws of 
 
 Goelet, 9 Oowen, 372, per Jones, Oh. 1883, p. 402. 
 
 " Huntington v. Mather, 2 Barb. S. 0. » Sanger v. Eastwood, 19 Wend, 614. 
 
 B. 638. Mattisou v. .Bauous, 1 Oomst. Gregory v. Thomas, 20 id. 17. 
 
 296. March v. Lawrence, 4 Oowen, 487. ' See ante, 241, et seq. 
 
 Otis V. Wood, 3 Wend. 600. Baily v. ' Wilson v. Littie, 2 Oomst. 448. 
 Burton, 8 Wend. 347-8. Id. 375, and 
 cases under preceding note. 
 
Cb. 7-] Hypothecations. 459 
 
 on the books of the corporation, fifty shares of the stock in the New- 
 York and Erie Railroad Company, by an instrument absolute in its terms ; 
 and at the same time gave to the defendants his note for $2000 borrowed 
 money, and in the note it was stated that the stock was deposited as col- 
 lateral security, it was held that the transaction was a pledge, and not a 
 mortgage of the stock.' The pledgee holds the property in trust as a 
 security ; i^ therefore, he sells it without authority, it is a violation of 
 his trust, although he afterwards purchases other articles of the same 
 kind and value, to be returned to the pledgor ; unless.there is some agree- 
 ment, either express or implied, between the parties, that he shall be 
 permitted to do so.* 
 
 The difference between a pledge and a hypothecation is, that, in the 
 former, possession in the pledgee is essential, and, in the latter, the trans- 
 action is valid, though the possession remains in the original owner. It 
 is defined by Story to be a pledge without possession by the pledgee.* 
 And he says, there are few cases, in our law, where an hypothecation, in 
 the strict sense of the Roman law, exists. What is called an hypothecar 
 tion of shares in incorporated companies, is usually effected by delivery 
 of the certificate of the company for the shares given to the borrower, 
 with a power of attorney to the lender to make the actual transfer on 
 the books of the company. The actual transfer is frequently postponed 
 or omitted, but the transfer, or at least notice to the company, is deemed 
 requisite to the complete efiBcieney of the security.* But the cases already 
 cited show that this security is a pledge, and subject to all the incidents 
 of that security. 
 
 SECTION HL 
 
 OF ASSIGNMENTS, LEGAL AND EQUITABLE. 
 
 Both real and personal property, as well as choses in action, may be, 
 and often are, assigned in special trust. The most usual object of such 
 assignments is the distribution of the property of the assignor among 
 
 ' Wilson V. Little, 2 Oomst. 443. Reeves ' Dykers v. Allen, 7 Hill, 498. 
 V. Capper, 6 Bing. N. 0. 142. Allen v. » Story on Bailment, § 288. 
 Dykers, 3 Hill, 593. 7 id. 498 ; and see « 2 Kent's Com. 577, note. 
 Huntington v. Mather, 2 Barb. S. 0. R. 
 538, contra. 
 
460 Trusts. [Gh. T. 
 
 his creditors, towards the payment and satlsiaction of their debts. This 
 species of trust is still upheld, by the Revised Statutes, even with respect 
 to the real estate of the assignor ; and it remains, as at common law, 
 with respect to personal property.' Under what circumstances assign- 
 ments may be fraudulent as against creditors, and in what manner courts 
 of equity relieve against them for that cause, have been considered under 
 the head of fraud.^ We propose now to consider the subject under a dif- 
 ferent aspect, in reference more particularly to what may be assigned, 
 and to the execution of the trusts upon which they are made. 
 
 At common law, the assignment of a chose in action could not be made 
 so as to vest in the assignee a right of action in his own name.' But 
 in England, the king, by his prerogative, was an exception to this rule, 
 and his assignee might sue in his own name ; and in this country the 
 same prerogative is enjoyed by the government, as succeeding to all the 
 rights of the British crown.' But courts of equity always protected 
 the rights of assignees, and courts of law, in modem times, also take 
 notice of, and protect such rights against all persons having either express 
 or implied notice of the assignment.^ A knowledge of such facts and 
 circumstances as are sufficient to put the party on inquiry is equivalent 
 to actual notice ; and he who disregards them, acts contrary to good faith, 
 and at his peril.^4P The general rule before the code was, that all choses 
 in action might be assigned in equity, and the assignee had an equitable 
 right which he might in a court of law enforce in the name of the assignor.' 
 But now, by the code, the rule in this state is the same in all courts, and 
 every action arising on contract is required to be prosecuted in the name 
 of the real party in interest, except actions by executors, administratorsj 
 and trustees of an express trust, who arc authorized by statute to sue, 
 without joining with them the persons for whose benefit the action is pros- 
 ecuted." But the principles which regulate assignments are the same as 
 before. The code operates merely on the form of the remedy. 
 
 As a general rule, therefore, all choses in action, such as bonds, mort- 
 gages, notes, judgments, debts, contracts, agreements, as well relating 
 to personal as real estate, are assignable, and will pass to the assignee 
 
 ' 1 K. 8. 728, § 55, subd. 1. Kane v. ten v. Graves, 4 J. R. 403. Littlefield v. 
 
 Gott, 24 Wend. 661, per Oowen, J. Storey, 8 id. 425. Anderson v. Van Allen, 
 
 ' Ante, p. 241. 12 id. 343. Briggs v. Dorr, 19 id. 96. 
 
 " Bacon's Abr. tit. Assignment A, Wilklns v. Batterman, 4 Barb. 47. 
 
 and notes. ° Id. 
 
 • U. States y. Buford, 3 Peters, 30. ' Wheeler v. Wheeler, 9 Oowen, 84, 
 
 ' Johnson v. Bloodgood, 1 J. 0. 61. and preceding cases. 
 
 Warden v. Eden, 2 id. 121. Van Ve«h- • Code, §§ 111, 118. 
 
Ch. 7.] Legal Assignments. 461 
 
 a right of action, in the name of the assignee, by force of the code, 
 against all parties liable to any action.' But there are some exceptions to the 
 above rule, even in equity. The beneficial interest of a cestui que trust 
 in rents and profits is, in certain cases, inalienable by statute.'' And pen- 
 sions granted by the general government for revolutionary services are 
 forbidden to be sold, assigned or mortgaged.' In one case it was said by 
 a learned judge, that a simple expectancy in which the assignor has no 
 interest, and which is unpurchasable, can neither be assigned, nor would 
 a contract for future assignment be valid. A mere jus precarium; a 
 right resting in curtesy, is no more a matter of bargain than the virtue 
 from which it emanates.^ But the extra allowance promised by the legis- 
 lature to canal contractors, by the act of 1836,^ no the completion of their 
 jobs, in consequence of the rise in prices and the value of forage subse- 
 quent to entering into their contracts, was held by the court of errors, by 
 the equity of the statute, to belong to the assignee of the contract by 
 whom the work was done.' The allowance was not esteemed a mere gra- 
 tuity, but a just and equitable remuneration, made necessary by circum- 
 stances not within the contemplation of either of the parties when the 
 contract was made. But a bare possibility of an uncertain interest is 
 not assignable.'' 
 
 Under the provisions of the Revised Statutes, a mere possibility coupled 
 with an interest is capable of being conveyed or assigned at law, as well 
 as in equity, in the same manner as an estate or interest in possession.' 
 And, independently of the Revised Statutes, any interest whatever in per- 
 sonal property, or a mere possibility coupled with an interest in real estate, 
 was assignable in equity.' 
 
 A life estate charged with the suppoft of infants is alienable, subject 
 to the charge." A claim against a foreign government for an illegal cap- 
 ture is assignable in equity." An assignment of the services of an in- 
 dented apprentice, though not binding on him, is good between the 
 parties.'* 
 
 ' Bac. Abr. tit. Assignment. ' Touchstone, 239. Mitchell v. Wins- 
 
 ' 1 R. S. 730, § 63. Hone v. Van Schaick, low, 3 Story's E. 630. 
 
 7 Paige, 221, 234. Aff. 20 "Wend. 564. » 1 E. S. 725, § 35. Lawrence v. Bay- 
 
 = Laws of TJ. S. vol. 6, 274, § 4, act of ard, 7 Paige, 76. 
 
 1818. ° Id. Whitfield v. Faucet, 1 Ves. sen. 
 
 * Munsell v. Lewis, 4 Hill, 642, per 391. "Wright v. "Wright, id. 411. 
 
 Oowen, J. " Emmons v. Cairn, 3 Barb. S. C. E. 
 
 ' Laws of 1836, p. 201. 243. 
 
 " Munsell v. Lewis, 2 Denio, 224, over- " Couch v. Delaplain, 2 Comst. 397. 
 
 ruling S. C. in 4 Hill, 642. Milnor v. Metz, 16 Peters, 221. 
 
 " Guilderland v. Knox, 5 Cowen, 863. 
 
462 Trusts. [Ch. 7. 
 
 The provisions of the code as to bringing the action in the name of the 
 party in interest, when he is the assignee of a chose in action, extends 
 only to the assignment of things in action arising out of contract.^ If the 
 cause of action originate in tort, the former rule prevails ; and though 
 equity will recognize and protect the rights of the assignee, yet the action 
 must be brought in the name of the assignor. And hence a right of action 
 for the conversion of personal property,^ or for a personal tort,' is not as- 
 signable, so as to give the assignee a right of action in his own name. But 
 though, in these cases, the assignee cannot sue in his own name by virtue 
 of the assignment, yet, if the party make an express promise to pay the 
 assignee, it seems the latter can maintain an action upon that promise.'* 
 
 With regard to the instrument by which an assignment may be made, 
 it has been held that delivery, for a valuable consideration, of a chose in 
 action, without writing, is a sufficient transfer.' And thus a judgment of 
 a court of record, a bond or covenant, and a mortgage of real estate, may 
 all be assigned orally, by mere delivery, without any instrument in writ- 
 ing declaring the transfer.^ The assignment of a debt necessarily car- 
 ries with it, as an incident, a collateral mortgage," by which it is secured. 
 So an assignment of a judgment necessarily carries with it the debt, and 
 any mortgage given to secure it ; and if the assignment be of a part of 
 the debt, or judgment, it carries along with it a similar part of the mort- 
 gage.^ An assignment of shares of stock in an incorporated company 
 passes the growing profits of such shares.' 
 
 As a specialty may thus be assigned by parol, it is scarcely necessary 
 to add that a written assignment, without seal, is equally effective to 
 pass the interest as an assignment under seal." The foregoing rules 
 apply also to the assignment of chattel mortgages.*' 
 
 There are eases in which something short of an actual transfer and 
 delivery of a chose in action, will operate as an equitable assignment of 
 the whole, or of some part of it. No particular form of words is neces- 
 
 ' Code, § 111. " Ford v. Stuart, 19 J. E. 842. Briggs 
 
 ' Gardner v. Adams, 12 Wend. 297. v. Dorr, id. 95. Dawaon v. Cole, 16 id. 
 
 ° The People v. Tioga Com. Pleas, 19 51. Eunyon v. Merserean, 11 id. 534. 
 
 Wend. 78. ' Jackson v. Blodgett, 5 Cowen, 202. 
 
 ' Oompton V. Jones, 4 Oowen, 78. De " Pattison v. Hull, 9 id. 747. 
 Forest v. Frary, 6 id, 151. Dubois v. • Kane v. Bloodgood, 7 J. Oh. R. 108. 
 Doubleday, 9 Wend. 317. Jessel v. Will. '» Ford v. Stuart, 19 J. R. 95. Daw- 
 Ins. Co. 8 Hill, 88. son v. Coles, 16 id. 61. 
 
 ' Green v. Hart, 1 J. R. 580. Oanfield " Langdon v. Buel, 6 Wend. 80. 
 V. Munger, 12 id. 846. Prescot v. Hull, 
 17 id. 284. 
 
Ch, 7.] EciuiTABLE Assignments. 463 
 
 sary for this purpose. Any language which indicates a clear intention 
 to appropriate the fund, will eflectuate the object.' Thus it has been 
 held, that an order to pay a debt out of a particular fund belonging to 
 the debtor is an equitable assignment of the fund pro tanto, and gives 
 the creditor who receives the order a specific equitable lien upon such 
 fund.* This was in conformity to the doctrine of Lord Thurlow, who 
 held the same way in a case in which the order had not been accepted. 
 His lordship thought that the giving the order, though by a man in 
 &iling circumstances and for a forgone consideration, worked a transfer 
 of the fund pro tanto? In like manner, the order of a landlord on his 
 tenant, directing him to pay to the person therein named, the aqcruing 
 rents on certain leases, and which order is founded on a good considera- 
 tion, is an equitable assignment of the rent, and the tenant is bound, on 
 receiving notice of it, to pay the rent accordingly, whether he accepted 
 the order or not.* So a covenant to pay over one half of any recovery 
 that shall be had against an insurance company, in an action for a loss of 
 a cargo by illegal capture, carries one half of the demand, and extends to 
 a compensation for the capture awarded under a treaty .' , 
 
 There is a distinction between an order drawn on a general or particu- 
 lar fund for the whole of it, and an order drawn only for a part. In the 
 former case it amounts ts an equitable assignment of the fund, after 
 notice to the drawee, and in the latter it does not, unless the drawee con- 
 sent to the appropriation by the acceptance of the draft; or an obliga- 
 tion to accept may be fairly implied from the custom of trade, or the 
 course of business between the parties, as a part of their contract.^ The 
 reason is, that a creditor shall not be permitted to split up a single cause 
 of action into many actions, without the assent of his debtor, since it may 
 subject him to many embarrassments and responsibilities not contem- 
 plated in his original contract.'' 
 
 This question did not arise in Pattison v. Hull, {supra,) because the bill 
 was taken as confessed against the mortgagors, and they must be pre- 
 sumed to have acquiesced in the appropriation of the fund by the mortr 
 gagee ; and, moreover, as all the persons interested in the fund were par- 
 
 "Dickerson v. Philips, 1 Barb. S. 0. E- ' Wood v. Young, 5 Wend. 620. 
 
 458, ' Mandeville v. Welch, 5 Wheat. 286. 
 
 " Bradley v. Root, 6 Paige, 632. Tiernan v. Jackson, 5 Peters, 580. Oow- 
 
 » Yeates v. Groves, 1 Ves. jr. 280. perthwaite v. Sheffield, 1 Sand. S. 0. K. 
 
 * Morton v. Naylor, 1 Hill, 683. Ex 450. 
 
 parte Alderson,, 1 Mad. R. 39. Lett v. ' Id. 
 Morris, 4 Sim. 607. Olark v. Mauran, 
 8 Paige, 873; 
 
464 Trusts. [Oh. T. 
 
 ties to the billj it was immaterial to the mortgagors whether the money, 
 was paid to the mortgagees or to their assigns. Nor did it arise in Brad- 
 ley V. Root, (supra,) because the assignment was of the whole contract then 
 remaining unexecuted, which consequently carried with it a specific lien 
 upon the moneys thereafter to be received for the performance of the con- 
 tract. Nor did it arise in Yeates v. Groves, (supra,) before Lord Thurlow, 
 for in that case the debtor assented to an assignment of a part of the de- 
 mand. And in Morton v. Naylor, (supra,) there was a parol acceptance by 
 the tenant of the order, which amounted to his assent to a partial appro ■ 
 priation of the rent. The distinction may, indeed, be said to be recog- 
 nized by the New- York cases, and it certainly is not repudiated by them.' 
 
 In order to constitute an equitable assignment, by a debtor to his cred- 
 itor, of a sum due to the debtor from a third person, there must not only 
 be an agreement to pay the creditor out of the particular fund, but an 
 appropriation of the fund, either by giving an order upon it, or by trans- 
 ferring it in such a manner that the holder is authorized to pay it to the 
 creditor directly, without the further -intervention of the debtor,* 
 
 Upon this principle the court of errors held that a covenant to pay cer- 
 tain debts out of a designated fund, when the same should be received by 
 the debtor, did not give the creditor a specific lien on the fund ; but was 
 a mere personal covenant.' The ground of the decision was that there 
 was no assignment, no mortgage or pledge, no order or other specific ap- 
 propriation of the funds, but a mere covenant to pay them over on their 
 being obtained by the covenantor.* This created merely a personal ob- 
 ligation and not a specific lien or appropriation. And though the correct- 
 ness of the doctrine was questioned by the chancellor in subsequent cases,' 
 yet it has not been overruled, but in truth approved in a later case, and 
 is believed to be in strict conformity to the current of authorities.* 
 
 If there be no provision in an assignment for the benefit of creditors, 
 that the latter can take no benefit under it, unless they signify their 
 assent by executing it as parties, it will be sufficient if they have notice 
 of the trust in their favor, and assent to it. And if no affirmative act be 
 exacted from them, their assent will be presumed.' Where an express 
 
 ' Oowperthwaite v. Sheffield, 1 Sand. ' Per Oowen, in 18 Wend. 834. Wil- 
 
 S. 0. R. 450, 451. Peyton v. Hallett, 1 liams v. Everett., 14 East, 582, 595, 696. 
 
 Gaines' E. 868. M'Menomy v. Ferrers, ' Ha wley v. Ross, 7 Paige, 103. Rich. 
 
 3 J. R. 72. ardson v. Rust, 9 id. 243. 
 
 ' Hoyt V. Story, 3 Barb. S. 0. R. 262. ° Hoyt v. Story, 3 Barb. S. 0. R. 265. 
 
 Burn V. Oarvilho, 4 Myl. & Craig, 690. ' Garrard v. Lauderdale, SSim. 1. Eg- 
 
 Maloolm v. Soott, 3 Hare, 89. bert v. Wood, 3 Paige, 517. New Eng- 
 
 = Rogers v. Hosaok, 18 Wend. 319; re- land Bank v. Lewis, 8 Pick. 113. Nicoll 
 
 \ersing S. 0., 6 Paige, 415. v. Mumford, 4 J. Oh, R. 622. 
 
oil. 7-] Delivery of Assignments. 465 
 
 trust is created for the benefit of creditors, without any authority from 
 the trustee to give a preference to any, it is, both at law and in equity, 
 a trust for each of the creditors ratably. And even in the case of an 
 implied trust, where one of the creditors comes into a court of equity to 
 enforce the performance of the trust, except in those cases where he has 
 acquired a specific lien by his superior vigilance, or where he is entitled 
 to a legal preference, the court will act upon its favorite maxim that equal- 
 ity is equity.' Where the assignment is to a trustee for the benefit of 
 creditors, the assent of the latter is not in general necessary to the valid- 
 ity of the assigUment. The legal estate vests in the trustee, and equity 
 will compel the execution of the trust for the benefit of the creditors, 
 though they be not at the time assenting, and parties to the conveyance.' 
 
 If an assignment be made to a trustee by a debtor, for the benefit of 
 creditors, the title to the assigned property does not vest in the trustee 
 until his acceptance of the trust. If therefore an execution be delivered 
 against the debtor, subsequent to the execution of the assignment, but 
 before its acceptance by the trustee, the execution acquires the prefer- 
 ence.' Delivery of a deed is essential to its validity, and this implies an 
 acceptance by the grantee.' And when the grantee derives no benefit 
 from the deed, but is subjected to a duty, or the performance of a trust, 
 there can be no presumption of his acceptance, as there may be, when its 
 jirovisions are beneficial to him.^ 
 
 ^ A deed may be delivered to a stranger for the grantee named therein, 
 without any special authority from the grantee to receive it for him. 
 And if the grantee assents to it afterwards, the deed is valid from the 
 time of the original delivery. Omnis ratihabitio retrotrahitur et man- 
 data priori cequiparatur. (Broom's Max. 676.) It is upon this princi- 
 ple that it has frequently been held, that a delivery of a deed to the 
 proper recording officer to be recorded, if intended to vest the title imme- 
 diately or absolutely in the grantee, either as a trustee or otherwise, is 
 a valid delivery ; if not afterwards dissented from by the grantee.* 
 
 An assignment for the benefit of preferred creditors is valid, though 
 their assent is not given at the time of its execution, if they subse- 
 quently assent in terms, or by actually receive a benefit under it. And 
 it makes no difference whether the assignment be to a trustee for 
 
 » Egbert v. 'Wood, 3 Paige, 520. * Jackson v. Bodle, 20 J. E. 184. 
 
 ° NicoU V. Mumford, 4 J. Oh. R. 529. • The Lady Superior v. M'Namara, 8 
 
 ' Crosby v. Hillyer, 24 Wend. 280. Barb. Ch. E. 378. Tompkins v. Wheeler, 
 
 Jackson v. Phipps, 12 J. E. 418. 16 Peters' E. 106, 119. Ingram v. Porter, 
 
 ' Id. 4 ITOord's E. 198. 
 
 Eq. Jub. 69 
 
465 , Tritsts. [CL. T, 
 
 the benefit of the creditora, or be made directly to the latter. Their 
 acceptaace of the grant will in general be presumed from the beneficial 
 nature of it.' The assignment will be deemed to take efiect from the' 
 moment of its execution ; and if there be more than one trustee, the prop- 
 erty will vest in such as assent to the assignment, and the object of the 
 assignment will not be defeated because a portion of the trustees refuse 
 their assent. 
 
 That a debtor in failing circumstances may, by an assignment of his 
 property in trust, give preference to one class of creditors ov?r another, 
 is not doubted at this day.' If he honestly devotes all his property t» 
 the payment of his debts, no creditor has a right to complain.' The 
 trusts contained in this class of assignments are the proper objects of 
 equity jurisdiction. If, indeed, they are impeached as fraudulent, a 
 court of law can, in an action between a purchaser at a sheriff's sale on 
 an execution against the fraudulent assignor, and the trustee or other 
 party 'claiming rander the assignment, often test the fairness and validity 
 of the instrument. But though courts of law, where the questions can 
 be properly presented, have a concurrent jurisdiction with courts of 
 equity in all matters of fraud, yet the nature of the, questions arising 
 on the trusts, in such assignments, often places the remedy beyond the 
 reach of those courts. The relief sought is not necessarily to set aside 
 the assignment as fraudulent and void, though it is often invoked for 
 that purpose. The aid of a court of equity is sometimes needed to dis- 
 tribute the fund among the various creditors provided .for under the 
 assignment ; to determine questions of priority and lien ; to adjust con- 
 flicting equities and claims of different creditors ; to marshal the various 
 funds which are confided to the trustee, so that a creditor having a par- 
 ticular fund as security for payment, may be compelled to resort to it, 
 before taking the property on which alone the other creditors can rely j 
 to protect the rights of sureties, and direct the proper application of col- 
 lateral securities possessed by any of the creditors. The assignee or 
 trustee takes the assigned property subject to all the equities of the 
 original debtor.' If it be a judgment, he takes it subject to the equities 
 of the judgment debtor.* And thus, an assignment by one, of a debt pre- 
 viously assigned by him, cannot pass any title, though the debtor may 
 
 ' Brooks v.Marbury, 11 "Wheat. 78; S. 4 J. Oh. E. 552. Winteringhamv. Lafoy, 
 
 0., 7 id. 556. Tompkina v. "Wheeler, 16 7 Oowen, 736. Murray v. Eiggs, 15 J. E. 
 
 Pet. 119. 571. Goodrioh v. Downs, 6 Hill, 438. 
 
 " Hendricks v. Eobinson, 2 J. Oh. E. ' Murray v. Lylburn, 2 J. Oh. E. 441. 
 288; S. 0., 17J.E. 538. Brooks v. Mar- ■" Douglass v, "White, 3 Barb. Cfe. K, 
 
 bury, 11 "Wheat, 78. Nicoll v. Mumford, 621. 
 
Ch. 7.] Fraudulent Assignmeitts. 46T 
 
 ia-wfully pay to the second assignee, in default of notice from the first.' 
 These considerations give rise also to numerous conflicting equities which 
 ■cannot be readily or conviently adjusted in a court of law. 
 
 Although the subject of fraudulent assignments and of the marshaling 
 of securities has already been considered, under other heads, it may not 
 be out of place to notice, in the present connection, the manner in which 
 the subject is dealt with, in cases of fraud, as between the trustee and 
 the creditors of the assignor. If the trust be one which a court of law 
 «annot sanction, the trustee cannot sustain an action against a judgment 
 and execution creditor of the assignor, or one claiming under such execu- 
 tion sale. And neither a court of law, or a court of ecjuity, can sustain an 
 assignment, which shows on its face that it was made, either in whole or 
 in part, in trust for the use of the assignor. Such assignment is void 
 by the statute and at common iaw, as well as an assignment made 
 with an express intent to defraud creditors." If the fraud appear on the 
 face of the assignment, the question as to its validity can as realdily be 
 raised and decided in a court of law, as in a court of equity. Thus, when 
 a. debtor in failing circumstances assigned nearly all his property to his 
 €on, in trust to sell the same, and apply the proceeds towards paying 
 four of his creditors, making no provision for the rest, and directing that 
 the surplus, if any, after paying the four creditors, should be returned to 
 his assignor, his heirs and assigns, the assignment was held to be void 
 on its face, for the reason that the surplus was made a trust for the use 
 of the assignor ; and the property having been taken by the defendant 
 as a deputy sheriff, by virtue of an execution against the assignor, and in 
 favor of a judgment creditor of the latter, not provided for in the assign- 
 ment, it was held further, that the assignee could not maintain an action 
 at law against the deputy, in consequence of the invalidity of the trust, 
 and that he was rightfully nonsuited for that reason.' As was well said, 
 on that occasion, the courts have found great diflSculty in upholding 
 assignments which g^ve a preference among creditors, and such transf&rs 
 have only been allowed to stand when the debtor makes an unconditional 
 surrender of his effects for the benefit of those to whom they rightfully be- 
 long.* To say that an insolvent debtor can put any portion of his prop- 
 erty, not exempt by law, beyond the reach of creditors, is a monstrous 
 proposition. In the language of the chief justice, in Mackie v. Cairns, 
 
 • Muir v. Schenek, 3 Hill, 228. Hop- * Hyslop v. Clark, 14 J. E. 458. Seav- 
 
 kins V. Banks, 7 Cowen, 650. ing v. Brinkerhoff, 5 J. Ch. E. 329. Aus- 
 
 = 2 E. S. 135, § 1. Id. 137, §1. Good- tin v. Bell, 20 J. E. 442. Mackie v. Oairna, 
 
 rich V. Downs, 6 Hill, 438. ^ 5 Cowen, 647. Grover v. Wakeman, 11 
 
 ' Goodrich v. Downs, 6 Hill, 438. Vend. 187. 
 
468 Trusts, [Ch. 7 
 
 (supra,) " it oiFends the moral sense ; it shocks the conscience and pro- 
 duces an exclamation. It is directly against the statute and cannot stand 
 before it." 
 
 In the case of Goodrich v. Downs, the question arose in a court of law, 
 in a case where the fraud was apparent in the trust deed. The right 
 of a court of law to deal with the question would have been the same, 
 had the fraudulent purpose of the assignment not appeared on the face 
 of the instrument, but been shown by averments supported by extrinsic 
 facts. Thus the continuance of the possession of the assignor, or mort- 
 gagor, after the execution of the instrument, and various acts of owner- 
 ship subsequently asserted by the assignor, afford evidence to a jury, 
 from which fraud may be inferred, as well in a court of law as in a court 
 of equity." However clear and conclusive the evidence of fraud may be, 
 in cases of this description, it must, it seems, in. a court of law, be left 
 as a question of fact to the jury ; but if the jury comes to a wrong con- 
 clusion, a new trial must be granted as in other cases.^ 
 
 But though the same relief can, in many cases, of fraudulent assign- 
 ments and trusts, be had in a court of law as in a court of equity, yet in 
 all cases courts of equity have concurrent jurisdiction, and in numerous 
 instances can afford more ample and complete relief than can be afforded 
 by an action at law. Thus, where the assigned property consists, in 
 whole or in part, of debts due or to grow due to the assignor, or of choses 
 in action not liable to an execution at law ; where it consists of goods, 
 wares and merchandise, which the trustee at once sells from time to time, 
 and converts into money, and an account becomes necessary, or an in- 
 junction to restrain a misapplication of the funds, it is obvious that an 
 action in equity is the most appropriate remedy. The legislative provis- 
 ion in favor of judgment creditors who have exhausted their remedies 
 at. law, to discover and reach the property of the judgment debtor, 
 whether concealed by him, or held in trust for him, was dictated by the 
 necessity of a more perfect remedy than can be afforded by an ordinary 
 action at law.' 
 
 The cases in which equity can afford the best relief are illustrated by 
 an important case in which it was granted by the chancellor, and his de- 
 cree was aifirmed by the court of errors.* In that case the bill was filed 
 
 ' Gardner v. Adams, 12 "Wend. 29T. » 2 R. 8. 187, § 4. Vance v. Philips, 8 
 
 Jackson v. Timmerman, 12 id. 299. Ham- Hill, 433. 
 
 ilton V. Kussell, 1 Oranch, 810. Twyne'a ' 2 R. S. 173, § 88. 
 
 case, 8 Ooke, 80. Bissell v. Hopkins, 3 * Stodard v. Butler, 20 "Wend. 507. 
 Oowen, 160. 
 
Oh. 7.] r Fraudulent Assignments. 469 
 
 by judgment creditors of the assignors, whose execution at law had been 
 returned wholly unsatisfied, to set aside an assignment which had been 
 made by the judgment debtor, pending the action at law, to two of their 
 creditors, for an^ towards the payment and satisfaction of a debt of 
 about $675 due to them. The goods assigned consisted of many parcels 
 of small value separately, and of notes and accounts, against numerous 
 persons, and principally for small amounts. The aggregate value of the 
 property assigned was equal to twice the amount of the debt of the 
 assignee. The goods, notes and accounts were left in the possession of 
 the assignor, who was authorized by the assignees, as their agent, to sell 
 and dispose of the goods for cash or good security, and to collect the 
 amounts, and was to be paid a fair compensation for his services. The 
 assignor had no visible means of supporting himself and family other 
 than his business as a merchant, and after the assignment continued in 
 his store, trading as usual, until the goods were removed to another 
 place, and no difference was observed in the management of the store 
 after the assignment from what had been usual previous to that event. 
 The chancellor decreed the assignment to be fraudulent and void as 
 against the creditors of the assignor, and set it aside ; 1st, because there 
 was no change of possession of the assigned property ; 2d, because the 
 amount of it greatly exceeded the amount of the debt; 3d, because the 
 form of the assignment indicated that the assignees were to hold the 
 property absolutely, though it exceeded the amount of their debt, and if 
 it fell short, had their remedy unimpaired against the assignor for any 
 deficiency, thus leaving it fairly to be presumed that some secret or im- 
 plied understanding existed between the parties to the transaction, to 
 keep the surplus from other creditors for the benefit of the assignor him- 
 self. The decree of the chancellor was affirmed by an equal division of the 
 court of errors. As those who differed from the chancellor did so, to a 
 great extent, on questions of fact, it is unnecessary in this place to can- 
 vass their reasons in other respects. Those questions of fact would, in 
 a court of law, have had to be submitted to a jury ; but in a court of 
 equity, where no issue for a jury trial had been asked by either party, 
 were necessarily decided by the .court. Though in this case, had the 
 plaintiff's execution, instead of being returned unsatisfied, been levied 
 on the goods in the store and in the possession of the assignor, the valid- 
 ity of the assignment could have been tested in an action at law against 
 the sheriff at the suit of the assignees, yet the relief afforded would only 
 have extended to the property seized ; and have left a resort to equity 
 still necessary to obtain an account of the sales, and the proceeds of the 
 notes and accounts. It was, therefore, a proper case for the interposi- 
 
470 Trusts. [CL 7. 
 
 tion of a court of equity, which could administer the remedy in a more 
 effective and comprehensive manner than a court of law. 
 
 Numerous other cases may be cited, showing in what manner a court 
 of equity aids a creditor in setting aside a fraudulent assignment, and in 
 discharging property from the incumbrances of a trust. It is a part of 
 its legitimate office to remove obstructions to the free operation of the 
 ordinary course of justice, and to disperse the clouds which the cunning 
 devices of the fraudulent may gather around the title to property.' 
 
 But the assistance of equity is by no means confined to creditors seek- 
 ing to set aside an assignment as fraudulent. It is often indispensable 
 that its aid should be granted to creditors claiming under the assignment, 
 to compel the execution of the trust, to supply the failure of a trustee, or 
 to restrain a threatened breach of trust prejudicial to those interested in 
 the trust funds. 
 
 We may conceive of cases in which the refusal of a trustee to act would 
 subject him to an action at law ; but that is not the usual nor the appro- 
 priate remedy. In general, it may be said, that if a trustee becomes 
 disqualified to act, as if a f em/me trustee marry ;" or if the trustee mis- 
 behave himself in any way, as if he improperly become a purchaser of 
 the trust fund \^ or if he abscond on a charge of forgery ;* or if he refuse 
 to execute the trust, when reasonably required to do so by the cestui que 
 trust ;5 in these and the like cases, the cestui que trust may have the 
 old trustee removed, and a new trustee appointed in his room. This 
 power of the court existed before the Revised Statutes, which are in a 
 great measure declaratory, in this respect, of the then existing law.' In 
 a recent case, when a trustee in a mortgage, given by a railroad com- 
 pany, to secure the payment of certain of its bonds, as they should become 
 due and payable, suffered a portion thereof to remain unpaid after matu- 
 rity, and neglected and refused to take possession of the mortgaged prop- 
 erty, and to execute the trust by enforcing the mortgage, on the request 
 of the bond holders, without any sufficient excuse for such neglect and 
 refusal, it was held to be a proper case for the removal of the trustee.' 
 As the court will not permit a trust to fail for the want of a trustee to 
 
 ' Petit v. Shepherd, B Paige, 493. Ead- • In the matter of the Mechanics' Bank, 
 
 cliff V. Rowley, 2 Barb. Ch. E. 23. 2 Barb. S, 0, R. 446. 
 
 " Lake v. De Lambert, 4 Ves. 592. " De Peyster v. Clendining, 8 Paige, 
 
 " Ex parte Reynolds, 5 Ves. 707. 295. 
 
 ' Millard v. Eyre, 2 Ves. jr. 94. ' 2 Barb. S. 0. R. 446. 
 
Ch. 7.] Fraudulent Assignments. 471 
 
 execute it, so when all the trustees refuse to act the trust devolves upon 
 the court, and a new trustee will be appointed if necessary.' 
 
 Although the removal of the trustee and the appointment of another, 
 for the refusal of the former to perform his duty when required, affords 
 in general an ample remedy, yet it is conceived that a trustee may be re- 
 quired by the order or decree of a court of equity to execute a duty 
 required by the nature of the trust. Though at law the legal interest in 
 the estate, whether real or personal, is in the trustees, and they are en- 
 titled to exercise all the powers of disposition incident to the legal owner- 
 ship, yet in equity their legal powers are regarded as under the control, 
 and to be exercised in subserviency to the interest of the cestui que 
 trust, according to whose direction it is their duty to convey and dispose 
 of the trust property. In general, a valid trust in its creation vests the 
 whole estate in the trustees in law and in equity, subject only to the 
 execution of the trust ; and the person for whose benefit the trust is cre- 
 ated takes no estate or interest in the lands, but may enforce the per- 
 formance of the trust in equity.^ And when the trust is of personal 
 estate, and so not within the statute, the trustee is bound to convey the 
 property according to the direction of the cestui que trust ; and if he fails 
 to do so, he will be chargeable with costs, in an action to compel such 
 conveyance.' 
 
 When the trustee sets up unfounded objections to the performance 
 of his trust, and renders an application to the court necessary, he will 
 be subjected to the costs of the litigation.* 
 
 As with us, the estate of the trustee ceases when the purposes for which 
 an express trust was created has ceased ; and as a trust does not, on 
 the death of a surviving trustee, descend to his heirs, but, if then unexe- 
 cuted, vests in the court of chancery with all the powers and duties of 
 the original trustee, it is obvious that the occasions for requiring a con- 
 Teyance, from the original trustee to a new trustee, are less frequent here 
 than in England ; but whenever such conveyance is necessary, it may be 
 decreed. 
 
 There are cases where it is not necessary, in order to obtain relief, 
 either to apply for the removal of a trustee for misbehavior, or for the 
 appointment of another. If the trustee has parted with the trust fund 
 fraudulently, the cestui que trust may, at his election, either proceed 
 against the trustee alone for satisfaction, or may join tha fraudulent 
 
 ' 1 R. S. 730, § 70. » Penfold v. Bouch, 4 Hare, 271. 
 
 " 1 B. S. 729㤠60. ' WiUis v. Eiscox, 4 Myl. & Or. 197. 
 
472 Trusts. [Ch. 7. 
 
 assignee in the same action.* In such a case, the fraudulent assignee of 
 the trustee is treated as the trustee for the purpose of the remedy. 
 V As the cestui que trust may compel the trustee to perform his duty, 
 or remove him for his misconduct, so, on the other hand, the trustee may 
 be restrained by an injunction from doing an act not warranted by the 
 instrument creating the trust. The principle on which the court acts is, 
 that a trustee shall not be permitted to use the powers which the trust 
 may confer upon him at law, except for the legitimate purposes of the 
 trust.'' 
 
 No assignment for the benefit of creditors will be upheld which is 
 made in contravention of the statute, or public policy. Hence, an as- 
 signment authorizing the assignee to lease or mortgage the assigned 
 property for the benefit of creditors is invalid, the statute only author- 
 izing such an assignment to sell lands for the benefit of creditors.^ Nor 
 can an assignment be upheld which authorizes the assignee to name the 
 successor of the trustee, in case the trastee named in the assignment 
 wishes to resign. For such an authority might deprive the court of the 
 power to remove the trustee and appoint another in his place, upon the 
 application of the Creditors.* Nor can it be upheld if it attempts to re- 
 lease the trustee from the degree of care, in the management of the 
 the trust, which the law devolves upon him.* 
 
 SECTION IV. 
 
 OF MARRIAGE SETTLEMENTS, AND EXECUTORY CONTKACTS FOR SFCH SETLLEMENTS. 
 
 Having thus noticed some of the trusts created by deed, as they occur 
 in mortgages and assignments, we shall proceed, under the same general 
 head, of trusts created by deed, to the doctrine of trusts in reference to 
 marriage settlements, and executory contracts for such settlements. It 
 
 ' Bailey v.Inglee, 2 Paige, 278. Ander- ' 1 R. S. 728, § 65. Plank v. Soher- 
 
 Bon V. "Van Allen, 12 J. R. 343. Shep- merhorn, 3 Barb. Oh. R. 646. 
 
 terd V. M'Evers, 4 J. Oh. R. 186. Gil- * Id. 
 
 Christ V Stevenson, 9 Barb. 9. _ » Litchfield v. White, 8 Seld. 438. Tor 
 
 " Ballis V. Strutt, 1 Hare, 146. Anony- other matters on the subject of frandn- 
 
 mous, 6 Mad. Ch, R. 10. Webb v. Earl lent assignments, see the head Fraud, 
 
 of Shaftesbury, 7 Ves. 487. Robertson Chap. III. 
 V. Bullions, 9 Barb. 64. 
 
CL T.] Marriage Settlements. 473 
 
 is not proposed to discuss, under this head, the relative rights of husband 
 and wife, nor to treat of the wife's equity to a separate provision out of 
 her own property, which the husband cannot reach without the aid of a 
 court of equity. The first belongs to a treatise on the doctrines of the 
 common law : and the last will be more conveniently considered, when 
 treating of the rights of married women, under a subsequent head.' At 
 present, we propose only to notice the subject of marriage settlements, as 
 it affords illustrations of the doctrine of trusts. 
 
 The effect which marriage has, at common law, upon the capacity of 
 the wife to make contracts, and upon her property generally, lead to the 
 introduction of marriage settlements. Their object, especially in the 
 case of a strict settlement, is to provide a life estaEte for the wife, beyond 
 the control of the husband, and to secure a provision for the issue of the 
 marriage, which the parents cannot defeat. A few remarks on the doc- 
 rines of the common law, will show the reasonableness and adaptation 
 of such settlements to the purposes for which they are designed. 
 
 It is a general rule of the common law that a married woman cannot 
 possess personal property, and that every thing of this nature, to which 
 she is entitled at the time of her marriage, and which accrues in her 
 right during its continuance, is vested solely in her husband.' 
 
 The personal property to which a woman may be entitled at the time 
 of the marriage, or during its continuance, consists of three kinds, viz. 
 chattels persmial, choses in action, and chattels real. Marriage ope- 
 rates as an absolute gift to the husband of all the property coming under 
 the description oi personal chattels, which were in the possession of the 
 wife at the time of the marriage, or which come to her during coverture, 
 whether by gift or bequest, or in any other way. The husfcand is also 
 entitled to all the wife's earnings by her skill or labor, and these belong 
 to him absolutely, and they do not survive to her, but go to his execu- 
 tors or administrators.' To the choses in action which belonged to the 
 wife at the marriage, or which accrue to her during coverture, the hus- 
 band is entitled, if he reduces them to possession during his lifetime ; but 
 if he dies without doing so, they become hers by survivorship. But if 
 she dies before he has reduced them to possession, he takes them only 
 as her administrator, and not by survivorship. The chattels real of the 
 wife, such as terms for years, whether legal or equitable interests, be- 
 
 » Post, Ohap. Vm, Sec. 2. . Butler's Notes, 804, to lib. 3, Oo. Lltt. 
 
 ■■' Olano. Eights of Women, 1. Eeeves' 2 Kent's Com. 143. 
 Dom. Eel. 1. Blanchard v. Blood, 2 ' Id. Lovitt v. Eobinson, 7 How. Pr. 
 Barb. S. 0. E. 855. Oo. Litt. 3S1, b. E. 105, 
 
 Eq. Jur. 60 
 
474 TuirsTS. [Ch. 7. 
 
 long to the husband in a qualified manner. He may transfer them in his 
 lifetime, and. thus become entitled absolutely to the avails of them. But 
 he cannot dispose of them by will, and if he fails- to dispose of them while 
 he lives, they survive on his death to his wife. He has the same right to 
 her chattels real which accrue to her during the coverture ;> and he is 
 entitled to the rents and profits of her real estate during the coverture. 
 As a compensation for these benefits, the law throws upon the husband 
 the burden of the wife's debts, which were incurred while she was sole, 
 and makes him liable for them at any time during the continuance of 
 the marriage.^ 
 
 The foregoing are principles of the common law. How far they are 
 modified by the act for the more efiectual protection of the property of 
 married women,' will be considered when we come to treat of the subject 
 of married women hereafter. 
 
 It is obvious, that in the present state of society, there is. sometimes an 
 appearance of hardship in the operation of the strict rules of the com- 
 mon law. The hopes of a parent, which have been centered on the ris- 
 ing fortunes of a daughter and her ofi'spring, may be blasted alike by the 
 unexpected profligacy of her husband, and the unforeseen vicissitudes of 
 business. The accumulations of a life of industry and economy may be 
 thus swept away, and she, who was brought up in affluence, may be 
 doomed, without fault on her part, to a life of penury and want. Paren- 
 tal affection, as well as humanity, will struggle to prevent such a disas- 
 trous result. 
 
 But while the common law will not allow a married woman to possess 
 personal property, independent of her husband, a court of equity will up- 
 hold a trust created for the sole benefit of the wife, and see that it is 
 strictly performed. Property of any description, real or personal, may 
 be limited to the use of a married woman. Such estate may be created 
 either before, or during the marriage. Before marriage it may be created 
 by the woman herself of her own property, or by the intended husband, 
 or a stranger. During the marriage it may be created by the husband,* 
 or by a stranger, but not by the wife ; and if a marriage takes place 
 without a settlement, or an agreement for one, a court of equity cannot 
 relieve against the doctrines of the common law.^ 
 
 The trusts contained in marriage articles, are of two kinds ; trusts 
 executed, and trusts executor]/. Trusts executed are legal estates, and are 
 to be construed by the rules applicable to such estates ; trusts executory 
 
 ' Olanoy, 2, 10. Co. Litt. 351, a. « Ooomes v. EUing, 3 Atk. 679. Clancy, 
 
 ' Bac. Abr. tit. Baron and Feme, 0. 261. ^ 
 
 » L. of 1848, p. 30r. Id. 1849, p. 528. ' Inoledon v. Nortlicote, 3 Atk. 436. 
 
Cli. 7.] Strict Settlements. 475 
 
 are when something is expressly or impliedly required to be done ; and 
 with this latter class of trusts, courts of equity take more liberty, and 
 carry them out according to the intent of the parties.' And there is no 
 difference in the execution of an executory trust, created by a will, and of 
 a covenant in marriage articles.* "While the rule, as laid down in Shel- 
 ley's case,' was in force, the difficulty was to settle when the rule, and 
 when the intention, in opposition to the rule, should prevail. If the rule 
 prevailed, the word heirs was treated as a word of limitation, the whole 
 power of disposition vested in the first taker, and he became owner in fee. If 
 however, the word heirs could be treated as a word of purchase, the first 
 taker would be seised only of an^ estate for life.'' The rule in Shelley's 
 case was the law of this state prior to the Revised Statutes.^ By those 
 statutes it is enacted, that " where a remainder shall be limited to thg 
 heirs, or heirs of the body of a person to whom a life estate, in the same 
 premises, shall be given, the persons who, on the termination of the life 
 estates, shall be the heirs, or heirs of the body of ffuch tenant for life, shall 
 be entitled to take as purchasers, by virtue of the remainder so lim- 
 ited to them.'" The abolition of the rule applies equally to deeds and 
 wills.'' The effect of the rule, as declared by the act, will be, in those 
 cases where the rule in Shelley's case would otherwise have applied, to 
 change estates in fee into contingent remainders, amd to tie up property 
 from alienation during the life of the first taker and the minority of his 
 heirs.' This is precisely the object sought to be obtained by a strict set- 
 tlement. For this purpose, it is not enough to provide a life estate for the 
 wife. One of the principal objects of a strict settlement is to secure a 
 provision for the issue of the marriage, which it shall not be in the power 
 of either parent to defeat. This object was accomplished, formerly, by 
 so framing the articles that the trust could be treated as executory, and 
 thus the intention of the party could govern, and the first taker be de- 
 prived of the power of destroying the contingent remainders.' The 
 change introduced by the Revised Statutes has greatly facilitated the 
 accomplishment of this object. 
 
 ' Bagshaw V. Spencer, 2 Atk. 577, 580. ' Sohoonmaker v. Sheely, 3 Hill, 166 ; 
 
 Eoberts v. Dixwell, 1 id. 607. 1 Fonb. S. 0. in error, 3 Denio, 485. Brant v. 
 
 Eq. B. 1, ch. 6, § 8, note s. "Wood v. Gelston, 2 J. Cas. 384. 
 
 Burnham, 6 Paige, 513 ; affirmed on ap- " 1 E. S. 725, § 28. 
 
 peal, 26 Wend. 9. ' Sohoonmaker v. Sheely, 3 Hill, 168, 
 
 ' The Countess of Lincoln v. The Duke per Bronson, Ch. J. 
 
 of Newcastle, 12 Ves. 227, per Ld. Eldon. » 4 Kent's Com. 232. 
 
 ' 1 Co. 104. » Baskerville v. Baskerville, 2 Atk. 279. 
 
 ♦ See a review of the cases on the rnle 1 Mad. Oh. Pr. 450. 
 in Shelley's case, 4 Kent's Com. 214^-233. 
 
476 Thusts. [Ch. 7. 
 
 At common law, a freehold estate could not be created to commence in 
 possession, at a future day, unless as a remainder ; nor could a remainder 
 be limited on a life estate in a term of years ; nor could a contingent re- 
 mainder of freehold be limited on a term of years ; nor could a fee be 
 limited on a fee on a bontingency defeating the prior estate. But now, 
 by the Revised Statutes, a future estate may be limited to commence in 
 possession, at a future day, either without the intervention of a prece- 
 dent estate, or on the determination, by lapse of time or otherwise, of a 
 precedent estate, created at the same time." And an estate for life 
 may be limited as a remainder on a term of years, if so limited to a per- 
 son in being, at the creation of such estate.* And subject to the rules 
 established by the statute, a freehold estate, as well as a chattel real, may 
 be created, to commence at a future day ; an estate for life may be crea- 
 ted in a term of years, and a remainder limited thereon ; a remainder of 
 a freehold or chattel real, either contingent or vested, may be created 
 expectant on the determination of a term of years ; and a fee may be 
 limited on a fee, upon a contingency, which, if it should occur, must hap- 
 pen within the period prescribed by the act.^ It is further provided, that 
 no expectant estate can be defeated or barred by any alienation, or other 
 act of the owner of the intermediate or precedent estate, nor by any de- 
 struction of such precedent estate by disseisin, forfeiture, surrender, mer- 
 ger, or otherwise;* except by some act or means which the party creating 
 such estate, shall, in the creation thereof, have provided for or authorized ; 
 nor shall an expectant estate, thus liable to be defeated, be on that ground 
 adjudged void in its creation.' And with regard to remainders, it is pro- 
 vided, that no remainder, valid in its creation, shall be defeated by the 
 determination of the precedent estate, before the happening of the con- 
 tingency on which the remainder is limited to take effect ; but should 
 such contingency afterwards happen, the remainder shall take effect, in 
 the same manner, and to the same extent, as if the precedent estate had 
 continued to the same period.* And, in addition, the qualities with re- 
 gard to descent and alienation of expectant estates are the same as those 
 of estates in possession.' The foregoing provisions, and others, which 
 have been already noticed in this chapter, have dispensed with any further 
 need, in this state, of trustees to preserve contingent remainders in mar- 
 riage settlements.' 
 
 ' 1 E. S. 728, § 10. » 1 E. S. 725, § 33. 
 
 ' Id. 724, § 21. • Id. § 84. 
 
 • Id. 724, § 24. ' Id. § 35. 
 
 ♦ Id. 725, § 82. "4 Kent's Com. 247. 
 
Ch. 7.] Marriage Settlements. 477 
 
 A trust to receive the rents and profits of lands, and apply them to the 
 use of any person during the life of such person, or for any shorter term ; 
 and a trust to receive the rents and profits of lands, and to accumulate 
 the same, for the purposes of the act, are expressly provided for." And 
 the better opinion is, that the trust is satisfied when the trustee pays 
 over, in money, to the cestui qui trust, the sums which have accrued and 
 been received by him,* provided the trustee is under no legal disability 
 to receive it. 
 
 The length of time and purpose for which the rents and profits of real 
 estate, for the benefit of one or more persons, may be directed by any 
 will or deed to be accumulated, are prescribed by statute.' 1. If such accu- 
 mulation be directed to commence on the creation of the estate, out of 
 which the rents and profits are to arise, it must be made for the benefit 
 of one or more minors then in being, and terminate at the expiration of 
 their minority ; 2. If such accumulation be directed to commence at any 
 time subsequent to the creation of the estate out of which the rents and 
 profits are to arise, it shall commence within the time permitted by law 
 for the vesting of future estates, and during the minority of the persons 
 for whose benefit it is directed, and shall terminate at the expiration of 
 such minority. A similar rule is adopted with respect to the accumula- 
 tion of the interest of money, the produce of stock, or other income or 
 profits arising from personal property.* 
 
 The absolute ownership of personal property cannot be suspended by 
 any limitation or -condition whatever, for a longer period than during the 
 continuance, and until the termination of not more than two lives in 
 being at the date of the instrument containing such limitation or condi- 
 tion ; or if such instrument be a will, for not more than two lives in 
 being at the death of the testator.' In all other respects, limitations of 
 future or contingent interests in personal property, shall be subject to 
 the rules prescribed by the act in relation to future estates in lands.* 
 
 With regard to the form of words necessary to create a trust for the 
 separate use of a married woman, it is not essential that any particular 
 phraseology be used. It is sufficient if there appears a clear intent to 
 give the property to the wife for her own benefit, and to exclude her 
 husband. When the trust is for the sole benefit of the wife, and the 
 property is vested in a third person as trustee for her, and all moneys 
 
 ' 1 E. S. 728, § 56. =1 R. S. 726, § ST. 
 
 =■ Gott V. Oook, 7Paige, 539, andLeggetfc < Id. 778, § 3. 
 
 V. Perkins, 2 Oomst. 306. Coster v. Lor- ° Id. § 1. 
 
 jUard, 14: Wend. 265, per Savage, eontra. • Id. 773, § 2, Id. 722 et seq. 
 
478 Trusts. [CL T. 
 
 received from the trust property are to be paid to her individually, these 
 circumstances have been held to be equivalent to a provision for payment 
 to the wife upon her separate or individual receipt ; and are, therefore, 
 sufficient to exclude the husband.' 
 
 Thus, where one Colton, being seised in fee of a tract of land in the 
 city of New- York, executed a declaration of trust, declaring that the 
 consideration money which had been paid for such premises was the 
 proper money of the plaintiff, a married woman ; and that the premises 
 had been conveyed to, and were held by him, in trust for her sole use 
 and benefit, separate and apart from her husband, as if she were a feme 
 sole ; and covenanting that he would convey the same in such manner as 
 she should direct. And for the performance of this covenant, Colton 
 bound himself to one Jackson, as trustee, for the separate use of the 
 plaintiff; and afterwards conveyed the premises mentioned in the decla- 
 ration of trust, for the consideration of $24,000, to Kissam, jr., who, to 
 secure a portion of the purchase money, executed to Colton his bond, 
 secured by a mortgage upon the whole premises so conveyed to him, con- 
 ditioned for the payment of $20,000, on or before a certain day named. 
 Afterwards, and before the bond and mortgage became due, Colton as- 
 signed the said bond and mortgage to Kissam, who on the same day ex- 
 ecuted a declaration of trust, declaring that the same had been assigned 
 to him for the sole use and benefit of, and in trust for the plaintiff, 
 and that he would account for, and pay over to her individually, all 
 moneys that might be received thereon. The trust thus declared was 
 held to be clearly valid, within the Revised Statutes, it being a trust of 
 personal property for a purpose not forbidden by law. And that the 
 words sufficiently limited the authority to pay her individually, in exclu- 
 sion of her husband. 
 
 With respect to ante-nuptial agreements, between a feme sole and her 
 intended husband, reserving to herself the power of disposing of her own 
 property, either real or personal, during coverture, it has been held that 
 they will be upheld in equity, without the intervention of a trustee. Thus, 
 where the wife, before marriage, entered into an agreement with her in- 
 tended husband, that she should have power during the coverture to dis- 
 pose of her real estate by will ; and she afterwards devised the whole of 
 her estate to her husband, this was held a valid disposition of her estate in 
 equity ; and the heirs at law of the wife were decreed to convey the legal 
 estate to the devisee.^ In the above case, the question arose between 
 the husband, as devisee of the wife, and the heirs at law of the wife. It 
 
 ' Stuart V. Kissam, 2 Barb. S. 0. E. 498. » Bradisli v. Gibbs, 8 J. Oh. B. 528. 
 
Ch. 7.] Marriage Settlements. 479 
 
 is a general rule, that equity -will execute marriage articles, at the 
 instance of all persons within the influence of the marriage consideration. 
 The husband and wife, and their issue, are all within the influence of 
 that consideration. The husband, in regard to the devise from his wife 
 under the power, was not a volunteer. The marriage articles were treated 
 as founded on the consideration of marriage, which is a good and valuable 
 consideration ; and the provision in the will was founded, it was said, on 
 the same consideration as if it had been a part of the original ante-nuptial 
 -contract. Chancellor Kent, in reviewing the leading cases on the sub- 
 ject, arrived at the conclusion, that it was not indispensable that the 
 estate should have been vested in trustees ; but the mere agreement 
 entered into before marriage with her intended husband, that she should 
 have power to dispose of her real estate during coverture, enabled her 
 to do so.' It has already been shown that equity never suffers a valid 
 trust to fail for the want of a trustee. 
 
 In a subsequent case, the question arose between the wife claiming 
 under an ante-nuptial contract with her husband, and the creditors of the 
 husband by judgment and execution, and the want of a trustee in the 
 settlement was held to be no objection to the validity of the instrument 
 and title of the wife.'* 
 
 It was formerly supposed that the interposition of trustees was, in all 
 cases of this sort, whether before or after marriage, indispensable for the 
 protection of the wife's rights and interests. But though, in strict pro- 
 priety, that should always be done, and it is usually done in regular and 
 well considered settlements ; yet it has been for more than a century 
 established in courts of equity, that whenever real or personal property 
 is given or devised to, or settled upon a married woman, either before or 
 after marriage, for her separate or exclusive use, without the intervention 
 of trustees, the intention of the parties may be effectuated in equity, 
 and the wife's, interest protected against the marital rights and claims of 
 the husband. In such a case the husband will be considered the trustee, 
 whether he was a party to the instrument under which the wife claims, 
 or not.' If they can be upheld against the claims of the husband, they 
 can equally be upheld against his creditors.* 
 
 Although the agreement becomes extinguished at law, by the subse- 
 quent marriage, if there be no trustee, yet equity supports it, and will 
 compel the husband to perform it." 
 
 ' Bradish v. Gibbs, 3 J. Oh. E. 547. = Blancliard v. Blood, 2 Barb. S. 0. K. 
 
 = Strong V. Skinner, 4 Barb. S. 0. E. 864. Story's Eq. § 1380. 
 646. Meth. Epis. Church v. Jaoque, 1 * Strong v. Skinner, 4 Barb. 146. 
 J. Oh. E. 65, 450. " Id. 552. 
 
480 . Trusts. [Oh.?. 
 
 But though a- woman, whilst she remains sole, may dispose of her own 
 property as she sees fit, yet equity requires that she must so exercise this 
 right as not to disappoint the just expectations of her intended husband. 
 If, therefore, a woman, in contemplation of marriage, makes a conveyance 
 of her own estate in trust, for her separate use, without the privity of 
 her intended husband, or does any other act, without such privity, affect- 
 ing her estate, other than upon valuable consideration, such conveyance 
 or act, in case the marriage takes effect, will be relieved against in a court 
 of equity, on the application of the husband, as a fraud upon his marital 
 rights. The ground of interference is the fraud practiced upon the intended 
 husband.' His marital rights are the consideration for the burden^ im- 
 posed upon the husband by the marriage. These rights are of such a 
 character that they may be the subject of fraud.'' 
 
 Where the woman, in contemplation of marriage, and with the assent of 
 her intended husband, made a settlement for her separate use, and the 
 marriage did not take place, but she immediately afterwards married 
 another person, who was not privy to the settlement. Lord Thurlow re- 
 fused relief to the husband.^ In this case, the settlement, at the time it 
 was made, was free from fraud. The marriage, which subsequently took 
 place, occurred but a few days after the intended one was broken off, and 
 upon an acquaintance of a single day. The omission of the wife, under 
 those circumstances, to communicate to the husband the previous settle- 
 ment, was no fraud upon him. 
 
 The case of the Countess of Strathmore v. Bowes, last cited, was 
 peculiar. The countess, pending a treaty of marriage with Mr. Grey, con- 
 veyed all her real and personal estate to trustees, for her sole and sepa- 
 rate use, notwithstanding any future coverture, which settlement was 
 prepared with the approbation of Mr. Grey. A few days after the execu- 
 tion, hearing that Mr. Bowes had fought a duel on her account, with an 
 editor of a newspaper who had traduced her character, she determined to 
 marry him, and the marriage took place the next day. Bowes had no 
 notice of the settlement. There were two bills, an original bill by Lady 
 Strathmore to set aside a deed revoking the settlement, as having been 
 obtained by duress, and a cross-bill, by Mr. Bowes, to set aside the set- 
 tlement as against the right of marriage, and a fraud upon him. Lord 
 Thurlow remarked, that a conveyance by a wife, even a moment before the 
 marriage, is prima facie good ; and becomes bad only, upon the imputa- 
 tion of fraud. " If a woman, during the course of a treaty of mar- 
 
 ' Oarleton v. Earl of Doraet, 2 Vern. " Countess of Strathmore v. Bowes, 1 
 17. Ball V. Montgomery, 2 Ves. jr. 194. Ves. jr. 27. 
 
 'Id. 
 
Ch. 7.] Marriage Settlements. 481 
 
 riage mth her, makes, without notice to the intended husband, a convey- 
 ance of any part of her property, I should set it aside, though good prima 
 facie, because affected with that fraud." And his lordship concluded, by 
 observing, that it was impossible for a man, marrying in the manner Bowes 
 did, to come into equity and ta;lk of fraud. In a later case, before Lord 
 Loughborough, his lordship said, that if a woman, previously to marriage, 
 conveys her property, without the privity of the intended husband, it will 
 be fraud.' And the same doctrine has been held in this state.* 
 
 In cases where the settlement is made by the wives themselves, the 
 doctrine resulting from the cases seems to be, that if a woman, during a 
 treaty of marriage, and without the privity of her intended husband, con- 
 veys her property to trustees in trust for her separate use, and at the same 
 time represents to her intended husband that he should have the complete 
 dominion over it, such conveyance would be deemed fraudulent and void, 
 as against the husband.' And even without such representation, it seems 
 that the concealment alone of the fact of making a settlement, pending 
 the treaty of marriage, should be treated as a fraud.^ 
 
 But if the settlement was honest and proper at the time it was made, 
 being with the consent of her intended husband ; but the marriage did not 
 take place ; the omission to disclose the fact of the settlement to the per- 
 son to whom she subsequently married, is not a fraud upon him. As 
 Lord Thurlow said, though the conveyance had been made with a view to 
 a former marriage, which had not taken place, and though it would have 
 been fraudulent if the marriage had taken place, yet it would not bo 
 a fraud upon any other husband, although the fact had not been commu- 
 nicated to him.' 
 
 It is probable that the suddenness of the match, in Lady Strathmore 
 V. Bowes, affording no time to communicate the condition of her affairs, 
 and the entire absence of actual fraud in the wife, together with the im- 
 provident haste of Bowes, led to the decision. The chancellor said there 
 could be no fraud in the case ; and, without fraud, there was no occasion 
 to interfere. It cannot otherwise be reconciled with other cases. 
 
 It is a general principle, that rights dependent on the nuptial contract 
 
 ' Ball V. Montgomery, 2 Ves. jr. 194. * Draper's case, Freem. 29. 2 Ves. jr. 
 
 ' Wright V. Miller, 4 Barb. 608, per 194. 
 
 Strong, P. J. " Lady Strathmore v. Bowes, 6 Br. P. 
 
 " Oarleton v. Earl of Dorset, 2 Vern. 0, 427, by Tpmlins. Clancy's Eights of 
 
 17. 2 Cox's K. 33. "Women, 618. 
 Eq. Jur. 61 
 
482 Trusts, [Oh. 7i 
 
 ure to be determined by the Zear loci contracftt^, at least so :fer as relates 
 to questions of property." 
 
 On this principle, where a contract of marriage between French citi- 
 zens, executed in Paris, contained a clause, by which the parties mutually 
 gave to each^ and the survivor, all the estate and property, acquired and 
 purchased, or belongiiiig to either, at the time of his or her death, to be 
 enjoyed by the survivor excluaively ; ai)d the husband afterwards aban- 
 doned his wife, and came to reside in New-York, where he lived many 
 years ; aad having acquired a large personal estate, died intestate, without 
 lawful issue, leaving his wife living in France, it was held, that the 
 wife by the contract, under the law of France, took, as survivor, all the 
 estate, to the exclusion of the husband's relatives.'' 
 
 This principle has been applied wbere the husband only was a citizen 
 of France, and the wife was a citizen of this country. In one case, an 
 ante-nuptial contract, executed in France, in conformity to its laws, 
 between a French citizen and an American lady, providing that if the 
 gentleman survived her, her personal estate should be his, and her real 
 estate should be sold, and the proceeds be his, was held to be valid, and 
 wa.s enforced in eqaity.' 
 
 Where natives of a foreign country, residing here, enter into an ante^ 
 nuptial contract, with reference to the law of their own country, to which 
 they agree to return and Jreside, and in the contract indicate an intention 
 that it shall be governed by the laws of such country, not only as to the 
 property then possessed by them, but also as to their future acquisitions, a 
 court of equity will enforce it. Chancellor Walworth says : ''It appears 
 to be a well settled principle of law, in relation to contracts regulating 
 the rjghts of property consequent on a marriage, so far, at least, as per- 
 sonal property is concerned, that if the parties marry with reference to 
 the laws of a particular pla^e or country, as their future domicil, the 
 law of that place or country is to govern, as the place where the contract 
 is to be carried into full effect. And this must certainly be the correct 
 rule where the marriage contract in terms refers to the intended domici} 
 of the parties as the place or country by whose laws their rights under 
 the marriage contract, in reference to property, are to be determined."* 
 In ^ case of this kind, tjie renaedy to . secure such property and to pro- 
 
 ' Deoouche v. Savetier, 3 J. Ch. E. 211. ' Decouohe v. Savetier, supra. 
 Hnb. De Oonfl. Leg. lib. 3, § 9. Story's ' De Barante v. Gott, 6 Barb. 492. 
 Oonfl. L. § 145. » Le Breton v. Miles, 8 Paige, 266. 
 
Oh. 1.] Wills. 483 
 
 tect \he rights of the parties to the contract must be atjcording to the 
 law of the country, in the courts of which such remedy is sought.' 
 
 After what has been said, under the head of fraud, it is scarcely neces- 
 sary to add, that though the consideration of marriage is a meritorious 
 consideration, yet a voluntary settlement after marriage, unconnected with 
 any valid ante-nuptial agreement, by a person indebted at the time, is 
 fraudulent and void as against creditors.^ And this is true, whether the 
 property consists of lands or chattels.^ The extent and qualification of 
 the rule belongs to another part of this treatise, and will be found con- 
 sidered in its proper place. 
 
 Other matters, with respect to the rights of the wife, will be noticed 
 hereafter, when we come to treat of the subject of married women.^ 
 
 SECTION V 
 
 OF WILLS, AKD THE TBITSTS THEREIN, AND OF THE EULES OF CONSTRUCTION 
 
 THEREOF, 
 
 Having noticed and commented upon trusts in mortgages, deeds, 
 assignments, and marriage settlements, we proceed to the consideration of 
 such express trusts as are usually contained in wills. These are some- 
 times created for the benefit of creditors, sometimes for the benefit of 
 children or other relatives, or friends, and sometimes for public charity. 
 Under the Revised Statutes, every estate and interest in real property, 
 which is descendible to heirs, is devisable by will.' 
 
 It is not possible to embrace, in the limits of this chapter, all the cases 
 in which relief in equity may be sought, by parties deriving interests 
 under wills. A few only will be adverted to, in order to illustrate the 
 jurisdiction, and to show the manner which equity deals with questions 
 of this nature. 
 
 Before the Revised Statutes there was a distinction between a will of 
 real estate, and a will of personal estate, with respect to the operation of 
 the instrument, upon the subject of the devise or bequest. A will of 
 
 «' Le Breton v. Miles, 8 Paige, 263. ' Bdyard v. Hoffman, 4 J. Oh. E. 452. 
 
 Jaqnes v. Methodist Episcopal Chnroh; 3 * Post, Chap. Vni, Sec. 2. 
 
 J, Oh, B. 77; S. 0. on appeal, 17 J. K. '2 E. S. 57, § 2: 1 E. S. 725, § 35'. 
 
 U8. Vail V. Vail, 7 Barb. 226. Pond v. Bergh, W Paige, 140. 
 
 ' Eeade v. Livingston, 3 J. Oh. E. 492. 
 
484 Trusts. , [CL 7. 
 
 lands was considered in the nature of a conveyance, by ivay of appointment 
 of particular lands to a particular devisee ; and upon that principle, a man 
 could only devise the lands of which he was seised at the date of the 
 will ; and after acquired land did not pass.' He must not only be seised 
 at the time of making the will, but continue so seised until his death.' 
 But a will and testament operated upon whatever personal estate tha 
 testator died possessed of, whether acquired before or since the execution 
 of the instrument.' In respect to personal property, the testator was 
 presumed to speak in reference to the time of his death, and not in refer- 
 ence to any prior or subsequent period.* The Revised Statutes extended 
 the rule applicable to wills of personal estate, to devises of land, where the 
 testator in express terms, or in any other terms, denoted his intent to devise 
 all his real property.^ Hence, since the statute, a will, framed according 
 to its provisions, must be construed to pass all the real estate which the 
 testator was entitled to devise at the time of his death. When the devise, 
 in such case, is in express terms of all the real estate of which the tes- 
 tator shall die seised, there is no difficulty in applying the rule. But 
 if the testator does not use express terms, it often becomes a question, 
 what other terms will be equivalent to denote the intent to devise all the 
 testator's real property. 
 
 In one case. Chancellor Walworth expressed the opinion, that our stat- 
 ute has not gone to the extent of the late English statute on the same 
 subject. That statute changed the rule of law upon this subject entirely, 
 by providing that every will shall be construed with reference to the es- 
 tate, whether real or personal, or both, comprised in it ; to speak and take 
 effect as if it had been executed immediately before the death of the tes- 
 tator, unless a contrary intention shall appear by the will. (Stat. 1 Vict. 
 ch. 26, § 24. Sugd. on Wills, 172.) Our Revised Statutes have not gone 
 so far as to put wills of real estate upon the same footing as wills of per- 
 sonal property in this respect j though they have unquestionably abro- 
 gated the technical rule, that the testator was incapable of devising an 
 interest in land, or real estate, acquired subsequent to the date of the 
 will by which he attempted to dispose of his estate.* 
 
 In the last mentioned case, the chancellor took a distinction between 
 a general devise of all the testator's real estate, and a devise of all his 
 
 • Jackson v. HoUoway, 7 J. B. 394. * Van Veohten v. Van Veghten, 8 
 Jaokscm v. Potter, 9 id. 312. M'Kinnon P^ige, 104. Collin v. Collin, 1 Barb, 
 v. Thompson, 8 J. Ch. E. 307. LiviAg- Oh. K. 630. 
 
 Bton V. Newkirk, id. 312. ' 2 E. S. 57, § 5. 
 
 ° Minuse v. Cox, 5 J. Ch. E. 450. ' Pond v. Bergh, 10 Paige, 149. 
 
 • Wind V. Jekyl, 1 P. Wms. 575. 
 
Ch. 7.] Wills. - 485 
 
 real estate at a particular place, or within a particular district of country. 
 In the former case, he admitted that all the real estate which the testator 
 possessed at the time of his ^eath passed, and, in the latter, nothing pa.ssed 
 but what was specified. The chancellor said, that the New- York statute, 
 already cited, proceeds upon the ground that, in a general devise of all 
 .his real estate, the testator has reference to the real estate as it shall 
 exist at the time of his death ; and that such a construction of the tes- 
 tamentary disposition of his property will be but carrying his intention 
 into effect. Upon the same principle, therefore, if he devises all the real 
 estate of a particular description, of which he shall die possessed, or which 
 shall belong to him in a particular town or county, at the time of his 
 death, although the devise would not be within the words of the section, 
 (2 R. S. 57,_§5,) it not being a. general devise of all his real estate, he 
 thought it woiild be clearly within the spirit and intent of this statutory 
 provision. But when the testator devises all his real estate at a 'par- 
 ticular place, or within a particular district of country, there was, he 
 thought, good reason to suppose he meant to speak in reference to the 
 lands he had already acquired there ; and that if he intended to give to 
 the devisee all the lands or real estate which he should afterwards pur- 
 chase at that place, or within the specified district of country, there would 
 be something in his will indicating such an intention.' 
 
 The New. York statute was intended not only to abrogate the technical 
 rule, that after acquired property should not pass under a general devise 
 of all the testator's real property, but also to dispense with the necessity 
 of words of limitation in a devise, in order to pass a fee simple. In this 
 latter respect. Savage, Ch. J., in one case, thought the section in question 
 contained merely the result of the common law decisions on this point.'' 
 Hence, where in a devise there are no words of perpetuity, or words ex- 
 pressive_ of the quantity of the estate devised, but merely words of 
 description of the thing, and no charge upon the devisee in respect of the 
 estate devised, either in express terms or by necessary implication, the 
 devisee takes only a life estate.' But if there is a charge upon the de- 
 visee in respect of the estate devised, he takes a fee, upon the principle 
 that he might otherwise be a loser.* The distinction in the cases is be- 
 tween a charge upon the estate, and a charge upon the devisee in respect 
 thereof. In the former, the devisee, if there were no words of limita- 
 
 ' Pond V. Bergh, 10 Paige, 150. ' Van Alstyne v. Spraker, 18 Wend. 582. . 
 
 ' Van Alstyne v. Spraker, 13 Wend. * Id. Jackson v. Bull, 10 J. K. 148. 
 C82. Mesick v. New, 3 Seld. 163. 
 
486 Trusts. [Ch. 7. 
 
 tion, took only a life estate, and, in the latter, a fee.' And this rule ia 
 not supposed to be altered by the Revised Statutes. 
 
 Neither before or since the Revised Statutes is any particular form of 
 words necessary in a will, to pass a fee. The intention of the testator, 
 as collected from the whole will, is to govern." A devise of all one's 
 right carries a fee simple to the devisee.^ So a devise with power to 
 convey in fee ;* also a general devise of real estate to A., to be at her 
 absolute disposal, passes a fee.' In like manner the word estate passes 
 a fee.^ But when a devise contains no words of limitation or perpetuity, 
 the devisee can take only an estate for life.' Such was the rule before 
 the statute, and Savage, Ch. J., considers that the same rule remains now.' 
 
 There are numerous cases where the aid of a court of equity is indis- 
 pensable, in carrying into effect the intention of a testator, in the 
 testamentary disposition of his property. Thus, where a testator 
 charges his real estate with the payment of debts, a trust is cre- 
 ated in favor of the creditors, who are entitled to priority over other 
 devisees in the will. And a court of equity will, in an action by the 
 creditors against the executors and other trustees, if there be any, com- 
 pel them to raise the money for payment of debts.' If the court would 
 compel them to sell for that purpose, there can be no doubt they may 
 do themselves, without an order, the same thing. '° The charge of debts 
 upon an estate has been held, by eminent jurists, to be equivalent to a 
 trust for the payment of them." And if the trustee will not voluntarily 
 do his duty, it is competent for the court, as in other cases of trusts, to 
 compel him to do it, or to remove him and appoint another. And if 
 there be no trustee named in the will, the executors will be treated as 
 trustees, and the court, as has been repeatedly held, will not suffer a 
 trust to fail for the want of a trustee. 
 
 If the will, either in general or express terms, contains a power to sell 
 for the payftient of debts; it authorizes the giving a mortgage to raise 
 money for the same purpose. A T)ower to sell implies a power to mort- 
 
 ' Jackson v. Bull, 10 J. E. 151. Good- ' Jackson v. Wells, 9 J. R. 222. Jack- 
 title v. Maddern, 4 East, 496. Doe v. Snel- son v. Embler, 14 id. 198. 
 'ling, 5 id. 87. Collier's case, 6 Oo. 16. = Van Alstyne v. Spraker, 18 Vend. 
 Mesick v. New, 3 Seld. 163. 582. 
 
 ' Jackson V. Babcock, 12 J. E. 389. " Shaw v. Borrer, 1 Keene, 576. 
 
 " Kewkirk v. Newkirk, 2 Oaines, 345. " Id 
 
 ' Doe V. Howland, 7 Cowen, 277. " Bailey v. Ekins, 7 Yes. 819. Shaw 
 
 ' M'Lean v. M'Donald, 2 Barb. S. C. R. v. Borrer, sapra. Ball v. Harris, 4 Myl. 
 
 534. • & Or. 267. 
 
 ° Jackson v. Merrill, 6 J. R. 185. Jack- 
 son V. Delanoy, 13 id. 637. 
 
Ch. 7.] Wills. Charge on Land. 48T 
 
 gage, whicli is a conditional sale.' The same rule, it seems, applies to a 
 trust to raise money out of an estate to pay debts. It would, as Lord 
 Cottenham remarked in the last case, be most injurious to the owners 
 of the estate charged, if the trustee could effect the object of his trust 
 only by selling the estate.' 
 
 It sometimes becomes an embarrassing question to determine by what 
 words, or form of expression, an effective charge in favor of creditors 
 may be made in a will. A will drawn with care, and by a skillful -draftsT 
 ]aan, will no doubt use express and unequivocal terms, conferring the 
 power, or creating the trust, and declaring by whom it shall be executed. 
 And, as in general, the personal estate is the primary fund for the pay- 
 ment of the debts of the testator, and the executors are the appropriate 
 trustees for that purpose,' so they will generally be the persons empow- 
 ered to sell the real estate, and to distribute the fund. Creditors at 
 large cannot go into equity to compel the executors to pay their debts, 
 upon any notion that such debts are an equitable lien on the estate. 
 They can only come into equity for an account and discovery of assets, 
 and on the ground of a trust in the executor or administrator to pay 
 debts." 
 
 But where plain and express terms are not used charging the real es^ 
 tate with the payment of debts, resort must be had,to the whole will to 
 discover the intention. Where the thing directed to be done by the 
 executor cannot be done, without the sale of the real estate, the latter is 
 well charged.^ The words in a will, " after my debts and funeral charges 
 are paid I devise and bequeath as follows,'' will charge the real estate for 
 the payment of debts, if there be not personal assets enough for that 
 purpose.* In an early case, where the testator, by his will, used these 
 words ; " My debts and legacies being first deducted, I devise all my 
 estate, both real and personal, to J. S." These words were held, by the 
 chancellor, to amount to a devise to sell for the payment of the testator's 
 debts.' In a case before Lord Thurlow in 1792, it was said that a decree, 
 " after paying debts," amounted to a charge upon the real estate for the 
 payment of debts, and it was intimated that the leaning of the court was 
 
 • MiUs v. Banks, 1 P. "Wms. 9, Ball v. ' McKay v. Green, 3 J. Oh. E. 58. 
 
 Harris, 4 Myl. & Or. 267. Anonymous, 3 Atk. 572. 
 
 ° Id. " Bank of U. S. V. Beverly, 1 How. TJ. S. 
 
 ' Hoes V. Van Hoesen, 1 Barb. Ch. R. 149. 
 
 279; aflBrmed on appeal, 1 Oomst. 121. » Fenwick v. Chapman, 9 Peters, 461. 
 
 McKay v. Green, 3 J. Oh. E. 56. Hawley Peter v. Beverly, 10 id. 564. 
 
 T. James, 5 Paige, 318. Harris v. Fly, 7 ' Newman v. Johnson, 1 Vern. 45. 
 id. 421. 
 
488 Trusts. [CL 7. 
 
 towards the upholding of such a charge.' And in a later case, in 1798, 
 the master of the rolls intimated that there was not a single case in which 
 it had been held, that where the testator says " after payment of my 
 debts," the real estate is not charged, whether specifically devised or not. 
 The words, " after payment of my debts," mean that he will not give any 
 thing until his debts are paid. To give these words any effect, therefore, 
 they must charge the real estate." The same doctrine was held in an 
 earlier case. The testator, by his will, devised that his debts, legacies 
 and funeral charges, should be paid in the first place. He then gave 
 his sister a life estate in several lands, and remainder over. It was held 
 that the lands were well charged with the payment of debts.^ 
 
 As the personal estate is the primary fund for the payment of debts, 
 the real estate is not charged unless the intention to charge it is manifest 
 by the will. The foregoing cases show what circumstances, beyond an 
 express charge, will be enough for that purpose. It is not sufficient that 
 debts or legacies are directed to be paid. That alone does not create the 
 charge, but they must be directed to be first, or previously paid, or the 
 devise declared tb be after they are paid.* Where the personal estate is 
 not in terms exonerated, and is not absolutely bequeathed by the will, it 
 will be deemed the primary fund for the payment of legacies, although 
 the legacies are expressly charged upon devisees. The charge in such a 
 case is in aid, and not in exoneration of the personal estate.^ 
 
 A similar question, also, often arises with respect to legacies, when the 
 aid of a court of equity is necessary to enforce the payment out of the 
 testator's real estate. Though the real estate be charged, still the per- 
 sonal estate is the primary fund for the payment of legacies, and is to 
 be first applied, before charging the real estate ;' unless, indeed, a con- 
 trary intention is manifested by the will.' The devisee of real estate, 
 charged \fith a legacy, is, if he accept the devise, in equity personally 
 liable for the payment of the legacy. If he sells the land, the purchaser 
 is entitled to insist that the legatee shall first exhaust his remedy against 
 the devisee personally, and also against the personal estate of the testa- 
 tor, when that is the primary fund, before selling the real estate." 
 
 Where a legacy is made a specific lien upon land, and the devisee has 
 
 ' Kidney v. Oonsmaker, 1 Ves. jr. 440. ' Hoes v.' Van Hoesen, 1 Oomst. 120. 
 ' Shallcross v. Finden, 3 Ves. jr. 739. 1 Barb. Ch. E. 379. 
 ■ Trott V. Vernon, 2 Vern. 708. • McKay v. Green, 8 J. Oh. E. 66. Lup- 
 
 ' Lupton V. Lupton, 2 J. Oh. E. 624. ' ton v. Lupton, 2 id. 614. 
 Brudenell v. Boughton, 2 Atk. 268. ' Kelsey v. Wester?, ? Oomst. 501, 
 
 •Id. 
 
Ch. 7.] Wills. Charge on Land. 489 
 
 sold it in parcels to different purchasers, the lots will be charged in the 
 inverse order of their alienation. 
 
 The charge of a legacy upon real estate, in aid or in exoneration of the 
 personalty, may be, and frequently is, created by implication merely. If 
 the testator gives a legacy, without specifying, who shall pay it, or out of 
 what fund it shall be paid, the legal presumption is, that he intended it 
 should be paid out of his personal estate only ; and if that is not suffi- 
 cient, the legacy fails. So, if he directs his executors to pay a legacy, 
 without giving to them any other fund than the personal estate out of 
 which they can pay it. But where the real estate is devised to the per- 
 son who by the will is directed to pay the legacy, it has frequently been 
 decided that such legacy is an equitable charge upon the real estate so 
 devised, although' the devisee is also the executor, or is the residuary leg- 
 atee of the personal estate ; unless there is something in the will itself 
 to indicate a contrary intention on the part of the testator.' 
 
 In cases where an equitable charge upon land devised is created by 
 the will of the testator, a subsequent purchaser from the devisee, who is 
 obliged to make title to the premises through the will, has constructive 
 notice of the charge, and takes the land subject to it.' 
 
 There are cases where a devise is made upon condition that the devisee 
 should pay certain legacies. In this case, should the devisee decline ac- 
 cepting the estate, he would not be liable to pay the legacies, but the 
 estate would descend to the heirs, chargeable in equity with their pay- 
 ment.'' In this case, it seems, the only remedy of the legatee is in a court 
 of equity. If, however, the devisee accepts the devise, he becomes per- 
 sonally liable for the legacies ; notwithstanding which the legacies are ean 
 equitable charge upon the estate. These principles are illustrated by the 
 case already cited. The case was this ; a testator devised certain real 
 estate to his widow for life, or during her widowhood, and after her death, 
 or njarriage, devised the same to his nephew in fee, provided he paid the 
 legacies mentioned in the will, and directed that the legacies should be 
 paid by the nephew, his heirs, executors or administrators, whenever he 
 or they should come into possession of the premises devised ; it was held 
 that a payment of the legacies was a condition of the devise ; and that 
 if the devisee or his heirs should refuse to accept the devise, the estate 
 
 ' Jenkins v. Freyer, 4 Paige, 47. El- ' Harris v. Fly, 7 Paige, 421. 
 wood V. Deifendorf, 6 Barb. 398. ' Birdsall v. Hewlett, 1 Paige, 82. 
 
 ' Harris v. Fly, 7 Paige, 423. Alcook 
 V. Sparhawk, 2 Vern. 228, 
 
 Eq. JtTB. 62 
 
490 Trusts. [CL. T. 
 
 would descend to the heirs at law of the testator ; but would, in equity, 
 be char cable with the payment of the legacies.' 
 
 The construction of wills often presents embarrassing questions, which 
 call for the interposition of a court- of equity to expound. Bequests of 
 personal estate fall under the denomination of trusts. In the eye of a 
 court of equity, executors and administrators are considered as trustees, 
 and the persons to whom bequests are made, as the cestui que trusts, and 
 in that character are peculiarly entitled to the protection of courts of equity. 
 With respect to the undisposed residue, the executors are the trustees for 
 the next of kin. And it is upon this notion of a trust that the equitable 
 jurisdiction is founded, of enforcing payment of legacies and the distri- 
 bution of personal estates.'' Incidental to this jurisdiction oyer trusts, 
 is the duty of giving the true construction of wills, and of compelling 
 their execution by the executors, or other persons to whom a duty in re- 
 lation thereto is confided. 
 
 It is, therefore, consistent with the plan of this treatise, that a brief 
 review of some of the rules of construction, by which both courts of 
 law and equity are governed in matters of this nature. 
 
 The cardinal rule in this respect is, that the intention of the testator 
 is to govern, if consistent with the rules of law ; that is, the testator 
 cannot create a trust which the law prohibits, or suspend the power of 
 aliena.tion, or the absolute ownership of property, beyond the period 
 allowed by law ; nor create any other interest in property which the law 
 repudiates. The testator is to be presumed to have used words in their 
 natural or primary sense, unless there is something in the situation of 
 his family or in his will to lead to a contrary conclusion. But he is not 
 hound to use any particular form of words, to devise or bequeath a legal 
 interest in property, or to designate the objects of his bounty ; provided 
 he uses language sufiScient to show his intention. That intention is to 
 be ascertained from the whole will taken together, and not from the 
 language of any particular provision or clause, when taken by itself. 
 And for the purpose of construction, a will and a codicil may be con- 
 sidered together, and construed as different parts of the same will.^ 
 
 ' Birdsall v. Hewlett, 1 Paige, 32. home, id. 181. Berry v. Headlington, 8 
 
 "Farrington v. Knightly, 1 P. Wms. J. J. Marsh. 321. Covenhoven v. Shnler, 
 
 545, note 1 at pp. 5B0, 651. 2 Paige, 122. Reno's Ex'rs v. Davis, 4 
 
 ' Hone v. Van Schaicfe, 8 Barb. Ch. R.^ Hen. & Mum. 283. Oowper v. Cowper, 
 
 448, 505, 506. Orone v. Odell, 1 Ball & 2 P. Wms. 741. Dobbins v. Bowman, 3 
 
 B. 466. 1 Rob. on Wills, 355. Land v. Atk. 409. Westcott v. Cady, 5 J. Oh. R. 
 
 Otley, 4 Rand. 218. Calloway v. Lang- 348. 
 
Ch. 7.] Wills. Construction. 491 
 
 Tbus, the word " and" may be understood disjunctively for " or," and " or" 
 for " and," when it is clear such was the intention of the testator.' 
 
 When the words of one part of a will are capable of a twofold con- 
 struction, that should be adopted which is most consistent with the inten- 
 tion of the testator, as ascertained by other provisions in the will. And 
 when the intention is incorrectly expressed, the court will effectuate it by 
 supplying the proper words. The strict grammatical sense is not always 
 regarded, but the words of a will may be transposed to make a limita- 
 tion sensible, or to carry into effect the general intent of the testator.* 
 So one name may be substituted for another, in the construction of a 
 will, when it is manifest, not only that the name used was not' intended, 
 but that a certain other name was necessarily intended.^ This class of 
 cases are, perhaps, appropriately referrible to the head of mistake, but 
 they are applicable also under the head of construction, which we are now 
 considering. Thus, where a testator after bequeathing several specific 
 legacies, bequeathed the residue as follows : Thirdly, I bequeath to my 
 brother Cormac Connolly, and to my two sisters Mary and Ann, what- 
 ever remains of my money after the above bequests, to be divided between 
 them, .share and share alike ; and in case of the demise of either of them, 
 to go, share and share alike, to the survivor or survivors." On the fol- 
 lowing day he made a codicil to the will, and thereby, among other things, 
 bequeathed as follows : " To my nephew, Cormac Connolly, the son of 
 my brother Cormac Connolly, the sum of five hundred dollars for his 
 ecclesiastical education, which sum is to be taken from what I have 
 bequeathed to my brother Cormac, and to my sisters Mary and Ann." 
 The testator never had a brother named Cormac, but he had a nephew 
 of that name, the son of his brother James, who, at the time of making 
 the will, was pursuing classical studies in Ireland, with a view to an 
 ecclesiastical education, and he was the only nephew of the same name. 
 An amicable suit was instituted, to which the executors and persons 
 named in the will were parties. The chancellor decided that the resid- 
 uary bequest in the will was intended for the testator's brother James, 
 the father of the testator's nephew, Cormac Connolly. 
 
 This case affords, also, an apt illustration of the rule already stated, 
 ^hat the codicil and will must be construed together, in order to ascer- 
 tain the intent of the testator. By viewing them in connection, it is per- 
 
 ■ Dobbins v. Bowman, 8 Atk. 409. Thellusson v. Woodford, 11 Ves. 148. 
 O'Brien v. Heeney, 2 Edw. Oh. K. 242. 'Bradburst v. Braclhurst, 1 Paige, 343. 
 ° Covenhoven v. Shuler, 2 Paige, ISO. " Connolly v. Pardon, 1 Paige, 291. 
 
492 Trusts. [CL 7. 
 
 fectly obvious that the brother Avas the residuary legatee, and not the 
 nephew.' 
 
 If a legacy, said the chancellor in the same case, was given by a tes- 
 tator to his brother John, and it turned out in evidence that he had but 
 one brother, whose name was James, there could be no doubt that the lat- 
 ter would be entitled ; because the description of brother in that case 
 would alone be sufficient, and the name might be rejected as surplusage. 
 Chancellor Kent, in one case, went further, and permitted a person not 
 named, or described at all in the will, to take a legacy, upon evidence 
 that she was the person intended, there being no person of the name men- 
 tioned in the will. In that case, the testatrix evidently was mistaken in 
 the name of the legatee. The bequest was given to Cornelia Thompson, 
 in the will, when it was shown that Caroline Thomas was intended.' 
 In cases of this nature, the object of an action in equity is not, as in the 
 case of a mistake in agreements, to reform the instrument, but it is to 
 give to it such construction as Avill fulfill the purpose, and carry out the 
 intent of the testator. 
 
 Nor is the court, in the construction of a will, restricted to the order 
 in which the words are set forth in the instrument, nor to strict gram- 
 matical rules. To efl'ectuate the intent, words may sometimes be trans- 
 posed, supplied, or rejected.' 
 
 > With respect to the meaning of technical words, it is said that prima 
 facie they are to be understood in their legal sense, unless by the con- 
 text, or by express words, they plainly appear to be intended otherwise.* 
 But the court will abide by the settled meaning of the words, until driv- 
 en out by strong, solid and rational interpretation put upon, and plain 
 inference drawn from, the rest of the will.' 
 
 If the words of a will be such that they may be construed in two dif- 
 ferent senses, one of which would render the disposition made of the 
 property illegal and void, and the other would render it valid, the court 
 should give that construction to the language that will make the disposi- 
 tion of the testator's property effectual.' 
 
 So where a will contains distinct and independent provisions, devising 
 
 ' Connolly v. Pardon, 1 Paige, 291. 1 Russ. E. 165. Doe v. Mioklem, 6East, 
 
 » Thomas v. Stevens, 4 J. Ch. R. 60T ; 486. Fonereau v. Fonerean, 8 Atk. 315. 
 
 S. P., Beaumont v. Fell, 2 P. Wras. 141. Doe v. Starlake, 12 East, 616. 
 
 Bradwin v. Harpur, Ambl. 874. Cowen * HoUoway v. Holloway, 5 Ves. 401. 
 
 & Hill's Notes, 1868, 1369. ' Deane v. Test, 9 Ves. 152, 154. 
 
 • East T. Cooke, 1 Ves. 82. Pond v. " Butler v. Butler, 8 Barb. Oh. E. 310. 
 
 Bergh, 10 Paige, 140. Marshall v. Hop- Mason V. Jones, 2 Barb. S, C. E. 230. 
 
 kins, IS East, 809. Montagu v. Nucella, 
 
Ch. 7.] Wills. Construction. 493 
 
 different. portions of the testator's property, or distinct estates or inter- 
 ests in the same portions of the property, some of which provisions are 
 consistent, and others inconsistent with the rules of law, the former will 
 be permitted to stand, although the latter are declared illegal and void ; 
 unless the different provisions are so dependent on each other, that they 
 cannot be separated. And where real estate is conveyed upon two or 
 more trusts, some of which are legal and the others are void, or unauthor- 
 ized by law, the legal estate will pass to the trustee, so far as is neces- 
 sary for the purposes of the authorized trusts ; notwithstanding the 
 provision of the statute which declares, that where an express trust shall 
 be created for any purpose not authorized by law, no estate shall vest in 
 the trustee.' 
 
 Full effect should be given to the particular intent, as well as to the 
 general intent of the testator, so far as his particular intent can be 
 ascertained by the will, and as is consistent with the rules of law, and 
 with his general intent ; which general intent must control in a will * 
 
 It sometimes happens in wills that there- are clauses inconsistent with 
 each other, and in which both cannot take effect. In such a case, it be- 
 comes the duty of the court to select one or the other. In analogy to 
 the fact that the last will of a testator is to prevail in preference to 
 an earlier one, the courts have adopted from necessity a similar rule, and 
 treated the subsequent words in the will as indicating a subsequent in- 
 tention ; unless, indeed, there be other expressions of the will which make 
 it apparent that the first should take effect.' 
 
 With regard to the use of words, not technical in their nature, the tes- 
 tator must be presumed to have used them in their ordinary or primary 
 sense, unless it appears from the context that he probably used them in 
 some other sense ; or unless, by reference to extrinsic circumstances, the 
 use of the words, in their primary sense, would render the provision of 
 the will insensible or inoperative.* The application of this rule to the 
 legatee, when not designated by name, is sometimes necessary, as well as 
 to the other language of the will. Thus, the word " children " is some- 
 times used as descriptive of the persons who are to enjoy the testator's 
 bounty. This word, in its ordinary sense, does not include grandchildren. 
 But it may include them when it appears there were no persons who 
 
 ' Parks v. Parks, 9 Paige, 107. Leg- Swan, 4 Mass. E. 215. Sweet v. Chase, 
 
 gett V. Perkins, 2 Comst. 297, 306. 2 Comst. 73, per Euggles, Z, 
 
 " Parks V. Parks, supra. * Mowatt v. Oarow, 7 Paige, 339. Wig- 
 
 * Sims V. Doughty, 5 Ves. jr. 247. ram on "Wills, 29. 
 Constantine v. Constantine, 6 id. 102. 
 Parks v. Parks, 9 Paige, 124. Dawes v. 
 
494 Trusts. fCL 7. 
 
 would answer to the deseription of " children " in the primary sense of 
 the term, or where there could not be any such at the time or in the 
 event contemplated by the testator ; or where the testator has clearly 
 shown, by the use of other words, that he used the term children as syn- 
 onymous with issue or descendants.' 
 
 The word '' children," in its natural sense, is a word 9f purchase, and 
 not a word of limitation.'' The rule in Shelley's case was applied to 
 limitations, in which the word " heirs " is used, which, on account of its 
 peculiar signification, and upon the maxim that no one is an heir to the 
 living, was construed as giving the fee to the devisee for life, when a re- 
 mainder was limited to his heirs. We have already explained this rule 
 suflSciently in the former part of this chapter, and its abrogation by the 
 Revised Statute. But that rule was a technical one, and did not apply 
 where other words were used to designate the persons to take in remain- 
 der after a life estate. If an express devise of lands be given to one for 
 life, remainder to his smis, or his children, and their heirs, the devisee 
 takes an estate for life only, and the sons or children, and not the father, 
 take the residue of the estate in fee, by way of remainder.' 
 
 Where the estate is not limited to the father for life with remainder to 
 his children, the construction of the will varies according to circum- 
 stances. If the devisee, in such a case, has children at the time of making 
 the will of the testator, it has been held that he takes a joint estate with 
 his children.^ But when there are no children in esse, at the time of 
 making the will, the word children, in a devise to a man and his children, 
 has sometimes been construed a word of limitation merely, so as to create 
 an estate tail in the devisee.^ 
 
 In like manner the word issue, though sometimes construed as a word 
 of limitation, yet, in wills, for the purpose of giving effect to the inten- 
 tion of the testator, it has generally been construed as a word of pur- 
 chase.' 
 
 It sometimes happens that a will is ambiguous in its terms, and the 
 true construction of it cannot be made without the aid of 9, court of equity. 
 An important question then arises, whether the ambiguity can be ex- 
 plained by a resort to parol evidence", or whether it must be determined 
 
 'Mo watt V. Carow, 7 Paige, supra. ' Gates v. Jackson, 2 Str. 1172. Matter 
 
 Hone V. Van Sohaiok, 8 Barb. Oh. R. 488. of Sanders, 4 Paige, 297. 
 
 " In the matter of Sanders, 4 Paige, ' Id. Wilde's case, 6 Coke, 16. Ead- 
 
 296. cliff V. Buckley, 10 Ves. 195. 
 
 " Id. Rogers v. Rogers, 8 Wend. 508. ° Ohamplin v. Haight, 10 Paige, 274; 
 
 4 Cruise's Dig. tit. 82, oh. 28, § 80. S. 0. on appeal, 7 Hill, 246, per Bron- 
 
 son, J. 
 
Ch. 7.] Ambiguity. 495 
 
 solely by a resort to other parts of the will. This question depends on 
 the nature of the ambiguity, of -vrhich, according to Lord Bacon, there 
 are two sorts. The one is called a latent and the other a patent ambi- 
 guity. The first occurs where the deed or instrument is suflSciently cer- 
 tain and free from ambiguity ; but the ambiguity is produced by evidence 
 of something extrinsic, or some collateral matter out of the instrument : 
 the latter kind is such as appears in the instrument itself.' 
 
 A latent ambiguity, which is raised by extrinsic evidence, may be ex- 
 plained in the same manner. Thus, if a person grant his manor of S. to 
 one and his heirs, so far there appears no ambiguity ; but if it should 
 be proved that the grantor has the manors both of south S. and north S., 
 this ambiguity is matter of fact, and parol evidence may be admitted to 
 show which of the two manors the party intended to convey.'^ 
 
 A patent ambiguity is such as appears on the face of the instrument 
 itself In many of these cases the apparent uncertainty may be removed 
 by collecting the general intention from other parts of the instrument,, so 
 as to make the whole consistent, and this is a legitimate mode of explain- 
 ing the ambiguity.' But when, after comparing the several parts of a 
 written instrument, and collecting all the lights which the writing itself 
 supplies, the intention of the parties still appears to be uncertain, parol 
 evidence of their intention is not admissible.* The reason of this rule, 
 as explained by Lord Bacon, is, that the law will not couple and mingle 
 matter of specialty, which is of the higher account, with matter of aver- 
 ment, which is of inferior account in law ; for that were to make all deeds 
 hollow, and subject to averment, and so, in elfect, to make that pass with- 
 out deed, which the law appoints shall not pass but by deed. It holds, 
 generally, he adds, that all ambiguity of words within the deed, and not 
 out of the deed, may be helped by construction, or in some cases by elec- 
 tion, but never by averment, but rather shall make the deed void for un- 
 certainty.5 The game rule governs in the case of a will. If any devise 
 is expressed doubtfully and with uncertainty, the only construction which 
 it is capable of receiving, is by comparing it with the other parts of the 
 will ; and declarations of the testator are> not admissible to remove the ap- 
 parent ambiguity, or to explain his intention. As was said by the master 
 of the rolls, in one case, if a meaning can be collected, but if it is left 
 
 • 1 Phil. Ev. 531. Bac. Elem., rule23. Ch. R. 234. Storer v. Freeman, 6 Mass. 
 
 ' Id. Breokenridge v. Duncan, 2 A. K. E. 440. 
 
 Marshall, 61. * 1 Phil. Ev. 538. 
 
 = Mann v. Mann, 14 J. B. 1 ; S. 0., 1 J. ' Bac. Elem., rule 23. 
 
496 Trusts. [Ch. 7. 
 
 doubtful in what manner it is to take effect, the court has often no re- 
 course but to declare the -will totally void for uncertainty.' 
 
 But though these general rules are well settled, yet the application of 
 them to existing cases is not always free from difficulty. A latent am- 
 biguity sometimes relates to the person of the legatee, and sometimes to 
 the subject of the bequest ; but, in either case, if the doubt be created by 
 extrinsic evidence, it may be removed in the same way. 
 
 The rule, however, which excludes parolevidence to explain a paten t'am- 
 biguity in a deed or will, should not be carried to the extent of shutting 
 out evidence of the situation and circumstances of the parties, for the pur- 
 pose of assisting them in putting a construction on wills that are not 
 clearly expressed.'' Thus, for example, should the testator devise an es- 
 tate for life, without saying for whose life, it would be important to know 
 what estate he had in the property devised. For if he had only a life es- 
 
 ' tate, a different interest will pass from what would follow if he were seised 
 in fee. The testator would not be presumed to devise a greater estate 
 than he had himself.' So if a man bequeath £10,000, 3 per cent con- 
 sols, it will be a specific legacy, if he have that stock at the time ;* not 
 specific if he have it not. Evidence is thus far admissible in such case 
 to show what was the state of his property at the time he made his will, 
 and the construction upon the will is one way or the other, according to 
 the result." These, and numerous other cases which may be put, tend to 
 show the necessity of extrinsic evidence, with respect to persons and 
 things, in order to a correct understanding of the bequest ; and it has led 
 some to suppose that there is an intermediate class of ambiguities, com- 
 prising those instances where the words are equivocal, but yet admit of 
 precise and definite application, by resorting to the circumstances under 
 which the instrument was made.' The master of the rolls, in one case, 
 seemed to think that a patent ambiguity admitted of explanation by ex- 
 trinsic evidence. " When," he observed, " the person or the thing is de- 
 signated on the face of the instrument, by terms imperfect and equivocal, 
 admitting either of no meaning at all by themselves, or of a variety of 
 
 • different meanings, referring tacitly or expressly for the ascertainment and 
 
 ' Oonstantine v. Oonstantine, 6 Ves. ' 1 Shep. Touch. 88. Smith v. Doe, 2 
 
 102. Strode v. Russell, 2 Vern. 624. 2 Bred. & Bing. 560, see opinion of Bay- 
 
 €owen & Hill's Notes, 1359 et seq. where ley, J. 
 
 many cases are reviewed. ' Id. Selwood v. Mildmay, 8 Ves. 810. 
 
 ' Druoe V. Dennison, 6Ves. 896. Judd " Smith v. Doe, supra. 
 
 V. Pratt, 13 id. 174. Benough v. Walk- " 2 Cowen & Hill's Notes to Phil. Ev. 
 
 er, 15 id. 6U. Herbert v. Reid, 16 id. 1358. 
 481. Page v. Leapingwell, 18 id. 466. 
 
Ch. 7.] Ambiguity. 497 
 
 completion of the meaning to extrinsic circumstances, it has never been 
 considered an objection to the reception of the evidence of those circum- 
 stances, that the ambiguity was patent, manifested on the face of the in- 
 strument. When a legacy is given to a man by his surname, and the 
 christian name is not mentioned ; is not that a patent ambiguity ? Yet 
 it is decided that evidence is admissible. So where a gift is of the tegta^ 
 tor's stock, that is ambiguous ; it has different meanings when used by a 
 farmer and a merchant.'" 
 
 In considering this question, Spencer, Ch. J., on one occasion said : It 
 appears to be good law, that though an ambiguity is apparent on the face 
 of an instrument, it cannot be explained by extrinsic evidence ; yet, when 
 a question arises as to the general intention of the parties, concerning 
 which the instrument is not decisive, proof of independent facts, collateral 
 to the instrument, may be properly admitted.^ While conceding that no 
 evidence of an expressed intention can be received to explain an ambi- 
 guity on the face of the instrument, and thereby to make that valid, 
 which of itself would not avail ; yet he said that, in other cases, both spe- 
 cies of ambiguity are open to explanation by parol evidence ; and that 
 even in the case of a will, where the testator makes use of terms of equiv- 
 ocal import, though his declarations are not admissible, yet the circum- 
 stances of his family and fortune may be proved and taken into consider- 
 ation, in order to enable the court to put a construction upon his words. 
 
 It would seem that the learned judge thought that a patent ambiguity 
 might in some cases be explained by the proof of extrinsic facts, but not by 
 showing the expressed intention of the party by whom the instrument 
 was made. It may be doubted whether a resort to extrinsic evidence, to 
 show the condition of thiiigs, where the instrument, whether a deed or 
 will, was made, can be properly called an explanation of the instrument 
 itself, in the sense contemplated by the rule. Such evidence does not 
 tend to contradict the words of the instrument, but by putting the court 
 in the place of the party by whom it was made, together with the sur- 
 rounding circumstances, it enables it to understand the language in the 
 same sense as the framer of it intended. If both the court and the tes- 
 tator, for example, can view the- provisions of the will from the same point 
 of observation, they will be apt to understand it alike. To do this, is all 
 that is intended by introducing evidence of the state of the testator's cir- 
 cumstances and condition when the will was made. The case relied on by 
 the court, in Ely v. Adams, was clearly one of a latent ambiguity, and 
 
 ' Oolpoys V. Oolpoys, Jacob, 451. King v. Inhabitautg of Laindon, 8 T. R. 
 
 "Ely V. Adams, 19 J.^R. S17. Th» 379. 
 Eq. Jur. 6? 
 
498 Trusts. [Oli. T. 
 
 open to explanation upon the strictest principles, and the case itself, 
 moreover, afforded intrinsic evidence of the parties' intention.' So also, 
 the cases pnt in Colpoys v. Colpoys, were of a latent ambiguity.* 
 
 It has already been shown, under this general head, that executory 
 trusts created by will are governed by the same rules which prevail in ref- 
 lation to the like trusts created by deed.' And we have pointed out, in 
 the same place, the changes introduced by the Eevised Statutes, which 
 are alike applicable to executory trusts created by wills and deeds. It 
 ■will not be consistent with the plan of this treatise to pursue this branch 
 of the subject more at large. 
 
 SECTION VI. 
 
 OF LEGACIES; THE GKOTTNDS OF THE JUBISDICTIOST OP COUKTS OS" EQUITT ; 
 AND THE DIFFERENT KINDS OF LEGACIES, WHETHER GENERAL, DEMON- 
 STRATIVE OB SPECIFIC, AND OF ADEMPTION OF, LEGACIES. 
 
 As the jurisdiction of courts of equity over legacies is referable to 
 their general jurisdiction over trusts,* and as legacies are given by a will 
 in writing, except in the case of donatio mortis causa, which is in the 
 nature of a legacy, rather than a strict legacy, it will be expedient to 
 consider the subject of legacies ; and to point out briefly the different 
 kinds of legacies, and the nature and extent of the jurisdiction by which 
 they are enforced. 
 
 A legacy is defined to be, " some particular thing or things given or 
 left, either by a testator in his testament, wherein an executor is appoint- 
 ed, to be paid or performed by his executor ; or, in a codicil or last will, 
 wherein no executor is appointed, to be paid or performed by an admin- 
 istrator,"^ 
 
 The word devise is appropriated to a gift of lands, and the word legacy 
 to a gift of chattels, though both terms are used promiscuously. The 
 word legacy may apply to real estate, if the intent so require,' and a tes- 
 
 ' Cole V. Wendell, 8 J. R. 116. Oowen * "Wend v. Jekyl, 1 P. yfms. 575. Far- 
 
 & Hill's Notes, 1860 et seq. rington v. Knightly, id. 544. 
 
 " Mann v. Mann, 1 J. Oh. R. 234. > 2 Will. Ex. 694. Godolp. pt. 3, oh. 
 
 " Ante. Countess of Lincoln v. The 1, § 1. 2 Bl. Com. 512. 
 
 Duke of Newcastle, 12 Ves. 227, per Ld. » Jackson v. Housel, 17 J. K. 281. 
 
 Eldon. Attorney Gen. v. Sutton, 1 P. Lasher v. Lasher, 13 Barb. 8. 0. E. 109, 
 
 Wms. 754. 110. 
 
Ch. 7.] Legacies. 499 
 
 tator's real estate has been held to pass under a will bequeathing his 
 personal estate.^ 
 
 Formerly a will or testament of chattels was good<, though its publica- 
 tion was not attested by any witnesses, provided sufficient proof ceuld be 
 procured that it was subscribed by the testator, or made according to his 
 instructions.^ But now, in this state, by the Revised Statutes, wills of 
 real and personal estate are put upon the same footing, in relation to the 
 mode in which they are to be executed.^ But with respect to the person 
 capable of making a will, it is provided that every male of the age of 
 eighteen years or upwards, and every female not being a married woman, 
 of the age of sixteen years or upwards, of sound mind and memory, may 
 give and bequeath his or her personal estate by will in writings* The 
 power of devising, or making a will that shall pass the testator's real 
 estate, is given to all persons, except idiots, persons of unsound mind, 
 married women and infants.^ 
 
 In New- York the surrogate's court has a qualified jurisdiction to decree 
 the payment of legacies.? But as that court is one of limited jurisdic- 
 tion, and as legacies are frequently connected with trusts" which that 
 court cannnot enforce, it would seem, in general, that a court of equity, 
 which in all cases of legacies has concurrent jurisdiction, should be 
 resorted to in the first instance. 
 
 The former statute law of this state, and the Revised Statutes more 
 fully, have conferred upon courts of law a jurisdiction, in certain cases, to 
 enforce the payment of legacies.^ But the consideration of the remedies 
 in a court of law, and before the surrogate, does not belong to the present 
 treatise. The jurisdiction of a court of equity in this matter is not 
 impaired by any of the statutes, and it will be found, in general, to affiard 
 the most complete remedy in all cases ,; and the exclusive remedy, when 
 the execution of complicated trusts is involved. In addition to this, as 
 was shown in a former part of this work, when a legacy is payable at a 
 future day, an executor may be compelled to bring the money into court, 
 or to give security;' and equity will marshal the assets in favor of 
 legatees, as between them and the heir, or creditors having liens.' The 
 
 Doe V. Tofield, 11 East, 246. Wall v. • 2 E. S. 91, §§ 43, 47. Id. 116, § 18. 
 
 Langlands, 14 id. 370. Roe v. Patter- Id. 96, § 75. 
 
 son, 16 id. 221. ' 2 E. S. 114, 450 et seq. 1 E. L. of 
 
 » 2 Bl. Com. 601, 502. Watts v. Pub- 1813, p. 314, § 19. De Witt v. Schoon- 
 
 lio Adm. 4 Wead. 168. maker, 2 J. E. 243. 11 Paige, 87. 
 
 • 2 E. S. 68, § 40. ' Liipton v. Lupton, 2 J. Oh. E. 614. 
 
 * Id. 60, § 21. " Livingston v- Livingston, 8 J. Oh. E. 
 » Id. 56, § 1. 148. 
 
500 TRUSTg. [Ch. 7. 
 
 remedy in these respects, in a court of law and in the surrogate's court, 
 is imperfect and defective. It is adequate only in plain cases, in which 
 there is no other trust but to pay the legacy.' 
 
 Nor can an action at law be sustained to recover a legacy, until the 
 executor has assented to it. Until such assent be given, the title of the 
 legatee is incomplete. This results from the general principle that all 
 the property of the testator, which the law denominates assets, to be 
 applied and distributed as the personal estate of the testator jor intestate," 
 devolves upon the executor, as the representative of the testator, upon 
 trust in the first place to discharge the testator's debts.' The whole 
 personal estate is thus in the first instance to be applied, and the execu- 
 tor is responsible to the creditors for the satisfaction of their demands, 
 to the extent of the whole estate, without regard to any direction in the 
 testator's will to the contrary. This assent is defined to be the agreement 
 of an executor or administrator that a legatee shall have the thing 
 bequeathed unto him. And it is either eorpress or implied ; the former, 
 when the executor or administrator, by express words, agrees to the 
 legacy, and the latter, when the executor or administrator does not by 
 words, but by some overt act, declare his assent that the legatee shall 
 have the thing bequeathed to him.^ 
 
 The assent of the executor or administrator is not necessary in the 
 case of a devise of land. It is required only in the case of a bequest 
 of chattels, either real or personal.' From the nature of the case, it is 
 only required when the bequest is of such things as are assets in the 
 hands of the personal representatives for the payment of debts. 
 
 If there be many executors, the assent of any one or more of them is 
 sufficient." 
 
 But though an action at law cannot be maintained against an executor 
 for a legacy, until he has assented to it, unless there be some statutory 
 regulation to the contrary, yet a court of equity could always enforce 
 payment of a legacy, after it became payable, if there be sufficient assets, 
 whether the executor assented or not.' This is merely compelling the 
 executor, who with respect to the legatees is a trustee, to execute his 
 trust, which is the appropriate province of a court of equity. 
 
 If a legacy be charged on real estate, it seems no action at law can be 
 sustained to enforce it, but the remedy is exclusively in a court of equity." 
 
 ' Stagg V. Jacksou, 2 Barb. Ch. E. 86. « Shep. Touch. 456. 
 
 » 2 B. S. 82, § 6. ' Day v. Trig, 1 P. Wms. 287. 
 
 ' 2 E. S. 87, § 25. 1 Will. Ex. 411. ' Pelletreau v. Eathbone, 18 J. E. 426. 
 
 * Shep. Touch. 455. Livingston v. Livingston, 8 id. K.189. 
 
 'Id. 
 
Ch. 7.] Legacies. 501 
 
 Nor can an action at common law be maintained for a legacy in a court 
 of law. In the leading case, where this question was directly involved,' 
 it was said by Lord Kenyon, that no action, till lately, (except one in the 
 time of the commonwealth,) has been supported for a legacy in a court 
 of law, and he thought the upholding such action would be attended with 
 the most pernicious consequences. The reason why such action was 
 maintainable at common law, at the time of the commonwealth, was, that 
 at. that time the ecclesiastical courts which had the exclusive jurisdiction 
 of legacies were abolished, and the court of chancery did not assume ju- 
 risdiction till the time of Lord Nottingham. There would, therefore, 
 have been a failure of justice, had courts of law declined jurisdiction. 
 
 But there are numerous other reasons why equity is the proper tribu- 
 nal in these cases. If the legacy be to a married woman, the husband, 
 if an action at law would lie, could get possession without making pro- 
 vision for his wife. In such a case a court of equity looks to the interest 
 of the wife, and will not permit the husband to obtain the legacy without 
 making suitable provision out of it for the wife and her children." 
 
 It is not denied that an executor may make himself personally liable 
 to an action at law, by a special promise to pay a legacy. Such promise 
 is an admission of assets.' 
 
 Since the time of Lord Nottingham, the jurisdiction of courts of equity 
 over legacies has not been questioned ; and in cases where the legatee is 
 proceeding to recover the legacy in a court, where full redress and pro- 
 tection to all persons interested cannot be given, courts of equity will 
 restrain, by injunction, proceedings in the subordinate court, and draw to 
 its own jurisdiction the whole subject matter. Where the legacy is a 
 charge upon land, it follows the rule of the common law, and was not cog- 
 nizable in the spiritual court in England, and is not cognizable in the 
 surrogate's court in this state, except in peculiar cases. Where the will 
 directs real and personal estate to be sold by the executors, and makes 
 but one fund of the real and personal property of the testator for the pur- 
 poses of the will, it seems the statute is broad enough to give the surro- 
 gate jurisdiction of the whole matter.* , 
 
 But where the legacy is merely personal, the court follows the rule of 
 the civil law, because personal legacies were properly cognizable jn the 
 
 ' Deeks and Wife v. Strutt, 5 D. & E. ' Ohilds v. Monin.s, 2 Brod. & Bing. 
 
 687-690. 460. De Witt v. Sohoonmaker, 2 J. R. 
 
 ' Id. Brown v. Elton, 3 P. Wms. 202. 243. Bgeoker v. Beecker, 7 J. R. 99. 
 
 Howard v. Moffat, 2 J. Ch. R. 206. * Stagg v. Jackson, 2 Barb. Ob. R. 86. 
 
502 Trusts. [CL T. 
 
 spiritual court, and equity always considered itself as bound to follow the 
 rules of that court, to which the jurisdiction properly bolonged." 
 
 The foregoing observations are enough to illustrate the jurisdiction of 
 courts of equity over legacies, and the grounds on which it rests. Inde- 
 pendent of the question of trusts, which of itself is an ample source of ju- 
 risdiction, there are other elements which often enter into the question, 
 such as the necessity of a discovery of assets, an injunction against a mis- 
 application thereof, and an account of the administration. 
 
 It will be convenient in this place to add some observations on the dif- 
 ferent kinds of legacies, and some of the incidents to which they are 
 subject. 
 
 Legacies, with respect to their subject matter, are either general or 
 specific ; with regard to the interest acquired by. the legatee, they are 
 vested or contingent : and with regard to the certainty of enjoyment, 
 they are absolute or conditional. General legacies are sometimes called 
 pecuniary legacies. A legacy of quantity is ordinarily a general legacy ; 
 but there are legacies of quantity in the nature of specific legacies ; as of 
 so much money, with reference to a particular fund of payment. This 
 kind of legacy is called by the civilians a demonstrative legacy ; because 
 it points to a fund out of which satisfaction may be made. It partakes 
 of the nature of general legacies, in this, that if the fund pointed out 
 fails, the legatee is entitled to resort to other portions of the estate ; and 
 it is so far specific that it will not be liable to abate with general legacies 
 on failure of assets.^ All legacies may be reduced to one or the other of 
 the above kind ; and we will consider . together general and specific 
 legacies. 
 
 A legacy is said to be general when it is so given as not to amount to 
 a bequest of any particular thing, or money of the testator, distinguished 
 from all others of the same kind. A legacy is specific when it is a be- 
 quest of a specified part of the testator's personal estate, which is so dis- 
 tinguished.' . Thus, for example, a legacy of a diamond ring is a general 
 legacy, which may be fulfilled by the delivery of any ring of that kind ; 
 while a legacy of a diamond ring presented to me by A. is a specific leg- 
 acy, and can only be satisfied by the delivery of the identical subject.* 
 Where the testator devises to his wife all his personal estate at W., this 
 is a specific legacy, and is the same as if he had enumerated all the par- 
 
 ' Eeynish v. Martin, 3 Atk. 8.33. » Bradford v. Haynes, 7 Maine K. 105. 
 
 " Ooleman v. Ooleman, 2 Ves. jr. 640, * 2 Fonb. B. 4, pt. 1, ch. 2, § 5. 2 Will, 
 
 per Lord Longhborough. Kobert v. Po- Ex. 739, 
 oook, 4 Ves. 100. 
 
Ch. 7.] Legacies. 503 
 
 ticulars there.' _ So a bequest of all the testator's right, interest and prop- 
 erty in thirty shares of the Bank of the United States, is a specific legacy.* 
 So a bequest of " the proceeds of a bond and mortgage I hold against S." 
 is a specific legacy.' So a bequest of S. of the amount of his bond and 
 mortgage to the testator, is a forgiveness of the debt, or a specific legacy, 
 and not a pecuniary legacy.^ 
 
 The distinction between general and specific legacies is of the utmost 
 importance ; for as it will appear more fully hereafter, if there be a defi- 
 ciency of assets, a specific legacy will not be liable to abate with general 
 legacies ; while on the other hand, if the specific legacy fail by the 
 ademption or inadequacy of its subject, the legatee will not be entitled to 
 any recompense or satisfaction out of the general personal estate. So 
 though specific legacies have in some respects the advantage of those that 
 are general, yet in other respects they are distinguished from them to 
 their disadvantage.^ 
 
 -There are two kinds of gifts included under the description of specific 
 legacies. The first is where a particular chattel is specifically described 
 and distinguished from all other things of the same kind ; and the second, 
 where something of a particular species is bequeathed, which the executor 
 may satisfy by delivering something, of the same kind, as a horse, a dia- 
 mond ring, &.C. The first kind may perhaps be more properly called an 
 individual legacy ; and if the thing so bequeathed be not found among 
 the testator's effects, it fails.' It is to the first kind that the doctrine of 
 ademption applies. If, for an example, a specific debt be given, and the 
 testator in his lifetime receive payment of the debt, the legacy is gone.' 
 But this doctrine of ademption does not apply to the second class, where 
 the legacy is rather demonstrative, and merely points to the fund out of 
 which it is to be paid.^ 
 
 A legacy of quantity is ordinarily a general legacy ; but there are leg- 
 acies of quantity, in the nature of specific legacies ; as of so much money, 
 with reference to a particular fund for payment. This kind of a legacy 
 is called by the civilians a demonstrative legacy, and it is so far general, 
 and it differs so much in effect from one properly speci^c, that if the fund 
 
 ' Sayer v. Sayer, 2 Vern. 688. = 2 Fonb. Eq. B. 4, pt. 1, ch. 2, § 6, note o. 
 
 ' "Walton V. Walton, 7 J. Oh. B. 262. Selwood v. Mildmay, 3 Ves. jr. 310. 
 
 » Gardner v. Printnp, 2 Barb. S. 0. K. 83. Purse v. Snaplini, 2 Atk. 41 6. 
 * Shell V. Shell, 5 Barb. 312. ' "Walton v. "Walton, 7 J. Ch. R. 262. 
 
 ' Ashten v. Ashton, 3 P. "Wms. 384. » Id. 
 Walton V. Walton, 7 J. Ch. K. 267. 
 
504 Trusts. [Oli. 7. 
 
 be called in, or fail, the legatee will not be deprived of his legacy, but 
 be permitted to receive it out of the general assets.' 
 
 In a recent case the rules on this subject were thus applied by the su- 
 preme court, in the following case : The will of the testator contained this 
 legacy : " My wife having now in her possession eight hundred and fifty 
 dollars, I direct my executor to pay her one hundred and fifty dollars 
 more, so as to make her the sum of one thousand dollars; my meaning 
 and intention is to give her one thousand dollars." This was held to be 
 a general legacy of one thousand dollars ; eight hundred and fifty dollars 
 of it, referred to as being in the hands of the legatee, being demonstra- 
 tive, and the onus lay with the executor to show that the legatee had at 
 the death of the testator that sum in her bands. And it was held further, 
 that if the testator in his lifetime withdrew the said sum of $850) and 
 invested it in a different way, it did not operate as an ademption of the 
 legacy.'' 
 
 The courts are in general averse from construing legacies to be spe- 
 cific ; and the intention of the testator that they should be so, must be 
 clear.' If, says Chancellor Kent, there be the least opening to imagine 
 the testator meant to give a sum of money, and referred to a particular 
 fund only, as that out of which he meant it to be paid, it shall be con- 
 strued pecuniary, so that the legacy may not be defeated by the destruc- 
 tion of the security.* 
 
 The cases both in the English and American books turn often upon 
 nice and shadowy distinctions between a general and specific legacy ; and 
 it must be conceded that they cannot all be reconciled. 
 
 As the leaning of the courts is thus towards the construction which will 
 render the legacy general, rather than specific, it is incumbent on the 
 party claiming the legacy to be specific, to show such unequivocal expres- 
 sions in the will, as will leave no room to infer an intention that the 
 legacy should be general. Bank stock, government securities, bonds and 
 mortgages, and the like, are frequently the subject of specific bequest. 
 When they are so clearly indicated as to distinguish them from all other 
 things of the like kind, and the corpus is given, and it is not merely 
 
 ' Enders v. Enders, 2 Barb. S. 0. E. S. 0. Wilcox v. Rhodes, 2 Buss. 452. 3 
 
 366. Touch. 433. 2 "WUl. Ex. 790. El- Oond. Oh. R. 196, S. 0. 
 lis V. "Walker, Ambl. 310. Chaworth v. ° Enders v. Enders, supra. 
 Beaoh, 4 Yes. 555. Gillaume v. Adder- » Ellis v. Walker, Ambl. 310. Eoote, 
 
 ly, 15 Ves. 384. Mann v. Copland, 3 appellant, 22 Pick. 302. Briggs v. Hos- 
 
 Mad. Oh. E. 223. Fowler v. Willougbby, ford, id. 209. Enders v. Enders, 2 Barb. 
 
 2 Sim. & Stu. 354. 1 Oond. Oh. E. 498, S. 0. E. 367. 
 
 ' Walton V. Walton, 7 J. Oh. E. 263. 
 
Ch. 7.] Legacies. 505 
 
 pointed to as the source from vrhieli satisfaction of the legacy can be 
 ^ obtained, it is specific. 
 
 In the earlier cases the rule seem^ to have been, when stock was 
 bequathed, that if the testator owned the stock described, at the time of 
 making the will, the bequest must be considered specific. Thus, in an 
 early case,' the testator bequeathed to his two daughters " two thousand 
 seven hundred and two pounds three shillings, capital stock in the Bank of 
 England, and two thousand pounds sterling capital stock in the English 
 East India Company, to be equally divided between them." At the time 
 of making the will the testator had the precise amount of each kind of 
 stock mentioned in the will, but before his death sold seven hundred and 
 two pounds three shillings of his bank stock, so that at his death he had 
 only two thousand pounds of each kind of stock. The legatees insisted 
 that the legacies were genercd, and that they had a right to have the 
 amount made up out of the residue of the personal estate of the testator. 
 On the other hand the executors insisted that the legacies were specific, 
 and that the sale by the testator, in his lifetime, of a portion of the bank 
 stock, was an ademption pro taiito of the legacy. The court so held, 
 upon the ground that the testator had the identical stock bequeathed at 
 the time the will was made. In this case there was no other circum- 
 stance appearing on the face of the will to indicate an intention that the 
 legacies were specific, than the possession by the testator, at the time he 
 made his will, of the identical corpus or subject of the legacy ; and that 
 was held enough for that purpose. This doctrine seems to have been . 
 followed or recognized in many other cases.'* It has also been followed 
 in Massachusetts.' In some of the cases there was no additional circum- 
 stance to raise or qualify the intention of the testator. It was presumed, 
 because the testator had the precise thing which he bequeathed, that 
 the bequest was a specific bequest of that thing, and that the legacy was 
 adeemed by the destruction of the thing, or by the testator's parting with 
 it before his death. Ademption is a necessary incident to a specific 
 legacy. By parting with the thing bequeathed in his lifetime, the tes- 
 tator indicates an intention that the legacy shall fail. But independently 
 of intention, the ademption is in general a rule of law, and the legacy is 
 gone, with the destruction of its subject, or its ceasing to be a part of the 
 testator's effects. But this rule, however, does not apply to the variation 
 
 ■ Jefiereys v. Jeffereys, 3 Atk. 120. 9 Ves. 360. Ashton v. Ashton, 3 P. 
 
 » Selwood V. Mildmay, 3 Ves. jr. 310. "Wms. 384. 
 
 Ashbnrner v. McGuire, 2 ?ro. Oh. E. 108. ' White v. Winchester, 6 Pickering, 48. 
 
 Badrick v. Stevens, 3 id. 431. Innes v. Foote, appellant, 22 id. 299. 
 Johnson, 4 Ves. 569. Fryer v. Morris,, 
 
 Eq. Jub. 64 
 
506 Trtjsts. [Ch.T. 
 
 of the testator's iilterest iri the thing bequeathed, producect by operation 
 of law, and without any act on his part indicating an intention to adeem 
 the legacy.' Thus, where the bequest was of bank shares in the Bank 
 of the United States, the charter of which expired, and the funds were 
 conveyed to trustees, those funds retained the character of the original 
 bequest, and were substituted for it.' 
 
 On the other hand, there are cases which hold that the mere possession 
 by the testator, at the date of hia will, of stock, &c. of equal or larger 
 amount than the legacy, Will not make the bequest specific when it is 
 given generally of stocks or annuities,' or of stocks or annuities in or out 
 of particular funds,' without further explanation. The distinction goes 
 upon the ground that the testator meant only to direct his executor to 
 |)urchase, with his general estate, so much stock, &c. in the fund described. 
 And therefore the description fails to have that precise character which 
 seems to be essential to a specific legacy. So a legacy of £1000 out of 
 my reduced bank annuities is held a general pecuniary legacy, and not 
 specific.^ Such a legacy is at most a demonstrative legacy ; or in other 
 words, it is in the nature of a spetiific legacy. It points to the fund out of 
 ■which it is to be made, but is not a specific legacy of the fund itself 
 
 The doctrine that the mere possession by the testator of the exact 
 thing bequeathed, at the time of mjiking the will, does not of itself con- 
 stitute a specific legacy, was carried to its furthest extent in a recent case 
 in the New- York cotflrt of appeals." In that case, the testator, at the 
 date of his will and at his death, was the owner of 360 shares of bank stock 
 standing in his name in the Cayuga County Bank. He gave by his will 
 the whole of that stock, to his wife and a female relative. The language of 
 the will was thus : " Second, I give, devise and bequeath unto my wife TJ. S., 
 240 shares of bank stock in the Cayuga County Bank, at Auburn ; also all 
 my household furniture, books^ wearing apparel. All of which property and 
 bank stock above mentioned are to be delivered to her as soon as may bo 
 after letters testamentary shall have been granted and issued on this will, 
 and in lieu of dower. Third, I give, devise and bequeath to H. S. G., one 
 hundred and twenty shares of stock in the Cayuga County Bank, at Au- 
 burn^ to be transferred to her as soon as letters testamentary shall be 
 issued and granted on this will." There were other legacies in the willy 
 
 ' 'Walton V. "Walton, 7 J. Oh. E. 2&5. ' Purse v. Snaplin, 1 Atk. 415 and 
 (Jkdner v. Printup, 2 Barb. S. 0. R. 88. notes. 
 
 " Id. • Kirby v. Potter, 4 Ves. 748. Dean 
 
 ' "Webster v. Hale, 8 Ves. 410. "Wilson v. Test, 9 id. 146. 
 V. Brownsmith, 9 id. 180. « Tiflft v. Porter, decided in 1858,' 4- 
 
 Seld. 
 
eh- '7.] Vested and Contingent Legacies., 507 
 
 but none which tended to explain either of the above. The supreme court 
 in the seventh district held the above legacies to be specific, and that the 
 legatees were entitled to the dividends declared and a^crwing thereon from 
 the death of the testator. The court of appeals reversed that judgment, 
 and held the legacies to be general and not specific. 
 
 There are some Engli^ cases, in modern times, that have gone to the 
 extent of the New- York court of appeals, in Tifft v. Porter.' But it is 
 not intended, in this connection, to review, or to attempt to reconcile all 
 the cases on this subject, 
 
 A legacy bequeathed to be paid out of a particular debt is not a regu- 
 lar specific bequest, but in the nature of a specific legacy, as has been 
 already noticed. Such legacies do not fail in consequence of the non-ex- 
 istence of the fund out of which they were directed to be paid, but are 
 entitled to be satisfied out of the general assets of the testator. They 
 have, however, one of the incidents of specific legacies, in this, that they 
 Lave precedency of payment out of the debt or security to which they 
 refer.* 
 
 A devise of land is specific ;' and so also is a bequest of a term for 
 years.* Such was the former rule. But since the statute has placed 
 real and personal property upon the same footing, to a great extent, by 
 removing the technical difficulty of devising after acquired land, it is 
 considered that real estate may be, as well as peisonal, the subject of 
 general bequest or devise. 
 
 SECTION VIL 
 
 OF VESTED AND CONTINGENT LEGACIES, AND OF LAPSE. 
 
 We will now proceed to make some observations on legacies, vested 
 and contingent ; and under this head we will notice the doctrine of lapse, 
 with reference to legacies. A legacy is not said to be vested until the 
 the interest of the legatee is so fixed as to be transmissible to his .per- 
 sonal representatives, in case he should die before the legacy becomes 
 payable. 
 
 The general principle with respect to the doctrine of lapse is that if 
 
 ' Sibley v. Perry, 7 Ves. 522, Wilson » Forrester v. Leigh, Ambl. 173. 
 V. Brownsmith, 9 id. 180. * Lqng y. Short, 1 P, Wms. 408. 
 
 ' Roberts v. Pocock, 4 Ves. 150. 
 
508 . Trusts. [Ch. t 
 
 the legatee die before the testator's decease, or before any other condi- 
 tion precedent to the vesting of the legacy is performed, the legacy 
 lapses, and is not payable to the executors or administrators of the lega- 
 tee.' This is the necessary result of the rule, that a will does not take 
 effect until the death of the testator.'' 
 
 With respect to the vesting of legacies, a distinction is made between 
 such as are payable out of real or personal estate, or out of both funds. 
 As has already been shown, legacies are primarily payable out of the 
 personal estate,- though the real estate be charged.' We shall first con- 
 sider those which are payable out of the personalty, and then point out 
 the distinction between them, and such as are payable out of the realty, 
 or chargeable upon both funds. 
 
 As a general rule, legacies are vested by the assent of the executor, 
 immediately on the testator's death, if given generally.* And it has 
 been established from the earliest periods, both in the ecclesiastical 
 courts and court of chancery in England, that unless the legatee survive 
 the testator, the legacy is extinguished ; neither can the executors or ad- 
 ministrators of the legatee demand the same.= But the New- York 
 Revised Statutes have altered this rule, when the devise or legacy is ia 
 favor of a child or other descendant of the testator. It is thus enacted :' 
 " Whenever any estate, real or personal, shall be devised or bequeathed 
 to a child or other descendant of the testator, and such legatee or de- 
 visee, shall die during the lifetime of the testator, leaving a child or 
 other descendant who shall survive the testator, such devise or legacy 
 shall not lapse, but the property so devised or bequeathed shall vest in 
 the surviving child or other descendant of the legatee or devisee, as if 
 such legatee or devisee had survived the testator and had died intestate." 
 If, therefore, the devise or legacy be to a person other than a child, or 
 other descendant of the testator, or if the child or other descendant of 
 the legatee or devisee do not survive the testator, the common law rule 
 still prevails, and the legacy lapses. 
 
 A legacy may lapse by the death of the legatee before the testator, 
 and it may lapse by the death of the legatee after the death of the tes- 
 tator. We shall notice a few cases under each of these heads. Swin- 
 burnfe puts the case of the testator and legatee being drowned in the 
 
 ' Androvi v. Poilblano, 3 Atk. 299. * Chandos v. Talbot, 2 P. Wms. 610. 
 
 Birdsley v. Hewlett, 1 Paige, 82. ° Went. Ex. 436. Swinb. pt. 7, § 28. 
 
 » Bao. Abr., Leg. E. 1 Eep. 156. 
 
 ' McKay v. Green, 3 J. Oh. R. 56. Lnp- • 2 E. 8. 66, § 52, 
 ton y. Lupton, 2 id. 614. Hoes r. Van 
 Hoesen, 1 Oouigt. 120. 
 
Ch. 7.] Vested and Contingent Legacies. Lapse. 509 
 
 same ship, or both being struck to death by the fall of a house, in which 
 case he lays it down, that as they both died at the same time, the legacy 
 is not due, and consequently not transmissible to the executors or admin- 
 istrators of the legatee. In a modern case, in the prorogation court,' a 
 husband had appointed his wife executrix and residuary legatee, and he 
 and his wife were drowned in the same ship ; the contest was whether 
 administration of the estate of the husband cum testamento annexo 
 should be granted to the next of kin of the testator, or the next of kin 
 of the wife as residuary legatee. By the practice of the ecclesiastical 
 courts, if the wife had lived to be entitled as a residuary legatee, her 
 next of kin would have had a right to the administration in preference 
 to the next of kin of the husband. But Sir John Nicholl held, that the 
 next of kin of the husband had a prima facie right, and, therefore, that 
 the onus of proof lay on the party who claimed derivatively from the 
 residuary legatee, to show that she survived, so as to prevent the lapse 
 of the legacy ; and as no satisfactory evidence was adduced for that pur- 
 pose, the court decreed the administration to the next of kin of the 
 husband, as being clearly entitled, on thfe assumption that he and the 
 wife perished at the same moment. 
 
 The bequest by a creditor to his debtor, of the amount of his 
 debt, may be a mere release of the debt, or it may be a legacy, a,nd 
 subject to the ordinary consequences of lapse by the death of the legatee 
 before the testator, depending on the phraseology of the will. In one 
 case, where the language of the will, after giving various other legacies, 
 which were charged upon the testator's real estate, was thus : " I give 
 and bequeath to my brother J. S. the amount of a certain bond and mort- 
 gage which was executed by him and wife to me, on, (fee. for $656 ; also 
 the interest on the same. Also the amount of two notes I hold against 
 him," describing them. This was held to be a forgiveness of the debt, 
 and that it was not the intention that the legatee should share any por- 
 tion of the real estate, upon which the other legacies were charged.^ 
 
 If such bequest be a legacy and not merely a release of a debt, the 
 death of the legatee before the testator occasions the legacy to lapse, and 
 leaves the debt still operative against his estate. Thus, where the words 
 of the will were, " I devise to my brother £2000. I also return him hia 
 bond for £400, with interest due thereon, which he owes me ;" and the 
 brother having died in the lifetime of the testator, the question was, 
 
 ' Taylor v. Diplock, 2 Philm. 261. = ShoU v. Shell, 5 Barb. 312. 
 Wright V. Sarmuda, or Gen. Stanwix's 
 cose, in notes to same. 
 
510 Trusts. [Ch. T. 
 
 whether the disposition of the bond by the will amounted to a release, or 
 was only a legacy, and therefore lapsed. Lord Loughborough held that it 
 was a legacy, and that it had lapsed.' 
 
 Nor does it alter the rule if the legacy expressly contains words of lim- 
 itation. Thus, where a legacy is given to- a man, his executors, adminis- 
 trators and assigns, if, in such case, the legatee dies in the life of the 
 testator, though the executors are named, yet the legacy is lost ; for the 
 words executors, administrators and assigns are mere surplusage, inas- 
 much as they would by law have taken the legacy in succession, whether 
 named or not.' It was admitted, in that case, that a will might be so 
 penned as that the executors and the legatee should have the legacy, 
 though the legatee died in the lifetime of the testator ; yet it ought to ap- 
 pear in the will plainly, and by direct words, that that was the testator's 
 intention. And though a will could not inure as a release, even supposing 
 it to be sealed and delivered, for want of its taking effect in the testator's 
 lifetime, yet, provided it were expressed to be the intention of the party 
 that the debt should be discharged, the will would operate accordingly. 
 
 It is the established rule of courts of equity that a testator is never to 
 be supposed to mean to give any thing but to those who shall survive him, 
 unless the intention is perfectly clear. Where the fund is given to one 
 for life, and after the death of that person to several others, and in case 
 pf their death to their representatives, there is no reason to presume an 
 intention, that it shall not lapse by the death of the legatee in the life of 
 the testator. It is impossible, without transgressing every rule as to vest- 
 ing, to hold a legacy vested, when the legatee does not live to take the ben- 
 efit under the testator's will.' So, if a legacy be given to a man, and 
 directed to be paid to him or his executors, or administrators, or personal 
 representatives, or to his hesirs, at the end of a year after the testator's 
 ^eath, and the legatee die before the testator, the legacy intended for him 
 will lapse.* 
 
 In Pennsylvania, where there is a law similar to that of this state 
 relative to the lapse of legacies and devises, it has been held that a bequest 
 to a niece^and her heirs, beca,me lapsed by the death of the legatee before 
 the testator. The court held that the word " heirs" could not operate in 
 favor of the " issue," for which alone the statute provided. The Pennsyl- 
 vania act prevented a lapse of a legacy bequeathed to a child or other lin- 
 eal descendant if the legatee die before the testator, leaving a child or 
 
 ' Maitland y. Adair, 8 Ves. 281. ' Corbyn v. French, 4 Ves. 435. 
 
 ' Elliot V. Davenport, 1 P. Wms. 83. * Tidwell v. Ariel, 8 Mad. Oh. K. 403. 
 
Ch. 7.] Lapse. 511 
 
 other lineal descendant, who survived the testator.' This is substan- 
 tially like the New- York statute. 
 
 The general rule with respect to the lapse of a legacy or devise can be 
 controlled in cases not within the statute, by the declared intention of the 
 testator that the legacy shall not lapse, and by the substitution of the ex- 
 ecutors or administrators of the legatee. Thus, in a case before Lord 
 Hardwicke,' the testatrix bequeathed as follows : "I give and devise the 
 several legacies and sums following, which I will shall be paid to the sev- 
 eral persons hereinafter named, and that if any of those persons should die 
 before the same become due and payable, I will that they, or any of them, 
 shall not be deemed lapsed legacies." She then particularized the several 
 legatees, and said, " to Ann the wife of Richard Wensley and to his ex- 
 ecutors, or administrators, I give the sum of fifty pounds." Ann died in 
 the lifetime of the testatrix, and her husband administered to her. The 
 question was whether the legacy lapsed by reason of the death of the 
 legatee first named. Lord Hardwicke determined in the negative, and 
 said that the testatrix expressly provided against the lapsing, " if Ann died 
 before her, for she says, ' if any of these persons die before the same become 
 due or payable, I will that they or any of them shall not be deemed lapsed 
 legacies,' and subsequently to this devises 'to Ann and to her executors 
 and administrators fifty pounds,' so that in case of her death before the 
 testatrix, other persons are named to take."" His lordship seems to have 
 thought that unless the executors or administrators had been named in 
 substitution for the legatee first namedj the general rule would have pre- 
 vailed, and the legacy become lapsed on the death of the legjitee before 
 the testator. For he says, if a man devises a real estate to J. S. and his 
 heirs, and signifies or indicates his intention, that if J. S. die before him, 
 it should not be a lapsed legacy, yet unless he had nominated another leg- 
 atee, the heir at law is not excludedj notwithstanding the testator's dec- 
 laration. So in the devise of a personal legacy to A., though the testator 
 should show an intention' that the legacy should not lapse in case A. die 
 before him, yet this' is not sufficient to exclude the next of kin. The 
 same doctrine has been foUow'ed' in subsequent cases.' 
 
 Under the New- York statute it is not necessary, to prevent a lapse, 
 that the testatbi' sheuld indicate his intention to that effect. The statute 
 prevents the lapse of the legacy, if it be to a child or other descendant of 
 the testator, and the legatee dies before the testator, leaving a child or 
 
 ■ 8 Serg. & K. 71. v. Abbott, 3 Bro. C. 0. 224. Elliott v. 
 
 » Sibley v. Cook, 3 Atk. 572. Davenport, 1 P. Vms. 86. 
 
 ' Toplis v. Barker, 2 Cox, 121. Bridge 
 
512 Trusts. [Ch. 7. 
 
 other descendant, who survives the testator. In other cases the rule of 
 the common law prevails. 
 
 It is laid down by elementary writers on this subject,' that if a legacy 
 be so given as to be payable at the testator's death, the period of receipt 
 not being expressly postponed by him, and if the form of bequest be to 
 the legatee or his personal representatives, the legacy will not lapse by 
 his death before the testator ; and for these reasons : There is no period 
 at which the representatives can take, as intended by the will, except in 
 consequence of the legatee dying in the lifetime of the testator ; the tes- 
 tator's intention, therefore, in naming the representatives, must have been 
 to guard against a lapse by the death of the legatee before him. The in- 
 tent is as manifest as if actually expressed ; and since persons are desig- 
 nated to take the legacy upon the happening of that contingency, there is 
 an union of the two circumstances, which are required, and- are sufficient 
 to prevent the lapsing of the legacy. These two circumstances are the 
 expressed intention of the testator, and the substitution of the executors 
 or administrators. 
 
 In case a legacy be given to two or more persons jointly, and one of 
 them dies before the testator, there is no lapse, but the survivor takes 
 the whole.'' In the case of a joint devise or legacy, if for any reason one 
 of the joint tenants cannot take, the other shall have the whole.^ 
 
 A different rule prevails where the legacy is to several as tenants in 
 common, as where an aggregate fund is to be divided amongst them, 
 nominatim, in equal shares, if any of them die before the testator, what 
 was intended for them will lapse into the residue.* 
 
 Where a legacy is given to a class, as to the children of A., and no period 
 is fixed for its distribution, it is considered as due at the death of the 
 testator, and none but children who were born or begotten before that 
 time are entitled to share in it. But if the legacy be payable at a cer- 
 tain period after the death of the testator, all the children who are in esse 
 at that, time will be entitled to share.' A bequest to a class, in equal 
 shares, the fund to be invested and paid to them severally, as they become 
 of age, vests only in those who are living at the testator's death.' Of 
 course the death of one of the class before the death of the testator will 
 occasion no lapse, but those of the described class who survive will take 
 the whole. 
 
 ' 1 Eop. Leg. 410. 2 Will. Ex. 761. Page, 2 P. Wms. 489. Bagswell v.Dry, 1 
 
 " Buffar V. Bratlford, 2 Atk. 220. Mos- id. 700. Marsh v. Wheeler, 2 Edw. 156. 
 
 ley V. Bird, 8 Ves. 628. > Jenkins v. Fryer, 4 Paige, 47. 
 
 ' Dowset V. Sweet, Ambl. 175. • OpUin v, Oollin, 1 Barb. Oh. K. 630. 
 * Man v. Man, 2 Str. 905. ?age v. 
 
Ch. t.] Vested Legacies. 513 
 
 If a legacy be given to one for life, with remainder over, and the tenant 
 for life dies before the testator, the remainder over takes effect upon the 
 dfiath of the testator.' 
 
 Having noticed some of the cases with reference to the lapse of lega- 
 cies, by the death of the legatee before the testator, we will proceed now 
 to consider others where legacies lapse by the death of the legatee after 
 the death of the testator. 
 
 In general, it may be observed, that the court favors the vesting of 
 interests,' especially of a residuary bequest, in order to prevent an intes- 
 tacy.' It has already been remarked that legacies, if given generally, 
 are vested by the assent of the executor, immediately on the death of the 
 testator.* The statute directing that no legacies shall be paid by any ex- 
 ecutor or administrator, until after the expiration of one year from the 
 time of granting letters testamentary, or of administration, unless the 
 same are directed by the will to be sooner paid,' is merely in affirmance 
 of the common law, and is for the convenience of the executor, and does 
 not prevent the interest vesting, immediately on the testator's death." 
 Hence, if the legatee happens to die within the year, his personal repre- 
 sentative will be entitled to the legacy. Nevertheless, the intention of 
 the testator, that the gift shall not vest in the legatee, until it should be 
 actually remitted to him, will prevail, when clearly expressed, provided 
 the remittance be not delayed by negligence or inevitable accident.' 
 
 But when a future time for the payment of the legacy is defined by the 
 will itself, the legacy will be vested or contingent, according, as upon 
 construing the will, it appears whether the testator meant to annex the 
 time to the payment of the legacy, or to the gift of it.* 
 
 In seeking for the intention of the testator in this respect, courts of 
 equity have borrowed from the civil law two rules of construction : 1. That 
 a legacy to a person generally, to be paid or payable at the age of twenty 
 one, or at any other definite period, confers such a vested interest in the 
 legatee, on the death of the testator, that if the legatee, surviving 
 the testator, dies before the age of twenty-one, or the happening of 
 the specified event, the legacy goes to Ms executors or administrators ; 
 upon the principle that' it is debitum in presenti, though solvendum 
 in futuro. The time in this case is annexed to the payment and 
 
 Hardwick v. Thurston, 4 Kuss. 380- » 2 E. S. 90, § 43.* 
 
 883. Bao. Abr., Leg. E. p. 240. • Garthshore v. Chalie, 10 Ves. 13. 
 
 ' Preseott v. Long, 2 Ves. 690 ' Law v. Thompson, 4 Kuss. 92. 
 
 = Bolger V. Maohell, 5 Ves. 509. Booth * Andrews v. N. T. Bible and" Prayer 
 
 V. Booth, 4 id. 407^ Book Society, 4 Sand. S. 0. K. 173, 174, 
 
 * Chandos v. Talbot, 2 P. Wms. 610. per Duer, J. 
 
 Eq. Jce. 65 
 
614 Tbusts, [Oh. 7. 
 
 not to the legacy. The eflfect, with respect to the resting of the leg- ■ 
 acy, is the same as if it stood singly, and no time of payment was men- 
 tioned. The direction of the will as to time of payment, whether longer 
 or shorter, is merely a modification of the rule, which the law would annex 
 to it, if no time of payment had been prescribed by the testator, 2. If 
 the words " payable" or " to be paid" are omitted, and the legacy is given 
 to the legatee at twenty-one, or, if or when or provided he shall attain 
 twenty-one or any other definite period, tho^e expressions annex the time 
 to the substance of the legacy, and make the legatee's title to it depend 
 on his being alive at the time fixed for its payment. It follows that if 
 the legatee dies before that time happens, although he snrvives the tes- 
 tator, the legacy is lapsed. The legatee, in that case, plainly has no 
 interest which can be transmitted to his personal representatives.' 
 
 A few illustrations of the first rule will be given, showing that the 
 legacy is vested, when the bequest is in terms immediate, and the pay- 
 ment alone is postponed. Thus, where the testator bequeathed to his son 
 £400, to he paid to him at the end of one year after his (the testator's) 
 death, and the further sum of £100 at the death of his mother : the son 
 died before his mother ; the question was, whether he took a vested 
 interest in the £100. And Lord Hardwicke held that he did, observing 
 that the legacy of that sum was plainly vested, and the time of payment 
 only postponed ; for the former words, " to be paid" were to be carried 
 on, as they would clearly be, if turned into any other language.'^ 
 
 In another case, a legacy was given to a;n apprentice, to be paid to him 
 within six months after he should have fully served out his apprenticeship. 
 The legatee, instead of serving out his time, ran away from his master, 
 and died intestate, after the period of his apprenticeship expired. The 
 court decreed the legacy to his administrator, with interest from the end 
 of six months, after the expiration of the apprenticeship ; and the house 
 of lords confirmed the decree.' 
 
 The foregoing, and other cases to the like effect, are approved by the 
 supreme court of this state in a case presenting the same principle, and 
 affording an apt illustration of the rule." In that case, the testator, after 
 bequeathing £3000 to trustees in trust to pay the interest to M. H. dur- 
 
 • Cricket V. Dolby, 8 Ves. 16. 2Vern. 609. Perry v. Rhodes, 2 Murphy, 140. 
 
 199. Hanson v. Graham, 6 Ves. jr. 239. Marsh v. Wheeler, 2 Edw. 156. 
 Attorney General v. Milner, 3 Atk. 114. " Jackson v. Jackson, 1 Ves. sen. 217. 
 Lowther v. Condon, 2 Atk. 128. Sweet ' Sidney v. Vaughn, 2 Bro. P. 0. 264. 
 v. Chase, 2 Oomst. 73. Tucker v. Ball, * Burrill v. Shell, 2 Barb. S. C. E. 458, 
 
 1 Barb. S. 0. E. 94. Burrill v. Schell, 2 470. 
 id. 458, 470. Bolger v. Maokell, 6 Ves. • 
 
Ch. T.] Vested and Contingent Legacies. 515 
 
 ing her natural life, and on her death to the sister of the testator, S. F., 
 during her natural lif&, and on her death he bequeathed the said three 
 thousand pounds " to the surviving issue of his said sister, share and 
 share alike, to be at their own disposal as soon as they shall have re- 
 spectively and severally attained the age of twenty-five years, the inter- 
 est to be paid to them until they shall have severally attained the age of 
 twenty-five years aforesaid." The court held, on this point, that the 
 principal sum was well given to the surviving isstte of S. F., the testator's 
 sister, immediately on her death, to be at their own disposal, as they should 
 respectively attain the age of twenty-five years ; and, until that age, the 
 executors and trustees were authorized to pay over the interest to the said 
 issue. The words, " to be at their disposal," taken in connection with 
 the disposition of the interest, conferred, in the opinion of the court, on 
 the surviving issue, a vested interest on the death of S. F., the testator's 
 sister ; or, in case of her death before M. H., the first legatee or life, on 
 the death of the latter. The legacy thus vested in interest on the death 
 of the testator, though not in full enjoyment until the death of the lega- 
 tees for life, and the attaining of the age of twenty-five years by the leg- 
 atees respectively. The court, in this case, considered that the disposi- 
 tion of the interest was a plain indication of the testator's intention that 
 the legatee should at all events have the principal.' 
 
 But this rule we are considering must nevertheless yield to the clear 
 intention of the testator to the contrary, if from the whole scope of the 
 will it appears, beyond reasonable doubt, that the testator did not intend 
 the legacy to vest until the period of payment. It is a rule adopted from 
 the practice of the ecclesiastical courts, and is applicable only to personal 
 legacies, but not as to real estate ; it is not much favored, and is not to 
 be extended. 
 
 The other positive rule, namely, when the words " payable," or " to be 
 paid," are omitted, and the legacy is given " at " twenty-one, or if, when, 
 or provided the legatee attains twenty-one, or any other definite period. 
 In this case the legacy is contingent, and does not vest, and is not trans- 
 missible to the executors or administrators of the legatee, unless he sur- 
 vives the period fixed by the will. A few cases on this subject will be 
 given as illustrative of the rule. 
 
 Thus, in an early ease, the testator gave to his son £200 at his age 
 of twenty-one years. The son died under twenty-one ; and it was deter- 
 
 ' Fomereau v. FomereaTi, 3 Atk. 645. » Mackell v. Winter, 8 Ves. 543. 
 Soatb r. Hoath, 2 Bro. 0. C. 3. Hanson 
 V. Graham, 6 Yes. 239, 
 
616 Tkusts, [CL 7. 
 
 mined that the legacy never vested in him, as the age was annexed to the 
 gift, and not to the time of the payment ; consequently it was not an 
 interest transmissible to the executor or administrator of the legatee.' 
 
 In another case,' the bequest was in these words : " I give £100 a 
 piece to the two children of J. S., at the end of ten years after my de- 
 cease." The children died within the ten years; and Lord Chancellor 
 Cooper held that the legacy lapsed, and did not go to the executors of the 
 children. He took a ' distinction between a case where the bequest is 
 to take effect at a future time, and where the payment is to be made at 
 a future time. And he said, that" wherever time is annexed to the legacy 
 itself, and not to the payment of it, as in that case, if the legatee dies be- 
 fore the time of payment, it is a lapsed legacy. 
 
 In a leading case on this subject, and which has been repeatedly acted 
 upon, it was clearly held, that the expressions, " at twenty-one," or " if," 
 or " when" he shall attain twenty-one, or " if he shall survive B.," are con- 
 tingent, and that in each of those cases if the legatee dies before the time, 
 the legacy lapses.^ In all these cases the time of payment is annexed to 
 and forms part of the gift ; the attaining the age of twenty-one years, or 
 surviving B,. is a condition precedent, the performance of which is neces- 
 sary to vest the legacy.* 
 
 The foregoing rule, though well settled, is open to a similar exception 
 to that mentioned under the other rule, viz, that if the cZear intention of 
 the testator, deducible from the whole will, shows that the legacy shall 
 vest, notwithstanding the form of words, if standing alone, would indicate 
 the contrary, the intention shall prevail, when it is consistent with the 
 rules of law. 
 
 The foregoing cases are all recognized by the court of dernier resort in 
 New-York, in an important case, which also establishes the exceptions to 
 the rule.5 The doctrine was thus stated in that case : where the gift of 
 a legacy is absolute, and the time of payment only postponed, as where 
 the sum of $1000 is given to A., to be paid when he shall attain the age 
 of twenty-one years, the time not being of the substance of the gift, 
 postpones the payment, but not the vesting of the legacy ; and if the leg- 
 atee die before the period specified, his representatives are entitled to the 
 money. But where the legacy is given when the legatee shall attain, or 
 provided he does attain the age of twenty-one years, time is of the sub- 
 
 ' Oruse V. Barley, 3 P. Wms. 20. * Id. Goss v. Nelson, 1 Burr. 227, per 
 
 * Snell V. Dee, 2 Salk. 415. Ld. Mansfield. Hodges v. Peacock, 3 Ves. 
 
 • Stapleton v. Oheele, Preo. Chan. 817. 735. 
 
 Hanson v. Graham, 6 Ves. jr. 245. Tome- ' Patterson v. Ellis, 11 "Wend. 259, 268 
 reau v. Fornereau, 8 Atk. 646. et seq., per Savage, Ch. J. 
 
Ch. 7.] Vested and Contingent Legacies. Lapse. 517 
 
 stance of the gift, aud tlie legacy dpes not vest until the contingency 
 happens. 
 
 But even where the legacy is given when the legatee attains the age 
 of twenty-one years, if the'devisor directs the interest of the legacy to be 
 applied in the mean time for the benefit of the legatee, there being an 
 absolute gift of the interest, the principal will be deemed to have vested.' 
 So the legacy will be deemed vested, if it be left to the discretion of a 
 trustee to pay the legacy sooner than the time specified in the will ; and 
 it seems that the mere appointment of a trustee for the legatee during 
 the minority, will have the same effect. 
 
 But other circumstances, besides giving the intermediate interest to the 
 legatee, will indicate the intention of the testator that the legacy shall 
 vest, though the form of the bequest, if standing alone, would not be suf- 
 ficient for that purpose. 
 
 Thus, where a legacy of £50 was given to A. at twenty-one, or mar- 
 riage, and £50 to B. at twenty-one, or marriage, and in the close of the 
 will the testator added, " If any legatee dies before his legacy is payable, 
 the same shall go to the brothers and sisters of such legatee :" A. dying 
 in the lifetime of the legatee, it was adjudged no lapsed legacy, but that 
 it should go to the sister.* 
 
 If there be a bequest to a person payable at a certain period, which 
 may happen either before or after the death of the testator, with a decla- 
 ration, if the legatee die before the legacy is payable, that it shall go to 
 the " survivors," if there be a clas.s, or to some person or person described ; 
 then if the legatee should die before the assigned period, although in the 
 lifetime of the testator, the legacy does not lapse, but goes according to 
 the will. If, however, the period should arrive in the lifetime of the tes- 
 tator, and the legatee should survive it, and then die before the testator, 
 the legacy does lapse.^ 
 
 We will now proceed to notice the lapse of legacies, payable out of 
 real estate only. 
 
 With regard to this class of legacies, the first rule above stated, adopt- 
 ed with respect to legacies payable out of personal estate, viz. that where 
 the time is annexed to the payment and not to the gift, the legacy vesta 
 
 '■ Patterson v. Ellis, 11 "Wend. 2S9, 268 ' Danell v. Molesworth, 2 Vern. 378. 
 et seq., per Savage, Oh. J. Burrell v. Bac. Abr., Leg. E. 
 Shiel, 2 Barb. 8. 0. B, 470, as to effect of » Id. M^\^^ v. Baine, 3 P. Wnjs. 113. 
 giving interest. Hnmberstoie v. Stanton, 1 Yes. & ^. 
 
 385, 388. 
 
518 Trusts. [Oh. 7. 
 
 immediately, though not payable until the time specified arises, does 
 not, generallly speaking, prevail. 
 
 The reason for the distinction is, that formerly legatory matters were 
 solely cognizable in the ecclesiastical courts, -whose decisions were regu- 
 lated by the civil law ; and by that law, a bequest to a person, to he paid 
 at a future time, was held to confer a present right to the legacy, not- 
 withstanding the time of payment was future. Courts of equity having 
 by degrees acquired jurisdiction of this class of cases, upon the notion of 
 trusts, with a view to a uniformity of decisions, adopted the rule in ques- 
 tion, in respect to legacies of personal property. But legacies charged 
 upon real estate, or payable in land, never fell within the cognizance of 
 the ecclesiastical courts. There was not, therefore, the same reason for 
 adopting that rule as applicable to legacies of this description. And as 
 the rule itself was contrary to the favor which the English law shows to 
 the owner of the inheritance, courts of equity rejected it, in respect to 
 all such legacies.' 
 
 The leading case, in the English books on this subject, was decided in 
 1683.' In that case the father limited a term to trustees for the raising 
 of £4000 apiece for his younger children for their portions, to be paid 
 them at their respective marriages, or ages of one and twenty years, 
 which should first happen ; and for paying up to them £100 per annum, 
 maintenance in the mean time ; and after these portions and maintenance 
 raised, then the residue of the term was to be in trust for his heir, the 
 defendant. The father, having two daughters by the plaintiff, his second 
 wife, made his will, giving to each of them £4000 apiece for their respec- 
 tive portions, to be raised and paid them in such manner as by the said 
 settlement is directed ; but declaring that they should have, but the 
 £4000 apiece, and not two, by the settlement and will, unless his soft, the 
 defendant, should die without issue, in which case he devised that they 
 should have £2000 apiece more, to be paid in the same manner as the 
 £4000. One of the daughters died, being about eight years of age. 
 The mother took letters of administration to her daughter, and exhibited 
 het bill against the trustees and the heir at law, to have her daughter's 
 portion of £4000 raised and paid. The question was, whether the £4000 
 portion to the daughter ceased by her death, or should be raised for the 
 benefit of her administratrix. It was admitted by Lord Keeper Guilford, 
 that if the £4000 had been to have been raised out of the personal estate, 
 
 'Birdsallv. Hewlett,! Paige, 32. Har- ° Powlet v. Powlet, 1 Vem. 204. 2 
 ris V. Fly, 7 id. 421, 428. 2 Will. Ex. Ventris, 866. 
 780. 
 
Ch. 7.] Vested and Contingent Legacies. Lapse. 519 
 
 • 
 
 it had been clear, the plaintiff must have had it ; but being a charge upon 
 
 the estate of the heirs, he would consider of it ; and afterwards Tie said, 
 that as the portion was to come wholly out of the lands, and the person- 
 al estate no way subjected or made liable to the payment of it by the 
 will, the claim of the plaintiff could not be supported. In other words, 
 the legacy became lapsed by the death of the legatee, after the death of 
 the testator, but before the time limited for the payment of the legacy. 
 
 The doctrine of this case has been followed in numerous English cases,' 
 and has been repeatedly recognized in this state.^ In one of the cases 
 in this state, (Marsh v. Wheeler, supra,) the vice chancellor states the 
 rule, with respect to the vesting of legacies payable out of real estate, 
 thus : where the gift is immediate, but the payment is postponed until the 
 legatee, for instance, attains the age of twnety-one years, or marries, then 
 it is contingent, and will fail if the legatee dies before the time of pay- 
 ment arrives ; but when the payment is postponed in regard to the con-» 
 venience of the person, and the circumstances of the estate charged with 
 the legacy, and not on the acccjunt of the age, condition or circumstances 
 of the legatee, in such a case it will be vested and must be paid, although 
 the legatee should die before the time of payment. 
 
 The rule, as thus deduced by the vice chancellor, in Marsh v. Wheeler, 
 contains also the exception, and both the rule and exception are adopted 
 by Chancellor Walworth in Harris v. Fly, as they have been in recent 
 English cases.^ This exception is, that the. legacy only lapses in such 
 case, where the payment is postponed by the testator in reference to the 
 situation or circumstances of the legatee personally, and not where it is 
 postponed for the convenience of the estate or fund out of or in reference 
 to which it was given,* 
 
 Chancellor Walworth, in Birdsall v. Hewlett, speaking of the rule and 
 exception, says : It is undoubtedly a general rule, that legacies charged 
 upon the real estate, and payable at a future day, are not vested, and be- 
 come lapsed if the legatee dies before the time of payment arrives. This 
 rule was at first adopted without any exceptions, and in direct opposition 
 to that which existed in relation to legacies payable out of the personal 
 estate. This was done for the benefit of the heir at law, who was a par- 
 
 ■ Smith V. Smith, 2 Vern. 92. Eey- v. Hewlett, 1 id. 32. Marsh v. "Wheeler, 
 
 nioh V. Martin, 3 Atk. 335. Yates v. 2 Edw. 163. 
 
 Phettiplace, 2 Vern. 416. Duke of Chan- = Goulborn v. Brooks, 2 T. & Col. 639. 
 
 dos V. Talbot, 2 P. Wms. 610, and cases Murkin v. Philipson, 3 Myl. & K. 261. 
 in note. Prowse v. Abingdon, 1 Atk. ' See cases above, and Birdsall v. Hew- 
 
 485. Jennings v. Looks, 2 P. Wms. 276,. lett, 1 Paige, 32. Harris v. Ply,, 7 id. 428. 
 
 ' Harris v. Ely, 7 Paige, 428. Bjr.dsall Marsh V. Wheeler, 2 Edw. 163. 
 
520 Trusts. ,[Ch. 7. 
 
 ticular favorite of the English courts ; and he says, I am not aware that 
 it has ever been extended to a case where the estate was given to a stran- 
 ger, upon the express condition that he paid the legacy charged thereon ; 
 and the rule has long since been much narrowed down, even as between 
 the legatees and the heir at law. 
 
 Like the other cases we have considered, a legacy charged on real 
 estate, or payable out of it, with respect to the doctrine of lapse, may be 
 controlled by the clearly-expressed intention of the testator in his will. 
 Thus ; in a recent case, th* testator gave legacies charged on his real 
 estate to his two daughters, " the same to vest in them immediately on my 
 death, but to be paid on their attaining their ages of twenty-one years, 
 and the interest thereof in the meantime to be applied in their mainte- 
 nance and education." Both the daughters died infants ; and it was 
 insisted that, as against the real estate, the legacies must sink for the 
 benefit of the devisee of the realty. But the vice chancellor. Sir John 
 Leach, held that this was prevented by the express direction that the 
 legacies should vest on the death of the testator ; and, therefore, that the 
 personal representatives of the daughters were entitled to the legacies.' 
 But for the express direction of the testator, that these legacies should 
 vest, they would have lapsed by the death of the legatees, before attaining 
 the age of twenty-one years. 
 
 Having thus noticed the doctrine of lapse in respect of legacies charge- 
 able on real estate, we will notice the same doctrine in reference to lega- 
 cies chargeable on a mixed fund of real and personal estate. 
 
 It has already been shown that, in general, the personal estate is the 
 proper fund for the payment or legacies, although they be charged on the 
 real estate, if the personal estate be not expressly exonerated." On a 
 charge of the legacy on the realty, the latter is merely auxiliary to the 
 personal estate for the payment. It seems to follow, and it has been so 
 adjudged, that so far as the personal estate will go, it is to be applied 
 and to be governed by the same rules we have been considering in relar 
 tion to legacies payable exclusively from the personal estate ; and so far 
 as the real estate must be resorted to for the payment of the legacies, the 
 case follows the same rules as if they were charged exclusively on the 
 realty. 
 
 Thus, in a leading case, where the testator bequeathed to his nephew 
 
 ■ Watkins v. Ohe(ik, 2 Sim. & S. 199. Hoesen, 1 Comst, 120. Kelsey v. West- 
 ' McKay v. Green, 8 J. Ch. R. 56. Lup- ern, 2 id. 000. 
 ton V. Lupton, 2 id. 614. Hoes v. Van 
 
Ch. 7.] Vested and Contingent Legacies. Lapse. 521 
 
 £500, payable at the age of twenty-five, and devised real estate to trus- 
 tees charged with the payment of debts and legacies, and the legatee 
 having survived the testator, and died at the age of sixteen, it was held 
 that so much of the legacy as was to affect the real estate, failed by the 
 death of the legatee before he arrived at the age of twenty-five ; and 
 that such part of it as the personal estate was sufficient to answer, vested 
 in the legatee, and was transmissible to his personal representatives. 
 In giving his judgment Lord King observed, that there was no diiFerence 
 when the real as well as the personal estate is charged ; for in such a 
 case, as far as the executor or administrator claims out of the latter, ho 
 shall succeed according to the rules of that court where these things are 
 determinable, even though the infant legatee dies before the time of pqiy- 
 ment ; but, as far as the legacy was charged upon the land, so far should 
 it, on the legatee's dying before the legacy became payable, sink. And 
 this being the rule which had of late universally prevailed, whether the 
 legatee was a child or a stranger, it would be of the most dangerous con- 
 sequences, and disturb a great deal of property to break into it.' 
 
 This doctrine is evidently recognized in this state, though the main 
 reason for it is not as strong here as it is in England. The existence 
 of the rule was recognized by the vice chancellor of the first circuit, 
 in the case of Marsh v. Wheeler, already cited. After speaking of the 
 rule with respect to the sinking of legacies charged upon and paya- 
 ble out of real estate, as being diffe]»ent from that where the legacies are 
 payable exclusively out of personal estate, he says : There are cases 
 where it has been held that a legacy, made up partly of personal estate, 
 and partly of money charged upon lands, and to be raised out of the 
 same, has, so far as regarded the personal estate, vested, and lapsed as 
 to the part which was to come out of the realty. But in no case has this 
 been decided where the real estate was ordered to be sold and converted, 
 out and out, into money, and as such, disposed of in legacies. Nor is 
 there any reason for making the distinction, or for applying the doctrine 
 to cases like the present. It can only be where lands are devised or de- 
 scend to the heir, charged with the payment of a pecuniary legacy to 
 some third person, and payable at a future day, or upon some subsequent 
 event. In such a case, according to the general rule, if the legatee hap- 
 pen to die before the time of payment, the law favors the heir, and con- 
 siders the legacy lapsed or merged in the inheritance. 
 
 In the case in which these remarks were made, the obvious intention of 
 
 ' Dnke of Ohandos v. Talbot, 2 P. Wms. 601, 613 and note. Prowse v. AbingdoB^ 
 1 Atk. 482. 
 Eq. Jub. 66 
 
622 THusfTs, [Oh. 7 
 
 the testator was to conyert the whole of his real eatate, with the excep- 
 tion of a house and lot devised to his daughters, into money, in order to 
 have the proceeds taken as a part of his personal estate, to have them 
 Wended and all disposed of together and as one fund in payment of debts 
 and legacies of five hundred dollars apiece to the daughters, and so as to 
 have the remainder divided between the four sons as residuary legatees. 
 The principle then is, that the intention of the testator, when properly 
 expressed, ahall prevail.' 
 
 SECTION vni 
 
 OF LE«3-ACIES, ABSOLUTE AND CONDinOITAL. 
 
 Having treated briefly of general and specific legacies, and of vested 
 and contingent legacies, together with the doctrine of lapse, which is an 
 incident to them, we will proceed now, as proposed, to notice legacies 
 absolute and conditional. 
 
 A bequest to a man generally of money or personal property, is an 
 absolute legacy, and, in such a case, a subsequent direction to the execu- 
 tors to put the money at interest for the support of the legatee, does not, 
 in any manner, revoke or qualify the gift. It merely relates to the in- 
 vestment ; and being inconsistent with the absolute title before given to 
 the legatee, it is null and void. No valid qualification can be attached 
 to a full title to periaonal property.' So an absolute annuity given by 
 will is not a trust within the Revised Statutes, and is alienable by the 
 annuitaint ;' and is subject to his debts, on a creditor's bill, at the suit 
 of a judgment creditor who has exhausted his remedy at law.* Where 
 there is an express limitation of a chattel by words, which, if applied to a 
 will, would create an estate tail, the whole interest vests absolutely in the 
 first taker, and the limitation over is too remote.^ It is the settled rule, 
 that the same words which, under the English law, would create an estate 
 of freehold, gives the absolute property of a chattel.* When an absolute 
 interest is given to the legatee, a devise over is void for repugimncy.' 
 
 » Marsh v. Wheeler, 2 Edw, Oh. K. 157. ' Moffat v. Streng, 10 J. R. 12. 
 
 ' Borland v. Borland, 2 Barb. 8. 0. K. » Patterson v. Ellis, 11 Wend. 259. 
 
 65. Bradhurst v. Bradhurst, 1 Paige, 331. 
 
 " Begraw v. Olason, 11 Paige, 186. ' 11 Wend. 275, S. 0. 
 Gott V. Oook, 7 id. 521. 
 
 ♦Id. 
 
Ch. 7.] Conditional Legacies. 523 
 
 As a legacy is absolute, -when no condition is annexed to it, it will pre- 
 vent a repetition of the same cases, to consider the nature and application 
 of conditions, in reference to the testamentary disposition of property. 
 One sort of conditions, namely, that the legatee should be in life, at a 
 particular period, has just been considered. It remains to treat of other 
 conditions, upon which the existence of legacies may depend. 
 
 No precise form of words is necessary to create a condition in wills ; 
 but whenever the intention of the testator is clearly manifested that the 
 legacy should depend on a condition, and the condition is not repugnant 
 to the estate, or contrary to the rules of law, the intention will be car- 
 ried into efifect.' 
 
 Conditions are of two kinds ; conditions precedent and conditions subse- 
 quent. In the former case the legatee has no vested interest in the leg- 
 acy, until the condition is performed ; and in the latter the interest vests, 
 in the first instance, subject to be divested on non-performance or breach 
 of the condition.^ 
 
 If the condition be illegal or repugnant to the estate, it is void, and the 
 legacy is absolute.' 
 
 An example of a condition precedent will be found in a case before 
 Chancellor Walworth, where the payment of the legacy depended on the 
 reformation of the conduct of the legatee.' In that case the, testator, by 
 his will, required his executors to pay to his son, the complainant, two 
 hundred dollars a year, and also one-fifth of the testator's estate, in case 
 the legatee should refrain from vicious habits, and conduct himself with 
 sobriety and good morals. About two years after the testator's death, 
 the legatee filed his bill against the executors, insisting that he had re- 
 formed, and claiming the payment of his share of the estate. The defend- 
 ants had refused payment, because they were not satisfied of the 
 complete reformation of the legatee. The chancellor observed, that the 
 intention of the testator would be defeated if the complainant should re- 
 ceive the bequest before he was so far reformed as to render it very certain 
 that he would not return to his former vicious habits. While he justified 
 the executors in withholding the legacy, he declined to dismiss the bill, 
 and referred it to a master to ascertain and report whether there had been 
 such a permanent reformation in the character and habits of the complain- 
 ant, as to entitle him to receive the whole amount bequeathed to him 
 at that time ; and on the coming in and confirmation of the report, if it 
 
 ' Shep. Touch. 433. Pink v. De Thui- ■ Bradley v. Peixoto, 3 Ves. 824. 
 sey, 2 Mad. E. 157. * Dustan v. Dustan, 1 Paige, 509. 
 
 ' Preston's Leg. 103, ch. 5. 
 
524- Trusts. [Oh. T- 
 
 should appear that such pe-rmanent reformation had taien place, that the 
 executors be permitted to pay the -whole sum to him, after deducting 
 therefrom their costs to be taxed. And if the parties could not agree 
 upon the amount to which he was entitled, that there be a reference to a 
 master to take an account and ascertain such amount. And if it should 
 appear by the report of the master, on the first reference thereby directed, 
 that such pe-rmanent reformation had not taken place, then that the com- 
 plainant's bill be dismissed with costs. 
 
 The decision of the chancellor in the foregoing case, was in conformity 
 to that of Sir William Grant, in a similar case.' In the latter case, a 
 legacy was given, provided the legatee changed his course of life ; and 
 the master of the rolls held that this was a condition that the court would 
 carry into effect, and he directed the master to inquire, whether the lega- 
 tee had discontinued to frequent public houses, keeping low company, &c. 
 
 In like manner, when the testatrix by her will gave " to the Associate 
 Reformed Church of Broadalbin five hundred dollars, -provided the Rev. 
 David Caw continued to be their pastor for seven years to come, but if 
 not, then it must be paid over to the said David Caw with interest, was 
 held to be a valid condition precedent ; and the pastoral relation between 
 the said Caw and the church having been dissolved by mutual consent, 
 within the seven years, it was further held, that no interest whatever vest- 
 ed in the church, but that Caw was entitled to the legacy.^ 
 
 The word provided is one of the appropriate words for creating a con- 
 dition precedent.' So any other words, as " if," " when," &.c. may indi- 
 cate that the legacy will not vest until the condition be performed. 
 
 A distinction is taken in regard to bequests on marriage, where it is said 
 if to such marriage consent is required ; such consent, unless the legacy 
 be given over, is in general considered in terrorcm only, and in fact 
 amounts to a nullity.^ Courts of equity look upon conditions in restraint 
 of marriage with disfavor ; if, therefore, the consent be given in sub- 
 stance it is sufficient, and the want of circumstances will be supplied. 
 Thus, when an implied assent is given, or a general assent to any mar- 
 riage the legatee may contract, the legacy is not forfeited.' So it will 
 not be forfeited if the person, whose assent is required, encourage the 
 
 ' Tattersall v. Howell, 2 Meriv. 26. Cleaves v. Spurling, 2 id. 526. Jervois 
 
 ' Caw V. Robertson, 1 Seld. 12&; S. C, v. Duke, 1 Vern. 20. Atkins v. Hicocks, 
 
 8 Barb. 8. 0. K. 410, 418. 1 Atk. 502. 3 Barb. 418, supra. 
 
 "Id. ' Bac. Abr., Leg. F. 
 • "Webb V. Webb, 1 P. ■Williams, 136. 
 
Ch. 7.] Conditional Legacies. 525 
 
 marriage in the first instance, and afterwards refuse to consent without 
 sufficient cause.' 
 
 Nevertheless, it is well settled that marriage with consent, whether 
 before or after twenty-one, may be made a condition precedent to a lega- 
 cy, whether there be a devise over or not,'' if the intention be otherwise 
 clear. 
 
 When the condition of marriage with consent, is a condition subse- 
 quent, the legatee will keep her legacy, though she marries without the 
 required consent.' 
 
 Suppose an executor or trustee, whose consent is required by the will 
 to the marriage of the legatee, refuse to execute his power by consent- 
 ing, the court will direct one of its masters to inquire into the proposal 
 of marriage, and determine on its propriety ; and if the marriage be found 
 suitable, to receive proposals for a settlement on the legatee and issue of 
 the marriage.* 
 
 There is a distinction between personal legacies and legacies chargea- 
 ble on land, or devises of land. If the legacy affects land, and there 
 be a condition precedent, the estate cannot vest till the condition be strict- 
 ly performed, whether there be a devise over or not.^ And'if it be sub- 
 sequent, the breach of the condition operates to divest the estate.' But 
 in all cases of personal legacies, where there is a devise over, whether the 
 condition be precedent or subsequent, the right of the devisee over will 
 prevail against that of the legatee, if the condition be not performed.' 
 
 It has been already remarked that marriage ought to be free, and that 
 the law does not countenance such restrictions as unreasonably deter per- 
 sons from forming that relation. Therefore a devise, upon condition not 
 to marry, or not to marry a person of such a profession or calling, is void, 
 whether there be a limitation over or not. But while the law will annul 
 such conditions as impose an improper restraint upon marriage, it will 
 uphold such as are reasonable and have a tendency to guard the inexpe- 
 rience and ardor of youth from being beguiled by the arts of the subtle 
 and corrupt who would betray them. Hence conditions restraining mar- 
 riage, as to time, place, or person, have been upheld;' as not to marry 
 
 ' Strange v. Smith, Ambl. 263. Mes- * Goldsmid v. Goldsmid, 19 Yes. 368. 
 
 quett V. Mesquett, 2 Vern. 580. Clarke v. Parker, id. 18, 19. 
 
 ' Aston V. Aston, 2 Vern. 452. Creagh " Gary v. Bertie, 2 Vern. 383. 
 
 V. Wilson, id. 572. Gillet v. Wray, 1 P. " Harvey v. Aston, 1 Atk. 881, note. 
 
 Wms. 284. Elton v. Elton, 8 Atk. 604. ' Id. 1 Fonb. Eq. B. 1, oh. 4, § 10, 
 
 Stackpole v. Beaumont, 3 Ves. 89. note 9, where all the cases are collected. 
 
 ' Keynish v. Martin, 3 Atk. 832. Bnrle- ' Bac. Abr. tit. Leg. F. 
 ton V. Humphrey, Ambl. 256. Garret v. 
 Pretty, 2 Vern. 293. 
 
526 Trusts. [Ch. T. 
 
 before twenty-one, not to marry at York, not to marry a papist, &c. In 
 one case, a proviso in a will that if the legatee, the testator's daughter, 
 should marry a Scotchman, she should forfeit all benefit under the will, 
 was held good.' 
 
 The consent to satisfy a condition precedent must, if vested in trustees, 
 be given by all the acting trustees, unless the testator expressly declare 
 that the consent of the majority shall be sufficient. There is no case in 
 which it has been held that the consent of three trustees being required, 
 the consent of two only will be sufficient, when the third has not been 
 consulted. There is a discretion in him as well as in the others ; and, 
 therefore, in such a case, the consent of two only, without consulting the 
 third, does not satisfy the requirements of the will.'' 
 
 If consent in writing of the executors be required, and there be two 
 executors, one only of whom executes the will, the consent of the acting 
 executor is deemed sufficient ; and even without a writing, it seems his 
 previous approbation of the marriage would be deemed a substantial 
 compliance with the condition.' If a legacy vests in the legatee, subject 
 to be divested by marriage without consent of certain persons, and which 
 consent becomes impossible to be obtained, by reason of the death of such 
 persons, the legacy is absolute, and discharged of the condition.* This is 
 upon the principle that where a condition subsequent becomes impossible, 
 by the act of God, it is absolutely void.' 
 
 A marriage in the lifetime of the testator, with his consent or subse- 
 quent approbation, is equivalent to a marriage after his death with the 
 requisite consent : as where the testator devises land in trust to permit 
 his daughter'to receive the rents and profits until her marriage or death, 
 and in case she marries with the consent of the trustees, then to convey 
 the premises to her and her heirs ; but if she married without such con- 
 sent, then to convey to other persons : the daughter afterwards, and in 
 the lifetime of the father, married with his consent, and he settled part 
 of the land on her and her husband. This settlement was held to be no 
 revocation of the devise, and the consent of the father in his lifetime 
 dispensed with the condition.' The same rule applies, though the daugh- 
 
 ' Perrin v. Lyon, 9 East, 170. Lit. 206, a. Aislabie v. Rice, 3 Mad. Ch. 
 
 ^Clarke v. Parker, 19 Ves. 17. E. 256. Merrill v. Emery, 10 Pick. 507. 
 
 " Worthington v. Evans, 1 Sim. & Stu. The People v. Manning, 8 Cowen, 299. 
 
 165. Merrill v. Bell, 6 Sm. & Mar. 730. 
 
 * Peyton v. Berry, 2 P. Wms. 626. > Clarke v. Berkley, 2 Vern. 720. Par- 
 
 • Graydon v. Hicks, 2 Atk. 18. Co. nell v. Lyon, 1 Ves. & B. 479. 
 
CL 7.] Conditional Legacies. 527 
 
 ter marries ■without consentj if the father afterwards becomes reconciled 
 to the match.' 
 
 An absolute and unconditional consent once given cannot be retracted, 
 unless some objection occur which ought to have prevented the consent 
 being given at all.* And when a settlement on two daughters contained 
 a proviso, that if either married without the consent of her mother, it 
 should be to her separate use ; and where the mother proposed the mar- 
 riage, and afterwards refused consent, the marriage subsequently taking 
 place without consent, was held to be no forfeiture.' 
 
 It was said by Lord Talbot, that " there are not any technical words to 
 distinguish conditions precedent and subsequent, but the same words 
 may indefinitely make either, according to the intent of the party who 
 creates them."* Neither does it depend on the circumstance whether 
 the clause is placed prior or posterior in the deed or the will, for the same 
 words have been construed to operate either the one or the other, accord- 
 ing to the nature of the transaction.^ 
 
 For an example of a condition subsequent, may be mentioned a case 
 decided by Sir Wm. Grant, master of the rolls.' The testator by his 
 will bequeathed all the residue of his estate to trustees upon trust, to 
 pay to his son the yearly sum of £200, clear of all deductions, during 
 the term of his natural life, or until such time as his said son should 
 actually sign any instrument, whereby or in which he should contract or 
 agree to sell, or otherwise part with the same or any part thereof, or in 
 any way charge the same or any part thereof as a security for any sum 
 or sums of money to be advanced or lent to him by any person or persons 
 whomsoever, or in any other manner whatever charge or dispose of such 
 annuity or any part thereof by anticipation, or whereby or in which he 
 should authorize or empower, or intend to authorize or empower any per- 
 son or persons whomsoever to recover such annuity, or any part thereof, 
 except such only as the then next quarterly payment, after such authority 
 or power should be given ; and he declared his will to be, that in case 
 his said son should, at any time, sign or execute any such instrument or 
 writing for the purpose, or for any of the purposes aforesaid, (except as 
 aforesaid,) then and from thenceforth the same and every part thereof 
 
 '■ "Wheeler v. Warner, 1 Sim. & Stu. * Bobinson v. Oomyns, Oas. temp. Talb. 
 
 304. Smith v. Cawdry, 2 id. 358. 166. 
 
 ' Dashwood v.'Bulkeley, 10 Ves. 242. ' Hotham v. East In. Go. 1 D. & E. 645, 
 
 2 Yes. & B. 234. per Ashurst, J. 
 
 ' Strauge v. Smith, AmW. 263. • Shee v. Hale, 13 Ves. 404. 
 
528 Trusts. [Oh. 7. 
 
 should cease to be paid or payable to him, and should sink into the 
 general residue of the testator's personal estate. The legatee, after the 
 death of the testator, being in confinement for debt, took the benefit of 
 the insolvent act, and the annuity mentioned in his father's will ivas 
 inserted in the schedule of his property delivered in and signed by him. 
 On a bill filed by the assignees under the insolvent act, claiming the 
 annuity, it was held that the legacy was forfeited, and sunk into the 
 residue of the testator's estate. 
 
 So also where the testator bequeathed the surplus of his personal estate 
 to his niece, about the age of seventeen, to be paid to her at the age of 
 twenty-one years, and if she should die before twenty-one or marriage, 
 then over ; it was held that the surplus vested in the niece, and that the 
 bequest over was upon a condition subsequent." 
 
 In case a condition precedent be impossible to perform, a difierent rule 
 prevails in respect of legacies of personal property, from that which 
 obtains in relation to devises of the realty. In the latter case, if the 
 condition be impossible no estate vests, and the devise is void.'' In the 
 former, as the rules of the civil law prevail, the bequest is single, that 
 is, discharged of the condition.' 
 
 Where a condition subsequent is impossible, or becomes impossible by 
 the act of God, the condition will be void, and the legacy single and 
 absolute ; and in this case, the civil and common law coincide.* 
 
 If a condition precedent be illegal, by reason of its requiring the per- 
 formance of an act that is malum in se, as to kill J. S., or to burn a 
 house or the like, not only the condition but the entire legacy is void, as 
 well by the common as the civil law.' 
 
 But if the condition precedent merely requires the performance of some 
 act that is not malum in se but contra bonos mores, though by the com- 
 mon law both the legacy and condition are void, yet by the civil law, 
 which is followed by the ecclesiastical courts and courts of equity, the 
 legacy is good, and the condition only is void. The legatee, therefore, 
 takes the legacy, as if no condition was annexed. Thus, a bequest to a 
 femjB covert, on condition she lived apart from her husband, was held by 
 Lord Northington to be single and pure, and the condition only to be 
 void as contra bonos mores.' 
 
 ■ NichoUs v. Osborn, 2 P. Wms. 419. dish, Ambl. 358. Thomas v. Howell, 1 
 
 " Oo. Litt. 206, b. Balk. ITO. 
 
 " Swinburne, pt. 4, § 6, pi. 2, 3. » Oo. Litt. 206, b. 
 
 * Aislabie v. Rice, 3 Mad. Ch. E. 256. ° Brown v. Peck, 1 Eden, 140. Cooper 
 
 Co. Litt. 206, a, b. Lowther v. Oaven- v. Remsen, 5 J. Oh. R. 468. 
 
Oh. T.] 'Conditional Legacies. 529 
 
 This matter received the cgnsideration of Chancellor Kent in a case 
 ■which came several times before him, and in Trhich he seems to have rer 
 cognized the foregoing distinctions.' In that case the will contained the 
 following clause : " I give and devise to my daughter Eliza Cooper, her 
 heirs and assigns forever, all the furniture which she has received from 
 me, amounting to ,$3570.23, and which now stands in my books against 
 her, and in full satisfaction of all further provisions out of my estate. I 
 do give and bequeath to her, during her separation from William Cooper, 
 her present husband, $1000 a year, which sum is hereby charged upon 
 my real estate, and shall be paid by the other children, in proportion to 
 their income arising out of their portions of the real estate ; a,nd I do 
 hereby declare it to be my intention, that neither my said daughter Eliza 
 Cooper, nor any of her children, by the said Willia.m Cooper, shall inherit 
 any part or portion of the real estate hereafter devised, or the rents, 
 issues or profits thereof, as heirs, or heirs to any of my other children, 
 nor shall she, nor any of her said children, be considered or adjudged as 
 the legal representative or representatives of any of my other children, 
 so as to be entitled to recover any portion of my real or personal estate, 
 except that which I have hereby expressly given to her." At the date 
 of the will and before that time the legatee and her husband, W. C, lived 
 separate and apart, and she then resided with her father. This separa- 
 tion continued eight or ten months, when they again lived and cohabited 
 together. The bill further stated that a disagreement existed between 
 the plaintiff's husband and her father, at the time the will was made, 
 and Which continued to his death ; that shortly after her father's death, 
 she was constrained by her husband to live separate and apart from him, 
 and so continued to live separate for more thait a year ; that the separa- 
 tion was not induced by any desire on the part of the plaintiff to obtain 
 the legacy given to her by her father's will ; and she was, at the time of 
 the separation, ignorant of the contents of the will ; that the separation 
 was compulsory and against the will of the plaintiff; that the real estate 
 was more than su£5cient to pay all the debts, and the legacy, &c. ; that 
 her husband, W. C, was unable to maintain her, and died intestate after 
 the will took effect, and his property was not sufficient to pay his debts ; 
 that she had thr-ee children by W. C. who are infants and 'w^ithout means 
 of support ; that she had offered security to refund in case of a deficieooy 
 of assets ; that her sisters J. and E. had satisfied her as to that part of 
 the legacy chargeable on their portion of the real estate. She prayed 
 that the defendants, the executors, might be decreed to pay to her the 
 
 ■ Oooper V. Remsen, 3 J. Ch. B. 382, 522 ; S. 0., 6 id. 463. 
 Eq. Jub. 67 
 
530 Trusts. [Oh. 7. 
 
 arrears of the annuity given her by her fiither's -will, with interest, and 
 for general relief. 
 
 The answer admitted most of the facts charged in the bill : that the 
 plaintiff and her husband lired apart when the testator made his will, 
 but were living together when the codicil was made, which fact was known 
 to the testator. It was proved that about three months after the death 
 of the testator the plaintiff and her husband separated, and continued to 
 live separate for a year. The chancellor held that the legacy, depending 
 on a separation which existed at the time of the execution of the will, 
 between the legatee and her husband, and with a view to that fact, the 
 condition annexed was lawful and proper ; and the separation having 
 ceased, when the will took effect by the death of the testator, there was 
 an end of the legacy : and a voluntary separation of the plaintiff and her 
 husband, after the death of the testator, would not entitle her to it. 
 
 As the legacy in this case was charged on the real estate of the testa- 
 tor, and was to be paid by the other children of the testator, in proportion 
 to their incomes arising out of their portions of the real estate, it was 
 governed according to the rules already considered by the common law, 
 and not by the principles of the ecclesiastical law. The remarks of the 
 chancellor, in every stage of the cause, must be understood with reference 
 to this fact, whether it was distinctly stated by him or not. If, says the 
 chancellor, the testator had made the will in reference to a separation to 
 take place after his death, it would have been contrary to good morals 
 and good policy, because it would be holding out a temptation to the 
 parties to separate, by private agreement, for the very purpoffe of 
 acquiring the annuity. And it would be extremely dangerous to allow 
 the wife to set up a separation, subsequent to her father's death, and to 
 claim a benefit from it. Such a claim is liable to great abuse, and ought 
 to be viewed with extreme suspicion. 
 
 These observations are unquestionably sound, with reference to a 
 legacy governed by the rules of the common law, as in the one under his 
 consideration. By that law the legacy and the condition are both void, 
 if the condition require the performance of an act against sound morals 
 and public policy, though the act be not malum in se. But according 
 to the ecclesiastical law, which prevails in respect of personal legacies, 
 as has been shown, the condition only is void, and the legacy is single, 
 freed from the condition. This ig. illustrated by the case of Brown v. 
 Peck, already cited, and which is quoted without dissent by the chancel- 
 lor in Cooper v. Remsen.' In that case the testator bequeathed to his 
 
 ' 5 J. Oh. R. 462. 
 
Ch. 7.] Conditional Legacies. 631 
 
 niece £2 a month, if she lived, with her hushand, and £5 a month, if she 
 lived from him ; and Lord Northington was of opinion that she was 
 entitled to the £5 a month payment ; for the condition being contra 
 harms mores, the bequest was single. 
 
 Where a man devised, after debts and legacies paid, the surplus of his 
 estate to his wife and his son John, equally between them, and adds, 
 whom I , make my executors, and further wills that she should continue 
 his true widow ; but if she marry again, my will is, she shall render the 
 right of being m,y executrix to my son Roger, to he partner with his 
 brother John in the executorship, it was held that by the wife's marrying 
 again, she had as well lost her share of the surplus, as her right- to the 
 executorship.' 
 
 In Richards v. Baker,'' the testator bequeathed to his wife his goods, 
 furniture, &c. in or belonging to his house, " so long as she continued 
 his widow, and no longer," and he disposed of his residuary estate, but 
 gave no directions as to what was to become of the property bequeathed 
 to his wife in the event of her second marriage. Lord Hardwicke de- 
 cided, that she was entitled to them only during her widowhood. But 
 in a later case before Sir Thomas Plumer, M. R., the testator bequeathed 
 to his wife, " should she survive and continue a widow," all his personal 
 estate for life, and he disposed of it after her decease : the Tvidow mar- 
 ried again, and the property for the remainder of her life was claimed by 
 the testator's next of kin, yet the court decided against such claim, hold- 
 ing that it was a condition in terrorem merely, and that the widow was 
 entitled to the property for life notwithstanding a breach of it.' This 
 latter case is pronounced by an eminent writer, of doubtful authority.* 
 
 A devise by husband to his wife, or a personal legacy charged upon 
 land during her widowhood, is, in either case, valid.' In Lasher v. Lasher,' 
 the testator directed that his wife should be. well and sufficiently sup- 
 ported and maintained by one of his- sons, out of property bequeathed to 
 him, so long as _she remained his widow. The will gave to the said son 
 in fee a farm of one hundred acres, and the half of a wood lot, being fif- 
 teen acres. The validity of the legacy to the wife was not called in 
 question by counsel, and was assumed by the court to be valid, and the 
 case was decided in favor of the widow in an action to recover for the 
 
 ' Barton v. Barton, 2 Vera. 308. ° Cruise's Dig. by Greenleaf, tit. Oon- 
 
 = 2 Atk. 321. Lucas v. Evans, 3 id. dition, §§ 66, 67. Fitohet v. Adams, 2 
 
 260. Harvey v. Aston, 1 id. 379.- Str, 1128. Jordan v. Holkham, Ambl, 
 
 ■ Marples v. Bainbridge, 1 Mad. Ch. E. 209. 
 
 590. " 13 Barb. 106. 
 
 * 2 Will, Ex. 792. 
 
532 Trcsts. [Ch. 7. 
 
 expense of her support and maihtenance'. It is tnte that the son, having 
 accepted the estate charged with the support of his mother, could not 
 call in question the restriction on the legacy, as it was in his favor. 
 
 The general understanding of the profession in New- York is, that 
 tither a personal legacy, whether charged on real estate or not, or a 
 devise by husbcmd to his wife during widowhood, or until she marries 
 again, whether there be a devise over in case of marriage or not, is valid, 
 and that the restriction, whether it be a limitation ar condition, is good ; 
 and that the legacy terminates, or, if vested, becomes divested, on the 
 re-marriage of the legatee.' 
 
 But a legacy by a stranger, that is, by a person other than the hus- 
 band, to a widow upon condition that it shall become void upon her re- 
 marriage, is void, for there is no reason why a person who does not stand 
 in irelation of husband to the legatee, should impose a restraint upon a 
 widow from marrying, any more than upon a maid." 
 
 A majority of the supreme court of Massachusetts, in one case, decided 
 that a legacy by the husband to his wife " during her widowhood and 
 life," was designed by the testator to terminate on the subsequent mar- 
 riage of her ; and that had it been a condition precedent, the legacy could 
 not have vested without showing performance. But being a condition 
 subsequent, and no limitation over, it was considered merely in terror em 
 aiid the condition void as in restraint of marriage, and that she held it 
 notwithstanding her re-marriage.^ The caste in Burrows' Reports,^ on 
 which this decision rests, does not fully sustain the doctrine of the court 
 ill Massachusetts. In Long v. Dennis the devise was not by the hus- 
 band to his ^wife, which it has been seen stands upon its own peculiar 
 ground, but it was a provision in the will of the father, for his «on, and- 
 for the widow of the son, to be void in case he married with any woman 
 not having a Competent portion, or without the consent of the trustees, 
 &c. ; and the only point decided was," that the condition Was performed so 
 as to vest the estate in the husband, if one alternative, viz. marrying a 
 woman with a competent marriagie portion, was complied with. It did 
 Bot raise the question of a legacy during widowhood. Lord Mansfield, 
 
 • In the following cases " a legacy dnr- Judge Story lays it down that a legafey 
 
 ing widowhuod" was contained in the on such a condition is valid. Story's 
 
 will, and not made a matter of objection, Eq. Juris. § 285. 
 
 ■WilliamBon v. Williamson, 6 Paige, 298. ' Godol. Orph. Leg. 45, 46. Bac. Abr. 
 
 Hoes V. Van Hoesen, 1 Barb. Oh. R. 879 ; tit. Leg. F. 
 
 S. 0. on appeal, 1 Oom^t. 120. Sweet v. » Parsons v. WinsloW, 6 Mass. 169, 178. 
 
 Chase, 2 id. 78, 80. Edwards v. Bishop, • Long v. Dennis, 4 Burr. 2056; 
 4 id. 61. Lasher v. Lasher, 13 Barb. 106. 
 
Ch. 7.] Conditional Legacies. 533 
 
 indeed, speaks of conditions in restraint of marriage as odious, and that 
 they should be held to the utmost rigor and strictness ; as being contrary 
 to sound policy;' But his remarks were not applicable to conditions 
 imposed by a husband, restraining his widow from a second marriage'. 
 
 An attempt has been made to draw a distinction between an estate 
 limited to a widow, so long as she remains unmarried^ which is admitted 
 to be good, and an estate upon condition subsequent, to the like effect, 
 which it is insisted is void.* We are not aware that the distinction has 
 ever been recognized by the New- York cases, and it is difficult to perceive 
 how, if the first can be upheld, as it doubtless can be, the other should 
 be rejected.' 
 
 If a legacy be given upon the performance of a condition subsequent 
 which is illegal, the rule at common law and by the civil law, adopted in 
 courts of equity, is the same, and the condition is void, and the legacy is 
 absolute, freed from the condition, and is as if no condition had been 
 annexed to it.* 
 
 It is upon this principle that conditions and qualifications inconsistent 
 with, and repugnant to the gift, are wholly void, and are to be rejected. 
 This rule is well illustrated by a case decided by Lord Alvanley, master 
 of the rolls. The case was this : the testator, among other things, 
 bequeathed to his son the dividends arising from £1620 of bank stock, 
 for his support, during his »atural life ; but at his decease the said stock, 
 principal and interest, were given to his heirs, executors, administrators 
 and assigns ; but if he attempted to dispose of all or any part of the said 
 bank stock, such attempt should exclude him from any benefit of the will, 
 and should be a forfeiture, and the fund go to the testator's other chil- 
 dren. The bill was filed by the legatee to compel the administrator 
 with the will annexed to transfer the said stock to the legatee, and the 
 court held that the condition annexed to the legacy was repugnant to and 
 inconsistent with the interest given to the legatee in the stock, and there- 
 fore void ; and he directed the stock to be transferred accordingly. lii 
 disposing of the case the master of the rolls said : I find it laid down as 
 a rule long ago established, that where there is a gift with a condition 
 
 ' Lord Eldon questions the authority ° A testamentary provision in the will 
 
 of Long V. Deflnis, in Clarke v. Parker, of a father for the support of a daughter, 
 
 19 Ves. 19, 20. until her marriage, is, in general, the dic- 
 
 ' Middleton v. Eioe, 1 Penn. Law Jour- tate of humanity and paternal love, and 
 
 nal, 229, N. S. Bennett v. Eobinson, 10 is believed to be nnobjeotionable 
 
 "Watts, 348. Crnise's Dig. vol. 2, tit. 13, * Co. Litt. 206, a, b. Poor v. Mial, 6 
 
 ch. 1, § 66, note. Mad. B. 32. 
 
534 Trusts. [Ch. T. 
 
 inconsistent with and repugnant to such gift, the condition is wholly void. 
 hj condition that tenant in fee shall not alien is repugnant, and there 
 are many other cases of the same sort. In all these cases the gift stands, 
 and the condition or exception is rejected.' 
 
 With regard to the performance of conditions, there is a difference 
 between such as are precedent and such as are subsequent. The general 
 rule, in regard to conditions precedent, is, that they must be strictly per- 
 formed. Neyertheless, by the civil law, which in this respect is adopted 
 by courts of equity, if the condition is performed cy pres, as it is termed, 
 that is, so as in substance to fulfill the intention of the testator, it is suf- 
 ficient.^ Swinburne gives an example of the doctrine of the civil law, 
 thus :^ " If A. bequeath a legacy to B. in case he erect a monument to 
 A. within three days after A.'s death : although B. should not literally 
 comply with the condition, he would be entitled to the legacy upon build- 
 ing the monument within a reasonable time, since the erection would be 
 considered the motive and essence of the bequest, and the titrie appointed 
 for the building but a mean to expedite the business." On the same 
 principle, where a legatee was required to execute a release within a cer- 
 tain time, it has been held, when there was an adequate reason for not exe- 
 cuting it within the time specified, if it was in truth executed within a rea- 
 sonable time, it was a substantial compliance with the direction of the will. 
 The main object of the will was to obtain the#eZease, and the time within 
 which it was to be executed was merely subsidiary to the main object.* 
 
 The observance of time may however become an important element in 
 the title to the legacy, where there is a limitation over, upon the non- 
 performance of the first legatee.' Thus, where the testator, reciting in his 
 will the probability that the legatee was not living, bequeathed to him a 
 sum of money upon the express condition that he should return to Eng- 
 land and personally claim the same of the executrix, or in the church 
 porch ; and if he should not so claim within seven years, to be presumed 
 dead, and the legacy to fall into the residue. The legatee not having 
 returned, and dying abroad within the seven years, the legacy was held 
 pot to be due.' 
 
 With respect to conditions subsequent, the general rule is, that they 
 are to be construed with great strictness, since they go to divest an estate 
 
 ' Bradley v. Peixoto, 8 Ves. 324. * Simpson v. Vickers, 14 Ves. 341. 
 
 Schermerhom v. Negus, 1 Denio, 448. " Id. 
 
 " Swinbm-ne, pt. 4, § 7, pi. 4. = Tulk v. Howlditoh, 1 Ves. & B. 248. 
 
 ' Id. § 6, pi. 11. Burgess v. Eobinson, 1 Mad. E. 172. 
 
Ch. 7.] Legacies to Executors. 535 
 
 •which has been already vested. Conditions which destroy an estate are 
 taken strictly, and a forfeiture should not prevail upon doubtful construc- 
 tions of evidence.' 
 
 Where a condition which is to divest an estate becomes impossible by 
 the act of God, the condition is discharged. Thus, if a devise be to A. 
 for eight years, remainder to B. in fee upon condition that he settles and 
 resides on the land, and B. dies during the eight years, his heirs take his 
 vested remainder.*. 
 
 To this head of conditional legacies belong legacies to executors, in 
 their character of executors. In such case it is well settled that to 
 entitle the legatee to his legacy, he must take upon himself the duty of 
 the office, with a bona fide intention to execute the trusts which the office 
 imposes^ 
 
 A legacy may be given to a person named as executor, as a mark of 
 the testator's regard, and independently, of the office of executor. In such 
 a case the assumption of the office is not necessary to entitle the legatee 
 to the bequest. The two questions which usually arise in this class of 
 cases, are, 1st, where a legacy shall be said to be given to a man in his 
 character of executor ; 2d, and what shall be a sufficient assumption of 
 the office to entitle the legatee to a legacy so given. 
 
 (1.) The prima facie presumption is, that a legacy to a person appointed 
 executor is given to him in that character ; and the burden is cast upon 
 him to show, from the whole scope of the will, that the gift was intended 
 for the person, as a friend or a relative, rather than as annexed to the 
 office.' As was said by the master of the rolls on one occasion, nothing 
 is so clear, that if a legacy is given to a man as executor, whether ex- 
 pressed to be for care and pains or not, he must, in order to^ntitle him- 
 self to the legacy, clothe himself with the character of executor.* 
 
 The presumption will be rebutted if it shall appear, from the whole 
 will, that the legacy is bequeathed to the legatee in his personal char- 
 acter, independently of his representative character as executor. This 
 is exemplified by an early case, where the testator, as an encouragement 
 to his executors, who were four in number, to accept of the trust and ex- 
 ecutorship, gave to each of them £100 and £12 apiece for mourning, 
 and to each of them a ring, and £10 a year for their trouble. Lord Chan- 
 cellor Cowper said, that notwithstanding the condition of the acceptance 
 
 ' Hogeboom v. Hall, 24 "W^Ed. 146. = Stackpole v. Howell, 13 Ves. 418. 
 
 ° McLachlan v. MoLaeHan, 9 Paige, , Dix v. Eeed, 1 Sim. & Stu. 237. 
 534. * Harrison v. Rowley, 4 Ves. 216. 
 
536 Trusts. [CL 7. 
 
 might seem to run to all the legacies, yet the exeeutoM, though they did 
 not act, should have their rings and mourning, these being intended them 
 immediately, and not to wait their time of acceptance ; but that they 
 should not have their £100 and an annuity of £10 each, unless they 
 accepted of the trust.' 
 
 (2.) With regard to what will be a sufiScient assumption of the character 
 of executor to entitle the legatee to a legacy, bequeathed to him in the 
 character of executor, the proving of the will, with the intentidn to act 
 under it in the executorship, is undoubtedly a performance of the condition.'' 
 
 Under the New- York Revised Statutes, probate of a will cannot be 
 granted without a citation to the widow and next of kin' of the deceased, 
 nor can letters testamentary be granted until thirty days after probate, 
 if an affidavit shall be made and filed with the surrogate by the widow, 
 next of kin, legatee or creditor, setting forth that such persons intend to 
 file objections against granting such letters, and stating therein their 
 belief that valid objections exist to the granting of such letters.' Should 
 the executor survive the testator, but die before letters testamentary were 
 issued, it would seem that his representatives would be entitled to the 
 legacy, if he had in good faith commenced proceedings for obtaining let- 
 ters testamentary on the will, or joined in such proceedings by his asso- 
 ciates.* Whether the death of the executor after the testator, and without 
 the knowledge on the part of the executor that he was named as such in 
 the will, would occasion a lapse of the legacy, has not perhaps been de- 
 cided.' In such a case, the failure to comply with the condition is not 
 occasioned by any intention not to accept the legacy and the executor- 
 ship, but is occasioned by the act of God. There is certainly no renurir 
 elation of the office, and no neglect or backwardness in accepting. It 
 would seem, on principle, that the legacy would in such a case go to thp 
 representatives of the legatee.* 
 
 A legacy given to an executor for care and pains is not to be regarded 
 in the light of a debt, or as founded on contract, nor to be governed by 
 the principles applicable to contracts. Such a legacy, on a failure of 
 assets to pay debts and legacies, must abate like other legacies, which it 
 would not do if it were merely a debt.' 
 
 While, in general, it is the duty of a person to whom a legacy is be- 
 
 ' Humberaton y. Humberston, 1 P. * Harrispn v. Kowley, 4 Ves. 212. 
 
 "Wms. 333. Dix v. Eeed, 1 Sim. & Stu! ' Id. 215. 
 
 287. Oorkerell v. Barber, 2 Russ. Oh. 0. ■ Brydges v. Wotton, 1 Ves. & B. 134. 
 
 585. , ' Morris v. Kent, 2 Edw. Cb. E. 176, 
 
 " Harrison v. Rowley, i Ves. 212. 179. Fretwell v. Stacy, 2 Vern. 434. 
 
 • L. of 1837, pp. 624, 528, §§ 7, 22. Att'y Gpn. v. Eobbins, 2 P. Wms. 25. 
 
Ch. 7.] Legacies to Executors. 537 
 
 queatbed for care and pains, to act promptly, and while any unnecessary 
 delay of the legatee in accepting the trust, may be laid hold of by the 
 court to deprive him wholly of the legacy, yet it seems, if the legatee 
 finally accepts, he may be allowed such portion of the legacy as his ser- 
 vices bear to the whole duty imposed upon him by the will, as the induce- 
 ment for giving the legacy.' Thus, in the case of Morris v. Kent, just 
 cited, the testator by his will appointed his widow and the defendant ex- 
 ecutors of his will ; and accompanied the appointment of the defendant 
 with a bequest in these words : " hereby giving my said executor 
 $10,000 for his care and trouble in executing that office." The widow 
 proved the will, and the defendant Kent being apprehensive that there 
 would not be enough of the estate left, after paying the debts, to satisfy 
 his legacy or to compensate him for the care and trouble which would 
 attend the discharge of his duties, hesitated about taking upon himself 
 the office of executor ; and at one period actually resolved not to under- 
 take the trust, and he so informed the widow. In consequence of his not 
 taking upon himself the trust, with the widow, the latter was under the 
 necessity of appointing an agent to attend the affairs of the estate ; 
 and for this purpose she employed a professional gentleman, who contin- 
 ued in such agency about a year, and to whom she allowed the sum of 
 $4000. Subsequently the defendant, at the earnest request of the ex- 
 ecutrix, qualified as executor and took upon himself the active duties, and 
 continued to discharge them down to the filing of the bill, having received 
 and disbursed large sums of money on account of the estate. The balance 
 in his hands he claimed to apply towards the payment of the legacy of 
 $10,000. The biU was filed for an account, and the complainants insisted 
 that the defendant was entitled to no part of the legacy, while he claimed 
 the whole of it. 
 
 The vice chancellor sdd that the legacy in this case was given to the 
 defendant in his character of executor ; it being expressly intended as a 
 satisfaction for his care and trouble in executing the office. It is there- 
 fore a conditional legacy ; and, according to the well established rule in- 
 such cases, the defendant would not be entitled to claim payment without 
 clothing himself with the character of executor, or, in other words, without 
 accepting the office and undertaking to discharge its duties. This the de- 
 fendant has done ; but not without hesitation : besides the delay of more 
 than a year, and even a refusal at one period to qualify. Such refusal, how- 
 ever, was not an absolute renunciation. He was still at liberty to qualify. 
 
 ■ Morris v. Kent, 2 Edw. Oh, E. 174 
 Eq. Jue. 68 I 
 
588 Teusts, [Oil. 7. 
 
 The question then became one as to what, if any, deduction should be 
 made from the legacy. 
 
 The vice chancellor upon this point said, that it must be admitted that 
 ■where a specific sum is proposed as a compensation for an entire service 
 and only a part is performed, it is but reasonable and just the reward 
 should be proportioned to the extent of the service done. He admitted 
 that this principle of natural justice and equity is, in general, confined 
 to matters of contract, and does not apply as between the testator and 
 his executors in relation to a legacy for care and trouble, because such 
 legacy is not a matter of convention or agreement, but proceeds from the 
 mere bounty of the testator, like any other legacy ; that the executor is 
 under no legal obligation to accept the office ; he enters into no stipula- 
 tion or agreement with his testator to this efiect, and may decline it if he 
 chooses ; and as the legacy is given to him in this capacity, or is expressed 
 to be for his care and trouble in executing the office, the law interposes 
 no further than to attach to the gift an implied condition of his accepting 
 the office, so that if the executor substantially complies with the condi- 
 tion, he becomes entitled to the bounty of the testator, and then there is 
 to be no apportionment according to the degree of care and trouble, or 
 value and extent of the services performed. 
 
 But while these things are so, and in none of the cases has an abate- 
 ment or apportionment, according to the services rendered, been made a 
 question, still no case has denied the right of the court, in a proper case, 
 to interfere with the amount of a legacy, in a special case of that sort ; 
 'and he thought the present called for such interference. And he accord- 
 ingly held, that the defendant's legacy should be liable to a deduction by 
 reason of the necessity to which his refusal, in the first instance, subjected 
 the executrix of employing an agent, and of the expense such agency 
 occasioned. 
 
 Though the case of Morris v. Kent (supra) is without precedent, it 
 was nevertheless decided upon sound principte ()f natural justice and 
 equity. There could be no doubt that the legacy was intended as a 
 compensation for the care and pains of the legatee, in the trust confided 
 to him. It would be a fraud upon the bounty of the testator, to permit the 
 executor to receive the whole legacy, unless he performed the whole ser- 
 vice, or was defeated in the performance of it by death after he had entered 
 upon it. And it would be just to both parties, if the legatee performed 
 a substantial part of the service, that he should receive such portion of 
 the intended recompense, as the service actually performed bore to the 
 whole service to be performed at the death of the testator. 
 
 Though, in general, the obtaining probate of the will is a sufficient 
 
Ch. 7.] Cumulative Legacies, 539 
 
 compliance ■wltli the condition to entitle an executor, to whom a legacy ia 
 given in that character, to hold the said legacy, yet if it be made to 
 appear that this act of obtaining probate was merely colorable and with 
 no intention of performing the trust, but merely to get the legacy, a 
 court of equity will not aid the legatee in obtaining it. Thus, where the 
 testator appointed four executors, and gave to each who should prove his 
 will, and act in the execution of it, a legacy of £1500 and an annuity of 
 £100. All the executors proved the will, and soon afterwards a bill 
 was filed to carry the trusts into execution. After this, one of the 
 executors ran away with the testator's infant daughter, and went through 
 a ceremony of marriage with her abroad, which was afterwards annulled 
 by the spiritual courts : Lord Thurlow held that the executor's concur- 
 rence in the probate, und«r those circumstances, did not entitle him to 
 the legacy or the annuity, for the facts showed that he had no real inten- 
 tion of acting under the will.' 
 
 SECTION IS. 
 
 OF CUMULATITE LEGACIES. 
 
 There is a distinction in the cases between a repetition of a prior 
 bequest to the same legatee in the same will or codicil, and an additional 
 bounty given to one to whom in the same will, or in another will or codicil, 
 a legacy has been bequeathed. In the former case, the legatee takes 
 only one of them ; in the latter, the legacies are treated as cumulative, 
 and the legatee takes the whole. Thus, a bequest of two annuities of 
 equal amount in the same will to the same person, was held to be a repe- 
 tition, and not accumulative.'* It depends essentially on the intention of 
 the testatca:, to be collected from the whole will, whether the legacy shall 
 be treated as a repetition, or as cumulative. In an early case in this state, 
 Kent, chief justice, after a review of numerous cases, stated the general 
 rule on this subject to be,^ that where the sum is repeated, in the same 
 writing-^ the legatee can take only one of the sums bequeathed. The latter 
 Bum is held to be a substitution, and the bequests are not taken cumulative- 
 ly, unless there be some evident intention that they should be so consid- 
 ered, and it lies with the legatee to show that intention, and rebut the 
 
 ' Harford v. Browning, 1 Cox, 302. ' De Witt v. Yates, 10 J-E. 158. 
 
 « Hol&rd 7. Wood, 4 Ves. 76. 
 
540 Trcsts. [Ch. 7. 
 
 contrary presumption. But where the two bequests are in different 
 instruments, as by will in the one case, and by a codicil in the other, the 
 presumption is in favor of the legatee, and the burden of contesting that 
 presumption is cast upon the executor. The presumption either way, 
 whether against the cumulation, because the legacy is repeated in the same 
 instrument, or whether in favor of it, because the legacy is by different in- 
 struments, is liable to be controlled or repelled by internal evidence, and 
 the circumstances of the case.' This question, which appears to have arisen 
 so often, and to have been so learnedly and ably discussed in the English 
 courts, was equally familiar to the civil law. The same rule existed there 
 and was subject to the same control. (Dig. 30. 1. 34 ; Dig. 23. 3. 12.) 
 The civil law puts the case altogether upon the point of the testator's 
 intention ; but then, if the legacy was repeated in the same instrument, 
 it required the highest and strongest proof to accumulate it. Eviden- 
 tissimis prohationibus ostendatur testatorem mnltiplicasse legatum 
 voluisse. 
 
 When there is no internal evidence of the intention of the testator, 
 the following positions of law appear to be established by the cases to 
 which reference has been made. 
 
 1. If the same specific thing is bequeathed twice to the same legatee 
 in the same will, or in the will and again in a codicil, in that case he can 
 claim the benefit only of one legacy, because it could be given no more 
 than once.' 2. Where two legacies of quantity of equal amount are 
 bequeathed to the same legatee in one and the same instrument, there 
 also the second bequest is considered a mere repetition, and he shall be 
 entitled to one legacy only. 3. Where two legacies of quantity of unequal 
 amount are given to the same person in the sam,e instrument, the one is 
 not merged in the other, but the latter shall be regarded as cumulative, 
 and the legatee is entitled to both. 4. Lastly, where two legacies are 
 given simpliciter, to the same legatee by different instruments, in that 
 case also the latter shall be cumulative, whether its amount be equal or 
 unequal to the former.' 
 
 ' Godol. Orph. Leg. pt. 3, ch. 26, § 46. id. 462. Osborne v. The Duke- of Leeds, 
 
 Swinb. pt. 7, ch. 21, § 18. The Duke of 5 Ves. 369. 
 
 St. Albans v. Beauclerck, 2 Atk. 636. = 2 Will. Ex. 800. Toller, 335. 
 
 Garth v. Meyrick, 1 Bro. 30. Bridges v. ' See cases under preceding note, and 
 
 Morrison, id. 389. Hooley v. Hatton, id. Benyon v. Benyop, 17 Ves. 34. Balie v. 
 
 S90, n. Wallop V. Hewett, 2 Ch. R. 37. Butterfiejd, 1 Oox, 392, The Duke of St, 
 
 Newport v. Kinaston, id. 58. James v. Albans v. Beauclerck, 2 Atk. 636, 638 et 
 
 Sommens, 2 H. Bl. 214. Allen v. CuUen, seq. where the whole doctriae is ezplain- 
 
 8 Ves. jr. 289. Barclay t. Wainewright, ed fully. 
 
Ch. 7.] Cumulative Legacies. 541 
 
 But in many cases there is internal evidence of the intention of the 
 testator, that the one legacy is a mere substitution for the other. In 
 such cases the intention must prevail. 
 
 On the other hand, the general inference that legacies are cumulative, 
 arising from the fact of their being for an unequal amount, or given by 
 different instruments, or where different reasons are assigned for the tes- 
 tator's bounty, may be strengthened by internal evidence ; as vphere the 
 legacies are of different kinds, or payable at different times, or belong to 
 different classes, as that one is vested and the other contingent.' 
 
 In De Witt v. Yates, (supra,) the only circumstance to show that the tes- 
 tator intended the second legacy to be cumulative was, that the latter 
 was charged upon a person in respect of real estate devised to him. 
 But this, the court thought, afforded no intention to accumulate. The 
 inference is the other way. It was only strengthening the security of 
 the legacy by means of the charge. 
 
 In the cases we have considered, the question has been, in general, 
 whether the intention is sufficiently manifested by the instrument by 
 which the legacy is given, to enable the court to determine whether 
 the legacy is a mere repetition, or was intended to be cumulative. It 
 may be proper, in conclusion, to say, that parol evidence is inadmissible 
 to show the intent of the testator, whether the testator intended by the 
 legacy to confer a double benefit or not. Although there are some dicta 
 to the contrary, yet the subject was put at rest by the vice chancellor, in 
 a well considered opinion. " Our primary principle," says Sir John 
 Leach, V. Ch.,^ " is, that ■evidence is not admissible to contradict a written 
 instrument. In some cases courts of equity raise a presumption against 
 the apparent intention of a testamentary instrument, and then they will 
 receive evidence to repel that presumption ; for the effect of such testi- 
 mony is not to show that the testator did not mean what he has said, but, 
 on the contrary, to prove that he did mean what he has expressed. 
 
 " Thus, where the court raises the presumption against the intention of a 
 double gift, by reason that the sums and the motive are the same in both in- 
 struments, it will receive evidence that the testator actually intended the 
 double gift he has expressed. In like manner evidence is received to 
 repel the presumption raised against an executor's title to the residue, 
 from the circumstance of a legacy given to him, and to repel the pre- 
 sumption that a portion is satisfied by a legacy. In all these cases the 
 
 ' Masters v. Masters, 1 P. Wms. 424. Euss. Ch. C. 257. Mackenzie v. Maoken- 
 Ourrie v. Pye, 17 Ves. 462. Hodges v. zie, id. 262. 
 Peacock, S id. 735. Vray v. Field, 2 ' Hurst v. Beach, 5 Mad. 351, 359. 
 
542 Trusts. [Ch. 7. 
 
 evidence is received in support of the apparent effect of the instrument, 
 and not against it. 
 
 " Here the evidence tendered is not in support of the apparent effect 
 of the instrument, but directly against it. This codicil leaves unrevoked 
 the former legacy of £300 to the defendant, and makes to him a further 
 substantive gift of £500. The evidence tendered is, that the testatrix 
 did not mean this as a further gift of £500, but meant to substitute the 
 £500 in the place of the former £300. 
 
 " I am of opinion, therefore, that such evidence cannot be received 
 without breaking in upon the primary rule, that parol evidence is not ad- 
 missible against the expressed effect of a written instrument.'" 
 
 SECTION X 
 
 OP SATISFACTION. 
 
 In administering the law in relation to legacies, courts of equity are 
 frequently called upon to determine whether the legacy be intended as a 
 bounty, or a payment of a debt due by the testator to the legatee. It is 
 an established rule in courts of equity, that where a debtor bequeaths to 
 his creditor a legacy equal to, or exceeding the debt due, it shall be pre- 
 sumed, in the absence of any intimation of a contrary intention, that the 
 legacy was meant by the testator as a satisfaction of the debt.^ Thus, 
 where W. was indebted to the testatrix on bond and mortgage $4000, 
 and the testatrix owed him on account less than $2400, and she declared 
 by her will, that on W.'s paying $1600 the bond and mortgage should be 
 discharged, which was done accordingly, and it appeared by conversations 
 between W. and the testatrix, that she intended the bequest should go 
 to discharge the debt due to him, it was held that the legacy operated as 
 payment, and would be so treated in a court of law, in an action by W. 
 brought against the executors to recover the debt. The parol evidence in 
 this case did not tend to vary or contradict any provisions of the will. It 
 went to explanations independent of the will, respecting a state of facts 
 about which it was silent. It was therefore admissible.' 
 
 The presumption of satisfaction will not arise where the debt was not 
 
 ' Lee V. Paine, i Hare, 201, where the ' Fowler v. Fowler, 3 P. WmB. 853. 
 doctrine of cumulative legacies is fully WilliamB v. Orary, 8 Oowen, 246. 
 treated. ' Id, 
 
Ch. 7.] Satisfaction. 543 
 
 contracted till after the making of the will." Nor will it be treated as 
 payment pro tanto, if it be less in amount than the debt ; nor if the leg- 
 acy be upon condition, or be contingent and uncertain.^ 
 
 A legacy, to be a satisfaction of a debt, must ' be given by the same 
 person by whom the debt is due ;^ and generally, and not for any partic- 
 ular or specified cause ; it must be of the same nature, equal or greater 
 in amount, equally beneficial in point of continuance and commencement, 
 and payable at a period as advantageous to the legatee as the debt.^ 
 
 The presumption that the legacy was intended as a satisfaction of the 
 debt, may be rebutted by other circumstances in the will : thus, where a 
 different purpose is expressed by the testator as the motive of the gift, 
 or where there is an express direction in the will for the payment of all 
 debts and legacies^^ 
 
 It is said that a legacy shall in all cases be construed as a satisfaction, 
 in case there is a deficiency of assets.^ 
 
 It has thus been shown that a legacy may, under certain circumstances, 
 be a satisfaction of a debt. It may be proper to add, that a legacy may 
 be satisfied by an advancement of the testator, in his lifetime, either on 
 the marriage or subsequent to the marriage of a legitimate child. The 
 question of satisfaction generally comes before the court upon two occa- 
 sions ; 1st, where a portion or provision is secured to a child by marriage 
 settlement or otherwise, and the parent or person in loco parentis after- 
 wards by will gives the same child a legacy, without expressly directing 
 it to be in satisfaction of the portion ; and 2d, where a parent or person 
 in loco parentis by will bequeaths a legacy to a child or grandchild, and 
 afterwards gives a portion to or makes a provision for that child or grand- 
 child in his lifetime, without expressing it to be in lieu of the legacy ; 
 (for it seems that an express declaration, or perhaps evidence of the in- 
 tent, will in either case repel the general presumption.) With respect to 
 the first point, the general rule is, if the latter provision be as great as, 
 or greater than, the former portion or provision, then it is a complete sat- 
 isfaction ; if not so great, then a satisfaction pro tanto. But this rule 
 only applies where the subsequmt legacy or provision is attended with 
 the same degree of certainty as the former portion. In regard to the 
 second point, the rule seems to be, that where a legacy is given to a child 
 
 ' Jeffs V.Wood, 2 P. Wms. 132. Thorn- ' Eastwood v. Vincke, 2 P. Wms. 616. 
 
 as V. Bennett, id. 343. Lee v. Brown, 4 Ves. 362. 
 
 ' Cranmer's case, 2 Salk. 508. NichoUs ■■ Chanoey's case, 1 P. Wms. 409. Eich- 
 
 V. JudsoD, 2 Atk. 300. ardson v. Greese, 3 Atk. 65. 
 
 ' Orompton v. Sale, 2 P, Wms. 555. • Toller, 337. 2 Will. Ex. 808. 
 
544 Trusts. [Ch. T. 
 
 who aftenvards, upon marriage or otherwise, receives from the testator 
 in his lifetime the like or a greater sum, that sum shall be deemed a sat- 
 isfaction of the legacy.' 
 
 A bequest by the testator to his debtor, of a debt, Is merely a release 
 of the debt by will, and operates only as a legacy ; and is assets there- 
 fore, subject to the payment of the testator's debts.' If the testator In 
 his lifetime receive the debt. It is an ademption of the legacy.' 
 
 Formerly the nomination of the debtor of the testator as executor, op- 
 erated as a release or extinguishment of the debt.* But this rule is now 
 abrogated by the Revised Statutes, and the debt is required to be In- 
 cluded among the credits and effects of the deceased. In the Inventory, 
 and the executor Is liable for the same, as for so much money in his 
 hands, at the time such debt or demand becomes due; and he is required 
 to apply and distribute the same in the payment of debts and legacies, 
 and amongst the next of kin, as part of the personal estate of the 
 deceased.' 
 
 SECTION XI. 
 
 OF ELECTION. 
 
 The limits of this treatise will not permit a full discussion of the 
 doctrine of election, and nothing further will be attempted than to give 
 some of the leading principles which have been adjudged by the courts 
 on this subject. 
 
 The jurisdiction exercised, by courts of equity In compelling election, 
 was thus described by the lord chancellor In a leading case :' A person 
 shall not claim an Interest under an instrument, without giving full effect 
 to that instrument, as far as he can. If, therefore, a testator. Intending 
 to dispose of his property, and making all his arrangements under the 
 impression that he has the power to dispose of all that Is the subject of 
 his will, mixes in his disposition property that belongs to another person, 
 
 ' Bellasis v. Uthwatt, 1 Atk. 427 and " Thellusson v. ■Woodforth, 13 Ves. 219. 
 
 note, wjiere the cases are oolleoted. Dillon v. Parker, 1 Swanst. 396, note of 
 
 " Eider v. Wager, 2 P. Wms. 331. Mr. Swanston; and Hare (feWailace's note 
 
 % E- S. 84, § 14. to Streatfield v. Streatfield. 1 White's 
 
 " Id. Equity Gas. 258 et seq. Noys v. Mor- 
 
 * Co. Litt. 264 b. . daunt, 2 Vern. 581. 
 
 • 2 E. S. 84, § 18. 
 
Cli. 7.] Election. 515' 
 
 or- property as to 'whicli another person had a right to defeat his dispo- 
 sition, giying to that person an interest by his will, that person shall not. 
 be permitted to defeat the disposition, when it is in his power, and yet 
 take under the will. The reason is, the implied condition that he shall 
 not tak« both, and the consequence follows that there must be an elec- 
 tion ; for though the mistake of the testator cannot affect the property 
 of another person, yet that person shall not take the testator's property 
 unless in the manner intended by the testator.' 
 
 In every case of election there must be an intention to dispose of that 
 over which the testator has no power of disposition.'^ The intention of 
 the testator must be plain and manifest.^ The property intended to be' 
 disposed of must be described with certainty.'' And the intention of the' 
 testator must be manifested by the will, for it seems that parol evidence 
 is inadmissible for the purpose of showing it.^ 
 
 The doctrine of election may be thus illustrated : Suppose A., by will 
 or deed, gives to B. property belonging to C, and by the same instru- 
 ment gives other property to C, a court of equity will hold C. to be; 
 entitled to the gift made to him by A., only upon the implied condition 
 of his conforming with all the provisions of the instrument, by renounc- 
 ing the right to his own property in favor of B. ; he must consequently 
 make his choses, or, as it is technically termed, he is put to election to 
 take either under, or against the instrument. If C. elects to take under, 
 and consequently to confcrm to all the provisions of the instrument, no 
 difficulty arises, as B. will take C.'s property, and C will take the 
 property given to him by A. But if C. elects to take against the instru- 
 ment, that is to say, retains his own property, and at the same time sets- 
 up a claim to the property given to him by A., an important question 
 arises whether he thereupon incurs a forfeiture- of the whole of the bene- 
 fit conferred upon him by the instrument, or, is merely bound to make 
 compensation out of it to the person who is disappointed by his election.' 
 
 There are many dicta in favor of the doctrine of forfeiture.^ But the- 
 weight of modern authority is in favor of the principle of compensation.'' 
 
 ' Hawley v. James, 16 Wend. 62-142. Ves. 194. Wilson v. Townshend, 2 Ves. 
 
 ' Thellnsson v. Woodford, 13 Ves. 222. jr. 697. Thellusson v. Woodford, 13 Ves. 
 
 " Eancliffe v. Parkyns, 6 Dow, 176. 220. 
 
 ' Druoe v. Denison, 6 Ves. 399. « Whistler v, Webster, 2 Ves. jr. 372. 
 
 ' Stratton v. Best, 1 Ves. jr. 284. Ward v. Bangb, 4 Ves. 627. Lady Cavan. 
 
 ' Note to Streatfleld v. Streatfleld, 1 v. Pulteney, 2 Ves. jr. 560. Blake v. 
 
 White's Eq. Oas. 258. Bunbnry, 1 id. 523. Welby v. Welby, a 
 
 ' Cowper V. Scott, 3 P. Wms. 124. Mor- V. & B. 190, 191. Webster v. Milford, 2 
 
 ris V. Burroughs, 1 Atk. 404. Pugb v. Eq. Ca. Abr. 363. Bor v. Bor, 3Bro.P.. 
 
 Smith, 3 id. 43. Wilson v. Mount, 3 0., Toml. ed. 167. Ai-desoif v. Bennet, 
 
 Eq. Jub. 69 
 
546 Trusts. [Oh. 7. 
 
 Lord Eldan in Ker v. Wanchope, (supra,) says : " In our courts we have 
 engrafted upon this primary doctrine of elaction, the equity as it is 
 termed of compensation. Suppose a testator gives his estate to A. and 
 directs that the estate of A. or any part of it should be given to B : if 
 the devisee Tvill not comply -with the condition of the will, courts of equity 
 hold that another condition is to be implied as arising out of the will, 
 and the conduct of the devisee ; that inasmuch as the testator meant that 
 his heirs at law should not take his estate which he gives A. in consider- 
 ation of his giving his estate to B. ; if A refuses to comply with the will, 
 B. shall be compensated by^ taking the property, or the value of the 
 property, which the testator meant for him, out of the estate devised, 
 though he cannot have it out of the estate intended for him." 
 
 Mr. Swanston, after reviewing the cases in his learned note to Gretton 
 V. Haward, (1 Swanst. 433,) shows that they establish two propositions : 
 1st. That in the event of election to take against the instrument, courts 
 of equity assume jurisdiction to sequester the benefit intended for the 
 refractory donee, in order to secure compensation to those whom his elec- 
 tion disappoints. 2d. That the surplus, after compensation, does not 
 devolve as undisposed of, but is restored to the donee, the purpose being 
 satisfied for which alone the court controlled his legal right. 
 , This doctrine of election applies to interests, immediate, remote, con- 
 tingent, of value, or not of value.' It is applicable to deeds as well as 
 wills. And it is immaterial whether the testator or grantor knew the 
 property not to be his own or not ; for in either case, if the intention to 
 dispose of it clearly appears, his disposition will be sufficient to raise a 
 case of election." 
 
 The doctrine of election, in this state, most frequently arises in rela- 
 tion to legacies or devises by the testator to his widow. The questions 
 presented, generally, are whether the testamentary dispositions in her 
 favor were intended to be in lieu of dower, or merely a bounty. If the 
 legacy be in express terms declared to be in lieu of dower, the widow, it 
 should seem, is necessarily put to her election, for she cannot take both. 
 The Revised Statutes have made full provision on this subject, in affirm- 
 ance of the common law ; and they furthermore enact, that she shall be 
 deemed to have elected her jointure, devise or pecuniary provision, unless 
 
 2 Dick. 465. Lewis v. King, 2 Bro. 0. 0. ' Wilson v. Townshend, 2 Vea. jr. 697. 
 
 600. Freke v. Barrington, 3 id. 284. "Webb v. Earl of Shaftsbury, 7 Ves. 480. 
 
 Lord Eldon in Dashwood v. Peyton, 18 " Whistler v. Webster, 2 Ves. jr. 370. 
 
 Ves. 49. Tibbits v. Tibbits, Jac. 817. Thellusson v. Woodfoi'd, 18 Ves.~ 221. 
 
 Lord Eancliffe v. Parkyns, 6 Dow, 179. Welby v. Welby, 2 Vea. & B. 199. 
 Ker V. Wanchope, 1 Bligh, 25. 
 
CL. T.] Election. 547 
 
 within one year after the death of her husband, she shall enter on the 
 lands to be assigned to her for her dower, or commence proceedings for 
 the recovery or assignment of it.' 
 
 But it is in cases where the legacy or devise is not, in express terms, 
 declared to be in lieu of dower, that there is any room for argument or 
 doubt. As the right of dower is a legal right, the wife cannot be deprived 
 of it by a testamentary provision in her favor, so as to put her to an elec- 
 tion, unless the testator has manifested his intention to deprive her of 
 dower, either by express words or necessary implication.'^ And to enable 
 us to deduce such implied intention, the claim of dower must be inconsist- 
 ent with the will, or repugnant to its dispositions, or some of them. It 
 must, in fact, disturb or disappoint the will.^ 
 
 A brief examination of some of the cases will best illustrate the rules 
 on this subject. 
 
 In Adsit V. Adsit, (supra,) the testator bequeathed to his wife $500, 
 " to be left in the hands of his executors, to be paid to her for her sup- 
 port, at any time, or at all times, as her need might require ;" and also 
 gave her what household goods she needed; and after bequeathing pe- 
 cuniary legacies to his grandchildren, directed his farm to be sold by his 
 executors, who sold it for $6000, and the wife, after the death of the tes- 
 tator, accepted the legacy, which was paid to her out of the proceeds of 
 the sale of the farm. It was held by Chancellor Kent, that the legacy 
 was not, according to a fair construction of the will, given in lieu of, or 
 in bar of dower, but as a mere pecuniary bequest : that the acceptance 
 of it by the widow did not affect her right to dower ; and that the pur- 
 chaser of the farm took it subject to the claim of dower. The great point 
 in the case was whether the legacy, which purported to have been given 
 for the '' support" of the widow, afforded clear and undoubted evidence 
 that it was intended as a substitute for dower. Every devise or bequest, 
 as was well remarked, imports bounty, and does not naturally imply sat- 
 isfaction of a pre-existing incumbrance. The fact that it fell short of the 
 legal provision, and that it was not given absolutely out and out, but was 
 left in the haiids of the executors, and to be paid to her, as her need 
 might require, was thought to afford evidence that it was not intended 
 in lieu of dower; but as auxiliary support. The chancellor thought it was 
 intended as a gratuity, or as a cumulative provision, and created for 
 greater caution. Of course the acceptance of it by the legatee was not 
 
 ' 1 K. S. 741, T42, §§ 9 to 14. v. Lasher, 13 Barb. 106. Smith v. Knis- 
 
 " Fuller V. Yates, 8 Paige, 328. kern, 4 J. 0. E. 9. 
 
 » Adsit V. Adsit, 2 J. Ch. 451. Lasher 
 
54:8 Tetjsts. ;[Ch. 7. 
 
 inconsistent with her claim of dower, nor was the assertion of her claim 
 to dower repugnant to, or destructive of any provision in the will. 
 
 In general, when the testamentary provision is not declared, in express 
 terms, to be in lieu of dower, if it be of shorter continuance than an 
 fistate in dower, or be charged with a burden, the court will not imply 
 that it was intended to be a substitute for dower. 
 
 In Bull V. Church," the testator bequeathed to his wife "all his prop- 
 erty, real and personal, during her natural life, or as long as she shall 
 remain my widow. After my beloved wife's decease, or if she should 
 marry again, I will and order my property to be divided in the following 
 manner." The widow continued in possession for some years, and then 
 married, and in an action brought by her for her dower, after such mar- 
 riage, the question was, whether the legacy was a bar to dower. The 
 supreme court held that it was not, and their judgment was affirmed by 
 the court of errors. 
 
 The estate given to the wife in this case would have been greater than 
 her dower, had she remained a widow during life, and in that case the 
 ' question could not have arisen. It was, however, a less estate than her 
 dowejj, because it terminated at her marriage. It was not expressed to 
 be in lieu of dower. A testamentary provision for the wife is deemed a 
 gratuity or benevolence, which she may take in addition to her dower, 
 unless the testator has plainly manifested a different intention, as by say- 
 ing that the gift is in lieu or bar of dower. Her claim to dower, said 
 Bronson, J., is no more inconsistent with the will than it would be in any 
 other case, where, after making a provision for the wife, the testator has 
 given lands to another, without saying any thing about dower, and in 
 such a case the widow shall have dower, in addition to the provision made 
 by the will.' And the chancellor, in giving the opinion of the court of 
 errors, in the same case, gives it as the result of all the cases, in this 
 state and in England, that to compel the widow to elect between the dower 
 and a provision made for her in the will, when the testator has not in 
 terms declared his intention on the subject, it is not sufficient that tho 
 •will renders it doubtful whether he intended that she should have her 
 dower, in addition to that provision ; but that to deprive her of dower, 
 the terms and provisions of bis will must be totally inconsistent with her 
 claim of dower in the property in which such dower is claimed ; so that 
 
 > 5 Hill, 206 ; S. 0., a Denio, 430. ' Allen v. Pi-ay, 8 Fairf. 138. Eeed v. 
 
 Dickerman, 12 Pick. 14&. 
 
Ch. 7.] Election. 549 
 
 the intention of the testator in relation to some part of the property de- 
 vised to others Trould be defeated if such claim was allowed.' 
 
 The doctrine of the New- York cases is not different in this respect 
 from that in the m»st recent English cases. Vice Chancellor Wigram, 
 in a recent case,^ says, " I take the law to be clearly settled at this day, 
 that a devise of lands eo nomine upon trusts for sale, or a devise of lands 
 eo nomine to a devisee beneficially, does not, jper se, express an intention 
 to devise the lands otherwise than subject to its legia.1 incidents; that of 
 dower included. There must be something more in the will, something 
 inconsistent with the enjoyment by the widow of her dower, by metes 
 and bounds, or the devise standing alone will be construed as I have 
 stated." And this doctrine was approved by the chancellor in Church 
 V. Bull. 
 
 In Lasher v. Lasher,' the question arose in an action by the widow for 
 her legacy, after she had had her dower set off to her. The testator de- 
 vised to the defendant 100 acres of his home lot and 15 acres of wood- 
 land in fee, charged with the payment of a small legacy to each of his 
 three sisters, and the will then proceeded thus : " I also will and order 
 that my said wife be well and sufficiently supported and maintained by 
 my son Elias out of the property bequeathed to him, so long as she may 
 remain my widow." The widow having had her dower assigned to her, 
 brought her action against the devisee upon whom her support, during 
 widowhood, was charged, and a recovery was resisted upon the ground 
 that by accepting her dower, she had relinquished her claim to the sup- 
 port provided for in the will. But the court held, that as the testamen- 
 tary disposition in her favor was not expressed to be in lieu of dower, 
 and the provisions of the will were not inconsistent with her claim, she 
 was not put to her election. 
 
 In the above case the testamentary provision in favor of the widow was 
 of shorter continuance than her dower, being limited to her widowhood ; 
 and was also charged with a burden, viz. the furnishing a home with her 
 to two of her daughters while they remained single. In the absence of 
 any express declaration that such a legacy shall be in lieu of dower, the 
 law will not imply it. The whole provision would terminate by the mar- 
 riage of the legatee, and might be exhausted by the burden cast upon it. 
 
 Nor will the law imply that a legacy to the widow is in lieu of dower, 
 because the testator by the same will devises his real estate to trustees for 
 specified purposes, or to a devisee beneficially. There must be something 
 
 ' Church y. Bull, 2 Denio, 431. • 13 Barb. 106. 
 
 " Ellis V. Lewis, 8 Hare, 310, 813. 
 
650 Trusts. [Ch. 7. 
 
 more to indicate that purpose, or the devise must be inconsistent with the 
 claim of dower.' 
 
 In Fuller v. Yates, (supra,) the testator devised all his real and per- 
 sonal estate to his executors and trustees, with directions to them to lay 
 out certain portions of his lands into village lots, and to sell them from 
 time to time as they might be wanted for building lots, and with power 
 to sell any other parts of the estate they might deem necessary to fulfill 
 the objects of his will, and gave to his widow the possession and direction 
 of his dwelling house and Walnut Grove farm, and an annuity of $2000, 
 and a further annuity of $500 to keep up the garden and improve the 
 property, and also the use of his library and certain pleasure carriages, 
 horses, &c. ; it was held by the chancellor that the widow was entitled 
 to dower in the testator's teal estate, in addition to the devises and be- 
 quests in her favor in the will. 
 
 Though in this case, taking the whole disposition into consideration, it 
 could hardly be said that the testator intended that his wife should have 
 her dower, in addition to the testamentary dispositions in her favor ; and 
 probably if the question of dower had occurred to him, he would have in- 
 serted a provision in the will declaring the dispositions in her favor to be 
 in lieu of dower in the residue of his estate ; yet, it was well observed by 
 the chancellor that it was not sufficient to bar dower, that the testator 
 did not think on the subject ; as that would only indicate a want of in- 
 tention either one way or the other. To exclude the widow's right to 
 dower, the will itself must show that he probably did contemplate the 
 subject, and intended that the testamentary provision for the ivife should 
 exclude her from all claim to dower, if she elected to take them.'' 
 
 So a devise of all the testator's real and personal estate to a trustee, 
 to be sold and converted into money, and to pay the widow an annuity 
 out of the income of the mixed fund, composed of the proceeds of the real 
 and personal property, is not of itself sufficient to show that the testator 
 intended this provision for the widow to be in lieu of dower, so as to com- 
 pel her to elect between such annuity and her dower in the real estate.' 
 
 Nor is it enough to deprive the wife of her dower, or to compel her to 
 elect, that the provisions of the will render it doubtful whether the tes- 
 tator intended she should have her dower, in addition to the provision 
 made for her by the will. The terms and provisions of the will must be 
 such as to show an evident intention, on the part of the testator, to 
 
 ' Ellis v. Lewis, 8 Hare, 810. Adsit v. ' Fuller v. Yates, 8 Paige, 831. 
 Adait, 2 J. Ch. R. 451. Fuller v. Yates, ' "Wood v. Wood, 5 Paige, 596. 
 8 Paige, 325, 
 
Ch. 7.] Election. 551 
 
 exclude the claim of dower. The provisions of the will, or some of them, 
 must be absolutely inconsistent with her claim of dower. ' 
 
 Thus, where a testator devised all his property, real and personal, to 
 his wife and to two other persons, to be kept for her use and support so 
 long as she should continue his widow, and until his youngest child should 
 become of age, and then directed that all his property should be divided 
 equally among his children ; and- she survived the testator, and after- 
 wards married a second time, it was held that the devise in her favor was 
 not inconsistent with her claim of dower in the testator's real estate, 
 after his youngest child arrived at the age of twenty-one, and that her 
 acceptance of the devise was no bar to such claim of dower.' 
 
 When the whole of the property is conveyed by one general devise, if 
 there be one part of the property, with respect to which it is clear that 
 the testator did not intend that it should be subject to the claim of 
 dower, it follows that he did not intend that any portion of it should be 
 subject to dower: and in such case the wife is necessarily put to her 
 election.' But whether a mere charge of an annuity upon the land in 
 favor of a widow with a clause of entry and distress, would be sufficient 
 to put her to her election, has, in England, given rise to a contrariety of 
 decisions, and was left undecided in Roadley v. Dixon.' If the annuity 
 be chargeable on both real and personal property of the estate, and be 
 not confined to the land alone out of which dower is claimed, the cases 
 in this state show that the wife, is not put to her election, but that she 
 takes the legacy as a bounty and her dower also.' 
 
 Although the doctrine of election we are considering is in truth a part 
 of equity jurisprudence, and it is in courts of equity that relief is- in 
 general sought, yet the principles on which the court acts are in all 
 respects the same at law as in equity, when the issue is so shaped as to 
 require their application.' In an early case, Thompson, J., said, that to 
 render a provision to the wife by will a legal bar to dower, it must con- 
 sist of lands given or assured unto her /or life ; but such a sum of money, 
 or other chattel interest, given by will in lieu of dower, will, if accepted 
 
 ' Sanford v. Jackson, 10 Paige, 269. shall not attempt to reconcile the cases in 
 
 ' M. 266. the other states. They are ably review- 
 
 = Roadley v. Dixon, 3 Euss. 193. Miall ed in the note, in White's Equity Cases, 
 
 V. Brain, 4 Mad. Ch. E. 68. Butcher v. to Streatfleld v. Streatiield, vol. 1, 272- 
 
 Kemp, 5 id. 61. 289, to which the reader is referred. 
 
 * 3 Euss. 206, and see the cases reviewed "Van Orden v. Van Orden, 18 J. E. 
 
 in that cause, and White's Eq. Cases, 30. Jackson v. Churchill, t Cowen, 287. 
 
 note, 284, 285. Bull v. Church, 7 Hill, 287; S. 0., 2 
 
 " Smith V. Kniskern, 4 J. Ch. E. 9. I Denio, 430. 
 
652. Trusts. [Cli. 7 
 
 by the wife, after her husband's death, constitute an equitable bar of 
 her dower.' But this distinction is abrogated by the Revised Statutes^ 
 which enact that if lands be devised to a woman, or a pecuniary or other 
 provision be made for her by will, in lieu of dower, she ' shall make her 
 election, whether she will take the lands so devised, or the provision so 
 made, or whether she will be endowed of the lands of her husband. '^ And 
 the statute, furthermore, deems her to have elected the testamentary 
 provision, unless within a year after the death of her husband, she shall 
 enter on the lands to be assigned to her for her dower,, or commence pro- 
 ceedings for the recovery or assignment thereof.' And Savage, Ch. J., 
 in one case said, that though the provision by will was called an equitable 
 bar to dower, he apprehended it was also a legal bar.* It clearly is so 
 since the statute, whatever was the rule before, 
 
 A bequest in lieu of dower, and the acceptance of the same, amounts 
 to a matter of contract, and the wife is to be paid the bequest in prefer- 
 ence to other legacies, and without abatement.^ To protect such legacy; . 
 when accepted, if there be a deficiency of assets to pay debts, the real 
 estate may be resorted to in exoneration of what is specifically bequeath- 
 ed to the widow.* 
 
 ■ If an annuity and a devise and bequest be given to the widow in lieu of 
 dower, and the annuity fail, because the fund out of which it was made 
 payable was illegally created, she still has the right, if she sees fit, to 
 accept of a. part of what was intended by the testator as an equivalent for 
 her dower, and to relinquish her dower for that consideration alone. 
 Even in such a case, if she has precluded herself from claiming dower, 
 by receiving the annuity given her by the will, in lieu of dower, and by 
 neglecting to commence proceedings for the recovery thereof within a 
 year from the death of her husband, she is not bound, in eqnity, by that 
 election, except as against bona fide purchasers or mortgagees, but. may 
 nevertheless assert her claim to dower.' 
 
 ' Larab«e v. Van Alstyne, 1 J. E. 308. ' Isenhart v. Brown, 1 Edw. 411, Bur-. 
 
 Jones V. Powell, 6 J. Ch. R. 194. ridge v. Bradyl, 1 P. Wms. 127. Heath 
 
 " 1 E. S. 741, § 13. V. Dendy, 1 Euss. 548. 
 
 ' Id. § 14. ' Isenhart v. Brown, snpra. 
 
 • Kennedy v. Mills, 13 Wend. 553. ' Hone v. Van Schaick, 7 Paige, 233. 
 
Cfh. 7.] Donatio Mortis Causa. 553 
 
 SECTION xn. 
 
 OP DONATIO MOKTIS CAUSA. 
 
 In bringing this branch of the subject to a close, it will be proper to 
 notice the subject of donatio mortis causa. This species of gift is not, in 
 strictness, a legacy, but is in the nature of a legacy ; and although it is 
 cognizable in many instances in courts of law, it is mainly in courts of 
 equity that questions with respect to it are raised and discussed, and it 
 belongs, therefore, appropriately to equity jurisprudence. 
 
 A donatio mortis causa is a gift made by a person during his last ill- 
 ness, or in peril of death, which is perfected by an actual delivery, but 
 which is revocable during the donor's life, and is only intended to be 
 absolute in case of the donee's surviving.' This definition contemplates 
 an actual delivery of the subject of the gift, which was not in terms 
 required by the Roman law. The donatio mortis causa is thus defined 
 in the civil law. : " Mortis causa, donatio est, quas, propter mjortis fit 
 suspicionem ; cum quis ita donat, ut, si quid humanitus ei contigisset, 
 haberet is, qui accipit : sin autem supervixisset is, qui donavit, reci- 
 peret : vel si sum donationis poenituisset, aut prior decesserit is, cui 
 donatum sU."" In the civil law this gift was considered more in the 
 natur-e of a legacy than with us. 
 
 There are three principal circumstances essential to constitute this 
 species of gift by our law, viz. 1. The gift must be made with a view to 
 the donor's death ; 2. It must be conditioned to take effect on the death 
 of the donor, by his existing disorder ; and 3. It must be accompanied 
 with an actual, or at least a symbolical delivery of the subject of the gift.' 
 A few remarks will be made upon these several requisites. 
 
 (1.) The gift must be made with a vi'ew to the donor's death. Gifts 
 of this kind, said Sir Joseph Jekyl, master of the rolls, on one occasion, 
 
 ' Tate V. Hilbert, 2 Ves. jr. 111. Craig that if the aonor dies, the donee shall pos- 
 V. Craig, 3 Barb. Ch. E. 117. Bac. Abr. sessit absolutely; or return it, if the do- 
 tit. Leg. A. Harris v. Clark, 2 Barb. S. nor should survive ; or should repent of 
 0. R. 96; S. 0. on appeal, 3 Comst. 114. having made the gift; or if the donee 
 
 ' Institute, lib. 2, tit. 7, and may be should die before the donor." 
 
 thus rendered : "A donation mortis eama ° Harris v. Clark, 2 Barb. S. 0. R. 96. 
 
 is made under apprehension of death ; as 3 Comst. 114. Parish v. Stone, 14 Pick, 
 
 where any thing is given upon condition, 2Q3, 204. 
 
 ^Q. JuK. 70 
 
§54 Trusts. [Ch. 7. 
 
 are not good, unless made by the party in his last sickness.' If the gift 
 be made in the donor's last sickness, and especially if so made not long 
 before his death, it will be implied that it was made with reference to his 
 death. But if a gift be made under no present peril of death, but under 
 the consideration of man's mortality in general, or if it be given with an 
 intention that it should take effect immediately, and be irrevocable, it may 
 be a good gift inter vivos, but is not a donatio mortis caiisa.^ 
 
 (2.) It must be conditioned to take effect only on the death of the do- 
 nor, by his then existing illness. This condition, it seems, need not be 
 declared, but will be presumed, if the.contrary be not expressed, provided 
 the donor die of the then present indisposition.^ Thus, in Gardner v. 
 Parker, (supra.) the testator being dangerously ill and confined to his bed, 
 two days before his death, in the presence of a servant, gave the plaintiff 
 a bond for £1800, saying at the time, " There, take that and keep it," 
 the question arose between the plaintiff claiming the bond as a donatio 
 mortis causa, and the defendants, who were the executors of the donor, 
 and the objection was that the gift was not, at the time, declared to be 
 in contemplation of immediate death. Sir John Leach, vice chancellor, 
 said, " the doubt here is, that the donor has not expressed that the bond 
 was to be returned to him if he recovered. This bond was given in the 
 extremity of sickness, and in contemplation of death ; and it is to be infer- 
 red, that it was the intention of the donor that it should be held as a gift 
 only in case of his death. If a gift is made in expectation of death, there 
 is an implied condition that it is to be held only in the event of the death." 
 
 (3.) There must be a delivery of the subject of the gift. Delivery is 
 essential to a gift in all cases, whether made to take effect immediately, 
 or intended merely as a donatio mortis causa.* 
 
 Thece are cases where an actual delivery is impracticable, and where 
 a symbolical delivery is the usual mode of transferring the title. Thus, 
 the delivery of the key of a warehouse, or other place, in which bulky 
 goods are deposited, has been determined to be a valid delivery of the 
 goods, for the purpose of a donatio mortis causa.^ 
 
 ' Miller v. Miller, 3 P. Wms. 357. Tate Ves. jr. 120. Harris v. Clark, 3 Comst. 
 
 V. Hilbert, 2 Ves. jr. 120. Lawson v. 114 
 
 Lawson, 1 P. yfms. 441. Gardijer %. * Harris v. Clark, 3 Comst. 113. NoWe 
 
 Parker, 3 Mad. Ch. E. 194. Ha;rris v. v. Smith, 2 J. E. 66. Irons v. Smallpiece, 
 
 Cl^rk, 2 Barb. S. C. E. 96. 2 Barn. & Aid. 553. Drury v. Smith, 1 
 
 " See the same cases. P. Wms. 404. Craig v. CraigJ 3 Barb. 
 
 » Gardner v. Parker, 3 Mad. Oh. E. 184. Oh. E. 76. 
 
 Irons v. Smallpiece, 2 Barn. & Aid. 553, ° Smith v. Smith, 2 Str. 955, Ward v. 
 
 per Abbott, Oh. J, Tate v. Hilbprt, 2 Turner, 2 Ves. sen. 443. Wilkes v. Fer- 
 ris, 5 J. R. 835. 
 
CL 7.] Donatio Mortis Causa. 555 
 
 A debt due may be discharged by a donatio mortis causa, by destroy- 
 ing the bond or other evidence of. debt.' The destruction of the evidence 
 of debt, with an intention of discharging the debt, is equivalent to an 
 actual delivery. 
 
 With regard to the kind of property which may be the subject of a 
 donatio mortis causa, it should seem that any chattel which passes by 
 delivery, may be the subject of such gift. Hence, a bond, or a bond and 
 mortgage, and all negotiable instruments which pass merely by delivery, 
 fall within the rule.'' And a delivery to a third party, for the benefit of 
 the donee, is sufficient.' 
 
 But where no title passes by mere delivery, there can be no valid gift. 
 Hence the executory promise of a person, without a consideration to sup- 
 port it, cannot be made the subject of a donatio mortis causa. Thus, a 
 promissory note by the donor, payable to the intended donee, or a drafi; 
 in his favor, are not available as such gift within the rule.' Neither a' 
 promissory note, or any other executory contract for the payment of 
 money or delivery of a chattel, can be enforced between the original 
 parties, unless made upon a valuable consideration.* The payee in such 
 an instrument stands in no better plight, after the death of the maker, 
 than during his life ; and if he could not enforce it against the original 
 party while living, much less can he enforce it against his executors or 
 administrators after his death. 
 
 From what has already been said, it is obvious that a donatio mortis 
 causa in some respects resembles a legacy, and in other respects resem- 
 bles a gift inter vivos; and that it is distinguishable from both in several 
 respects. It differs from a legacy in not requiring the assent of the 
 executor, or the proof of it in the surrogate's court. As the gift takes 
 effect from the delivery, the title to it is derived directly from the donor, 
 
 • Gardner v. Gardner, 22 Wend. 526. lick, 10 Conn. 485. 6 K H. 386. 2 Gill 
 
 » Ooutant V. Schuyler, 1 Paige, 316. & John. 217. Holly v. Adams, 16 Vt. 
 
 Buffield V. Elwes, 1 Bligh, N. S. 497. 206, overruling Wright v. Wrigh't, 1 
 
 Grover v. Grover, 24 Pick. 261. Snell- Cowen, 598. N. B. Wright v. Wright 
 
 grove V. Bailey, 3 Atk. 214. Gardner v. was probably erroneously reported. It 
 
 Parker, 8 Mad. Ch. R. 184. Harris v. was never followed in this state, and was 
 
 Clark, 2 Barb. S. C. E. 98 ; S. C, 3 Comst. OTerruled at the fir^ opportunity. 
 dS. " Pearson v. Pearson, 7 J. R. 26. Fink 
 
 ' Contant v. Schuyler, 1 Paige, 316. v. Cox, 18 J. R. 145. HoUiday v. Atkin- 
 
 « Harris v. Clark, 2 Barb. S. C. R. 94- son, 5 Barn. & Cress. 501. Harris v. 
 
 S. 0. aflSrmed on appeal, 3 Oomst. 93. Clark, 3 Comst. 118, Parish v. Stone, 14 
 
 Oraig V. Craig, 3 Barb. Ch. E. 116. Parish Pick. 205, 206. 
 V. Stone, 14 Pick. 199. Raymond v. Sel- 
 
556 Trusts. [Oh. 7. 
 
 and not from the executor or administrator of the donor. Indeed, it is 
 usually claimed in hostility to the latter.' 
 
 A donatio mortis causa differs from a gift inter vivos, in that it is 
 revocable during the life of the donor, and may be made to the wife of 
 the donor.' It is liable also, on a deficiency of assets, to the debts of 
 the testator.' In all these respects it resembles a legacy. 
 
 It follows, too, from what has been said, that the gift is revoked, by 
 the recovery of the donor from the illness under which he was suffering 
 when the gift was made.* 
 
 SECTION SIII. 
 
 OF ABATEMENT OF LEGACIES ;' ANB THE PERSON TO WH^OM DATABLE. 
 
 In considering the general subject of legacies, and of a donatio mortis 
 causa, it has been assumed that there has been no deficiency of assets 
 to satisfy the debts of the testator. But as every man must be just 
 before he is generous, the laws of the land as well as the principles of 
 natural justice require that the payment of the debts of the deceased 
 should have preference over such claims as rest only upob the testator's 
 bounty. If the testator's property is exhausted in the payment of debts, 
 all the legacies must fail. If there be enough property to satisfy the 
 debts and to pay the legacies in party another question arises in which 
 the aid of a court of equity is necessary, with respect to the principles 
 on which an abatement shall be made among the several legatees. 
 
 General legacies, unless there be an indication in the will of a contrary 
 intention, abate ratably in case of a deficiency of assets ; but legacies 
 for the erection of suitable head stones at the graves of the testator's 
 relatives, and legacies founded upon a prior indebtedness, or a valuable 
 
 'Miller v. Miller, SP.WiQB. 356i Duf- subject of donatio mortis ewma.- Tier 
 
 field v. Elwes, 1 Sim. & Stu. 245', per the attention of the reader is invited to- 
 
 Y. Ch. the case of Headly v. Eirby, decided 
 
 " Lawson v. Lawson, 1 P. Wins. 441, in May, 1852, by the supreme court of 
 
 " Drury v. Smith, 1 P. "Wms. 406. Pennsylvania, and reported in the Ameri- 
 
 < Hedges v. Hedges, Preo. in Oh. 269'. can Law Register, vol. 1, No. 1, and to 
 
 2 Vem. 615. an article on the same subject, by the 
 
 The limits of this treatise will not per- learned editor,, ia the same volnmej p. 1. 
 
 mit a more enlarged discussion of the 
 
Gh. T.] Abatement of Legacies. 557 
 
 consideration, do not so abate, but must be paid in full, though the assets 
 are not sufficient to pay all the general legacies.' So a legacy in lieu of 
 dower d9es not abate ratably with other general legacies.'' In general 
 speaking, there is no abatement in the case of specific legacies ; the spe- 
 cific legq,cies being preferred, in this respect, to general legacies, but both 
 must yield to the claim of creditors.' The principles of the decisions of 
 the courts of equity on this subject are in substance adopted by the 
 Revised Statutes of New-York, which require, first, the payment of the 
 debts of the testator, and next, the discharge of the specific legacies 
 bequeathed in the will, and then the payment of the general legacies, if 
 there be assets ; and if there be not sufficient assets, then an abatement 
 of the general legacies shall be made in equal proportions.* A residuary 
 legatee has no right to call upon particular general legatees to abate. 
 The whole personal estate not specifically bequeathed musf be exhausted, 
 before those legatees can be obliged to contribute any thing out of their 
 bequest.* In our law, particular general legatees are preferred before 
 the residuary legatees, (though it was otherwise in the Roman law,) the 
 residuum being by us considered as the gleanings of the testator's 
 estate.^ 
 
 There is a distinction, of some importance, running through_the cases, 
 between an original deficiency of assets, and where the assets were suf- 
 ficient, but have been wasted by the executor. In the former case, a 
 legatee who has been paid more than his proportion, under the deficiency, 
 must refund ; but in the latter case, he is not obliged to, for he has 
 received no more than what was due to him, and the other legatees must 
 look to the executor. The legatee who has been paid, shall retain the 
 advantage of his legal diligence.^ 
 
 A legacy, general in its nature, though directed to be applied to a 
 particular purpose, other than the payment of debts, or the removal of a 
 charge on the estate, is not entitled to any exemption from abatement. 
 Thus, a legacy to an executor for care and trouble, and a legacy to chari- 
 ties, have no preference over other general legacies.^ 
 
 With regard to demonstrative legacies, being bequests with reference 
 
 ' "Wood V. Vandenburgh, 6 Paige, 177. James v. James, 4 id. 115. Bowers v. 
 
 Masters v. Masters, 1 P. Wms. 423. Smith, 10 id. 193. 
 
 ° Williamson v. "Williamson, 6 Paige, ' Lupton v. Lupton, 2 J. Oh. E. 626. 
 
 298. 1 -P. Wms. 495, per Sir Joseph Jekyl. 
 
 » Oliftom V. Burt, 1 P. "Wms. 680. "Woloott y. Hail, 2 Bro. 305. 
 
 ♦ 2 Pv. S. 87-90, §§ 27, 45. ' Fretwell v. Stacy, 2 Vern. 434. Mor- 
 ' Purse V. SnapliD, 1 Atk. 418. ris v. Kent, 2 Edw. 175. Att'y Gen. v. 
 
 • Id, King V. Strong, 9 Paige, 84, Bobbins, 2 P. "Wms. 25. 
 
558 Trusts. [Ch. 7. 
 
 to a particular fund for their payment, and not simply a gift of the fund 
 itself, it has been held that they so far partake of the nature of specific 
 legacies that they will not be compelled to abate with general legacies ; 
 it being plainly the intention of the testator that they should have pri- 
 ority over other general legacies, not made with reference to a- specific 
 fund.' 
 
 The question to whom a legacy is payable, is in all cases one of the 
 utmost importance, and in some instances cannot be settled without the 
 aid of a court of equity. If the legatee be an infant, the general rule is 
 that it is not payable to his parent, unless such parent be appointed the 
 guardian of the infant by a court of equity and give ample security for 
 the discharge of his trust.'' As guardian by nature, the parent is not, 
 independently of statute regulations, entitled to receive it. In this state, 
 in case any legatee is a minor, his legacy, if under the value of fifty 
 dollars, may be paid to his father, to the use and for the benefit of such 
 minor.' If the legacy be of the value of fifty dollars or more, the same 
 may, under the direction of the surrogate, be paid to the general guardian 
 of the minor ; who shall be required to give security to the minor, to be 
 approved of by thte surrogate, for the faithful application and accounting 
 for such legacy.'' If there be no such guardian, or the surrogate do not 
 direct such payment, the legacy shall be invested in permanent securities, 
 under the direction of the Surrogate, in the name and for the benefit of 
 such minor, upon annual interest ; and the interest may be applied, 
 under the direction of the surrogate, to the support and education of 
 the minor.' 
 
 And by the act to incorporate the New- York Life Insurance and Trust 
 Company,' the corporaition thus created is authorized to receive moneys 
 hi. trust, to accumulate the same at such rate of interest as may be obtained 
 or agreed upon, or to allow such interest thereon as may be agreed on, 
 not exceeding in either case the legal rate. And in all cases where an 
 application shall be made to the court of chancery, now the supreme 
 court, or to a surrogate having jurisdiction for the appointment of a 
 guardian of any infant, the annual income of whose estate shall exceed 
 the sum of one hundred dollars, the court or surrogate has power to 
 
 ' Eoberts V. Pocook, 4 Ves. 150. En- ' 2 E. S. 9], § 46. 
 
 ders V. Enclers, 2 Barb. S. 0. E. S67. * Id. § 47.' 
 
 " Genet v. Tallmadge, 1 J. Oh. E. 3. » Id. § 48. 
 
 Morrell v. Dickey, id. 153. ' Laws of 1830, p. 76. 
 
Ch. 7.] To WHOM Patable. 659 
 
 appoint the said company as guardian of the estate of such infant, without 
 requiring from the company any bond or other collateral security.' 
 
 If a legacy be given to a married woman, without any particular direc- 
 tion as to its payment, it must be paid to the husband, even though the 
 hiisband and wife live separate and apart.'' But if the husband resorts 
 to the aid of a court of equity to obtain a legacy bequeathed to his wife, 
 he must, if he has not already made a suitable provision for her, do what 
 is equitable, by making a suitable provision out of it for the maintenance 
 of her and her children. And the rule is the same whether the husband 
 applies to the court himself, or a suit for the wife's debt, legacy, portion, 
 <fcc. is brought by his legal representatives ; and the extent of the pro- 
 vision will depend on the circumstances of the case.' This is called the 
 wife's equity, and will be more fully considered under a subsequent head 
 relative to the rights of married women. And now, by statute, any mar- 
 ried female may take by inheritance,, or by gift, grant, devise or bequest, 
 from any person other than her husband, and hold to her sole and separate 
 use, and convey and devise real and personal property, and any interest 
 or estate therein, and the rents, issues and profits thereof, in the same 
 manner, and with the like effect as if she were unmarried, and the same 
 shall not be subject to the disposal of her husband, nor be liable to his 
 debts.' 
 
 But independently of the statute, if the legacy or bequest be made to 
 the separate use of a married woman, or where it is given for her own 
 use and to be at her own disposal, she alone can give a discharge for it ; 
 and it is properly payable by the executors to her alone and not to her 
 husband.' And the court of chancery will protect her interest against 
 the creditors of the husband, although there be no trustee named in the 
 will.« 
 
 In conclusion, on this point, it is proper to add, that in this state, since 
 the Revised Statutes, an executor or administrator has no right to retain 
 the property of the deceased, in satisfaction of his own dpbt, or claim, 
 until it shall have been proved tp aftd allowed by the surrogate, and such 
 
 ' Laws of 1830, p. 77, §§ 3, 6. * L. of 1848, p. 307. L. of 1849, p. 
 
 ' Palmer V. Trevor, 1 Vern.251. Cham- 528, same act amended, 
 
 berlain v. Hewson, 1 Salk. 115 ; S. 0., 1 ' Shirley v. Shirley, 9 Paige, 363. 
 
 Ld. Eay. 73. Howard v. Moffatt, 2 J. Ch. Prichard v. Ames, 1 Turner, 222. New- 
 
 E. 206. land v. Paynter, 4 Myl. & Cr. 408. 
 
 'Howard v. Moffatt, 2 J. Ch. R. 206. " Same cases. 
 Turrel v. Turrel, id. 391. Van Epps v. 
 Van Deusen, 4 Paige, 64. 
 
560 Trusts. [CL 7. 
 
 debt or claim shall not be entitled tp any preference over others of the 
 same class.' 
 
 Although an extensive jurisdiction is conferred upon surrogates' courts, 
 over the administration of the estates of deceased persons, and although 
 an action at law can, in many cases, be maintained by a legatee against 
 the executor to recovers a legacy, still, the jurisdiction of the court of 
 chancery, now the supreme court, is in all cases concurrent, and in some 
 cases exclusive.'^ If, for example, legacies be charged upon real estate, 
 or there be other trusts to execute than the ordinary trusts appertaining 
 to the office of executor, or, from the situation of the property or the par- 
 ties, the surrogate has no jurisdiction, the remedy is solely in equity, 
 A surrogate, upon the settlement arid distribution of an estate, is compe- 
 tent to liquidate an equitable, as well as a legal demand f and where a 
 will directs the legal estate to be sold, and makes but one fund of the 
 real and personal property of the testator for the purposes of the will, 
 and the trust to receive rents and profits prior to the sale is a mere inci- 
 dent of the power to sell, the surrogate has jurisdiction to call the execu- 
 tor to account for the whole estate, including as well the rents and profits, 
 and the proceeds of the real estate, as the personal property.* But still 
 the surrogate's court is a court of inferior and limited jurisdiction, and 
 those claiming under its decree must show affirmatively that the surro- 
 gate had authority to make the decree, and that the facts upon which he 
 acted gave him jurisdiction of the subject matter and of the persons before 
 him.' Hence, in cases of importance, and especially if the facts be com- 
 plicated, or the question of jurisdiction be doubtful, the parties will in 
 general resort to equity for aid in bringing to a close the administration 
 of the estate of a deceased person. 
 
 The jurisdiction of courts of equity in this matter owes its origin, in 
 a great degree, to the undoubted jurisdiction of the court over matters of 
 trust. Equity treats the executor or administrator, as the case may be, 
 who has in his hands the property of the testator or intestate, as a trustee ; 
 and holds him bound to apply the property to the payment of the debts 
 of the deceased, and if any remains, to distribute it among his legatees, if 
 any, or among his kindred, according to the statute of distributions. 
 
 > 2 E. S. 88, § 33. L. of 1887, p. 531, ' Dakin v. Hudson, 6 Oowen, 221. 
 
 § 87. Bloom V. Burdick, 1 Hill, 130. Oorwiu 
 
 " 2 K. S. 92 et seq. Id. 450. v. Merritt, 3 Barb. S. 0. B. 341. Dakin 
 
 " Payne v. Mathews, 6 Paige, 19. v. Deming, 6 Paige, 95. People v. 
 
 * Stagg V. Jackson, 2 Barb. Ch. B. 86; Barnes, 12 Wend. 492. Same v. Oorlies, 
 
 affirmed, 1 Oomst. 206. 1 Sandf. S. 0. E. 228. 
 
Cfa. 7.] Administration. 561 
 
 TKere may be and doubtless are other grounds of jurisdiction ; such as 
 the necessity of taking accounts, and obtaining discovery ; the imperfec- 
 tion or inadequacy of the remedy at law, or in the surrogate's court ; and 
 the necessity, in some cases, of obtaining an injunction against a misap- 
 plication of the funds pending the litigation. But whatever be the origin 
 of the jurisdiction, it has been exerted for more than a century, and is 
 amongst the most important and least contested of its powers.' 
 
 The application for relief in the administration of estates is sometimes 
 made by the executors or administrators themselves, when the affairs 
 of the estate are so involved that they cannot safely be administered 
 without the aid of the court. It is sometimes made in behalf of specific 
 legatees to marshal assets in their favor against the heir.° It is perhaps 
 more frequently made in behalf of creditors, seeking a discovery of 
 assets, and a proper application of them to the debts of the deceased.' 
 And it is sometimes done by the court itself, where there are divers suits 
 for legacies, and there is an allegation of a deficiency of the fund, in order 
 that an account may be taken in one cause, and the defendant be protected 
 from unnecessary trouble and expense. In such case, all the parties 
 interested in the fund are allowed to come in. under the decree.* It is 
 matter of discretion with the court, in such cases, in which action the 
 account will be taken. 
 
 SECTION XIV. 
 
 OP ADMINISTEATION AND MARSHALING ASSETS. 
 
 The doctrine of marshaling assets in behalf of Tegatees, creditors 
 or distributees, is analogous to that of marshaling securities in fa- 
 vor of creditors and sureties, which has already been considered. It 
 rests upon the general principle of equity, that if a claimant has two 
 funds to which he may resort, a person having an interest in one only, 
 
 ' Bae. Abr. Leg. M. 1 Mad. Oh. Pr. ' Livingston v. Liviagston, 3 J. Oh. K. 
 466. Adair v. Shaw, 1 Soh. & Lefr. 262. 148. 
 
 Farrington v. Knightly, 1 P. Wms. 649, " Thompson v. Brown, 4 J. Oh. R. 631. 
 and note 550. Dnke of Rutland v. Rat- ' Ross v. Crary, 1 Paige, 416. Kettla 
 land,v2 id. 210. Hovey v. Blakeman, 4 v. Orary, id. note, 
 Ves. 607. Ripley v. Waterworth, 7 id. 
 452. 7 id, 197, 
 
 Eq. Job. 71 
 
562 Trusts. [Ch. 7- 
 
 lias a right to compel the former to resort to the other, if that becomes 
 necessary to satisfy both.' 
 
 Assets are either real or personal, and legal or equitable. Legal assets 
 are such as constitute the fund for the payment of debts according to 
 their legal priority. Equitable assets are such as can be reached only 
 by the aid of a court of equity, and are divisible pari passu among all- 
 the creditors.' Every thing may be considered as equitable assets, 
 ■which the debtor has made subject to his debts generally, and which, 
 without his act, would not have been subject to his debts generally.* 
 The general doctrine is to encourage, as much as possible, the idea of 
 equitable assets, because equality in the payment of debts is equity, and 
 the rule of distribution in chancery is founded on principles of natural 
 justice.* 
 
 Again: Assets may be partly legal and partly equitable, and the 
 court will discriminate in the, distribution of them, following the rule of 
 law as to the legal assets, so as to prevent confusion in the administration 
 of the estate, but directing the equitable assets to be applied ratably 
 among all the creditors without preference.^ Under this rule legal assets 
 will be distributed among the creditors according to their legal priorities, 
 but those who take of the legal assets will receive no part of the equita- 
 ble assets, until they shall have been so applied as to produce equal- 
 ity among all.' 
 
 In one case,' it was said, that previous to the decision of the chancellor 
 in Thompson v. Brown, (supra,) it was well settled, that in a court of equity 
 legal assets must be distributed according to the common law, in a due 
 course of administration, and that the court only refused to give a prefer- 
 ence to one debt over another of the same class ; that is, that all the 
 judgments against the deceased which were not, at law, a lien upon the 
 fund to be distributed, must be paid in the first place, but ratably only, 
 and without regard to the time in which they were entered ; and debts- 
 of the several other classes in the same manner; that it was only 
 judgments or decrees obtained against the personal representatives which 
 gave the creditors, obtaining such judgments, a privilege over other cred- 
 itors whose debts were origiiially of the same class. The expression m 
 
 • Aldrioh v. Cooper, 8 Ves. 368; and * Moses v. Murgatroyd, 1 J. Oh. K. 
 
 notes to the same in White's Eq. Oas. vol. 130. 
 
 2, 184 et seq. ° Id. 119. 
 
 "Purdy v. Doyle, 1 Paige, 558. Wilder " Purdy v. Doyle, 1 Paige, 558. WiW«r 
 
 V. Keeler, 3 id. 167. v. Keeler, 3 id. 167. 
 
 ' 1 Mad. Oh. Pr. 473. Fonb, Eq. pt. 2, ' Wilder v. Keeler, supra. 
 ch. 2, § 1 and note. 
 
Ch. 7.] Administration. 563 
 
 the usual decree for the payment of debts in a due eburse of administra- 
 tion, and without -preference to any, meant without that preference which 
 the personal representative or heir at law had a right to give to debts of 
 a particular class over other debts of the same class, previous to the com- 
 mencement of a suit against him. The Revised Statutes adopted the 
 principle, that in the payment of judgments or decrees enrolled against 
 the deceased, they should be paid according to the priority, as indicated 
 by the date of the docket thereof. The common law order for the pay- 
 ment of debts was altered and a rule adopted analogous to that prevailing 
 in equity previous to that time, except in the preference given to judg- 
 ments and decrees against the deceased. The whole rule divides the 
 debts of the deceased into four classes, and directs the executor or admin- 
 istrator to pay the same according to the following order of classes : 
 
 1. Debts entitled to a preference, under the laws of the United States. 
 
 2. Taxes assessed upon the estate of the deceased, previous to his death. 
 
 3. Judgments docketed, and decrees enrolled, against the deceased, accord- 
 ing to the priority thereof, respectively. 4. All recognizances, bonds, 
 sealed instruments, notes, bills and unliquidated demands and accounts.' 
 And it is expressly enacted,* that no preference shall be given in the pay- 
 ment of any debt over other debts of the same class, except those speci- 
 fied in the third class ; nor shall a debt due and payable be entitled to 
 preference over debts not due ; nor shall the commencement of a suit for 
 the recovery of any debt, or the obtaining a judgment thereon against the 
 executor or administrator, entitle such debt to any preference over others 
 of the same class. Debts not due, may be paid by an executor or admin- 
 istrator, according to the class to which they belong, after deducting a re- 
 bate of legal interest upon the sum paid, for the time unexpired. These, 
 and other statutory regulations on the same subject, removed the temp- 
 tation which formerly existed, to prosecute the executors or administra- 
 tors as soon as possible after the granting to them of letters testamentary 
 or of administration. And the equitable principle thus adopted, which 
 placed creditors by simple contract upon the footing of those by spe- 
 cialty, have rendered applications to equity for the purpose of marshaling 
 assets, less frequent and less necessary. 
 
 In the ordinary administration of real and personal property, for the 
 payment of debts, which have no lien upon any portion of the estate, the 
 assets are applied in the following order : 1. The personal estate, not 
 specifically bequeathed or plainly exempted from the payment of debts 
 by some provision in the will of the testator. 2. Lands expressly devised 
 
 • 2 K. S. 87, § 27. • M § 28. 
 
564 Trusts. [CL 7. 
 
 for the payment of debts, not merely charged, but devised or ordered to 
 be sold. 3. Descended estates- 4. Lands charged with the payment of 
 debts.' 
 
 In cases where the next of kin, legatees, heirs and devisees are liable 
 for the debts of their ancestor, the same order of preference is preserved 
 as is prescribed for the government of executors and administrators." 
 Descended estates, therefore, are equally liable to the payment of the 
 simple, contracts of the ancestor, as his specialties. 
 
 The personal estate is the primary fund for the payment of debts, and 
 is to be first resorted to, though the debts be charged also on the real 
 estate.^ This is the natural fund, both for the payment of debts and leg- 
 acies, and the testator is presumed to act upon this doctrine, until he 
 shows some other distinct and unequivocal intention.' Where the per- 
 sonal estate is not in terms exonerated, and is not specifically given away 
 by the will, it will be deemed the primary fund for the payment of lega- 
 cies, notwithstanding such legacies, by the terms of the will, are expressly 
 charged upon the persona to whom the real estate is devised. The charge 
 upon the devisees in such a case will be deemed in aid, and not in exone- 
 ration of the primary fund.= 
 
 The residuary personal estate Is more particularly the primary fund 
 for the payment of the testator's debts, where no other provision is made.' 
 
 But the testator may charge his real estate with the payment of hie 
 debts, in exoneration of his personal property. In sueh case, should the 
 debt be collected by the creditor out of the personal estate of the de- 
 ceased, or out of the real estate descended to his heirs at law, the legatees 
 of th^ personalty, or the heirs at law of the real estate, whose property 
 has been thus applied, will be entitled to be subrogated to the rights of 
 the creditors as against the primary fund. To avoid circuity of action, 
 therefore, a court of equity permits, and sometimes requires, a creditor, 
 who has two funds to resort to for the payment of his debt, to proceed at 
 once against the primary fund ; without subjecting the owners of the 
 secondary fund to useless litigation.^ Where the testator, therefore, has 
 charged his real estate, or any part of it, with the payment of his debts, 
 in exoneration of his personalty, the creditors may come at once into a 
 
 ' Livingston v. Newkirk, 3 J. Ch. R. « Hoes v. Van Hoesen, 1 Barb. Oh. R. 
 
 812, 325. Donne v. Lewis, 2 Bro. 0. 0. 379 ; affirmed on appeal, 1 Oomst. 121. 
 257,263. lid. 628. Manning v. Spoon- 'Id. 
 er, 3 Ves. jr. 114. • Smith: v. "WyckoflP, 11 Paige, i». 
 
 ' 2 K. B. 453, § 37. Eawley v, James, 5 Paige, 318. 
 
 » McKay v. Green, 3 J. Oh. K. 66. ' Smith v, Wyokoflf, 11 Paige, 67. 
 
CL 7.] Administration. 565 
 
 court of equity to obtain satisfaction of such debts out of the primary 
 fund ; although they may have a perfect remedy at law against the per- 
 sonal estate in the hands of the executors.' 
 
 But the usual clause in a will, devising all the rest of the testator's 
 real and personal estate not before devised, for the payment of debts, is 
 not sufficient to show an intention to charge the real estate ; nor is a 
 direction that all debts and legacies are to be paid. But if the real estate 
 be devised, " after payment of debts and legacies,'' it is charged with 
 them.' So also where the testator devises the real estate, after a direc- 
 tion that debts arid legacies be first paid, the real estate has been held 
 to be well charged.^ 
 
 In marshaling the assets, the estate descended to the heirs is to be 
 applied to the payment of debtSj before the estate devised, unless the 
 latter be devised specially to pay debts.* The heir is not entitled to 
 contribution from the devisees, toward the satisfaction of the creditors of 
 the testator ; nor does equity help a pecuniary legatee to throw a debt 
 against the ' personal estate upon a devisee of land.' Equity will even 
 marshal the real assets descended to the heir, in favor of, or for the relief 
 of specific legatees, but it will not, for such a purpose, interfere with the 
 lands devised, unless they were devised subject to the payment of debts.' 
 
 Where there are different devisees, in respect to a charge, to which 
 their lands are equally bound by the will, they' must contribute, on a 
 deficiency of assets, in proportion to the value of their respective inter- 
 ests ; as to pay an annuity to the widow of the testator, or debts remain- 
 ing unsatisfied after the personal, and all the real estate not devised, has 
 been exhausted.'' i 
 
 As between heirs and devisees, the land which is undisposed of by the 
 will, is primarily liable for the payment of the testator's debts, when the 
 personal estate is insufficient for that purpose.^ 
 
 Equity will apply personal property of the testator, which is subse- 
 quently acquired, in favor of a devisee of the realty, where lands have 
 
 been taken by operation of law, to pay the debts of the deceased, in case 
 
 • 
 
 ' Smith V. "Wyckoff, 11 Paige, 57. ' Livingston v. Livingston, 3 J. Ch. R. 
 
 " Lnplon v. Lnpton, 2 J. Ch. R. 614. 148. 
 
 Tompkins v. Tompkins, Free, in Ch. 397. ' Id. Hanby v. Roberts, Ambl. 128. 
 
 Shallcross v. Finden, 3 Ves. 738. Clifton v. Burt, 1 F. Wras. 678. Hasle- 
 
 » Holt V. Vernon, Free, in Oh. 430, wood v. Fope, 3 F. Wms. 322, Bth Res'n. 
 
 ■Williams v. Chitty, 3 Ves. 645. ' Livingston v. Livingston, 3 J. Ch. R. 
 
 * Livingston v. Livingston, 3 J. Ch. R. 148. 
 
 148. ° Graham v. Dickinson, 3 Barb. Oh. K. 
 
 169. 
 
566 Trusts. [CL 7. 
 
 where such lands were not charged with the payment of debts, and where, 
 consequently, the personal estate was the primary fund for that purpose. 
 ThuSj where a testator charged his personal estate with the payment of 
 his debts, but it being insufficient for that purpose, his executors applied 
 to the surrogate for, and obtained an order for the sale of his real estate 
 in the possession of the devisees, which was sold accordingly, and the 
 proceeds applied to the payment of the debts of the testator ; and subse- 
 quently the commissioners, under the treaty with France, awarded to the 
 executors a sum of money, upon a claim which their testator had against 
 the French government at the time of his death ; which sum they received 
 for the benefit of the estate ; it was held that the sum of money thus 
 received upon the French claim was, in equity, to be considered as a 
 substitute for the real estate sold for the payment of debts primarily 
 chargeable upon the testator's personal property, and that it belonged to 
 those who were the devisees, or the owners of the land thus sold, at the 
 time of the sale.' 
 
 In cases where the real property has thus been taken for the payment 
 of the debts of the deceased, and personal property which ought to have 
 been primarily appropriated-to that purpose is discovered, the question 
 has arisen whether the personal property, to which the owner of the 
 realty has by such sale become entitled, shall be distributed to his repre- 
 sentatives, in case of his death before the application, as real or personal 
 estate. This question may assume an importance when the heirs at law 
 or devisees are a different class of persons from the persons entitled to 
 succeed to the personal estate under the statute of distribution. Though 
 the fund thus received is a substitute for the real estate thus taken .for 
 the payment of debts, still it is not real property, but a remuneration for 
 the loss of real property. As the real and personal representatives are 
 alike volunteers, there is nothing to take the case out of the general rule, 
 that they must take their estate of the intestate as they find it, and it 
 was so held by the chancellor in Graham v. Dickinson, (supra.) 
 
 So also, if a judgment debtor should die, leaving personal property 
 sufficient to pay his debts, aind the sheriff, having advertised the real 
 estate of the deceased for sale previous to his death, should afterwards 
 proceed and sell the same, after it had become the real estate of the heir 
 at law, the latter would be entitled to be subrogated to the rights of the 
 judgment creditors as against the personal estate which was primarily 
 liable for the payment of such debts.* 
 
 ' Graham v. Dickinson, 8 Barb. Oh. K. Dickinson, 3 Barb. Oh. B. 188. Smith v. 
 169- Kearney, 2 id. 651. 
 
 " Per Walworth, Oh., in Graham v. 
 
Cb. 7.] Administration. 56T 
 
 In equity, land contracted for, descends to the heir at law as real estate, 
 and if the purchase money is unpaid, the heirs, as between them and the 
 personal representatives, can require the latter to discharge the debt 
 from the personal estate.' 
 
 The same rule originally prevailed where the owners of real estate 
 gave a bond and mortgage for his own debt, in which case on his death, 
 as between the heirs and the personal representatives, the personal 
 property was the primary fund, and the heirs could require the executors 
 or administrators to pay off the mortgage out of the personal estate.* 
 The bond was treated as the principal, and the mortgage as the security ; 
 and as the personal property has been shown to be the primary fund for 
 the payment of debts, it necessarily followed that the heir, in the 
 absence of any special directions in the will to the contrary, could require 
 the representatives of the personalty to remove the incumbrance. But 
 this rule has been abrogated by the Revised Statutes, which have estab- 
 lished the following rule : Whenever any real estate, subject to a mort- 
 gage executed by an ancestor or testator, shall descend to an heir, or 
 pass to a devisee,, such heir or devisee shall satisfy and discharge such ' 
 mortgage out of his own property, without resorting to the executor or 
 administrator of his ancestor, unless there be an express direction in the 
 will of such testator, that such mortgage be otherwise paid.^ The effect 
 of this provision is to make the land, in such a case, the primary fund for 
 the payment of the mortgage debt, instead of the personal estate, when 
 the will is silent on the subject.'' And this provision includes a mort- 
 gage debt assumed by the testator on purchasing a part of previously 
 mortgaged premises, as^ constituting an equitable mortgage of the part 
 purchased ;^ and it extends to intestates' estates, as well as to estates 
 wholly or in part disposed of by will.° 
 
 The mortgage creditor is entitled to full satisfaction of his debt, out of 
 the estate of the deceased, if there be enough for that purpose. But he 
 must first resort to the estate mortgaged, which as to him is the primary 
 fund, and is entitled to come in pro rata with other creditors against the 
 personal estate, only for so much of his debt as cannot' be realized from 
 the land.' 
 
 ' Champion v. Brown, 6 J. Ch. R. 402. ' 1 R. S. 749, § 4. 
 
 Johnson v. Oorbett, 11 Paige, 272. Liv- * Johnson v. Oorbett, 11 Paige, 265. 
 
 ingston v. Newkirk, 3 J. Ch. R. 312. ' " Halsey v. Reed, 9 Paige, 449. 
 
 » Mollan V. Griffith, 3 Paige, 404. King ' House v. House, 10 Paige, 158. 
 
 V. King, 3 P. Wras. 358. Cumberland v. ' Halsey v. Reed, 9 Paige, 446. John- 
 
 Oodrington, 3 J. Ch. E. 257. Lanoy v. son v. Corbett, 11 id. 265. 
 Athol, 2 Atk. 444. 
 
668 Trusts. [CL 7. 
 
 Upon the principle that the estate mortgaged is the primary fund for 
 satisfying the mortgage, if the mortgagee delay to foreclose, for the ac- 
 commodation of the heirs, and the land fall in value, the deficiency occa- 
 sioned by such delay is not chargeable against the administrators, -who 
 have applied the whole personal property to the payment of other debts, 
 but must be borne by the creditor, unless he can be reimbursed out of 
 other lands belonging to the heir.' 
 
 The intention of the testator, if consistent with the rules of law, will 
 always be carried out, as far as practicable, in the disposition of his 
 estates. He may make by his will, real estate, or a particular portion of 
 it, the primary fund, both for the payment of debts and legacies ; and 
 the land may become the primary fund for the payment of specific or gen- 
 eral liens, by the contract of the purchaser.'' Should the vendee of a 
 piece of land stipulate to pay as a part of the purchase money, a judgment, 
 which was also a lien upon other lands, there can be no doubt that the 
 land so purchased becomes the primary fund for the payment of the same 
 as between the judgment creditor and the owners of other real estate, and 
 as between him and the personal representatives of the judgment debtor. 
 So, where there is a specific lien on the land devised, as in the case of a 
 mortgage, or where the land is devised on condition of the payment of 
 debts, or the debts are directed to be paid out of the estate devised, and 
 where it appears from the will, that it was obviously the intention of the 
 testator that the legacy should be received entire, and the debts paid out 
 of other funds, the court will marshal the property in such a manner as 
 to carry that intention into effect.' 
 
 If the testator specifically bequeaths his chattels to one person, and 
 devises his real estate to another, without any directions as to which 
 property shall be appropriated to satisfy an existing judgment against 
 him, the personal property must be first applied to that object.* 
 
 Where the testator subjects his real estate to the payment of all his 
 debts, and a creditor is satisfied out of the personal estate, so as to leave 
 no fund for the payment of legacies, equity will marshal the assets in 
 favor of the legatees, and permit them to stand in place of the creditors 
 with respect to the real estate.' • 
 
 In like manner, where one or more legacies are charged on the real' 
 
 • Johnson v. Oorbett, 11 Paige, 272. • ' Rogers v. Rogers, 1 Paige, 188 ; af- 
 
 ' Cumberland v. Oodriogton, 3 J. Ch. firmed, 8 "Wend. 503. 
 
 K. 229. > • Haslewood v. Pope, 8 P. "Wms. 823. 
 ' Rogers v. Rogers, 1 Paige, 190. 
 
Ch. 7.] . Charities. 569 
 
 estate, another legatee, whose legacy is not so charged, shall stand in the 
 place of the former legatees, to be satisfied out of the real estate.' 
 
 The principle on which assets are marshaled in favor of legatees 
 assumes that all the legacies are valid, and might, if so directed by the tes- 
 tator, be paid out of either fund. Hence if one of the legacies be void as 
 to the reai estate, as in the case of a charitable bequest, equity will not 
 marshal assets in its favor, so as to give it effect out of the personal estate. 
 This would be to do indirectly what could not be done directly.* 
 
 In concluding this topic, it may be added, that courts of equity do not 
 confine themselves to the remedy against the executors or administrators, 
 who violate "their trusts, but will hold all persons accountable, who aid and 
 assist the executors and administrators, with a knowledge of theij- mis- 
 conduct, in misapplying the assets. Any person receiving from an exec- 
 utor the assets of his testator, knowing that such disposition of them is a 
 violation of his duty, is to be adjudged as conniving with the executor to 
 work a devastavit; and is accountable to the person injured, by such dis- 
 position directly, on a bill filed by him.^ Whenever there is a misappli- 
 cation of the assets, and they can be traced into the hands of 'a party 
 affected with notice of such misapplication, the trust will attach upon the 
 property or its proceeds in the hands of such person, whatever may have> 
 been the extent of such conversion or misapplication.* 
 
 SECTION XV. 
 
 OF CHARITIES. 
 
 The doctrine of charities, and of charitable uses, is comprised in the 
 law of trusts, as administered by courts of equity, and forms an important 
 branch of equity jurisprudence. In its widest extent, the word charity 
 denotes all the good affections which men ought to bear to each other ; in 
 its most restricted sense, it imports relief to the poor. In neither of 
 these senses is it employed in chancery.* 
 
 ' Att'y Gen. v. Tyndall, Ambl. 614. » Oolt v. Lasnier, 9 Oowen, 320. Keano 
 
 Foster v. Blagden, id. 704. Mogg v. v. Eoberts, 4 Mad. E. 357, 358. 
 
 Hodges, 2 Ves. sen. 53. Hilliard v, Tay- ' Gilchrist v. Stevenson, 9 Barb. S. 0. 
 
 lor, Ambl. 713. E. 9. Adair v. Shaw, 1 Sch.iSsLefr. 261, 
 
 •Bonner V.Bonner, 18 Ves. 379, Bligh 262. 
 
 V. Lord Carnley, 2 P. Wms. 620, Mas- " Morioe v. Bisk)p of Durham, 9 Ves. 
 
 ters V. Masters, 1 id. 421, 423. - 405. 
 
 Eq. Jue. 72 
 
570 Trustsv fCli. 7. 
 
 On one occasion Lord Camden said, that a gift to a general public use, 
 which extends to the rich as well as the poor, falls under the definition 
 of a charity.' And in general it may be said that, in England, since 
 the 4S Elizabeth, ch. 4 the courts of that country, when the question 
 has been whether a particular gift, devise or bequest coeld be upheld as. 
 a charity, have referred to that statute, as containing an enumeration 
 of the cases which fall within the scope of the term. A charity may be 
 created by any conveyance competent to pass the title to property^ 
 though questions of this kind most frequently arise upon wills." 
 
 The statute of 43 Eliz. ch. 4, contains internal evidence . that tha 
 jurisdiction of the court over charities was then firmly established, and 
 that the statute was not intended to introduce any new subject of juris- 
 diction. Its object was to prescribe a less dilatory and expensive method 
 of establishing charitable donations, which were understood to be valid 
 by the laws antecedently in force.' It enacts that the commissioners, 
 shall inquire of the following uses as good and charitable, viz i For relief 
 of aged, and impotent or poor people : for maintenance of sick and 
 maimed soldiers, schools of learning, free schools, scholars in universities, 
 houses of correction ; for repairs of bridges, of ports and havens, of 
 causeways, of churches, of sea banks, of highways ; for education and 
 preferment of orphans, for marriage of poor maids, for support and help 
 of young tradesmen, of handicraftsmen, of persons decayed ; for redemp- 
 tion or relief of prisoners or captives, for care and aid of poor inhabit- 
 ants, concerning payment of fifteenths, setting out of soldiers, and other 
 taxes;' other gifts, provisions and limitations which, though not within 
 the letter, have been held to be within the purview of the statute, as 
 money to maintain a preaching minister,^ or to a protestant dissenting 
 chapel.^ So for the building of a session house for a city or county, the 
 making of a new or repair of an old pulpit in a church, or the buying of 
 a pulpit cloth or pulpit cushion, or the setting up of new bells where none 
 are, or amending them when they are out of order.^ So a devise of 
 money to a minister to preach an annual sermon, and keep a tomb-stone 
 and inscription in repair, and to a corporation for keeping accounts 
 thereof, is a charitable use.^ 
 
 On one occasion, Marshall, Ch. J., intimated that charitable bequests, 
 
 ' Jones V. Williams, Ambl. 652. Abr. tit. Charitable Uses and Mort- 
 
 Williams v. "WiUiams, court of ap- main, 0. 
 peals, ISr. Y. 1858. ^ Att'y Gen. v. Newcomb, 14 Ves. 1. 
 
 " Per Jones, Oh., 9 Oowen, 476, 477. ° Att'y Gen. v. Fowler, 15 Ves. 85. 
 
 * 2 Foub. B. 2, pt. 2, ch. 1, § 2, note b. ' Dnke^s Charitable Uses, 109. 2 Fonb. 
 
 Note w to Porter's case, 1 Co. 26. Bao. B. -2, pt. 2, ch. 1, § 2, note. 
 
 «Id. 
 
Ch. 7.] CHARiTiEa 571 
 
 where no legal interest is vested, and -wliieh are too vague to be claimed 
 by those for whom the beneficial interest was intended, cannot be estab- 
 lished by a court of equity, enforcing the prerogative of the king, as par 
 reus patricB, independently of the statute of 43 Elizabeth.' But this 
 doctrine was denied by Chancellor Walworth,* and was shown by the 
 supreme court of the United States to be wrong in a subsequent case.' 
 It has been conclusively proved that the court of chancery exercised 
 jurisdiction over charities anterior to the statute of Elizabeth, and upon 
 the common law.'' 
 
 The other provisions of the statute 43 Elizabeth, ch. 4, show that they 
 were not introductory of a new jurisdiction, but were designed to regulate 
 •one already and for a long time in being- Thus, the statute, after enu- 
 merating the species of property which bad been devoted to charity, and 
 describing the charities which had been upheld, as above mentioned, and 
 adverting to the fact that the property thus devoted to charity had not 
 been employed according to the charitable intent of the giver, enacts, for 
 remedy thereof, that the lord chancellor and the chancellor of the duchy 
 of Lancaster should be authorized to issue commissions into the several 
 dioceses, directed to the bishop ^nd his chancellor and others, to inquire 
 by a jury as to such gifts as are before enumerated, and the abuses of 
 them, and to make orders, decrees and judgments for the employment of 
 the property for the purposes for which it was given ; ■ which orders are to 
 be certified into the court of chancery, there to be executed, until altered 
 by the lord chancellor upon complaint of the party aggrieved. The second 
 and third sections, except the colleges within the universities, and certain 
 municipal corporations, and corporations having visitors appointed by the 
 founders, from the operation of the act. The fourth section preserves the 
 jurisdiction of the ordinary. The fifth forbids any party interested from 
 being named as a commissioner. The sixth saves the rights of purchasers 
 for a valuable consideration, without notice or fraud, of property given to 
 a charity, from the jurisdiction of the commissioners ; but authorizes orders 
 for recompense to be made against those who are guilty of a breach of 
 trust. The seventh exempts from the jurisdiction of the commissioners, 
 grants made to the sovereign during the three preceding reigns. The 
 
 ' Baptist Association v. Hart, 4 Wheat. 437, 476, per Jones, Ch. Executors of 
 
 39. Bnrr v. Smitli, 7 Vt. 241. Vidal v. 
 
 " Potter V. Ohapin, 6 Paige, 649. Girard's Ex'rs, 2 How. 127. Story's Eq. 
 
 » Vidai V. Girard's Ex'rs, 2 How. 196. § 1136 etseq. Kniskern v. Tlie Lutheran 
 
 ' Id. Williams v. Williams, MS., court Churches, 1 Sandf. Ch. E. 562, whero 
 
 of appeals, per Denio. Porter's case, 1 most of the oases are collected. 
 Co. 26. McCarteev. The Orphan Asylum, 
 
572 Trusts. [Ch. T. 
 
 eighth and ninth sections provide for certifying the acts^ of the commis- 
 sioners into the court of chancery, and for their execution by the orders 
 of the lord chancellor. The tenth and last sections allow parties ag- 
 grieved by the orders of the commissioners to complain to the lord chan- 
 cellor, who is authorized to annul, alter or enlarge the decrees of the 
 commissioners, and to tax costs against such as shall complain without 
 cause.' 
 
 The structure of these enactments shsrws that they had reference to 
 an existing system ; and the authorities cited under the preceding head 
 justify the opinion expressed by the learned judge who delivered the 
 opinion of the court of appeals in this state, in Williams v. Williams, that 
 the law of charities was, at an indefinite but early period in English judi- 
 cial history, engrafted upon the common law ; that its general maxims 
 were derived from the civil law, as modified in the later periods of the 
 empire by the ecclesiastical element introduced with Christianity, and 
 that the statute in question introduced no new principles, but was de- 
 signed to afford a new and less dilatory mode of establishing charitable 
 donations, and to correct other abuses in relation to them." 
 
 Even in England, at the present day, proceedings to establish charities 
 are not, as Chief Justice Marshall supposed, in The Baptist Association 
 Vr Hart, (supra,) under the statute of Elizabeth. An able writer on the 
 subject, whose views were adopted by the court of appeals in Williams 
 v. Williams, (supra,) says ;: " Commissions under this statute (43 Eliz.) 
 have long fallen into disuse, partly by their abuse, and partly because 
 they were found insufficient for prosecuting the claims in many instances ', 
 and in others, because they were extremely unjust towards the persons 
 who were called upon to account for property, and sought to be charged, 
 and because they generally ended in the court of chancery. The general 
 proceeding, therefore, in the case of charities, has been for many years past, 
 by the old wede of information, in the name of the attorney general,- who 
 brings the matter in question formally upon record, stating the claims that 
 were made upon the individuals charged with a breach of trust, calling upon 
 them to make a defense, and putting their defense upon record, and then 
 haying a complete issue upon the record, upon which the judgment of the 
 courtof chancery can be founded."^ The whole object of the statute of Eliza-' 
 beth, says the learned judge in Williams- v. Williams, (supra,) seems to 
 have been to provide the form of a remedy against the abuse of charities. 
 
 ' See statute at length in Vin. Abr. tit. ° Id. and per Jones, Ch. in MoCartee v. 
 
 Charitable Uses, A., and 2 Stat, at Large, Orphani Asj?lum, 9 Oowen, 470 et seq, 
 
 V08. Williams v. Williams, opinion of ' Shelford,, aT8, 
 Denio, J. snpra. 
 
eh. 7.] Charities. 673 
 
 That form has long since been abandoned, and relief in that class of 
 cases is now sought under the ordinary forms of justice in use in the 
 court of chancery. The present English doctrine of charities does not 
 therefore depend upon the statute, so far as the course of proceeding is 
 concerned, for nothing could be more dissimilar than the two modes. It 
 cannot be said that the existence of charitable gifts originated in the 
 statute, for the preamble shows, that the object in passing it was to reach 
 gifts already in existence, to redress breaches of trust, which had been 
 committed by the trustees,, under donations theretofore made. 
 
 Neither the statute of charitable uses, (43 Eliz.) nor the act of 9 Geo. 2, 
 ch. 36, restraijiing gifts to charitable uses, under certain i circumstances, 
 was ever re-enacted in this state ; but on the contrary, the legislature for 
 greater caution, at an early period of the revolutionary war, enacted that 
 from and after the first day of May, 1788, none of the statutes of England, 
 or of Great Britain, should operate or be considered as laws of this state.' 
 It is believed, however, that neither of those laws was ever in force in 
 this state.^ 
 
 The constitution of 1777 adopted, as the law of this state, amongst 
 other things, such parts of the common law of England, and of the stat- 
 ute law of England and Great Britain, as together did form the law of 
 the colony of New- York on the 19th April, 1775, subject to such altera- 
 tions and provisions as the legislature should, from time to time, make 
 concerning the same.^ And the same feature has been preserved in the 
 constitutions of 1821 and 1846. Having thus adopted the common law of 
 England, so far as it was applicable to our circumstances, and conforma- 
 ble to our institutions, the law of charitable uses is in force here, unless, 
 first, it was established by an English statute which has been abrogated ; 
 or secondly, unless there is something in the system repugnant to our 
 form of government ; or thirdly, unless it can be shown, by the history 
 of our colonial jurisprudence, that it was not in force here prior to the 
 
 '2 Greenl. 116, L. of 1788, ch. 46, effeotareDntch Ohurcli v.Mott, 7 Paige, 
 
 §37. 77; Robertson V. Bullions, 9 Barb. 98, 99. 
 
 ° A contrary opinion is expressed by In Massachusetts, it has been held that 
 
 Dner, J. in Avers v. The Meth. Ohuroh, 3 the statute of 43 Eliz. oh. 4, is in force in 
 
 Sandf. S. 0. R. 867. But I think the fair that state. Sanderson v. White, 18 Pick, 
 
 inference from the opinion of Judge 328. And it was said by Williams, Ch. 
 
 Denio, in Williams v. Williams," is accord- J., in Burr's case, to have been in force 
 
 ing to the text ; and the law is thus laid in Vermont. 
 
 down by Jones, Ch. in MoOartee v. The See the general act for the incorpora- 
 
 Oryhan Asylum, 9 Cowen, 452, in support tion of Charitable Societies, Law of 1848, 
 
 of his decree. His opinion, in this re- p. 447. 
 
 speot, was not disputed. And to the same ' Const. 1777, § 35. 
 
574 Trusts. [Ch. 7. 
 
 revolution; or lastly, unless it has been abolished by the Revised 
 Statutes.' 
 
 The cases already cited are sufficient to show that the law of charitable 
 uses was a part of the common law of England long previous to the 19th 
 of April, 1775 ; and there was no legislation, in the time of our colonial 
 subjection to the mother country, affecting the question. We have no 
 reports of the decisions of the courts prior to the revolution ; and can 
 learn the state of the common law, at that period, only from the decisions 
 of the British courts, from the records of the colonial courts, and from 
 tradition. 
 
 We are not without evidence of undisputed authenticity, that the 
 English doctrine of charities was considered in force in the colony of 
 New- York prior to the revolution. In a manuscript volume of the 
 orders of the court of chancery, under the colonial government, which is 
 preserved in the office of the clerk of the court of appeals, there is found 
 a record of the proceedings in a case determined in that court, held before 
 the governor and council, in the year 1708, which bears directly upon the 
 question. The attorney geheral filed an information against William 
 Cullin, to compel the payment of seventy-five pounds, bequeathed by one 
 Nicholas Cullin for the benefit of the poor of New-York and Albany, 
 which was directed to be distributed by certain trustees named in the 
 will, fifty pounds among the poor people in New- York, and twenty-five 
 pounds to those in Albany. The bill of complaint alleged that the 
 defendant, under a power of attorney from the executor in England, had 
 possessed himself of the testator's estate in the colony, " out of which 
 according to equity he ought to have paid the legacies aforesaid, foras- 
 much as the said legacies were' given to pious and charitable uses." 
 " And as the preservation of charitable uses is of great public benefit, 
 arid great concern to our lady the queen, and the poor aforesaid, in con- 
 sideration whereof," the attorney general prayed that the defendant 
 might answer and be decreed to pay the amount, (fee. The defendant 
 answered, and the cause being heard upon the pleadings, a decree was 
 made that he should pay to the trustees the amount of the legacies to be 
 distributed to the poor, according to the will of the testator." 
 
 It is not probable that many cases occurred in the colony, which called 
 
 ' Const. 1821, art. 7, § 13. Const. 1846, Meriv. 162. Ayers v. The Meth. Church, 
 
 art. 1 § 17. Williams v. Williams, per 3 Sandf. S. C. R. 868. 
 
 Denio, J. Bogardus v. Trinity Church, 4 " Att'y Gen. v. Cullin, cited by Denioi 
 
 Paige, 198. Canal Com. v. The People, J. in Williams v. Williams, supra. 
 5 Wend. 445. Att'y Gen. v. Stewart, 2 
 
Ch. 7.] Charities. 575 
 
 for the application of tlie doctrine of charitable uses. The case of The 
 Att'y Gen. v. Cullin, (supra,) is exactly in point to show the existence of 
 the doctrine at a very early period. We have traditional evidence that 
 such was the law of the colony at the time of the revolution, from the 
 opinions of Chancellors Kent and Jones, on several occasions, both of 
 whom were on the stage early enough to be familiar with the opinions of 
 the learned judges and lawyers who flourished in the colony previous to 
 the 19th of April, 1775. The father of Chancellor Jones was one of the 
 most eminent lawyers of that day, and one of the commissioners by whom 
 the statutes were first revised after the close of the revolutionary war. 
 There is decisive evidence that both those learned chancellors treated 
 the law of charitable uses as a part of the common law of this state.' 
 
 There is nothing in the law relative to charitable uses which is repug- 
 nant to our form of government. The administration of justice, in this 
 or any other country, would be strangely defective, if there was no power 
 to uphold the disposition of property for charitable uses.' And it has 
 been settled by the highest court of the state, that the Revised Statutes 
 have not abrogated the common law in this respect.^ 
 
 With regard to the persons who may take property devised or be- 
 queathed for charitable uses, there is a distinction arising from the nature 
 of the property, whether it be real or personal. In this state, and proba- 
 bly in most other states, corporations are excepted out of the statute of 
 wills.* The Revised Statutes now in force, provide that every estate and 
 interest in real property, descendible to heirs, may be devised ; and such 
 devise may be made to every person capable by law of holding real estate ; 
 but no devise to a corporation shall be valid, unless such corporation be 
 expressly authorized by its charter, or by statute, to take by devise.'' It 
 was settled by the court of errors, in McCartee v. The Orphan Asylum, 
 (supra,) that the former statute of wills did not authorize a devise of 
 real estate directly to a corporation, Had the devise in that case been 
 to the executors in trust for the corporation, it seems to have been con- 
 ceded that it could have been upheld as a charitable use.' Chancellor 
 Walworth, in a later case, but one arising before the Revised Statutes, 
 held that a pecuniary legacy to a corporation, payable out of the proceeds 
 of real estate which the executors were directed to sell, was valid, 
 although the corporation was not authorized by its charter to take real 
 
 ' 2 Kent's Oom. 285, 288 and notes. ' Williams v. 'Willianis, supra. 
 
 , McOartee v. Orphan Asylum, 9 Co wen, M E, L. 364. 2 E. S. 57, § 4. 
 
 469 etseq. per Jones, Ch. in giving his ' 2 E. S. 57, §§ 2,-3. 
 
 opinion. •' 9 Cowen, 444, &c, 
 
 ' 2 Kent's Com. 285, 
 
576 Trusts. [Ch. 7. 
 
 estate by devise. And he intimated a doubt wbether such legacy could, 
 under the provisions of the Revised Statutes, be supported ; and he 
 expressed the opinion, that a devise of real property in trust for a corpo- 
 ration -was void, under those statutes, unless such corporation was express- 
 ly authorized by its charter, or by statute, to take by devise.' 
 
 The general act for the incorporation of benevolent, charitable, scientific 
 and missionary societies, passed April 12, 1848, (L. p. 447,) contains this 
 section : " § 6. Any corporation formed under this act, shall be capable 
 of taking, holding or receiving any property, real or personal, by virtue 
 of any devise or bequest contained in any last -will or testament of any 
 person whatsoever, the clear annual income of which devise or bequest 
 shall not exceed the sum of ten thousand dollars ; provided, no person 
 leaving a wife or' child, or parent, shall devise or bequeath to such insti- 
 tution or corporation, more than one fourth of his or her estate, after the 
 payment of his or her debts, and such devise or bequest shall be valid to 
 the extent of such one fourth ; and no such devise or bequest shall be valid, 
 in any will which shall not have been made and executed at least two 
 months before the death of the testator." This provision was made to 
 guard against improvident testamentary dispositions of property by per- 
 sons in extremis, in derogation of the claims of near relatives. 
 
 It has been asserted by a learned court that a pious use cannot be sus- 
 tained by a court of justice, unless in a country where the truths of re- 
 ligion have been settled and defined by law, or judges have a discretionary 
 power to determine and declare them. " Under a constitution," said the 
 learned judge, " which extends the same protection to every religion and 
 to every form and sect of religion, which establishes none and gives no 
 preference to any, there is no possible standard by which the validity of 
 a use as pious can be determined ; there are no possible means by which 
 judges can be enabled to discriminate, between such uses as tend to pro- 
 mote the best interests of society by spreading the knowledge and incul- 
 cating the practice of true religion, and those which can have no other 
 effect than to foster the growth of pernicious errors, to give a dangerous 
 permanence to the reveries of a wild fanaticism, or encourage and per- 
 petuate the observance of a eorrupt and degrading superstition."* The 
 same learned court, while admitting that Christianity is in a modifiei 
 sense a part of the common law, so far at least, that the law will not per- 
 mit the essential truths of revealed religion to be ridiculed and reviled ; 
 in other words, that blasphemy is an indictable offense at common law, 
 
 ' The Theological Seminary of Auburn ' Andrew v. K T. Bible and Prayer 
 V. Ohilds, 4 Paige, 419. Book Society, 4 Saadf. S. 0. K. 181. 
 
Ch. 7.] Charities. 577 
 
 .denied that it is a municipal law in the proper sense of the term. And 
 insisted that, if in such sense it was a part of the common law, every per- 
 son is liable to be punished by the civil power, who refuses to embrace its 
 doctrines and follow its principles.' 
 
 This reasoning, though entitled to high respect from the source from 
 which it emanated, was not deemed conclusive by the court of appeals. 
 On the contrary, the latter court held that the consideration that a reli- 
 gious establishment was forbidden by our constitution, and that all prefer- 
 ences among religious denominations were prohibited, did not require the 
 abolition of the law of charity. Although Christianity is not the religion 
 of the state, considered as a political corporation, it is nevertheless dlosely 
 interwoven into the texture of society, and is intimately connected with 
 all our social habits, customs and modes of life.'' 
 
 Nor does the upholding a charity in favor of a particular denomination 
 of christians, affirm the truth of the principles by which that sect is dis- 
 tinguished from others. A bequest to support a preacher of the gospel, 
 by a Baptist elder, does not, if sustained by the court, affirm that the no- 
 tions of christian baptism, entertained by that denomination, are exclu- 
 sively orthodox. The constitution of the United States, as amended, 
 merely forbids congress from making any law respecting an establishment 
 of religion, or prohibiting the free exercise thereof;^ and the constitution 
 of this state, in like manner, allows the free exercise and enjoyment of 
 religious profession and worship, without discrimination or preference, to 
 all mankind ; and forbids that any person should be rendered incompe- 
 tent as a witness, on account of his opinions on matters of religion ; but 
 provides that the liberty of conscience thereby secured, shall not be so 
 construed as to excuse acts of licentiousness, or justify practices inconsist- 
 ent wilih the peace or safety of this state.* The only linfit to toleration 
 is at the point where licentiousness, or practices inconsistent with the 
 peace or safety of the state, commence ; and it is the province of the 
 courts to determine, incidentally indeed, but no less decisively, when that 
 point has been reached. 
 
 The upholding of a charity in favor of a religious denomination merely 
 affirms that its doctrines are not licentious in their tendency, and that 
 the practice of them is not incpnsistent with the peace and safety of the 
 
 • Andrew v. N. Y. Bible and Prayer ' Williams v. Williams, supra. 
 Book Society, 4 Sandf. S. 0. K. 182. " Amend, to U. S. Const, art. 1. 
 Ayers v. The Meth. Episcopal Church, 3 * Const, of 1846, art. 1, § 3. 
 ■Sandf. S. 0. E. 351. Yates v. Yates, 9 
 Barb. 339. 
 ' Eq. Jtie. 73 
 
678 Trttsts. [Ch, 7 
 
 state, A court of justice is as capable of determining ttese ques&ns, 
 ■without infringing tie right of conscience, as it is to pass on any other 
 question of right secured by the constitution.' The liberty of speech 
 and of the press is maintained by the same instrument which secures the 
 liberty of conscience. The party who exercises the right is made re- 
 sponsible for its abuse. The tribunal that fails to punish a publication 
 -as libellous, does not necessarily approve of the matters complained of as 
 injurious ; because, though the libel be of a public nature and the sub- 
 ject of an indictment, the punishment of it may not be called for by any 
 principles of justice or public policy. It may be of that kind that it may 
 be safely tolerated, while reason is left free to combat it. A charity in 
 favor of a sect, whose doctrines tend to licentiousness, or lead to the vio- 
 lation of the laws of the land, cannot be upheld. Donations, for example, 
 to aid in propagating the doctrines of Mahometanism, or Mormonism, 
 could not be supported, because, amongst other things, they countenance 
 polygamy, in hostility to the settled policy and laws of the land. " A 
 trust for the circulation of the monstrous fables of the Talmud, or the 
 gross impostures of the Koran,"^ does not, it is believed, stand upon the 
 same footing as a trust for the distribution of the Book of Common 
 Prayer of the Protestant Episcopal Church.^ Though the support of the 
 last does not necessarily imply a belief in all the tenets of that church, 
 it does affirm that its doctrines neither lead to licentiousness or put at 
 hazard the peace or safety of the state. The support of the former could 
 not be justified without overruling and subverting the social relations 
 which we have derived from Christianity, and repealing our statute against 
 a plurality of wives. 
 
 A slight glance at our system of laws, will show how deeply they are 
 imbued with tile spirit of the christian religion. Even the commQn,inaxim, 
 so to use our own as not to injure another's right, is of a higher origin than 
 the Roman law. The recognition of the sabbath, the mode of adminis- 
 tering oaths, the punishment of the crimes of bigamy, of adultery, and in 
 some cases, of fornication ; the rules of descent and distribution of the 
 property of intestates ; the domestic arrangement of families, and the 
 liability of the parents and of the children of adequate ability to sup- 
 port each other; all show the pervading influence of' Christianity in 
 shaping our institutions. 
 
 ■ Terrett v. Taylor, 9 Oranch,48. ' Id. per Dner, J. This case was re- 
 
 ' Andrew v. N. Y. Bjbje and P. B. S. versed by the eonrt of appeals, in Dec. 
 4 Sandf. 8. 0. R. 18*. 1853, as will be noticed hereafter. 
 
CL 7.] Charities. 6T9 
 
 In additon to these features In our legal polityj'as was well remarked 
 by the learned judge in Williams v. Williams, the provision for creating 
 religious corporations, recognizes the duty of the government to provide 
 facilities for the voluntary establishment of public worship. A legally 
 organized system for protecting and preserving gifts and donations in aid 
 of christian charity, falls within the same principle and is equally unob- 
 jectionable. The establishment of corporations for colleges, academies: 
 and other seminaries of learning, belongs to the same principle. Though 
 these incorporations may and doubtless do, to a great extent, render the 
 doctrine in relation to public charities less important, they nevertheless 
 show that the objects sought to be attained by the doctrine, are highly 
 regarded by our people. And when it is considered that we find in the 
 common law of England, which we have to a limited extent adopted by 
 our constitution, certain principles already established respecting convey- 
 ances to charity, no reason is perceived, growing out of the absence of a 
 state religion, for holding that they are inapplicable to our condition.' 
 
 It has been seen, in our discussions under other heads, that equity 
 often interferes and sets aside agreements, the execution of which would 
 be co7itra bonos mores, as well as such as are forbidden by statute. Our 
 courts of equity, in administering this branch of the law, have never felt 
 embarrassed by the fact that we have no religion established by law. 
 They have been able to find a standard, by which to determine whether 
 a particular transaction Avas against public morals, by a reference to the 
 general sense of the community. The enlightened conscience of individ- 
 uals constitutes the conscience of the state. We live in a christian, and 
 not a pagan land, and the truths of Christianity can as well be learnt 
 from the original sources of its doctrines, and its principles as well obeyed, 
 as if both were prescribed by a public statute. On the great question 
 of public morals and christian duty, there is little diversity of opinion, 
 and none that interferes with an enlightened administration of justice. 
 
 The objection sometimes raised to the exercise of jurisdiction over 
 charities, founded on the difficulty of 1;he questions they involve, proves 
 too much. If it be well founded in this case, no reason is perceived why 
 it should not apply to all cases ; the consequence of which would be, that 
 every complicated case would be left without redress. 
 
 The foregoing observations show that the doctrine of charities, in this 
 country, is in substance the same as it is in England, in that class of 
 cases in which it can be administered by the courts, without the aid of 
 
 ' Williams v. Williams, supra. 
 
589 Tkusts, [Ct. T. 
 
 the sign manual of the king. If the gift be so indefinite that it cannot 
 be executed by the court, or 'if its purpose be illegal or impossible, the 
 claim of the personal representatives or heirs of the donor must, in gene- 
 ral, prevail over the charity. The reason is, that we have no magistrate 
 clothed with the prerogatives of the crown, and our courts of justice' are 
 intrusted only with judicial authority. The cases, therefore, which in 
 England vest the right in the king as parens patricB, cannot be executed 
 here, but by act of the legislature.' Whenever any thing is given to 
 charity and no charity appointed, or if the charity which is appointed be 
 superstitious, the power of appointment, in England, vests in the king ;"• 
 and with us such legacies would be ineffectual, and the claim of the heirs 
 or parties in distribution would prevail over the charity, unless, indeed, 
 the legislature should interfere. The general doctrine was stated by Lord 
 Eldon, on one occasion, as the result of all the authorities, which he fully 
 reviewed, that where there is a general indefinite purpose, not fixing itself 
 upon any object, the disposition is in the king by sign manual ; but where 
 the execution is to be by trustee, with general or some objects pointed 
 out, there the court will take the administration of the trust.' The latter 
 and not the former class, of cases is applicable to our condition, and alone 
 forms a part of oxir judicial system p though the legislature may proba- 
 bly interfere, as will be shown. • 
 
 It is a general principle, which has already been adverted to in this 
 chapter, that equity never suffers a trust to fail for the want of a trustee. 
 This principle is, in an especial manner, applicable to charities.' Indeed, 
 it is not charity, within the meaning of the law of charitable uses, to give 
 to a friend. The thing given, it has well been said, becomes a charity, 
 where the uncertainti/ of the recipients begins.' 
 
 Where gifts or devises are made to trustees capable of taking the legal 
 estate in trust, for pious or charitable uses, no question can arise as to 
 the validity of the trust at common law, as a pious and charitable use, 
 where the trust is definite in its objects ; as where the gift or devise is m 
 
 ' 'Williams v. Williams, supra. Ayera S. 0. 1 Ves. jr. 464. Ommanney v. 
 
 V. The Mett. Epis. Ohurch, 3 Sandf. S. 0. Butoh«r, 1 Turn. & Kuss. 260, per Sir 
 
 E. 351. Andrew v. N, Y. Bible and P. "Wm. Grant. 
 
 B. S. 4 id. 178. * Williams v. 'Williams, snpra. 
 
 " 2 Fonb. Eq. B. 2, pt. 2, ch. 1, § 3. ' MeOartee v. Orpb. Asylum, 9 Cowen, 
 
 Att'y Gen. v. Siderfln, 1 Vern. 224. Att'y 484, per Jones, Ch. Bartlett v. Nye, 4 
 
 Gen. V. Guise, 2 id. 266. De Oosta v. Mete. 380. 
 
 De Pas, Ambl. 228. v Mills v. Freeman', 1 « Fontain v. Eavenel, 3 Am. L. Beg". 
 
 Meriv. 65. Ambl. 712. 269, per McLean, J, 
 
 " Moggridge v. Thackwell, 7 Ves. 36; 
 
Ch. 7.] Charities, 581 
 
 trust for tte support of the poor of a town ; or for the benefit of an unin- 
 corporated missionary society ; or for the support of the minister of a 
 church and his successors in office ; or for the maintenance of a school ; 
 or for the erection of a hospital.' 
 
 Thus, a conveyance made to certain individuals of the site of the Dutch 
 church in Garden street, in the city of New- York, in 1691, in trust for 
 the use of the ministers, elders and deacons of such church and their 
 successors, and to have a house of public worship erected thereon, and for 
 no other use whatever, was held to be a valid conveyance at the common 
 law to a charitable and pious use ; and the court of chancery had original 
 jurisdiction to enforce the performance of the trust." No violation of the 
 trust upon which the property was conveyed, therefore, can have the effect 
 to revest either the legal or equitable title to the property in the heirs 
 of the original grantor. And the court will presume, after a great lapse 
 of time, and the subsequent incorporation of the church, a conveyance from 
 the original trustees or their heirs to the corporation.' So a pecuniary leg- 
 acy to a town, for the purpose of erecting a town house for transacting town 
 business, was held by Chancellor Kent to be valid as a charitable bequest. 
 The object was said to be for a general public use, as convenient for the poor 
 as the rich.* A dedication of real or personal property depends upon the 
 same principle ; and the court of chancery will sustain a gift or bequest 
 or dedication of personal property to public or charitable useSj if the same 
 is not inconsistent with local law or public policy, and where the object 
 of such gift or dedication is specific and capable of being carried into 
 effect according to the intention of the donor.' Thus, where the inhabitants 
 of a village, previous to the act for the organization of school districts, con- 
 tributed by voluntary donations to a fund for the erection of a school house 
 for the use of the neighborhood, and the school house was subsequently 
 destroyed by the British troops, and congress afterwards passed an act 
 to remunerate those whose property was thus destroyed ; and previous to 
 the passage of such act the village where such school house had been 
 erected was incorporated into a school district, it was held that the fund 
 afterwards received under that act belonged to such school district, and 
 not to the original contributors to the fund. And the school district 
 having been divided into two districts before the receipt of the money, . 
 from the United States ; it was held, also, that the fund belonged to both 
 
 ' Bac. Ahr. tit. Charitable tJses, E. Att'y Gen. v. Clark, Ambl. 422. Jones 
 
 " Dutch Church v. Mott, 7 Paige, 77. v. "Williams, id. 651. 
 " Id. ' Potter V. Chapin, 6 Paige, 639. 
 
 * Ooggeshall v. Pelton, 7 J. Oh. B. 292. 
 
582 Trusts. [Ch. 7. 
 
 districts in proportion to tlie taxable property in each at the time of the 
 division.' 
 
 Where the beneficial use of property cannot take effect as a legal 
 estate in the cestui que use, it will in some cases take effect as a 
 trust, in the same manner as if the statute of uses had not passed : where 
 it can take effect as a trust consistently with the rules of law. On this 
 principle, though an unincorporated body cannot take the legal estate in 
 premises as an executed use under the statute of uses, they may never- 
 theless take a beneficial interest in the property as a charitable use.' 
 
 Thus, where the owner of a lot of land, in April, 1790, in consideration 
 j)f one hundred pounds, granted, bargained and sold the same unto Yates, 
 Vrooman and six other persons named therein, and to their heirs and 
 assigns forever ; to have and to hold the same to the grantees and their 
 heirs and assigns forever, upon trust, nevertheless to the only proper use, 
 benefit and behoof of Van Dyck and twelve other persons named in the 
 indenture, members of St. George's Lodge of free masons and all others who 
 then were or thereafter might become members of such lodge, their survi- 
 vors and successors forever, and for no other use, intent or purpose what- 
 soever. All the parties of the second part named in the deed, except Yates, 
 and the whole thirteen persons specified by name therein as part of the 
 then members of the lodge, having died, and the lot having been taken by a 
 railroad company, for the use of their road, the damages were assessed, and 
 the amount paid over to Yates, as the surviving grantee of the deed. Upon 
 a bill filed by the heirs of the grantor in the deed against Yates, to recover 
 from him' the moneys thus received for the lot from the railroad company, it 
 was held that it was not the intention of the parties to the deed to vest 
 either the whole legal title, or the whole beneficial interest in the prem- 
 ises, in the thirteen persons therein specifically named as members of the 
 lodge, during the terms of their respective lives, for their benefit, and the 
 benefit of the survivor of them exclusively ; but that it was the intention 
 of the parties that it should operate as a conveyance of the legal title of 
 the whole fee of the lot, not for the benefit of the thirteen individuals 
 named, for life, with a resulting trust to the grantor, but for the aggre- 
 gate body of the members who then constituted, or who should thereafter 
 constitute, the St. George's Lodge.' 
 
 Where the gifts and devises for pious or charitable uses are not made 
 to persons capaple of taking the legal estate, when made directly to a 
 non-existing corporation ; or to an unincorporated association, or to the 
 
 ' Potter V. Chapin, 6 Paige, 6.39. 242, aflSrmed by court of appeals, ©ec 
 
 " Vander Volgea v. Yates, 3 Paige, 1853. 
 
 »Id. 
 
Ch. 7.] Charities. 583 
 
 poor inhabitants of a town ; or to the church wardens of a parish not in- 
 corporated, &c., they may be sustained at common law as pious or chari- 
 table uses, if the objects of the charity are defined or designated, and can 
 be carried into effect according to the intent of the donor. This rule ap- 
 plies also to dedications.' 
 
 The questions with respect to the validity of a charity arise in a vari- 
 ety of ways. Sometimes on a bill by the attorney general to establish 
 the charity, and sometimes by the heirs at law or parties entitled to dis- 
 tribution of the estate of the donor to set aside the will, legacy or devise, 
 in their favor ; and sometimes by parties claiming the legacy in trust for 
 the purposes of the will. In the late case before the supreme court of the 
 United States, the bill was filed by the heirs at law to s^t aside the will 
 of the testator, for the invalidity of its provisions. The testator, a. citizen 
 of Louisiana, had made a will, in which, after bequeathing certain legacies, 
 which were not in controversy in that suit, bequeathed all the rest, resi- 
 due and remainder of his property to the corporations of the cities of 
 New-Orleans and Baltimore forever, one half to each for the education of 
 the poor in those cities; it was held that those cities were corporations, 
 having a right to take the legacies for the purposes contemplated by the 
 will.= 
 
 In like manner it was held that the corporation of Philadelphia had 
 power, under its charter, to take real and personal estate by deed, and also 
 by devise ; and that where a corporation possesses this power, it may 
 also take and hold property in trust, in the same manner and to the same 
 extent that a private person may do ; if the trust be repugnant to or in- 
 consistent with the proper purpose for which the corporation was created, 
 it may not be compellable to execute it, and a court of equity will appoint 
 a new trustee to enforce and perfect the objects of the trust. Neither is 
 there, it seems, any positive objection in point of law to a corporation 
 taking property upon a trust not strictly within the scope of the direct 
 purposes of its institution, but collateral to them.^ This perhaps would 
 not be admissible in New- York,' since the Revised Statutes. The trusts 
 created by the will of the late Stephen Girard were upheld upon the gen- 
 
 • Baptist Church of Hartford v.Wether- beck v. Am. Bible Society, 2 Sandf. Ch. 
 
 ell, 3 Paige, 296. Potter v. Chapiq, 6 id. K. 183. Shotwell v. Mott, 2 id. 46. Bac. 
 
 689. City of Cincinnati v. "White, 6 Pet. Abr. tit. Char. XJses; E. 
 
 431. Beaty V. Kerts, 2 id. 566. Banks ' McDonongh's Executors v. Mardock, 
 
 V. Phelan, 4 Barb. 80. King v. Wood- 15 How. 367. 
 
 hull, 3 Edw. Ch. R. 79. Wright v. Meth., » Vidal v. Executors of Girard, 2 How. 
 
 Epis. Church, 1 Hoflf. CL. R. 202. Horn- 127. 
 
584 Trusts. [Ch. 7. 
 
 eral doctrine of charitable uses. And it was said that donations for the 
 establishment of colleges, schools, and seminaries of learning, and espe- 
 cially such as are for the education of orphans and poor scholars, are 
 charities, in the sense of the common law. The doctrine does not seem, 
 in Pennsylvania, to rest on the statute 43 Eliz. ch. 4, which has indeed 
 been recognized by the courts of that state, but not only these but the 
 more extensive range of charitable uses which chancery supported before 
 that statute, and beyond it, are recognized and confirmed.' 
 
 In the case of Williams v. Williams, which has already been frequently 
 cited under this head, the questions arose, under a bill filed by the resid- 
 uary legatees under the will of Nathaniel Potter, the testator, to set aside 
 two legacies, one in favor of the Presbyterian church and congregation 
 of the village qf Huntington, and the other in favor of trustees of a fund 
 for the gratuitous education of certain poor children. The first legacy 
 was given in these words; "I give" and bequeath the trustees of the 
 Presbyterian church and congregation in the village of Huntington, and 
 their successors, in trust for the support of a minister of the said church 
 as now constituted, the sum of six thousand dollars, to be managed in 
 manner following, to wit : the principal to be loaned, and one half of the 
 interest annually accruing to be added to the principal until the fund 
 shall amount to ten thousand dollars. The other half of said interest to 
 be applied to the support of a minister in such church ; and as soon as 
 the whole fund, by the addition of the interest as aforesaid, shall amount 
 to the sum of ten thousand dollars, the whole interest annually accruing, 
 to be annually applied to the support of the gospel minister in said 
 church as now constituted." It was provided that a pew> free of rent, in 
 the church, should be reserved for the use of that part of the testator's 
 family which might reside in Huntington. No part of the fund was to be 
 applied to building or repairing the church ; and any diversion of the 
 fund from the purposes for which it was given, was to operate as a for- 
 feiture in favor of the residuary legatees. 
 
 The other gift was in the following language : " With a desire to raise 
 the standard of intellectual and moral improvement among the poor, I 
 constitute and appoint Zophar B. Oakley, John Wood and Charles Stur- 
 ges of the village of Huntington, and their successors, to be appointed 
 in the manner hereinafter authorized, a board of trustees of a fund which 
 I hereby constitute for the exclusive education of the children of the 
 poor ; and in order to maintain the number of the said trustees in perpe- 
 tuity, I hereby authorize the surviving or remaining trustees to fill up 
 
 ' Vid^ V. Executors of Girard. 
 
Ch. 7.] Charities. 585 
 
 any vacancy as often as it shall occur by death, resignation, or removal 
 from the village, of any one of the trustees, by the choice of another, to 
 be entered upon the minutes of their proceedings. I give and bequeath to 
 the above named trustees and their successors, appointed as aforesaid, 
 th« sum of six thousand dollars, in trust, for a perpetual fund for the 
 education of the children of the poor, who shall be educated* in the 
 academy in the village of Huntington ; or in ease of the destruction of 
 the academy by fire or otherwise, then in the school house next west of 
 the academy, until it shall be rebuilt. No part of .this fund ever to be 
 appropriated to the erection or repair of buildings. 
 
 " It is my will that this fund shall be managed in manner following, to 
 wit : the principal to be loaned on bond, secured by mortgage of lands 
 of twice the value of the sum loaned, and one half of the interest annually 
 accruing to be added to the principal, until the whole fund amounts to 
 the sum of ten thousand dollars. The other half of the interest to be 
 appropriated and expended in the education of the children of the poor ; 
 and when the said fund, by the addition of the interest as aforesaid, shall 
 amount to the said sum of ten thousand dollars, then it is my will that 
 the whole interest of the said fund shall be annually appropriated and 
 expended in the education of the children of the poor, in the academy, in 
 the village of Huntington." 
 
 The instruction was to be limited to a good English education, which 
 was to be extended " to the poor of every description, without discrimi- 
 nation of denomination or complexion." The children to be educated 
 were to be such " whose parent's names were not on the tax list ; and if 
 the interest annually accruing shall be more than sufficient for this pur- 
 pose, in such case the surplus shall be expended in the education of chil- 
 dren whose parents stand lowest on the tax list, until the whole is 
 absorbed." 
 
 There were some other provisions relating to the management of the 
 fund ; and the fund was to be forfeited to the residuary legatees in case of a 
 diversion from the objects, for which it was given. There was then the 
 following clause : " If the powers of the board of trustees herein consti- 
 tuted shall prove insufficient for the execution of the duties of the trusf, 
 it is my will that they shall make application for a special act of incorpo- 
 ration, to enable them to give complete effect to my intentions as above 
 stated." There were other provisions in the will not affecting the ques- 
 tions raised on the argument. It was admitted by the pleadings that 
 the Presbyterian church in Huntington had been incorporated as a 
 religious society, by the name mentioned in the will, under the act pro^ 
 
 Eq. Jue. 74 
 
586 Trusts. ' [Oh. 7. 
 
 Tiding for religious incorporations, and that the personal estate of the 
 testator was sufficient to pay the legacies, if they should be held to be 
 valid. 
 
 The complainants insisted that the two legacies were roid, on account 
 of a perpetual suspension of the power of alienation contrary to law, and 
 of the alleged illegal trusts for accumulation ; and they prayed for a 
 decree that the rights of the residuary legatees to the moneys so 
 attempted to be bequeathed, might be settled and declared. The corpora- 
 tion of the church in Huntington, and the three trustees in Hunting- 
 ton, claimed the legacies as valid dispositions of property. The execu- 
 tors admitted the facts, and submitted themselves to the judgment of the 
 court. 
 
 The cause having been heard in December, 1844, before Buggies, 
 V. Chancellor of the second circuit, a decree was made, reciting that it 
 appeared to the court that the two several legacies were valid, and dis- 
 missing the bill without costs. An appeal was taken to the chancellor, 
 which, by virtue of the constitution of 1846, and the judiciary act of 
 1847, was transferred to the supreme court, and having been argued in 
 that court at a general term in the second district in May, 1850, the 
 decree of the vice chancellor was reversed and the legacies were declared 
 to be void. An appeal was then taken by the defendants in the original 
 action to the court of appeals, where the judgment of the supreme court 
 was reversed and the decree of the vice chancellor was affirmed.' 
 
 As both the legacies in this case were of personal property only, it. 
 was unnecessary to decide whether a devise of real estate for the same 
 purposes would have been upheld. 
 
 The first legacy being to an incorporation, having power by law to 
 hold property, for the general purposes contemplated by the testator in 
 that bequest, was held to be valid. It was thought not to be essential to 
 the validity of such a bequest, that it should be given generally for all 
 the purposes for which it might be legally used, or for any to which the 
 trustees might see fit to devote it. It was enough that the legacy fell 
 within the general objects for which religious incorporations are created, 
 and did not exceed the amount of property which this corporation was 
 authorised to hold. It was remarked that a religious corporation, under 
 the statute, was competent to take a bequest limited to the erection or 
 repairing of a church, or parsonage, the purchase of a glebe or church- 
 yard, for providing sacred music, fuel or lights, for the purchase of a 
 church library and the support of a sabbath school." Such a corporation 
 
 ' Williams v. "Williams, supra. ' Id. In matter of How, 1 Paige, 214, 
 
Ch. 7.J Charities. 687 
 
 may take property in trust for purposes which it is lawful for it to exe- 
 cute, if the property were acquired by itself. 
 
 It was held further, that this legacy did not infringe the provisions of 
 the Revised Statutes relative to perpetuities or expectant estates.' And 
 it was said that those provisions did not affect conveyances or testamen- 
 tary gifts to religious or charitable institutions. 
 
 With respect to the second legacy above mentioned, it was conceded by 
 the learned judge who delivered the judgment of the court of appeals, 
 that it could not be sustained unless by force of that peculiar system of 
 law, known in England under the name of the law of charitable uses. 
 After showing that the Revised Statutes had not abrogated that doctrine, 
 and that the provisions of those statutes as to perpetuities were inappli- 
 cable to such a case, the court decided that the law of charitable uses, as 
 it existed in England at the time of the revolution, and the jurisdiction 
 of the court of chancery over those subjects, were the law of this state on 
 the adoption of the constitution of 1777 ; that the law has not been re- 
 pealed, and the existing courts of this state having equity jurisdiction are 
 bound to administer that law. It was accordingly held that both the 
 legacies were valid in law. 
 
 In Robertson v. Bullions,*' the question arose upon an original bill filed 
 by a minority of the trustees of a religious corporation, together with a 
 minority of the society known as the Associate Congregation of Cam- 
 bridge adhering to the principles of the Associate Synod of North America, 
 against the defendant Bullions, who till his deposition and excommunica- 
 tion had been the settled pastor of said society, and a majority of the 
 trustees and congregation, by whom he was still retained as pastor, not- 
 withstanding his deposition ; and the general object of the bill was to 
 restrain the trustees from applying the temporalities of the society to the 
 support of a minister who had been deposed from the ministry by the 
 proper ecclesiastical tribunal and who was still under sentence of depo- 
 sition. It was charged in the bill and admitted in the answer, " that the 
 property of the congregation was held by the trustees for the sole pur- 
 pose of being devoted and appropriated to the support and maintenance 
 of the gospel, according to the faith and practice, discipline and govern- 
 ment of the Associate Church of North America ; according to which 
 principles, no minister under sentence of excommunication can be permit- 
 ted to occupy the pulpit, or administer divine ordinances in said church 
 or congregation." The Tice chancellor of the fourth circuit, to whom the 
 
 ' 1 E. S. 773, § 1. Kane v. Gott, 24 » 9 Barb. 66 ; affirmed on appeal, 1 Kern. 
 Wend. 662. 243. 
 
688 Trusts, [Oh. 7, 
 
 cause was referred by the chancellor, decided, amongst other things, that 
 the appropriation of the property of the congregation by the defendants^ 
 for the support of the deposed and excommunicated minister, was an un- 
 lawful diversion of the property from the purposes and objects of the 
 trust, a violation of their duty as trustees, and an abuse of the power 
 confided to them. This part of the decision of the vice chancellor was in 
 substance affirmed on appeal by the supreme court, and it was not dis- 
 turbed by the court of appeals ; the decree in this respect having been 
 acquiesced in by the defendant^.' 
 
 In Shotwell v. Mott," the questions arose on a bill filed by the sole act- 
 ing executor of the last will and testament of Nathaniel Smith for a con- 
 struction of his will, and for directions as to the disposal of the residue of 
 his estate. The testator had amongst other things directed his executors 
 to sell his lands and to distribute the proceeds amongst various persons, 
 together with sundry charitable institutions. It was held by the assist- 
 ant vice chancellor, that there was a conversion of the real estate, and 
 that the gifts were to be treated as legacies. And it was moreover held, 
 that if they were to be deemed land, they were nevertheless valid, be- 
 cause the Revised Statutes, relative to uses and trusts, do not apply to 
 charitable uses. So, in the same case, a bequest for the use of th* poor 
 of the town, and one to an uninporporated religious association for the use 
 of its poor ministers, were held not to be within the provisions of the Re- 
 vised Statutes against perpetuities ; and this doctrine was approved by 
 the learned judge, who gave the opinion of the court of appeals in Wil- 
 liams V. Williams, (supra.) So, in the same case, a bequest for the ben- 
 efit of poor ministers, of a specified religious denomination, was held to be 
 valid, though the will did not appoint any trustee of the fund. It was 
 said to be competent for the testator to empower the executors and trus- 
 tees of his will to designate the first trustees of such fund. And if it 
 were otherwise, the trust would remain and the court would appoint the 
 trustees. So, a bequest for the ministers of the New- York Yearly Meet- 
 ing of Friends called orthodox, who are in limited and straitened circum- 
 stances, was held not tfr be too vague, or uncertain, or too indefinite in its 
 objects.' So of a bequest for the relief of such- indigent residents of the 
 town of Flushing, as the trustee or trustees of the town for the time be- 
 ing should select.* 
 
 ' Kobertson v. Bullions, 9 Barb. 65 ; Att'y Gen. v. Shore, t Sim. 290, note. 11 
 
 S. 0. 1 Kern. 243. id. 692. 9 01. & Fin. 355. 
 " 2 Sandf. Ch. E. 46. ■■ Ooggeshall v, Pelton, 1 J. Oh. R. 292. 
 
 ' Shotwell V, Mott, 2 Sandf. Ch. E. 46. Potter v. Ohspin, 6 Paige,. 639. 
 
Ch. 7.] Charities. 589 
 
 In another case, ■which underwent great discussion, and which passed 
 through all the higher courts of the state,' Gardiner, president of the sen- 
 ate, in giving what appears to be the prevailing opinion of the court of 
 errors, deduced from the cases the following general propositions on the 
 subject. 1. That in trusts for charitable or pious uses, the intention of 
 the donor is to govern. 2. That in ascertaining that intention, the lan- 
 guage of the trust, if clear and explicit, is conclusive evidence of the in- 
 tention. 3. That where the language is ambiguous or equivocal, resort 
 may be had to extrinsic evidence, not for the purpose of ascertaining the 
 intention of the donor, independent of the deed ; but for the purpose of 
 determining the meaning and application of the terms used by him. 4. As 
 a corollary from the above propositions, that general terms are to be con- 
 strued generally, unless the circumstances under which the trust was 
 made, furnish decisive evidence that they were used in a limited or spe- 
 cial sense. 
 
 In the application of the foregoing principles, it was shown that where 
 property is conveyed to a religious corporation, (or to a religious society 
 which afterwards becomes incorporated,) to promote the teaching of par- 
 ticular religious doctrines, and the funds are attempted to be diverted to 
 the support of dififerent doctrines, it is the duty of the court of chancery, 
 under its general jurisdiction over trusts, to interpose for the purpose of 
 carrying the trust into execution according to the intention of the donor. 
 
 It is a question of much importance in the law of charitable uses, 
 whether property devoted to a particular charity by the donor may be 
 diverted to other objects, if a majority of those foi; whose use it was accu- 
 mulated or given, shall concur in such diversion. This subject has been 
 discussed in the courts of this state, and received a decision in conformity 
 to the doctrines of the common law. Accordingly it has been held, that 
 it is not a defense to a suit, brought to enforce a trust, that the deviation 
 from the faith and doctrine, to which the property was devoted by the 
 donor, is sanctioned by a majority of the church or congregation, who, 
 through trustees chosen by such majority, are administering the trust ac- 
 cording to their views. And it was said that, in a case of clear violation 
 of a well defined trust of this character, the court would be bound to in- 
 terfere upon the complaint of a minority against a majority of the , con- 
 gregation.'' If, indeed, all the congregation concur in the misapplication 
 
 ' Miller V. Gable, 2 Denio, 492, 541; 1 Sandf. Ch. E. 439. Field v. Field, 9 
 
 S. 0. 10 Paige, 627. Opinion of Assistant "Wend. 394. Eobertson v. Bullions, 9 
 
 v. Oh., 2 Denio, 510. Barb. 132, per Hand, J. Att'y Gen. v. 
 
 " Miller v. Gable, 2 Denio, 492. Knis- Pearson, 7 Sim. 290. Att'y Gen. v. Shore^ 
 
 kern v. The Lutheran Church of St. Johns, id. 309, note. 
 
590 Trusts. [Ch. T. 
 
 of the fund, there is no individual or minority left to invoke the aid of 
 the court ; and there remains no one to interfere unless the attorney gen- 
 eral should file a bill to establish and compel the execution of the trust, 
 according to the will of the donor ; or unless some other party, succeeding 
 to the interest of the donor as heir, next of kin or residuary legatee, as 
 the case may be, should assert his rights. The question, in such case, 
 •will arise between other persons than those for whom the original charity 
 was created. Between the latter there can be no controversy if they 
 are all agreed. 
 
 It is a point of great importance, in cases arising under the doctrine of 
 charitable uses, whether the intention of the donor may be ascertained 
 from any other source, than from the deed or other instrument by which 
 the charity is created. This point is settled in the English courts, 
 upon sound and enlightened principles, the rejection of which would re- 
 move the strongest inducements of individuals to devote any portion of 
 their property to charity. " In every case of charity," said Lord Lynd- 
 hurst,' " whether the object of the charity be directed to religious purposes 
 or to purposes purely civil, it is the duty of the court to give effect to the 
 intent of the founder, provided this can be done without infringing any 
 known rule of law. It is a principle that is uniformly acted upon in 
 courts of equity. If the terms of the deed of foundation be clear and pre- 
 cise in language, and clear and precise in the application, the course of 
 the court is free from difficulty. If, on the other hand, the terms which 
 are made use of are obscure, doubtful or equivocal, either in themselves 
 or in the application of them, it then becomes the duty of the court to 
 ascertain by evidence, as well as it is able, what was the intent of the 
 founder of the charity, in what sense the particular expressions were 
 used. It is a question of evidence, and that evidence will vary with the 
 circumstances of each particular case ; it is a question of fact to be deter- 
 mined, and the moment the fact is known and ascertained, the application 
 of the principle is clear and easy." 
 
 " It can scarcely be necessary to cite authorities in support of these 
 principles. They are founded in common sense and common justice ; but 
 if it were necessary to refer to any authority, I might refer to the case of 
 the Attorney General v. Pearson, and to another case which was cited at 
 the bar, the case in the house of lords. Throughout those judgments, 
 the principles which have been stated were acknowledged and acted upon 
 
 ' See his opinion in Att'y Gen. v. Shore, & Fin. 355. 5 Scott's New K. 958. 11 
 7 Sim. 290. Note to Att'y Gen. v. Pear- Sim. 615. 
 flon, 11 id. 592. Shore v. Wilson, 9 01. 
 
Ch. 7.J Charities. 591 
 
 by a noble and learned judge, (Lord Eldon,) of more experience in courts 
 of equity, and mote experience in questions of this nature, than any other 
 living person. I look upon it, then, that these principles are clear and 
 established, and that they admit of no doubt whatever.'" 
 
 Those in this country who repudiate this doctrine sometimes rely upon 
 the doubt of the chancellor in the Baptist Church of Hartford v. With- 
 erell,^ as to the propriety of the doctrine of Lord Eldon in the Attorney 
 G-eneral v. Pearson.' But when it is considered that the remarks of the 
 chancellor, in that case, were not necessary to a right decision of it, and 
 have since been withdrawn by him,' and have been dissented from by the 
 highest court in the state,^ it would seem that the dictum' in question 
 should not be regarded as authority. Indeed, the chancellor seems to re- 
 cognize the recent English cases as sound law, in his opinion in Miller 
 V. Gable.' 
 
 The doctrine of Lord Lyndhurst was substantially adopted by the court 
 of errors in Miller v. Gable, already cited, and the recent English cases 
 were referred to with apparent approbation. The principles deduced 
 from them by Gardiner, president of the senate, have already been stated, 
 and they seem to give a rule- on this subject, as definite as the nature of 
 the subject will allow. 
 
 In the case of the Attorney General v. Shore, commonly known as the 
 Lady Hewley charity, the language of the deed which raised the trust 
 was, " to assist poor and godly preachers of Christ's holy gospel." The 
 Unitarians were in possession and claimed the fund, and amongst other 
 things, evidence was received; that Lady Hewley, the donor, was a Pres- 
 byterian, and a believer of the doctrine of the trinity. The object of the 
 parol proof was to show that she had not used the term " godly" as appli- 
 cable to a class of preachers who denied what she esteemed a fundamental 
 doctrine of the gospel. The language in its application was ambiguous ; 
 it would be used by a Unitarian in one sense, and by a Trinitarian in 
 another. The one would deem it a part of Christ's " holy gospel" to deny, 
 the other to assert, the divinity of the Savior. The court being of the 
 opinion, upon the evidencoj that the funds were misapplied; and consider- 
 ing the danger of future abuse from ■ the fact that the trustees were 
 Unitarians, removed the trustees, and affirmed the decree of the vice 
 
 » 9 Olark & Kn. 356. 1 Greenl. Ev. = Miller v. Gable, 2 Denio, 548. 
 § 295, note. ' 10 Paige, 647, citing 3 Enss. 114. Mil- 
 
 ' 3 Paige, 304. ligan v. Mitchell, 1 Myl. & K. 446 ; S. 0. 
 
 ' 3 Mefiv. 264. 3 Myl. & 0. 72. Att'y Gen. V. Pearson, 
 
 * See l^is remarks in Gable v. Miller, 10 7 Sim. 290. 
 Paige, 647. 
 
692 Trusts. [CL 7. 
 
 chancellor, which excluded persons professing Unitarian opinions from 
 participating in the benefit or administration of the charity. 
 
 In Miller v. Gable," land was conveyed to trustees in 1765, for the 
 use of a church known as the German Reformed Church of the city 
 of New-York, which was Calvinistic in doctrine, and in the declaration of 
 trust was called the Calvimstic church in the city of New- York, worship- 
 ping in the German language ; which declaration of trust stated that the 
 property was purchased by contributions from certain German and Swiss 
 inhabitants of the city of New- York, with the assistance of divers char- 
 itable and well disposed persons, as a site for a church for the worship 
 of God, and that all persons were inclined to preserve the estate in all 
 times coming for the pious uses aforesaid. The trust so created was 
 held by the court of errors not limited to the exclusive use of a congre- 
 gation holding the doctrines denominated Calvinistic ; and such trust 
 was therefore not violated by the application of the property, by a major- 
 ity of the congregation, to the maintenance of public worship, according 
 to the doctrines of any other evangelical denomination of christians. And 
 when the church referred to in such declaration of trust, though formerly 
 independent, was then connected with the reformed Dutch church, and 
 had become subordinate to the ecclesiastical judicatories of that church, 
 and continued so connected for several years, after which the connection 
 was suspended, and again renewed, and finally broken off; and a majority 
 of the congregation devoted the property to the maintenance of its wor- 
 ship as an independent church, though a minority adhered to the connec- 
 tion with the Dutch church, it was also held that there was no violation 
 of trust. 
 
 On the principles before stated it should seem that where a church, 
 organized on the basis of independency, afterwards unites with the 
 organization of another church, by becoming subordinate to its judicato- 
 ries, so far as the temporalities are concerned, is binding only so long as 
 the parties to it mutually consent to its continuance. The denomina- 
 tional name of a religious corporation or society, to which a donation is 
 made, and the doctrines actually taught therein at the time of the gift, 
 may be resorted to in order to limit and define the trust in respect to 
 doctrines usually considered fundamental, such as those in dispute between 
 Trinitarians and Unitarians ; but not as to lesser shades of doctrine." 
 
 The Unitarian cases in Massachusetts do not necessarily confiict with 
 those in this state and in England. The former were decided upon their 
 
 ' 2 Denio, 492. ' Miller v. G^ble, 2 Denio, 498; S. 0. 
 
 10 Paige, 627. 
 
Cli. 7.] Charities. 593 
 
 local statutes and usage, and not upon the doctrine of charitable uses.' 
 They are, in truth, inapplicable as authorities on this question. It has 
 been decided in that state that the statute of 43 Elizabeth, ch. 4, in regard 
 to gifts to charitable uses, is in force in that state ; and upon that princi- 
 ple, a bequest, for charitable uses, to an unincorporated female society in 
 another state, composed in part of married women, was valid; and a 
 court of equity would appoint a trustee to receive the bequest in trust 
 for such charities as are administered by such society.' 
 
 Courts of equity disclaim all right to interfere with the religious belief 
 of any person, or to prevent the full enjoyment by every citizen of all 
 the rights of conscience secured by the constitution. They merely exer- 
 cise a benign authority, in the administration of trusts, to prevent the 
 misapplication of property accumulated for one purpose, from being 
 devoted to another and different object. The cardinal design is to carry 
 out the will and intent of the donor, when consistent with the rules of 
 law. If the application of the ordinary doctrines of the court works 
 injustice ; or if, by the lapse of time, or other causes, the public good 
 would be promoted by a diversion of the funds to other objects, in 
 whole or in part, the remedy is with the legisla4;ure, and not with the 
 courts.^ 
 
 In the case of Andrew v. The General Theological Seminary of the 
 Protestant Episcopal Church in the United States, the New-York Bible 
 and Prayer Book Society, and others,'' the question arose on a bill filed 
 by the residuary legatees of the late Henry Pope, claiming under his 
 will and codicils, against the defendants, for a final account and distribu- 
 tion of the estate of the testator, setting aside and avoiding two legacies 
 claimed by the two corporations above named. ^ The assistant vice chan- 
 cellor of the first circuit declared both legacies void, and his decree was 
 affirmed by the superior court, of New- York, mainly upon the ground 
 that the doctrine of the English court of chancery applicable to cTiaritable 
 uses was not in force in this state, either because it never was in force 
 here, or because it was abrogated by the repeal, in 1788, of the statute 
 of 43 Elizabeth, cL 4, and the adoption in 1777 of the first constitution, 
 
 • Baker v. Fales, 16 Mass. 488. Steb- 107. Sanderson v. White, 18 Pickering, 
 
 bins V. JenniDgs, 10 Pick. 172. Page v. 828. 
 
 Crosby, 24 Pick. 211. Story's Eq. Juris, = Stat. 7, 8, Vict. sess. 4, ch. 45, (8 Lend. 
 
 § 1191, a, note. Jurist, 339.) 
 
 ' "Washburn v. Sewall, 9 Mete. 280. ■• 4 Sandf. S. 0. E. 1S6, by title, An- 
 
 Burback V.Whitney, 24 Pick. 146. Bart-, drew v. IT. T. Bible and Prayer Book 
 
 lett v. Nye, 4 Meto. 378. Bartlett v. King, Society, S. 0. on appeal, 4 Selden, Dec. T. 
 
 12 Mass. 537. Going v. Emmery, 16 Pick. 1863. 
 
 Eq. Jub. 75 
 
594 Trusts. [OIi. T, 
 
 ■khich extended its protection to every form and sect of religion ; and 
 also iipon the ground that the cy pres doctrine of the English courts, 
 applicable to charitable uses, has never been held in this state. The 
 court of appeals in December term, 1853, reversed the decrees, both of 
 the superior court and of the assistant vice chancellor, upon the ground 
 that both the bequests might eventually be sustained as gifts to religious 
 and charitable purposes, but without determining absolutely that ques- 
 tion, as there was no trustee or person before the court who could claim the 
 disposition of the legacy given to the Auxiliary N. Y. Bible and Common 
 Prayer Book Society. The record was remitted, with leave to the com- 
 plainants so to amend their bill as to make the attorney general a party, 
 and to proceed with the causes in the court below. 
 
 A brief statement of the case will show, that the doctrine of charitable 
 uses, and a limited application of the doctrine of cy pres, were necessarily 
 involved in the decision, and their existence in this state sustained by 
 the decree of the court of appeals. 
 
 By one bequest, the testator gave to the Auxiliary N. Y. Bible and Com- 
 mon Prayer Book Society, at the death of the last survivor of four annu- 
 itants named in the will, $1500, to be placed at interest, and the interest 
 added to the principal for 21 years, or until the sum should amount to 
 $5000, (whichever should first happen,) and the income thereafter to be 
 expended in the purchase and gratuitous distribution of common prayer 
 books. 
 
 By the other bequest, the testator gave certain coins and medals, and 
 the sum of $2000, to the trustees and executors named in the will, upon 
 trust, that if upon the death of the surviving annuitant there should bo 
 in existence any theological seminary in this state, established under the 
 authority of the general convention of the Protestant Episcopal Church, 
 for the instruction in theological learning of young men intende(f for the 
 ministry in said church, the trustees should deliver the coins and medals, 
 and pay the money to the managers of such seminary, the coins and 
 medals to be preserved for the use of the seminary, and the interest of 
 the money to be applied in support of a scholarship, to be filled by one of 
 the testator's kindred ; and if none should be found qualified and willing 
 to fill such scholarship, then the interest to be given to such person in 
 priest's orders, in said church, as the bishop of the diocese of New- York 
 should appoint ; who should preach in Trinity church, at siich time or 
 times, during the sitting of the convention of the Protestant Episcopal 
 Churcti in said state, as said bishop should appoint, one or more lectures 
 of h^s own composition, upon the evidences and ' truths of the christian 
 religion, and should afterwards print and publish the same ; such dispo* 
 
CL 7.] Charities. 595 
 
 sition to continue yearly until one of the testator's kindred should be 
 found, willing and qualified to take the scholarship ; and the like dispo- 
 sition forever thereafter in like cases of vacancy. If no such seminary 
 should be in existence at the death of the last surviving annuitant, the 
 coins and medals were to be retained, and the money to be kept at interest 
 and a<5cumulated by the trustees, until such institution should be formed ; 
 and if not formed within twenty-one years after the death of the last an- 
 nuitant, the whole to fall into the general residue of the estate. 
 
 The charter of the Auxiliary New- York Bible and Common Prayer Book 
 Society, granted in 1817, expired in 1837. That society was organized, 
 and had, during its existence, acted as an auxiliary to the New- York 
 Bible and Common Prayer Book Society, whose corporate powers are 
 etill in force, and who claimed the legacy of $1500. 
 
 The General Theological Seminary of the Protestant Episcopal Church 
 in the United States, which was, at the death of the last surviving annui- 
 tant, (which occurred in 1844,) and still is, an incorporated seminary in 
 this state, answering the descriptien given in the will, claimed the coins 
 and medals, and the legacy of $2000. 
 
 It was thought to be quite clear, by the learned judge who delivered 
 the opinion of the superior court, that neither of these legacies could be 
 sustained, if they could be sustained at all, upon any other principle, 
 than the existence in this state of the doctrine applicable to charitable 
 uses ; aad being of the opinion that that doctrine had Tseen abrogated 
 by the adoption of the first constitution and the repeal of the statute of 
 43 Elizabeth, ch. 4, the bill was dismissed.' The reversal of the decree 
 of the superior court by the court of appeals, in connection with the de- 
 cision of the latter court, in Williams v. Williams, at the same term, cannot 
 be otherwise treated than as affirming the existence in this state of the 
 doctrine relative to charitable uses, including the doctrine of cy pres, in 
 the limited manner which has already been stated.'' 
 
 It is believed that the doctrine in question has no necessary connec- 
 tion with a religious establishment maintained bylaw ; but can be upheld 
 
 ' See opinion of Duer, J. 4 Sandf. S. 0. Barb. 105, are based upon the opinion of 
 
 R. 172 to 188, and also his opinion in Duer, J. in Ayers v. Meth. Epis. Oburoh, 
 
 Ayers v- The Methodist Church, 3 id. 3 Sandf. S. 0. B. 351 ; the' doofrine of 
 
 858-379. which is overthrown bv the court of ap- 
 
 " See ante. The opinion of the supreme peals in "Williams v. Williams, and An- 
 
 court in the third district, in Yates v. drew v. The N. T. Bible and Common 
 
 Tatea, 9 Barb. 824, 339, and of the learned Prayer Book Society, already considered 
 
 judge in the 4th district, in Voorhees v. in the text. 
 Presbyterian Church of Amsterdam, 17 
 
596 Trusts. [Ch. L 
 
 by the courts of equity of any country, where Christianity is the prevail- 
 ing, though not the established religion. A trust to promote doctrinea 
 designed to assail and subvert the christian faith,' or to introduce cus- 
 toms forbidden by law, or in the language of the constitution, " to excuse 
 acts of licentiousness, or justify practices inconsistent with the peace 
 or safety of the state," cannot be enforced by the courts. Property 
 so devoted by the donor, would not be protected against the claims of 
 those to whom it would pass by law, in case of no valid disposition by its 
 owner. But property may be given in trust for the support of any reli- 
 gious sect, catholic or protestant, when the object of the charity is not 
 forbidden by law, and the doctrines to be disseminated do not tend tO' 
 licentiousness, and do not justify practices inconsistent with the peace 
 and safety of the state.'' Whether a use be superstitious, and so invalid,' 
 must be determined with reference to the general course of those denom- 
 inations who adopt Christianity as their religion. And perhaps no use 
 could be adjudged void as superstitions, unless it should be adjudged to 
 be against public policy, or as falling within the range of practices which 
 the constitution does not tolerate.' 
 
 Nor are w© without evidence that, when the general intention of the 
 testator' ia to give to charity, the failure of the particular mode in which 
 the testator meant to effectuate the charity, shall not, in this state, destroy 
 the charity, even in cases where, by the common law, the purpose could 
 only be carried out in England by the sign manual of the king.' Where 
 it is seen that the substantial intention is charity, the law will substitute 
 another mode of devoting the property to charitable purposes, though the 
 formal intention of the testator as to the mode cannot be accomplished.* 
 In this state the power has been exercised by the legislature, which in 
 England is carried out by the court of chancery, in conformity to the di- 
 rection and appointment of the king, under his sign manual. This is ap- 
 parent from the act passed in 17&5, concerniag the legacy bequeathed by 
 David Jones for the benefit of a charity school.^ 
 
 From the preamble to that act, it appears that David Jones, late of 
 Fort IJeck, in Queen's county, deceased, in and by his last will and tes- 
 tament, did give and bequeath unto the charge and care of the church 
 wardens of the parish of Hempstead, in Queen's county aforesaid, for the 
 time being, and to the charge and care of their successors forever, annu- 
 
 • Per Hoffman, A. V. Ch. in Miller v. ' Moggridge v. Thaekwell, 7 Ves. 69 
 
 Gable, 2 Denio, 624. AWy Gen. v. Siderfln, 1 Vera. 224. 
 
 " Id. 525. ' 18tb Sess, chap. 29,: 2 Webster, 249.. 
 ' Bao. Abr. Charitable Uses, D. 
 
Ch. Ti] Chahities. 597 
 
 ally chosen by virtue of the act, entitled an act for settling a ministry 
 and raising a maintenance for them in the city of New'York, county of 
 Bichmond, Westchester and Queen's county, the sum of £300, current 
 money of New- York, to be lent out on interest on good land security, and 
 this said interest annually applied forever in the education and instruc- 
 tion of such poor children belonging to the town of Oysterbay, as the 
 said church wardens for the time being should deem proper objects of 
 charity ; the said church wardens once in every year, on the first Tues- 
 day of May, to deliver unto the vestry of the parish of Hempstead, annually 
 elected by virtue of the said act, a just, true and circumstantial account, 
 on oath, of all their proceedings in relation to the disposition and applica- 
 tion of the said interest money, and how and to whom the principal sums 
 are lentj and to take the directions of the said vestry with respect to their 
 further proceedings therein ; and although the executors of the said last 
 will and testament, or some or one of them, offered to pay the said legacy, 
 yet no person applied for payment thereof, and the same remained 
 unpaid. The act further recited that the executors were dead, and ad- 
 ministration of the goods, chattels and credits, which were of the said 
 David Jones at the time of his death not administered by his executors, 
 had been gpmmitted to Samuel Jones and Samuel Clowes, who it was 
 suggested would probably soon have assets in their hands sufficient to 
 pay the said sum of £300 pounds ; but the act mentioned in the said be- 
 quest having been repealed, there was not any person authorized to re- 
 ceive the same. In order, therefore, that the intentions of the testator 
 might be carried into execution, it was enacted that it should be lawful for 
 the said administrators to pay the said £300 to the overseers of the poor 
 of the said town of Oysterbay for the time being, or either of them, 
 whose receipt for the same should be a sufficient discharge to the said ad- 
 ministrators for the said legacy. And the said overseers of the poor of 
 the said town of Oysterbay, and their successorsj were thereby directed and 
 required to lend out the said sum of £300 at interest on good land secu- 
 rity, and to apply the said interest annually forever in the education and 
 instruction of such poor children belonging to the said town of Oysterbay, 
 as the said overseers of the poor of the said town for the time being 
 should deem proper objects of charity ; and once in every year, on the 
 last Tuesday in March in every year, to deliver to the town clerk and 
 Supefvisoi' for the time being of the said town, and such justice or justices 
 of the peace as might reside in the said to^sn, or such of them as should 
 meet to examine and audit the accounts of the poor of the said town, a 
 just, true and circumstantial account, on oath, of all other proceedings in 
 relation to the disposition and application of the said interest money, and 
 
598 Trusts. [Oh. 7. 
 
 how and to whom the principal sums were lent. And the said auditing 
 board were required to make a report thereof to the then next town meet- 
 ing to be held in the said town, and the said town meeting were required 
 to give such directions with respect to the further proceedings of the said 
 overseers therein, as the major part of the freeholders and inhabitants of 
 the said town then met might deem proper or necessary.' 
 
 If this had been the common case of the failure of a trustee, it is quite 
 clear that legislative aid was not necessary, and that the then court of 
 chancery would have afforded the requisite relief But the legatee was 
 incapable of taking, and the legacy could not be carried into exact exe- 
 cution according to the will of the testator. We had no officer with the 
 like power of the king of Great Britain, to direct in what mode the in- 
 tention of the testator should be carried out. It presented a case not 
 within the scope of the jurisdiction of chancery, without the sign manual, 
 and was properly executed by the supreme power of the government.'' 
 
 SECTION XVI. 
 
 OF CONSTRUCTIVE OE IMPLIED TRUSTS. 
 
 According to the division of the subject in the introductory part of 
 this chapter, we are now to treat of constructive or implied trusts. 
 Under this head some writers embrace the doctrine of administration, 
 legacies and resulting trusts, the former of which we have sufficiently 
 treated under preceding heads.' Legacies are sometimes connected 
 with express trusts, and at other times rest upon the implied trusts on 
 the part of the executors, to distribute thp estate according to the ex- 
 pressed or implied intention of the testator. The subject may ss appro- 
 priately be considered under the head of express trusts, as under that 
 
 ' It would be instructive to learn, after in this state, at the time of Ms death, 
 
 the lapse of over sixty years, in what there can be no doubt that the charity he 
 
 manner this trust has been managed by intended to create, could have been exe- 
 
 the town meeting of the town of Oyster- cated by the aid of the legislature, as 
 
 bay, and what is the present condition of representing the parens patrias. See the 
 
 the trust funds. case under the title of William Fontain 
 
 " Story's Eq. § 1169, and cases cited. v. William Kavenel, 3 Am. L. Eeg. 264. 
 
 Had Frederick Kohn, whose will re- ' 1 Mad. Oh. Pr. 466. Story's Eq. Im- 
 
 cently received the consideration of the plied Trusts, § 1195. 
 supreme court of th^ V. S. been domiciled 
 
Ch. 7.] Implied Trusts. 599 
 
 of implied trusts. Resulting trusts fall more properly under tte head 
 of implied trusts ; but as they have been abolished in this state, except 
 in favor of creditors, or in case of fraud, they naturally came under our 
 consideration, to some extent, ■when treating of the statutory changes on 
 this subject.' 
 
 Whenever the circumstances of a transaction are such, that the person 
 ■who takes the legal estate in property, cannot also enjoy the beneficial 
 interest, without necessarily violating some established principle of 
 equity ; the court will immediately raise a constructive trust, and fasten 
 it upon the conscience of the legal owner, so as to convert him into a 
 trustee for the parties, who in equity are entitled to the beneficial enjoy- 
 ment.'' 
 
 These constructive trusts may be separately considered under two 
 distinct classes of cases ; first, where the acquisition of the legal estate 
 is tainted with fraud, either actual or constructive ; and second, where the 
 trust depends upon some general equitable rule, independently of the 
 existence of fraud. 
 
 An illustration of the first class of cases may be found where a man 
 purchases land with the funds of another, and, without the consent or 
 knowledge of the party paying the consideration, takes an absolute con- 
 veyance in his own name ; or, where a party, in violation of some trust, 
 purchases land so conveyed, with moneys belonging to another. These 
 are cases expressly saved by the statute, and a trust results in favor of 
 the party by whom the consideration money is paid, or whose moneys are 
 thus used for that purpose. Before the statute, a trust resulted in favor 
 of the party paying the consideration, whether the deed was taken to 
 another, with or without the consent or knowledge of the party by whom 
 the money was paid. This permitted a secret resulting trust to be 
 created by the party claiming its benefit. It was this latter kind Of 
 trust that the statute abolished, leaving the law in full force in relation 
 to such as were the offspring of fraud, on the part of the one who took 
 the conveyance to himself.^ 
 
 The principles settled, by the cases prior to the statute, are still appli- 
 cable, where the resulting trust is recognized by the law ; and hence the 
 mode of proof now is the same as that which formerly prevailed. From 
 
 • 1 B. 8. 728, §§ 51 to 5.3, and ante, p. » 1 E. S. 728. Reviser's Notes, 3 K. 8. 
 
 417. 83, 2d ed. Bodine v. Edwards, 10 Paige, 
 
 " Hill on Trustees, 144. Mech. Bank 504. Norton v. Stone, 8 id. 222. Lounds- 
 
 V. Seton, 1 Pet. 309. Wormley v. Worm- bury v. Purdy, 11 Barb. 490 ; 8. 0. affirm- 
 
 ley, 8 Wheat. 421. ed, 16 id. 376. 
 
,600 Trusts. [CL 7. 
 
 the nature of the case, such transactions almost invariably rest upon parol 
 proof. Such proof is not within the statute of frauds, as it does not 
 contradict the deed, but establishes an independent fact.' Such proof is 
 not only admissible against the face of the deed itself, but in opposition 
 to the answer of the trustee denying the trust.^ And if part only of .the 
 consideration is paid, the trust results pro tanto only.' 
 
 A resulting trust must arise, if at all, at the time of the conveyance. 
 It cannot arise after the legal title has passed to the grantee by a subse- 
 quent application of the funds of a third person to pay the purchase 
 money, or for the improvements of the property so as divest the legal 
 estate of the grantee.* To constitute a resulting trust in real estate, it 
 is necessary that the consideration money, upon the purchase, should 
 have belonged to the cestui que trust, or that it should have been ad- 
 vanced by some other person as a loan to him, or that it should have 
 been advanced as a gift to him, or for his benefit.' 
 
 A resulting trust is the mere creature of equity, as a resulting use is 
 of law ; and it cannot, therefore, arise where there is an express trust 
 declared by the parties, and evidenced by a written declaration of such 
 express trust.' 
 
 Equity will never raise a resulting trust in fraud of the laws of tho 
 laud. The law will never cast the legal or equitable estate upon a per- 
 son who has no right to hold it ; although an estate may, by an express 
 contract or conveyance, be vested , in an alien, until office found, for the 
 benefit of the people of the state. Where an alien, therefore, purchases 
 land and takes an absolute conveyance in the name of a citizen, without 
 any agreement or declaration of a trust, the law will not raise a trust in 
 favor of the alien purchaser, who cannot hold the land, any more than it 
 would cast it by descent upon an alien heir, who cannot hold it against 
 the state. The result in such a case must be, either that the nominal 
 grantee takes the land, discharged of any trust by mere implication of 
 law, or that there is a resulting trust in behalf of the people of the 
 state, which they alone can enforce against the grantee in the deed.' 
 
 But a court of equity will not suflfer this principle to operate to the 
 
 ' Boyd V. McLean, 1 J. Oh. E. 682. * Rogers v. Murray, 8 Paige, 390. Bots- 
 
 Botsford V. Burr, 2 id. 405. Livingston ford v. Burr, supra. 
 V. Livingston, id. 537. Jackson v. Stern- ' Getman v. Getman, 1 Barb. Ch. E. 
 
 berg, 1 John. Oas. 153. 11 J. R. 91. 13 499. 
 
 id. 463. 16 id. 197. Hosford v. Merwin, » St. John v. Benedict, 6 J. Oh. E. 115. 
 
 6 Barb. 51. Leggett v. Dubois, 5 Paige, 117. 
 
 ' Boyd V. McLean, supra. 'Id. 118. Hubbard r. Goodwin, 8 
 
 ° Botsford V. Burr, supra. Leigh's R. 514. 
 
CL 7.] Implied Trusts. 601 
 
 prejudice of an alien, when the purchase of real estate for his benefit is 
 made as a means of collecting a debt due to him, and without his knowl- 
 edge, and with no view of defeating the policy of the law*. Hence, where 
 land is taken in payment of a debt due to an alien, and conveyed to a 
 trustee upon a valid trust to sell the same and convert it into personal 
 estate, without any unreasonable delay, for the benefit of the cestui que 
 trust, a court of equity, upon the principles of equitable conversion, will 
 consider the land as personal estate belonging to the alien, and transmis- 
 sible to his personal representatives as such ; and if necessary, will com- 
 pel the trustee, who holds the legal estate, to sell the land and convert it 
 into money.' 
 
 Thus, where an attorney, who was employed to collect a partnership 
 debt due to a firm, the members of which were aliens ; but on account of 
 the alienage of the creditors, and without any directions from them, took 
 the conveyance in his own name, to enable him to sell the land and convert 
 it into money, and wrote to them informing them what he had done, and 
 promising to sell the land for them as soon as purchasers could be found, 
 but died before any sale of the land had been made, and his heirs, after 
 his death, sold the land, supposing it to be their own ; it was held that the 
 proceeds of such sale, in the hands of the heirs, were personal property 
 belonging to the copartnership firm, and that the personal representatives 
 of the last surviving partner were entitled to recover such proceeds as a 
 part of the copartnership efi'ects.'' 
 
 The trust which results in favor of creditors, under the provisions of 
 the Revised Statutes relative to uses and trusts, where a grant is made 
 to one person and the consideration therefor is paid by another,' is only a 
 trust in favor of those who were creditors of the person paying the con- 
 sideration at the time when the conveyance was executed and such con- ' 
 sideration was paid. There is no resulting trust in favor of creditors 
 whose debts are subsequently contracted." 
 
 The object of the statute is to prevent a fraud upon creditors. If the 
 party paying a consideration owes a debt to the party to whom the con- 
 veyance was made, and pays the consideration at the request of the lat- 
 ter and in discharge or on account of the debt, the creditors of the party 
 paying the money have no equity against the grantee of the land. Where, 
 says Bronson, Ch. J.,' there is an existing obligation, either legal or mor- 
 al, to pay so much money, and the payment is not made with any refer- 
 
 * Anstioe v. Brown, 6 Paige, 448. ' Brewster v. Power, 10 Paige, 562, 
 
 » Id. Craig v. Leslie, 8 Wheat. 563. "Wait v. Day, 4 Denio, 443. 
 
 » 1 E. S. 72fi^§ 52. » Wait v. Day, 4 Denio, 444. 
 Eq. Jue. 76 
 
602 TRUSTS. [Oh. 7. 
 
 enoe to the future, nor by \ray of mere gratuity, the case is, not within 
 the mischief against which the legislature intended to proyide. But 
 where the payment is made by way of gift, to some favorite, whom the 
 debtor may be willing to prefer before hia creditors ; or the purchase is 
 made upon any trust, express or implied, that the debtor shall in any form 
 reap the fruits of it ; and in all cases where there is no present duty, le- 
 gal or moral, to pay the money, the payment is a fraud upon creditors, 
 and they can reach the land by their judgments and executions.' As a 
 necessary consequence from these principles, it was thought to be clear 
 that a purchase made by way of gift or advancement to a mistress, although 
 it may not look to future cohabitation, cannot be supported. Creditors, 
 it was said, have a higher and better claim than such a woman. It is 
 hardly necessary to add, that a payment which looks to future cohabita- 
 tion, cannot for a moment be defended as against creditors.^ , 
 
 As a resulting trust may be proved by parol evidence, so it may be re- 
 butted by evidence of the same kind.'^ 
 
 At common law the appointment of an executor vests in him all the 
 personal estate of his testator, and if any surplus remains after payment 
 of funeral expenses and debts, such surplus will belong to the executor. 
 But, in equity, if it can be collected from any circumstances or expressions 
 in the will, that the testator intended to confer on his executor only the 
 office, and not the beneficial interest, such intention shall receive effect, 
 and the executor shall be deemed a trustee for those on whom the law 
 casts the surplus in case of a complete intestacy. The cases on the sub- 
 ject in the English books are numerous, and to some extent contradic- 
 tory, as to the circumstances which will be sufficient to exclude the executor 
 from the surplus. They are collected and reviewed by Mr. Fonblanquo 
 in his notes to the Treatise of Equity.* In this state the English rule 
 has long since been abrogated, and the executor treated as a trustee of 
 the unbequeathed surplus for the benefit of the widow, children and next 
 of kin of the testator.' A similar rule has lately been adopted in Eng- 
 land by the act of 1 Wm. 4, chapter 40.* It seems unnecessary, therefore, 
 to review the numerous cases which have been adjudged on this subject 
 before the alteration of the common law rule. Our statute treats the 
 
 ' Wait V. Day, 4 Denio, 444. The " Id. 
 
 chancellor, in Brewster v. Power, supra, ' Jackson v. Feller, 2 Wend. 465. 
 
 expressed the opinion that the creditor * 2 Fonb. B. 2, ch. 6, § 3. 
 
 could only reach the land by a bUl in ° 2 R. S. 96, § 75. 
 
 equity, and not ty sale undei- an execu' " 2 Wills. Ex. 899. 
 tion at law. 
 
Ch. 7.] Implied Trusts. 603 
 
 executors as trustees, and makes provision, wHck fhe common law did not, 
 for their compensation." It is probable that some similar provision exists 
 in the other states. 
 
 The same doctrine of resulting trusts arises upon conveyances. If the 
 grantor of real estate, even for a consideration, conveys a less interest 
 than he owns, the residue results to him or his heirs ; or which is in 
 effect the same thing, it remains in him. Thus, if the owner of the fee 
 grant a life estate to B., the remainder undisposed of still rests in the 
 grantor and will descend to his heirs, unless devised by his will." And 
 as a use will not arise without a consideration, a deed of land without a 
 consideration will not pass the title to the grantee ; but will result to the 
 nse of the grantor. But if there be a consideration expressed, though 
 merely nominal, the use will not result to the grantor, the payment of 
 even a nominal consideration showing an intent that the grantee should 
 have the use.^ The whole doctrine rests upon the principle that the 
 trust results in favor of the party who advanced the consideration ; and 
 of course, if no consideration was advanced by any body, the trust will 
 result in favor of the grantor, and the estate will thus remain -in him.* 
 The object of inserting a consideration in a deed is to prevent a result- 
 ing trust.' 
 
 The principle extends to a great variety of cases, many of which have 
 already been sufficiently treated under the head of fraud. In some 
 cases, for example, where a purchase is made by a party standing in such 
 relation of trust and confidence to the vendor as to give him an influence 
 over him, the sale will be set aside at the instance of the party benefi- 
 cially interested, or at his election it will be suffered to stand. In others, 
 the purchaser will be converted into a trustee. Thus, where an agent 
 employed to purchase an estate, became the purchaser for himself, he was 
 treated by the court as a trustee.for his principal.' On the like principle, 
 an agent employed to settle a debt, due from his principal, will not be 
 permitted to derive any benefit from it by purchasing it himself; because 
 it is his duty, on behalf of his employer, to settle the debt upon the best 
 terms he can obtain ; and if he is enabled to procure a settlement of the 
 debt for any thing less than the whole amount, it would be a violation of 
 bis duty to his employer, or at least would hold out a temptation to violate 
 
 » 2 R. S. 93, § 58. MeWhorter v, Ben- 410. Porter's case, 1 Co. 22, 26 a, and 
 
 son, 1 Hopk. Oh. R. 28. notes. Belden v. Seymour, 8 Oonm 312. 
 
 ' 2 Fonb. Eq. B. 2, oh. 5, § 4 and notes. » Id. 
 
 " Id. § 2 and notes. " Lees v. Nuttal, 1 RnsB. & Myl. 53. 
 * Bottsford V. Burr, 2 J. Ch. R. 405, 
 
604 Trusts. [CL 7. 
 
 that duty, if lie might take an assignment of the debt he was employed 
 to settle, and so make himself a creditor of his employer, to the full amount 
 of the debt, which he was employed to settle. If therefore an agent 
 obtain, under these circumstances, an assignment of a debt due from his 
 principal, he will be held a trustee for his principal, and will only be en- 
 titled to the sum he actually paid for the debt.' So also, where a surety 
 gets rid of, and discharges an obligation at a less sum than the full 
 amount, he will not be allowed, as against his principal, to make himself 
 a creditor for the whole amount, but only for the amount which he has 
 actually paid in discharge of the common obligation.'^ 
 
 The cases on this subject do not rest upon the actual existence of 
 fraud in the particular case, but upon principles of public policy. In the 
 leading case on this subject, Lord Thurlow said, if a trustee, though 
 strictly honest, buys an estate himself and then sells it for more ; accord- 
 ing to the rules of a court of equity, from general policy, and not from 
 any peculiar imputation of fraud, he shall not be permitted to sell to him- 
 self, but shall remain a trustee to all intents and purposes. And, in that 
 case, having sold the property at a highly advanced price, he was decreed 
 a trustee, as to the sums produced by the second sale, for the. original 
 vendor.^ 
 
 The same principle was applied, in an early case, to the renewal of a 
 lease by a trustee in his own name and for his own benefit. Even in the 
 absence of fraud, and on the refusal of the lessor to grant a new lease to 
 the cestui que trust, the lease so taken was decreed to be held upon trust 
 for the person entitled to the old lease.* 
 
 The equitable maxim that a trustee is disabled to purchase, for his own 
 benefit, at the sale of the trust property, is derived, _/?r5f, from the general 
 principle in the doctrine of trusts, that a person assuming a fiduciary 
 relation towards another, in regard to prpperty, is bound to exercise, for 
 the benefit of his cestui que trusts, all the rights, powers, knowledge and 
 advantage, of every description, which he derives from that position, or 
 acquires by means of it ; at least he is disabled from exerting them for 
 his own private benefit ; and second, from the specific and positive rule, that 
 an agent to sell for others, though he have but a mere ministerial power 
 for that single purpose, is disabled from being a purchaser at the sale.« 
 
 ' Eeed v. Norris, 2 Myl. & Or. 374. can edition, where tlie principal cases are 
 ' Id. collected and reviewed. 
 
 ' Fox V. Maokreth, 2 Bro. 0. 0. 400. * Kiech v. Sandford, 2 Eq. Gas. Abr. 
 2 Oox, 820. "White's Eq.Oas. 72, 106, and 741. White's Leading Cases in Eq. 32, 
 see the notes to that case in the Ameri- Hare and Wallace's ed. 47, and notes. 
 
 • White'sEq. Gas. 137, notes to H. & W. 
 
Ch. 7.J Implied Trusts. 605 
 
 These principles are firmly established in equity jurisprudence, and 
 are stated in various forms in the cases. Chancellor Walworth says, on 
 one occasion, that it is a rule of equity, of universal application, that 
 no person can be permitted to purchase an interest in property where he 
 has a duty to perform which is inconsistent with the character of pur- 
 chaser.' The rule is not confined to a particular class of persons, such 
 as guardians, trustees, solicitors and attorneys, but is of universal appli- 
 cation to all persons who come within the principle. It has been applied 
 to executors, administrators and agents. 
 
 It matters not, in cases falling within the principle, that no fraud was 
 intended, and no actual injury done. The rule is rather intended to 
 prevent wrong, than to remedy it ; though both objects will be ac- 
 complished if it be strictly followed. It is the offspring of the doctrine 
 of trusts, and it enables a court of equity to remove the temptation to 
 do wrong, by converting the wrongful act into rightful purposes. Noth- 
 ing less than incapacity is able to shut the door against temptation, 
 where the danger is imminent and the security against temptation 
 great. The wise policy of the law has, therefore, put the sting of a 
 disability into the temptation as a defensive weapon against the strength 
 of the danger which lies in the situation.' 
 
 The rule was well stated by the learned judge who delivered the 
 opinion of the supreme court of the United States in one of the cases 
 cited, (Michoud v. Girod, supra.) " The general rule," said the learned 
 judge, " stands upon our great moral obligation to refrain from placing 
 ourselves in relations which ordinarily excite a conflict between self- 
 interest and integrity. It restrains all agents, public and private ; but 
 the value of the prohibition is most felt, and its application more frequent, 
 in th« private relations in which the vendor and purchaser may stand 
 towards each other. The disability to purchase, is a consequence of that 
 relation between them which imposes on the one a duty to protect the 
 interest of the other, from the faithful discharge of which duty his own 
 personal interest may withdraw him. In this conflict of interest, the 
 law wisely interferes. It acts on the possibility that, in some cases, the 
 sense of that duty may prevail over the motives of self-interest, but it 
 
 ' Torrey v. Bank of Orleans, 9 Paige, King, 6 Lend. Jurist, 18, before Lord 
 
 663. Hawley v. Cramer, 4 Cowen, 736. Cottingham. De Caters v.Le Eay Chau- 
 
 Van Epps v. Van Epps, 9 Paige, 237, 241. mo'nt, 3 Paige, 178. Hamilton v. Wright, 
 
 Cram v. Mitchell, 1 Sandf. Oh. E. 251, 9 0. & Ein. ill. Bostwici: v. Adams, S 
 
 256. DobsoE V. Kacey, 3 id.61. Davou Comst. 60. -i '.'"■.'■.- ^ 
 
 V. Fanning, 2. J. Oh. K. 252. Michoud v. = Id. Davou v. Fanning, 2 J. J. Ch. 
 
 Girod, 4 How. S. 0. 508. Greenlaw v. K. 270. 8 Tomlin's Brown, 42, 63. 
 
606 Trusts. [CL T. 
 
 provides against the probability, in many cases, and the danger in all 
 cases, that the dictates of self-interest will exercise a predominant 
 influence and supersede that of duty. It therefore prohibits a pafty 
 from purchasing, on his own account, that which his duty or trust re- 
 quires him to sell on account of another, and from purchasing, on account 
 of another, that which he sells on his own account. In eifect, he is not 
 allowed to unite the two opposite characters of buyer and seller, because 
 his interests, when he is seller or buyer on his own account, are directly 
 conflicting with those of the person on whose account he buys or sells.'" 
 
 Where a person stands as trustee for others, and bound in that char- 
 acter to protect the general interests of those for whose benefit the trust 
 was created, in regard to the subject of the sale, he is equally inca- 
 pacitated from purchasing for his own benefit, at a sale under an adverse 
 proceeding, and at a judicial sale, as at his own sale, under his power as 
 trustee. The reason is ; as general trustee of the subject, it is his duty 
 to mate it bring as much as possible, at any sale that may take place ; 
 and therefore he cannot put himself in a situation where it becomes his 
 interest that the property should bring the least sum.'' 
 
 The Revised Statutes of this state have expressly forbid executors or ad- 
 ministrators, making a sale of the real estate of the deceased sold under 
 an order of the surrogate, and the guardians of any minor heirs of the 
 deceased, from purchasing directly or indirectly, or being interested in 
 the purchase of any part of the real estate so sold ; and they enact that 
 all sales made contrary to the provisions of the section shall be void ; 
 but the prohibition does not extend to a purchase by a guardian for the 
 benefit of* his ward.' 
 
 In cases not within the statute prohibition, it is presumed that a 
 trustee may purchase by the consent of the court of chancery ; but the 
 court will always require, upon such applicatioa, such facts to be shown 
 as justify a departure from the general rule.* If a trustee has a per- 
 sonal interest in the sale, which may be sacrificed if he is not allowed to 
 become a bidder, the court will substitute, in his place, a master or an- 
 other trustee to execute the trust, if it can be done without injury to 
 the interest of the cestui que trust.^ 
 
 Though trustees and those sustaining that relation are forbidden to 
 purchase, without leave of the court, or the assent of those interested in 
 the trust property, still their purchase is not absolutely void at law ; 
 
 ' Wormley v. ■Wormley, 8 Wheat. 421. ' Davou v. Fanning, 2 J. Ch. R. 252, 
 
 Prevost V. Gratz, 6 id. 481. 262. Dobson v. Eacey, 3 Sandf. 61. De 
 
 ' Chapin v. Weed, 1 Clarke's Oh. 464. Caters v. Chaumont, 3 Paige, 178. 
 
 • 2 R. S. 104, § 27. 'Id. 
 
Ch. 7.] Implied Trusts. 60T 
 
 but is voidable only in a court of equity at the suit of the cestui que 
 trusts. It stands valid, therefore, unless some one thus interested elect 
 to avoid it. The equity of the cestui que trusts is to have the option of 
 confirming it and holding the trustee to it, or of setting it aside and hav- 
 ing a resale ordered. No person but the cestui que trust, or some one 
 standing in his place, can apply to be relieved, and a stranger cannot 
 avoid it.' And the application must be made within a resonable time ; 
 and if not so made, it -will be considered as a waiver or abandonment of 
 the right.* If the property has been sold without notice by the trustee 
 to a bona fide purchaser, before the cestui que trust applies to the court, 
 the original sale cannot be set aside, and the remedy will be only personal 
 against the trustee for an account of the profit, if he made any.' 
 
 The doctrine above stated relates only to executed contracts. If the 
 bargain be not completed, and the aid of the court be invoked in behalf 
 of a trustee or agent to compel a^ specific performance of the agreement, 
 and the cestui que trusts be parties, aiid object to a confirmation of the 
 sale, a court of equity will not decree performance against their objection, 
 though the case be otherwise free from diflSculty.* Thus, the court refused 
 to decree performance of an executory contract of an executor, having a 
 power to sell under the will, made with his cestui que trust, to purchase 
 the subject of- the trust, upon the principle that such purchase is not 
 favored by the court.^ If the cestui que trust has the right as a matter 
 of course to have the sale set aside and a resale ordered, as is evident 
 from all the cases before cited that he has, it follows as a necessary 
 consequence that the trustee, while the purchase is incomplete and execu- 
 tory, cannot have any equity against the cestui que trust, for a specific 
 performance of the agreement, against the will of the latter. The right 
 of the one to have such a sale set aside, without reference to the question 
 of fraud, is incompatible with a right in the trustee or agent, to have the 
 sale confirmed against the remonstrance of the cestui que trust. 
 
 On the same principles, where contracts which are made against public 
 policy, though a court of equity will in most cases order them to be given 
 up, even on the application of a person standing in pari delicto, yet such 
 contracts cannot be enforced at law, though they be only constructively 
 
 ' Jackson v. Van Dalfson, 5 J. R. 43, " Hawley v. Cramer, 2 Cowen, 718. 
 
 48. Jackson v. Walsh, 14 id. 407. Wil- = Id, Jackson v. "Walsh, 14 J. E. 407, 
 
 6on V. Troup, 2 Oowen, 195. Hawley v. 415. 
 
 Cramer, 4 id. 719. Davou v. Fanning, 2 * Munroe v. Allaire, 2 Cai. Cas. in Er- 
 
 J. Ch. R. 252, 268. Jennison v. Hap- ror, 182; approved by Kent in Davou v. 
 
 good, 7 Pick. 1. banning, supra. 
 
 'Id. 
 
608 Trusts. [Oh. 7. 
 
 fraudulent. The case of marriage brokage bonds affords an illustration 
 of the rule. ' The court will never aid a party in obtaining the fruits of 
 a contract which was made in contravention of public policy, or the known 
 and established maxims of equity jurisprudence. 
 
 The remaining class of constructive trusts, under this head, is that of 
 the purchase from a trustee made with notice of the trust. It is a general 
 rule that a purchaser from a trustee upon notice, though upon full con- 
 sideration, and a fortiori, a volunteer taking with notice, is in equity 
 bound by the trust to the same extent, and in the same manner, as the 
 person from whom he purchased.'' He is converted into a trustee. And 
 hence, to support a plea of bona fide purchaser, without notice, the defend- 
 ant must aver and prove, not only that he had no notice of the plaintiff's 
 rights before his purchase, but that he had actually paid the purchase 
 money before such notice. Though he secured the purchase money, yet 
 if it was not paid before notice, it will not be sufficient to maintain the 
 plea.' 
 
 A purchaser without notice, from one who has fraudulently purchased, 
 is not affected by the fraud ; and it is also a well settled rule of equity, 
 that a man who is a purchaser, with notice himself, from a person who 
 bought without notice, may protect himself under the first purchaser. 
 The reason is to prevent a stagnation of property, and because the first 
 purchaser being entitled to hold and enjoy, must be equally entitled to 
 sell.< 
 
 If, however, the second purchaser be the original trustee, who re-ac- 
 quires the estate, he will be fixed with the trust. ' 
 
 The notice in these cases may be either to the purchaser himself, or 
 his counsel, attorney or agent ; though the counsel, attorney or agent 
 be himself the vendor, or be concerned for both vendor and purchaser.' 
 In the latter case, where both sides employ the same agent, as is fre- 
 quently done in purchases, according to Lord Hardwicke, each side is 
 affected with notice, as much as if different counsel and agents had 
 
 'St. John v. St. John, 11 Ves. 635. = Id. 2 Fonb. B.2,ch. 6,§2andnotes. 
 
 Smith V. Bruning, 2 Vera. 392. 3 P. Wms. SOT. 
 
 " Mead v. Orrery, 3 Atk. 238. Worm- " Alexander v. Pendleton, 8 Cranch, 
 
 ley V. 'Wormley, 8 Wheat. 421. Murray 462. JaoksSn v. Given, 8 J. K. 141. 
 
 V. Ballon, 1 J. Oh. E. 566. Oliver v. . Kumfus v. Platnir, 1 J. Ch. E. 219. De- 
 
 Platt, 8 How. S. 0. TJ. S. 383. Gilchrist maret v. Wynkoop, 3 id. 147. 
 
 V. Stevenson, 9 Barb. 9. The Mechanics' " Bovey v. Smith, 1 Vern. 149. Hill 
 
 Bank of Alexandria v. Seton, 1 Pet. U. 8. on Trustees, 231. 
 
 E. 309. " Le Neve v. Le Neve, 8 Atk. 646. 
 
Ch. 7.] Implied Trusts. 609 
 
 been employed.' If an agent who acts in that character for both parties, 
 ■with their knowledge and assent, receives notice of a fraud, both parties 
 are chargeable with knowledge of the fraud." 
 
 As a general rule, notice to the agent, to be effective, must be in the 
 course of the same transaction.' This rule is not Tvithout its exceptions ; 
 and is not to be received but with qualifecations. Where one transaction 
 is closely followed by and connected with another, or where it is clear 
 that a previous transaction was present to the miiid 6f a solicitor, when 
 engaged in another transaction, there is no ground for the distinction, by 
 which the rule that notice to the solicitor is notice to the client, has been 
 restricted to the same transaction.* In adverting to the decision of Sir 
 John Leach, that notice to a man in one transaction is not to be taken as 
 notice to him in another transaction. Lord Eldon said in one case, that 
 it should be considered "whether one transaction might not follow so 
 close upon another, as to render it impossible to give a man credit for 
 having forgotten it. I should be unwilling to go so far as to say, that if 
 an attorney has notice of a transaction in the morning, he shall be held 
 in a court of equity to have forgotten it in the evening : it must in all 
 cases depend upon the circumstances."' It would seem to follow, that if 
 the circumstances be such, that the Agent must be presumed to recollect 
 the fact of which the notice is predicated, that his principal is chargeable 
 with the like notice, though it was not deceived by the agent in the same 
 'transaction.^ 
 
 In cases where it is necessary to charge a party with notice of an in- 
 cumbrance or other infirmity in his title, notice to a husband is not notice 
 to the wife.' 
 
 Having brought under review some of the cases where the acquisition 
 of the legal title is tainted with fraud, either actual or constructive, in 
 which the party acquiring the title will be converted into a trustee, we 
 proceed to notice, in the next place, some cases in which courts of equity 
 convert the holder of the legal estate, though unaffected with fraud, either 
 
 • Le Neve v. Le Neve, 3 Atk. 648. * Hargreaves v. Kothwell,! Keene, 164. 
 Kennedy v. Greene, 3 Myl. & K. 699. Perkins v. Bradley, 1 Hare, 230. 
 Dryden v. Frost, 3 Myl. & 0. 670. ' Mountford v. Scott, 1 T. & K. 274, 
 
 ' Id. 280. 
 
 • Bank TJ. S. v. Davis, 2 Hill, 451. Wftr- " "Westervelt v. Haff, 2 Sandf. Oh. R. 98. 
 wick V, Warwiok, 3 Atk. 294. Hiern v. Kennedy v. Green, 3 M. & K. 699. 
 Mills, 13 Ves. 120. Mech.Bankv.Seton, 'Snyder v. Sponable, 1 Hill, 567; 
 1 Pet. 809. afiSrmed 7 id. 427. 
 
 Eq. Jus. 77 
 
610 Trusts. [Gh, 7- 
 
 aptajal or constructive, into a trustee for tlie party who is entitled, by th,a 
 rules of equity, to the beneficial interest. 
 
 The most obvious instance of this kind, is -where a man has entered 
 into an executory contract to purchase real estate. In this case, at law, 
 the legal title remains unaffected by the contract, aad the purchaser has 
 acquired only a right of action for breach of contract in case it is not per- 
 formed. But a court of equity views the transaction in a different light. 
 One of the primary maxims of that oourt is, as has been shown elsewhere, 
 that it looks upon things agreed to be done, as actually performed. Act- 
 ing on this principle, when the contract is made, it considers the vendor. 
 ais a trustee of the purchaser of the estate sold ; and the purchaser as a 
 trustee of the purchase money for the vendor." 
 
 The equity attaches immediately on making the contract, and will not, 
 ^erefore, be affected by the subsequent death, or any other act of either 
 of the parties, before the contract is carried into execution. The trust 
 in the vendor for the vendee, in such a case, attaches to the land, and 
 binds the heir of the former. If the latter be an infant, or a lunatic, and 
 his estate in the hands of a committee, equity has power to carry the 
 agreement into effect by a specific performance." 
 
 This doctrine applies also to cases where a'trust has been created and 
 no trustee has been appointed, or the trustee was incapable of acting, or 
 has died. As equity permits no valid trust to fail for the want of a 
 trustee, the coutt will appoint one f or will follow the estate into the^ 
 bands of the party to whom it has passed, and treat him as a trustee.' 
 in. ithis state it has been seen, that the trust, on the failure of th6 triistees 
 by death, vests in the court of chancery ,'and does not descend to the heir.^ 
 
 As the trust attaches to the land Which is the subject of it, it becomes 
 obligatory on a purchaser with notice,' by such purchase ; and he will be 
 decreed to execute' the trust, unless the purchase be with the permisgicHi 
 of a court of equity, 
 
 At common law, every corporation aggregate had' an unlimited power 
 oyer its property, and might alienate the same in fee, or grant any iesser 
 estates therein without limitation or restriction.' And the same power 
 is recognized by the Revised StatHtes.' The legislature/ in 1806, 
 amended the act in relation to religious itoCorporations ;■ and autbojciaed 
 
 ' Malin v. Malin, 1 "Wend. 625. Oham- * Ousbn^y v. Heiity, 4 Paige,' 845; 
 
 piipn T. Brown, 6 J. Oli. R. 402. Watson ' 1 E. S. 720, § 68; 
 
 V. Le Kow, 6 Barb. 484, • Oo. Litt. 44 », SOO I, per lA. MaasSeM, 
 
 ' Swartout v. Burr, 1 Barb. S. 0. K. 1 Bur. R. 221. Dutch Olmrch v. Mott, f 
 
 496. Sntphen v. Fowler, 9 Paige, 280. Paige, 83. 
 
 • King T. Donnelly, 5 Paige, 46. 'IRS. 599, § 1. 
 
Oh. 7.J Implied Trusts. 611 
 
 the chaHoellcsr, upon the application of any such incorporation, in case he 
 should deem it proper, to make an order for the sale of any real estate 
 belonging to such incorporation, and to direct the application of the money 
 arising therefrom, by the said corporation, to such uses as the same cor- 
 poration, with the consent and approbatibn of the chancellor, should con- 
 ceive to be most for the interest of the society to which the real estate so 
 sold belonged.' But for such consent of the court of equity the purchasers 
 would receive the property, charged with the trusts fastened upon it, 
 while in the hands of the corporation, and would themselves become 
 trustees for the original purpose for which it was acquired:" 
 
 Another instance of a constructive trust of this kind is the case of a 
 person taking property from a trustee without notice of the trust, but 
 without having given any valuable consideration for it.' In such a Case, 
 the party receiving the property, though guilty of no fraud, will be treat- 
 ed as a trustee in the same manner as we have shown a purchaser with 
 notice will be regarded. A purchaser however without notice, and upon 
 a valuable consideration, we have seen, will be protected. 
 
 Another instance of trustees, created by the position which they hap- 
 pen to occupy at the time, arises on the dissolution of any corporation. 
 In such 3 case, where no other persons are appointed by the legislature or 
 some court of adequate jurisdiction, the statute enacts that the directotS 
 or managers, by whatever name they may be known in law, shall be the 
 trustees of the creditors and stockholders, and shall have full power to 
 settle the affairs of the corporation, collect and pay the outstanding debts, 
 and divide among the stockholders the moneys and othSr property that 
 sballl remain, after the payment of debts and necessary expenses.* 
 
 SECTION XVII. 
 
 OF THE OFFICE -iND HUTIES OF TRUSTEES AND THE EIGHTS OF CESTUI QUE 
 
 TRUSTS. 
 
 The general nature of the office of a trustee, and of the reciprocal 
 rights and duties of a trustee and cestui que trust may perhaps be col- 
 
 ' L. of 1806, ch. 43, p. 360. Gen. Act, ' Jewett v. Palmer, 7 J. Oh. B. 65. 
 S E. S. 292, 298, § 11. * 1 K. S. 600, | 9. 
 
 ' Dutch Church v. Mott, 7 Paige, 84. 
 
612 Tkcsts, [Oh. 7. 
 
 lected from what has already been said, in various parts of this treatise. 
 The nature of his estate has been fully considered. And we may, with- 
 out repeating what has been said elsewhere, present, in a brief space, some 
 of the incidents and some of the principles which regulate the relation 
 between the trustee and his cestui que trust. 
 
 A trustee having accepted the office cannot, by his own act, and with- 
 out the authority of the court, renounce it.' Being an office of personal 
 confidence, he cannot delegate his authority to others.' When the admin- 
 istration of the trust is committed to more than one person, without an 
 express authority for the majority to act, all must join in the adminis- 
 tration of the trust, ^nd if one refuses to act, the trust devolves upon the 
 court.' On the death of one trustee, the trust vests in the survivor. 
 Trustees are not liable for each other's default in which they have not con- 
 curred. And they can derive no advantage from the office, save the per 
 centage allowed by law, ai^d their actual and necessary expenses.* 
 
 It is under this last rule that a trustee is disabled to purchase, for his 
 own benefit, at a sale of the trust property. The principle is not con- 
 fined to mere technical trustees, but extends to all persons who act in a 
 representative capacity, and whose business it is to protect the interest of 
 others, such as executors and administrators, guardians, attorneys, general 
 and special agents, committees of the estates of lunatics, and the like. In 
 short, as was said in one of the cases, no person can become a purchaser 
 of an interest in property, where he has a duty to perform which is incon- 
 sistent with the pharacter of a purchaser .= But this subject is sufficiently 
 discussed under other heads.' It has already been sdfficiently shown, 
 that no act of the trustee can deprive the cestui que trust of his equity 
 to have the benefit of all that has been done in apparent execution of the 
 trust. And hence he may, of course, and without alleging actual fraud in 
 the particular instance, ask for a resale of the property ; and whether the 
 property was, or was not, worth more than the amount bid by the trus- 
 tees, is a matter which is never inquired into. The rights of the cestui 
 
 ' Ornger v. Halliday, 11 Paige, 314. § 68. Meacham v. Sterns, 9 Paige, 898. 
 
 Matter of Van Wyok, 1 Barb. Gh.K. 665. Green v. Winter, 1 J. Oh. E. 26. Mum- 
 
 ' Bro. Max. 665. Ingram v. Ingram, ford v. Murray, 6 id. 1. Van Home v. 
 
 3 Atk. 88. 2 Kent's Com. 633. Bac. Abr. Fonda, 5 id. 388. 
 
 tit. Grant, E. (6,) p. 517, Buvi^r's ed. ' Torrey v. The Bank of Orleans, 9 
 
 ' Matter of Wadsworth, 2 Barb. Oh. E. Paige, 660. Van Epps v. Van Epps, id. 
 
 881. Burrill v. Shiel, 2 Barb. S. 0. E. 288, 241. Oram v. Mitchell, 1 Sandf. Ch. 
 
 467. E. 251, 256. Dobson v. Eaoey, 3 id. 61. 
 
 * Lewen on Trustees, 260. 2 E. 8. 93, • Chap. JII, Of Fraud, Sec. 2. 
 
Ch. 7.] Implied Trusts. 613 
 
 que trust would be ineffectually protected, unless lie had his option to 
 affirm the purchase, or have a resale of the property.' 
 
 In performing the duties of the office, it is a requirement no less of 
 sound morals than of law, that the trustee should be faithful to his trust.* 
 This fidelity -ffill, in general, be exhibited in the seasonable reduction of 
 the property to the possession of the trustee, the safe custody and proper 
 investment of it, and the due application of the trust fund to the purposes 
 of the trust. With respect to executors and administrators, these duties 
 are, with us, declared by statute, in substantial conformity to the require- 
 ments of the common law.' But while a trustee or executor is in general 
 only answerable for his own default, it is nevertheless his duty to see that 
 the funds in his possession do not pass improperly into the hands of his 
 co-trustee. In such a case, if a loss ensue, both trustees are alike 
 answerable.* 
 
 If the trust funds in the hands of the trustee are not needed for the 
 purposes of the trust, it is the duty of the trustee to make the fund pro- 
 ductive to the cestui que trust, by the investment of it in some proper 
 security.^ With regard to what shall be deemed proper security, the 
 general rule is, that the trustee must not rest on personal security, and 
 if he does, it is at his own hazard. On one occasion. Lord Kenyon said, 
 that it was never heard of that a trustee could lend an infant's money on 
 private security. If he does, and takes, a bond, with personal security, 
 he must be responsible if the obligors become insolvent, though they were 
 in very ample circumstances at the time the money was lent.' And this 
 doctrine seems to be indisputably settled, both in England and in this 
 country.' And Chancellor Kent said, in Smith v. Smith,, (supra,) that 
 he had no doubt it was a wise and excellent general rule, that a trustee 
 loaning money, must require adequate real security or resort to the 
 public funds. The foregoing rule is based upon the assumption that no 
 particular mode of investment is pointed out in the instrument creating 
 the trust. If, for example, executors or other trustees are directed by 
 the instrument creating their authority, to make investments in any spe- 
 cified security, it is their duty to conform to it. In England, it is said, 
 
 ' See cases under pieceding note, and ' De Peyster v. Olarkson, 2 Wend. 77. 
 
 Davou V. ranning,-3 J. Ch. E. 252. Mi- Smith v. Smith, 4 J. Ch. K. 284. 
 
 ohoud V. Girod, 4 How.' S. 0. E. 503, 553. " Holmes v. Dring, 2 Cox. 0. 1. 
 
 ' 1 Oor. iv. 2. ' Id. Pocook v. Eeddington, 5 Ves. 
 
 » 2 E. S. 82, 87, &c. 2 Will. Ex. 640, 799. Terry v. Terry, Prec. in Chan. 
 
 658 et seq; 273. Wilkes v. Steward, Cooper's Eq.E. 
 
 ' Monell V. Monell, 5 J. Ch, E. 283. 6. Sinith v. Smith, 4 J. Ch. E. 284. 
 
 Mumford v. Murray, 6 jd. 1. Ackerman v. Emott, 4 Barb. 626. 
 
4l4 Trusts. fdh. T. 
 
 liHat where trustees are expressly authorized to lend on real securities^ 
 they must be careful not to advance more than two thirds of the real value 
 of the estate, if it be freehold land ; or, if the property consist of houses, 
 or be otherwise of a fluctuating or deteriorating character, they would 
 not be justified in advancing so much. And they are precluded from 
 lending on mortgage to one of themselves.' 
 
 The trustee, before parting with the trUst property to another, skaali 
 ascertain the right of the party to it. If there be different claimants to 
 it, or there be reasonable doubts as to which of several persons has the 
 rightful legal claim, it is always in the power of the trustee, by a proper 
 application, to obtain the direction of the court. In some cases, an inter- 
 pleader is the proper remedy, the doctrine of which will be found in its 
 proper place. 
 
 Though a trustee has no right to delegate his trust, and if he does s' 
 he is himself liable, this does not prevent him from resorting to the 
 usual and ordinary means of collecting and remitting funds." 
 
 A trustee should keep his accounts. of the transactions in relation to 
 the trust, separate from those of his own private affairs, and should never 
 mingle the trust funds with the individual payments and disbursements 
 of his own business. Where no accounts have been kept, the court will 
 not suffer a trustee to go into a conjectural estimate to show the necessity 
 of his having broken in upon the capital.' And where a trustee uses the 
 trust funds, or mingles' them with his own, he is chargeable with interest. 
 And so, also, if he has been negligent in not paying the fund over, or 
 properly investing it.' But he is not chafgeable with imaginary values, 
 or with more than he has received, unless there is evidence of gross neg- 
 ligence, amounting to willful default.' And where the litigation arises 
 from the neglect of the trustee to keep proper accounts, and from his 
 misapplication of the funds, he is chargeable with costs." 
 
 It results from what has been Said that the remedy of the cestui que 
 trust, for a violation of duty by the trustee, is in equity. The latter can 
 be compelled to perform the trust, and to render an account of his admin- 
 istration of the trust estate, and to make good any deficiency ; and final- 
 
 ' Stickney v. Sewell, 1 Myl. & 0. 8. Munrray, 6 id. 17. Olarkson v. De Peys- 
 
 'Knightv. Lord Plymouth, 3 Atk. 480. ter, Hopk. 424. Hart v. Ten Eyok, 2 
 
 ' Teague v. Dendy, 2 MoOord's Ch. R. J. Ch. R. 108. Miimford v. Murray, 6 id. 
 
 212. 452. Monell v. Monell, 5 id. 296. 
 * Dunscomb v. Dnnscomb, 1 J. Ch. » Osgood v. Franklin, 2 J. Oh. R. 1 ; 
 
 E. 516. Manning v. Manning, id. 527. S. 0. n J. R. 522. 
 
 Brown v. Rioket, 4 id. 805. Mumford v. " Sp6noer v. Spencer, 11 Paige, 299. 
 
CL 7.] Implied Trusts, 615 
 
 ly, if necessary, can be removed from office for his misconduct. But 
 ■while the rule of courts of equity is thus severe, in cases of gross delin- 
 quency,»it will, nevertheless, afford to the trustee, acting in good faith, a 
 prompt indemnity for his necessary disbursements and expenses, and 
 afford him a lien on the trust property for them.^ He is also entitled to 
 the fees prescribed by law.^ 
 
 ' Murray v. De Eottenham, 6 J. Oh. E. ' 2 K. S. 93, § 68. Meacham v. Sterns, 
 62. 9 Paige, 398. 
 
CHAPTER VIII. 
 
 OF THE PHOTECTION AFFORDED BY COURTS OF EaUITT TO PERSONS 
 LABORING UNDER DISABILITY. 
 
 THE jurisprudence of any country would be extremely defective, if it 
 possessed no tribunal with jurisdiction adequate to afford protection 
 to those who are laboring under natural or civil disabilities. The weak 
 would be at the mercy of the strong ; and those who were disabled by 
 natural causes, or by other means, from managing their own affairs, 
 would fall victims to the cupidity of the artful and designing. 
 
 Under the class of persons, thus more or less needing the protection 
 of the law, may be ranked Infants, Married Women, and Idiots 
 and Lunatics. We shall devote this chapter to the consideration of the 
 jurisdiction of courts of equity over this class of persons. 
 
 SECTION I. 
 
 OF INFANTS. 
 
 Whatever may have been the origin of the jurisdiction of the 
 court of chancery, over the property and persons of infants, it was firmly 
 established in England, long before the colonization and settlement of 
 this country,' and has been constantly exerted in this state from the 
 first foundation of the court." 
 
 The jurisdiction in question may be appropriately treated under the 
 heads of the guardianship, the maintenance and the marriage of in- 
 
 ' 2 Fonb. Eq. B. 2, oh. 2, § 1, notes. ' Mercein v. The People, 25 Wend, 104, 
 
 per Paige, J. 
 Eq. Jue. 78 
 
 (617) 
 
618 Op Persons under Disability. [CL 8j 
 
 fants. ■ 1. As a general rule, the father is entitled to the custody of his 
 infant offspring, and when differences exist between the parents, the 
 right of the father is preferred to that of the mother. But he may for- 
 feit the right by misconduct, or lose it by misfortune.' In a compara- 
 tively recent English case, this general rule was pushed out to its extent, 
 and the exceptions much narrowed." In that case, while the infant 
 children of the marriage were in the custody of the mother, and the 
 father was living in adultery with another woman, the court of king's 
 bench, on a habeas corpus sued out by the husband and father, made an 
 order upon the mother to deliver up the children to him. This supposed 
 state of the law was declared by Lord Denman, who concurred in the 
 decision, to be of such a character that all the judges were ashamed of 
 it ; and it was accordingly soon after changed by act of parliament, so as 
 to restore the mother to her natural rights to an equality with her hus- 
 band, in relation to the care and custody of her children within the age 
 of nurture.' 
 
 It this state the general subject has been on several occasions most 
 thoroughly discussed, and although there is some conflict of opinion, it 
 is believed that the result of the cases, was correctly stated by Paige, 
 senator, to be : that the right of the father to the custody of his child is 
 not absolute, and that such custody is referable to its interest and wel- 
 fare, and is to be selected by the court, in the exercise of a sound judicial 
 discretion, irrespective of the claims of either parent.* 
 
 In those American cases which uphold to the greatest extent the right 
 of the father, it is conceded that it may be lost by ill usage, immoral 
 principles or habits, or by his inability to provide for his children.' When 
 this jurisdiction has been exercised by a court of law, under a habeas 
 corpus, there has been the least tendency to a relaxation of the general 
 rule, and the claim of the father has been sustained with the greatest 
 strictness.' But even in cases of that kind, it was remarked by an 
 eminent judge, that the attention of the court should be principally 
 directed to the benefit and welfare of the infant ; and that this can be 
 better guarded and protected by the court of chancery, under its peculiar 
 jurisdiction, than by a court of law upon habeas corpus.'' Chancellor 
 
 ' The People v. Chegaray, 18 "Wend. * Mercein v. The People, 25 Wfend. 105. 
 
 6.37. The People v. 19 id. 16. ' Id. 101. 
 
 The King v. De Manneville, 6 East, 221. » People v. Mercein, 3 Hill, 400. 
 
 ■Wellesley v. Beaufort, 2 Kuss. Ch. 1. ' Matter of "Waldron, 13 J. K, 421, per 
 
 ' King V. Greenhill, 4 Ad. ^ Ellis, 624. Thompson, Ch. J. 
 
 = The People v. Mercein, 25 Wend. 93, 
 94, 
 
Ch. 8.] Infants. Guardianship. 619 
 
 Kent, in an early case before him on a habeas corpus, remarked that the 
 object of the habeas corpus was to deliver from improper restraint, and 
 not to settle, in a summary way, a question of guardianship ; and that 
 when an infant was too young to form a judgment, then the court is to 
 exercise a discretion for him.' 
 
 The legislature have, however, provided that when husband and wife 
 shall live in a state of separation, without, being divorced, and shall have 
 any minor child of the marriage, the wife, if sue be an inhabitant of this 
 state, may apply to the supreme court for a habeas corpus to have such 
 minor child brought before it. On the return of the writ, the court, on 
 due consideration, is empowered to award the charge and custody of the 
 child to the mother for such time, under such regulations and restrictions, 
 and with such provisions and directions, as the case may require.^ The 
 supreme court is authorized, after the making such order, to annul, vary 
 or modify the same.^ In 1818, an act was passed, and which, as revised 
 in 1830, is still in force, ■*• empowering the chancellor, a justice of the 
 supreme court, or any circuit judge, upon habeas corpus, to deliver to the 
 husband or to the wife who has not joined the society of Shakers, any 
 child of the marriage detained by the said society. By force of this stat- 
 ute, the parent who joins the said society, forfeits the right of custody 
 of the children, in favor of the parent who does not become a member of 
 that society. 
 
 The habeas corpus act, as revised by the legislature in 1830, abrogates 
 the provisions of the common law, in regard to the writ treated of in that 
 article-, except so much and such parts of it as may be necessary to 
 carry into full effect the provisions therein contained ; and requires the 
 proceedings to be in conformity to the act.^ But the chancellor was of 
 opinion, that the power of the chancellor to issue a habeas corpus was 
 not derived solely from the statute, but was an inherent power in the 
 court, derived from the common law.* And he thought, with Chancellor 
 Kent land the judges whose opiilions have been cited, that the writ of 
 habeas corpus is not, either by the common law, or under the provisions 
 of the Revised Statutes, the proper mode of instituting a proceeding to 
 try the legal right of a party to the guardianship of an infant.' 
 
 The principle on which the parental custody of infant children rests, 
 was elaborately discussed in a recent case in the court of errors, by a 
 
 ' Matter of Woolstencraft, 4 J. Ch. E. * L. of 1818, p. 38. 2 E. S. 149, § 4r-7. 
 
 83. The People v. Mercfein, 8 Paige, 47. ' 2 E. S. 573, § 78. 
 
 Matter of McDowell, 8 J. E; 328. ° The People v. Merceln, 8 Paige, 55. 
 
 » 2 E. S. 148, 9, §§ 1, 2. ' M. 
 
 ■ Id. § 3. 
 
620 Of Persons under Disability. [Ch. 8. 
 
 learned senator, since a member of the supreme court." It was shown 
 that by the law of nature, the father has no paramount right to the 
 custody of his child, over its mother ; and that the authority of both is 
 subordinate to that of the state; that there is no parental authority 
 independent of the supreme power of the state ; that the former is derived 
 from the latter ; and the authority of government must be so exercised 
 as to consult the welfare, comfort and interest of the child during the 
 period of its minority. The decision of the court of king's bench in the 
 case of the King v. Manneville, in 1804, already cited, and which was 
 followed in England in numerous other cases down to 1836,' establishing 
 the paramount right of the father to the custody of his infant, in cases 
 where the interest and welfare of the infant called upon the court to 
 commit it to the custody of the mother, was a departure from the earlier 
 cases, and was never the law in this state. 
 
 It is generally supposed that, by the common law, the father could not 
 make a testamentary disposition of the guardianship of his infant children, 
 and was not authorized to do so till the 12 Charles 2, ch. 14. This stat- 
 ute, drawn by Lord Hale, enabled the father, but not the mother, to dis- 
 pose of the guardianship of the child until twenty-one.' Under this stat- 
 ute, it was held by Lord Hardwicke, that the guardianship so created did 
 not terminate till the infant arrived at twenty-one, though he married 
 before that time.* A dififerent rule prevailed with respect to a female, 
 whose guardianship terminated by marriage within age. This statute 
 was adopted in this state,' and was revised in 1830.' By the statute 
 as revised, every father, whether of full age or a minor, of a child likely 
 to be born, or of any living child under the age of twenty-one years and 
 unmarried, is empowered by deed or last will, duly executed, to dispose 
 of the custody and tuition of such child, during its minority, or for any 
 less time, to any person or persons, in possession or remainder. The 
 statute enacts that every such disposition, from the time it shall take 
 effect, shall vest in the person or persons to whom it shall be made, all 
 the rights and powers, and subject him or them to all the duties and 
 obligations of a guardian of such minor, and shall be valid and effectual 
 
 ' Mercein v. The People, 25 "Wend. 103, ' Bao. Abr. tit. Guardians, A. ; of guar- 
 
 104, per Paige. 2 Fonb. Eq. B. 2, pt. 2, dians by statute, 1 Mad. Oh. Pr. 864. 
 
 ch. 2, § 1 and notes. * Mendes v. Mendes, 3 Atk. 625. 
 
 " Ex parte Skinner, J. B. Moore's R. » 1 K. & E. 181. 1 R. L. Of 1813, 868. 
 
 278; of MoOlellan, 1 Bowling's Prac. '2 E. S. 150. 
 Oas. 81 ; .of Ball and Ball, 2 Sim. 85; of 
 the King v. Greenhill, 4 Ad. & Ellis, 624. 
 
Ch. 8.] Infants. Guardianship. 621 
 
 against every person claiming the custody or tuition of such minor, as 
 guardian in socage or otherwise.' 
 
 This right of the father extends only to the appointment of a guardian 
 for his legitimate children, and not to a tiatural child, or to a grand- 
 child,- or to one with respect to whom he stands in looo parentis. The 
 power of appointment of a guardian is not conferred upon the mother, 
 though the fether be dead. In such a case, indeed, she is the guar- 
 dian by nature, but in that character has no right to the personal estate 
 "of her child. The guardianship extends only to the person.' Though a 
 grandfather has -no right to appoint a guardian for his grandchild, yet, as 
 was said by Lord Hardwicke, he may give his estate upon such condition 
 as he pleases ; and there are instances where the grandfather has given 
 his estate to a grandchild, and appointed guardians of his estate and per- 
 son ; and if the father did not submit to the will, the court has made the 
 father's opposition work a forfeiture of his son's estate.* 
 
 There were at common law three kinds of guardianship ; guardian by 
 nature, guardian by nurture, and guardian in socage.' Guardian by na- 
 ture is the father, and on his death the mother.' This guardianship con- 
 tinues to the age of twenty-one years of the child, and extends only to the 
 custody of the person. Guardian by nurture occurs only when the infant 
 has no other guardian, and belongs exclusively to the parents, first to 
 the father and then to the mother, and terminates when the infant arrives 
 at the age of fourteen years, in the case of both males and females. As 
 it is concurrent with guardianship by nature, it is in effect merged in the 
 more durable title of guardian by nature.' Guardian in socage extends 
 both t(J the lands and the person of the infant.' It applies only to such 
 lands as he acquires by descent ; and the common law gave this guardi- 
 anship to the next of blood of the infant to whom the inheritance could 
 not possibly descend. This^guardianship ceases when the child arrives 
 at the age of fourteen. Unless he fails at that time to select another guar- 
 dian, in which latter case it extends till the infant arrives at the age of 
 twenty-one years. This guardianship in socage cannot arise unless the 
 infant is Sfiised of lands held in socage. It has gone into disuse, and can 
 
 ■ 2 E. S. 160, § 2. V. Stone, 7 id. 354. 2 Fonb. B. 2, pt. 2, 
 
 » Fnllerton v. Jackson, 5 J. Ch. E. 278. ch. 2, § 2, n. h. 
 
 ' Hyde v. Stone, 7 Wend. 354. Genet • Oo. Litt. 88 b. 
 
 V. Talmadge, 1 J. Ch. E. 3. ' Id. 
 
 ' make V. Leigh, Ambl. 306. 5 J. Oh. « Byrne v. Van Hoesen, 5 J. E. 66. 
 
 E. 278. Jackson v. Vredenberg, 1 id. 159, 168. 
 
 ' Oombs V. Jackson, 2 Wend. 153. Jackson v. De Walts, 7 id. 157. 
 Fouda V. Van Home, 15 id. 631. Hyde 
 
622 Of Persons under IhsABiLtTY. [Oh. 8, 
 
 hardly be said to exist in this country. The substitution of allodial for 
 socage tenures, and the change of the law of descent, would seem to be 
 incompatible with guardianship in socage.' Nevertheless it has been 
 provided by the Revised Statutes, that where an estate inlands shall be-* 
 come vested in an infant, the guardianship of such infant, with the rights, 
 powers and (Juties of a guardian in socage, shall belong, ] st to the father 
 of the infant ; 2d, if there be no father, to the mother ; 3d, if there be 
 no father or mother, to the nearest and eldest relative of full age, not 
 being under any legal incapacity ; and as between relatives of the same 
 degree of consanguinity, males shall be preferred. To every such guar- 
 dian, all -statutory provisions that are or shall be in force, relative to 
 guardians in socage, shall be deemed to apply. But it is further pro- 
 vided, that the rights and authority of every such guardian &hall be super- 
 seded in all cases when a testamentary or other guardian shall have been 
 appointed under the provisions of the third title of the eighth chapter of 
 part second;' that" is, by the deed, or last will of the father of the infant, 
 or in default thereof, by the ' surrogate of the county where the minor 
 resides. 
 
 There are, in truth, now but two kinds of guardians in this state — one by 
 common law, and the other by the statute. The guardian by statute, is 
 that appointed by the deed or last will of the father, or in his default, by 
 the surrogate of the county where the minor resides.' The surrogate 
 has no jurisdiction to appoint a guardian for an infant in the lifetime of 
 the father ; nor has he a right to appoint against the nomination of the 
 infant if he be of the age of fourteen years, or upwards ;* nor without 
 notice to the relatives of the infant if he be under the age of fourteen 
 years, and there be any relatives resi-ding in this county where the appli^ 
 cation is made.' His power is essentially one of exclusion, if the nomi- 
 nation be deemed unsuitable, whether it be made by the minor or hia 
 relatives. 
 
 The guardian appointed by the surrogate has the same power as is 
 possessed by a testamentE|,ry guardian. And the surrogate,- having ac- 
 quired jurisdiction of the subject, has the same power to allow and appoint 
 guardians, as was possessed by the chancellor, and as is now possessed by 
 the supreme court, to whi<;h the general chancery jurisdiction has been 
 assigned by the constitution.' 
 
 ' Const. 1846, art. 1, §§ 12, 13. IR.S. • 2E. S. 150, §5. Morehouse v. Oooke, 
 
 V18. 1 Hopk. 226: Underhill v. Dehnis, 9 
 
 » 1 E. 8. 718. 2 id. 150. Paige, 202. 
 
 • 2 R. S. 150. * 2 R. 8. 151, § 6. Qnere, whether he 
 
 * Sherman v. Ballon, 8 Oowen, 804. has a right to appoint against the nomi-' 
 
Ch. 8.] Infants. Guardianship. 623 
 
 The mode of practice before the surrogate in this respect, and of appeal 
 from his orders to the supreme court, belong to treatises of another kind. 
 It may be proper to add, that for greater caution the legislature have 
 declared that every guardian in socage, and every general guardian, 
 whether testamentary or appointed, shall safely keep the things that he 
 may have in his custody belonging to his ward, and the inheritance of 
 his ward, and shall not make or suffer any waste, sale or destruction of 
 such things, or of such inheritance, but shall keep up and sustain the 
 houses, gardens, and other appurtenances to the lands of his ward, by and 
 with the issues and profits thereof, or with such other moneys belonging 
 to his ward as shall be in his hands, and shall deliver the same to his 
 ward, when he comes to his full age, in as good order and condition at 
 least, as such guardian received the same, inevitable decay and injury 
 only excepted ; and he shall answer to his ward for the issues and profits 
 of real estate, received by him, by a lawful account.' The guardian who 
 makes or suffers any waste, sale, or destruction of the inheritance of his 
 ward, shall lose the custody of the same and of his ward, and shall forfeit 
 to the ward treble damages.* 
 
 The various species of guardian which have been mentioned, have been 
 superseded, in practice, by the guardian appointed by the court of chan- 
 cery, in this state, and since 1846, by the supreme court under its 
 chancery powers, or by the guardian appointed by the surrogate, or by 
 testamentary guardians. The latter are not very common ; and although 
 the surrogate's court affords a convenient jurisdiction forthe appointment 
 of guardians, and the bringing them to account, in the cases falling 
 within its province, yet the jurisdiction of the supreme court, as a court 
 of equity, possessing the general jurisdiction of the late court of chancery, 
 over minors and their estates, is the most fit tribunal for the exercise of 
 this authority. Its power in this respect is general, and has been long 
 and unquestionably settled.^ 
 
 It is owing to this general jurisdiction that the late court of chancery, 
 and now the supreme court, may discharge or change a guardian appoint- 
 ed by the surrogate, or a testamentary guardian appointed by the father.* 
 
 nation of the minor ? Sherman v. Ballon, ' Id. 
 
 8 Cowen, 804, which arose under tlie act ' De Manneville v. De Manneville, Ip 
 
 of 1813, (1 R. L. 454, § 30,) and which did Ves. 63. Eyre v. The Countess of Sh^ffis- 
 
 not contain the provision of 2 K. S. 151^ bury, 2 P. Wms. 118. , 
 
 § 6. White V. Pomroy, 7 Barb. 640. ' * Ex parte Crumb, 2 J. Oh. E. 439. 
 
 ' 2 E. B. 163. Matter of Andrews, 1 id. 99. 
 
624 Of Persons under Disability. [Oh. 8, 
 
 It has been repeatedly held that such guardians are as much under the 
 superintendence of a court of equity as a guardian in socage.' 
 
 The ground on which courts of equity act, in these cases, is upon its 
 general jurisdiction over infants and their estates, and upon the doctrine of 
 trusts. A guardian, by whomsoever appointed, is but a trustee, and in 
 that character is amenable for a breach of trust to the court of chan- 
 cery, and, like other trustees, liable to be displaced, and to have another 
 appointed in his stead." Independently of the statute, the surrogate has 
 no jurisdiction over the guardian,>appointed by him, as a trustee, but he 
 is clothed with authority by the Revised Statutes to call him to account, 
 and to remove him for misconduct or incompetency, and to appoint 
 another.' The supreme court has jurisdiction in this matter, at common 
 law, and independently of the statute, whether the guardian be appointed 
 in the one way or the other. 
 
 The insolvency of the guardian and of one of his sureties, has been 
 held to be a sufficient cause for his removal.* So, it seems, is a gross 
 mismanagement of the trust estate. Intemperance of the guardian is 
 also a good ground for his removal.^ 
 
 A guardian has the legal power to sell or dispose of the personal estate 
 of his ward, in any manner he may think most conducive to the purposes 
 of the trust ; and a purchaser who deals fairly has a right to presume 
 that he act? for the benefit of his ward, and is not bound to inquire into 
 the state of the trust, nor is he responsible for the faithful application of 
 the money, unless he knew, or had sufficient information at the time, that 
 the guardian intended to misapply it, or was in fact, by the very trans- 
 action, applying it to his own purposes.' 
 
 With respect to the real estate of the ward the rule is different. The 
 guardian has no power or control over it, farther than a^ concerns the 
 rents and profits.' He may lease the lands of his ward, during his minor- 
 ity, but no longer.^ He cannot, without leave of a court of equity, change 
 the nature of the estate, by turning re^l estate into personal, or personal 
 into real.' 
 
 The trust -of the guardian is not satisfied by the mere preservation of 
 
 ' Beaufort v. Berty, 1 P. Wms. 704. * Matter of Cooper, 2 Paige, 84. 
 Eyre v. Countess of Shaftsbury, 2 id. 107. ' Kettletas v. Gardner, 1 Paige, 488. 
 Wellesley v. Beaufort, 2 Euss. Ch. E. 1. • Field v. Soliieffelin, 7 J, Ch. E. 150. 
 
 = Beaufort v. Berty, 1 P. Wms. 704. ' Genet v. Talmadge, 1 J. Oh. R. 661. 
 
 Frederick v. Frederick, id. 721. 1 R. S. 2 E. S. 158, § 20. 
 780, § 70. Disbrow v. Henshaw, 8 Cowen, * Pond v. Curtis, 7 Wend. 45. 
 849. »Id. 7J.Ch.l54. Inwood v. Twyne, 
 
 " Matter of Andrews, 1 J. Oh. R. 99. Ambl. 419. 
 2 R. S. 152, §§ 12, 14-17. 
 
Ch. 8.] Infants. Guardianship. 625 
 
 the property of the ward, with its accumulations. While it is his duty 
 to keep the money of his ward where it will be productive, and to apply 
 the interest only, if sufficient, to his maintenance and the proper expen- 
 diture of the trust,' he should not support his ward in idleness, when he 
 is capable of earning his own living,' unless he is preparing for future 
 usefulness by obtaining an education.' This rule depends much on the 
 social position, wealth and prospects of the ward. 
 
 The parent or guardian has the right to change the domicil of his child 
 or ward, provided such change is in good faith ; but this right is subordi- 
 nate to that of the court of chancery to prevent an improper removal of an 
 infant out of the state. The court, however, will not interfere with the 
 natural right of a parent over his child, except in a very special case.* 
 Where a father appointed a testamentary guardian for his children, who 
 were all under the age of seven years, and directed the guardian to re- 
 move them to the state of Ohio, and to invest their property there upon 
 certain trusts which were illegal by the laws of New- York where the 
 children were residing with their father at the time of his death, and the 
 widow refused to go with them to the state of Ohio, and asked to have 
 them remain with her in this state, the court restrained the guardian 
 from taking the children from their mother, and removing them out of the 
 state, until further order.' 
 
 Where a testamentary guardian holds a fund for the sole benefit of his 
 wards, in his character of guardian, to be invested for their use, the court 
 of chancery may change the investment from that which is directed by 
 the testator, where it is for the benefit of the infants that such change 
 should be made, even without the consent of such guardian.' 
 
 From the relation that the guardian stands to his ward, it is obvious 
 that the interest of the latter would not be safe if dealing with the trust 
 property by the guardian were not .viewed with jealousy. We have 
 shown elsewhere that the trustee cannot make purchases where his inter-, 
 ests and duty conflict. And the cestui que trust has a right to affirm the 
 sale and hold the trustee to his bargain, or to disaffirm it-, and have the 
 property resold. The same rule applies to the relation of guardian and 
 ward.' 
 
 _ While the guardian is thus prevented from speculating in the trust 
 estate for his own benefit, and was formerly deprived of all compensation, 
 
 ' De Peyster v. Clarkson, 2 Wend. 77. ' ■Wood v. Wood, 5 Paige, 596. 
 
 Roberts v. Jackson, 3 Yerg. 77. ' Id. 
 
 = Clark V.Clark, 8 Paige, 158. 2Fonb. " Wood v. Wood, 5 Paige, 596. 
 
 Eq. B. 2, pt. 2, ch. 2, § 3, ' Ante, 186, 607. 
 
 "Id. 
 
 Eq. Jvb. 79 
 
628 Of Persons tinder Disability. fCL S. 
 
 except a mere mdemnity for his expenses, the Revised Statutes have since 
 allowed to him, in addition to his expenses, the same rate of compensation 
 that is allowed to executors and administrators.' 
 
 2. We proceed now to consider the doctrine of courts of equity with re- 
 spect to the maintenance of infants. This subject may be considered 
 with reference to the power of the court at common law, and its power 
 under the statute. 
 
 It is laid down, as a general rule, that a parent at common law is under 
 a natural obligation and duty to furnish necessaries for his infant chil- 
 dren, and has a correspondent right to their services while such sup- 
 port is afforded.' The law of nature, which requires the parent thus to 
 support his infant offspring, designates his own house as the place where 
 that duty shall be performed.' Hence, where the parent is willing, to sup^ 
 port his infant child, and a relative without his request, but with his 
 assent, receives his child into his family and supports it as a child of his 
 own, no agreement of tlie father to pay for such support can be implied.* 
 It has been doubted whether, independently of the statutes on the sub- 
 ject, there is.any legal obligation on the parent to maintain his child, 
 and whether a third person affording a support to the child, can maintain 
 an action against the parent for reimbursement, except upon the ground 
 of contract, express or implied.^ 
 
 If the child be of an age sufficient to maintain himself, and be in per- 
 fect health, the court of chancery will not compel the parent to furnish 
 means for the professional education of the infant.' 
 
 The cases in which the court of chancery interferes, with respect to the 
 maintenance of infants, are^ where the infant himself possesses property 
 which may be reached by the court, or where there is a specific fund for 
 maintenance. Even in these cases, if the father is sufficiently competent, 
 the court will give no direction with regard to the infant's maintenance 
 out of his own estate, during the life of the father, unless the circum- 
 stances of the case be peculiar.^ The circumstances which will induce 
 the court to break in upon the property of the infant for his support, 
 during the life of the parent, are, that the parent is totally incapably 
 
 ' 2 E. S. 158, § 22. Id. 93, §68. Mc- 'Id. Van Valkenburgh v. Watson, 13 
 
 Whorter v. Benson, Hopk. 28. J. R. 480. 
 
 " Raymond v. Loyl, 10 Barb. 484. In ' Raymond v. Loyl, 10 Barb. 483. 
 
 the matter of Ryder, 11 Paige, 187. But- » In the matter of Ryder, 11 Paig^ 
 
 ler v. Butler, 3 Atk. 60. 188. 
 
 ' Ohiloott V. Trimble, 13 Barb. 502. ' Jackson v. Jaekson, 1 Atk. 515. 
 
CTi. 8.] Infants. Maintenance. 627 
 
 from poverty ; or from the number of his children he is bordering upon 
 necessity, and the child is in danger of perishing from want." 
 
 It was said on one occasion, by Lord Hardwicke, that where a legacy is 
 given to a child by a relative, the father cannot make use of it in the 
 maintenance of-such child, but must provide for him out of his own pocket. 
 Nor can he set him out in the world, or put him out an apprentice, or 
 clerk, with the money arising from the legacy, and if he does so it shall 
 not be allowed to him.' 
 
 Under what circumstances, or in what manner, and to what extent, the 
 principal of a sum devised to children, after the death of their mother, 
 to whom the interest was payable during life, will be broke in upon, and 
 directed to be paid, by the executors, for their present maintenance and 
 education, being infants, and also for the discharge of debts contracted by 
 the mother for their past maintenance, was considered and discussed by 
 Chancellor Kent ; and he came to t]ie conclusion that where the sum de- 
 vised, was small, the principal might be applied, if necessary ; otherwise 
 the interest only.' He further held that a retrospective allowance for 
 maintenance was admissible, contrary to some early cases before Lord 
 Thurlow, who subsequently changed his opinion.'' And Chancellor Wal- 
 worth, in a more recent case, said, that to entitle the father even to an 
 inqniry as to the propriety of making an allowance for past support, he 
 should State a special case, showing the extent of his means at the time 
 such support was furnished, and the particulars of the extraordinary ex- 
 penditures for the actual benefit of the infant, which created an equitable 
 claim in his favor.^ The application therefore is not, it should seem, a 
 matter of course, but depends on the peculiar circumstances of the case. 
 
 The gro'und on which courts of equity interfere, and make allowances 
 in matters of this kind, is the general good of the infant 5 and the power 
 of the court, in this respect, springs from its general jurisdiction over 
 infants and their estates. It is a settled principle of the court of chan- 
 cery, said the chancellor, in a recent case,' " not to allow maintenance on 
 
 ' Butler v. Butler, 3 Atk. 60. Cud- Iredell's Eq. R. 3S4r. In the matter of 
 
 worth V. Thompson, 3 Desaua. 258. Burke, 4 Sandf. Ch. E. 617. 
 
 '■ Darley v. Darley, 3 Atk. 399. " Matter of Bostwiok, 4 J. Oh. E. 104. 
 
 ' Matter of Bostwiok, 4 J. Ch. E. 100. Session v. Shaw, 9 Ves. 285. Chalmers 
 
 Harvey v. Harvey, 2 P. "Wms. 21. Bar- v. Goldwin, 11 "Ves. 1. Maherly v. Tur- 
 
 low V. Grant, 1 Vera. 255. "Walker v. ton, 14 Ves. 499. 
 
 "Wetherell, 6 Ves. 474. McDowell v. ' In the matter of Kane, 2 Barb. Oh. 
 
 Caldwell, 2 McCord's Ch. E. B8. Teague E. 380. Ex parte Bond, 2 Myl. & K. 439. 
 
 V. Dendy, 2 id. 211. Sweet v. Sweet, ° Matter of Kane, supra. 
 Speer's Eq. E. 809. Long v. Norcom, 2 
 
628 Of Persons under Disability. [Oh. 8. 
 
 behalf of infants, out of tbeir property, unless it will be for their benefit 
 to order such allowance. And it is not for the benefit of the infants to 
 direct an allowance out of their general estate when they have any other 
 sufficient provision for their maintenance, or a right which can be enforced,, 
 to d'emand it from other sources. The court, therefore, will not direct an 
 allowance to the father of the infants out of their estate, when he is of 
 sufficient ability to maintain and bring them up without it, in reference 
 to their situation and prospects in life ; having a due regard to the claims 
 of others upon his bounty.'^ Lord Bldon said, in a celebrated case, towards 
 the close of his judicial administration, " The court considers the duty of 
 the father imposes thus much upon him, that if he be himself of ability 
 to maintain his Children and to provide for them according to their ex- 
 pectations, be their fortunes what they may, it says you shall provide for 
 them out of your own means, and not encroach upon the property of the 
 children."' 
 
 There is a qualification of this rule which Lord Eldon notices in the 
 sajme case, that where the court takes away from the father the care and 
 Custody of his children,' it is not in the habit of calling, in aid of their 
 own means, the property of the father." But this supposes their own 
 means to be ample. 
 
 An' allowance for maintenance will not be made until that which has 
 been provided by the testator has been exhausted. Thus, where a testa- 
 tor bequeathed an annuity to his widow, during the minority of his 
 children, together with a distributive share of his estate, after that 
 period, in Meu of dower, and for the further purpose, and upon the ex- 
 press trust, that she should take care of, educate and maintain the 
 children during their minorities, it was held that the court was not 
 authorized to order a further allowance to be made out of the infants' es- 
 tates to the widow, for their support, until the fund bequeathed to her for 
 that purpose was exhausted.' 
 
 Maintenance for infants can only be allowed by the court out of funds 
 belonging to them. It cannot be charged upon the property of other 
 persons. But where a fund is given absolutely to sevei'al infants as a 
 class, with the benefit of survivorship, if either of them dies before the 
 time appointed for the distribution of the fund, as the chance of survi- 
 vorship is equal, the court may allow maintenance out of the fund, for the 
 
 ' Wellesley v. Beaufort, 2 Buss, K. 28. » Matter of Davidson, & Paige,, 186'. 
 "Id. 
 
Ch. 8.] Infants. Maintenance. 629 
 
 benefit of the infants equally, while all who are interested therein continue 
 to be minors." 
 
 The husband: is not bound to- maintain his wife's children by a former 
 husband,^ nor is the mother, married to a second husband, obliged to 
 jsnaintain the children by her first husband ; but is entitled to an allow- 
 • anee for maintenance from the interest of- their fortunes.' 
 
 The cases which have been considered, are where the order for 
 maintenance has been made out of the income of the infant's property ; 
 or where the capital of his personal property has been broken into. In- 
 dependently of the statute, the court of chancery had no power to direct 
 the sale of infants' real estates for their support, education or maintenance.^ 
 
 The necessity of reaching the real estate of infants for their own sup- 
 port was often felt, and occasional relief was granted by special acts of 
 the legislature, applicable only to particular cases. These applications 
 becoming frequent, the legislature, at length, in 1814, passed a law, 
 authorizing the chancellor, upon the application by petition of an infant 
 by his next friend, or of the guardian of such infant, to direct a sale of 
 the real estate of the infant, if he should deem it proper, for the main- 
 tenance or education of such infants. = In the following year,^ the power 
 was so enlarged as to authorize the court, on a like application, to direct 
 a sale, if it should satisfactorily appear to the chancellor that the interest 
 of the infant would be promoted thereby ; but it provided that nothing 
 contained in the act should authorize the sale or disposition of any lands 
 or term, against the provisions of any last will or conveyance. Under 
 these statutes, the chancellor h^ld, in 1824, that a sale of real estate 
 should not be ordered on account of an expectation of an increased in- 
 come, but there should be some special reasons showing the propriety of 
 the sale.'' This led to a modification and increase of the power devolved 
 upon the court ; and in the revision of 1830 it was enacted, that whenever 
 it shall appear satisfactorily that a disposition of any part of the real 
 estate of such infant, or of his interest in any term for years, is necessary 
 and proper, either for the support and maintenance of such infant, or for his 
 education ; or that the interest of such infant requires, or will be substan- 
 tially promoted by such disposition, on account of any part of his said prop- 
 erty being exposed to waste and dilapidation, or on account of its being 
 
 ' Ex parte Kebble, 11 Ves; 604. Errat * Eogers v. Dell, 6 Hill, 415. Baker Vi 
 
 V. Barlow, 14 id. 202. Turner v. Turner, Lorillard, 4 Comst. 266. 
 4 Sim. 430. ' L. 1814, p. 128. 
 
 ' Gay V. Ballou, 4 "Wend. 403; « L. of 1813, p. 103. 
 
 ' Billlngsley v; Critchet, 1 Bro, 0. 0. ' Matter of Mason,- Hopk. 122. 
 268. 
 
630 Of Persons under Disability. [Ch. 8. 
 
 wholly unproductive, or for any other peculiar reasons or"circumstances, 
 the court may order the letting for a term of years, the sale or other dis- 
 position of sijch real estate or interest, to be made by such guardian or 
 guardians so appointed, in such manner, and with such restrictions, as 
 shall be deemed expedient.' A subsequent section forbids the. sale or 
 other disposition against the provision of any last will, or of any convey- 
 ance by which such estate or term was devised or granted to such infant. 
 The jurisdiction over such sales was originally given to the chancellor 
 alone. Under the constitution of 1821, the same power was conferred on 
 the circuit judges and vice chancellors. The constitution of 1846, hav- 
 ing abolished those courts, vested the same jurisdiction in the supreme 
 court, with power in the legislature to confer upon the county judge, 
 equity jurisdiction in special cases. And by the Code of Procedure, the 
 sale, mortgage, or other disposition of the real property of an infant, situ- 
 ated within the county of the county judge, is made a part of the juris- 
 diction of that office.'^ So that the county judge exercises in his own 
 county concurrent jurisdiction with the supreme court, over this subject. 
 From the multitude of officers to whom this jurisdiction is intrusted, 
 there is great danger that a laxity of practice will prevail ; and theVe 
 certainly cannot be the same uniformity in the proceeding, as when the 
 whole was Supervised by a single tribunal. 
 
 3. We proceed next to notice the jurisdiction of equity over the mar- 
 riage of the infant wards of the court. 
 
 This jurisdiction has, in England, given rise to numerous cases, and it 
 appears that courts of equity there entertain no greater jealousy, nor 
 show more resentment against any thing, than the unlawful marriage of 
 infants.' According to their practice, when an infant is committed by 
 the court to the custody or care of any one, such committee gives a 
 recognizance, that the infant shall not marry without leave of the court, 
 which form is very rarely altered, and then, on special circumstances ; so 
 that if the infant marry, though without the privity, or knowledge, or 
 neglect of the committee, yet the recognizance is, in strictness, forfeited, 
 whatever favor the court, upon application, may think fit to show to such 
 committee, when he appears not to have been in fault.'' No sureties 
 appear to be given, but as the recognizance binds the lands of the guar- 
 
 ' 2 R. S. 195, § 175. ' Eyre v. Countess of Shaftsbury, 2 P. 
 
 ' Const. 1846, art. 6, § 14. Code, § 30, Wms. 111. 
 sub. 6. * Id. 112. Dr. Davis' c&se, 1 P. Wmfc 
 
 698. 
 
CL 8.] Infants. Marriage. 631 
 
 dian, from the time of its enrollment, it is probably an ample guaranty. 
 In this state no such recognizance is required of the guardian appointed 
 by the court of chancery. The practice in the late court of chancery, as 
 prescribed by the rules of the court, was to require from the general 
 guardian of an infant appointed by the court, a bond in a penalty of 
 double the amount of the personal estate of the ward, and of the gross' 
 amount or value of the rents and profits of the real estate during his 
 minority, together with at least two sufficient sureties, each of whom 
 should be worth the amount specified in the penalty of the bond, over 
 and above all debts ; or instead of personal security, the guardian might 
 give security by way of mortgage on unincumbered real property, of the 
 value of the penalty of his own bond only. But the court, in its discre- 
 tion, might vary the security, where, from special circumstances, it migt 
 be found for the interest of the infant.' The condition of the bond in 
 the time of Chancellor Kent and subsequently was, that the guardian 
 should faithfully and justly perform his trust as such guardian, and duly 
 observe such orders as the chancellor should make in the premises in 
 relation to such trusts.'' The condition of the' bond of the guardian 
 appointed by the surrogate is, that he will faithfully in all things dis- 
 charge the duty of a guardian to such minor according to law, and that 
 he will render a true and just account of all moneys and property received 
 by him, and of the application thereof, and of his guardianship in all 
 respects, to any court having cognizance thereof, when thereunto 
 required.' 
 
 Although the form of the security given by the guardian, on his appoint- 
 ment, does not indicate that the ward shall not be permitted to marry 
 without the leave of the court, yet the reasons, in other respects adverse 
 to such marriage, exist here as well as in England ; and the jurisdiction 
 of the court, to prevent the improper marriage of the ward, and to punish 
 those who contribute to bring about such marriage, is unquestionably a 
 part of our jurisprudence.^ This seems to have been conceded by Chan- 
 cellor Kent on several occasions.^ In one case an infant, under the age 
 of 12 years, ignorant of the duties which the marriage if legal would 
 impose, and considering the matter as a frolic, agreed to marry the 
 defendant, a man of the age of 23 or 24 years, and the marriage cere- 
 mony was performed by a Baptist clergyman the same day. The infant 
 
 ' Rule 148 of Ohancellor Walworth. 366. TJdall v. Kenney, 6 J. Oh. R. 464; 
 
 "HoffmanonMaster, 133, 870. Blake's S. C. in Error, 3 Cowen, 590. 
 
 Oh. Pr. 328 et seq. ' Aymar v. Eoff, 3 J. Ch. R. 49. Udall 
 
 » 2 R. S. 151, §■ 8. V. Kenney, 3 Oowen, 590. 
 * Van Duzer v. Van Dozer, 6 Paigs, 
 
632 Op Persons .-under Disability. [Ch. 8. 
 
 then returned to her mother, and being informed of the duties of the 
 marriage state, and what it was in her power to do, immediateily declared, 
 in the presence of a master in chancery, her dissent from the marriage^ 
 and her unwillingness to be bound by it, and her election to liTe under 
 the protection of the plaintiff; and this declaration was reduced to writing 
 and signed by the infant, and attested by the master and others. This 
 declaration was shown to be voluntary and uninfluenced by her parents 
 or others, and was repeated in court, and the marriage disavowed. No 
 meeting, or intercourse of any kind, had taken place between the infant 
 and the defendant. On a bill filed for that purpose, the infant, after an 
 examination in open court, was placed under the protection of the court, 
 as a ward thereof, and the defendant was ordered to refrain from holding 
 any conversation, or from any intercourse, or correspondence, with the 
 said infant, as long as the order remained in force, under the pain of 
 incurring a contempt. As no further order was asked in the case, nothing 
 further was done ; but it appears, by the report, that the chancellor acted 
 upon the doctrine of Lord Hardwicke, in Eyre v. Countess of Shaftsbury, 
 already cited.' 
 
 On another occasion, before the same learned chancellor, on an appli- 
 cation under the act of April, 1814,^ and of March, 1815,^ for the sale of 
 the real estate of a married infant female, the chancellor held that the 
 acts in question were not applicable to the sale of the real estate of the in- 
 fant wife, as it was never the practice of the court to appoint a guardian 
 to an infant feme covert. The guardianship of the daughter, he observed, 
 determines with her marriage ; and there was no instance in which a 
 guardian had been appointed to a female infant after marriage.' And he 
 intimated a concurrence of opinion with Lord Eldon, that a female ward 
 of the court was not discharged, upon her marriage, from the protection 
 of the court, without a special order to that effect. = 
 
 Though, as intimated by Chancellor Walworth, the guardianship of the 
 infant wife belongs to the husband, it by no means follows that an infant 
 female, a ward of the court, may marry without its consent.* 
 
 The occasions for the interference of the court of equity in relation to the 
 marriage of wards of the court have, in this country, been rare.. But the 
 necessity of the jurisdiction, and the policy of the exercise, are the same 
 in all countries, where a due regard is had to the marriage relation. In 
 
 ' 2 P. Wms. Ill, 102. ' Mendes v. Menaes, 8 Atk. 625. Belt's 
 
 ' Sess. sr, ch. 108. Sup. 86, 87. Matter of Whittaker, 4 J. 
 
 ' Sess. 88, oh. 106. Oh. E. 880. 
 
 • Matter of Whittoker, 4 J. Ch. R. 380. ° In the matter of Van Oott, 1 Paige, 
 
 Lord Shaftsbury's case, 1 Ves. 160.' . 489. 
 
Ch. 8.] Infants. Marriage. 633 
 
 England it is of frequent occurrence. Lord Bl'don remarked in Wellesley 
 V. Beaufort, in 1827, that a. case came before him not long before, in 
 which an infant of a considerable family, the representative of a very old 
 baronet, was about to be entrapped into a marriage with a young woman, 
 the daughter of a common bricklayer ; the court would not allow that to 
 take place, and stopped the marriage.' ,The paternal care of the court is. 
 sometimes as essential for the protection of the male, as it more frequently 
 is, for that of the female ward. 
 
 The effect of marriage at common law, upon the personal estate of the 
 wife, presents strong considerations in favor of the interposition of the 
 court in favor of its infant female ward. Accordingly, in England, where 
 infants under the care of the court are upon a treaty of marriage, the 
 consent of the court ought to be obtained. When applied to for this pur- 
 pose, the court generally makes a reference to a master, to see whether 
 the settlement proposed is proper ; and if it is foujid to be improper, the 
 court will not give the infant leave to marry.'' 
 
 The jurisdiction, in cases falling within it, is invariably exercised for 
 the benefit of the ward. When a lady having property in court, marries 
 after she is of age, the court does what it can to obtain a proper provision 
 for her ; having, as there is no contempt committed, no means of enforc- 
 ing a settlement, if the husband does not seek to lay his hands upon the 
 property ; but if the marriage is a contempt, the court, vindicating its 
 jurisdiction, is enabled by imprisonment to compel the husband to make 
 a proper settlement.' 
 
 In considering a question of a contempt for marrying a ward of the court 
 without leave, the court acts upon a distinction between an unsuitable 
 match brought about for the sake of^the property of the ward, and such 
 an one as is between persons of equal rank and condition. In the first 
 case, should a beggar marry the ward, for the sake of her fortune, the 
 court would not permit him to touch it. But if the mairriage, though 
 against the rules of the court, brings together persons of equal rank and 
 fortune, and as considerable a settlement is made by the one as by the 
 other, the equivalent provision made by the husband will be taken into 
 consideration by the court in administering its animadversion.* The 
 usual settlement seems to be, to settle one-fifth of the dividends and inter- 
 est of the property upon the husband, and the residue upon the wife, for 
 her sole and separate use, during their joint lives, with a clause to pre- 
 vent anticipation, and a power to the wife to give another fifth to the hu3- 
 
 ' 2 Knssell, 14. ' BaU v. Ooutts, 1 Ves. <fe B. 299. 
 
 ' Smith V. Smith, 3 Atk. 305. ' Id. 803. 
 
 Eq. Jtjb. 80 
 
634 Of Persons pnder Disability, [Ch. 8. 
 
 band by will ; the residue subject to a provision for maintenance, ta 
 accumulate, and with the principal to go to the children at the ages of 
 twenty-one or marriage ; a power to the wife to charge, by way of appoint- 
 ment to each child, a share not exceeding the share of each child by the 
 first marriage. In case of no children, the husband surviving, the limit- 
 ation is, in default of appointment, to her next of kin, exclusive of the 
 husband.' 
 
 SECTION II. 
 
 OF MAEETED women: AWD HEEEIN, OF DIVOBCE, ALIMONY, ftC. 
 
 In the former part of this treatise, while discussing the doctrine of 
 trusts in mariage settlements, we showed the effect of the marriage, at 
 common law, upon theproperty of the wife ; and the rights created and 
 duties imposed upon the husband by means of that relation. And it was 
 shown that courts of equity, through the medium of the doctrine of trusts, 
 preserved the property of married women during coverture to their sep- 
 arate use, without the control of their husband, and beyond the reach of 
 the husband's creditors." And it was intimated that some other branches 
 of the same subject would fall more naturally under our consideration,, 
 when we came to treat of the protection which courts of equity afforded 
 to married, women, against the disabilities imposed by the strict rules of 
 the common law. • 
 
 Courts of equity, while J;hey fully recognize the marital rights of the 
 husband at law, treat the husband and wife as distinct persons, having 
 capacity, to a certain extent, of contracting with each other, of holding 
 property separate and distinct from each other, and as capable of suing 
 and being sued by each other. 
 
 The most important of these rights ia that which maintains, in favor 
 of the wife, notwithstanding her coverture, the dominion over her prop- 
 erty as a feme sole, with a right of disposition over it during her life, and 
 of transmitting it at her death to the varied objects of her regard, by a last 
 will and testament. The power thus to hold property, real and personal, 
 to her own separate and exclusive use, is often, and perhaps generally, 
 
 ' 1 Mad Oh. Pr.280, 281. Ohassaing v. » Ante, Chap. YH, See. 4, p. 472 et 
 Parsonage, 5 Ves. 17. 4 id. 888. 5 id. seq. 
 898. 8 id. 74. 2 Font. Iq, B. 2, pt. 2, 
 oh. 2, § 1 and notes, , 
 
CL ?.] Married Women. Wife's Eq,xjity. 635 
 
 reserved to her by the marriage articles, or by an actual settlement made 
 before marriage 5 and in that case, the • terms of the agreement regu- 
 late the rights, interests and duties of the respective parties. In like 
 manner, property, real or personal, may be secured to a married woman, 
 for her separate and exclusive use, after marriage ; or it may come to her 
 by inheritance, or by gift, grant, devise or bequest, from any person other 
 than her husband, and under the statute, be held to her sole and sepa- 
 rate use, with a right on her. part to convey and devise the same.' 
 'Through the aid of a court of equity, or without the intervention of trus- 
 tees, her rights are now fully protected, for equity suffers no right to 
 fail for the want of a trustee, but will appoint a trustee, or hold that the 
 husband is the trustee for his wife.'' 
 
 It is proposed now to treat briefly, in the first place, of the equity of 
 the wife to a provisioa in her favor, out of her property, not secured by 
 any marriage settlement, but which the husband cannot reach but through 
 the aid of a court of equity ; and afterwards to notice some other points 
 in which the' rights of married women are protected by the mode in 
 which that court treats the relation of husband and wife. 
 
 The principle was stated by ChanceUor Kent, in an early case before 
 him, that where the aid of a court of equity was requisite to enable the 
 husband to take possession of the wife's property, he must do whp,t is 
 equitable, by making a reasonable provision out of it for her maintenance 
 and that of her children, and without that, the aid of the -court would not 
 be afforded. The practice was stated to be, fot the husband, on a refer- 
 ence, to make proposals xit a settlement before a master, and on the 
 coming in of his report, the court judged of its sufficiency.' In the case 
 before him, the father of the plaintiff's wife died intestate, leaving five 
 children and a large real and personal estate. The bill prayed that the 
 defendant might account and pay over to the plaintiff the amount be- 
 longing to his wife. From the report of the mastel^it appeared that 
 there was a considerable sum in the defendant's hands belonging to the 
 plaintiff's wife as one of the distributees ; that the plaintiff was a mariner 
 and poor 5 that the wife lived harmoniously with him, and was supported 
 by him when he was able, but that he was then out of employment, and 
 she desired the money to remain in the hands of the defendant, who was 
 her brother, where it was safe. The chancellor directed that f 1000 be 
 
 • L. of 1848, p. 307. L. of 1849, p. 854. Mad. Oh. Pr. 376. Strong v. Skin- 
 529. ner, 4 Barb. 546. 
 
 ' Hanolwrd v. Blood, 2 Barb. S. 0. E. ' Howard v. Moffat, 2 J. Oh. E. 206. 
 
636 Op Person^ under Disability. [Gh. 8. 
 
 Becured for the wife and her child, and that the residue, nearly as much 
 more, be paid over to the husband. 
 
 The rule it seems is the same, whether the husband applies to the court 
 himself, or a suit for the wife's debtj legacy, portion, &c. is brought by 
 his legal representatives- The extent of the provision will depend on the 
 circumstances of the case. 
 
 It was in the same case stated, that if the husband could lay hold of 
 the property without the aid of a court of equity, he might do so^ as the 
 court had not the means of enforcing a settlement by interfering with his 
 remedies at law,' This doctrine has been subsequently repeated.* 
 
 The doctrine thus expounded by the chancellor was well settled in 
 England to the same effect, for above a century,^ and has been repeatedly 
 acted upon in this state" 
 
 It may be well, before adverting to the acts of 1848 and 1849, for the 
 more effectual protection of the property of married women, to notice, 
 more at large, the doctrine with respect to the wife's equity existing an- 
 tecedently to those statutes. 
 
 This jurisdiction of courts of equity was first assumed in cases where 
 it was necessary for the husband, or those claiming under him, to apply 
 to the court for assistance in order to obtain possession of the property 
 of the wife ; which assistance the court, acting upon the maxim, that he 
 who asks equity must do equity, withheld, until an adequate settlement 
 was made.5 In consequence of this origin of the jurisdiction, it was 
 thought that the equity of the wife to a settlement was confined to those 
 cases in which the husband, or those claiming under him,- were plaintiffs. 
 But ever since the commencement of the present century, this restriction 
 upon the jurisdiction has been exploded, and the wife has been permitted 
 actively to assert her equity as plajntiff.* In a recent case, a married 
 woman who had left her husband, and was living separate from him, but 
 
 ' Howard v. Mofiatt, 2 J. Ch. R. 208. Van Epps v. Van Dnsen, 4 id. 64. Drum- 
 
 ' tJdall V. Kenney, 3 Oowen, 591. mond v. Magee, id. 318. tJdall v. Kenney, 
 
 " Oxenden v. Oxenden, 2 Vera. 49'4. 5 id. 464. 3 Cowen, 590. Glen v. Fish- 
 
 Bosvill V. Brander, 1 P. Wms. 459. Ja- er, 6 J. Oh. R. 33. Haviland v. Myers, id. 
 
 eobson v. Williams, 2 id. 382. Adams v. 25. Same v. Bloom, id. It8. Carter v. 
 
 Pierce, 3 id. 13. Brown v. Elton, id. 202. Garter, 1 Paige, 463. Smith v. Kane, 2 
 
 Grey v. Kentish, 1 Atk. 280, Jewson v. id. 803. Van Duzer v. Van Dnzer, 6 id. 
 
 Moulson, 2 id. 417. Burden v. Dean, 2 366. Martin v. M:artin, 1 Comst. 478. 
 
 Ves. jr. 607. Oswell v. PTobert, id. 680. ' Bosvill v. Brander, 1 P. Wms. 459. 
 
 Brown v. Clark, 8 id. 166. Lumbe v. " Lady Elibank v. Montolieu, 5 Ves. 
 
 Milner, 5Ves.617. Ball v. Oontts, 1 Vgs; 737. Sturgia v. Champneys, 5 Myl. & 
 
 & B. 800. Murray v. Elibank, 13 Ves. 1, 0. 105. Eedes v. Eedes, 11 Sim. 569v 
 
 * Turrell v. Turrell, 2 J. Oh. K. 391. Hansom v. Keating, 4 Marej 6. 
 
Gh. 8.] Married Women. Wife's Eciuity. 637 
 
 not in a state of adultery, was held to be entitled to a settlement out 
 of a sum of stock to which, her husband had become entitled in her right. 
 The action was brought by her in her own name, against her husband and 
 the trustees, in whom the stock was vested. 
 
 The equity of the wife to a settlement is binding, not only upon her 
 husband, but also upon his assignees in bankruptcy, under the insolvent 
 debtor's act, or under a general assignment for the payment of his debts.' 
 And, notwithstanding the doubts once expressed on the subject, her 
 equity is superior to that of the assignee of the husband for valuable con- 
 sideration.'' 
 
 Originally this jurisdiction of courts of equity was extended in favor of 
 the wife, with respect only to her equitable property, which could be 
 reached by her husband, or those claiming Under him, in no way except 
 through the medium of the court. The principle was afterwards expand- 
 ed so as to embrace all the property of the wife, whether legal or equita- 
 ble, which was the subject of action, or over which the court had acquired 
 jurisdiction.' 
 
 It is also a part of the doctrine on this subject, that whenever a woman 
 insists upon her equity to a settlement, it will always be extended to her 
 children.* In the leading case on this subject, the right of the children 
 to a provision out of the property of their mother, under a decree direct- 
 ing a settlement to her and her children, was upheld by the court, not- 
 withstanding the death of the mother before the report of the master, no 
 act having been done by the mother to waive the equity.' All the cases 
 show that where a settlement is made upon the wife, her children are 
 embraced within it. Nevertheless, the equity to a settlement is strictly 
 personal to the wife. If, therefore, she dies before asserting it, her chil- 
 dren cannot insist upon a settlement. She may also, at any time before 
 the settlement, waive her right to itj and thus defeat the interests of her 
 children. 
 
 The children have no equity of their own. Their equity is obtained 
 through the consent of the mother: It is against the father that the court 
 
 ' Jewson V. Moulson, 2 Atk. 420: ' Milner v. Colmer, 2 P. Wms. 639. 
 
 Burdon v. Dean, 2 Ves. jr. 607. Stnrgis Stnrgis v. Champneys, 5 Myl. & Or. 97. 
 
 V. Champneys, 5 Myl. & Or. 97. Van Hanson v. Keating, 4 Hare, 1. Havi- 
 
 Epps V. Yan Dusen, 4 J. Oh. E. 64. land v. Bloom, 6 J. Oh. E. 178. 
 
 Haviland v. Myers, 6 id. 25. Mnmford * Howard v. Moffat, 2 J. Ch. E. 206. 
 
 V. Murray, 1 Paige, 620. Udall v. Kenney, 3 Cowen, 591. 608. 
 
 ' Macaulay v. Philips, 4 Ves. 19. ' Murray v. Lord Elibank, 13 Ves. 1. 
 "Wright V. Morley, 11 Ves. 12. Udall v 
 Kenney, 3 Cowen, 607, 608. ■ 
 
Op Persons under Disability. [Ch. 8. 
 
 exercises jurisdiction to exclude him from those rights which the law would 
 otherwise give him ; and then the court deals with those rights as 
 between the mother, whose property it is, and as between the children of 
 the marriage, in such a way as may be' thought for the interests of the 
 family.' 
 
 In all cases the equity of the wife is personal, and it arises upon the 
 vesting of the legacy in her. It may be defeated by a voluntary payment 
 by the executors to her husband, who has a legal right to receive it and 
 give a discharge for it. If the payment is to be made through the me- 
 dium of the court, her equity will be enforced, if she desires it, but not 
 otherwise. She may abandon it, in which case her children can claim noth- 
 ing ; and if she claims it for herself, the court requires the benefit to be 
 extended to her children. Her equity and the equity of her children are 
 treated as one equity, to be enforced or not at her option.* 
 
 But suppose the wife dies, leaving children, before the decree, but after 
 the claim to a settlement has been allowed : The question will then arise 
 between the husband, or those succeeding to his rights, and the children. 
 In such a case, the right of the children depends not upon the question 
 whether their mother, had she been living, could have waived the settle- 
 ment, but whether the father was bound by it, at the time of the death of 
 his wife. If the husband is bound, as he would be in the supposed case, 
 the children are certainly entitled.^ In the case just cited, a married 
 woman entitled to a legacy appeared by her counsel at the hearing of the 
 cause, and claimed her equity to a settlement out of the fund. The leg- 
 acy was directed to be carried to the separate account of the husband and 
 wife. The husband was a bankrupt, and his assignee sold his interest in 
 the legacy. The solicitor for the purchaser and for the wife agreed to 
 refer the claim of the wife to their counsel ; and the counsel determined 
 that she was entitled to a settlement of the moiety, subject to the costs. 
 Before any further steps were taken, the wife died, leaving children ; it 
 was held by Sir James Wigram, V. Ch., that the husband and those claim- 
 ing under him were, by the steps which had been taken, bound to allow a 
 settlement of part of the fund upon the wife and children ; and that, upon 
 the death of the wife, the children were entitled to the portion which 
 would have been settled. 
 
 With regard to the amount of the wife's property to be settled, the gen- 
 eral rule is, that one half shall be so settled ; but this is a matter which 
 
 ' Hodgens v. Hodgens, 11 Bligh, N. S. " De la Garde v. Lempriere, 6 Beavan, 
 104, per Lord Oottenham. And see 344. 
 Lloyd V. Williams, 1 Mad. Oh. E. 467. = Lloyd v. Mason, 5 Hare, 189. 
 
Ch. 8.] • Married Women. Wife's Eciuity. 639 
 
 rests mucli in the discretion of the court, which -will take into considera- 
 tion the amount of the wife's fortune, already received by the husband, 
 or any previous settlement which may ha.ve been made.' 
 
 This equity of the wife, it has already been shown, may be waived by 
 . her. It may also be barred by an adequate settlement having been made 
 upon her, but not by an inadequate one, unless it be by an express stipu- 
 lation before marriage. It will constitute a valuable consideration for 
 a post-nuptial settlement by the husband upon the wife, which will be 
 supported in equity as against creditors.'' Where the husband volunta- 
 rily settles upon his wife personal estate, which came to her by descent 
 from her relatives, to no greater extent than the court of chancery would 
 have directed him to do upon a bill filed against him by the wife, to pro- 
 tect her equitable claim to a support for herself and her children out of 
 the same, such voluntary settlement will be sustained as against the cred- 
 itors of the husband ; although it is void as to other property contained in 
 the same conveyance to the trustee.^ 
 
 The wife's equity extends to a debt due to her before marriage, and 
 which the husband has not reduced to possession ; and an execution creditor, 
 coming into a court of equity to reach it, must take it subject to the wife's 
 equity.' Where the husband has violated the marriage contract, or has 
 been guilty of an act which entitles the wife to a decree for a divorce, or 
 a separation and for alimony, she is in equity entitled to a restoration of 
 the property which the husband holds by virtue of his marital rights. 
 And.a court of equityi upon the bill of the wife, filed for the purpose of 
 obtaining a divorce or separation, will not only protect her right to such 
 property as against the husband himself, but also as against judgment 
 creditors, and others who do not stand in the situation of bona fide pur- 
 chasers without notice of her equitable rights, and of her intention to 
 enforce them by a suit for a divorce or separation.' 
 
 So where the husband has married a ward in chancery, without the con- 
 sent of the court or of her legal guardian, the court, upon the ground of 
 the husband's contempt, has jurisdiction to interfere, upon the application 
 of the friends of the infant wife, even without her consent, to i;estrain the 
 husband and his creditors from intermeddling with her estate, until a 
 proper settlement is made for the support of the wife and the issue of the 
 marriage.*" 
 
 ■Jewson V. Moulson, 2 Atk. 423. » "Wiokes v. Clarke, 8 Paige, 161. 
 
 Brown v. Clark, 3 Ves. 166. * Smitli v. "Kane. 2 id. 303. 
 
 » Salway v. Salway, Ambler, 692. ' Van Duzer v. Van Duzer, 6 id. 366. 
 
 Wickes V. Clarke, 8 Paige, 161, 166. "Id. 
 Partridge v. Stevens, 10 Paige, 618, 624. 
 
640 Op Persons under Disability. [Oh. 8. 
 
 But if the husband has been guilty of no contempt in acquiring the 
 legal title to his wife's property, nor of such misconduct as to entitle her 
 to a divorce or a decree, or a decree for a separation from bed and board, 
 equity cannot, upon the application of the wife, interfere with her hus- 
 band's title as tenant by the curte^ initiate in the wife's property, so as 
 to place it beyond his reach or the reach of his creditors, and secure it for 
 the support of the wife and her children.' 
 
 Before noticing some other points, growing out of marriage settlements, 
 and the separate ownership of property secured thereby to the wife, it 
 may be expedient in this place to advert to some recent legislation in this 
 state, which has an important bearing on the subject which we have been 
 discussing. 
 
 The act for the more effectual protection of the property of married 
 women, passed April, 1848, (L. of 1848, p. 307,) enacts, that the real and 
 personal property of any female who may hereafter marry, and which she 
 shall own at the time of marriage, and the rents, issues and profits thereof, 
 shall not be subject to the disposal of her husband, nor be liable for his 
 debts, and shall continue her sole and separate property as if she were a 
 single female. The second section enacts, that the real and personal 
 propetty, and the rents, issues and profits thereof, of any female now mar- 
 ried, shall not be subject to the disposal of the husband ; but shall be her sole 
 and separate property as if she were a single female, except so far as the 
 same may be liable for the debts of her husband, theretofore contracted. 
 And the third section as amended in 1849 (L. of 1849, p. 528) enacts, that 
 any married female may take by inheritance, or by gift, grant, devise or be- 
 quest, from any person other than her husband, and hold to her sole and 
 separate use, and convey and devise real and personal property, and any 
 interest or estate therein, and the rents, issues and profits thereof, in the 
 same manner and with the like effect as if she were unmarried, and the 
 same shall not be subject to the disposal of her husband, nor be liable 
 for his debts. This statute has been held to be prospective, and, so far 
 as it may be supposed to affect rights already vested in the husband by 
 the marriage, to be unconstitutional and void." Though it has been spoken 
 of in some of the cases' as an unwise innovation, it is believed that its 
 wisdom and policy will be vindicated by subsequent events, if it be prop- 
 erly administered. 
 
 ' VanDuzerv.VanDuzer, 6Paig6,366. ' HolimSs v. Holmes, 4 Barb. 299, per 
 
 " Holmes v. Holmes, 4 Barb. 295. Barcnlo, J. American Home Missionary 
 
 White V. Whitej 5 id. 474. Snyder v. Society v. Wadham, 10 id. 606, per 
 
 Snyder, 8 id. 621. Perkins v. Oottrel, Taylorj J. 
 
 15 id. 446. 
 
Cli. 8.] Married Women. Separate Property. 641 
 
 One effect of the act is to take from the husband the means of paying 
 the debts contracted by the wife before marriage. At common law the 
 obligation to discharge the legal liabilities of the wife, before marriage, was 
 compensated by the provision which vested the personal property and 
 choses in action of the wife, in the husband, by virtue of the marriage. 
 The apparent injustice of leaving the husband liable for his wife's debts, 
 while the means of payment which the common law afforded was withheld, 
 has been removed by the act of 1853,' which permits actions to be main- 
 tained against the husband and wife jointly, for any debt of the wife con- 
 tracted before marriage, but directs that the execution on any judgment in 
 such action shall issue against, and such judgment shall bind, the separate 
 estate and property of the wife only, and not that of the husband. The 
 statute further provides, that any husband who may thereafter acquire 
 the separate estate and property of his wife, or any portion thereof, by 
 any ante-nuptial contract, or otherwise, shall be liable for the debts of his 
 wife contracted before marriage, to the extent only of the property so 
 acquired, as if the act had not passed. 
 
 These several statutes have thus alteredthe common law,, with respect 
 to the rights and liabilities of the husband, growing out of thft marriage 
 relation. The husband can no longer lay hold of the wife's property, 
 which comes to her in the way mentioned in the statute of 1^49. And if 
 he and his wife are compelled to resort to a court of equity to obtain 
 it, there would seem to be no necessity for the court to require a settle- 
 ment to be made, in favor of the wife, since the property all belongs to 
 her, without any deduction for the benefit of the husband. The wife's 
 equity is thus converted into a legal right ; and the reason why any 
 portion of it should be for the husband's benefit — that is, for the payment 
 of- her debts — is removed by the act of 1853, which discharges him froni 
 that liability, except to the extent of the property received by him, under 
 an ante-nuptial settlement. 
 
 The statutes in question do not affect the title of the husband to the 
 wife's services, nor to her earnings in her business or occupation, if she 
 carries on an occupation with his consent. These belong to the husband, 
 and are liable for his debts, as before the statutes.^ 
 
 The increase of property owned by the wife before marriage, belongs 
 to her, and not to her husband. When she retains the possession or the 
 right of possession of it, the fact that she allows her husband to have the 
 
 » Laws of 1853, p. 1067. ' Lovett v. Robinson, 7 How. Pr, R. 
 
 105. 
 Eq. Jub. 81 
 
/ 
 
 642 Of Persons under Disabilitt. [Oh. '8, 
 
 charge and management of it, and to fatten her swine, for example, -will 
 not entitle him to the increase of her animals, or the pork made from the 
 swine, but they will belong to her.' 
 
 If chattels be purchased by the husband, the title vests in him and not 
 in her, though part of the consideration be paid by her.* 
 
 And where the husband was permitted by his wife to occupy her land, 
 and receive and dispose of the products, the law will not, in the absence 
 of proof of an express agreement that she should share in the products, 
 or that he should account to her, imply such a contract, but will rather 
 regard her as having made a gift of the use of the land to the husband 
 while such occupation continued.' 
 
 The case last cited admits, by implication, that ithe wife may convey a 
 title to her husband, by a gift inter vivos, of her personal property, 
 without the agency or intervention of a court of equity. The court surely 
 would not presume such gift, unless such gift could be in fact made by 
 the wife to her husband, notwithstanding the coverture. The language 
 of the third section of the act of 1849 is broad enough to admit of that 
 construction. But a different rule has been adopted by another court 
 with respect to the wife's real estate, or rather with respect to her con- 
 tingent right of dower, and it has been held that a married woman can- 
 not during coverture convey to her husband, by deed, her dower right in 
 his real estate, under the said act ; and the construction was adopted, 
 that she might convey to persons other than her husband, but not to him. 
 This construction leaves in force the common law rule, that husband and 
 wife cannot at law convey to each other.* Both the cases last mentioned 
 were cases in a court of law, and decided upon common law principles. 
 
 Whether under the law of 1848, as amended in 1849, a married woman, 
 being clothed with the rigljt of property, either by ownership antecedent 
 to the ma,rriage, or acquired subsequently by inheritance, or by gift, grant, 
 devise or bequest from any person other than her husband, may dispose 
 of the same as a feme sole, without the intervention of a court of equity, 
 has not yet been authoritatively decided by the highest court of the 
 state ; and the opinions of the profession on the subject are conflicting. 
 The rule of the common law, is that the power of alienation is an insep- 
 arable incident of the right of property,' and the language of the statute 
 
 'Van Sickle v. Van Sickle, 8 How. • Graham v.Wyck, 14 Barb. 531. 
 
 Pr. E. 265. ° American Home Missionary Society 
 
 'Id. v. Wadham, 10 id. 601. BeU'sJ^iwof 
 
 » Id. Pr<>perty, 503. 
 
Ch. 8.] Married Women. Separate Property. 643 
 
 is, -without limitation, that a married woman, holding property to her sole 
 and separate use, may convey and devise the Same, whether it be real or 
 personal, and any interest or estate therein, and the rents, issues and 
 profits thereof, in the same manner and with the like effect, as if she 
 were unmarried, and the same shall not be subject to the disposal of her 
 husband, nor be liable for his debts. The statute so far breaks in upon 
 the common law rule, as to prevent the property of the wife from becom- 
 ing vested in the husband, or made subject to his control during the 
 coverture, and leaves it subject to her disposition. There was also another 
 rule of the common law, that a married woman could not, during the 
 coverture, dispose of her property so as to defeat the marital rights of 
 her husband, without his assent. Courts of equity, at an early day, 
 encroached upon both these principles of the common law. In establish- 
 ing the doctrine of a separate estate in the wife, notwithstanding the 
 coverture, they infringed upon the strict rights of the husband, as they 
 were expounded by the common law courts. Having thus established the 
 doctrine that the wife might enjoy a separate estate during the coverture, 
 as a/eme sole, the laws of property attached to this new estate, and the 
 power of alienation was annexed to it as an inseparable incident. But 
 equity again interposed, and by another violation of the law of property, 
 supported the validity of the prohibition against alienation, contained in 
 the deed or will under which she derived her title, when it was clearly 
 expressed." Hence it follows, that, in relation to a separate estate, held 
 by a feme covert, withoilt the prohibition of anticipation, she was to all 
 intents and purposes a feme sole; equity treating property given to 
 her, for her separate use, without restraint of alienation, as the property 
 of a /erne sole.'' 
 
 We must doubtless speak with caution on questions growing out of the 
 laws of 1848 and 1^49, which have not already been discussed in, and 
 decided by, the courts. If we are at liberty, in the absence of adjudged 
 cases, to conjecture the object of the legislature in enacting those laws, 
 we should incline to the opinion, that it was to abrogate the common law 
 rule with respect to the rights acquired by the husband through his mar- 
 riage, to the property of his wife ; to prevent him from laying his hands 
 on it, if he could find it, and treat it as his own, as was formerly in his 
 power ^ and to extend to her property, and her control over it, the same 
 principles which courts of equity had previously adopted with respect to 
 
 ' Brandon v. Kobmson, 18 Ves. 434. t. Wadham, 10 Barb. 602. Strong V. 
 * American Home Missionary Society Skinner, 4 id. 546. 
 
644 Ob Persons under Disability. [Oh. 8j 
 
 such property as could only be reacted by its aid ; or to sucli as was 
 secured to her by marriage settlement ; or to such as belonged to her 
 "while she was a ward of the court, and married with its pertnission. In 
 those cases, indeed, whether the property of the female was large or small, 
 the whole was not settled to the use of the wife and her children, but a 
 portion of it was left to the husband.' Under the statute, however, the 
 whole is still the property of the wife, notwithstanding the marriage. 
 Her rights, under the statutes, therefore, are more ample than those pre- 
 served to her by courts of equity, in cases where it was administered under 
 its rules. 
 
 In a recent case it has been held that a married woman, since the acts 
 in question, who acquires real property in the mode therein provided, may 
 convey the same in all respects as a feme sole. Her husband need not 
 be a party to the deed ; and her acknowledgment before the proper officer 
 is sufficient, without a private examination of the wife, separate and apart 
 from her husband, required in other cases." 
 
 But the statutes in question have not relieved the wife, during cover- 
 ture, from her disability, at common law, to make contractSj except as to 
 such contracts as convey or devise the property. She is not, by the stat- 
 ute, empowered to make any warranty, or to enforce, in her own name, 
 an executory contract against others. She cannot, at law, make herself 
 liable to be sued for breach of her executory agreements, with respect to 
 her estate. The statute has, indeed, prevented a contract, made before 
 marriage with her intended husband, from being discharged by the mar- 
 / riage, and enacts that it shall be still in force, after such marriage, but 
 has provided no way to enforce it, or to give damages in case of its viola- 
 tion on the part of the husband.' At common law, if either was indel/ted 
 to the other before marriage, their subsequent intermarriage worked a 
 release of it, on the principle, that husband and wife are but one person ; 
 as if the feme obligee take the obligor to husband, it was a release in law 
 of the bond.* This latter rule has doubtless been abrogated by the statute. 
 
 Although the question has not yet been settled by the courts, it is 
 believed that the benign principles of equity will affiard, not onljs to the 
 wife, but to others dealing with her, with respect to her property, ade- 
 quate relief, for any violation by either party of any of the provisions of 
 the contract. Full effect cannot be given to the statute,^ unless courts of 
 equity apply the rules which prevailed in those courts, with respect to 
 
 • Howard. V. Moffat, 2 J. Ch. E. 206. • Clancy's Rights of Women, 155, 156. 
 
 Glen V. Ksher, 6 id. S3, 86. Coke Litt. 264, b. Strong v. Skinner, 4 
 
 ' Blood v. Humphrey, 17 Barb. 660. Barh. 552. 
 " Laws of 1849, p. 529, § 8. 
 
Gh. 8.]- Married Women. Separate Property. 645 
 
 the separate property of the wife, before the act of 1848, to property- 
 acquired by the wife in the manner specified in the statutes of 1848 
 and 1849. ' 
 
 It may, therefore, be expedient to take a brief survey of the doctrine 
 of the courts, of equity, with respect to the separate property of married 
 women, before the passage of the statutes in question. This is the more 
 important, as doubtless many cases will arise, which must be decided by 
 the former law. The learned reader will bear in mind also, that with 
 respect to recent cases, the statutes will, to a slight extent, modify the 
 ancient rules ; and this will be sufficiently understood without repeating 
 the caution. 
 
 It is a general principle, firmly established in the equity jurisprudence 
 of this state, that a feme covert, with respect to her separate property, is 
 in equity considered as a feme sole. Chancellor Kent inclined to the 
 opinion that she was to be so considered only to the extent of the power 
 clearly given to her by the marriage settlement. But on the review of 
 the same case in the court of errors,' it was in substance declared, that a 
 feme covert was absolutely a feme sole in respect of her separate prop- 
 erty, when she was not specially restrained, by the instrument under 
 which she acted, to some particular mode of disposition ; and it was held, 
 that although a particular mode of disposition was specifically pointed out, 
 it would not preclude her from adopting any other mode of disposition, 
 unless there were negative words restraining her power of disposition to 
 the very mode so pointed out. The learned judge who delivered the 
 opinion of the court of errors, said that the ante-nuptial agreement qual- 
 ifies the marriage contract, so that the wife retains all the rights wtioli 
 she should have exercised over the property as a feme sole ; except so 
 far as she has in express terms incapacitated herself by that instrument. 
 
 As a necessary consequence, it was also said by the learned judge, 
 that if a married woman be permitted under a settlement to act as a 
 feme sole, in regard to her property, it is perfectly reasonable that her 
 acts, declarations and confessions freely made should be allowed to have 
 the same efiect in regard to the rights and interests of others, as if she 
 were in reality a/eme sole.^ 
 
 At law the wife cannot contract a liability to her husband, or any body 
 else, for borrowed money. The rule at law is universal and it is followed 
 
 * The Methodist Episcopal Church v. Gardner, 22 "Wend. 526. Strong v. Skin- 
 
 Jaques, 3 J. Ch. R. 77. S. 0. on appeal, ner, 4 Barb. 546. 
 
 17 J. R. 548. Udall v. Ketiney, 3 Cowen, = Id. 592. Strong v. Skinner, 4 Barb, 
 
 590. 6 J. Ch. R. 464. Vanderheyden 653. 
 V. Mallory, 1 Comst. 462. Gardner v. 
 
646 Of Persons under Disability. [Ch. 8. 
 
 also in equity, except in cases where tte court treats the wife, with re- 
 spect to her separate property, as a/eme soZe.' In that class of cases 
 it is a legitimate deduction from the well established principles of the 
 court, that separate debts contracted by the wife, expressly on her own 
 account, shall, in all cases, be considered an appointment or appropriation 
 for the benefit of the creditor, as to so much of her separate estate as is 
 sufficient to pay the debt, if she be not disabled to charge it, by the terms 
 of the deed of settlement.'' In Gardner v. Gardner, already cited, tho 
 wife contracted a debt with her husband for borrowed money, to improve 
 her separate estate ; and it was held that payment of such a debt would 
 be enforced in equity as a lien upon the estate, unless, by the terms of the 
 title under which she held it, she was prohibited from charging the 
 estate.' 
 
 The same doctrine was held by Chancellor Walworth.' A feme co- 
 vert, it was said, is as to her separate estate considered as a feme sole ; 
 and she may, either in person or by her legally authorized agent, bind such 
 separate estate with the payment of debts contracted for the benefit of 
 the estate, or contracted for her own benefit upon the credit of the sepa- 
 rate estate. And the assent and concurrence of her trustee is not neces- 
 sary for that purpose, when no restriction upon her power over the trust 
 fund is contained in the deed, or instrument, under which such separate 
 estate is held. As a deduction from these principles, it was held that the 
 separate estate of &feme covert is in equity chargeable with her debts, 
 Contracted upon the credit of that estate, to the same extent that the 
 estate of a /erne sole is chargeable with the debts of such /ewie sole by 
 ihe common law. 
 
 In Gardner v. Gardner, (supra,) the debt was contracted by the feme 
 covert to improve her estate. But that is not a controlling circumstance 
 with respect to the validity of the debt. A. feme covert may render her 
 separate estate liable for debts contracted by her on the credit of such 
 estate, hut which were not for the benefit thereof There is some con- 
 flict in the English decisions on this subject, arising, it is said, from con- 
 founding the rights and privileges of the wife, at common law, with her 
 equitable rights and liabilities, in regard to her separate estate, secured 
 to her by a court of equity, upon principles derived from the civil law. 
 But the spirit of the earliest as well as of one of the more recent decisions 
 in England on this subject, and of the court of errors and supreme court 
 
 • Gardner v. Gardner, 22 Wencl. 628. « The North American Goal Co. v. 
 
 ' Id. Strong v. Skinner, 4 Barb. 554. Dyett, t Paige, 9. 
 " Heatly v. Thomas, 15 Ves. 596. 
 
Ch. 8.] Marbled Women. Separate Property. 647 
 
 of this state, is, that the equitable estate of a feme covert is liable for 
 the payment of all her equitable debts, to the same extent as though such 
 debts were contracted by a feme sole.^ 
 
 The doctrine we are considering is firmly established, and has been 
 illustrated by numerous well considered decisions. A brief reference to 
 some of these cases will show the nature and extent of the power of the 
 wife over her separate estate, and the manner in which courts of equity 
 uphold contracts and agreements made by her, which would not be 
 enforced by the ordinary rules of the common law. 
 
 Thus, it has been held that husband and wife may contract, for a bona 
 fide and valuable consideration, for a transfer of property from him to her, 
 and the agreement on her part may be enforced in equity. As where hus- 
 band and wife agreed by parol that he should purchase a lot in her name, 
 and build a house thereon, and that he should be reimbursed the cost 
 thereof out of the proceeds of another house and lot of which she was 
 seised, which should be sold for that purpose ; and the husband having 
 executed the agreement on his part, the contract failed by the sudden 
 death of the wife, who left infant children, to whom the legal estate in 
 both lots descended ; the agreement was decreed to be carried into efi'ect, 
 and the lot was ordered to be sold, and a conveyance executed by the in- 
 fant trustees by their guardian ad litem, and their father and the mas- 
 ter were directed to join in the conveyance ; and the plaintiff to be reim- 
 bursed his advances, out of the moneys arising from the sale.'' 
 
 Though such conveyance by the husband to the wife is presumed, in 
 the first instance, to be intended as an advancement and provision for 
 her, yet that presumption may be rebutted by parol proof.' 
 
 While a deed from a husband directly to his wife is void in law, yet 
 where the conveyance of the husband is for the purpose of making a suit- 
 able provision for the wife, as giving her a deed of certain lands, parcel 
 of his estate, during her widowhood, equity will lend its aid to enforce 
 the provision ; especially where the rights of creditors do not interfere, 
 and where the wife had, by an ante-nuptial contract, xeleased all right of 
 dower to arise .under the marriage, on the express engagement of the 
 
 ' North American Coal Co. v. Dyett, " Livingston v. LiviDgston, 2 J. Oh. 3B. 
 
 7 Paige, ,15. Jaques v. The Meth. Ep. 537. Lady Arnndell v. Phipps, 10 Ves. 
 
 Ch. 17 J. R. 548. Hulme v. Tenant, 1 146-149. 
 
 Bro. 0. C. 19. Pyhers v. Smith, 3 id. 340. 'Livingston v. Livingston, snpra. 
 
 Murray V. Barlee, 4 Sim. Eep. 82. Strong Finch v. Finch, 15 Ves. 43. Eingdome / 
 
 v. Skinner, 4 Barh, 546. v. Bridges, 2 Vern. 67. 
 
648 Of Persons under DisABitiTY. [CL 8. 
 
 husband, that sh€ should be endowed of all lands acquired by them during 
 their cohabitation.' 
 
 So where a husband conveys land to his son, for a nominal sum, on "his 
 covenanting to pay an annuity to his mother, during her widowhood, the 
 wife is entitled to her action on the covenant made by her son to her 
 husband for her benefit ; and a release of the covenant to the son by the 
 husband, in his lifetime, is fraudulent and void as against the wife ; as the 
 Bple beneficial interest in the covenant is in her, and she alone is in equity 
 entitled to release it." 
 
 A court of law would uphold an action in favor of a trustee of the wife 
 against the executors of the husband, to enforce an agreement made by 
 the husband, in his lifetime, for a valuable consideration, in favor of his 
 wife. Thus, where the husband executed a bond to a.third person, to 
 secure the amount of a legacy left to the obligor's wife by her father, and 
 received by the obligor after marriage, it has been held that such bond is 
 valid, and will be enforced, even at law, by the trustee against the per- 
 sonal representatives of the obligor.' Had this bond been given directly 
 to the wife by the husband, it would have been void at law, though good 
 in equity. 
 
 A married woman may mortgage her separate property for her hus- 
 band's debts, by uniting with him in the mortgage, and she may also ex- 
 ecute a valid power to sell the property in case of default of payment ; 
 and the wife may in such a case, if she chooses, reserve the equity of 
 redemption to the husband alone, who may sell and dispose of it.* 
 
 So a. feme covert may make a valid indorsement of a note given to her 
 before marriage, by a name diff'erent from her husband, if the circum- 
 stances of the case be such as to warrant the presumption that the 
 indorsement was made with the assent of the husband.' In this case the 
 note was the separate property of the wife before marriage, subject to 
 her exclusive control by virtue of an ante-nuptial contract, in which the 
 husband had expressly renounced all interest in, and authority over, the 
 property of his wife, and had united in an instrument which transferred 
 it all to a trustee for her exclusive benefit. He thus had no beneficial 
 -interest in it, and no right in any manner to interfere with it. And he 
 never could become responsible in consequence of the indorsement. 
 
 The principle already stated, that a feme covert, with respect to her 
 separate estate, is to be regarded in a court of equity as &feme sole, is 
 
 ' Shepard v. Shepard, 7 J. Ch. E. 57. ' Demarest v. Wynioop, 8 J. Oh. E. 
 
 ' Id.. 129. 
 
 ' Northup V. Barnum's Executors, 15 » Miller v. Delamater, 12 Wend. 438. 
 Wend. 167. 
 
Ch. 8.] Married Women. Separate Property. 649 
 
 ■well settled ; and she may, unless restrained by the instrument under 
 ■which she acquires it, dispose of her property, without the consent or 
 concurrence of her trustee. If she enter into an agreement clearly indi- 
 cating her intention to affect by it her separate property, and there be no 
 fraud or unfair advantage taken of her, a court of equity will apply her 
 estate in satisfaction of the agreement. And she may give her property 
 to her husband, as well as to any other person, if her gift be free, and 
 not the result of flattery or force, or improper treatment.' 
 
 Where a legacy due to a, feme covert, as her separate estate, is paid 
 over to her by the executor, under a decree of the surrogate, obtained 
 upon the application of her husband, and is accepted by her, such pay- 
 ment ■will protect the executor, not only as to the payment, but as 
 to future accounting. With respect to such legacy she is treated as a 
 feme sole, and her receipt is a good discharge." 
 
 A -wife may, as respects her estate, become surety for her husband, 
 and in such case as against him and his creditors she is entitled to all 
 the rights of a surety. If she mortgage her property for her husband's 
 debts, she is entitled in equity to have his interest in the land, as tenant 
 by the curtesy initiate, first sold and applied in its extinguishment.' 
 
 A wife having separate property may purchase ■with it, from her hus- 
 band, or at judicial sales, his property, real or personal, and have it lim- 
 ited to her separate use. She may purchase a judgment against him, 
 sell his real estate under an execution issued thereon, and become the 
 purchaser.* Equity will sustain such purchase, and will protect the real 
 estate purchased, from both her husband and his creditors.' 
 
 Previous to the Revised Statutes a trustee might hold the mere naked 
 legal estate in real property, for a feme covert, while the whole equita- 
 ble interest and estate therein was in her, and subject to her control. In 
 relation to such an estate, therefore, she was considered as a, feme sole, 
 and could charge her equitable interest in the property with any debt she 
 might think proper to contract on the credit thereof, which is not incon- 
 sistent with the trust or with the nature of her interest in the premises ; 
 and which was authorized by the instrument or conveyance creating the 
 trust. All such mere formal trusts, even in favor of femes covert, are 
 now abolished. And in the few trusts which are authorized by the Re- 
 vised Statutes, the whole estate, both legal and equitable, is vested in the 
 
 • Meth. Ep. Oh. v. Jaques, 17 J. R. 548. Wend. 312. Hawley v. Bradford, 9 
 
 S J. Ch. R. 77. Bradieh v^ Gibbs, 3 id. Paige, 200. 
 623. Ornger v. Oruger, 6 Barb. 225. * Strong v. Skinner, 4 Barb. 646. 
 
 » Guild V. Peck, 11 Paige, 475. » Id. 
 
 ' Neimoewicz v. Gahn, 8 id. 614. 11 
 
 Eq. Jue. 82 
 
650 Op Persons under DrsABiLiTT. [Ci. 8- 
 
 trustee. The statute also declares, in terms, that the person for whose ben- 
 efit the trust is created, shall have no estate or interest in the land ; but 
 may enforce the performance of the trust in equity,' A trust to receive 
 the rents and profits of real estate, or the interest or income of the pro- 
 ceeds of such estate, eomes within the 63d section of the article of the 
 Revised Statutes relative to uses and trusts. (1 R. S. 730.) And the 
 cestui que trust cannot assign, dispose of, or in any manner mortgage or 
 pledge his interest in the trust property, or in the future income therp^of ;: 
 nor can he contract any debt which will create a lien upon such future in- 
 come, as to authorize a creditor to reach it by any proceeding, either at law 
 or in equity. As afeme covert cannot pledge or create a charge upom 
 her interest in such a trust, in anticipation of the income which may 
 thereafter accrue, or become payable to her ; and as she cannot contract 
 a personal liability upon which a judgment can be recovered, her interest, 
 even in the surplus income which is not necessary for her support, cannot 
 be reached, except for a debt contracted before marriage.' 
 
 The foregoing case arose under a trust deed, made under the Revised 
 Statutes^ and was governed by the rules which have been elsewhere con- 
 sidered. The property of the wife could not be reached in this case, be- 
 cause the instrument creating the trust, in connection with the Revised 
 Statutes, prevented the wife from anticipating or disposing of her income 
 or estate in the hands of her trustee. 
 
 But the question has sometimes arisen before the statutes of 1848 and 
 1849, where no trust deed or marriage articles had been executed ; and at- 
 tempts have been made to reach the separate property of the wife, in sat- 
 isfaction of her debts created before marriage, and while her coverture 
 continued. This could not be done. Thus, a fefne sole having con- 
 tracted a debt, and owning some shares of bank stock, married. After 
 marriage, the stock, with the consent of the husband, was transferred to 
 a third person, for the purpose of having it transferred back to her for 
 her sole and separate use, which was accerdingly done. She also 
 held other shares of bank stock, which had been transferred to her 
 separate use, by the executors of her husband's estate. The cred- 
 itor sued the husband and wife at law, and being met by a plea of the 
 husband's bankruptcy, discontinued. He then filed a bill in equity for 
 the purpose of reaching the bank stock. No fraud in the transfer to the 
 wife's separate use being alleged, nor any act of the wife after marriage 
 indicating an intention to charge this fund, it was held by the court of 
 
 " L'Amoureux v. Van Rensselaer, 1 ' L'Amoureux v. Van Rensselaer, 1 
 Barb. Oh. K. 37. 1 E. S. 729, § 60. Barb. Gh. E. U. 
 
Ch. 8.] Married Wometst. Separate Property. 651 
 
 appeals, against the opinion of the chancellor, that the bill could not be 
 . sustained.' 
 
 As the law stood at that time, it cast upon the husband a temporary 
 liability for the debts of the wife contracted before marriage. That lia- 
 bility ceased with the coverture, unless judgment had been recovered 
 against both. If the wife survived her husband and judgment had not 
 been recovered, her liability would have revived.^ 
 
 Where there is no positive expression of an intention to charge the 
 separate estate of the wife, the great difficulty is to ascertain what cir- 
 cumstances shall be deemed sufficient to create such a charge, and what 
 sufficient to create only a general debt. It is agreed that there must be 
 an intention that the debt shall affect her separate estate, otherwise it 
 will not do so.^ 
 
 The doctrine of appointment or appropriation, in equity, relates wholly 
 to engagements made or debts contracted by a married woman, as such, 
 having a separate estate, and in reference to it* The fact that the debt 
 has been contracted by a woman during coverture, either as a principal 
 or as a surety, for herself or for her husband, or jointly with him, seems 
 ordinarily to be held prima facie evidence to charge her separate estate, 
 without any proof of a positive agreement or intention so to do.^ This 
 appointment or appropriation is not enforced by an action at law, but by 
 a suit in equity ; it operates not against the person, but the separate 
 estate of the wife, in the hands of her trustee." Lord Mansfield and hi« 
 associates, towards the close of his illustrious career, imported the same 
 doctrine into the courts of law, and held that z,feme covert, living apart 
 from her husband, and having a separate maintenance, might contract 
 and be sued in a court of law as z.feme sole, and that her second husband 
 was liable for such debt' The same rule was followed in a few subse- 
 quent cases, but it never met the acquiescence of Westminster Hall, and 
 was finally directly overruled by the concurrence of all the judges, after 
 solemn argument.^ The jurisdiction in this class of cases is unquestion- 
 ably in equity alone ; and with us, where law and equity are united in the 
 
 ' Vanderheyden V. Mailory, 1 Oomst. 'Id. Murray v. Barlee, 4 Sim. 82; 
 
 452. Reversing S. 0., 3 Barb. Ch. E. 9. S. C. S Myl. & K. 209. 
 
 " Id. ' Id. 
 
 ' Vanderheyden v. Mallory, 1 Comst. ' Oorbett v. Poelnitz, 1 D. & E. 4. 
 
 462.' F'ettiplace v. Gorges, 1 Ves. jr. 46. ' Marshall v. Eutton, 8 id. 546 ; and 
 
 Jaques v. The Meth. Ep. Oh. 17 J. E. see remarks of Lord Brougham on these 
 
 646. Gardner v. Gardner, 22 Wend. 526. cases in Murray v. Barlee, 3 Myl. & K. 
 
 * Vanderheyden v. Mallory, 1 Oomst. 
 463. 
 
652 Of Persons under Disability. [CL 8. 
 
 game court, and prosecuted by the same forms, the remedy is in equity, 
 and not by an ordinary common law action. 
 
 It remains to consider, in this connection, ivhat is meant by the sepa- 
 rate estate of the wife, with reference to the doctrine we are considering. 
 The definition, as sanctioned by the court of appeals in one case, was thus 
 expressed by the learned judge who delivered the prevailing opinion : 
 " A separate estate in afeme covert only exists in such property, whether 
 it be real or personal, as is settled upon her for her separate use, without 
 any control over it on the part of her husband. It is not all the estate, 
 either in lands or chattels belonging to a feme covert, nor is it her right 
 of dower in the real estate of her husband. As to that kind of estate, 
 the court of chancery, for certain purposes, considers her as a, feme sole; 
 and her contracts relative to it, if made in a particular manner, as 
 binding.'" 
 
 Under the act for the more effectual protection of the property of mar- 
 ried women, (L. of 1848, p. 307 ; L. of 1849, p. 528,) both the real and 
 personal property of any female who thereafter marries, and which she 
 should own at the time of her marriage, and the rents, issues and profits 
 thereof, are not subject to the disposal of her husband, nor liable for his 
 debts, and continue her sole and separate property, as if she were a 
 single woman. And by the third section, as amended in 1849, a married 
 female is empowered to take by inheritance, or by gift, grant, devise or 
 bequest, from any person other than her husband, and hold to her sole 
 and separate use, and convey and devise real and personal estate, and any 
 interest or estate therein, and the rents, issues and profits thereof, in the 
 same manner and with the like effect, as if she were unmarried ; and the 
 same are not subject to the disposal of her husband nor liable for hia 
 debts. Her property thus continues her separate estate, by force of the 
 statute, notwithstanding the coverture, and without; the intervention of 
 marriage articles or trustees.' It would seem that it can be liable to her 
 ccmtracts and charges, during the coverture, in the same way only that 
 before the statutes in question her separate estate was afiected by her 
 engagements through the medium of a court of equity, and not by an 
 action at law. 
 
 ' Albany Fire Ins. Oo. v. Bay, 4 Comst. 18. Miirfay v. Barlee, 4 Sim. 82 ; S. 0. 
 
 11 ; S. 0. 4 Barb. 407. Metb. Ep. Oh. on apped, 3 Myl. & K. 209. Clancy o» 
 
 V. Jaqnes, 3 J. Cb. E. 77 ; S. O. m error, Elgkts of Women, 251. 
 ■ 17 J. E. 648. Martin v. Dw«lly, e Wend. 
 
Ch. 8.] Married Women. Maintenance. 653 
 
 In concluding this brancli of the subject, it remains that something 
 should be said with respect to the jurisdiction of courts of equity in 
 decreeing maintenance of the wife. 
 
 By the rules of the common law the husband is bound to maintain his 
 ■wife, and may be compelled to find her necessaries, as meat, drink, clothes, 
 physic, (fcc. suitable to the husband's degree, estate or circumstances. 
 If he turns her away, he gives her a credit wherever she goes, and must 
 pay for necessaries furnished her.' If she elope from her husband, though 
 not in an adulterous manner, the husband is not liable for any of her 
 contracts, though the person who gives credit to her for necessaries had 
 no notice of the elopement. But if she offers to return, and her husband 
 refuses to receive her, his liability upon her contracts for necessaries is 
 revived from that time, notwithstanding a general notice not to trust 
 her.' If she elopes with an adnlterer, and offers to return, he is not 
 bound to receive her, and is not liable for necessaries furnish'ed to her ; 
 but if he voluntarily pardon her and take her back, he becomes again 
 liable.' And if the husband commits adultery, it justifies the wife in 
 leaving him ; and if she does leave his house, he is liable for necessaries, 
 though he forbids all persons from trusting her ; nor can he shield him- 
 self by offering to provide for her in a separate apartment of his residence.* 
 
 But this' common law • liability of the husband cannot be directly 
 enforced in equity ; and the remedy is usually obtained by an action at 
 law against the husband, at the suit of the person who has furnished 
 the discarded wife with necessaries suitable to the rank and condition of 
 the husband. In one case the chancellor intimated, that though the 
 husband be a gambler, and there be every probability that he will sacri- 
 fice his estate as tenant by the curtesy initiate, and reduce his family to 
 poverty, a court of equity cannot divest him of the estate or control him 
 in the exercise of it, unless indeed there be a suit pending with, reference 
 to their separation.' 
 
 The maintenance which courts of equity enable the wife to obtain, is 
 such as depends on the agreement of the husband for a separate main- 
 tenance, or as is secured by marriage articles, or can be obtained from 
 her separate property, or other property of the wife not reduced to pos- 
 session by the husband, and forfeited by him by his misconduct ; or it is 
 such as the court is authorized by statute to decree in the shape of ali- 
 
 ' Per Piatt, J. in MoGabay v. Williams, * Sykes v. Halstead, 1 Sand. S. 0. R. 
 
 12 J. E. 293. Lookwood v. Tliomas, 12 483. 
 
 id. 248. " Van Duzer v. Van Dnzer, 6 Paige, 
 
 " Id. 866. Ball v. Montgomery, 2 Ves. jr. 195. 
 
 ' Bao. Abr. Baron and Feme (H.) 
 
654 Op Persons under Disability. [CL 8. 
 
 mony to the wife, on pronouncing a divorce, or separation from bed and 
 board. In the first case, it is raised out of the wife's property, and in 
 the second, out of the property of the husband. 
 
 Where, by the marriage settlement, the whole real and personal estate 
 of the wife is secured to her separate use, the husband is, notwithstanding, 
 bound to maintain his wife and family during the coverture, and cannot 
 make the expense a charge, on her separate estate ; and the consent or 
 agreement of the wife, during coverture, that the expenses should be 
 borne by her separate estate, is null and void.' Where the wife is 
 abandoned by her husband, or prevented from cohabiting with him by 
 his ill treatment, a court of equity will lay hold of the property or money 
 of the wife, which may be within its power, for the purpose of providing 
 a maintenance for her.'' 
 
 The cases which have already been considered with respect to the 
 wife's equity to a provision out of her own estate, whether they rest upon 
 that doctrine alone, or upon the contract between the husband and wife, 
 afford sufficient illustrations on this subject, without their being again 
 repeated. Equity does not in general ever decree maintenance to the 
 wife out of the husband's estatej except as incident to some other relief, 
 or the court is expressly authorized by statute to grant it. 
 
 In this state the jurisdiction over divorces was formerly entertained 
 by the legislature, on special application of the party aggrieved, and by 
 a special act of legislation. This practice was superseded in 1787, by 
 the act of that year, directing a mode of trial and allowing of divorces in 
 cases of adultery.' Since then the legislature has not, but in a single 
 instance, granted a divorce, and that was in favor of the wife, in conse- 
 quence of her husband having abandoned her and joined the society of 
 Shakers.", The act of 1787 gave the jurisdiction to the court of chancery 
 over divorces for adultery ; and, as incidental to that relief, conferred upon 
 the court, jurisdiction over the subject of maintenance for the wife and 
 children of the marriage. This jurisdiction was enlarged in 1813, and 
 authorized the court, on the application of the wife, to grant limited 
 divorces to her for the cruel and inhuman treatment of the husband, and 
 the like jurisdiction was; in 1824, given to the court on the application 
 of the husbandi^ The whole underwent a revision in 1830 ;' and by the 
 
 ' Meth. Ep. Oh. v. Jaques, 1 J. Ch. E. ' 1 Greenl. 428, ch. 69. 
 460. * Laws of 1818, p. 88, oh. 47. 
 
 " Drummond v. Magee, 4 id. 318. Fry ' 2 E. L. of 1818, pp. 197-200. Laws 
 
 V. Fry, 7 Paige, 461. Martin v. Martin, 1824, p. 249, § 12, 
 1 Oomst. 473. " 2 E. S. 142 et seq. 
 
CL 8.] Married Women. Divorce. 655 
 
 constitution of 1846 the jurisdiction, formerly vested in the court of 
 chancery, became vested in the supreme coui;t, created by that instru- 
 ment. 
 
 At common law the court of chancery had no jurisdiction in matters 
 of divorce. That jurisdiction belonged to the ecclesiastical courts, and to 
 parliament. 
 
 In this state the supreme court has jurisdiction,' to declare the mar- 
 riage contract void by a sentence of nullity, for either of the following 
 causes : 1. That the parties, or one of them, had not attained the age of 
 legal consent, which is fourteen years in males, and twelve in. females.* 
 
 2. That the former husband or wife of one of the parties was living ; and 
 that the marriage with the former husband or wife was then in force. 
 
 3. That one of the parties was an idiot or lunatic. 4. That the consent 
 of one of the parties was obtained by force or fraud. 5. That one of the 
 parties was physically incapable of entering into the marriage state. 
 Suits to annul a marriage are conducted in the same manner as other 
 suits prosecuted in courts of equity, and the court has the same power 
 to award issues, to decree 'costs, and to enforce its decrees, as in other 
 cases.' The mode of preceding in these respects belongs to treatises on 
 the practice of the court, rather than to the subject we are considering. 
 
 Before the Revised Statutes, it was decided by the chancellor, that 
 the court of chancery had not jurisdiction to dissolve the marriage, or 
 decree a divorce for corporeal impotence.* This decision called the atten- 
 tion of the legislature to the subject and led to the existing law. But 
 the court cannot now declare a marriage null for the physical impotence 
 of the defendant, solely upon the confession or declarations of the parties.* 
 And, to authorize such sentence, the incapacity must have existed at the 
 time of the marriage, and be incurable.^ 
 
 Mere sterility of the wife can in no case be ground for such sentence 
 of nullity.'' 
 
 Where there is reason to believe that the incapacity can be removed 
 by a slight surgical operation, there is a probability of capacity, and the 
 court cannot annul the marriage, And the fact that the defendant is un- 
 willing to cohabit with the complainant, and therefore declines to submit 
 
 " 2 E. S. 142. ■* Bnrtis v. Burtis, Hopk. 557. 
 
 = Laws of 1830, p. 301, § 24, repealing ' 2 E. S. 144, § 88. 
 
 2 E. S. 138, § 2, and restoring the com- ' Devanbagh v. Devanbagh, 5 Paige, 
 
 men law. 1 Bl. Com. 490.' 554 ; S. 0. 6 id. 175, 
 
 ■ 2E. S. 144, §35, 'Id. 
 
65& Of Persons under Disability. [Ch. 8. 
 
 to the operation, Is no ground for a sentence of divorce ; as the court has 
 no power to compel the performance of the marriage vows.' 
 
 But the court has power to compel the party to submit to a surgical 
 operation, when necessary to ascertain the facts ; but in a suit against a 
 female, the court will be content with the testimony of competent sur- 
 geons, as to a former examination by them, and that the incapacity is in- 
 curable.^ 
 
 In one case, where the wife in her answer admitted present incapacity, 
 but attributed it to disease, subsequent to the marriage, the court ordered 
 her to submit to an examination by physicians to be named by the hus- 
 band and sanctioned by the court, and also to answer upon oath interrog- 
 atories as to the commencement and progress of the disease.' 
 
 Prior to the Revised Statutes, the court of chancery entertained juris- 
 diction to declare the nullity of a marriage where one of the parties 
 was a lunatic." The chancellor said it was too plain a proposition to be 
 questioned, that idiots and lunatics are incapable of entering into the mat- 
 rimonial contract. Such marriage is absolutely void. And as the court 
 of chancery had jurisdiction in matrimonial causes, it was the proper tri- 
 bunal to pronounce by its decree that the marriage was void ab initio. 
 Some of the suggestions of the chancellor had their influence in framing 
 the existing statute. 
 
 The court has also jurisdiction to grant divorces dissolving the mar- 
 riage, whenever adultery has been committed by any husband or wife, in 
 either of the following cases : 1. Where both husband and wife were in- 
 habitants of this state, at the time of the commission of the offense. 
 2. Where the marriage has been solemnized or has taken place within this 
 state, and the injured party, at the time of the commission of the offense, 
 and at the time of exhibiting the bill of complaint, is an actual inhabit- 
 ant of this state. 3. Where the offense has been committed in this 
 state, and the injured party, at the time of exhibiting the bill of complaint, 
 is an actual inhabitant of this state.= The action for a divorce, when 
 brought by the wife, is brought in her own name, and the answer of the 
 opposite party is put in without oath or affirmation. If the adultery be 
 denied, the court may direct the issue to be tried by a jury. If the adul-- 
 tery be admitted by the defendant, the court refers the cause to a referee 
 with directions to take proof of the facts charged, and to report the same 
 
 ' Devanbagh v. Devanbagh, 5 Paige, • Wightman v. Wightraan, 4 J. Oh. K. 
 
 554 ; 8. 0. 6 id. ,175. 343, where the whole sulyect is fully dis- 
 
 ' Id. cussed. 
 
 ' Newell V. Nowell, 9 Paige, 26. ' 2 R. 8. 144. 
 
Ch. 8.] Married Women. Divorce. 65T 
 
 to the court -witli his opinion thereon.' The court has no power, even 
 with the consent of the parties, to decree an absolute or a partial divorce, 
 except in the special cases provided for by statute." 
 
 Though the fact of adultery be established, the court may deny a di- 
 vorce in the following cases : 1. Where the offense shall appear to have 
 been committed by the procurement, or with the connivance of the com- 
 plainant. 2. Where the offenses charged shall have been forgiven by the 
 injured party, and such forgiveness be proved by express proof, or by the 
 voluntary cohabitation of the parties, with the knowledge of the fact. 
 3. Where there shall have been no express forgiveness, and no volun- 
 tary cohabitation of the parties, but the suit shall not have been brought 
 within five years after the discovery by the complainant of the offense 
 charged. 4. Where it shall be proved that the complainant has also 
 been guilty of adultery, under such circumstances as would have entitled 
 the defendant, if innocent, to a divorce.' 
 
 The doctrine with respect to recrimination and condonation was bor- 
 rowed from the English ecclesiastical law, and by them from the civil law. 
 The first is founded on the principle that a party cannot be permitted to 
 complain of the breach of a contract which he has first violated,^ and the 
 second, on the ground that he shall not insist on the violation of a contract 
 which he has himself waived, or call for punishment of an act which he 
 has himself forgiven. 
 
 The recriminatory charge of adultery must be set up in the same man- 
 ner as in a bill, and with the same allegations, that it was committed 
 without the defendant's procurement, connivance, privity or consent, and 
 these allegations are issuable.' 
 
 Condonation is a conditional forgiveness ; and a repetition of the injury 
 revives a condoned adultery.'' It must be insisted on in the answer, or 
 urged by way of special plea. 
 
 Voluntary cohabitation of a wife with her husband, with full knowledge 
 of an act of adultery committed by him, or vice versa, is legal evidence 
 of a condonation of the offense, so as to bar a suit for a divorce.' Condo- 
 nation may be inferred from cohabitation, but the inference may be re- 
 
 • 2 E. S. 145. Code, § 72. 144. Astley v. Astley, 1 Hagg. Eoc. K. 
 ' Palmer v. Palmer, 1 Paige, 276. 714. Wood v. Wood, 2 Paige, 108. 
 
 Perry v. Perry, 2 id. 501. " Smith v. Smith, 4 Paige, 432. Bnrr 
 
 > 2 R. 8. 145, § 42. v. Burr, 10 id. 24, 34. 
 
 * Beebe v. Beebe, 1 Hagg. 789. ' Williamson v^Williamson, 1 J. Ch. 
 ' Morrell v. Morrell, 3 Barb. S. 0. R. R. 488. Johnson v. Johnson, 4 Paige, 
 
 236. Beebe v. Beebe, 1 Hagg. 789. 460. 14 Wend. 637. Wood v. Wood, 2 
 Foster v. Foster, 1 Hagg. Const. Eep. Paige, 108. 
 E«. JuE. 83 
 
658 Op Persons under Disability. [Ch. 8, 
 
 pelled by accompanying circumstances.' And it ought not to be held in 
 all cases a strict bar against the wife, as she is, to a certain extent, under 
 the control of her husband.* 
 
 Whether condoned adultery will be revived by subsequent cruel treat- 
 ment of the wife by the husband, or whether it can be revived only by an 
 act of the same kind, is left in doubt by the New-York cases. The chan- 
 cellor held to the latter, and the judges of the supreme court the former 
 opinioa, and their opinion seems to be in conformity to the course of the 
 English decisions.' > 
 
 If the wife be the complainant, and a decree dissolving the marriage 
 be pronounced, the court is authorized to make a further decree or order 
 against the defendant, compelling him to provide for the maintenance of 
 the children of the marriage, and to provide such suitable allowance to 
 the complainant, for her support, as to the court shall seem Just, having 
 regard to the circumstances of the parties respectively.* In such a case, 
 too, if the wife, at the time of pronouncing such decree, be the owner of 
 any real estate, or have in her possession any goods or things in action, 
 which were left with her by her husband, acquired by her own industry, 
 given to her by device or otherwise, or to which she may be entitled by 
 the decease of any relative intestate, all such real estate, goods or things 
 in action, the statute declares shall be her sole and absolute property.' 
 
 Where the husband is complainant, and a decree dissolving the mar- 
 riage is pronounced, the right of the complainant to any real estate owned 
 by the defendant at the time*of pronouncing the decree, in her own right, 
 and to the rents, and profits thereof, are not taken away or impaired by 
 such dissolution of the marriage ; and the husband is also entitled to such 
 personal estate and things in action, as may belong to the defendant, or 
 be in her possession at the time such decree shall be pronounced, in like 
 manner as though the marriage had continued.* And the wife, being a 
 defendant in a suit for a divorce brought by her husband, and convicted 
 of adultery, is not entitled to dower in her husband's real estate, or any 
 part thereof; nor is she entitled to any distributive share in his personal 
 estate.' 
 
 Although the divorce on the ground of adultery is often spoken of as a 
 divorce a vinculo matrimonii, yet it is not so described in the statute, 
 
 ' Whispel V. Whispel, 4 Barb. 217. " 3 R. S. 145, § 45. 
 
 ' Wood v. Wood, snpra. ' Id. 146, § 46. 
 
 ' Johnaon v. Johngon, 4 Paige, 460. « Id. 146. 
 
 Reversed ty court or errors, 14 Wend. ' Id. § 48. 
 637 ; and see the English Ecclesiastical 
 cases under preceding note. 
 
Ch. 8.] Married Women. Divorce, 659 
 
 nor does it go to that extent. The complainant, indeed, may marry dur- 
 ing the lifetime of the defendant, but the defendant convicted of adultery 
 is not permitted to marry again, until the death of the complainant.' 
 And the wife being divorced for the adultery of the husband is, never- 
 theless, entitled to dower in lands whereof the husband was seised during 
 the coverture, prior to the divorce for adultery committed by him, she 
 being the innocent and he the guilty party.'' 
 
 If the divorce were a technical divorce a vinculo matrimonii, it would 
 effectually bastardize the issue of the marriage. But the divorce granted 
 in this case has no such effect. If the wife is the complainant, the legit- 
 imacy of the children of the marriage, born or begotten of her before the 
 commencement of the action, is not affected by the decree of dissolution.' 
 And where the husband is complainant, the legitimacy of children, born 
 or begotten before the commission of the offense charged, is not affected 
 by the decree ; but the legitimacy of other children of the wife, may be 
 determined by the court upon the proofs in the ♦cause. In every such 
 case, the legitimacy of all children, begotten before the commencement 
 of the suit, is presumed until the contrary is shown.* 
 
 The court is also empowered to grant a limited divorce, or a separation 
 from bed and board forever, or for a limited time, on the complaint of a 
 married woman, in the following cases : 1. Between any husband and 
 wife, inhabitants of this state. 2. Where the marriage shall have been 
 eolemnized, or shall have taken place, within this state, and the wife shall 
 be an actual resident at the time of exhibiting her complaint. 3. Where 
 the marriage shall have taken place out of this state, and the parties 
 have become and remained inhabitants of this state, at least one year, and 
 the wife shall be an actual resident at the time of exhibiting her com- 
 plaint.5 The statute enacts that such separations may be decreed for 
 the following causes; 1. The cruel and inhuman treatment by the 
 husband of his wife. 2. Suchconductonthepart of the husband towards 
 his wife, as may render it unsafe and improper for her to cohabit witn 
 him. 3. The abandonment of the wife by the husband, and his refusal 
 or neglect to provide for her.« The Revised Statutes contemplated only 
 
 ' 3 K. S. 146, § 49. 139. VanAernamv.VanAernam,! Barb. 
 
 " Wait V. Wait, 4 Comst. 95. 4 Barb. Gh. R. 875. Montgomery v. Montgom- 
 
 210, dissenting opinion. Burr v. Bnrr, ery, 3 id. 182. Clayton v. Wardell, 5 
 
 10 Paige, 25. Dictum of M'Ootin, V. Ch. Barb. 214. 
 
 contra, 2 Edw. Ch. E. 596, and per Hand ' 2 E. S. 146, § 50. Id. § 61. 
 and Oady, justices, 4 Barb. 198 et seq. • " Perry v. Perr^, 2 Paige, 501. Perjry 
 
 » 2 E. 8. 145, § 43. v. Perry 2 Barb. Oh. E, 311., .1 ii 516. 
 
 * Id. § 44. Cross y. Crow, 3 Paige, 
 
660 Of Persons under Disability. [Ch. S. 
 
 an action by the wife against the husband for his cruelty towards her, as 
 a ground of separation. But it seems the act of 1824, (L. p. 249, § 12,) 
 has been left unrepealed, thus giving to the husband a corresponding 
 right to obtain a decree of separation from his wife, for similar causes. 
 And such separation has, on several occasions, been granted in actions 
 brought by him.' 
 
 The bill in these cases is required to state particularly the nature and 
 circumstances of the complaint on which the complaining party relies, 
 setting forth times and places with reasonable certainty ; and the defend- 
 ant is permitted to prove, in his justification, the ill conduct of the com- 
 plainant, and on establishing such defense, to the satisfaction of the court, 
 the bill will be dismissed.^ The recriminatory matter, to be admissible ' 
 in evidence, should, it is presumed, be set up in the defendant's answer.' ' 
 
 Upon decreeing a separation in any suit, the court may make such fur- 
 ther decree as the nature and circumstances of the case may require, and 
 may make such order and decree for the suitable support and mainte- 
 nance of the wife and her children, or any of them, by the husband, or 
 out of his property, as may appear just and proper. And although a de- 
 cree fbr separation from bed and board be not made, the court may make 
 such order or decree for the support und maintenance of the wife and 
 her children, or any of them, by the husband, or out of his property, as 
 the nature of the case renders suitable and proper.' 
 
 Though a decree for a separation forever, or for a limited- time, be pro- 
 nounced, it may be ro^joked at any time thereafter, by the same court by 
 which it was pronounced, under such regulations and restrictions as the 
 court may impose upon the joint application of the parties, and upon their • 
 producing satisfactory evidence of their reconciliation.' 
 
 With regard to what shall be deemed a-uelty, within the meaning of 
 the law, where the application for a divorce is made by the wife, it has 
 been held that the cruelty, which entitles her to a separation, is that kind 
 of conduct which endangers the life or health of the complainant, and 
 renders cohabitation unsafe." The refusal of the husband to let his wife 
 attend a particular church of which she was a member, though unkind 
 
 ' Independently of the statute the hus- ' Morrell v. Morrell; 3 Barb. S. 0. E. 
 
 band could not maintain a bill for separa- 23'6. Hopper v. Hopper, H Paige, 46, 
 
 tion on account of the cruelty of his wife^ Code, § 149. 
 
 as the common law was supposed to give ' 2 E. S. 147. 
 
 him power to protect himself. Van ' Id. § 56. 
 
 Veghten v. Van Veghten, 4 J. Oh. E, 501. " Perry v- Perry, 2 Paige, 501. 
 
 ■ E. a 147 §§ €2, 68. 
 
 \ 
 
Ch. 8.] Married Women. Divorce. 661 
 
 and oppressive, was said, in one case, to afford no ground for a separa^ 
 tion.' On another occasion, words of menace, accompanied by a proba- 
 bility of bodily violence, were held to be sufficient. It was thought that 
 it was enough if they inflict indignity and threaten pain.'' 
 
 The statute on this subject seems to have incorporated the general 
 doctrines of the ecclesiastical law. In one case,^ the vice chancellor, in 
 discussing the general subject of cruelty, with reference to a separation 
 between the parties, said that in determining what is cruelty, or the 
 scevitia of the ecclesiastical law, we must look into the cases decided by 
 the courts having jurisdiction in matrimonial cases. It is difficult, and 
 perhaps hardly safe, to define in terms sufficiently clear and comprehen- 
 sive, what constitutes, cruelty in a legal sense. Lord Stowell has laid 
 down the rule in several cases. In Evans v. Evans, (1 Hagg. Eccl. Rep. 
 35,) he observes, that the causes must be great and weighty, and such as 
 show an absolute impossibility that the duties of the married life can be , 
 discharged. What falls short of this is with great caution to be admit- ' 
 ted. What merely wounds the mental feelings is in few cases to be / 
 admitted, when they are not accompanied with bodily injuries, either 
 actual or menaced. Mere austerity of temper, petulance of manners, 
 rudeness of language, a want of civil attention and accommodation, even 
 occasional sallies of passion, if they do not threaten bodily harm, do not 
 amount to legal cruelty. They are high moral offenses in the marriage 
 state undoubtedly, not innocent surely in any state of life, but still they 
 are not that cruelty against which the law- can relieve. Under such mis- 
 conduct, the suffering party must bear in some degree the consequences 
 of an injudicious connection ; must subdue by decent resistance or by 
 prudent conciliation ; and if this cannot be done, both must suffer in 
 silence. Similar principles were advanced in other cases.* 
 
 But while the general ground on which the court proceeds is to guard 
 the wife from actual violence or danger to her personj there are neverthe- 
 less exceptions to this rule. Thus, spitting on the wife has been adjudged 
 a gross act of cruelty, on the ground, it is presumed, of indignity to the 
 person.' So also the husband's attempt, when affected with the venereal 
 disease, to force his wife to his bed, is of a mixed nature, partly cruelty 
 
 ' Lawrence v. Lawrence, 3 Paige, 267. 2 Phill. 111. "Warring v. Warring, id. 
 
 ' Whispell V. "Whispell, 4 Barb. 217. 132. Holden v. Holden, 1 Hagg. Eccl. 
 
 ' Barber v: Barber, before V. Ch; 4th E. 468. 
 circuit, 1846. Am. Law Journ. for 1849, ' D'Agnilar v. D'Aguilar, 1 Hagg.EcoL 
 
 193. 777. Shelf. M. & D. 430. 
 
 * Harris v. Harris, 2 Hagg. Eccl. B. 154. 
 
 \ 
 
662 Op Persons under Disability. [Ch. 8. 
 
 and partly evidence of adultery." So also the husband's attempt to de- 
 bauch his'own women-servants, is a strong act of cruelty,* perhaps not 
 alone sufficient to authorize a divorce, but which might weigh, in conjunc- 
 tion witji others, as an act of considerable indignity and outrage to his 
 wife's feelings. The attempt to make a brothel of his own house, is 
 brutal conduct, of which the wife has a right to complain. This is the 
 language of Lord Stowell, in Popkin v. Popkin. Also a groundless and 
 malicious charge against the wife's chastity, followed up by turning her 
 out of doors, and not attempted to be pleaded or proved, may be alleged, 
 with other acts of cruelty, as a ground for a separation. And in the 
 principal case of Barber v. Barber, a groundless charge by the husbaild 
 against the wife of physical incompetency, followed up by legal proceed- 
 ings to establish its truth, which proved abortive, was, in connection with 
 other facts, adjudged legal cruelty, and a decree of separation was 
 granted. 
 
 Such is the rule with respect to the term cruelty. Although primarily 
 it has reference to such conduct in the husband as may endanger the 
 safety or health of the wife, yet it may exist where there is no danger to 
 her person, as in spitting upon her ; and also where no personal violence 
 was inflicted upon her, as in attempts on his part to debauch his own 
 servants.' 
 
 When the suit is brought by the husband for separation, on the ground 
 of the cruelty of the wife, the court will require a strong case to justify 
 its interference. In general, the superior strength of the husband, in 
 connection with his common law rights over his wife, renders the interpo- 
 sition of courts of equity of rare occurrence. On one occasion the chan- 
 cellor observed, that to sustain a bill of this kind, by the husband against 
 the wife, it is not sufficient to show a single act of violence on her part 
 towards him, or even a series of such acts ; so long as there is no reason 
 to suppose that he will not be able to protect himself and his family by 
 a proper exercise of his marital power. It is material, therefore, that he 
 should be permitted to establish such continued course of bad conduct on 
 the part of the wife, towards himself and those who are under his protec- 
 tion and care, as to satisfy the court that it is unsafe for him to cohabit or 
 live with her.* This ease came before the chancellor on exceptions to 
 the complainant's bill, and the charges in the bill which the chancellor 
 
 • Durant v. Durant, 1 Hagg. Eco. E. ' Otway v. Otway, 2 Phill. 95. 
 788, 767. • Perry v. Perry, 1 Barb. Oh. K. 518. 
 
 " Popkin V. Popkin, note to Durant v. 
 Durant,' id 767. 
 
Ch. 8.] Married Women. Divorce. 663 
 
 held were pertinent, and which, if proved, would entitle the husband to 
 a decree of separation, on the ground that his life would be in danger, 
 should he continue to reside under the same roof, were, in substance, that 
 she drove his sick daughter from her bed and wounded her, and finally 
 by violence forced her to leave his house, and probably shortened her life 
 by breaking in her ribs ; that she drove his son from the house when he 
 was wasting away with consumption ; that she beat and lacerated her 
 own grown up son in such a manner as to confine him to the house for 
 several days ; that her conduct towards another daughter, who was dying 
 with consumption, was such as to render it necessary for the complainant 
 to secure the room of such daughter by locks and bolts, whenever he was 
 from home, to protect her from the violence of the defendant ; that the 
 clergyman, who was called to administer the consolations of religion to 
 the dying daughter, was compelled to discontinue his visits in consequence 
 of the defendant's conduct towards him ; that she beat her own grown up 
 daughter, pulled a handful of hair from her head, and injured her so 
 severely that she fainted ; that at other times she struck the same daugh- 
 ter with violence, threw a cup of tea in her face, struck her on the head 
 with an earthen vessel, threw her upon the floor and jumped on her, (fcc. ; 
 that she beat a child, who was bound to her, so severely, that the child 
 was discharged by the magistrates ; that she attacked a workman em- 
 ployed by the complainant, with dangerous weapons, and drove him from 
 the house ; that by her violence and misconduct, she disturbed and at last 
 compelled her husband to abandon, his accustomed family worship ; and 
 that she was in the daily habit of using obscene and blasphemous lan- 
 guage in the presence of the family, and at their meals. These facts, 
 said the chancellor, if proved, or if admitted by the answer, will have a 
 very great influence in giving character to the acts of personal violence, 
 which are stated in the bill as having been committed by the defendant 
 upon the complainant. And if they are the proper subjects of proof, they 
 may be stated in the bill. 
 
 The defendant, it seems by a subsequent report of the case,' suffered 
 the bill to be taken as confessed, and the case came again before the chan- 
 cellor on the master's report of the evidence, by which it appeared that 
 . the facts were proved substantially as alleged. The testimony showed 
 also that the defendant had committed personal violence upon the com- 
 plainant himself, and frequently wished him dead ; so as to render it wholly 
 improbable that he could, by any discreet exercise of his marital power, 
 keep her within such control that his health at least would not be endan- 
 
 ' Perry v. Perry, 2 Barb. Oh. E. 311. 
 
664 Of Persons under Disability. [Oh. 8. 
 
 gered, so long as he continued to live with her. It was admitted that 
 the evidence of her violence and brutality towards other members of the 
 family would not, of itself, entitle the complainant to a decree of separa- 
 tion. A decree of separation was granted. 
 
 This was doubtless an extreme case. It probably would not require a 
 concurrence of all the acts of violence which were charged in this case, 
 to entitle a husband to a decree of separation from his wife. 
 
 An application for a divorce on the ground of adultery, or for a sepa 
 ration from bed and board for cruelty, gives rise to the interference of 
 the court in favor of the wife, to afford her, out of her husband's estate, 
 the means of prosecuting or defending the suit ; of supporting her during 
 its pendency ; of making proper order for the care, custody and education 
 of the children ; and on the final success of the wife, of allowing to her 
 suitable alimony out of her husband's estate. The power of the court 
 over this subject is full and ample, and has frequently and beneficently 
 been exerted.' 
 
 Where a woman files a bill to have a marriage declared null, on the 
 ground of impotence, or the original illegality of the contract, it seems 
 that presumptively she is not entitled to ad interim alimony, or an allow- 
 ance for expenses of the suit ; but where the man files such a bill, and 
 the woman denies the illegality of the contract on oath, or the physical 
 incapacity, she is entitled to alimony and an allowance to defend.' The 
 allowance in such cases does not depend wholly upon the statute, but 
 upon the practice of the court as it existed before the statute.' 
 
 The making of an allowance to the wife, to enable her to carry on her 
 suit, or to conduct her defense, whether the bill be for a divorce or for a 
 separation, is discretionary with the court.* Where it is probable, how- 
 ever, that the wife may succeed, especially in a suit for a divorce on the 
 ground of adultery of the husband, in which the wife is allowed to prose- 
 cute in her own name, and where it appears that she is entirely destitute 
 of the means of carrying on the suit, it is almost a matter of course to re- 
 quire the husband to make her a reasonable allowance, according to his 
 ability, for the necessary expenses of the suit, and to require the husband 
 to furnish her with the necessary clothing and sustenance during the pen- 
 
 ' 2 R. S. 14r, 148. 1 Lee's Eocl. E. by Phill. 209. Ports- 
 
 " Korth V. North, 1 Barb. Ch. R. 241. month, Earl of, v. Portsmouth, 8 Add. 
 
 Barber v. Barber, MS. before V. Oh. Eocl. R. 68. 
 
 4th circuit, 1846. " 2 E. S. 148, § 58. Jones v. Jones, 2 
 
 ' North V. North, supra. Bird v. Bird, Barb. Oh. R. 146. 
 
Ch. 8.] Married Women. Alimony. 665 
 
 dency of the suit, if he is able to do so.' The same general principles 
 are applicable to suits brought by the wife against the husband, for a sep- 
 aration from bed and board, on the ground of cruel treatment, or of aban- 
 donment. But in this class of cases the wife cannot institute a suit 
 against her husband, without the assistance of a responsible person as her 
 next friend, who is to be answerable to the defendant, for the costs of the 
 litigation, if the complainant fails in the suit. And the court, in cases of 
 this nature, will not direct an advance to be made to the wife, or to the 
 next friend, for the purpose of carrying on the suit, or for alimony pen- 
 dente lite, where there is no probability that the complainant will be able 
 to succeed in her suit." 
 
 On one occasion,^ Sir William Scott said, " in suits instituted by the 
 husband or the wife, for I consider that fact to be indifferent, the wife ia 
 a privileged suitor, as to costs and alimony ; and on the same principle 
 that the whole property is supposed by law to be in the husband. If the 
 wife, therefore, is under the necessity of living apart, it is also necessary 
 that she should be subsisted during the pendency of the suit ; and that 
 she should be enabled to procure justice by being provided with the means 
 of defense." And on another occasion,* the same learned judge said, that 
 in general the husband is bound to defray the wife's costs ; otherwise the 
 wife would be disarmed and denied justice. The husband has by the law 
 of this country all the property ; and therefore the wife must have the 
 means of self defence and of subsistence from him ; but where she has a 
 separate fortune, the court always considers whether such separate means 
 are sufficient for self defence and self subsistence. These principles have 
 been approved by the chancellor, and form apart of our jurisprudence on 
 this subject. If the court is satisfied the wife has no reasonable ground 
 of complaint, or is altogether in the wrong, it might, in the exercise of a 
 sound discretion^ refuse the means to enable her to carry on an unjust 
 litigation at the expense of her husband. But it would be manifestly 
 unjust to condemn the wife unheard, or upon an ex parte affidavit of wit- 
 nesses, when she has had no opportunity to cross-examine them, or to 
 disprove their allegations.' 
 
 In an application by the wife for an allowance and for the means of 
 
 » 3 E. S. 148, § 58. Jones v. Jones, 2 * D'Aguilar v. D'Aguilar, 1 Hagg.EccI. 
 
 Barb. Oh. E. 146. E. 777. 
 
 « Id. 147. Wood V. Wood, 2 Paige, ' Wood v. Wood, 2 Paige, 113, 114. 
 
 454; a 0.8 Wend. 3^7^ Coda of 1851, HoUerman v. Hollerman, 1 Barb. S. 0. 
 
 § 151. ' * ^/ E. 64. Bissell v. Bissell, id. 430. Sny- 
 
 ' Wilson V. Wilson, 2 Ocnsist. E. 204. der v. Snyder, 3 id. 621. Jones v. Jones, 
 
 2 Barb. Oh. E. 146. 
 
 Eq. Jur. S4 
 
666 Of Persons trNDER Disability. [Ch. 8. 
 
 making her defense, she must deny in her petition, on oath, the truth of 
 the charges made against her, or show therein some Valid defense to the 
 husband's suit.' And the court will not, on such a motion, decide as to 
 her guilt, by opposing affidarits, but leave her to be indicted and pun- 
 ished for perjury, if her denial of the charges upon oath be untrue." 
 
 The court has always exercised a broad and liberal discretion, as well 
 as an indulgent consideration towards the wife ; especially where the 
 husband is of sufficient ability, and has manifested a delay or backward- 
 ness in prosecuting his complaint. In one case, where the bill was filed 
 by the husband for a divorce on the charge of adultery, and the charge 
 was denied under oath by the defendant, and an issue was awarded to try 
 the question ; and an allowance was made for the expenses of the suit 
 and for ud interim alimony ; the complainant having neglected to bring 
 on the issue to be tried, the defendant, upon the affidavit of her attending 
 physicians, showing that her health was such that the safety of her life 
 required that she should spend the winter months, either in the West 
 Indies or in the southern states ; and upon hearing counsel for the com- 
 plainant, the vice chancellor ordered a gross sum of $400 to be paid to 
 her immediately, for the expense of her journey and board for four months ; 
 and that her former allowance for ae? interim alimony should in the mean 
 time be suspended. The income ot the husband was about $2000 a year. 
 On appeal by the husband to the chancellor, it was contended that the 
 court was not authorized to make an allowance for that purpose, but the 
 order was affirmed by the chancellor.^ 
 
 The alimony allowed to the wife pending the suit is much smaller, in 
 proportion, than that which is assigned her as a permanent provision, 
 after she has obtained a decree for a divorce or a separation.* If the bill 
 is improperly filed, or is multifarious, so that a decree cannot be grounded 
 upon it, alimony or an allowance for costs cannot be ordered.' But such 
 an allowance has been ordered, pending a demurrer to the wife's bill, and 
 may be granted before answer, when the bill is filed by the wife.' 
 
 It is perhaps impossible to fix any definite rule for the allowance of 
 ad interim alimony. The chancellor said, on one occasion, that the hus- 
 band who is guilty of adultery voluntarily subjects himself and his prop- 
 erty to the jurisdiction of the court, so far as to enable the chancellor to 
 orde^: his property to be applied to the support of his family during the 
 
 ' Osgood v. Osgood, 2 Paige, 621. " Rose v. Eose, 11 Paige, 166. "Wood v. 
 
 " Id. 628. Wood, 2 id. 482. 8 "Wend. 877. 
 
 ' Lynds v. Lynds, 2 Barb. Gh. E. 72. « Mix v. Mis, 1 J. Oh. R. 108. Denton 
 
 * Lawrence v. Lawrence, 8 Paige, 267. v. Denton, 1 id. 864. 
 Germond v. Germond, 4 id. 643. 
 
Ch. 8.] Married "Women. Alimony. 667 
 
 litigation and afterwards. The court may also compel him to devote a 
 part of his daily earnings to the same object pending the suit.' In that 
 case the bill was by the wife for the adultery of the husband, and there 
 were three children of the marriage, the eldest of whom was but six years 
 old, and they remained with the mother and were supported by her. 
 The income of the husband's property, including his personal services as 
 captain of a coasting vessel, was $35 a month, and the court ordered the 
 defendant to pay $25 a month for the support of his wife and children 
 pending the litigation. 
 
 If the parties stand upon an equality as to means, both depending upon 
 their peasonal labor for support, and neither party earning more than ( 
 enough for that purpose, the court has declined to make an order, which / 
 would only result in the imprisonment of one party without benefit 
 to the other.' And so if the wife has sufficient property of her own to 
 defray the expenses of the litigation, and support herself during its pen- 
 dency, there is no occasion, nor is it usual, to order the husband to ad- 
 vance any more until her own means are exhausted.' 
 
 With respect to the custody of the children of the marriage, pending 
 the suit, the court will not, in general, make an ex parte order, but will 
 require notice to be given, unless it be a case of urgent necessity.* An 
 injunction may be granted to prevent the <«hildren from being removed 
 out of the state until the court can be applied to, to dispose of the ques- 
 tion as to their temporary custody.^ 
 
 Where the parties cohabit together during the suit, the court will not 
 give to either the exclusive charge of the children.* 
 
 In one case,' Chancellor Kent, pending a billby the wife for a divorce, 
 en the ground of the cruelty of the husband, and under the peculiar cir- 
 cumstances of the case, ordered that the wife should have the exclusive 
 custody, care and direction of the children, and that the husband should 
 not be permitted to visit them, except under the direction of a master in 
 chancery. In that case, the husband was shown to be intemperate, vio- 
 lent in his temper, and accustomed to treat both his wife and children 
 with cruelty, and he had no property of his own, and the wife was 
 entitled to a large estate. 
 
 After the rights of the parties have become fixed by the decree, there 
 is, of course, no longer any dispute as to which is the guilty party. The 
 
 • Kirby v. Kirby, 1 Paige, 262. * Laurie v. Laurie, 9 Paige, 234. 
 
 ' MS. V. Ch. 4th circuit. ' Id. 
 
 ' Osgood V. Osgood, 2 Paige, 624. « Collins v. Collins, 2 id. 9. 
 
 MorreU v. Morrell, 2 Barb. S. 0. K. 480. ' Codd v. Codd, 2 J. Oh. E. 141. 
 Colling V. Collins 2 Paige, 9. 
 
668 Op Persons under Disability. [Oh. 8. 
 
 right to alimony, the custody, care and education of the children, as well 
 as their legitimacy,' and the costs of the litigation, remain to be disposed 
 of by the court. ' 
 
 If the separation be granted, at the suit of the husband, for cruelty to 
 him, and consequently the wife be found to be theguilty party, the court has 
 no power to order the husband to provide for her support.' And in case 
 the divorce be for the adultery of the wife, we have already seen that by the 
 statute the husband's interest in her real and personal estate is not affected 
 by the decree f and that she forfeits her title to dower in his estate. 
 
 "With respect to the amount which shall be allowed to the wife out of 
 her husband's estate, upon a divorce for the adultery of the husband, or 
 for his cruelty towards her, the general rule was stated by Chancellor 
 Kent, on one occasion, to be, to allow the wife a third, or at least a fourth 
 part of the income of the husband's real estate^ and that it is in the 
 power of the court to vary the allowance, from time to time, according to 
 the circumstances of the parties.' In a case before Chancellor "Walworth, 
 the court allowed an annuity, equal to the value of one third of the hus- 
 band's property at six per cent, and would have allowed her the value 
 ©f one half, if she had been discreet, prudent and submissive to her hus- 
 band.'' The case shows that ihe prior conduct of the wife, though not a 
 justification of the defendant's conduct, will not be without its influence, 
 in fixing the final alimony in the case. 
 
 This subject underwent much discussion before the vice chancellor, 
 the chancellor and the court of errors, in a celebrated case, where the 
 amount was fixed by the vice chancellor, without a reference.^ In that 
 case it was left in doubt whether, upon a decree for a divorce or separa- 
 tion, the court could award a gross sum for alimony, instead of an annuity, 
 as is generally done. The vice chancellor intimated that an annuity only 
 could be granted, and the chancellor waived, as immaterial on that appeal, 
 a. discussion of the question, and the point was thus left undecided by 
 him.' The annuity allowed by the vice chancellor was f 10,000 a year, 
 to commence at the date of the decree. On an appeal by the defendant, 
 the chancellor aflirmed the decree, with a modification, directing the annu- 
 ity to commence from the filing the bill, and in computing the arrearages, 
 to deduct the ad interim alimony which had been received by her or her 
 solicitor. The effect of this modification was to add about $12,000 to the 
 
 ' Palmer v. Palmer, 1 Paige, 276. ' Peckford y. Peckford, 1 Paige, 274. 
 Perry v. Perry, 2 Barb. Oh. E. 811. » Burr v.Burr, 10 Paige, 22 ; affirmed^ 
 
 • 2 E. 8. 146, § 47, aud see ante. 7 Hill, 207. 
 
 • Miller V. Miller, 6 J. Oh. R. 91. " Burr v. Burr, 10 Paige, 26, 8T. 
 
Ch. 8.] Married Women. Restoration of Property. 669 
 
 decree of the vice chancellor. The chancellor also directed that the wife 
 should have the power t6 dispose of any portion of it that might remain 
 at her death, by will or otherwise, in case the husband should survive 
 her. The decree of the chancellor was affirmed by the court of errors. 
 
 This case was peculiar in its character, " and if ever a case called for 
 an extraordinary allowance," said the chancellor, " this is one ; for I 
 think it is without a parallel in this or any country." It was a bill filed 
 for a separation by the wife for cruel treatment by the husband. The 
 conduct of the wife was shown to have been exemplary, and unexception- 
 able, during the marriage-. She was shown to have brought to her hus- 
 band at the marriage a sum of money, which, had it been then invested, 
 Would have produced, at the time of the decree, an annuity of two thou- 
 sand dollars a year. The estate of the husband was from half a million 
 to a million of dollars, and but one person who had any claims' upon his 
 bounty.' The English decisions show that from a third to a moiety is 
 often allowed in this class of cases, and that the element of punishment 
 for the husband's misconduct, as in actions where exemplary damages 
 are allowed at law, has in some instances prevailed ; as seems to have 
 been countenanced in this case, both by the vice chancellor and .chancel- 
 lor, and by the majority of the court of errors." 
 
 We have hitherto considered the relief which equity affords to the wife, 
 on a divorce or separation, out of the estate of the husband. It remains 
 that something be said with respect to the protection which the court 
 affords the wife against the claim of the husband or his creditors to her 
 property, and of its power to restore it to her. The jurisdiction, in this 
 respect, does not rest upon the statutes of 1848 and 1849 for the more 
 effectual protection of the property of married women, but springs from 
 the principles of natural justice, and which are declared also by the 
 Revised Statutes.' The court in these cases considers the husband as 
 having, by his misconduct and criminality, forfeited all right to this wife's 
 property, which he acquired by virtue of the marriage, whether the 
 same be in possession or in action. And upon the ground that she i^ in 
 equity entitled to a restoration of the property, which he has forfeited by 
 
 ' See opinion of V. Ch. 10 Paige, 26 ' Holmes v. Holmes, 4 Barb. 295. 
 
 to 29, where the facts are stated. Van Duzer v. Van Duzer, 6 Paige, 366. 
 
 ''Myttonv.liryttoi),3Hagg.Eoo.R.656. Fry v. Fry, 7 id. 461. Renwick v. Een- 
 
 Smithv. Smith, 2 Phill. 237. Case of Earl wick, 10 id. 420. 2 E. S. 146, 147. 
 
 i>( Pomfret, decided at the Arches court Meehan v. Meehan, 2 Barb. S. C. E. 877i 
 
 in 1796, and found in Smith V. Smith, Saoket v. Giles, 3 Barb. Oh. E. 204. 
 snpra. Otway v. Otway, 2 Phill. R, 109, 
 
670 Op Persons under Disability. [Ch. 8. 
 
 a willful breach of the marriage contract, the court may, upon a dissolu- 
 tion or permanent suspension of the marriage contract, restore to the 
 injured wife the whole of her property, which has not already passed 
 into the hands of bona Jide purchasers. Upon the ground, also, that her 
 equitable claim relates back to the time of the commission of the offense 
 which entitled her to a divorce or suspension of the marital rights of the 
 husband, the court may not only protect that equity against the husband 
 himself, but also against all others except bona fide purchasers, or those 
 who have obtained a specific lien upon the property without notice of 
 her equitable rights, and that she intended to enforce them by a bill for 
 a separation. A judgment creditor who has only a general lien, and 
 which accrued subsequently to the husband's forfeiture of his marital 
 rights, is not entitled to enforce it against this prior equity of the wife." 
 Though the right of the wife to the immediate use of her land, if she 
 establishes her right to a decree of separation, be superior to the liens of 
 the judgment creditors of her husband, yet if the husband's interest be 
 sold under the judgment while the parties are living together as man 
 and wife, and the purchaser or redeeming creditor has no notice of the 
 wife's right to a separation, he is entitled to protection as a bona fide 
 purchaser. The right of the husband to redeem being expired, the wife 
 cannot redeem in the three months thereafter ; and it is immaterial to her 
 whether the purchaser or a redeeming creditor acquires the legal title." 
 
 With regard to the care and custody of the children, after a final 
 decree for a divorce or separation, the object is hot to gratify the wishes 
 of the parents merely, but to protect and provide for the children of the 
 marriage, whose condition cannot fail to awaken the sympathy of the 
 court.' In the last mentioned case, the divorce having been granted 
 for the adultery of the husband, the care and custody of the infant 
 daughter of the marriage was given to the mother. In other cases, where 
 the divorce was for the cruelty of the husband, the custody of the infant 
 children was, under the circumstances, given to the mother.* ' The right 
 of the father to the custody of his infant children, independently of a 
 bill for a divorce or separation, may be lost by his misconduct j and 
 equity has an undoubted right so to dispose of the question as will 
 ibest promote their interest and welfare." But the statute confers upon 
 
 ' Van Duzer v. Van Duzer, supra, and * Codd v. Codd, 2 J. Ch. K. 141. 
 the oases last cited. Barere v. Barere, 4 Id. 187. 
 
 " Sacket v. Giles, 3 Barb Oh. E. 204. ' See ante. Meroein v. The People, 
 
 " Oook V. Cook, 1 Barb. Oh. R. 689. 25 Wend, 64, 108. "Wellesley v. Beau- 
 fort, 2 Euss. Oh. 0. 1. 
 
Ch. 8.] Idiots, Lunatics, &c. 671 
 
 the court, whicli pronounces the decree, ample power to make order aS 
 between the parties for the custody, care and education of the children 
 of the marriage, as may seem necessary and proper, and may at any 
 time thereafter annul, vary or modify such order.' Though it may be 
 improper to entrust the custody of an infant daughter to a parent who 
 has been convicted of adultery and divorced for that cause ; yet the stat- 
 ute contemplates that there may be a reformation of conduct, or other 
 change of circumstances, which would justify a change of the order, or a 
 modification of it. 
 
 In actions of this kind the question of costs has always been in the 
 discretion of the court, and is still so left by the Code of Procedure. It 
 is usual that the prevailing party recovers costs. But if the wife fails in 
 her suit no decree can be made against her for costs, if she has no 
 separate estate." The next friend of the wife, complainant, is liable for 
 her costs, in case she fails in her action, and costs are allowed. And on 
 an appeal by the husband, against whom a decree has been pronounced, 
 the bond for costs must be given to the next friend of the plaintiff, or to 
 some officer of the court in trust for the wife.' 
 
 SECTION ni. 
 
 OF IDIOTS, LUNATICS, PERSONS OF UNSOUND MIND, AND PERSONS mCAPABLE 
 OF CONDUCTINO THEIR OWN AFFAIRS, IN CONSEQUENCE OP HABITUAL 
 DRUNKENNESS. 
 
 The subject of mental capacity arises in several ways. In courts both 
 of law and equity a direct issue may be made, as to the capacity of a 
 party to make a contract, or of a testator to make a will, and in these 
 cases the rules of law and equity are the same.^ In courts of criminal 
 jurisdiction, the question may arise with respect to the responsibility of 
 the accused for his acts charged as criminal, and in this case the same 
 rule seems to prevail that is recognized with reference to contracts. The 
 question may also arise, in an action of false imprisonment, for committing 
 the party to the charge of a lunatic asylum. And it is necessarily in- 
 volved in every proceeding under the statute for the safe keeping and 
 
 » 2 E. S. 148, § 59. ' Burr v. Bnrr, 10 Paige, 166. 
 
 "Perryv. Perry, 2 Paige, 501. Wood « Bennet v. Vade 2 Atk. 327. Os- 
 V. Wood, 2 id. 454. mond v, Fitzroy, 3 P. Wms. 130. 
 
672 Of Persons under Disability. [Oh. 8. 
 
 care of lunatics, ■whether the proceeding have reference to the security of 
 the public against apprehended mischief, or be intended for the benefit or 
 restoration of the person thus committed.' 
 
 The discussion of the subject, under the foregoing aspects, belongs more 
 appropriately to works devoted exclusively to the subject, or to writers on 
 medical jurisprudence, or criminal law, than to a treatise on equity juris- 
 prudence. The aspect in which the infirmity is viewed by a court of 
 equity, when the object is to protect the party laboring under the disa- 
 bilily, from his own acts, and to take the guardianship of his person and 
 estate, is in some respects different from the light in which it appears to 
 a tribunal, where the sole question is whether the party, whose conduct is 
 in question, had sufficient mental capacity to make a deed, or perpetrate 
 a crime. A party may, perhaps, properly be the subject of medical treat- 
 ment, at an asylum for the insane, who at the time is responsible for his 
 crimes, and whose contracts could not be successfully assailed. The ob- 
 ject there is to remove the disease, in its incipient stages, rather than to 
 protect society, or the individual himself, from meditated acts of violence. 
 In modern times the courts of equity have upheld inquisitions as entitling 
 the party to the protection of the court, and subjecting his person to its 
 control, which a century ago would have been quashed.* 
 
 The nature and origin of the jurisdiction of the coUrt of chancery in 
 England, over idiots and lunatics, do not very clearly appear ; though 
 the better opinion is, that the custody of that class of persons, being a 
 branch of the prerogative, the appointment of the committee necessa- 
 rily devolved on the person to whom that branch of the prerogative was 
 entrusted.' Though the jurisdiction in the case of idiots was anciently, in 
 some respects, difierent from that of lunatics, yet practically, the difier- 
 ence, in modern times, is of no essential importance ; and in this state, if 
 it ever existed, no trace of it remains in our jurisprudence at this day. 
 
 By the Revised Statutes, the care and custody of all idiots, lunatics, 
 persons of unsound mind, and persons incapable of conducting their own 
 affairs, in consequence of habitual drunkenness, anH of their real and per- 
 sonal estates, were vested in the chancellor, and now, by the constitution of 
 1846, in the supreme court. By statute, the court is to see that their 
 estates be not wasted or destroyed, and to provide for the safe keeping and 
 maintenance of the persons above mentioned, and for the maintenance of 
 their families, and the education of their children, out of their personal 
 
 ' See the statutes, 2 E. S. 87, 4th ed. ' 1 Fonb. Eq. B. 1, oh. 2, § 2, n. 2 
 
 ' Ridgeway v. Darwin, 8 Ves. 66, 67. Mad, Oh. Pr. 665. 
 
Ch. 8.] Idiots, Lunatics, &c. 6T3 
 
 estetes and the rents and profits of tlieir real estate respectively.' Under 
 the former constitution, the vice chahcellors in their respective circuits 
 had concurrent jurisdiction with the chancellor, subject to his appellate 
 jurisdiction, of all matters of this kind.* And under the present consti- 
 tution, the county courts of the respective counties have concurrent juris- 
 diction with the supreme court, subject to appeal to the latter court, of 
 " the care and custody of the person and estate of a lunatic, or person of 
 unsound mind, or an habitual drunkard, residing within the county of 
 which he is such judge."' 
 
 Although, in this state, it is of no importance whether a party be found 
 an idiot, a lunatic, or a person of unsound mind, who is incapable of con- 
 ducting his own affairs, as the same consequence results from either find- 
 ing ; yet, as the terms idiocy and lunacy frequently occur in the books, 
 it may be expedient briefly to define them, in connection with the other 
 expression in the statute, unsound mind. 
 
 An idiot, or natural fool, is one that hath had no understanding from 
 his nativity ; and therefore is by law presumed never likely to attain any. 
 By the old common law, there was a writ de idiata inquirendo, to inquire 
 whether a man be an idiot or not ; which was tried by a jury of twelve 
 men, and if they found him purus idiota, the profits of his lands and the 
 custody of his person were granted by the king to some subject who had 
 interest enough to obtain them. This' according to Blackstone, was 
 originally a branch of thfe king's revenue. But few instances, it is said, 
 can be given of the oppressive exertion of it, since it seldom happens that 
 a jury finds a man an idiot a nativitate, but only non compos mentis 
 from a particular time.* A man is not an idiot if he hath any glimmer- 
 ing of reason, so that he can tell his parents, hifi age, or the like common 
 matters. But a man who is born deaf, dutnb and blind, is looked upon 
 by the law as in the same state with an idiot ; he being supposed incapable 
 of any understandings as wanting all those senses which furnish the hu- 
 man mind with ideas.^ 
 
 A lunatic, or non compos mentis, is one who hath had understanding, 
 but by disease, grief or other accident, hath lost the use of his reason.' 
 Under the general name of non compos mentis, which Coke says is the 
 most legal name, are comprised not only lunatics, but persons under fren- 
 
 ' 2 B. S. 62. ♦ 1 Bl. Com. 316, 317. 
 
 • Id. 168. • Id. 
 
 ' Code of Procedure, § 30, subd. 8. • Id. 1 Inst. 247. 
 
 Eq. Juk. 85 
 
674 Op Persons under Disability. [CL. 8. 
 
 zies ; or who lose their intellect by disease ; and those who grow deaf, 
 dunib and blind, not being born so.' 
 
 At common law, it was presumed that an idiot would always remain so j 
 but that a lunatic might perhaps be restored to his reason. But the skill 
 of medical science hai,s shown that the first of these presumptions is un- 
 founded, and that the mind of the idiot is susceptible of cultivation. A 
 beneficent provision has been mad« by this state, not only for the lunatic 
 but als,o for the idiot ; and the institutions established for these purposes 
 have proved eminently successful, and are an honor to the distinguished 
 names by whose auspices they have been founded.* 
 
 A person born deaf and dumb is not treated by us as an idiot or non 
 compos mentis. He is not for that cause alone to be placed under a 
 committee, and the presumption of incapacity is merely a presumption in 
 his favor, to guard and protect him against imposition and fraud.' There 
 are instances in this state and elsewhere, where persons bom deaf and 
 dumb have been held responsible for crime.'' 
 
 The questions of jurisdiction, in matters of this kind, have reference to 
 the nature and degree of mental imbecility which will justify the inter- 
 ference of a court of equity in awarding a commission, and in placing the 
 person and estate of a party in the hands of a committee. The terms 
 idiot and lunatic are technical terms, and words of , well known signifi- 
 cation ; and hence there is no difficulty, when the inquisition finds the 
 party to be either an idiot or a lunatic, in awarding a commission. But 
 there are cases of mental weakness, which fall short of idiocy or lunacy, 
 that sometimes claim the protection of the court, or become the 
 ground of relief. In this class of cases, if the imbecility of mind be not 
 sufficient of itself to invalidate a contract, it will still be a circumstance 
 of gre?it importance in a bill to se|; aside a conveyance, if it was obtained 
 by undue influence, if the,consider?ition was inadequate, or if the grantee 
 stood in such relation to the grantor, that the obtaining of the deed was a 
 breach of confidepce reposed in the former by the latter. This class of 
 cases has been elsewhere considered, If the mental incapacity be such, 
 that it wuld, not justify a jury in finding the gra,ntor to be of ;ansound 
 mind, wi,thip the meaning of the statute, equity wilL not set p.side the 
 deed for imbecility alone,* 
 
 As thi^, statUjtie, confers on, the court jurisdiction over idiots, ,lun»tiGS, 
 
 ' 1 Bl. Oom. 817. 1 Inst. 246, 247. » Brower v. Fisher, 4 J. Oh. R. 441. 
 26 Wend. 299. ' MS. 
 
 " See the various statutes on these sub- " Sprague v. Duel, 11 Paige, 480. 
 jects and the report of the inanagers to 
 the Legislature, 
 
Ch. 8. Unsound Mind. 675 
 
 persons of unsound mind and habitual drunkards, it becomes important 
 to inquire what is meant, in this connection, by the words unsound mind. 
 There are doubtless various degrees of unsoundness, from idiocy to the 
 slightest defect. Indeed it was said on one occasion by Dr. Haslam, who, 
 after years of professional observation of the phenomena of mental dis- 
 ease, replied to the question, " "Was Miss B. of sound mind ?" that he 
 never knew any human being who was of sound mind." When the term, 
 unsound mind, has reference to the capacity of the party to make a deed 
 of a will, the courts in this state have held it to be synonymous to idiocy 
 and lunacy, as importing a total deprivation of memory and understand- 
 ing.' But it is to be observed, that in the statute of wills, all persons 
 have the power thus to dispose of their property, except idiots, persons 
 of unsound mind, married women and infants,' The term lunatic is not 
 mentioned, and is obviously embraced in the term unsmind mind.* 
 
 But the statute under consideration, after using the well known terms, 
 idiot and lunatic, adds that of persons of unsound mind. If the latter 
 term does not comprise eases not found in the former, the words are sense- 
 less and unmeaning. In one case the chancellor admitted, that mental 
 imbecility may exist in various degrees, between absolute idiocy and the 
 ordinary state of mental capacity, as it exists among mankind in general. 
 But he said in the same case, that to constitute a case of unsoundness 
 of mind, which will justify the court in taking the person and property of 
 a freeman into its possession, and eommitting them to the custody of an- 
 other, his mind must be so far impaired that if it had never been elevated 
 above that state of capacity from his birth, it would have constituted a 
 case of idiocy.' If this be so, the term imsound mind, in the statute, is 
 merely synonymous with idiocy. 
 
 The case which the chancellor was considering did not call for any such 
 decision, and it is believed that the remark quoted cannot be supported 
 to that extent. In the case before him, the finding of the jury was, to a 
 commission in the nature of a writ de lunatico inquirendo, that the party 
 agdinst whom it issued was incapable of managing his affairs, or gov- 
 erning himself, in consequence of mental imhedlity and weakness. 
 Arid upon this inquisition, an application was made to the chancellor for 
 the appointment of a committee of his person and estate, which he denied, 
 
 ' See his remarks quoted by Verplanek 24 Vend. 85. Jackson v. King, 4 Cowen, 
 in Stewart v. Lispenard, 26 Wend. 303. 207. Olark v. Fisher, 1 Paige, 171. 
 
 " Stewart v. Lispenard, id 225. Blanch- = 2 K. S. 56, § 1. 
 ard V. Nestle, 3 Denio, S7. Osterhout v. * See the preceding cases. 
 Shoemaker, id, n. Petrie v. Shoemaker, ' In the matter of Morgan, 7 Paige, 
 
 237. 
 
676 Of Persons undue Disability. [Ch. S. 
 
 and ordered a new commission to issue in the usual form. The chancel- 
 lor thought that unless the jury could find, in terms, as in the case of 
 Barker, before Chancellor Kent, that the party was of " unsound mind, 
 and mentally incapable of governing himself or of managing his affairs," 
 the court ought not to interfere with the person or property of the alleged 
 lunatic. The question whether the jury should be held to find the party 
 of unsound mind, in the language of the statute, is quite a different thing 
 from the question, whether the terms unsound mind and idiot, as used 
 in the statute, are of the same meaning, or import the same thing. 
 
 It is admitted that the earlier chancellors of England, in the exercise 
 of their jurisdiction over persons incapable of taking care of themselves, 
 confined themselves to cases of strict idiocy and lunacy. Accordingly 
 Lord Hardwicke held an inquisition, which found that the alleged lunatic, 
 from weakness of mind, was incapable of governing himself, or his estate, 
 to be insufficient.' In that case, the chancellor remarked, that he was 
 glad to find, upon search, that except in two or three instances, the re- 
 turn had been lunaticus, or myn compos mentis, or insancB mentis ; or, 
 since the proceedings have been in English, of unsound mind. He add6d 
 that he desired they should continue so, or otherwise it would introduce 
 great uncertainty.'' 
 
 About the same time, the same chancellor quashed a return which found 
 the alleged lunatic not of sufficient understanding to manage his own 
 affairs ; and another, in which the jury found him to be " worn out with 
 age, and incapable of managing his own affairs."^ 
 
 The reason for adhering to so great strictness was doubtless in part, as 
 suggested by Lord Hardwicke in Barnsley's case, the desire of maintain- 
 ing the prerogative of the crown in its just and proper limits, and to pre- 
 vent it from being extended so as to restrain the liberty of the subject 
 and his power over his own person and estate, further than the law would 
 allow ;* and in part, as suggested by a learned judge of the supreme court 
 in the matter of Mason, already cited, that in England the inquisition is 
 traversable, as a matter of right, and a departure from the ancient forms 
 would lead to uncertainty and confusion. Neither of these reasons apply 
 to our practice. The prerogative of the crown, to which the people have 
 succeeded, has no existence in any sense in which it can work a prejudice 
 
 ' Ex parte Bamsley, 8 Atk. 168. In • M. Lord Donnegafs case, 2 Vea. sen. 
 
 the matter of Mason, 1 Barb. S. 0. K. 401, A. D. 1751. Bridgman's Index, tit 
 
 439, per Harris, J. Lnnaties, &g., 276. 
 
 • Id. ♦ Id. 
 
Ch. 8.] Unsotjnd Mind, 677 
 
 to individuals, and the right of traverse does not exist at all ; and the 
 award of an issue rests in the discretion of the court.' 
 
 The earliest departure from the strict technical rules insisted on by 
 Lord Hardwicke, relative to these commissions, occurred in the time of 
 Lord Eldon, in the commencement of the present century. On that occa- 
 sion his lordship laid down the principle, that evidence might support a 
 commission, not of lunacy, but i!i the nature of a writ de lanatico inqui- 
 rendo ; in which it must be remembered, that it is not necessary to estab- 
 lish lunacy, but it is sufficient that the party is incapable of managing his 
 own affairs.^ In a subsequent case, a year later, a commission of lunacy 
 having been issued against a lady under which the jury found she was not 
 a lunatic, and was sufiScient for the government of herself, and her estate ; 
 upon a petition that the verdict was not supported by the evidence, and 
 that the jury had proceeded upon the- notion that this commission could 
 only be applied to a case of actual insanity; the chancellor, after personal 
 examination and reading the evidence, from which the nature of the case 
 appeared to be imbecility of mind, in a great degree proceeding from epi- 
 lepsy, remarked, that the court, in Lord Hardwicke's time, did not grant a 
 commission of lunacy in cases in which it had since been granted. And 
 he observed, that of late the question has not been, whether the party 
 is absolutely insane ; but the court has thought itself authorized to issue 
 the commission, provided it is made out that the party is unable to act 
 with any proper and provident management ; liable to be robbed by any 
 one ; under that imbecility of mind not strictly insanity, but as to the 
 mischief, calling for as much protection as actual insanity.' The subject 
 underwent a further investigation by Lo'rd Erskine in 1806, in a case which 
 has often been quoted with approbation in this country.* In that case, 
 the first inquisition found that Cranmer was so far debilitated in his mind 
 as to be incapable of the general management of his affairs, but did not 
 find that he was of unsound mind, and for this reason the inquisition 
 was quashed, and another commission awarded, under which the jury 
 found that Cranmer was oi unsound mind, and not sufficient fmr the gov- 
 ernment of himself and. his estate. And the chancellor, in upholding 
 the latter finding, held that the commission of lunacy was applicable to 
 incapacity, from causes distinct from lunacy, such as old age, sickness 
 and the like, but that the return, if not in the Words of the. commission, 
 
 • Matter of Mason, 1 Barb. S. 0. E. ' Eidgeway v. Darwin, 8 Ves. 65. 
 
 436. Matter of Tracy, 1 Paige, 580. In * Ex parte Cranmer, 12 Ves. 445. Mat- 
 
 the matter of Wendell, 1 J. Oh. E. 600. ter of Barker, 2 J. Oh. K. 445. Matter of 
 
 ' Gibson v. Jeyes, 6 Ves. 272. Morgan, 7 Paige, 288, 
 
678 Of Persons under Disability. / [6h. 8. 
 
 must have equivalent words ; and in such cases the proper return is, that 
 the party is of unsound mind, so that he is not sufficient for the govern- 
 ment of himself and his estate. 
 
 A similar question came before Lord Lyndhurst in 1827.' Under a com- 
 mission of lunacy issued against Mr. Holmes, the jury found, " that the 
 Rev. William Holmes is not a lunatic, but that partly from paralysis and 
 partly from old age, his memory is so much impaired, as to render him 
 incompetent to the management of his affairs, and consequently of unsound 
 mind, and that he has been so for the term of two years last past." Upon 
 this finding a petition was presented for the appointment of a committee, 
 and a cross petition by other parties to quash the inquisition. The ground 
 of the latter motion was, that the verdict was no answer to the inquiry 
 which the jury were directed to make. The chancellor, after reviewing the 
 cases before Lord Bldon and Lord Erskine, and approving of them, said, 
 "that the finding in this case was consequential, the impaired memory of 
 the party being the foundation of it. The jury state one of the effects 
 or consequences of unsoundness of mind, and they thence draw the con- 
 clusion of unsoundness. Where a jury state their premises and draw 
 their conclusion, and that conclusicin does not necessarily follow from the 
 premises which they state, we must not take the conclusion as a finding 
 by itself" 
 
 Upon the ground that the verdict was not in the accustomed form, and 
 that the consequences stated by the jury did not necessarily follow from 
 the premises, his lordship quashed the inquisition, and ordered a new com- 
 mission to issue. 
 
 The finding in this case was argumentative, and not direct and posi- 
 tive. Had the jury found Mr. Holmes of unsound mind, the facts which 
 they also found, to wit, " that partly from paralysis and partly from old 
 age, his memory is so much impaired, as to render him incompetent to 
 the management of his affairs," would have been ample to justify and 
 uphold the finding. Accordingly, on the new commission in that case, 
 the jury found Mr. Holmes of unsound mind, in the language of the com- 
 mission ; and we hear of no further objection to it. 
 
 In all cases the verdict should respond to the questions which the juiy 
 are sworn to try. A demand and refusal are sufficient evidence, in an action 
 of trover, to warrant the jury in finding a conversion ; but the court cannot 
 give judgment on a verdict which merely finds a demand and refusal. Such 
 verdict is neither a special or a general verdict ; it is an imperfect verdict. 
 
 ' In re Holmes, 4 Russ. 182. 
 
Oh. 8.] Unsound Mind. 679 
 
 It is presumed that a special verdict is inadmissible in a commission of 
 the nature we are considering. 
 
 The doctrine of Lord Eldon and Lord Erskine was approved by Chan-, 
 cellor Kent as early as 1816.' In the case of Barker, upon a petition by 
 the children, that the said Barker had been for four months past so far 
 deprived of reason and understanding, as to be wholly unfit and unable 
 to manage his affairs, and praying that a commission in the nature of a 
 writ de lunatico inquirendo might issue, the chancellor, after an able 
 review of the whole subject, awarded the commission to inquire whether 
 Barker was of unsound mind, and mentally incapable of managing his 
 affairs. The jury found " that for one year preceding he was of unsound 
 mind, and mentally incapable of managing his affairs." And the chan- 
 cellor, upon that finding, appointed a committee. 
 
 The doctrine of this case was approved by Chancellor Walworth in a 
 case before him, already cited." In that case the commission, in the nature 
 of a writ de lunatico inquirendo, directed the jury to inquire whether 
 Morgan, who was alleged to be of unsound mind, was a lunatic 6r idiot,, 
 or of unsound mind, and mentally incapable of governing himself and 
 managing his affairs. The jury found " that he was incapable of man- 
 aging his affairs or governing himself, in consequence of mental imbe- 
 cility and weakness, and that he had been so incapable for two or three 
 years." Upon this inquisition an application was made for the appoint- 
 ment of a committee of the person and estate, but the motion was denied, 
 and a new commission directed to be issued. 
 
 The chancellor held that the jury must distinctly find' that the alleged 
 lunatic was of unsound mind, a,B well as mentally incapable of governing 
 himself or of managing his affairs. It is quite obvious that the finding 
 in that case was imperfect. It left the court to draw the conclusion, 
 which the jury were sworn to find. 
 
 In a case before the vice chancellor of the first circuit, in 1840, the 
 same doctrine was again held.' In that case the jury found, that the 
 said " Masop, at the time of the taking, of this inquisition, is so far weak- 
 ened and impaired in the faculties of his mind, as to be mentally inca- 
 pable of the government of himself and of the management of hisgoods 
 and chattels, lands and tenements, business and affairs, and that he had 
 been so for four years." Upon a motion t0i appoint a committee, the vice 
 chancellor said that the finding was not strictly correct, as it omitted to 
 
 ' In the matter of Barker, 2 J. Oh. R. ' In the matter of Morgan, 7 Paige, 
 332; andseeMatterof "Wendell, lid. 600. 236. 
 
 ■ In matter of Mason, 3Edw. 380. 
 
680 Of Persons under Disability, [Ch. 8. 
 
 find that Mason was of unsound mind, in the language of the statute. 
 After showing what the inquisition should have found, according to the 
 established practice, instead of quashing it and ordering a new commis- 
 sion, he directed a copy of it to be served with notice for the appointment 
 of a committee, and that it should be explained to the alleged lunatic ; and 
 if no opposition was made, he said he would appoint a committee, which 
 he accordingly did. This case, on the adoption of the present constitu- 
 tion, was transferred to the supreme court, and the decision of the vice 
 chancellor was called in question in the latter court in 1847, by a petition 
 to set aside the proceedings, which was denied. In delivering their judg- 
 ment, it was intimated by the learned judge that it might, perhaps, have 
 been better if the vice chancellor had required a further commission ; and 
 he expressed his concurrence in opinion with Chancellor Walworth, in 
 Morgan's case, already cited, that it is not wise to depart from the tech- 
 nical form of finding in the language of the statute itself. Yet, he said, 
 he could not say, that under the circumstances, as they appeared before the 
 vice chancellor, it was an indiscreet exercise of his undoubted power ; that 
 it was a question of discretion and not of jurisdiction, and if the vice 
 chancellor erred, his error could only have been corrected by an appeal. ' 
 
 Some of the New- York cases were before, and others since the Revised 
 Statutes were adopted, conferring jurisdiction on the court to grant a com- 
 mission in cases of idiocy, lunacy and unsoundness of mind. Since the 
 English cases referred to were decided, the British statutes on the subject 
 of idiocy and lunacy were, in the reign of William the 4th, consolidated and 
 revised ; and they now, like the New- York statutes, recognize unsound- 
 ness of mind as one of the grounds for issuing a commission, thus adopt- 
 ing, by parliamentary authority, the doctrine, of the court of chancery 
 which had prevailed for more than thirty years before." 
 
 From the foregoing view of the cases, it seems that unsoundness of 
 mind, short of idiocy or lunacy, will uphold a commission and justify the 
 court in committing the person and estate of a person, found of unsound 
 mind, and incapable, for that cause, of the management of his person and 
 estate, to the care and custody of a committee. That this state of mind 
 may fall short of idiocy or lunacy, appears from several of the cases.' 
 The proper finding of the jury in such cases is, that the party proceeded 
 against is of unsound mind, an idiot or a lunatic, as the case may be, so 
 
 ' In the matter of Mason, 1 Barb. S. 0. ' Jackson v. King, 4 Oowen, 217, per 
 R. 486, 442. Woodworth, J., and Matter of Mason, 
 
 ' See acts, 1 "Will. 4, oh. 60, and oh. 65. snpra, &o. 
 
Ch. 8.] Taking the Inquisition. 681 
 
 that he is not sufficient for the government of himself, his lands and 
 tenements.' 
 
 Writers on medical jurisprudence have complained that the term 
 unsoundness of mind, unlike idiocy and lunacy, does not convey a dis- 
 tinct and definite idea.'-' The fault here is not in the law, but arises 
 from the nature of the subject itself. No two cases are perhaps ever 
 alike. A man may be mentally incapable of managing his affairs, or the 
 government of his person, who is not totally deprived of memory and 
 understanding. If the evidence of imbecility of mind be such that tho 
 party is incapable of the government of his person and his estate, the 
 jury can find from such evidence the unsoundness of mind, which the 
 statute contemplates, as the ground for the interposition of the court. 
 Writers may disagree as to the name by which that state of mind shall 
 be designated. The fact of its existence must be found, in direct terms, 
 by the inquisition, and not by way of argument or circumlocution. The 
 jury must draw the conclusion from the evidence, and not leave it to be 
 inferred by the court. 
 
 Having thus shown on what grounds a commission may be issued by the 
 court, in the nature of a commission of lunacy, it may be proper to add 
 some observations on the subject of taking the inquisition and on various 
 other topics connected with the subject ; and on superseding it, when the 
 party against whom it issued has recovered his senses. 
 
 It seems formerly to have been doubted whether a commission could 
 issue against a nonresident In Southcote's case,^ a commission of lunacy 
 was ordered against a person who was in France, to be executed in Essex, 
 where his mansion was. But the commission must be executed in the 
 state, and notice should be given to the lunatic, of the time and place of 
 its execution.* If the lunatic be a non-resident of the state, the fact of 
 his having property here must be stated in the petition. The lunatic 
 should be brought before the jury, who have a right to examine and 
 inspect him, and they should exercise this right in every case of doubt. 
 And the person who has the custody of the lunatic, is bound to produce 
 Lim, or to permit him to attend. The person who disobeys this order, 
 
 ' In matter of Mason, 3 Edw. Ch. R. " Ambler 109. 
 
 381. Shelf. Law of Lunatics, 108, 109. * Matter of Petit, 2 Paige, 174. Mat- 
 
 Kidgeway v. Darwin, 8 Ves. 66, 67. In ter of Ganse, 9 id. 416. Matter of 
 
 re Holmes, 4 Russ. 182. Fowler, 2 Barb. Oh. R. 305. Matter of 
 
 " 1 Beck's Med. Juris. 677. Guy's Perkins, 2 J. Oh. R. 124. Matter of 
 
 Med. Jur. 288, 289, 'J^aoy, 1 Paige, 680. 
 
 Bq. Jub. 86 
 
682 Of Pkrsons under Disability. [Gh. 8. 
 
 ■whether proceeding from the commissioners or the court, does so at his 
 peril.' 
 
 With regard to the traverse of an inquisition, it has already been stated 
 that this is not a matter of course in this state. In England this is mat- 
 ter of right. But here, as the whole jurisdiction is in the court, and the 
 object is to inform the conscience of the court, and arrive at the truth, 
 the directing an issue to be tried, under the direction of the court, has 
 been thought preferable to a traverse according to the English method. 
 The granting or withholding such an issue, rests in the sound discretion 
 of the court,* The court never grants leave to traverse the inquisition, 
 •when the application is made in the name of the lunatic, without a pri- 
 vate examination of the lunatic by the chancellor, or a report of a master 
 who has made the examination. But the court will permit a purchaser, 
 whose purchase is overreached by the inquisition, to traverse it, on stipu- 
 lating to be bound by the final decision thereon.^ 
 
 The committee of a lunatic appointed abroad, has no authority over 
 his property in this state. Chancellor Kent suggested that such com- 
 mission, issued in another state, might be sufficient to warrant the issuing 
 of a commission here.* 
 
 With respect to the selection of the jurors to try the question of 
 sanity, the law confides this duty to the sheriff, and it is irregular for 
 the commissioners to dictate to him in the matter." The jurors should 
 be indifferent in relation to the subject in controversy, and the commis- 
 sioners must decide upon the validity of any challenge that may be made 
 to any of them.° After the testimony is closed, the commissioners should 
 submit the matter to the jury, in the form of a charge, stating the law 
 applicable to the case, and recapitulating the facts if necessary, but with- 
 out arguments on either side. Twelve of the jury must agree one way 
 or the other, and if twelve cannot agree, the jury must so report to the 
 commissioners, that their return may be made accordingly. A majority 
 of the commissioners may decide any legal question arising in the 
 proceeding.' 
 
 During the deliberations of the jury it is improper for the sheriff to 
 
 » Matter of Eussell, 1 Barb. Oh. E. 38. ' Id. Matter of Giles, 11 Paige, 243. 
 Lord Wenman's case, 1 P. Wms. 701. ' Matter of Perkins, 2 J. Oh. R 124. 
 
 Ex parte Ludlow, 2 id. 688. Matter of Petit, 2 Paige, 174. Matter of 
 
 • Matter of Wendell, 1 J. Oh. E. 600. Ganse, 9 id. 416. 
 Matter of Tracy, 1 Paige, 680. Matter ' Matter of Wager, 6 id. 11. 
 of Eussell, 1 Barb. Oh. E. 88. Matter of » Id. 
 Christie, 5 Paige, 242. ' Matter of Arnhout, 1 id. 497. 
 
Ch. 8.] Habitual Drunkards. 683 
 
 he in the room with them, or to converse with them at all in relation to 
 the matter under consideration. If so directed by the commissioners, it 
 is his duty to guard the jury room, and prevent their being intruded 
 upon ^y others. Where he violated his duty by entering the room and 
 conversing with them on the matter before them, the inquisition was set 
 aside and a new commission awarded, with an order that the coroner sum- 
 mon the jury.' 
 
 The proceedings on a commission to inquire whether the party is inca- 
 pable of conducting his afl'airs, in consequence of habitual drunkenness, 
 are conducted in the same way as an inquiry as to the idiocy, lunacy or un- 
 soundness of mind of the party. The jurisdiction of the court of chancery 
 over the persons and estates of habitual drunkards, was first" given by the 
 act of ] 821, (L. p. 99,) and it was assimilated to the jurisdiction which 
 the court already exercised over the persons and estates of lunatics. At 
 the revision of the laws in 1830 this provision was retained, with some 
 modifications. The overseers of the poor of any city or town, who shiall 
 discover any person resident therein, to be an habitual drunkard, having 
 property to the amount of two hundred and fifty dollars, which may be 
 endangered by means of such drunkenness, are required to make applica- 
 tion to the court of chancery, now the supreme court, for the exercise of 
 its powers and jurisdiction.'' And if such drunkard have property to an 
 amount less than two hundred and fifty dollars, the application is to be 
 made to the court of common pleas of the county, now the county court, 
 which for this purpose is vested with the powers of the court of chancery. 
 In vacation of the common pleas, the application was allowed to be made 
 to the first judge, but this latter proceeding is now superseded by the 
 code, which enables the county court to take jurisdiction of these cases, 
 whatever the amount of property of the drunkard, provided he resides in 
 the same county of the judge.^ 
 
 The traverse of an inquisition finding a party an habitual drunkard is 
 not the formal traverse spoken of in the English works, but is an issue 
 directed by the court, to inform its conscience, and is always proper in 
 cases of doubt, especially under the act relative to habitual drunkards.* 
 
 With regard to the finding, in cases under the latter statute, the chan- 
 cellor said, in the last mentioned case, that a very erroneous impression 
 appears to have gone abroad on the subject. It is supposed by many, he 
 
 ' Matter of Amhout, 1 J. Oh. R. 497. ■* Matter of Tracy, 1 Paige, 682. Mat- 
 " 2 R. S. 62, § 2. ter of Russell, 1 Barb. Oh. R. 38. 
 
 * Id. §§ 3, 4. Oodi of Procedure, § 30, 
 eubd. 8. 
 
684 Op Persons under Disability. [Oh. S. 
 
 observed, that the prosecutor, in such cases, is bound to prove affirmatively 
 that an habitual drunkard is incapable of managing his affairs. On the 
 contrary, the fact that a person is for any considerable part of his time 
 intoxicated, to such a degree as to deprive him of his ordinary reasoning 
 faculties, is prima facie evidence, at least, that he is incapable to have 
 the control and management of his property.' It would seem, therefore, 
 that evidence -which establishes the fact that a man is an habitual drunkard, 
 will authorize the jury to find the other fact that he is, by reason of such 
 habitual drunkenness, incapable of conducting his own affairs. In anal- 
 ogy to the cases of incapacity, resulting from idiocy, lunacy, or unsound- 
 ness of mind, the finding of both facts would seem to be necessary to jus- 
 tify the placing the person charged, and his property, in the hands of a 
 committee. A finding, in the language of the statute, includes the find- 
 ing of both facts. 
 
 The control which the court may, by its committee, exercise over the 
 person of one who is found incapable of conducting his own affairs, in 
 consequence of drunkenness, is the same which it may exercise Qver an 
 infant, an idiot or a lunatic' The guardian or committee is alone to de-^ 
 cide, subject however to the superintending control of the court, as to the 
 proper place in which the infant, non compos or habitual drunkard shall 
 reside; as he is liable for the consequences of a neglect to take proper 
 care of the person committed to his care. And it is the duty of the court 
 to lend its aid to protect him in the proper exercise of that right ; and 
 to give him directions on the subject when necessary.' 
 
 In accordance with these principles it has been held, that if the com- 
 mittee find that any person is furnishing the habitual drunkard with the 
 means of intoxication, even gratuitously, he should apply to the court for 
 an order restraining aH persons from furnishing him with ardent spirits, 
 or with the means of obtaining liquor, upon pain of contempt.* 
 
 With respect to the person to whom the guardianship of the person or 
 estate should be committed, general fitness is to be regarded rather than 
 the selection of one who could derive no benefit from the death of the 
 party. In the case of the lunacy of the mother, Chancellor Kent com- 
 mitted the guardianship of the person to the daughter ; and observed that 
 the presumption, if one must be indulged, would be in faTor of kinder 
 treatment and more patient fortitude from her than from the collateral 
 
 ' Matter of Tracy, 1 Paige, 582, 583. 12 Ves. 455. Lord Wenmaa's ease, 1 PI 
 
 " In the matter of Lynch, 5 id. 122. Wms. 702. 
 
 ° Id: Hall T. Hall, 3 Atk. Y21. Free- ' In the matter of Hiller, 3 Paige 202. 
 
 man's case, 1 Str. 168. Oranmer's case, Matter of Hoag, 7 id, 312. 
 
Ch. 8.] Support op Lunatics, (fee. 685 
 
 kindred.' Nor is it a matter of course to commit the guardianship of 
 the estate of a lunatic to those who are presumptively entitled to it upon 
 his death, as his heirs or nextof kin. But they will be appointed, where 
 it satisfactorily appears to the court that they are the persons who are 
 the most likely to protect his property from loss.'' 
 
 In most other respects the proceedings against a person as an habitual 
 drunkard are the same as those against idiots, lunatics, and persons of 
 unsound mind. 
 
 With respect to the management and disposition of the property of 
 the lunatic, his interest is more to be regarded than the contingent in- 
 terest of those who may be entitled to the succession ; and the court, if 
 it be for the interest of the lunatic, will direct timber on the land of the 
 lunatic to be sold.' On the like principle, Chancellor Kent held, under 
 the former statute, that the real estate of the lunatic might be converted 
 into personal, or personal into real, for the benefit of the lunatic* But 
 since the Revised Statutes, the court cannot direct a sale of the real 
 estate of a lunatic, except when it is necessary for the maintenance of 
 himself or his family, or the education of his children, or the payment 
 of his debts ; nor for these purposes, if the personal estate is snf5cient.* 
 But the court may authorize the committee to apply the surplus income to 
 the improvement of the unproductive real estate ; and to apply a reasonable 
 portion of the capital of the personal estate in building upon vacant lots, 
 which will thereby be rendered productive.* 
 
 During the lifetime of the lunatic the next of kin have no interest in 
 his estate. But as the lunatic, if of sufficient ability, is bound to main- 
 tain his family, and as the court is bound to see that his property is fairly 
 devoted, to that purpose, applications are not unfrequently made to the 
 court for an order on the committee to make allowances in favor of those 
 whom he is bound to provide for, and for other relatives of the lunatic 
 towards whom he is under no such obligation. Lord Eldon, on one occa- 
 sion, gave the following explanation of the course of the court on these 
 applications : " When the court is called upon to make an allowance," said 
 his lordship,' " it has nothing to consider but the situation of the lunatic 
 himself, always looking to the probability of his recovery, and never 
 regarding the interest of the next of kin. With this view only, in case 
 where the estate is considerable, and the persons who will be entitled to 
 
 " Matter of Livingston 1 J. Ch. K. 436. » 2 E. S. 58, § 11. Matter of Petit, 2 
 
 ' Matter of Taylor, 9 Paige, 611. Paige, 696. 
 
 ' Matter Salisbury, 3 J. Oh. E. 347. . » Matter of Livingston, 9 id. 440. 
 ' Id. 1 Vera. 483. Ambler, 419. ' Ex parte Whitbread, 2 Meriv. 102. 
 
686 Op Persons under Disability. [Ch. 8. 
 
 it hereafter, are otherwise provided for, the court, looking at what it is 
 likely the lunatic himself would do, if he were in a capacity to act, will 
 make some provision out of the estate for those persons. So, where a 
 large property devolves upon an elder son, who is a lunatic, as heir at 
 law, and his brothers and sisters are slenderly, or not at all provided 
 for, the court will make an allowance to the latter for the sake of the 
 former, upon the principle that it would naturally be more agreeable to 
 the lunatic,, and more for his advantage, that they should receive an edu- 
 cation, and maintenance suitable to his condition, than that they should 
 be sent into the world to disgrace him as beggars. So also, where a 
 father of a family becomes a lunatic, the court does not look at the mere 
 legal demand which his wife and children may have upon him, and which 
 amount, perhaps, to no more than may keep them from being a burden 
 on the parish ; but considering what the lunatic would probably do, and 
 what it would be beneficial to him should be done, makes an allowance 
 for them proportioned to his circumstances. But the court does not do 
 this, because, they would be entitled, if the lunatic were to die tomorrow, 
 to the entire distribution of his estate ; nor necessarily to the extent of 
 giving them the whole surplus beyond the allowance made for the per- 
 sonal use of the lunatic. The court does nothing wantonly or unneces- 
 sarily to alter his property ; but, on the contrary, takes care for his sake, 
 that if he recovers, he shall find his estate as nearly as possible in the 
 same condition as he left it, applying the property, in the mean time, in 
 such manner as the court thinks it would have been wise and prudent in 
 the lunatic himself to apply it in case he had been capable." Upon these 
 principles the court does not confine the allowance to such relations as 
 the lunatic would be legally bound to provide for, but extends it to 
 brothers and other collateral kindred, reserving to its own discretion the 
 amount and proportions of such allowance. 
 
 The practice of making allowance out of the estate of the lunatic, in 
 favor of persons, when the lunatic was not legally bound to maintain 
 them, seems to have originated with Lord Eldon, but has been followed 
 in several cases by his successors, although with some reluctance.' These 
 principles have been fully approved and acted upon by the court of 
 chancery of the state, in many cases." The practice of Chancellor Wal- 
 worth, where the estate of the lunatic was large and the income much 
 more than suflScient for his support, and that of all those who had a legal 
 
 ' In re Blair, 1 Myl. & Or, 800. Matter Paige, 259. In the matter of Heeny, 
 of Earl of Carysfort, Oraig & Phil. 76. 2 Barb. Oh. R. 326. 
 "In the matter of ■Willoughhy, 11 
 
Ch. 8.] Support op Lunatics, «fec. 687 
 
 claim upon him for support and maintenance, and -where there was little 
 or no hope that the lunatic would recover, was to make an allowance in 
 favor of other near relatives of the lunatic who were inneed of assistance. 
 In such case it was the practice to require the adult children, who were 
 competent to support themselves, to give a stipulation that the amounts ' 
 advanced to them respectively should be brought into hotch potch, upon 
 the death of the lunatic ; if any part of his personal estate should come 
 to them under the statute of distributions. But this latter principle was 
 not extended to children of the lunatic who were sickly or decripid, so as 
 to give them a special claim upon the estate of the lunatic for support. 
 
 Nor will the court confine its jurisdiction to allowances for the kindred 
 alone of the lunatic. It has power, out of the surplus income of the estate 
 of a lunatic, to provide for the support of persons not his next of kin, and 
 whom the lunatic is under no legal obligation to support, when it satis- 
 factorily appears to the court that the lunatic himself would have pro- 
 vided for the support of such persons, had he been of sound mind. And 
 the court may also make an allowance, out of the income of a lunatic's 
 estate, for the education of persons whom he had adopted as children, 
 while he was in a sound state of mind. In like manner the committee 
 of a lunatic may be authorized to provide for the keeping up of the luna- 
 tic's family, establishment, with the same number of domestics as had 
 been customary previous to the lunacy, and to expend for that purpose, 
 annually, an amount not exceeding that which had been annually expended 
 by the lunatic himself before his lunacy. And the court may also author-, 
 ize the committee to pay for the support of the institutions of religion, 
 in the church where the lunatic and his family have been accustomed to 
 worship, such sums from time to time as the lunatic may desire him to 
 pay for that purpose, not exceeding the amount which he had been in the 
 habit of paying annually, before his faculties became impaired. And the 
 court may also authorize the committee to place at the disposal of the 
 lunatic, so long as he is capable of judging of the claims of applicants, 
 small sums of money for purposes of charity." 
 
 But the committee will not be allowed personally to expend any part 
 of the estate of the lunatic for general charity, or objects of benevolence 
 or of piety, for which the lunatic himself had not been in the habit of 
 contributing specifically and regularly while he was competent to manage 
 his own afiairs.'' 
 
 ' In the matter of Heeny, 2 Barb. 03?. ' Id. 
 326. 
 
688 Of Persons under Disability. [CL 8. 
 
 An inquisition may be set aside by tbe court for irregularity^ or it may 
 be quashed if the facts will not justify the finding of the jury, or it may 
 be suspended, in whole or in part, or superseded, on the restoration of the 
 lunatic to a sound mind. 
 
 If, for example, the commissioners dictate to the sheriff whom he shall 
 select as jurors ;' if the commission be executed without notice to the 
 lunatic f if the sheriff, having charge of the jury, improperly enter the 
 room and converse with them on the matter during their deliberations ;' 
 if the jury be denied, improperly, the right of seeing and conversing with 
 the lunatic,;* for these, and the like causes, the inquisition will be set 
 aside, and a new commission issued. 
 
 If the inquisition does not conform to the requirements of the statute, 
 by failing to find the party an idiot, or a lunatic, or a person of unsound 
 mind, as the case may be, but is argumentative or in other respects 
 deficient, the proper course is to quash it and to order a new commission 
 to issue.^ 
 
 So an inquisition having found that a person was a lunatic, and had 
 been in the same state of lunacy from the time of her birth, the inquisition 
 was quashed, and a new commission issued.* Such a finding is a contra- 
 diction in terms. The finding should have been that she was of unsound 
 mind. 
 
 In a very clear case of mistake, or undue prejudice of the jury, the 
 court may discharge the inquisition of lunacy upon the mere examination 
 of the supposed lunatic, and an examination of the evidence produced 
 before the jury, without subjecting him to the expense of an issue or 
 traverse ; but this will not be done upon ex parte affidavits, where no 
 excuse is given for not having produced the affiants before the jury as 
 ' witnesses.' The same rule applies where the jury err in finding that the 
 party is not of unsound mind, and where there is no doubt, from the evi- 
 dence, that they should have found the other way.= In the case last 
 mentioned the finding was against the unanimous opinion of the commis- 
 sioners, and was unsupported by the evidence ; and the chancellor directed 
 a new commission to the same commissioners. 
 
 If, after a party has been found of unsound mind by an inquisition, 
 
 ' Matter of Wager, 6 Paige, 11. » In the matter of Bruges, 1 Myl. & Or. 
 
 " Matter of Tracy, 1 id. 581. 278. 
 
 " Matter of Arnhout, 1 id. 497. ' In matter of EusseE, 1 Barb. Oh. E. 
 
 • Matter of Eussell, 1 Barb. Oh. E. 89. 38. 
 
 " Matter of Morgan, 7 Paige, 236. « Matter of Lasher, 2 id. 97. Donne- 
 Matter of Mason, 1 Barb. S. 0. E. 436. ghal's case, 2 Ves. sen. 408. 
 
Cii. 8.] Discharging Commission. 689 
 
 the jury, on an issue ordered by the court for that purpose, find in favor 
 of the mental capacity of the party, the commission must be discharged, 
 and the alleged lunatic restored to the full control of his property.' 
 
 With respect to an application in behalf of the lunatic to supersede 
 the commission on the ground of his complete recovery, the practice 
 seems to be for the lunatic himself to attend in person upon the hearing 
 of the petition, that he may be inspected by the court. Notice of the 
 motion must be given to the committee, together with copies of the 
 petition and affidavits on which it is founded. The court may itself deter- 
 mine the question from inspection and the affidavits, or it may refer the 
 matter to a referee to take proof of the facts, with his opinion thereon, 
 or otherwise, and on the coming in of his report, the court decides the 
 matter.^ Or it may direct an issue to be made up and tried by a jury.* 
 In the last mentioned case, on the petition of a lunatic for the discharge 
 of his committee, on the ground of returned sanity. Chancellor Kent held 
 that it was in the sound discretion of the court, to allow him to, traverse 
 the inquisition, or to try the question on a feigned issue ; and where the 
 lunacy was satisfactorily established in the first instance, and the opinion 
 of the court, after repeated applications of the party for a discharge of 
 his committee, remained unchanged, the trial of the question was directed 
 to be at the expense of the lunatic or his friends, and not at the charge 
 of his estate, which consisted of personal property only, acquired by the 
 industry and skill of the wife, and barely sufficient for the maintenance 
 of herself and children, and of her husband. 
 
 When the proceedings have been had against the party, and he has 
 been found incapable of managing his affairs by reason of habitual 
 drunkenness, the court will not discharge the committee and restore the 
 property to the party upon proof of the fact that he is competent to 
 manage his affairs, without evidence of a permanent reformation. As a 
 general rule, the court of chancery, in the time of Chancellor Walworth, 
 required as evidence of a permanent reformation, satisfactory proof that 
 the habitual drunkard had refrained from the use of intoxicating liquors 
 for at least one year immediately preceding the application for the resto- 
 ration of his property.* , 
 
 In order to supersede a commission. Lord Thurlow was of opinion, 
 that when lunacy was once established by clear evidence, the party ought 
 
 ' Matter of Giles, 11 Paige, 638. Ferrars, id. 332. 2 Oollinson on Lunaoy, 
 
 » Matter of Hanks, ax Oh. K. 567. Ex 746. 
 parte Bumptnn, Moseley, 78. Ex parte ' Matter of McLean, 6 J. Oh. R. 440. 
 
 * Matter of Hoag, 7 Paige, 812. 
 Bq. Jub. 8,7 
 
690 Of Persons under Disability. [Ch. 8. 
 
 to be restored to as perfect a state of mind as he had before ; and that 
 that should be proved by evidence as clear and satisfactory ;' but Lord 
 Eldon did not concur in that proposition. Something less than the same 
 perfection of mind, he thought, would be sufficient." 
 
 But as diseases of the mind are extremely insidious in their character, 
 it is not unusual, in this class of cases, as well as in those where the pro- 
 ceedings are founded on the habitual drunkenness of the party, instead 
 of superseding the commission in the first instance, to suspend its opera- 
 tion, in whole or in part, either indefinitely or for a limited time.' 
 
 It has been made a question whether a commission can be superseded 
 as to the person and retained as to the estate. In this state it was held 
 by Hand, J., that this could not be done ; and Lord Cottenham, on one 
 occasion, decided the same question in the same way.* But the commis- 
 sion may be suspended as to the person and retained in force as to the 
 estate.^ And it may be suspended in part as to the estate, so as to 
 authorize the lunatic to make a will disposing of his property, if on ex- 
 amination of the lunatic and the evidence, the court is satisfied that he 
 has so far recovered his mind as to have a testamentary capacity.^ A 
 committee .of the person may exist, without a committee of the estate, 
 instead of which the property may be put in the hands of a receiver.'' 
 In Burr's case, already referred to, the chancellor, and subsequently the 
 supreme court, so far suspended the commission, both of the person and 
 estate, as to allow the lunatic, from time to time, to receive portions of 
 the income of his estate, and finally the whole income, and to invest or 
 expend it in such manner as he should judge best, leaving the committee 
 of the estate in other respeets in the full control of the estate.' As was 
 said by Lord Loughborough on one occasion, the chancellor is to admin- 
 ister the estate of a lunatic tanquam bonus paterfamilias ;' and he might 
 have added, that he should treat his person in the same way. 
 
 The court may appoint the same person committee of the person and of 
 the estate, or, as is usual when the estate is large, have a separate committee 
 for each. And although the committee of the estate cannot be allowed 
 
 ' Att'y Gen. v. Parnther, 3 Bro. C. 0. ' In the matter of Burr, before Harris, 
 
 444. 2 Mad. Oh. B. 580. J. at Albany, Sp. T. 1854. 
 
 » Ex parte Holyland, 11 Ves. 10. Mat- « Matter of Burr, 2 Barb. Ch. R. 208. 
 
 ter of Hanks, 8 J. Oh. E. 668. ' Ex parte "Warren, 10 "Ves. 622. Mat- 
 
 ' In the matter of Burr, 2 Barb. Oh. R. ter of Russell, 1 Barb. Oh. R. 42. 
 
 210. Ex parte Earl Ferrars, Moael. 332. " Matter of Bun-, 2 Barb. Oh. R. 208. 
 
 Bao. Abr. tit. Idiots, p. 10. MS. before Willard, J. in Saratoga, Sp. T. 
 
 * Matter of Burr, 17 Barb. 9. Matter • Oxenden v. Lord Oompton, 2 Ves. jr. 
 
 of Gordon, 2 Phillips, 242. 78. 
 
Ch. 8.] Ceeditor's Remedy. 691 
 
 for his services, as such committee, any greater or different compensation 
 than that which is fixed by the Revised Statutes as the allowance by way 
 of commission to executors, administrators and guardians, yet where the 
 interest of the estate requires it, an agent or cleric may be employed un- 
 der the direction of the court, upon the application of a committee, at a 
 reasonable salary to be fixed by the court.' In the matter of Burr, 
 already referred to, the committee of the estate was allowed a clerk at an 
 annual salary, and a salary was also paid to the committee of the person. 
 The necessity for such allowance will depend on the amount of property 
 to be managed, and various other circumstances. In Burr's case, the 
 amount of property was about $250,000, and the lunatic, in addition to 
 the committee of the person, was furnished with a companion who attend- 
 ed him on his journeys and elsewhere, and to whom a salary was also paid. 
 
 With repect to the effect of the inquisition upon the lunatic and upon 
 the remedies of his creditors, it is settled that all gifts and contracts made 
 by an idiot, lunatic or habitual drunkard, after the actual finding of the 
 inquisition, are utterly void.' In like manner, contracts made by him 
 before the finding of the inquisition, which are overreached by the retro- 
 spective finding of th« jury, are presumptively void.' 
 
 . The proper way for a creditor seeking to enforce his claim against a 
 lunatic, is by bill in equity against the committee.* But the lunatic may 
 be made a party to the bill, so as to make the proceedings binding against 
 him, if he should be restored to the control of his estate.' 
 
 If the remedy be at law, the permission of the court must be obtained 
 before commencing an action to enforce it. It is a contempt of the court 
 to commence such action without leave, after notice of the inquisition. 
 The court will stay the proceedings in such action if it is brought without 
 its permission.' But it seems the judgment obtained in an action brought 
 . against the lunatic without leave, is not void or even erroneous.' It can- 
 not be enforced against the estate of the lunatic in the hands of the com- 
 mittee without leave of the court.' 
 
 In this state, by statute, receivers and committees of lunatics and habit- 
 ual drunkards, appointed by any order or decree of the court, are per- 
 mitted to sue in their own name, for any debt, claim or demand transferred 
 
 • Matter of Livingaton, 9 Paige, 440. Matter of Hiller, 3 id. 19d. Matter of 
 ' L'Amoreux v. Crosby, 2 Paige, 422. Hopper, 5 id. 489. 
 
 » Id. ' Sternbergh v. Schoolcraft, 2 Barb. S. 
 
 • Brasher's Ex'rs v. Van Cortland, 2 J. 0. E. 153. Eobertson v. Lain, 19 Wend. 
 Oh. K. 242. 650. 
 
 » Beach v. Bradley, 8 Paige, 146. ' Matter of Hopper, 5 Paige, 489. 
 
 • L'Amoreux v. Crosby, 2 Paige, 422. 
 
692 Of Persons undek Disability. [Ch. 8. 
 
 to them, or to the possession and control of which they are entitled as such 
 receiver or committee ; and when ordered or authorized to sell such de- 
 mands, the purchaser thereof may sue and recover therefor in his own 
 name, but is required to give such security for costs to the defendant as 
 the court in which the action is brought may direct." But this statute 
 does not affect the real estate of the lunatic. And the committee cannot 
 have ejectment in his name for the lunatic's land, but it must be brought 
 in the name of the lunatic.'' And the lunatic is a necessary party in an 
 action for the partition of his land.' The same rule applied both at law 
 and in equity, before the statute of 1845, when the action was brought 
 for the recovery of personal property belonging to the lunatic* But the 
 lunatic was not a necessary party to a bill brought by his conunittee to 
 avoid his acts, though he might be united in the action.^ 
 
 Idiots and lunatics are liable for their personal torts, for compensatory 
 damages. And where an idiot destroyed a building belonging to himself 
 and others, as tenants in common, the court having no power to sell the 
 land to pay the damages, ordered an equitable partition of it, allowing 
 for the damages.* 
 
 Where a bill is filed affecting the estate of a lunatic, if his committee 
 has a personal interest in the controversy which conflicts with that of the 
 lunatic, the latter should be made a party and a guardian appointed 
 for him.' 
 
 For other matters on this subject, and of the doctrine of the court in 
 relieving against contracts obtained from persons of imbecile minds, though 
 not under a commission, reference may be had to the chapter on frauds, 
 where it is considered in several of its aspects. 
 
 ' L. of 1845, ch. 112, § 2. ' Lane v. Schermerhorn, 1 Hill, 97. 
 
 = Petrie v. Schoonmaker, 24 Wend. 85. Gorham v. Gorham, supra. 
 Lane v. Scliermerhora, 1 HUl, 97. ' Id. Ortley v. Messere, 7 J. Oh. E. 189. 
 
 ' Gorham v. Gorham, S Barb. Oh. R. * Matter of Hiller, 3 Paige, 199. Kroom 
 24. V. Schoonmaker, 3 Barb. S. O. E. 647. 
 
 ' Teal V. Woodworth, 3 Paige, 470, 
 
CHAPTER IX. 
 
 OF THE JURISDICTION IN EQUITY IN CASES OF DOWER AND PARTITION. 
 
 COURTS of equity have exercised, from an early day, concurrent 
 jurisdiction -witli courts of law, in Dower and Partition.' At what 
 time this jurisdiction was first asserted it is perhaps impossible, at this 
 day, accurately to determine ; nor is it a matter of any importance. 
 There are many cases where the remedy at law, both in dower and parti- 
 tion, was imperfect. There were other cases, where the aid of courts of 
 equity was necessary for the purpose of discovery ; and in both actions, 
 equity afforded a safer, better, more certain and expeditious remedy, than 
 could be obtained by the dilatory and cumbersome proceedings of the 
 actions at common law. 
 
 Questions in relation to dower often arise in actions of partition, and 
 courts of equity can settle and adjust, in one action, the rights of all par- 
 ties to the property which is to be divided. In many cases there is an 
 indispensable necessity for the exercise of this jurisdiction in dower and 
 partition,' and without it the remedy would be wholly ineffectual. 
 
 For these reasons we shall treat of both subjects in one chapter, though 
 under distinct heads, where they are not necessarily blended. 
 
 SECTION I. 
 
 OP DOWEE. 
 
 In this state it is enacted that a widow shall be endowed of the third 
 part of all the lands, whereof her husband was seised of an estate of in- 
 heritance, at any time during the marriage.' This is precisely the dower 
 
 ' 1 Mad. Ch. Pr. 197. » 1 R. S. 740, § 1. 
 
 ' Hartshorn v. Hartshorn, 1 Green's 
 Oh. B. 349. 
 
694 Dower. [Ch. 9. 
 
 at common law spoken of in the books.' The other species of dower, 
 which occasionally existjed in England, never formed any part of our 
 jurisprudence. 
 
 The common law remedy to recover dower, formerly existing in this 
 state, was the writ of dower unde nihil habef, and lay only against the 
 tenant of the freehold.' It was a dilatory, expensive and complicated 
 remedy. 3 It was one of the real actions known to the law, in distinction 
 from actions personal and mixed. 
 
 At the revision of the laws of this state in 1830, all writs of right, 
 writs of dower, writs of entry and assize, &c. and all other real actions 
 known to the common law, not enumerated ; and all writs and other pro- 
 cess formerly used in real actions and not specially retained, were abol- 
 ished.*. The only ancient action retained was nuisance, and that only in 
 a modified form.' 
 
 As a substitute for the real actions originally provided to recover real 
 estate, and for the action of dower, ejectment was retained, freed from the 
 fictions which encumbered it under our former practice, and greatly im- 
 ' proved in other respects. Ejectment, after the revision of the statutes 
 in 1830, became the ordinary common law action for the recovery of 
 dower; and hence all the former complicated forms of pleading in the action 
 were abolished. In one case since the revision, it was doubted whether 
 ejectment for dower would lie against any other person than the tenant 
 of the freehold.* On a more full consideration and discussion of the sub- 
 ject at a later day, the court held that ejectment for dower, like that ac- 
 tion founded upon any other title, would lie, and indeed must be brought 
 against the person in possession, if there be one, whether he be seised of 
 a freehold, or possessed of a term for years or a less estate. By giving 
 ejectment it was thought that the statute gives all its practical incidents ; 
 and it is of the nature of the action that it will not lie against the tenant 
 of the freehold unless he be in the actual possession.' If the premises 
 are unoccupied^ the action must be brought against some person exercis- 
 ing acts of ownership on the premises claimed, or claiming title thereto, 
 or some interest therein, at the commencement of the suit.' 
 
 In addition to the action of ejectment, just mentioned, the Eevised 
 Statutes provide for the admeasurement of the widow's dower, if it be 
 
 ' Oo. Litt. 30 b, 3].. Bac. Abr. tit. * 2 R. S. 348, § 24. 
 
 Dower. 2 Bl. Com. 129. ' Id. 332. 
 
 " Hurd V. Grant, 3 Wend. 840. » Shaver v. McGraw, 12 "Wend. 558. 
 
 = See Allan v. Smi th, 20 J. K. 477 ; S. 0. ' Sherwood v. Vandenberg, 2 Hill, 807. 
 
 1 Oowen, 180, for the pleadings and prao- " 2 K. S. 304, § 4. 
 tice in that action. 
 
Ch. 9.] Dower. 695 
 
 not assigned to her within forty days after the death of her husband, on 
 an application by petition to the supreme court, the county court, or the 
 surrogate of the county in which the lands lie." The widow to whom 
 dower shall be admeasured under the statute, at the expiration of thirty 
 days from the date of the confirmation, may bring an action of ejectment 
 to recover the possession of the lands so admeasured to her for her dower, 
 in which action her right to such dower may still be controverted, and upon 
 recovery she may hold the same during her life, subject to the payment of 
 all taxes and charges accruing thereon subsequent to her taking posses- 
 sion.' This proceeding is only between the widow and the owners of the 
 freehold, and it settles only the portion to which she is entitled in seve- 
 ralty, if her right shall not be successfully resisted in her subsequent 
 action to obtain the possession; and as to that, it is conclusive.' 
 
 Admeasurers of dower cannot take into consideration any gifts of the 
 husband to her to diminish her dower ; nor can they go into an inquiry 
 whether the husband had made a settlement on his wife in lieu of dower. ^ 
 
 It does not belong to our subject to treat more at length of the widow's 
 remedy at law. From what has been. said, it is obvious that there are 
 cases where the remedy at law is extremely imperfect and inadequate, 
 and others, where it can only be asserted in a court of equity. The pres- 
 ent object is merely to bring to the notice of the reader a brief view of 
 the doctrine of courts of equity in relation to this subject. The juris- 
 diction of equity in this class of cases has been ably vindicated in the 
 English courts on several occasions,' and the doctrine there established 
 has been firmly incorporated into our equity jurisprudence.' 
 
 In a bill filed by the widow for dower, before Chancellor Kent, the 
 jurisdiction of the court was held to be unquestionable and well estab- 
 lished. In that- case, with respect to a portion of the premises out of 
 which dower was claimed, it was alleged that the husband was not seised 
 during the coverture. It appeared that on the day of the marriage and 
 before it was solemnized, the intended husband conveyed to his daughter 
 by his former wife, the land in dispute, without consideration and without 
 the knowledge of the intended wife. The husband, notwithstanding, con- 
 tinued in possession for many years, and mortgaged the same to one 
 
 ' 2 E. S. 488. Code of Procedure, § 30. « Hyde v. Hyde, 4 Wend. 630. 
 
 ' 2 R. S. 491, § 18. ' Pultney v. "Warren, 6 Ves. 89. Strick- 
 
 ' "Ward V. Kilts, 12 Wend. 137. Jack- land v. Strickland, 6 Beav. 77, 80. Curtis 
 
 son V. Kandall, 5 Oowen, 168. Jackson v. Onrtis, 2 Bro. 0. 0. 620. Mundy v. 
 
 V. De Witt, 6 id. 316. Same v. ChurGh- Mundy, 2 Yea. jr. 122. Swaim v. Ferine, 
 
 ill, 7 id. 287. Jackson v. Nixon, 17 J, 5 J. Oh. E. 482. Badgley v. Bruce, 4 
 
 E. 123. Paige, 98. 
 
696 Dower. [Ch. 9. 
 
 Dunn, for a valuable consideration. The premises were afterwards 
 redeemed by the daughter. One question was, whether the wife of the 
 grantor was entitled to be endowed, thus treating the deed as fraudulent 
 and void as against her, and another was whether she could be endowed 
 of the equity of redemption. 
 
 With respect to the first question, Chancellor Kent held, that a deed 
 thus given by the husband on the eve of his marriage, to his daughter, 
 and without consideration, was fraudulent as against the wife's right of 
 dower.' In equity it stands upon the same ground of a similar convey- 
 ance by the woman to a stranger, without the knowledge of her intended 
 husband. The husband has an equity that he shall not be deprived by 
 fraud of the rights which the law gives to him over the property of his 
 wife. The rule laid down on this subject is, that if a woman make any 
 conveyance of her own estate before marriage, without the privity of her 
 intended husband, or confess any judgment, or create any incumbrance 
 upon her estate, other than such as are for a valuable consideration, 
 they shall not affect the husband, and a court of equity will, on a bill 
 filed by the husband, set them aside.'' 
 
 A court of law, it has been decided, will not protect the wife in this 
 class of cases. In that court, in an action of dower, the court require 
 that the seisin of the husband should be established, and will not look 
 beyond the actual conveyance made by the husband to see whether it 
 was made to defraud the wife of dower in his estate.' Equity looks upon 
 the transaction in a different light, and, when the rights of purchasers 
 and incumbrancers in good faith and for valuable consideration are not 
 involved, holds the fraudulent conveyance as a nullity as to the wife's 
 claim to dower, and would of course set it aside on a proper application ; 
 or disregard it when it should be interposed as an obstacle to her recov- 
 ery. The equity of the husband to his wife's estate is of no higher 
 character than the equity of the wife to her husband's. Both rest upon 
 the same footing. 
 
 With regard to the question whether the widow was entitled to dower 
 in an equity of redemption, it has been repeatedly held ih this state, in 
 the afBrmative, even in cases where she has joined with her husband in 
 the mortgage. But in such a case she is bound to a ratable contribution, 
 as doweress for the redemption of the mortgage.* The mode in which 
 
 ' Swaim v. Ferine, 5 J. Oh. R. 489. ' Baker v. Ohase, 6 Hill, 482. 
 
 Ferine v. Dunn, 3 id. 515. ' Swaim v. Ferine, 5 J. Oh. E. 491. 
 
 ' Olancy on Rights of Women, 614,615. Van Duyne v. Thayers, 14 "Wend. 233; 
 
 Howard v. Hodker, 2 Oh. R. SI. Carle- S. 0. 19 id. 162. Hawley v. Bradford, 9 
 
 ton v. Dorset, .2 Yarn. 17. Paige, 200. Bell v. Mayor of N.Y. 10 id. 49. 
 
Oh. 9.] Dower. 697 
 
 this 13 accomplislied, -where the heir has redeemed the land by paying 
 off the mortgage, and the widow files her bill against him, for her dower, 
 is by paying, during her life, to the heir the one third of the interest on 
 the amount paid by the latter, from the time of such payment, or the 
 value of such annuity, to be computed by the court, or under its direc- 
 tion.' The heir -who redeems premises subject to dower, is liable to 
 account to the widow for the rents and profits from the death of the hus- 
 band. She is entitled to one third part of the rents and profits, subject 
 to her ratable contribution towards the redemption of the mortgage.^ 
 
 The general doctrine that equity has concurrent jurisdiction with courts 
 of law, in actions of dower, was sanctioned by Chancellor Walworth in a 
 case before him.' He stated the settled rule to be, that upon a bill in 
 equity for the assignment of dower, if the seisin of the husband and the 
 title of the wife be admitted by the answer, to proceed at once to assign 
 dower, and to take an account of the mesne profits since the death of the 
 husband, if it was a case in which the widow would be entitled to damages 
 at law. But if the title of the complainant be denied, the court retained 
 the. bill, and directed a suit at law to try the title ; and then would give 
 possession to the widow as the right should be established. 
 
 Courts of equity can so marshal the assets of the husband as to relieve 
 the real estate to which the wife's dower attaches, of an incumbrance which 
 at law overreaches the dower. Thus, where the husband, for the purpose 
 of depriving his wife of any share of his personal property after his death, 
 purchased real estate from his son at a price far beyond its value, and 
 gave his bond and mortgage for the purchase money, the collection of 
 which was not to be enforced during the life of the husband, though the 
 transaction, it was said, could not be set aside on a bill filed by the widow, 
 because the husband had a legal right to give his personal property to 
 whom he pleased, still, equity would compel the son to apply the personal 
 property, in his hands, applicable to the bond and mortgage, in exonera- 
 tion of the dower of the widow. ■* 
 
 The same principle has been applied in favor of the dower of the widow 
 against the equitable lien of the vendor for the purchase money of real 
 estate, when no security had been taken for the same. The widow takes 
 her dower subject to this equitable lien. But as the unpaid purchase 
 money is the personal debt of the husband, the widow has a right in 
 equity to have the estate of her husband in the hand of his personal 
 representatives, and also that which has descended to his heirs at law, 
 
 ' Swaim v. Ferine, 5 J. Oh. R. 493. ' Badgley v. Bruce, i Paige, 98. 
 
 ' Id. ♦ Holmes v. Holmes, 8 Paige, 863. 
 
 Eq. Juk. 88 
 
698 Dower. [CL 9. 
 
 first exhausted in a due course of administration, before a resort is had to 
 her dower right in the land for the recovery of the unpaid purchase 
 money. In other words, the assets must be marshaled in favor of the 
 widow's claim of dower.' 
 
 The circumstance that the premises are at the death of the husband ir. 
 the hands of a termor, whose term has not expired, afforded, before the 
 Revised Statutes, a just ground to go into equity for relief. As her 
 action could only be brought against the tenant of the freehold, if neither 
 he or the termor would assign her the dower, the remedy at law was diffi- 
 cult and perplexing. And though under the present law an action of 
 ejectment will lie by the widow, in such a case, against the party in pos- 
 session, for her dower, she can still resort to equity in the first instance, 
 which will afford her a better temedy.^ 
 
 While equity thus affords to the widow, in many cases, a more conven- 
 ient means than courts of law of obtaining her dower, it enables the heir, 
 on the other hand, to avail himself of defenses which, by the strict rules 
 of the former law, were not available. Thus a collateral satisfaction was 
 not pleadable at law in bar to a freehold right,' But in equity the ac- 
 ceptance of a term for years, or of a sum of money, or any other collateral 
 satisfaction, will constitute a good bar.' Under the jurisprudence of this 
 state, which allows an equitable defense to be set up to a legal demand, 
 it is presumed at this day, that a collateral satisfaction may be interposed 
 as a defense in an action of ejectment for dower, to the widow's right 
 to recover.^ 
 
 Courts of law as well as courts of equily hold the widow to elect be- 
 tween her dower and a legacy given in lieu of it.' The Revised Statutes 
 have provided for barring dower by a jointure, with her assent. Indeed, 
 any pecuniary provision made for the benefit of the intended wife, in lieu 
 of dower, if assented to by her, is a bar to her dower.' The doctrine of 
 election, also, which has been elsewhere considered, presents illustrations 
 of the rules by which courts of equity are governed in questions of dower.' 
 
 If a provision made for the widow in lieu of dower be accepted by her, 
 and fail by reason of the illegality of the instrument by which it was 
 
 ■ "Warner v. Van Alstyne, 3 Paige, 513, v. Quick, 5 Sandf. S. 0. R. 612. Grardner 
 
 615. V. Lee, 11 Barb. 558. Bouton v. The 
 
 « Badgley v. Bruce, 4 Paige, 100, 101. City of Brooklyn, 15 id. 375, 384. Hin- 
 
 ° Oo. Litt. 86 b. Jones v. Powell, 6 J. man v. Jndson, 13 id. 629, 681. Hunt v. 
 
 Oh. R. 200. Farmers' Loan, 8 How. 416. 
 
 * Id. Harg. note, 224. Bae. Abr. tit. " Van Orden v. Van Orden, 10 J. E. 80. 
 Dower and Jointure, F. MR. S. 741, §§ 9, 10, 11. 
 
 ' Giles V. Lyon, 4 Oomat. 699. Grant ' Ant», p. 544 et seq. 
 
Ch. 9.] Partition. 699 
 
 created, she is not bound in equity by that election, except as against 
 bona fide purchasers and mortgagees ; but may claim her dower.' 
 
 There may be cases where a just equivalent in money is better for all 
 parties than a recovery of the dower in an action at law. Suppose the 
 husband was a tenant in common with divers other persons, and that the 
 premises have passed into the hands of different purchasers, who have 
 not paid the purchase money : a court of law could only adjudge to the 
 widow a third part of the land itself But equity could leave the pur- 
 chaser undisturbed, and with the assent of the widow, decree her a com- 
 pensation in lieu of dower.^ 
 
 The foregoing cases are enough to illustrate the equity jurisdiction in 
 questions of dower, both where the widow claims relief, and where relief 
 is sought against her. The subject in its other aspects belongs to treatises 
 on law rather than equity. The. occasions for the interposition of equity 
 are of less frequent occurrence here than in England, and are less neces- 
 sary now than formerly. 
 
 SECTION II. 
 
 OF PAETITIOJSr. 
 
 At common law, estates with respect to the connection of their owners, 
 ■when held by more than one person, were divided into estates in joint 
 tenancy, in common, and coparcenary. The two first were created by the 
 act of the parties, and the last by the act of the law. Though at com- 
 mon law partition could be made in every case, by the consent of all the 
 owners, yet it could not be compelled, by one co-tenant against the will 
 of the others, or of any of them, except in the case of coparceners, until 
 the statute of 31 Henry 8, ch. 1, and 32 Henry 8, ch 32,^ extended the 
 writ of partition to joint tenants and tenants in common. 
 
 Under the colonial government there were several acts relative to parti- 
 tion, passed at different times ; but at the close of the revolution and in 
 1788 the above mentioned English statutes were, re-enacted.* These stat- 
 utes put the right to compel partition between tenants in common and joint 
 
 ' Hone V. Van Sohaiok, 7 Paige, 221, ' Co. Litt. 187. Bao. Abr. tit. Joint 
 233. ■ Tenants, I, No. 7. 
 
 » Herbert v. Wren, 7 Oranch, 870. * 2 Greenl. 13. 
 
700 Partition. [Ch. 9. 
 
 tenants upon the same footing as coparceners. The common law learning 
 in partition, in respect to parceners, is displayed at large by Lord Coke. 
 It is replete with subtle distinctions and antiquated erudition.' The 
 ancient common law remedy was simplified by statute. 
 
 In this state, under our law of descents the estate of coparcenary no 
 longer exists. On the death of the ancestor intestate, the persons who 
 take by descent, whether male or female, take as tenants in common, in 
 proportion to their respective rights.' It is therefore only in very re- 
 mote cases, which can scarcely, ever arise, that the rules of the common 
 law doctrine of descent can apply. It is presumed that in most if not in 
 all the states, where more persons than one take by descent, they take 
 as tenants in common, so that the former distinctions between estates in 
 coparcenary and in common no longer exist. 
 
 The old real actions having been all abolished, the legislature provided, 
 in the Revised Statutes, 'a convenient mode of making partition between 
 joint tenants and tenants in common, by petition to the supreme court, 
 or the court of common pleas of the county where the lands are situated, 
 and now the county court.' The statute also, in terms, gives to the court 
 of chancery the same power, upon petition, or bill filed in that court, to 
 decree partition and sales of lands, tenements and hereditaments, as is 
 therein given tothe common law courts in like cases ;' and in a subsequent 
 section enacts, that whenever partition shall be decreed by a court of 
 equity, if it shall appear that it cannot be made equal between the parties, 
 without prejudice to the rights and interests of some of them, the court 
 may decree compensation to be made by one party to the other, for equal- 
 ity of partition, according to the equity of the case.^ 
 
 The jurisdiction of courts of equity in matters of partition existed an- 
 terior to the Revised Statutes, and independently of any statute regulation 
 on the subject. But it was intended by the legislature that subsequent 
 to the adoption of the Revised Statutes the proceedings should be con- 
 formed to the statute.* 
 
 A court of equity, as was remarked by the learned judge in a recent 
 case,' administers its relief according to its own notions of general jus- 
 tice and equity between the parties. It will adjust by its decree, all the 
 equitable rights of the parties interested in the premises. It is not re- 
 
 ' Co. Litt. tit. Parceners, 163-175. v. Wren, 7 Oranoh, S70. Jackson" v. 
 
 ' 1 R. S. 753. Edwards, 7 Paige, 886. 
 
 » 2 R. S. 817 et seq. ' Paige, J. in Green v. Putnam, 1 Barb. 
 
 • Id. 829, § 79. S. 0. R. 609. Haywood v. Judson, 4 id. 
 
 • 2 R. S. 880, § 88, 229. 
 
 • Larkin v. Munn, 2 Paige, 27. Herbert 
 
Ch. 9.] Partition. TOl 
 
 strained as a court of law is, to a mere partition of tlie lands between the 
 parties, according to their interests in the same, and having a regard to 
 the true value thereo£ But it may, with a view to a more perfect par- 
 tition of the premises, decree a pecuniary compensation to one of the par- 
 ties, for equaility of partition, so as to prevent any injustice or unavoidable 
 inequality. So a court of equity will assign to the parties respectively, 
 such parts of the estate as will best accommodate them, and be of the 
 most value to them, with reference to their respective situations in rela- 
 tion Jbo the property before the partition. 
 
 It is upon these principles that when a tenant in common lays out 
 money in improvements on the estate, although the money so expended 
 does not, in strictness, constitute a lien upon the estate, yet a court of 
 -equity will not grant a partition, without first directing an account and a 
 suitable compensation ; or else, in the partition it will assign to such ten- 
 ant in common, that part of the premises on which the improvements 
 ha.ve been made.' To entitle the tenant in common to this allowance, it 
 IS not necessary for him to show the assent of his co-tenants to such im- 
 provements, or a promise on their part to contribute their share of the 
 expense ; nor is it necessary for them to show a previous request to join 
 m the impro\'ements, and a refusal.'' 
 
 It was on the same principle that where an idiot had pulled down a 
 ■school house on a lot owned by him and the trustees of the district in com- 
 mon, the court held that an equitable partition should be so made, that 
 the trustees might be allowed for their damages in the share set off to 
 them.^ 
 
 So where five of six children, the sixth being an idiot, made an arrange- 
 ment by which they conveyed one half of the premises owned in common, 
 to A., being one of them, and the other half to B. another heir, upon B.'s 
 agreement to support the idiot, whose share B. was to have, it was held 
 that a purchaser from A., who supposed he was acquiring title to the half 
 set off to him, was equitably entitled, on a partition, to have the idiot's 
 share set off on the half conveyed to B.* 
 
 In this case, a court of law could not afford any relief suitable to the 
 equity of the case. No title to the idiot's share of the property could , 
 pass by the agreement, and the agreement to support the idiot was with- 
 out consideration and void. The only effectual remedy, in both cases, 
 could be found in an equitable partition of the property, and this was 
 
 ' Town v. Needham, 3 Paige, 546. ' Matter of HUler, S Paige, 199. 
 Green v, Putnam, 1 Barb. 8. 0. E. 507. * Teal v. Woodworth, 3 Paige, 470. 
 
702 Partition. [Oh. 9. 
 
 accordingly granted by a court of equity. The court derived its power in 
 this respect, not from the statute relative to the partition of lands, but 
 from its ordinary jurisdiction over the subject of partition. 
 
 According to the English practice, the parties on a decree of partition 
 execute mutual releases to each other, to be settled by a master, and such 
 •was the practice here, before the statute of 1813.' Under that statute 
 it was held by Chancellor Kent that mutual releases were unnecessary, 
 but the partition became complete by the final decree of the court con- 
 firming the partition as made by the commissioners.^ A feme covert 
 cannot be bound by a decree against her husband in a partition suit to 
 which she is not a party. It is proper, therefore, in all cases where a 
 sale of the premises will probably be necessary, that the wife should be 
 joined with the husband as a party in the suit, so that the purchaser's 
 interest in the premises may not be charged with the incumbrance of her 
 contingent claim of dower. But when an actual partition of the prem- 
 ises can be made, it is not material that the wife, who has only an inchoate 
 right of dower in her husband's undivided interest therein, should be made 
 a party ; as her dower will attach upon that part of the premises which 
 shall be set off to him in severalty.^ 
 
 Although the Revised Statutes have given specific directions as to the 
 mode of ascertaining and securing the shares of the proceeds belonging 
 to the tenants in dower and by the curtesy, aqd other tenants for life 
 having present estates in possession in the premises,* there is still a large 
 class of future estates, both vested and contingent, that are not embraced 
 in those specific directions. It has been made a question whether such 
 contingent interest can be sold under a decree, in cases where the com- 
 missioners have reported that a sale is necessary to secure the interests 
 of the respective parties. The act of 1813 did not provide even for mak- 
 ing a widow a party who had a present right of dower in the premises, 
 although that dower still remained unassigned ; nor did it contain a pro- 
 vision for creditors, who had liens upon some of the shares of the tenants 
 in common, to be made parties to the proceedings, nor for the. payment of 
 their debts out of the proceeds of the shares on which such debts were 
 a lien. The Revised Statutes provide for both these defects.' The chan- 
 cellor, however, thought, on a careful examination of the several pro- 
 visions of the Revised Statutes relative to the partition of lands, in 
 
 ■ 1 R. L. 614, § 17. Young v. Cooper, ' "Wilkinson v. Parish, 3 Paige, 668. 
 
 8 J. Oh. R. 296. Jackson v. Edwards, 7 * 2 R. 8. 325, §§ 50, 5X. 
 
 Paige, 404. » Id. and §§ 44, 45, 
 
 ' Tovmg V. Cooper, irapra. 
 
Cli. 9.] Right op Dower. 703 
 
 connection witli the former legislation on the subject, that a sale by the 
 commissioners in partition, under the judgment of a court of law, or 
 by a master in chancery under a decree of that court, would of itself be suf- 
 ficient, without any act of the wife, to bar or extinguish her contingent 
 right or interest to dower in the share of her husband, when she is made 
 a party to the suit, whether she is an infant or adult.' Although some 
 doubt was suggested by Bronson, J., on this point, when the same cause 
 ATOS in the court of errors, yet as the decree was affirmed, and no dissent 
 from the views of the chancellor was expressed by the court of errors, 
 and they were expressly approved by the only senator who delivered an 
 opinion, it is believed that the doctrine of the chancellor is sound,^ and 
 must be regarded as the law. 
 
 It was no doubt the intention of the legislature, that the purchaser un- 
 der the judgment or decree, where a sale of the premises is found to be 
 • necessary, should acquire a perfect title as against every future or con- 
 tingent interest in any undivided share of the property* Without the 
 power to convey such title, it would be difficult for the court to make the 
 partition equal in the ease of a sale ; as a contingent right of dower or 
 other defect in the title as to one share in the property, must, upon a sale, 
 necessarily diminish the amount bid for all of the shares collectively. , 
 But to enable the court to direct a sale cutting off the inchoate right of 
 dower of the wife, she should be a party to the suit, and the value of her 
 interest should be computed and secured for her benefit. The proper rule, 
 says the chancellor, for computing this interest, during the life of the 
 husband, is to ascertain the present value of an annuity for her life equal 
 to the interest in the third of the proceeds of the estate to which her con- 
 tingent right of dower attaches, and then to deduct from the present value 
 of the annuity for her life, the value of a similar annuity depending upon 
 the joint lives of herself and her husband ; and the difference between 
 those two sums will be the present value of her contingent right of dower.' 
 
 If the title be defective at the time of the sale, under a decree in par- 
 tition, the defect must be removed, within a reasonable time, so that the 
 purchaser will have the substantial benefit of his bargain, or equity will 
 not compel him to take the perfected title.* 
 
 In general a partition should be decreed rather than a sale. The lat- 
 ter course is authorized only in cases where an actual partition cannot be 
 made without great prejudice to the owners.' If, therefore, a sale would 
 
 ' Jackson v. Edwards, 7 Paige, 406. . * Id. 386. 
 
 ' S.a in Error, 22 Wend. 498, 512, 517. ' 2 R. 8. 330, § 81. 
 
 9 Jackson v. Edwards, 7 Paige, 408. 
 
704 PARTiTiarr. [Ci. 9, 
 
 be equally prejudicial, an actual partition sliould be made.' If the aggre- 
 gate amount of benefits to the parties from a sale instead of a partition, 
 ■will be small, in reference to the value of the property, there can be no 
 reason to depart from the ordinary decree of partition." 
 
 Property may be so situated that a partition cannot be conveniently 
 made, without charging upon the portion assigned to one party, a servi- 
 tude or easement in favor of another. A court of equity has power to' 
 make partition upon that principle.' This will most frequently occur in 
 the partition of mills and water rights. The principle was fully exempli- 
 fied in Smith v. Smith, already cited. 
 
 Where in an action for partition the legal title is disputed and doubtful, 
 the course is to send the parties to a court of law, to have the title estab- 
 lished.'' Where the premises are held adversely, the bill should be dis- 
 missed without prejudice to a new suit after the complainant shall have 
 obtained possession, by suit at law. Where there is no dispute about 
 title, partition is a matter of right.' 
 
 We have hitherto treated of the partition of estates where the titles 
 are legal. In such a case courts of equity submit the legal questions, if 
 the title be controverted, to the determination of a court of law, retaining 
 the bill, for further action, after the title shall have been established. But 
 if the title be equitable, the court of equity decides the whole matter, 
 ■without the intervention of a court of law ; for equitable titles belong pecul- 
 iarly to cotirts of equity to decide.* Thus, the owners of an equity of 
 redemption may have partition among themselves, without affecting the 
 rights of the mortgagees.' And a defendant in partition may set up in 
 his answer, as a defense to the suit, an equitable title in himself to the 
 ■whole premises.^ 
 
 A court of equity may, if the justice of the case require it, set off to 
 one co-tenant the share belonging to him, and decree a sale of the residue 
 for the benefit of- the other tenants, providing for compensation in case of 
 inequality of partition.' And partition may be decreed assigning to the 
 complainant the portion to which he is entitled, and the remainder to the 
 defendants, aggregately ; thus leaving them afterwards to divide the 
 
 ■ Smith V. Smith, 10 Paige, 470. • Smith v. Smith, 10 Paige, 4*70. Hay- 
 
 ° Smith V. Smith, supra. Olasson v. -wood v. Jndson, 4 Barb. 229. 
 
 Olasson, 6 Paige, 641. Eeynolds v. Rey- " Coxe v. Smith, 4 J. Oh. R. 271. Hos- 
 
 nolds, 5 id. 161. Van Arsdale v. Drake, ford v. Merwin, 6 Barb. 52. 
 
 2 Barb. S. 0. R. 699. ' Wotten v. Copeland, 7 J. Ch. R. 140. 
 
 ' Id. Warreu v. Baynes, Ambl. 689. Sebring v. Messereau, Hopk. Oh. R. 502, 
 
 Lister v. Lister, 8 Y. & Ool. 640. Hill v. 508. 
 
 Dey, 14 Wend. 204. » German v. Matohin, 6 Paige, 288. 
 
 ♦ Ooxe v. Smith, 4 J. Oh. R. 271. • Haywood y, Jndson, 4 Barb. 228. 
 
Ch. 9.] Compensation -for Equality. 705 
 
 share allotted to them when it shall be convenient. ' In the case cited, the 
 right of the complainant to a moiety was conceded by the defendants, but 
 they differed among themselves as to the share to which they were respect- 
 ively entitled in the other moiety. Some of them claimed the whole of it, 
 and others distinct portions of it. The court having thus set off to the 
 plaintiff the share allotted to him, retained the bill, to enable the defend- 
 ants to settle their respective titles as amongst themselves at law, and leav- 
 ing the question of partition as to them tOibe determined on a future 
 application. 
 
 In equity there is no necessity that a partition should be so made as to 
 give each party a share in every part of the property. If each party has 
 Ms share in value, it is sufficient ; and if the land allotted to one exceeds 
 in value that allotted to another, the court can compel the former to make 
 compensation to the latter, for equality of partition." 
 
 ' Phelps v. Green, 3 J. Ch. E. 302. E. 341. Earl of Clarendon v. Hornby, 1 
 
 = Brookfield v. ■Williams, 1 Green's Oh. P. Wms. 446. 
 Eq. Juk. 89 
 
CHAPTER X. 
 
 OF PARTNERSHIP. 
 
 THE necessity of taking an account on the final adjustment of copart- 
 nership dealings, and the complicated nature of the remedy at 
 common law, in all cases, and the total inefficiency of it in many, have 
 led, as has been already stated, to the remedial interference of courts of 
 equity. Whether the copartnership be dissolved by mutual consent or 
 by efflux of time, or ■whether it be terminated by the death or insolvency 
 of one or more of the partners, a court of equity affords the most perfect 
 means of winding up its affairs, and of settling the various equities which 
 may exist. From these causes, the j,urisdiction of courts of equity in 
 matters of copartnership has often been referred to their jurisdiction over 
 matters of account. 
 
 As partners are joint tenants of the stock and effects of the concern, 
 the rights and remedies of the firm, by the strict rules of the common 
 law, on the death of one go to the survivor;' and this whether the joint 
 tenancy be of goods and chattels in possession or in right, or of joint 
 tenants of a freehold.'' An exception was made, at an early day, in favor 
 of merchants, which has been extended to traders generally, and which 
 in truth, at this day, embracea all copartnership transactions. The rem- 
 edy at law still survives, but the right and the remedy in equity, vests 
 in the representatives of the deceased copartner.' The custom or law of 
 merchants, excluding survivorship, extends to all traders ; for the rule is, 
 that^M* accrescendi inter mercatojres pro beneficio commercii locum non 
 habet.* In Allen v. Blanchard, the principle was applied to a copart- 
 nership in the practice of physic, which was held to be within the rule 
 excluding survivorship. 
 
 These principles give ■ rise to another source of equitable jurisdiction. 
 A surviving partner, though he has the legal right to the partnership 
 
 .' Co. Litt. 182 a. Jeffreys v. Small, 1 Vern. 217. Co. Lltt. 
 
 ? Id. 182. 
 
 ' Allen V. Blanchardj 9 Oowen, 631. ' Co. Litt. 182 a. Allen v. Blanohard, 
 
 supra. 
 
 (707) 
 
708 Partnership. [Oh. 10. 
 
 effects, yet in equity is considered merely as the trustee to pay the 
 partnership debts, and dispose of the effects of the concern for the benefit 
 of himself and the estate of his deceased partner.* On the same prin- 
 ciple the effects of a copartnership, on the insolvency of the firm, are in 
 equity considered as a trust fund for the payment of the partnership 
 debts, ratably ; and they will be so applied upon the application of either 
 of the partners." Hence the unquestioned jurisdiction of equity over 
 trusts affords an ample field for the exercise of jurisdiction, as well over 
 the individual partners as over the effects of the copartnership, in cases 
 of death or insolvency. And this jurisdiction can be exerted either on 
 the application of a copartner, or the representatives of the deceased co- 
 partner, or the creditors of the firm, or of an individual member of the 
 firm. For though the creditors of one of the partners has no lien upon 
 the property and effects of the copartnership, yet a court of equity will 
 aid the creditor of an individual partner, by a quasi substitution, and thus 
 enable him to acquire his demand through the equities of the partners as 
 between themselves, or their representatives.' 
 
 But whether the jurisdiction of courts of equity over partnership mat- 
 ters be referable to their general jurisdiction over accounts, or over trusts, 
 is perhaps of no moment, especially in this state, under our existing sys- 
 tem of jurisprudence. The jurisdiction itself is firmly established, and 
 of the most benignant character. 
 
 In considering the cases which properly fall within the cognizance of 
 courts of equity, it is first necessary to determine what constitutes a 
 partnership between the parties themselves. This is defined by an ele- 
 mentary writer of high reputation on the subject of partnership, thus : 
 Partnership between the parties themselves is a voluntary contract be- 
 tween two or more persons for joining together their money, goods, labor 
 and skill, or any or all of them, under an understanding that there shall 
 be a communion of profit 'between them, and for the purpose of carrying 
 on a legal trade, business or adventure.* This definition has been sub- 
 stantially sanctioned by courts of law and equity in this state. To con- 
 stitute a partnership as between the parties themselves, there must, says 
 Chancellor Walworth, be a joint ownership of the partnership funds, 
 according to the intention of the parties ; and an agreement, either ex- 
 press or implied, to participate in the profits and losses of the business, 
 
 ' Case V. Abeel, 1 Paige, 898. » Ketchum v. Durkee, 1 Barb. Oh. R. 
 
 ' Egberts v. ■Wood, 8 Paige, 617. Innes 480. 
 
 V. Lansing, 7 id. 683. Whiteright v. " CoUyer on Partnershp, 2. PattiBon v. 
 
 Stimpson, 2 Barb. S. 0. K. 879. Blanohard, 1 Seld. 189. 
 
Ch. 10.] Partnership. 709 
 
 either ratably Gr in some other proportion to be fixed upon by the copart- 
 ners.'- A partnership, says Woodworth, J., is a joint undertaking to 
 share in the profit and loss.' A partnership, says Sutherland, J., is 
 nothing more than a community of interest between two or more persons, 
 and a sharing of profit and loss, either in relation to a general trade or a 
 specific adventure. To constitute a partnership in a particular purchase 
 as in a single concern, there must either be a joint undertaking to pay, 
 or an agreement to share in the profit and loss.' It is a clear proposi- 
 sition, that he who is to take a part of the profits indefinitely, shall, by 
 operation of law, be made liable to losses ; upon the principle that by 
 taking part of the profits he takes from the Creditors a part of that fund 
 which is the security for the payment of their debts.* This right to 
 share in the profits as such ; such as would for that reason alone entitle 
 him to an account in equity against the other persons concerned in the 
 business, seems essential to constitute a partnership as between them- 
 selves.^ 
 
 Where two persons agreed to burn lime on shares, one to fill a kiln 
 with stone, and the other to burn the kiln and furnish the necessary wood 
 for the purpose, the lime to be equally divided between them, it was h^eld 
 that a technical partnership existed between the parties.* 
 
 But an agreement by one to work another's farm on shares, does not 
 make them partners. Such parties are merely tenants in common of the 
 crops.' So a person who is employed in the business of another, and is 
 to be compensated by a salary, and a share of the profits, and who is not 
 also liable for losses, is not a partner.' So an agent or servant who is to 
 obey orders, and has no interest in the capital stock, is not a partner even 
 as to third persons, merely because he is to receive a share of the profits 
 of the business as a compensation for his services.' Though it be true, 
 as a general rule, that a communion of profits will make men partners, 
 and draw after it a liability for losses, yet it is well settled that the rule 
 is not universal. And it was said by Bronson, J., in the last mentioned 
 
 ' Chase v. Barrett, 4 Paige, 160. Champion v. Bostwiok, 18 Wend. 175. 
 
 " Keynolds v. Cleveland, 4 Cowen, 288. Pattison v. Blanchard, 1 Seld. 186-189. 
 
 " Cumpston v. McKair, 1 "Wend. 463. ' Musier y. Trnmpbour, 6 "Wend. 274. 
 
 Post V. Kimberly, 9 J. E. 495, 496, per ' Putnam v. "Wise, 1 Hill, 275. 
 
 Spencer, J. Porter v. McOlure, 15 "Wend. » "Vaftdenburgh v. Hull, 20 "Wend. 70. 
 
 193, per Bronson, J. See remarks of Ch. Walworth, in Ohflm- 
 
 *Doe v. Halsey, 16 J.R. 40. Chase v. pion v. Bostwick, 18 id. 184, 185. 
 
 Barrett, 4 Paige, 159. "Id. Bnrokle v. Eokart, 1 Denio, 337; 
 
 ' Heimstreet v. Howland, 6 Denio, 68. affirmed, S Oomst. 132. 
 
710 Partnership. [Ch. 10. 
 
 case, and approved by the court of appeals, in the same case, that the ex- 
 ception which, will best reconcile the cases, and which is the least liable to 
 abuse, and which is so distinctly marked that it can be easily adminis- 
 tered, is that which allows one man to employ another as a subordinate 
 in his business, and agree to pay him out of profits, if any shall arise, 
 without giving the party employed the rights, or subjecting him to the 
 liabilities of a partner." 
 
 The definition of a partnership, as already given, would seem to limit 
 the subject matter of a partnership to money, goods, labor and skill, em- 
 ployed for a communion of profit, in a legal trade, business or adventure. 
 Jut a partnership may exist in real estate, and iil ships, notwithstanding 
 the title to such property is usually held in common. Thus, though part 
 owners of a vessel are in general tenants in common, and not joint ten- 
 ants, yet it has been held in this state, that the owners of a ship may 
 hold her in partnership, and may be interested as such, in her voyages and 
 cargoes, or in a particular voyage.'' 
 
 At law, the general rule was formerly stated to be that where real es- 
 tate was held by partners for the purposes of the partnership, they did 
 not hold it as partners, but as tenants in common, and the rules relative 
 to partnership property did not apply in regard to it.' 
 
 Where real estate is conveyed to copartners, in their individual names, 
 for the use and benefit of the firm, or is so conveyed to them in payment 
 of debts due to the partnership, the legal title vests in the grantees 
 thereof, as in ordinary conveyances of real estate. And, by the common 
 law, wRere land was purchased with copartnership funds, for copartner- 
 ship purposes, and was conveyed to all the partners generally, in fee, it 
 would at law create a joint tenancy ; so that neither could convey any 
 more than his share of the land during the lives of his copartners. And 
 upon the death of either of the copartners, without having severed the 
 joint tenancy by a conveyance, the legal title to the whole of the land 
 would survive to the other copartners. But under the statutes of New- 
 York relative to joint tenancies, the several copartners to whom such a 
 conveyance is made, become tenants in common of the legal title. And 
 upon the death of either, the undivided portion of the legal title, thus 
 vested in the deceased partner, descends to his heirs at law ; without ref- 
 
 'Burokle v. Eckart, 1 Denio, 837; Dodington v. Hallet, 1 Ves. sen. 49T. 
 
 affirmed, 8 Oorast. 132. Smith v. De Silva, Oowp. 469. 
 
 " Mumford v. NiooU, 20 J. R. 611, 632, » Oolea v. Doles, 15 J. R. 159. 
 685 ; reversing 8. 0. 4 J. Oh. R. 522. 
 
Cli- 10.] Land HELD IN ParttJership. ~ 711 
 
 erence to the equitable rights of the Several partners, in the land, as a 
 part of the property of the firm.* 
 
 It is quite obvious that a court of law cannot, upon mere common law 
 principles, administer complete justice in eases of this.kind. But a court 
 of equity views the transaction in a different light. "Where real estate 
 is purchased with partnership funds for the use of the firm, and without 
 any intention of withdrawing the funds froni the firm for the use of all or of 
 any of the members thereof as individuals, it has never been doubted in 
 England, that such real estate was, in equity, to be considered and treat- 
 ed as the property of the members of the firm collectively ; and as liable 
 to all the equitable rights of the partners as between themselves. And 
 for this purpose the holders of the legal title are considered, in equity, 
 as the mere trustees of those who are beneficially interested in the fund ; 
 not only during the existence of the copartnership, but also upon the dis- 
 solution thereof by the death of some of the copartners or otherwise. 
 And the same rule now prevails in this state.'' 
 
 The decisions in England ar« conflicting on the question, whether real 
 estate of a copartnership, upon the death of one of the copartners, and 
 after the debts have been paid, and the equities adjusted between the 
 several members of the firm, belongs in equity, to the executor or admin- 
 istrator of the deceased, as a part of his personal property ; or whether 
 the beneficial interest, as well as the legal title of the deceased in the 
 share of such real estate, descends to the heir at law. Lord Thurlow, on 
 one occasion, inclined to think the interest of the deceased partner must, 
 in equity, be considered as a part of his personal property ; and'that it 
 should go to his personal representatives.' But upon a second argument 
 of the same case he changed his opinion, and decided that in the absence 
 of any agreement that the land should be converted into personalty at 
 the termination of the partnership, it belonged to the heir, as real estate. 
 That decision was followed by Sir William Grant in two cases, ^ both of 
 which decisions were overruled by Lord Eldon.' It is believed to be the 
 general rule in England, at this time, that real estate belonging to the 
 
 • Buchan v. Sumner, 2 Barb. Oh. R. & K. 649. Broom v. Broom, 3 id. 443. 
 
 166. 1 E. S. 727, § 44. Oookson v. Oookson, 8 Sim. 529. Towns- 
 
 ' Bnohan v. Sumner, 2 Barb. Oh. R. end v. Devaynes, 11 id. 498, note. 
 
 198. Smith v. Tarlton, id. 336. Lake ' Thornton v. Dixon, 3 Bro. Oh. 0. 199. 
 
 V. Oradook, 3 P. Wms. 168. Elliot v. ' Bell v. Phyn, 7 Vea. 457. Balmain 
 
 Brown, 9 Ves. 597. Smith v. Smith, 6' v. Shore, 9 id. 500. 
 
 id. 189. Delmonioo v. G-nillaume, 2 Sandf. ' Townsend v. De Vaynes, Montagu on 
 
 Oh. K. 366. Feriday v. Wightwiok, 1 Partn. app. 97. 
 K. & Myl. 45. Philips v. Philips, 1 Myl, 
 
712 Partnership. [CL 10. 
 
 firm, unless there Is something in the partnership articles to give it a 
 contrary direction, is to be considered, in equity, as personal property ; 
 and that it goes to the personal representatives of the deceased partner 
 ■who was beneficially interested therein.' 
 
 The American decisions on this subject are various and conflicting. 
 They are reviewed by the chancellor in Buchan v. Sumner, (supra,) and 
 he thinks that they may be said to establish two principles : First, that 
 real estate purchased with partnership funds and for the use of the firm, 
 is in equity chargeable with the debts of the copartnership, and with any 
 balance which may be due from one copartner to another, upon the wind- 
 ing up of the affairs of the firm : Secondly, that as between the personal 
 representatives and the heirs at law of a deceased partner, his share of 
 the surplus of the real estate of the copartnership which remains after 
 paying the' debts of the copartnership, and adjusting all the equitable 
 claims of the different members of the firm as between themselves, is 
 considered and treated as real estate.' 
 
 Although a court of equity in this sjate considers and treats real 
 property as a part of the stock of the firm, it leaves the legal title 
 undisturbed, except so far as is necessary to protect the equitable rights 
 of the several members of the firm therein. The separate creditors of 
 the individual partners have no equitable right to any part of the partner- 
 ship property until the debts of the firm are provided for, and the rights 
 of the partners, as between themselves, fully protected.^ 
 
 'Buohan v. Sumner, 2 Barb. Oil. R. 387. Baird v.Baird, ID.&BatEq.Cas. 
 
 199, 200. Selkrigg v. Davies, 2 Dow. P. 524; Eiohardson v. Wyatt, 2 Desanss. 
 
 0. 231. Philips V. Philips, 1 Myl. & K. Eq. E. 471. "Winslow v. Chififelle, Harp. 
 
 649. Broom v. Broom, 3 id. 443. Hough- Eq. K. 25. McAJister v. Montgomery, 3 
 
 ton V. Houghton, 11 Sim. 495. Morris v. Hay. E. 94. Hunt v. Benson, 2 Humph. 
 
 Kearsly, 2 Y. & Ool. 139. Eowley v. 459. Green v. Surviving Partners of 
 
 Adams, 7 Beav. 548. Green, 1 Ham. Ohio E. 535. Green v. 
 
 ' Smith v. Jones, 3 Fairf. 337. Blake Graham, 5 id. 264. Pngh v. Cnrrie, 5 Ala. 
 
 v. Nutter, 1 Appl. E. 19. Duldey v. KS.446. Woolridge v. Wilkin, 8 How. 
 
 Littlefleia, 8 Shep. E. 422. Pitts v. Miss. E. 360. Thayerv. Lane, "Walk. Oh. 
 
 Wangh, 4 Mass. E. 424. Goodwin v. E. 200. _ Ooles v. Ooles, 15 J. E. 169. 
 
 Eiohardson, 11 id. 469. Hoxie v. Carr, 1 Oox v. MoBurney, 2 Sandf. Oh. E. 661. 
 
 Sumn. B. 104. Sigourney v. Munn, 7 Averill v. Loueks, 6 Barb. 19. Dyer v. 
 
 Oonn. 11. Smith v. Jackson, 2 Edw. Oh. Olark, 5 Meto. 562. Burnside v. Meriiok, 
 
 R.28. Smithv.Wood,Saxt.E. 76. Bald- 4 id. 637. 
 
 win V. Johnson, id. 441. McDermot v. ' Buchan v. Sumner, 2 Bapb. Oh. E. 
 
 Lawrence, 7 Serg. & E. 488. Hale v. 207. Nioholl v. Mumford, 4 J. Ob. R. 
 
 Henrie, 2 Watts, 144. Forde v. Herron, 522. Christian v. EUis, 1 Gratt. 896. 
 
 4 Mnnf. 816. Deloney v. Hutchinson, 2 Oammaok v. Johnson, 1 Green's Oh. E. 
 
 Kand. 188. Edgar v. DonneUy, 2 Mnnf. 163. Pierce v.TieriaaB,10GilI&J.253. 
 
Ch. 10.] Limited Partnerships. 713 
 
 The foregoing observations are sufficient to show what constitutes a 
 partnership as between the parties themselves, and the general nature 
 of the subject of such partnership, together with some of its incidents. 
 Such partnership gives them a right of action in their character of part- 
 ners as against third persons, and enables any one of them to file his bill 
 in equity against the others for a dissolution of the partnership, a sale 
 of the copartnership effects, and a division of the proceeds among the 
 partners.' 
 
 Persons become liable to third persons as partners, either by contract- 
 ing the legal relation of partnership inter se, or by holding themselves 
 out to the world as partners. And the general rule is, except in limited 
 ■partnerships formed in pursuance of the statute, that not only all the 
 partners are liable for the debts of the firm to the extent of their interest 
 in the joint stock, but also to the whole extent of their separate property.* 
 
 The statutes of New- York have provided for a partnership with a 
 restricted responsibility. The act was first passed in 1822, and was revised 
 in 1830 ;' and it provides for the formation of limited partnerships for 
 the transaction of any mercantile, mechanical or manufacturing business, 
 within this state, but not for the purpose of banking, or making insurance. 
 Such partnership consists of two or more persons, one or more of whom 
 are called general partners, and are jointly and severally responsible as 
 general partners now are by law ; and one or more persons who shall 
 contribute, in actual cash payment, a specific sum as capital, to the com- 
 mon stock, who are called special partners, and who are not liable for 
 the debts of the partnership, beyond the fund contributed by him or 
 them to the capital. The general partners only are authorized to trans- 
 act business and sign for the partnership, and to bind the same. For the 
 purpose of forming such a partnership, the parties are required severally 
 to sign a certificate, stating the name or firm under which such partner- 
 ehip is to be conducted ; the genera.1 nature of the business intended to 
 be transacted ; the names of all the general and special partners inter- 
 ested, distinguishing which are general and which special partners, and 
 their respective places of residence ', the amount of capital which each 
 special partner shall have contributed to the common stock ; the period 
 at which the partnership is to commence, and terminate.* This certifi- 
 
 ' Oollyer on Part. 3. Blanchard, 4 East, 144. Madison County 
 
 ' Ex parte Langdale, 18 Ves. 301. Oar- v. Gould, 5 Hill, 311. 
 
 len V. Drnry, 1 Ves. & B. 157. Waugh ' L. of 1822, ch. 244, p. 259. 1 E. S. 
 
 V. Carver, 2 H. Bl. 235. Hesketh v. 763. 
 
 •1R.S. 764, §4. 
 
 Bq. Jur. 90 
 
714 Partnership. [Ch. 10. 
 
 cate is to be duly acknowledged before a proper oflBcer and filed in the 
 office of the clerk of the county in which the principal place of business 
 of the partnership is situated, and also recorded at full length, and kept 
 open for public inspection. If the partnership has places of business in 
 other counties, a transcript of the certificate and acknowledgment must be 
 filed and recorded in like manner in the office of the clerk of such county 
 or counties. At the same time, an affidavit of one or more of the general 
 partners must also be filed in the same office with the original certificate, 
 stating that the sums specified in the certificate, to have been contrib- 
 uted by each of the special partners to the common stock, have been 
 actually and in good faith paid in cash. If any false statement is made 
 in the certificate or affidavit, all the persons interested in such partner- 
 ship, are made liable for all the engagements thereof, as general partners. 
 
 The terms of the partnership, when registered, must be published by 
 the partners for six weeks immediately after the registry. In like man- 
 ner, every renewal or continuance of such partnership, beyond the time 
 originally fixed for its duration, must be certified, acknowledged and 
 recorded, and an affidavit of a general partner be made and filed, and 
 notice be given, in the manner required for its original formation ; and 
 every such partnership which shall be otherwise renewed is declared to 
 be a general partnership. 
 
 Every alteration made in the names of the partners, in the nature of 
 the business, or in the capital or shares thereof, or in any other matter 
 specified in the original certificates, is deemed a dissolution of the part- 
 nership. And every such partnership in any manner carried on after 
 any such alteration is deemed a general partnership, unless renewed as a 
 special partnership, according to the provisions of the act. 
 
 With regard to the manner in which the business is to be carried on, 
 and the persons by whom it is to be conducted, it is provided that it must 
 be in the name of the general partners, and by them, without the addi- 
 tion of " company," or any other general term. If the name of a special 
 partner is used in the firm, with his privity, he is deemed a general 
 partner. 
 
 The sta,tute, however, permits the special partner, from time to time to 
 examine into the state and progress of the partnership concerns, and to 
 advise in their management ; but he is not allowed to transact any busi- 
 ness on account of the partnership, or to be employed for that purpose 
 as agent, attorney or otherwise. By his interference in the matter, con- 
 trary to the provisions of the act, he becomes a general partner. 
 
 Though the special partner is not allowed to withdraw any portion of 
 the capital contributed by him, at any time during the continuance of the 
 
Ch. 10.] Limited Partnership. 715 
 
 partnership, he is nevertheless permitted annually to receive lawful inter- 
 est on the sum so contributed by him, if the payment thereof does not re- 
 duce the original amount of such capital ; and if after the payment of 
 Buch interest, any profits remtiin to be divided, he may also receive his 
 portion of such profits.' 
 
 The partnership is forbidden to make assignments or transfers, or cre- 
 ate any lien with the intent to give preference to creditors. And in 
 case of the insolvency or bankruptcy of the partnership, no special part- 
 ner is allowed, under any circumstances, to claim as a creditor, until the 
 claims of all the other creditors of the partnership shall be satisfied. 
 
 Suits in relation to the business of the partnership are brought and 
 conducted, by and against the general partners, in the same manner as if 
 there were no special partners.^ This provision it is presumed is still 
 in force, notwithstanding the code, which as a general rule requires the 
 action to be prosecuted in the name of the real party in interest. It falls 
 within the exception.' 
 
 If the parties desire to dissolve the partnership, before the time admit- 
 ted for that purpose in the certificate of its formation, they must cause a 
 notice of such dissolution to be published for four weeks, in a newspaper 
 printed in each of the counties where the partnership may have places of 
 business, and in the state paper. But such notice is not necessary to be 
 given, when the partnership expires by the limitation of the original 
 certificate.* 
 
 To enable a special partner to escape from the liability of a general 
 partner, he must see that the provisions of the law have been strictly 
 complied with, and that he has not violated any of the requirements of 
 the law, in meddling with the concerns of the partnership.' 
 
 It would seem that the general partners cannot, in case of insolvency, 
 make an assignment of all the partnership efiects to a trustee for the pay- 
 ment of the partnership debts ratably or otherwise ; unless provision is 
 made for such assignment in the articles of copartnership.* The implied 
 authority arising from the ordinary contract of copartnership, does not 
 authorize one of the partners, without the assent of his copartners, to 
 make a general assignment of the copartnership efiects to a trustee for 
 the benefit of creditors, and giving preferences to one class of creditors 
 over another.' The special partners, it would seem, should unite in the 
 
 ■ 1 B. S. 764, § 15. 309. Smith v. Argall, 6 id. 479 ; affirmed 
 
 •'Id. § 14. 3 Denio, 435. Brown v. Argall, 24Wend. 
 
 » Code, §§ 111, 113. 496; 
 
 * Haggerty v. Taylor, 10 Paige, 262. ' Mills v. Argall, 6 Paige, 582. 
 
 * Madison Co. Bank v, Gould, 5 Hill, ' Havens v. Hussej, 6 Paige, 81, 
 
716 Partnership. [Ch. la 
 
 general assignment to make it ' effectual, where no provision has beea 
 made for it in the articles. 
 
 The business of the firm is conducted by the general partners alone, and 
 they or any one of them may, during the continuance of the partnership, 
 transfer so much of the partnership effects in the- name of the firm, as 
 may be suflScient for that purpose, to one or more creditors of the firm, in 
 payment of their delJts. The principle upon which such assignment is 
 .upheld is, that there is an implied authority for that purpose, from the 
 copartners, from the very nature of the copartnership ; the payment of 
 the company debts being always a part of the necessary business of the 
 firm. But it is no part of the ordinary business of a copartnership, to 
 appoint a trustee of all the partnership effects, for the purpose of selling 
 and distributing the. proceeds among the creditors in unequal proportions.' 
 
 The statute evidently treats the property of a limited partnership, 
 after insolvency, as a trust fund, for the benefit of all the creditors ; and 
 if the partners neglect to place it in the hands of a proper and responsi- 
 ble trustee, to be distributed without delay among the creditors, other 
 than the special partners, any creditor may proceed at once in equity, for 
 the appointment of a receiver and a distribution of the fund.* 
 
 Though an agreement in writing be necessary to constitute a special 
 partnership, according to the statute, and a strict conformity to the pro- 
 visions of the act be necessary, in order to restrict the responsibility of 
 the special partners to the extent of their funds put into the concern, yet 
 a copartnership may be formed between parties, by parol, and without 
 any written contract, when the copartnership is to take effect immedi- 
 ately.' The mere consent of the parties, evidenced by their acts or 
 words, is all that is required for this purpose. If, however, an agreement 
 be made to enter into a partnership, at a future day, after the expiration 
 of a year, it has been doubted whether the agreement could be enforced 
 unless it was reduced to writing and subscribed by the parties.^ And it 
 is no objection to the formation of the partnership, by parol, that one of 
 the declared objects of the copartnership is to purchase real estate for 
 the purposes of the firm, and as a site for the transaction of its business. 
 Such real estate, purchased with partnership funds for the use of the 
 
 ' Havens v. Hussey, 5 Paige, 81. Eg- » Smith v. Tarlton, 2 Barb. Ch. R. 336-. 
 
 bert v. 'Wood, 8 id. 517. Harrison v. Featherstonhaugh v. Fenwick, 17 'Vea. 
 
 Sterry, 6 Oranoh, 300. 298. 
 
 = Innes v. Lansing, 7 Paige, 583. * Smith v. Tarlton, supra. 2R.S.136, 
 
 "Whitewright v. Stimpson, 2 Barb. S. 0. § 2. 
 E. 879. 
 
Ch. 10.] Dissolution op Partnership. 717 
 
 firm, in whose name the conveyance is taken, is in equity considered the 
 property of the firm for the payment of its debts, and for the purpose 
 of adjusting the equitable claims of the copartrlers between themselves.' 
 
 Though it is not the object of this chapter to treat of the subject of 
 partnership at large, but merely to notice some of the cases in which the 
 interference of equity is indispensable for complete justice, yet it is proper 
 to add that the acts of a majority of the partners bind the rest.'' In 
 general one partner cannot bind his copartners by seal, without special, 
 authority for that purpose, and the authority may be by parol.' This 
 rule applies only \o cases where an obligation is sought to be created ; 
 but one partner may, in the name of the firm, make a valid release under 
 seal, of a debt due to the partnership.' This is upon the principle that 
 each partner has a right to receive the debt, and of course his individual 
 receipt, or release, would be evidence of such payment. The release of 
 one joint obligee bars his companion.' 
 
 Partners may bind themselves by a private agreement concerning the 
 partnership business.^ But an agreement between them that neither 
 shall make a contract to charge the others, will not aifect strangers hav- 
 ing no notice of it.' 
 
 It is mainly after the dissolution or insolvency of a partnership that 
 the interference of a court of equity becomes necessary to settle and ad- 
 just the equities of the partners amongst themselves, as well as the equi- 
 ties of creditors of individual partners, to the share of their debtor in 
 the copartnership effects. 
 
 The partnership may be dissolved in a variety of ways. It may ex- 
 pire by its own limitation. It may be dissolved by the act of either part- 
 ner, without previous notice, where the partnership is formed without 
 written articles, restraining the party from this exercise of his authority.^ 
 It may be dissolved by the death, insanity or bankruptcy of one or more 
 of the partners f by the breaking out of war between two countriesi 
 when the members of the firm thus become subjects of hostile govern- 
 
 ' Smith V. Tarlton, supra. ' Knddock's case, 6 Co. 25. Buren v. 
 
 ' Kirk V. Hodgson, 3 J. Ch. 200. Wil- Marquand, 17 J. E. 58. 
 
 kins V. Pearce, 5 Denio, 541. " Gould v. Banks, 8 Wend. 562. 
 
 ' Green v. Seals, 2 Oai. 254. Clement ' Tradesman's Bank v. Aster, 11 Wend. 
 
 V. Brush, 3 J. C. 180. Skinner v. Dayton, 87. 
 
 6 j; Oh. K. 351 ; S. 0. 19 J. E. 513. » reatherstonhaughv.Fenwick,17V6ft 
 
 * Pierson v. Hooker, 3 J. E. 68. Bulk- 298. 
 
 l«y V. Dayton, 14 J. E. 387. " Griswold v. Waddington, 15 J. E. 57 ; 
 
 S. 0. affirm, in error, 16 id. 438. 
 
T18 Partnership. [Ch. 10. 
 
 ments,' and by the conviction of one of the partners of a capital offense.' 
 It has been held that the marriage of a /erne sole partner is a dissolution 
 of a partnership at will.^ So also a bona fide assignment by one of sev- 
 eral partners, of all his interest in the copartnership stock, ipso facto, 
 dissolves the copartnership, though one of the articles expressly provides 
 that the copartnership is to continue until two of the contracting parties 
 should demand a dissolution, and the other partners were desirous to have 
 , it continue, notwithstanding the assignment.* Such assignment operates 
 as a severance of the interest of the partners. A partner cannot, with- 
 out the consent of his copartners, introduce a third person as a partner 
 into the concern.* 
 
 But though the partnership be dissolved, it nevertheless subsists for 
 the purposes of closing up the concern ; and if one thereafter die, the other 
 takes the property and books as survivor, subject to account to the per- 
 sonal representatives of the deceased.'' Surviving partners, it has already 
 been said, are in equity trustees of the partnership effects, and cannot 
 derive any exclusive profit from their use.'' They may carry on a joint 
 business in the name of the late firm, or in any other name, and limit it 
 to winding up the business of the late firm, or carry on the business gen- 
 erally.^ They are entitled to close up the concern, and equity will not 
 appoint a receiver and deprive them of this right, if they are responsible 
 and act in good faith.' And the bare fact that the survivor resides 
 abroad is no reason for interfering with the exercise of this right through 
 a competent agent. 
 
 With respect to third persons, the liability of the partners continues 
 until notice of the dissolution, unless the dissolution be occasioned by the 
 death of one of the partners. Notice of the dissolution in the newspapers 
 is sufficient notice to all persons who have no previous dealings with the 
 firm ; but persons who have had previous dealings with the firm are not 
 affected by such notice, but they are entitled to actual notice.'" 
 
 Upon the dissolution of a partnership in any way, and especially in 
 case of insolvency, the intervention of a court of equity to take an account 
 
 * Seaman v. "Waddington, 16 J. E. 610. ' Case v. Abeel, 1 Paige, 393. 
 
 » 2 R. S. 701, § 20. « Staats v. Hewlett, 4 Denio, 659. 
 
 ' Nerot V. Burnand, 4 Russ. 260. » Evana v. Evans, 9 Paige, 178. 
 
 * Marquand v. The N". Y. Manufacturing " Graves v. Merry, 6 Oowen, 771. Na- 
 Oo. 17 J. R. 526. tional Bank v. Norton, 1 Hill, 572. Van 
 
 ' Murray v. Bogert, 14 J. E. 818. Epps v. Dillaye, 6 Barb. 244. Wardwell 
 
 ' Murray v. Mumford, 6 Oowen, 441. v. Haight, 2 Barb. S. 0. E. 549. 
 
Oh. 10.] Surviving Partner. 719 
 
 of tLe copartnership transactions, becomes the most available remedy. 
 The partnership effects, in cases of insolvency, are treated, in equity, as 
 a trust fund for the payment of the copartnership debts, and they will be 
 so applied upon the application of either of the partners.' They must 
 first be applied to the payment of the partnership debts ; and the indi- 
 vidual property of the partners to their individual debts.' 
 
 But -when the copartners are administering their own funds, the co- 
 partnership creditors have no specific or preferable lien upon the joint 
 funds ; nor have the individual creditors any lien or priority of claim 
 upon the separate property of their debtors. It is only when neither the 
 joint nor the separate creditors of the persons composing the firm can 
 reach the property of their debtors, so as to obtain satisfaction by execu- 
 tion at law, that the equitable principle is applied, of paying joint cred- 
 itors out of the partnership property, and individual creditors out of the 
 separate property of their debtor ; when there is not enough to pay both.' 
 
 While the partners have the legal control of their property, they may 
 distribute it as they see fit among all their creditors, provided they deal 
 justly by all. Hence, they may assign their individual property as well 
 as their partnership property to pay the joint debts of the firm ; thereby 
 giving the creditors of the firm a preference in payment out of the sepa- 
 rate estate of the assignors, over the separate creditors. And each part- 
 ner, with the assent of his companions, has the corresponding right to 
 give his individual creditors a preference in payment out of the share of 
 the efiects of the firm, which as between him and his copartners, and 
 without reference to the debts for which they are all jointly liable, is 
 legally his own property. But a partner who is insolvent and unable to 
 pay the debts of the firm, has no right to assign his share of the partner- 
 ship effects to pay the individual debts of his copartner, for which neither 
 he nor his property is legally or equitably liable.' , 
 
 Though the law casts upon the surviving partner the burthen of dis- 
 charging all the partnership debts, and vests in him the partnership 
 assets for that purpose, still, if he is insolvent, equity will aid the cred- 
 itors of the firm in obtaining satisfaction out of the property of the 
 deceased copartner.' But as long as the surviving partner is of sufficient 
 
 ' Egberts v. ■Wood, 517. 508. Wilder v. Keeler, 3 Paige, 162. 
 
 = Wilder v. Keeler, 3 Paige, 167. Kirby Brown v. Story, 2 id. 594. Butts v. Gen- 
 
 V. Sohoonmaker, 3 Barb. Ch. E. 46. nng, 6 id. 254. Payne v. Mathews. 6 id. 
 
 ' Kirby v. Sohoonmaker, 3 Barb. Oh. 19. Lawrence v. The Trustees of Leake 
 
 E. 46. Orphan House, 2 Denio, 577. Hid. 80. 
 
 ' Id. Smith V. Ballantine, 10 id. 101. 
 
 ' Hamersley v. Lambert, 2 J. Oh. E. 
 
720 Partneeship. [Oh. 10. 
 
 ability to pay, there is no failure of the remedy at law, and no 'occasion 
 for the extraordinary aid of a court of equity. The weight of authority, 
 in this state, is that the creditor must resort to his legal remedy against 
 the surviving debtors, unless he can show some ground of necessity for 
 coming into equity for relief against the estate of the deceased debtor.' 
 
 In England a different rule at present seems to prevail. Treating a 
 partnership debt as joint and several, the courts there hold that the 
 creditor may resort at once to the estate of the deceased partner, making 
 the surviving partner a party defendant to the action, without averring 
 or proving the insolvency of the surviving partner.' But the chancellor 
 refused to follow these, and a few other recent English cases,' holding 
 that the law was otherwise conclusively settled in this state, in conformity 
 to the earlier English doctrine.* 
 
 A question of great difiBculty and importance arises, upon a sale by a 
 creditor under a judgment and execution against one partner, whether 
 only the interest of the partner defendant in the execution is to be sold, 
 or whether the property itself is to be sold and delivered to the purchaser, 
 the latter taking the place of the partner whose share has been sold. It 
 is well settled that the interest of one partner in the partnership prop- 
 erty, is only his share, after a settlement of t)ie partnership accounts, and 
 satisfaction of all just claims of the other partners.^ No greater interest 
 can be sold under an execution against the partner than he possesses. 
 The difiBculty consists in the selling of an uncertain interest. Lord El- 
 don, on one occasion said, if courts of law have followed courts of equity 
 in giving execution against partnership effects, they do not adhere to the 
 principle, when they suppose that the interest can be sold before it has 
 been ascertained what is the subject of sale and purchase. According to 
 the law before Lord Mansfield's time, the sheriff, under an execution 
 against partnership effects, took the undivided share of the debtor, with- 
 out reference to the partnership account ; but a court of equity would 
 have set that right, by taking the account, and ascertaining what the ' 
 sheriff ought to have sold. The courts of law, however, have now repeat- 
 
 ' See cases cited in last note. wlcke, cited in 2 Ves. 101. Jenkins v. 
 
 » Devaynes V. NoWe, 2 R. & Myl. 495. Groot, 1 Cai. 0. E. 121. See English 
 
 "Wilkinson v. Henderson, 1 Myl. & K. rule stated under the head of Fraud, ante, 
 
 682, and see the cases on p. 719. See p. 191. 
 
 ante, under head of Fraud. ° NiooU v. Mnmford, 4 J. Ch. E. 622. 
 
 'The Trustees, &o. v. Lawrence, 11 Eodriguezv.Hefifernan, 5id. 417. Buchan 
 
 Paige, 85. v. Sumner, 2 Barh. Gh. E. 165. 
 
 * Simpson v. Vaughn, by Lord Hard- 
 
Ch. 10.] Sale of Partnership Interest. 721 
 
 edly laid down, that they -will sell the actual interest of the partner, pro- 
 fessing to execute the equities between the parties ; but forgetting that 
 a court of equity ascertained previously what was to be sold. How could 
 a court of law ascertain what was the interest to be sold,- and what the 
 equities, depending upon an account of all the concerns of the partners 
 for years?' 
 
 In England it is the law that the creditor of any one partner may take 
 in execution that partner's interest in all the tangible property of the 
 partnership.'' And it was laid down by Holt, at an early day, that in an 
 action against one of two or more partners, the sheriff must seize all the 
 goods, because the moieties are undivided ; for if he seize but a moiety 
 and sell that, the other will have a right to a moiety of that moiety ; but 
 he must seize the whole, and sell a moiety thereof undivided, and the 
 vendee will be tenant in commqn with the other partner^* 
 
 The moment the interest of one of the partners is seized under an exe- 
 cution against him for his individual debt, the partnership in the goods 
 fio seized is at an end ; and the creditor becomes a tenant in common with 
 the other partner. And when the goods are sold the vendee becomes ten- 
 ant in commdn in like manner.'' 
 
 The difiSculty and embarrassment arising from the sale of an uncertain 
 interest, necessarily leading to a bill in equity for an account, induced 
 Lord Mansfield to direct a reference to. the master in cases of this kind, 
 in order to ascertain the actual interest of the debtor partner before the 
 sale ; and to require the sheriff to levy no more than the interest of such 
 partner.^ This case was followed by Lord Kenyon in a subsequent case.' 
 But this mode of ascertaining the interest of the debtor partner was 
 afterwards abandoned, from the extreme difficulty of taking an account at 
 law.' If the partnership be of ilong continuance, or complicated in its 
 nature, it is quite obvious that a satisfactory account can only be taken 
 in equity. Accordingly the practice in England seems to be, when the 
 separate creditor of one partner has taken partnership goods in execution, 
 in discharge'of his separate debt, for the other partners to file their bill 
 against the creditor, the debtor partner and the sheriff, praying for an 
 account of the partnership, and payment of what is due to them, and that 
 
 •"Waters V.Taylor, 2 Ves.&B. 301, per 4 Ves. 396. 3 C. & P. 306. Marqnand 
 
 LordEldon. v. N. T. Manu. Co. 17 J. K. 525. Walsh 
 
 ' Per Lord Alvanly, 3 B. & Poll. 289. v. Adams, 3 Denio, 7. 
 
 ' Heydon v. Heydon, 1 Salk. 392. ' Edie v. Davidson, Dong. 650. 
 
 Jaoky v. Butler, 2Xd. Eay. 871. ' Seethe case as stated by Best, Seij. in 
 
 ♦ Fox V. Hanbury, Oowp. 449. Skip v. Parker v. Pistor, 3 B. & Pull. 288. 
 
 Harwood, 2 Swanst. 586. Field v. , ' Chapman v. Koops, 3 B. & P. 289. 
 
 mn -Tttp »J 
 
722 Partnership. [Ch. 10. 
 
 the sheriff may be restrained from proceeding under the execution and 
 Belling the stock and effects ; and a court of equity will give relief accord- 
 ingly.' 
 
 If in cases of this nature, execution be executed before an injunction 
 can be obtained, the court -will stay the money in the hands of the sheriff, 
 until the ac'count can be taken.' Under this doctrine the sale does not 
 in truth transfer any part of the joint property to the vendee, so as to 
 enable him to take it from the other partners. It gives him merely a 
 right in equity to call for an account, and thus to entitle him to the inter- 
 est of the partner in the property, ■which on the settlement of the account, 
 shall be ascertained to exist. It is clear such an account can only be 
 taken in a court of equity. 
 
 There are some of the New- York cases, which incline to adopt the same 
 rule. Thus, where an attachment had issued under the act for relief against 
 absent and absconding debtprs,' against one partner for his individual 
 debt, the partner having absconded, and thus become liable to the process 
 of attachment under the act, the court upon a motion to discharge the 
 attachment which had been levied upon the property of the copartner- 
 ship, directed the property so seized to be restored.^ The court in dis- 
 posing of the motion said : where an execution is issued for the separate 
 debt of one partner, it has been the constant practice to take the shares 
 which such partner has in the partnership property, but it has been set- 
 tled, at least since the case of Fox v. Hanbury, (Cowp. 445,) that the 
 sheriff can sell only the actual interest which such partner has in the 
 partnership property after the accounts are settled, or subject to the part- 
 nership debts. The separate creditor takes it in the same manner as the 
 debtor himself had it, and subject to the rights of the other partner. 
 The sheriff, therefore, does not seize the partnership effects themselves, 
 for the other partner has a right to retain them, for the payment of the 
 partnership debts. And elsewhere, in the same opinion, after putting an 
 attachment upon the footing of au execution, they say, " the aheriff can 
 take the separate property only, of the absconding debtor. He cannot 
 seize the partnership effects, for the other partner has a right to retain 
 and dispose of them, for the payment of the partnership debts."' 
 
 Shortly before the case of Ex parte Smith, in the supreme court, Chan- 
 cellor Kent held that the interest of one partner in the partnership prop- 
 
 ' OoU. on Part. 478. 1 Mad. Oh. Pr. « Coll. on Part. 478. 
 
 112. Bevan v. Lewis, 1 Sim. 376. Lownes ' 1 R. L. of 1813, p. 157. 
 
 V. Taylor, 1 Mad. Oli. E. 422. Taylor v. * Matter of Smith, 16 J. R. 102. 
 
 Fields, 4 Ves. 896. Young v. Keighly, " Matter of Smith, supra, and note to 
 
 15 id. 563. that case. 
 
Ch. 10.] Sale of Partnership Interest. '723 
 
 erty might be taken and sold under an execution ^.t law, on a judgment 
 against such partner for his separate debt ;, and that a court of equity 
 ■would not stop such execution or sale by injunction, to enable the part- 
 nership accounts to be taten and liquidated." He said the principle would 
 go to stay executions at law in every case, against the partnership prop- 
 erty of one partner who owed separate debts, until the disclosure and 
 liquidation of the copartnephip. This would produce inconceivable de- 
 lay, and embarrassment, in respect of the separate creditors. If those 
 creditors can sell only subject to the joint creditors, there is no harm in 
 suffering them to go on at law ; and if any sacrifice of the interest of the 
 separate partner is made by reason of the uncertainty, it affects only 
 that partner who does not here raise the objection. But this case did 
 not present the question whether the property of the partnership itself 
 might be sold and delivered to the vendee, subject to an account, or 
 whether only the interest of the partner might be sold, without disturb- 
 ing the possession of the other partner. 
 
 But whatever may have been the opinion of the chancellor on that 
 question, it has since been set at rest in this state. The principle is 
 now stated to be, that on an execution against one of two partners, the 
 sheriff may seize the entire partnership effects, or so much as may be 
 necessary to satisfy the execution, and sell the interest of the partner 
 against whom the execution is issued, and deliver the property so sold 
 to the purchaser, against the will of the other partner ; and the other 
 partner cannot maintain an action against the sheriff for such sale and 
 delivery.' It is conceded, however, that the purchaser takes subject to 
 an account between the partners, and to the equitable claims of the cred- 
 itors of the firm in the name of the other partner. 
 
 In the case of Phillips v. Cook, (supra,) the plaintiff claimed as assignee 
 of the partners for the benefit of the creditors generally, and the action 
 was brought in trespass de bonis asportatis, against the defendant, a 
 deputy sheriff, for taking and selling the goods under an execution against 
 one of the partners, for an individual debt of such partner. The court 
 treated the action as if it had been brought by the partners, it being 
 brought by trustees claiming under an assignment made subsequent to 
 the levy. The court held that the action could not be maintained. They 
 said that at law, the sheriff may seize and sell the interest of a partner 
 in all choses in possession, the same as he may that of any joint tenant 
 or tenant in common. They adopt the language of Holt, Ch. J., in Pope 
 T. Haman, (Comb. 217 :) " Upon a judgment against one partner, the sher-. 
 
 » Mody v. Payn, 2 J. Oh. E. 513, ' PhUlips v. Cook, 24 Wend. 889, 
 
724 Partnership. [Oh. 10. 
 
 iff may take the goods of both in execution ; and the other partner hath 
 no remedy at law, otherwise than by retaking the goods, if he can ; for 
 the vendee of the sheriff bscomes tenant in common with the other co- 
 partner." The whole subject and the cases in this country are exten- 
 sively reviewed by the learned judge who delivered the opinion in the 
 case under consideration.' The doctrine is put upon common law princi- 
 ples, and not upon any change introduced by statute. 
 
 In an earlier case, Savage, Ch. J., while he held that trespass or replevin 
 would not lie against a sheriff for a levy under such circumstances, seem- 
 ed to think that the court from which the execution issued would stay 
 proceedings upon it to give time to have an account taken, in equity.' 
 
 The doctrine of Phillips v. Cook has been repeated in numerous other 
 cases, and is the settled law in this state. Thus, in quite a recent case, 
 Jewett, J., in delivering the opinion of the court said, he considered it 
 well settled that upon an execution against one of several partners, the 
 sheriff may take the goods of the partnership in execution, and sell the 
 individual share or interest of the defendant, and in doing so, he may 
 take possession of, remove and deliver the entire property taken, to his 
 vendee. When the goods are so sold -by the sheriff, the purchaser be- 
 comes a tenant in common with the other partners. He is entitled not 
 to the goods of the partnership, but to the interest in the goods of the 
 partner against whom the execution was,.encumbered with the joint debts 
 of the partnership, and subject to account for the full value in favor of 
 partners, and through them to creditors. Neither party has any thing 
 separately, in the corpus of the partnership effects ; but the interest of 
 each is only the share of what remains after the partnership accounts are 
 taken. The accountability of the purchaser does not depend in such 
 case, on the fact of notice. No greater interest can be sold than the 
 judgment debtor possessed.* 
 
 But though the sheriff may, under an execution against one partner, 
 take the actual possession of the partnership goods, and deliver the pos- 
 session to the vendee after the sale, he cannot sell the interest of the 
 other partners, not named in the execution. Should the officer in such 
 a case, assume to sell the whole property, he would, it seems, be liable 
 to an action, at the suit of the partner not a party to the execution, but 
 the debtor partner cannot be joined in such action.' 
 
 ' Scrngan v. Carter, 12 Wend. 1S4. > Waddell v. Cook, 2 Hill, 47, and note 
 
 ' Walsh v. Adams, 3 Denio, 125, 128. a, overruling Messereau v. Norton, 15 J. 
 
 Ex parte King, 17 Ves. 115. Church v. E. 179. See also White v. Osborn, 21 
 
 Knox, 2 Conn. K. 523. Burrall v. Acker, Wend. 72, 
 
 %Z Wend. 606. 
 
Ch. 10.] Sale of Partnership Interest. 725 
 
 Tte apparent discrepancy in the New- York cases was attempted to be 
 reconciled by Cowen, J., in Phillips v. Cook, (supra,) by the fact that in 
 Smith's case, (16 J. R. 102,) the question arose upon a special motion, 
 addressed to the equity powers of the court ; and that the question in 
 Wilson V. Conine, (2 J. R. 280,) arose upon a motion for a new trial 
 upon a case, addressed to the equity of the court, and was decided, there- 
 fore, according to the rule prevailing in chancery, and not according to 
 the rule prevailing in courts of law. There is force in these suggestions. 
 
 "What effect upon this question, the union and blending of law and 
 equity in the same court will have, has not yet been settled. There can 
 be less objection now, than under the old practice, to stay a sale on an 
 execution against one partner, until the copartnership accounts are taken, 
 as was suggested by Savage, Ch. J., in Scrugan v. Carter, (supra,) to 
 be the true course. One court would not now be waiting the action 
 of another court. But the whole proceeding being in the same court, 
 could be so moulded as to ascertain the exact interest applicable to the 
 execution, with the least possible delay. 
 
 In a case in the court of errors, about the time the case of Phillips 
 v. Cook was decided by the supreme court, the chancellor said that the 
 interest of a copartnership in the partnership goods might be levied upon 
 and sold, and that after the levy and previous to the sale, the sheriff is 
 authorized to take a joint possession with the other members of the firm; 
 but the case did not call for a decision, nor did he decide, whether the 
 sheriff could, in such a case, take the exclusive possession.' The chan- 
 cellor adverted to the fact, that the revised statutes had authorized a 
 special interest in personal property to be sold on execution, but he, 
 nevertheless, spoke of the sale of the interest of a copartner in the 
 partnership effects on an execution against him alone, as justified upon 
 common law principles. 
 
 The question as to the construction of the New- York statute relative 
 to the sale of personal property on execution, and especially of the sale 
 of a right and interest of a party in such property, has been decided by 
 the supreme court, and affirmed by the court of appeals, on an equal 
 division of the members. Thus, at common law, goods pawned or pledged, 
 are not liable to be taken in execution in an action against the pawnor 
 or pledgor.' The New- York Revised Statutes enact, that where goods 
 or chattels shall be pledged for the payment of money or the perform- 
 
 • Bnrrall v. Ackar, 23 "Wend. 610. 4 Cowen, 461. Pomroy v. Smith, 17 
 
 » Stief v. Hart, 1 Comst. 20, 28. Wilkes Pick. 85. Story on Bailment, § 353. Otis 
 T. Ferris, 5 J. E. 386. Marsh v. Lawrence, v. Wood, 3 Wend. 500. 
 
728 Partnership. [Ch. 10. 
 
 ance of any contract or agreement, the right and interest in such goods, 
 of the person making such pledge, may be sold on execution against him, 
 and the purchaser shall acquire all the right and interest of the defend- 
 ant, and shall be entitled to the possession of such goods and chattels, on 
 complying with the terms and conditions of the pledge.' 
 
 In Stief V. Hart, the question arose, whether the sheriff holding an 
 execution against the pledgor of goods, might by virtue thereof take the 
 property pledged out of the hands of the pledgee into his own possession, 
 and sell the right and interest of the pledgor therein. The supreme 
 court held the affirmative of this question, and their judgment was affirmed 
 pro forma by the court of appeals. It was, however, held, that after 
 the sale, the pledgee was entitled to the possession until the purchaser 
 redeemed it from the pledgee.' The question was decided, not upon com- 
 mon law principles, but upon the construction of the New- York statute 
 relative to executions against property.' The statute, after authorizing 
 the sale upon execution against the pledgor, of his right and interest in 
 the goods, enacts, in a subsequent section, that no personal property 
 shall be exposed for sale, unless the same be present, and within the 
 view of those attending such sale. Unless the sheriff can take the pos- 
 session from the pledgee, he cannot fulfill this requirement of the law ; 
 and this was the ground on which the cause was decided by the supreme 
 court. ^ The sheriff, however, is not authorized, as on the sale of property 
 held in common on an execution against one, to deliver the possession to 
 the purchaser ; for this would be putting the property beyond the reach 
 of the pledgee.' 
 
 It is quite obvious in this case, that though the possession may thua 
 be taken from the pledgee by the sheriff, that the purchaser acquired by 
 his purchase a mere equity, and that the pledgee is entitled to the pos- 
 session after the sale, until the redemption by the purchaser. Under 
 this construction of the act, the possession of the pledgee is no further 
 disturbed than is necessary to fulfill the requirement of the statute, that 
 personal property, sold under an execution, must be present and within 
 the view of those attending the sale. 
 
 The effects of a partnership on the death or insolvency of one or more of 
 the copartners, can in no way be administered but in a court of equity. An 
 action at law is wholly ineffectual to adjust the conflicting equities which 
 generally grow out of such transactions. Not only is the remedy at law 
 
 • 2 E. 8. 866. ' Bakewell v. Ellsworth, 6 Hill, 484. 
 
 ' Stief V. Hart, 1 Oo-mst. 20. Saul v. Kruger, 9 How. Pr. K. 572. 
 
 ' 2 K. 8. 885. ' Waddell v. Cook, 2 Hill, 47. Walsh 
 
 V. Adams, 8 Panio, 127. 
 
Ch. 10.] Copartnership Accounts. 727 
 
 imperfect and inadequate, but in many cases it does not reach the diffi- 
 culties of the case. The advances of the copartners in their business 
 may be greatly unequal ; one may have loaned to the firm large sums of 
 money to enable it to sustain its operations, and may thus become largely 
 a creditor of the firm. At law he can bring no action against his com- 
 panions, nor against the firm, for he cannot sue himself. His remedy, 
 therefore, is in equity, which looks at the substantial rights of the parties 
 ■without reference to the technical difficulties which the rigid rules of a 
 court of law interpose to such an action. 
 
 It not unfrequently happens that the same individual may be a mem- 
 ber of several firms, which have extensive and complicated dealings 
 together. In such a case, neither of the firms can maintain an action at 
 law against the other. On the dissolution of either of the firms, by 
 death or insolvency, their affairs can only be adjusted by a suit in equity, 
 in which all the parties interested are brought before the court. In taking 
 such account for the distribution of the property, thus treated as a trust 
 fund, the partnership creditors are entitled, in the first instance, to be 
 satisfied out of the partnership efiiects ; the separate or private creditors 
 of the individual partners, from the separate and private estate of the 
 partners, with whom they have made private and individual contracts ; 
 and the private and individual property of the partners is not to be ap- 
 plied to the extinguishment of partnership debts until the separate and 
 individual creditors of the respective partners shall have been paid.' In 
 a court of law the preference of the joint creditors to the joint fund-, and 
 of the individual creditors to the individual property, are in general dis- 
 regarded. A joint creditor may at law proceed directly against the sepa- 
 rate property of one of the partners, and an individual creditor against 
 the partnership effects, in disregard of the equities of the parties, so that 
 a resort to a court of equity becomes in the end indispensable. The 
 creditors, indeed, of the partnership have no lien, as such, upon the part- 
 nership effects, but their preference to the joint estate, is worked out 
 through the equity of the partners.' 
 
 It is scarcely necessary to add, in concluding this chapter, that the 
 power of one partner to bind the firm ceases with the dissolution.' And 
 
 ' Mnrrill v. Neill, 8 How. 414, 426. » Ex parte Elton, 3 Ves. 240. Ex part© 
 
 Murray v. Murray, 5 J. Ch. E. 73-77. Ex Clay, 6 id. 813. Ex parte Ruffin, id. 125, 
 
 parte Orowder, 2 Vern. 706. Ex parte 126. 
 
 Cook, 2 P. Wms. 509. Ex parte Hunter, = Mitohill v. Ostrom, 2 Hill, 520. Sutton 
 
 1 Atk. 228. MoOuUoch v. Dashiel's Ad- v. Dillaye, 3 Barb. 529. Lansing v. Gaine, 
 
 mins. 1 Hill & Gill, 96, 99-107. Wilder 2 J. R. 300. Sandford v. Mickles, 4 id. 
 
 V. Keeler, 3 Paige, 167. Kirby v. Sohoon- 224. 
 maker, 8 Barb. Oh. E. 46. 
 
728 Part Payment by one Joint Debtor. [Ch. 10. 
 
 though in some of the earlier cases in this state it was held, that the ac- 
 knowledgment of the present existence of a debt by one partner, after 
 the dissolution of the firm, was suflScient to take the case out of the stat- 
 ute of limitations, that doctrine has since been exploded.' And even a 
 part paymeat by one of several joint debtors, of a demand which waa 
 formerly, upon the principle of agency, treated as an acknowledgment ]by 
 all who were benefited by the payment, has been held not to have that 
 effect.' Such act can only operate against the party by whom it was 
 performed, and does not prejudice his associates, unless indeed they have 
 authorized him to do it. 
 
 ' Van Keuren v. Parmelee, 2 Oomst. " Shoemaker v. Benedict, 1 Kern. 1V6, 
 
 623 ; overruling Smith v. Lndlow, 6 J. thus overruling Eeid v. MoNaughton, 15 
 
 E. 267. Johnson v. Beardsley, 15 id. 3. Barb. 168. See ante, 191, note. 
 Patterson v. Ohoate, 7 Wend. 441. 
 
CHAPTER XI. 
 
 OP CORPORATIONS ; AND OF PROCEEDINGS AGAINST THEM IN 
 
 EftUITY. 
 
 SECTION I. 
 
 OF COHPOBATIONS ; AND OF PROCEEDINGS AOAINST THEM IN EQTJITT, INDE- 
 PENDENTLY OF THE KETISED STATUTES. . 
 
 THE full discussion of the law in relation to corporations would require 
 a separate treatise. The subject has been already well examined, 
 and the law conveniently digested by a work of established reputation in 
 this country.' The jurisdiction in • relation to most auestions connected 
 with corporations, belongs to courts of law. There are, however, some 
 subjects, over which courts of equity have long had cognizance, some of 
 which have been noticed in the chapter on charities, and there are many 
 others which have been, in this state, devolved upon courts of equity by 
 the legislature. A few remarks on the nature and kind of corporations 
 existing amongst us, and their general powers and duties, seem necessary 
 to a proper understanding, of the jurisdiction of courts of equity over 
 them. 
 
 A corporation, as defined by Chief Justice Marshall, in a celebrated 
 case," is an artificial being, invisible, intangible a'nd existing only in con- 
 templation of law. Being the mere creature of law, it possesses only 
 those properties which the charter of its creation confers upon it, either 
 expressly, or as incidental to its very existence. These are such as 
 are supposed best calculated to effect the object for which it is created. 
 Among the most important are immortality, and if the expression may be 
 allowed, individuality ; properties by which a perpetual succession of 
 
 ' See Angell & Ames on Oorporationa. " Dartmouth College v. Woodward, 4 
 
 Wheat. 636. 
 Eq. JtTH ' 92 
 
730 Corporations. [Ch. 11. 
 
 many persons is considered as the same, and may act as a single indi- 
 vidual." And in* another case, the same learned judge said: the great 
 object of an incorporation is to bestow the character and properties of indi- 
 viduality on a collective and changing body of men.' The Revised Stat- 
 utes of this state have declared ivhat powers are possessed by §very cor- 
 poration. Thus, it is enacted,'' that every corporation, as such, has power, 
 1. To have succession by its corporate name, for the period limited in its 
 charter ; and when no period is limited, perpetually. 2. To sue and be 
 sued, complain and defend in any court of law or equity. 3. To make and 
 use a common seal, and alter the same at pleasure. 4. To hold, purchase 
 and convey such real and personal estate as the purposes of the corpora- 
 tion shall require, not exceeding the amount limited in its charter. 5. To 
 appoint such subordinate officers and agents as the business of the cor- 
 poration shall require, and to allow them a suitable compensation. 6. To 
 make by-laws not inconsistent with any existing law, for the management 
 of its property, the regulation of its affairs, and for the transfer of its 
 stock. These powers, it is declared, vest in every corporation, thereafter 
 created, although they may not be specified in its charter, or in the act 
 under which it shall be incorporated. In addition to the powers thus 
 enumerated, and to those expressly given in its charter, or in the act 
 under which it is or shall be incorporated, it is further declared that no 
 corporation shall possess or exercise any corporate powers, except such as 
 shall be necessary to the exercise of the powers so enumerated and given.' 
 These enactments seem merely to be in affirmance of the common law.^ 
 
 Corporations are divided into public and private corporations. The 
 former embrace all municipal corporations, as well as towns and counties, 
 which latter have many of the attributes of a corporation, and indeed are 
 bodies corporate ;= and the latter all civil and religious corporations. 
 
 Corporations with respect to the number of persons of whom they are 
 composed, are of two kinds, aggregate and sole. A corporation sole con- 
 sists of a single person, who is made a body politic, in order to give him 
 some legal capacities, and especially that of perpetuity, which a natural 
 person cannot have. A bishop, dean, parson and vicar are given in the 
 
 ' Providence Bank v. Billings, 4 Pet. People v. Utica Ins. Co. 15 id. 883. F. 
 
 U. S. E. 562. Y. Fire Ins. Co. v. Ely, 2 Oowen, 699. 
 
 " 1 R. S. 599. Ex parte Wilcox, 7 id. 402. Hosack v. 
 
 ' 1 E. S. 600, §§ 2, 8, The College of Physicians, 5 Wend. 547, 
 
 ' See Angell & Ames on Corporations. 652. Head v. The Providence Ins. Co. 2 
 
 Introduction, passim. 1 Bl. Com. 494 et Cranoh, 127. See note at the end of the 
 
 seq. 2 Kent's Com. 267 et seq. Beaty case in Peters' condensed edition. 
 
 V. The Marine Ins. Co. 2 J. R. 108. The ' 1 R. S. 387-364. 
 
Ch. 11.] Different Kinds. T31 
 
 English books as examples of sole corporations. They and their success- 
 ors in perpetuity take the corporate property ^nd privileges. The word 
 successors is in general as essential for the succession of property in a 
 corporation sole, as the word heirs to create an estate of inheritance in a 
 private individual.' But the word successors in a grant to a corporation 
 aggregate is not indispensable to pass a fee, because it is a body which 
 is in its nature perpetual.'' There are few instances of corporations sole 
 in this state. The register and clerks in chancery, the supervisors of 
 towns and perhaps some other officers are treated as a quasi corporation 
 sole, and bonds taken to them and their successors in office^ are Enforced 
 by the successor.^ A corporation aggregate was defined by Story, J., in 
 the case of Dartmouth College v. Woodward, already cited, to be at com- 
 mon law a collection of individuals united into one collective body, under 
 a special name, and possessing certain immunities, privileges and capaci- 
 ties in its collective character, which do not belong to the natural persons 
 composing it. Among others it possesses the capacity of perpetual suc- 
 cession, and of acting by the collected vote or will of its component mem- 
 bers, and of suing and being sued in all things touching its corporate 
 rights and duties. It is, in short, an artificial person, existing in con- 
 templation of law, and endowed with certain powers and franchise's, which 
 though they must be exercised through the medium of its natural mem- 
 bers, are yet considered as subsisting in the corporation itself, as distinctly 
 as if it were a real personage. Hence such a corporation may sue and be 
 sued by its own members ; and may contract with them in the same man- 
 ner as with strangers.' 
 
 Corporations are again divided in England into ecclesiastical and lay. 
 " Ecclcisiastical corporations," says Blackstone, " are where the members 
 who compose it, are eniirely spiritual persons ; such as bishops, certain 
 deans and prebendaries ; all arch-deacons, parsons and vicars, which are 
 sole corporations ; deans and chapters at present, and formerly prior and 
 convent, abbots and monks, and the like ; bodies aggregate. "= We have 
 not in this state any corporations answering to this description. The 
 religious corporations formed under our general act,' are not composed of 
 ecclesiastical persons, and are expressly created to take into their posses- 
 sion and custody all the temporalities belonging to the church, congrega- 
 tion or society, as the case may be ; they are to repair and dlteir churches 
 
 • Co. Litt; 8 b, 9 a, 94 b. '4 Wheat. 667, 668. 1 Bl. Oom. 494, 
 
 " Id. 495. 
 
 » 2 R. S. 173, § 27. Jansen v. Ostran- ' 1 Bl. Comi 497; 
 
 der, 1 Oowen, 670. = 2 R. L. of 1813, p. 212. 
 
732 Corporations. [Ch. 11. 
 
 or meeting houses, and to erect others if necessary, and to erect dwelling 
 houses, for the use of their ministers, and school houses and other buildings 
 for the use of the church, congregation or society. In short, it is their 
 business to manage the temporal aiFairs of the church, congregation or 
 society. It has been held in this state that they are mere civil corpora- 
 tions.' 
 
 Lay corporations are again divided into eleemosynary and civil. The 
 former are such as are constituted for the perpetual distribution of the 
 free alms or bounty of the founder of them to such persons as he has 
 directed. Of this kind are all hospitals for the maintenance of the poor, 
 sick and impotent ; and all colleges and academies established for the 
 promotion of learning and piety, and' endowed with property by public 
 and private donations." The religious corporations formed in this state, 
 tinder the general act, are not, it seems, eleemosynary, but private civil 
 corporations within the proper definition of those terms.' 
 
 Civil corporations are formed for a variety of purposes, and embrace 
 all others not before mentioned. They are public or private. Public 
 corporations have just been noticed, and are esteemed such as exist for 
 public political purposes only, such as towns, cities, counties and the 
 like. They are founded for public purposes by the government, and al- 
 though private interest may be affected by them, they are still public 
 corporations.* Under the denomination of private corporations may be 
 embraced all banking corporations, insurance companies, manufacturing 
 companies, railroad companies, turnpike and plank road companies ; re- 
 ligious incorporations formed under the statute, and corporations, whether 
 formed under general laws or otherwise, which have been created for an 
 almost innumerable variety of objects. In all these cases, the uses may 
 in a certain sense, be called public, but the corporations are private.' 
 
 Eleemosynary corporations, such as hospitals, colleges and the like, 
 though often called in common language public institutions, are in the 
 legal acceptation of the term, private corporations.' 
 
 It is generally agreed that the invention of corporations is attribut- 
 able to the Romans ; and it is evident that the capacities and incapacities 
 of these institutions bear a striking resemblance to those under the civil 
 
 ' Robertson v. Bullions, 9 Barb. 64 ; ,» Robertson v. Bullions, 9 Barb. 89, per 
 
 aflBrmed on appeal, 1 Kern. 248. Hand, J. ; S. 0. afif. on app. 1 Kern. 248. 
 
 " 2 Kent's Com. 274. 2 Bl. Com. 498. ' Dartmouth College v. Woodward, 4 
 
 Per Hand, J. in Robertson v. Bullions, 9 Wheat. 668 et seq. per Story, J. 
 
 Barb. 89. 4 Wheat. 669 et seq. per "Id. 
 
 Story, J. ■ « la. 
 
^^- ^1-] How Created. 733 
 
 laws.' This is especially so, with respect to those corporations where 
 the principle of personal liability of the stockholders has been super- 
 added, either in a direct or in a qualified manner, to that of the corpora- 
 tion. Such corporations are in effect mere partnerships with some of the 
 attributes of a corporation.' 
 
 The mode by which corporations are created has some bearing upon 
 the remedies against them ; especially, the extreme remedy, that of dis- 
 solution. In England they exist by prescription, by royal charter and 
 by act of parliament. In this state, corporations were created before the 
 revolution, by charter under the great seal of the colony, as representing 
 the prerogative of the crown. After the revolution they were created by 
 act of the legislature. Subsequently, they were authorized to be formed 
 under general laws, for particular purposes, such as for religious pur- 
 poses,3 for erecting public libraries, ' and for manufacturing purposes.' By 
 the constitution of 1821 , a restriction was sought to be imposed upon the 
 increase of corporations by legislative enactment, by requiring the assent 
 of two thirds of the members elected to each branch of the legislature 
 to every bill, creating, continuing, altering or renewing any body politic 
 or corporate.^ The increased number of acts of incorporation, passed 
 during the continuance of that legislative restriction, sufficiently shows 
 that it signally failed of its object. And accordingly, under the consti- 
 tution of 1846, now in force, the legislature is forbidden to create corpo- 
 rations, except for municipal purposes, and in cases where, in the judg- 
 ment of the legislature, the objects of the corporation cannot be attained 
 under general laws. A marked preference is given to the formation of cor- 
 porations under general laws. And the general and special acts passed pur- 
 suant to that section, are permitted to be altered from time to time, or re- 
 pealed.'' The constitution also provides for securing dues from corporations, 
 by such individual liability of the corporators and other means as may be 
 prescribed bylaw. The term corporations, as used in the constitution, is 
 declared to include all corporations and joint stock companies having any 
 of the powers and privileges of corporations not possessed by individ- 
 uals or partnerships. And all corporations are declared to have the right 
 to sue, and are made subject to be sued in all courts in like cases as nat- 
 ural persons.* The legislature has no power to pass any act granting 
 
 ■ Aug. & Ames on Corp.* 40 43. ' ■■ L. of 1796, ch. 43, sess. 19. 
 
 " Penniman v. Briggs, 1 Hopk. 304. ' Sess. 34, ch. 67. 1 R. L. 245. 
 
 Slee V. Bloom, 19 J. R. 473, per Spencer, ' » Const. 1821, art. 7, § 9. 
 Oh. J. AUcn V. Sewall, 2 Wend. 327. ' Const, of 1846, art. 8, § 1. 
 Moss V. Oakley, 2 Hill, 205. " Id. §§ 2, 8. 
 
 » 1 Greenl. 70. 
 
734 Corporations [Ch. 11. 
 
 any special charter for banking purposes ; but corporations or associa- 
 tions may be' formed for such purposes, under general laws." The con- 
 stitution provides that stockholders in every corporation and joint stock 
 association for banking purposes, issuing bank notes, or any kind of paper 
 credits' to circulate as money, after the first day of January, 1850, shall 
 be individually responsible to the amount of their respective share or 
 shares of stock in any such corporation or association, for all its debts 
 and liabilities of every kind, contracted after the said day.' The legis- 
 lature has acted under these provisions of the constitution, and enacted 
 various general laws under which most of the recent railroad, plank road, 
 banking and insurance incorporations have been formed. 
 
 All corporations, whether created by charter or under general laws, 
 can hold and possess real and personal property, and alienate the same, 
 except when restrained by the terms of their charter or by law. At 
 common law, they are not restricted as to the amount of property they 
 may hold, and they possess with respect to it, the same right of disposi- 
 tion that is enjoyed by a natural person.^ In most of the charters or 
 acts of incorporation, there is a limitation as to the amount of the prop- 
 erty to be held, and a restriction as to the power of alienation. The 
 general powers of every corporation, as has been already mentioned, are, 
 amongst other things, to hold, purchase and convey such real and per- 
 sonal estate as the purposes of the corporation shall require, not exceed- 
 ing the amoiint limited in its charter.^ This enactment is no broader 
 than the common law. We have not enacted the restraining acts, passed 
 in the reign of Elizabeth. 
 
 With respect to religious corporations formed under the general act of 
 1784,5 although they were authorized to have, take, receive, acquire, pur- 
 chase, use and enjoy lands, tenements aiid hereditaments and goods and 
 chattelSj their power of disposition was limited to demise, lease and im- 
 prove the said land, tenements and hereditaments. Special acts of 
 incorporation were occasionally granted, both before and after the pass- 
 ing of the general act, without restriction as to the power of alienation.* 
 The necessity of selling their estate was sometimes felt by corporations 
 formed under the general act, and relief was frequently granted by spe- 
 cial acts of the legislature authorizing such Sale.' At length in 1^06, the 
 
 ' Const, of 1846, art. 8, § 4. » 1 Greenl. 71. 
 
 ' Id. art. 8, § 7. ' See Sixth Sess. ch. 17. 1 Greenl. 60. 
 
 " Co. litt. 44 a, 800, b. Bao. Abr. tit. '^ See 26th Sess. chs. 76, 77, as speoi- 
 
 Oorporation, E, p. 448. Dutch Church mens of these acts. 29th Sess. oh. 5. 
 
 V. Mott, 7 Paige, 88. 28th Sesa eh. 28.. Id,ch.38., Id.ch.118.. 
 
 * 1 K. S. 599, gub. 4. 
 
Cli. 11.] May be Seised of Land in Trust. 735 
 
 general act was so amended that the chancellor was authorized, upon the 
 application of a,ny religious corporation, in case he should deem it proper, 
 to make an order for the sale of any real estate belonging to such cor- 
 poration, and to direct the application of the money arising therefrom, to 
 such uses as the same corporation, with the consent and approbation of 
 the chancellor, should conceive to be most for the interest of the society 
 to which the real estate so spld belonged ; but this provision did not ex- 
 tend to any of the lands granted by the state for the support of the gos- 
 pel.' And hence, applications to the legislature for relief continued 
 occasionally to be made, after the chancellor was thus clothed with a limited 
 authority in the matter." The general act was revised in 1801 and again 
 in 1813, and continues at this day the law of this state.^ The principal 
 difficulty with respect to the alienation of real property held by a reli- 
 gious corporation, was that the legal estate in the hands of the purchaser, 
 with notice of the trust, would be chargeable with the charitable uses to 
 which it was originally devoted. Real estate held by a corporation for 
 its ordinary purposes might be sold and conveyed in the same way as a nat- 
 ural person might dispose of his own property. But real property held by 
 a corporation to charitable uses, would be followed by a court of equity 
 into the hands of the alienee with notice.* And the chancellor said in 
 the case of the Dutch Church v. Mott, that the intention of the legisla- 
 ture, by the act of 1806, amending the general act as to religious incor- 
 porations, was to give to every religious corporation an unlimited power 
 to convey any real property, held by them in trust for the corporators, 
 provided the previous consent of the court to such alienation of the church 
 property, and a direction for the proper application of the proceeds there- 
 of for the benefit of the corporators, was obtained in the summary mode 
 which is there prescribed. That religious corporations, formed under the 
 general act, cannot now alien their real estate, without the leave of the 
 court, which may now be granted by the supreme court, and by the county 
 court,= is obvious from the course of our legislation on the subject, and 
 is well sustained by authority.' 
 
 A corporation may be seised of lands in trust, provided the objects of the 
 trust be not foreign from its institution.'' But the loan officers of a 
 county, who are by law a corpojration, cannot receive a grant of land for 
 
 > 29th Sess. ch. 43. " Code, § 30. 
 
 ' 34tli Sess. 159. " Viele v. Osgood, 8 Barb. 130. Voor- 
 
 » 2 K. L. 212. 3 R. S. 292. hies v. Presbyterian Church of Amster- 
 
 • The Mayor, &c. v. Lowten, 1 V. & B. dam, id. 135. Montgomery v. Johnson, 
 
 226, 246. Dutch Church v. Mott, 7Paige, 9 How. Pr. E. 232. 
 
 84. ' Ja«kson v. Hartvjsell, 8 J. E. 422. 
 
736 CORPOKATIONS. [CL 11. 
 
 the use of a town, or of a cturch ; nor can the supervisors of a county, 
 who are also a corporation, take a grant of land for a particular town.' 
 The reason is, that it is beyond the capacity of the corporation. Numer- 
 ous cases were referred to under the chapter relative to charities, which 
 it is unnecessary here to repeat. The support of particular doctrines or 
 systems of worship or church government, or a connection with some par- 
 ticular church judicatory, may be made a condition in a grant or donation 
 to a religious society formed under the act.'- Such condition, if explicit 
 and clear, and free from all doubt or obscurity, would be good. An un- 
 certain condition would be void. The title of the trustees under such a' 
 deed would be good, so long as a majority of the corporators chose to 
 abide by the condition ; and when that was departed from, their title 
 would be forfeited.' 
 
 » Jackson v. Hartweli, 8 J. E. 422. 
 ' Robertson v. Bullions, 9 Barb. 66 ; S. 
 0. 1 Kern. 243. 
 " Per Selden, J. in same case, p. 265. 
 
 It .would seem that a corporation form- 
 ed under the act for the Incorporation of 
 Eeligious Societies, (8 R. S. 293, §4,) may 
 exeonte any trust which comes within 
 the scope and object of its institution. 
 By the fourth section it is empowered to 
 take into its possession and custody all 
 the temporalities belonging to such 
 church, congregation or society, whether 
 real or personal, and whether obtained by 
 gift, grant, or devise, directly to such 
 church, congregation or society, or to a.ny 
 other person for their use. It is author- 
 ized also to hold and enjoy all the debts, 
 demands, rights and privileges, and all 
 churches, meetinghouses, parsonages and 
 burying places, with the appurtenances, 
 and all estates belonging to such church, 
 congregation or society, in whatsoever 
 manner the same may have been acquir- 
 ed, or in whose name soever the same 
 may be held, as fully and amply as if the If the bequest or grant be to the corpo- 
 right or title thereto had originally been ration for any one or more objects for 
 vested in the said trustees ; and also to which the corporation was formed, it wiU 
 purchase and hold other real and personal be valid. And it is not essential that it 
 estate, and to demise, lease and improve should be expressed to be for all the pur- 
 the same, for the use of such church, con- poses for which it was instituted. Hence 
 
 gregatioff or society, or other pious uses, 
 so as the whole do not exceed in annual 
 value the sum limited by the act. The 
 corporation is also authorized to repair 
 and alter their churches or meeting 
 houses, and to erect others if necessary, 
 and to erect dwelling houses for the use 
 of their ministers, and school houses amd 
 ether buildings for the rise of such church, 
 congregation or society. The trustees are 
 also empowered to make rules and orders 
 for the managing the temporal affairs of 
 such church, congregation or society, and 
 to dispose of all moneys belonging there- 
 to ; and to regulate and order the rent- 
 ing the pews in their churches and meet- 
 ing houses, and the perquisites for the 
 breaking of the ground in the cemetery 
 or church yards, and in the said churches 
 and meeting houses for burying the dead, 
 and all other matters relating to the tem- 
 poral concerns and revenues of such 
 church, congregation or society. 
 
 Nor is it necessary that a bequest to 
 the corporation Should be for all the pur- 
 poses to which property may be applied. 
 
Ch. 11.] 
 
 Relief against Corporations. 
 
 73T 
 
 From wliat has been said, it is obvious that there are numerous cases in 
 which the interposition of courts of equity is necessary, against corpora- 
 tions. It remains to consider what class of corporations are amenable to 
 the court, and what is the general nature of the relief which can be 
 granted. 
 
 In considering the doctrine of injunction, we had occasion to bring to 
 the notice of the learned reader a variety of cases, in which that process 
 
 a bequest to pay the salary of tlie minis- 
 ter was held to be a good testamentary 
 disposition of property. (Williams v. Wil- 
 liams, supra.) It is conceived that it 
 would be equally valid, if it comes with- 
 in any of the purposes of the corporation, 
 although its immediate benefits are en- 
 joyed only by a portion of the society. 
 Thus, it is believed the communion furni- 
 ture may be held in trust for the mem- 
 bers of the church in full communion, 
 and the school books of the sabbath 
 school in trust for that portion of the 
 congregation who are interested therein. 
 Such trust may, indeed, in one sense, be 
 said to be for the benefit of the whole 
 society ; for without an organized church 
 no religious society could long exist. 
 (See remarks of Selden, J., in Robertson 
 V. Bullions, 1 Kernan, 263, which appa- 
 rently conflict with these views.) 
 
 !From the authority given to the trus- 
 tees to erect school houses, &c., for the 
 use of the church, congregation or society, 
 it is to be inferred that the legislature of 
 1784 intended to provide for the estab- 
 lishment of primary schools for the edu- 
 cation of the children belonging to the 
 congregation. And although subsequent 
 legislation has provided a different system 
 of primary education for the children of 
 the state, and superseded, in a great 
 measure, the necessity for parish schools 
 connected with churches ; yet the pro- 
 vision in question has not been repealed, 
 and the trustees of religious societies may, 
 it is believed, accept and execute trusts 
 for the support of such schools. Indeed, 
 
 Eq. Jue. 93 
 
 there is no reason to doubt that the giv- 
 ing of a corporation to religious socie- 
 ties, was not intended to withdraw them 
 from the protection of the law, which eve- 
 ry voluntary association for the purpose of 
 religion and charity before enjoyed ; but 
 to render the rights of all more stable 
 and secure. The statute makes the trus- 
 tees the corporation ; and treats the soci- 
 ety as the constituent body. There are 
 incidental remarks of judges in some of 
 the cases tending to show that the mem- 
 lers of the society are the corporation. 
 (Baptist Church v. Witherill, 7 Paige, 
 296. Lawyer v. Sipperly, id. 281. Mil- 
 ler V. Gable, 2 Den. 492. Eobinson v. 
 Bullions, 9 Barb. 64. S. C. 1 Kern. 248.) 
 But the express language of the statute 
 is otherwise ; and the earlier cases treated 
 the trustees alone as the corporation iu 
 distinction from the society. (Compare 
 §§ 3 and 16 of the general act of 1813, 3 
 E. 8. 295, 299. The People v. Ennkle 9 
 J. E. 147.) The object of the act was 
 doubtless to give the voluntary associa- 
 tion called a church, or congregation, a 
 corporation to hold and manage its tem- 
 poralities. The 16th section of the gen- 
 eral act speaks of the corporation as a dis- 
 tinct body from the religious society 
 connected with it. 
 
 This view is confirmed by subsequent 
 legislation on the same subject. Thus, 
 by the act for the incorporation of socie- 
 ties to establish free churches, passed 
 April 13, 1864, (L. of 1854, p. 494,) the 
 persons na/med in the certificate as trustees 
 and their aucce^ors, being citizens of tha 
 
738 Corporations. [Ch. 11. 
 
 of the court may be applied, in staying the committing of breaches of 
 trust, and other fraudulent alienations of property. We saw that equity 
 had a jurisdiction over municipal corporations in this respect. It is to be 
 inferred from what has been said, that this jurisdiction existed at com- 
 mon law independently of the statute. We shall now proceed to notice 
 briefly some of the cases where relief is granted by courts of equity 
 against corporations, by virtue of their inherent jurisdiction over trusts 
 and frauds, and other subjects of equitable relief ; and some of the cases 
 where it may be granted by statute. 
 
 Relief may be granted by courts of equity against a municipal corpo- 
 ration as well as against a natural person. There is no distinction be- 
 tween a municipal corporation and any other .corporation aggregate, in 
 respect to the power of a court of justice over its proceedings. The con- 
 stitution declares that " all corporations shall have the right to sue, and 
 shall be subject to be sued, in all courts, in like cases as natural persons.' 
 
 United States, are declared a body politic To make it more clear, it is expressly 
 and corporate. And the act of 1855, en- enacted, that the provisions of the act 
 titled " an act in relation to conveyances shall not authorize the formation of any 
 and devises of personal and real estate incorporation, which can be incorporated 
 for religious purposes," which was enact- under the act entitled " an act to provide 
 ed while these sheets were passing through for the incorporation of religious socie- 
 the press, is based upon the same theory ; ties, passed April 5, 1813, and the several 
 and was obviously framed to compel re- acts amending the same." It is quite 
 ligions societies, which had declined to plain that tlie legislature did not intend 
 avail themselves of the privileges of the that the religious society itself should be 
 general act of 1784 as revised in 1813, to incorporated, but that it should be fur- 
 organize a corporation under one act or nished with a corporation composed of 
 the other. The act of 1855 speaks of the laymen or a majority of laymen, by which 
 corporation as one body, and the reli- its temporalities should be held and man- 
 gious society whose property it manages aged. Hence the reason why religious 
 as another. societies are forbidden to be incorporated 
 
 If we look at the act for the incorpora- under the general act of 1848. 
 
 tion of benevolent, charitable, scientific Under this view of the subject, it is 
 
 and missionary societies, passed April 12, obvious that the relation of trustee and 
 
 1848, (L. of 1848, p. 447,) and the amend- cestui que trust subsists between the cor- 
 
 ment of 1849, (L. of 1849, p. 400,) we poration and the religious society to 
 
 shall find farther confirmation of the which it is attached. It is therefore with- 
 
 same idea. By this act, not only the in the undisputed jurisdiction of courts 
 
 persons who sign the certificate, but of equity to enforce the execution, and 
 
 their associates and successors, on con- correct the abuses, in the administration 
 
 forming to the requirements of the act, of the trust property, 
 
 become a corporation. The act speaks • Const, art. 8, § 3. Davis v. Mayor of 
 
 of the society as being thus incorporated. IT. Y. 1 Duer 451. 
 
Ch. 11.] Relief against . Corpoeations. 739 
 
 But there are some acts which a municipal corporation, acting within the 
 limits of its charter, may do without any of its doings being liable to the 
 supervision of any court. Thus the common council of New- York has 
 large legislative and discretionary duties to perform, and whether the 
 laws and ordinances it makes, within its jurisdiction, be wise or unwise, 
 be made with good or bad motives, it is not the province of the court to 
 inquire. But with regard to the acts of the corporation in reference to 
 its private property, it stands upon the footing of other corporations, Its 
 corporate property is held in trust for the benefit of its constituents, and 
 it is bound to administer it faithfully, honestly and justly. And if it is 
 guilty of a breach of trust, by disposing of its valuable property, without 
 any or for a nominal consideration, it will stand upon the same footing as 
 if it were the representative of a private individual, or of a private corpora- 
 tion.' The mere fact, in such a case, that the forms of legislation are used, 
 in committing such breach of trust, will make no difference in the charac- 
 ter of the act. It will not be in any sense the exercise of a political 
 power delegated for public purposes. And the privilege of exemption 
 from judicial interference terminates where legislative action ends." 
 
 This subject has been very Recently and ably discussed in the courts 
 of the city of New- York, in the controversy relative to the grant by the 
 common council of the right to lay a railway in Broadway in that city.' 
 The duty of the court to interpose by injunction, at the instance of the 
 tax-payers, to restrain the commission of acts amounting to a breach of 
 trust, was strongly enforced. " No corporation," said Roosevelt, J., in 
 one of the cases, " whether moneyed or municipal, having stockholders or 
 constituents, has a right without their consent, to give away the property 
 intrusted to its care. The exclusive privilege of laying a rail track and 
 running cars, and receiving pecuniary emolument therefrom, like the fran- 
 chise of a bridge or ferry, or other incorporeal hereditament, is as much 
 a subject of property as the park or the city hall, or the moneyed contents 
 of the city treasury. To grant such a privilege to a few favored individ- 
 uals, without any public equivalent, is in principle the same as a resolu- 
 tion or an ordinance of the common council directing a division of the 
 funds of the city, raised by taxation, among the members themselves. 
 Such acts, whether done or threatened, are all alike gross breaches of 
 trust, and subject as such to the jurisdiction of the supreme court sitting 
 as a court of equity." 
 
 • Milliau V. Sharp, 16 Barb. 194. 243. Davis v. Mayor of N. Y. 1 Duer, 
 
 s l^ 453 ; affirmed by the court of appeals. 
 
 " Id. Stnyvesant v. Pearsall, 15 Barb. 
 
740 Corporations. [Ch. 11 
 
 The principle extends to all corporations, municipal or civil. Tbey ar( 
 all alike liable for a fraudulent breach of trust. As was said by thi 
 chancellor, in the Attorney General v- Utica Insurance Co.,' if the direct 
 ors of the company were to appropriate the funds, or capital of the com 
 pany to their own private emolument ; or if, disregarding the business oi 
 insurance, they were to divert the funds to the destruction of that object 
 by making roads and canals, or building theatres or churchesy he had n 
 doubt a court of equity would have a right, and would be bound, to inter 
 fere and check the abuse. 
 
 The eases which have been considered were not decided upon th( 
 ground that a railway in a city is a nuisance, either public or private 
 but upon the ground of a fraudulent breach of trust. It was conceded t( 
 be well settled that a railroad in a city was nieither, per se, a nuisance oi 
 a purpresture.'* 
 
 Otl\er cases have arisen, which have called for the aid of a court of 
 equity to enforce the claim of creditors against individual stockholders oi 
 a corporation made liable in a certain contingency by the terms of thei: 
 charter.' An example of this kind of relief arose under the general man 
 ufacturing act of 1811.^ By the seventh section of that act it was pro- 
 vided that for all debts that shall be due and owing by the company at th( 
 time of its di-ssolution, the persons then composing the company shall b( 
 individually responsible to the extent of their respective shares of stocl 
 in said company, and no further," A creditor of a corporation framec 
 und6r the act in question filed his bill against the stockholders to compe 
 payment of his debt, alleging amongst other things, in substance, tha' 
 the corporation had become dissolved by the sale of all its property b] 
 the sherifif under an execution against it, and by its ceasincr for mon 
 than a year thereafter to transact any corporate business. The chancel 
 lor admitted that a corporation might be dissolved, if it becomes incapa 
 ble of continuing its corporate succession, or executing its co^orati 
 functions ; as by the death of all its members, or the destruction of ai 
 integral part of it, or it might be dissolved by surrender of its franchise 
 into the hands of the government, or by a forfeiture of its charter throng] 
 abuse or neglect of its franchises ; but he thought the forfeiture in Sucl 
 case should be judicially ascertained and declared, by a proceeding unde 
 the process of sdre facias at the suit of the goVei-nment in a court of laTV 
 And he accordingly dismissed the bill.* On appeal to the court for th 
 
 ' 2 J. Oh. R. 889. 52&. Plant v. The Long Island E. E. 1 
 
 • 2 J. Oh. E. 889. See on that point, id. 26. 
 Drake v. The Hudson Eiver E. E. 7 Barb. M E. L. of 1813, p. 245. 
 
 ' Slee V. Bloom, 5 J. Oh. R. 366, 881. 
 
Ch. 11.] Relief against CoRPORATioks. 741 
 
 correction of errors, the decision of the chancellor was reversed, and re- 
 lief was granted to the complainant. The prevailing opinion was deliv- 
 ered, by Spencer, Ch. J.,* and he put his opinion that the corporation was 
 dissolved, on the ground that it had done and suffered acts to be done, 
 equivalent to a direct surrender of its franchises. Such surrender he 
 considered as an act in pais. And in point of good sense he thought 
 that the corporation was dissolved, within the meaning and intent of the 
 act, as regarded creditors, when it ceased to own property, real or per- 
 sonal, and ceased for upwards of a year from dping any act manifesting 
 an intention to resume its corporate functions.' The doctrine of the 
 court of errors was followed by the chancellor in a subsequent case, and 
 affirmed on appeal by the court for the correction of errors.'' The prop- 
 erty of a dissolved corporation under the statute must he treated clearly 
 as a trust -fund for the benefit of its creditors ; and the jurisdiction of 
 courts of equity to reach it is through its general jurisdiction over trusts. 
 The personal liability of the stockholders, which in some cases is super- 
 added to the property of the corporation, as a fund for the payment of its 
 debts, partakes of the character of the fund to which it is auxiliary ; and 
 can be appropriately reached only by the instrumentality of a court of 
 equity. 
 
 In a case somewhat earlier than that of Slee v. Bloom; the attorney 
 general filed an information ex officio against the Utica Insurance Com- 
 pany to restrain it by injunction from exercising banking powers, in vio- 
 lation of the restraining act then in force.' The chancellor conceded that 
 banking had become a franchise derived from the grant of the legislature, 
 and subsisting only in those who could produce the grant ; and if exer- 
 cised by others, it was a. usurpation of a privilege for which a competent 
 remedy could be had by the public prosecutor in the supreme court. But 
 he denied that a court of equity had concurrent jurisdiction in the case. 
 And he doubted whether the English court.of chancery entertained juris- 
 diction over corporations, except in cases of breach of trust, and whether 
 it was not confined to charitable institutions." The bill having been dis- 
 missed by the chancellor, the attorney general filed an information in the 
 supreme court in the nature of a quo warranto against the same com- 
 pany, and obtained a judgment of ouster.= The decision in this case and 
 in that of Slee v. Bloom, led to the adoption of the act of 1825, relative 
 
 ' Slee V. Bloom, 19 J. R. 436 ; revers- " 2 E. L. 234. 
 ing previous case before the Oh., 5 J. Oh. * Att'y Gen. v. Utica Ins. Co. 2 J. Oh. 
 
 E. 366. ^- ^''^^• 
 
 ' »Pennimanv.Briggs,Hopk.300;S.a ' The People v. Utica Ins. Co. 15 J. R. 
 
 8 Cowen, 387. 358. 
 
742 Corporations. [Oh. 11. 
 
 to fraudulent bankruptcies of incorporated companies, and to the provis- 
 ions of the Revised Statutes relative to proceedings against corporations 
 in equity, which will shortly be considered.' 
 
 The legislature have deemed it fit to create corporations, with power 
 to execute trusts. The New- York Life Insurance and Trust Company, 
 incorporated in 1830,' is an institution of great resources, and has been 
 conducted with eminent ability, and fidelity to the purposes for which it 
 was created. It is authorized, among other things, to receive moneys in 
 trust to accumulate the same at such rate of interest as may be obtained 
 or agreed on, or to allow such interest thereon as may be agreed on, not 
 exceeding, in either case, the legal rate. It is also empowered to execute 
 all such trusts as may be committed to it by any person or persons what- 
 ever, or may be transferred to it by order of the court of chancery or a 
 surrogate. It can be appointed in certain cases, by the court of chancery, 
 now the supreme court, or a surrogate, the guardian of the estate of 
 infants, whose annual income exceeds one hundred dollars, and is not 
 required to give a bond or other collateral security. 
 
 There can be no doubt, that without any further legislation on the 
 subject such a corporation could be proceeded against in equity to en- 
 force the execution of any trust committed to it, and for an account of 
 the trust funds. It might doubtless, in cases of gross abuse, be removed 
 as a trustee, without displacing from their appropriate offices, the trustees 
 or other managing agents of the corporation. Independently of statutory 
 authority, it is held that courts of equity cannot remove a trustee of an 
 incorporation, even for a breach of trust.' The relation of the trustees 
 to the corporation, it was said in the same case, is not that of a private 
 trustee to the cestui que trust. They are merely the managing agents 
 by whom the business of the corporation is performed. While they may 
 be compelled to the faithful execution of the trusts confided to them, they 
 can only be removed by a court of equity, in cases within the statute 
 which confers upon the court that power. 
 
 t 
 
 At common law, upon the dissolution or civil death of a corporation, 
 all its real estate remaining unsold, reverts back to the original grantor 
 or his heirs,* and its personal property vests in the people as succeeding 
 
 ' L. of 1825, p. 448. 2 E. 8. 461. Sandf. Ch. R. 489. Lawyer v. Sipper- 
 
 = L. of 1830, p. 76 ; amended, 1834, p. ly, 7 Paige, 286. Bowden v. McLeod, 1 
 
 445. Edw. Oh. E. 588. 
 
 ' Eobertson v. BuUiona, 9 Barb. 65 ; * Hooker v. Utioa Turnpike Co. 12 
 
 affirmed, 1 Kern. 243 ; disagreeing with Wend. 873. Ang. & Ames on Oorpora- 
 
 Kniskern v. The Lutheran Churches, 1 tions, 159. 
 
Ch. 11.] Effect of Dissolution on Property. 743 
 
 to the prerogatives of the crown ; and the debts due to and from the 
 corporation are extinguished.' These common law consequences of a 
 dissolutiin, are usually, in this country, prevented by some provision in 
 the charter, or by the general statutes of the state. In this state, by the 
 general act relative to turnpikes, and which by a subsequent act is made 
 applicable to the existing plank road and turnpike incorporations, pro- 
 vision is made for the dissolution of the corporations by the legislature, 
 when by the income arising from tolls, they shall have been compensated 
 for all moneys expended in purchaising, making, repairing and taking 
 care of their road, and have received in addition thereto, an average annual 
 interest at the rate of ten per cent ; and on such dissolution, all the 
 rights and property of such corporations vest in the people of the state.* 
 By another act, it is declared that whenever a turnpike corporation, or 
 a corporation owning a toll-bridge shall become dissolved, the road and 
 bridge shall become a public highway.^ The general act, which provides, 
 doubtless, for all cases not specially provided for in the charter or act 
 of incorporation, enacts that upon the dissolution of any corporation cre- 
 ated or to be created, unless other persons shall be appointed by the legis- 
 lature, or by some court of competent authority, the directors or managers 
 of the affairs of such corporation at the time of its dissolution, by what- 
 ever name they may be known in law, shall be the trustees of the credit- 
 ors and stockholders of the corporation dissolved, and shall have full 
 power to settle the affairs of the corporation, collect and pay the out- 
 Standing debts, and divide among the stockholders the moneys and other 
 property that shall remain, after the payment of debts and necessary 
 expenses. By a subsequent section, the persons so constituted trustees, 
 are authorized to sue for and recover, the debts and property of the dis- 
 solved corporation, by the name of the trustees of such corporation, 
 describing it by its corporate name, and are made jointly and severally 
 responsible to the creditors and stockholders of such corporation, to the 
 extent of its property and effects that shall come into their hands.^ 
 
 It is quite obvious that the settlement of such matters cannot in gen- 
 eral be accomplished without the aid of a court of equity. 
 
 The non-payment of its debts does not at common law work a dissolu- 
 
 • Id. 160. McLaren v. Pennington, 1 ' 1 K. S. 580, § 16. L. of 1847,?. 231, 
 Paige, 111. Bac. Abr. tit. Corporation, § 47. 
 
 letter (G.) 'L. of 1838, p. 254, oh. 262. 
 
 ' 1 E. S. 600, 601, §§ 9, 10. 
 
744 Corporations. [Ch. 11. 
 
 tion of a corporation.' The mode of proceeding against insolvent cor- 
 porations will be pointed out in the next section. 
 
 As a corporation may hold, purchase and convey such real an* person- 
 al estate, as may be required for its purposes, so it may mortgage the 
 same to raise money for any legitimate object. A railroad corporation is 
 expressly authorized by the general act of 1850, to borrow such sums of 
 money, from time to time, as may be necessary for completing and finish- 
 ing, or operating their railroad, and to issue and dispose of their bonds 
 for any amount so borrowed, and to mortgage their corporate property and 
 franchises to secure the payment of any debt contracted by the compa- 
 ny. This provision is made applicable to all other railroad corporations, 
 and the right of mortgaging the franchises of. the corporation is recog- 
 nized by the act of ISSS.'^ The franchise of the corporation is that po- 
 litical right, derived from the act of incorporation, by which the corpora^ 
 tion is enabled to manage its own affairs, and to hold property without the 
 perplexing intricacies, the hazardous and endless necessity of perpetual 
 conveyances for the purpose of transmitting it from hand to hand. It is 
 chiefly for the purpose of clothing bodies of men in succession, with these 
 qualities, that corporations were invented and are in use.' The sale by 
 virtue of a decree granted on a mortgage foreclosure of the franchises 
 and corporate property vests in the purchaser the right to use and enjoy 
 both, as the same were used and enjoyed when the mortage was given ; 
 without any liability for debts or obligations created subsequent to the 
 mortgage. This is a legitimate inference from the power to mortgage the 
 franchise and corporate property. The corporation still subsists notwith- 
 standing the foreclosure, and its business can be carried on under the 
 original charter, by the purchasers or their assigns.* 
 
 ' Slee V. Bloom, 5 J. Oh. E. 879, 881. ' Per Marshall, Oh. J. in Dartmouth 
 
 The Trustees of Vernon y. Hills, 6 Oowen, Oollege v. Woodward, 4 Wheat. 636. 
 
 26. Dartmouth Oollege v. Woodward, 4 * Wilde v. Jenkins, 4 Paige, 481, 488. 
 
 Wheat. 698. 2 Kent's Oom. 812. 
 
 ' L. of 1850, p. 225, § 28, sub. 10, § 49. 
 L. of 1853, p. 966, § 2. 
 
Ch. 11.] ^Proceedings against, in Ehuitt. 745 
 
 SECTION IL 
 
 OF PROCEEDINGS AGAINST COKPOEATIONS IN EQUITY, UNDER THE REVISED 
 
 STATUTES. 
 
 We have hitherto spoken of the remedy in equity against corporations, 
 ■which does not impair the existence of the corporation, and which only 
 acts upon the conduct of the corporation or its officers, with reference to 
 property, or the rights and equities of others. We proceed now to notice 
 the more enlarged jurisdiction in equity, conferred by statute, and which 
 may be exerted against the corporation itself, or its trustees or managing 
 agents, -in a more summary and comprehensive way. The object of the 
 iegislature seems to have been to give the court of chancery in this state, 
 the same pow^r that is exercised by that court in 'England in cases of 
 charitable corporations, and in other cases ; and to confer upon the court 
 a superintending or visitatorial power over all civil corporations, not ex- 
 cepted from its provisions.' It thus confers upon that court the power ! 
 which Chancellor Kent declined to exercise in the Attorney General v. 
 The Utica Insurance Company, (supra.) i 
 
 The jurisdiction to vacate and annul an act of incorporation on the 
 ground that it was passed upon some fraudulent suggestion or conceal- 
 ment of a material fact, made by the persons incorporated by such act, 
 or made with their consent or knowledge, belonged to the supreme court, 
 and was exercised by writ of scire facias, in cases where the legislature 
 specially directed the attorney general to prosecute the same.* In case 
 any association or number of persons, should act within this state, as a 
 corporation, without being legally incorporated ; or in case any corporate 
 body should offend against any of the provisions of the act or acts creat- 
 ing, altering or renewing such corporation ; or 2, violate the provisions 
 of any law, by which such corporation shall have forfeited its charter by 
 misuser ; or 3, whenever it shall have forfeited its privileges and franchises 
 by non user ; or 4, whenever it shall have done or omitted any acts which . 
 amount to a surrender of its corporate rights, privileges and franchises ; 
 or 5, whenever it shall exercise any franchise or privilege not conferred 
 upon it by law, authority was given by the Revised Statutes, to the at- 
 torney general to file an information in the nature of a quo warranto up- 
 on his own relation, with a view to a judgment of ouster, and dissolution 
 
 ' 3 E. S. 756, Keviser's Notes. » 2 R. 8. 679, § 18. 
 
 Eq. Jur. ' H 
 
746 Corporations. [Ch. II. 
 
 of the corporation." The supreme court alone had jurisdiction in such 
 cases. But with a view to prevent any injury to the public being done 
 by such persons or body corporate, pending the proceedings in the su- 
 preme court, the Revised Statutes also authorized the chancellor, upon a 
 bill filed by the attorney general, to restrain by injunction any corpora- 
 tion from assuming or exercising any franchise, liberty, or privilege, or 
 transacting any business not allowed by the charter of such corporation ; 
 and in the same manner to restrain any individuals from exercising any 
 corporate rights, privileges, or franchises, not granted to them by any 
 law of this state. The injunction was allowed to be issued on proper 
 proof before answer, and after the coming in of the answer, to be contin- 
 ued until judgment at law should have been had.= 
 
 Though the proceeding by scire facias, quo warranto and informa- 
 tions in nature of quo warranto, has been abolished by the code, and new 
 remedies substituted, the foregoing provisions in relation to an injunction 
 from a court of equity, pending the proceeding at law, do not seem to be 
 abrogated ; nor to be incompatible with the new remedies provided.' It 
 is a proceeding merely auxiliary to the more important remedy pros- 
 ecuted at law, though the practice with respect to it, is modified by the 
 code.'' 
 
 But a court of equity has now by statute, jurisdiction over directors, 
 managers and other trustees and officers of corporations, and over insol- 
 vent corporations in a variety of cases, and as incidental to this latter 
 jurisdiction, may, in a proper case, adjudge a corporation to be dissolved.' 
 
 Thus, by the 33d section, the chancellor has jurisdiction over direc- 
 tors, managers and other trustees and' officers of corporations, 1. To com- 
 pel them to account for their official conduct, in the management and 
 disposition of the funds and property committed to their charge ; 2, To 
 decree and compel payment by them, to the corporation, whom they rep- 
 resent, and to its creditors, of all sums of money, and of the value of all 
 property which they may have acquired to themselves, or transferred to 
 others, or may have lost or wasted, by any violation of their duties as 
 such trustees ; 3. To suspend any such trustee or officer from exercising 
 his office, whenever it shall appear that he has abused his trust ; 4. To 
 remove any such trustee or officer from his office, upon proof or conviction 
 of gross misconduct ; 6. To direct new elections to be held by the body 
 or board duly authorized for that purpose, to supply vacancies created by 
 
 ' 2 R. S. 581, 588. • Id. §§ 218, 219. 
 
 ' 2 E. 462, § 31, 82. » 2 E. S. 462, § 88, p. 463, § 88. Ward 
 
 ' Code of Procedure, '428^447. v. Sea Insurance Oo. 7 Paige, 298. 
 
Ch. 11.] Proceedings against, in Equity. 747 
 
 such removal ; 6. In case there be no such body or board, or all the mem- 
 bers of such board be removed, then to report the same "to the governor, 
 who shall be authorized, with the consent of the senate, to fill such vacan- 
 cies ; 7. To set aside all alienations of property made by the trustees or 
 other officers of any corporation, contrary to the provisions of such incor- 
 poration, in cases where the person receiving such alienation knew the 
 purpose for which the same was made. 
 
 The jurisdiction under the preceding section was exercised by the 
 court of chancery, as in ordinary cases, by bill or petition as the case 
 might require or as the chancellor might direct ; and it was so exercised 
 either at the instance of the attorney general, prosecuting in behalf of 
 the people of this state, or at the instance of any creditor of such 
 corporation, or at the instance of any trustee or other officer of such cor- 
 poration, having a general superintendence of its concerns.' 
 
 The union of law and equity in the same court and the abolition of 
 the former pleadings, will doubtless lead to some changes in the appli- 
 cation of these remedies ; but the rights and substantial remedies still 
 remain. By the code, a proceeding formerly belonging to the .criminal 
 side of the court has been converted into a civil action. Though the 
 name is thus changed, the injury to be redressed, and the nature of the 
 relief affijrded, remain essentially as they were before." 
 
 The New- York Revised Statutes contain numerous regulations, with 
 respect to insolvent corporations, and to restrain the abuses of their 
 powers, by corporations generally. Religious corporations, and a few 
 other corporations of a kindred character, are excepted from the operation 
 of these provisions.' These statutes are in truth statutes of bankruptcy, 
 in relation to the corporations to which they are applicable, and are an 
 expansion and improvement upon our earlier legislation upon this sub- 
 ject.^ The court of chancery was, at an earlier day, authorized in cer- 
 tain cases, to decree the dissolution of certain insurance companies, and to 
 direct a distribution of their assets, among their creditors and stock- 
 holders, through the intervention of trustees, appointed by the court.* 
 
 The existing statutes provide for two classes of cases ; the one on the 
 application of the attorney general, in behalf of the state, or of a creditor 
 or stockholder of such corporation, upon bill or petition, setting forth its' 
 insolvency, or other facts authorizing the interposition of the court ;* and 
 
 ■ 2 E. S. 463, § 35. • L. of 1825, p. 448, ch. 325. 
 
 ' Compare 2 K. S. 579, § 13, with Code, ' L. of 1817, p. 150, ch. 146. L. of 
 
 1 429, and 2 E. S. 583, § 39, with Code, § 1821, p. 141, ch. 148, 
 
 430. ' 2 E. S. 464, f 40. 
 
 «2E. S. 466, §57. 1 E. S. 605, § U. 
 
748 COEFORATIONS-. [Cb. 11. 
 
 the other, on the application of the directors, trustees or other officers 
 having the management of the concerns of the corporation, for its disso- 
 lution on the ground that its property has become so reduced by losses 
 or otherwise, that it will not be able to pay all its just demands, or afford 
 reasonable security to those who may deal with it^' The object of both 
 statutes is to secure a ratable distribution of the property of the corpo- 
 ration among its creditors, subject to the legal priorities of the United 
 States." 
 
 In the first dass of cases, T^rhenever apy incorporated company shall 
 have remained insolvent for one whole year ; or for one year shall have 
 neglected or refused to pay and discharge its notes or other evidences of 
 debt; or for one year shall have suspended the ordinary and lawful 
 business of such corporation ; it shall be deemed to have surrendered the 
 rights, privileges and franchises granted by any act of incorporation, or 
 acquired under the laws of the state, and shall be adjudged to be dissolved.' 
 In Slee v. Bloom, (supra,) the court of errors held that a bill by a creditor 
 could be sustained, against individual stockholders, who were made liable 
 for the debts of the corporation, on its dissolution, without having the 
 dissolution declared by any judicial proceeding.' This decision as appli- 
 cable to that case, and in favor of the remedy of the creditors, against 
 stockholders made personally liable by the terms of the charter, for the 
 debts of the corporation, was well enough. ,But the present statute evi- 
 dently contemplates, that the court of equity, whose aid is invoked in 
 favor of the creditor, under that section, shall dissolve the corporation^ 
 if the facts be made out which the section Contemplates to exist, and 
 appoint a receiver to wind up the aiffairs of the company and to distribute 
 its surplus funds if any, amongst its stockholders.^ The decree for clos- 
 ing the affairs of the insolvent corporation under the statute, seems 
 necessarily to be based upon the decree for a dissolution erf the cor ■ 
 poration.* 
 
 In the other class of cases, where the application is made for a dissolu- 
 tion of the corporation by its own officers, the statute has very properly 
 declared, that all sales, assignments, transfers, mortgages and convey- 
 ances of any part of the estate real or personal, including things in 
 action, of every such corporation, made after the filing of the petition for 
 a dissolution thereof, in payment of or as a security for any existing or 
 
 ' 2 K. S. 467, § 58 et seq. » Ward, v. Sea Ins. Oo. 7 Paige, 298. 
 
 » 2 K. S. 4r0, § 79. " Miekles v. The. Eochester City Bank, 
 
 • 2 R. 8. 463, § 88. 11 Paige, laSv 
 
 * Slee v. Bloom, 19 J. K, 456. 
 
Ch. 11.] Proceedings against, in Eciuity. 749 
 
 prior debt, or for any other consideration, and alt judgments confessed 
 by such corporation after that time, shall be absolutely void as against 
 the receivers who may be appointed on such petition, and as against the 
 creditors of such corporation.' 
 
 With regard to corporations having banking powers, or having the 
 power to make loans on pledges or deposits, or authorized by law to 
 make insurances, if the same shall become insolvent, or unable to pay 
 their debts, or shall have violated any of the provisions of their act of 
 incorporation, or of any other act binding on such corporation, the court 
 of chancery, now the supreme court, is authorized by injunction to restrain 
 such corporation and its officers from exercising any of its corporate 
 rights, privileges or franchises, and from collecting or receiving any debts 
 or demands, and from paying out or in any way transferring or deliver- 
 ing to any person any of the moneys or effects of such corporation, until 
 such court shall otherwise order.^ The injunction in such case may be 
 granted on the application of the attorney general, in behalf of the state, 
 or of any creditor or stockholder of such corporation, upon bill or petition.^ 
 
 There are still more stringent provisions in relation to all corporations, 
 • not expressly excepted, such as corporations for a library, or a religious 
 society, or moneyed corporations otherwise provided for, which interdict, 
 under certain circumstances, any transfer or assignment of their property. 
 Thus, whenever any incorporated company shall have refuseid the pay- 
 ment of any of its notes, or other evidences of debt, in specie, or lawful 
 money of the United States, it shall not be lawful for such company, or 
 any of its officers, to assign or transfer any of the property or choses in 
 action of such company, directly or indirectly for the payment of any 
 debt ; and it shall not be lawful to make any transfer or assignment in 
 contemplation of the insolvency of such company, to any person or persons 
 whatever ; and every such transfer or assignment to such officer, stock- 
 holder or other person, or in trust for them or their benefit, shall be ut- 
 terly void ; , and whenever any incorporated company shall have remained 
 insolvent for one whole year, or for one year shall have neglected 
 or refused to redeem its notes or other evidences of debt, in specie or 
 other lawful money of the United States, or for one year shall have sus- 
 pended the ordinary business of such incorporation, such company shall 
 thereupon be deemed and adjudged to have surrendered the rights, privi- 
 leges and franchisesj granted by any act of incorporation, and shall be 
 deemed to be dissolved.^ 
 
 »2B.S. 469, §71. "id. §40. 
 
 » 3 K. S. 468, § 89. '1K.S.«08,§4 
 
750 . Corporations. [OL 11. 
 
 This statute has been held not to be confined to moneyed corporations, 
 but to embrace all corporations not expressly excepted from its operation. 
 And thus it was held to extend to the act incorporating the New- York 
 and Brie Railroad Company, notwithstanding the charter of the company 
 expressly referred to, and was made subject to certain other provisions 
 of the Revised Statutes, specifically mentioned, and was silent as to the 
 foregoing.' 
 
 Although a corporation is deemed to have surrendered its charter in 
 consequence of non-user, or by continued insolvency, or the non-payment 
 of its notes or other evidences of debt for one whole year, yet it does not 
 become ipso facto dissolved. But it continues to exist until its dissolu- 
 tion is judicially declared, by a decree of the court of chancery, or by the 
 judgment of the supreme court upon a quo warranto. And until such 
 decree, or judgment, any of the creditors of such corporation may proceed 
 by suit, against it or its property, to obtain satisfaction of their debts, 
 unless restrained by injunction.'^ 
 
 In a bill filed by a creditor under the statute, to obtain a decree dis- 
 solving a corporation, and distributing its effects among its creditors and 
 stockholders, the corporation itself is a necessary party.' But where 
 the property of the company is all exhausted, and the bill is filed for the 
 sole purpose of compelling its stockholders to pay the corporate debts out 
 of their individual property, it seems the corporation is not a necessary 
 party although its dissolution has not been judicially declared.* 
 
 The relation which stockholders of an incorporation bear to each other 
 with, respect to the corporate property is not that of tenants in common, 
 or partners, either before or after the dissolution. Before the dissolution 
 the whole title is in the corporation itself, as the legal owner ; and upon 
 its dissolution, if no other provision is made, the whole title vests in the 
 directors or trustees then in office, as trustees for the creditors and stock- 
 holders, under the general provisions of the Revised Statutes." 
 
 We pass now to some other matters connected with the liability of cor- 
 porations in equity, and the mode of enforcing them. 
 
 With respect to the remedy of a judgment creditor of a corporation 
 whose execution has been returned unsatisfied in part or in whole, it has 
 been decided that he cannot resort to a creditor's bill and thus acquire a 
 lien upon the effects of the corporation in his own favor in preference to 
 
 " Bowen v. Leare, 5 Hill, 221. * Id. 
 
 " Miokles v. The Rocheater City Bank, "IE. S. 600, § 9. Miokles v. The 
 
 11 Paige, 118. Rochester City Bank, 11 Paige, 128. 
 
 • Id. •* . 
 
Ch. 11.] Proceedings against, in EauiTY. 751 
 
 other creditors. But his remedy is under the statute to obtain a seques- 
 tration of the stock, property, things in action and effects of the corpora- 
 tion, and the appointment of a receiver.' This proceeding may be by bill 
 or petition ; but a proceeding by bill is the preferable course, if the cred- 
 itor intends to proceed against the directors or stockholders, to charge 
 them personally, in case of deficiency of the corporate property to pay the 
 debts of the corporation. And the stockholders of an insolvent corpora- 
 tion, who have not paid the full amount of their stock, are liable to the 
 credited of the corporation to the extent of what remains unpaid, upon 
 their several shares of such stock ; or of so much thereof as may be 
 necessary to supply the deficiency in the assets of the corporation to pay 
 its debts." The receiver appointed under a decree sequestrating the 
 effects of the corporation, is vested with all the estate real and personal, 
 of the corporation, from the time of filing his security, and becomes the 
 trustee of the estate for the benefit of the creditors of such corporation 
 and of its stockholders.' He possesses by statute, the same power and 
 authority as are conferred by law upon trustees to whom an assign- 
 ment of the estate of an insolvent debtor may be made pursuant to the 
 provisions of the fifth chapter of the second part of the Revised Statutes.* 
 Those trustees are required by law to make an equal distribution among 
 the creditors, after satisfying the claims which are preferred by the laws 
 of the United States." 
 
 Independently of the Revised Statutes, and of the general doctrines 
 of a court of equity, the directors of a moneyed or other joint stock cor- 
 poration, who willfully abuse their trust, or misapply the funds of 
 the company, by which a loss is sustained, are personally liable as 
 trustees to make good the loss. They are equally liable if they suffer 
 the corporate funds or property to be lost or wasted by gross negligence 
 and inattention to the duties of their trust. And a court of equity has 
 power to call them to account. The directors are the trustees or manag- 
 ing agents, and the stockholders are the cestui que trusts, and have a 
 joint interest ia all the property and effects of the corporation.' As 
 was held by tord Ha,rdwicke, in a memorable case, a court of equity can 
 
 ' ' 2 E. S. 463, § 36. Lowene v. Amer. Sandf. Oh. K. 257. L. of 1864, p. 502, 
 
 Fire Ins. Oo. 6 Paige, 482. Morgan v. ch. 224. 
 
 N T and Albany K. E. 10 id. 291. * 2 E. S. 40 et seq. 
 
 "Id. ^W. 
 
 ' 2 B. S. 463, § 38, 469, § 67. Laws of « Eobinson v. Smith, 3 Paige, 281. 
 
 1852, p. 67, oh. 71. Mann v. Pents, 2 Cunningham v. Pell, 5 id. 607. 
 
752 Corporations. [Ch. 11. 
 
 lay hold of every breach of trust, be it in a public or private capacity.^ 
 As already intimated, the Revised Statutes extended the principles which 
 were formerly applied to charitable corporations in England, to the juris- 
 diction of the court of chancery in this state over corporations. In some 
 respects they are merely declaratory, and in others they are introduc- 
 tory of new and salutary rules. 
 
 In New- York there are numerous corporations where the principle of 
 personal liability of the stockholders exists, either concurrently with that 
 of the corporation, or as auxiliary to it. To collect a list of these vari- 
 ous charters, and point out the distinctions between them and the practices 
 to which they have given rise, is foreign from the object of this treatise. 
 Some of these have given rise to much litigation and to many conflicting 
 decisions.' 
 
 If by the act of incorporation, the stockholders be jointly and sever- 
 ally personally liable for the payment of all debts or demands contracted 
 by the corporation, and be liable to be prosecuted therefor, after a judg- 
 ment for such demand shall have been obtained against the corporation, 
 and an execution thereon shall have been issued and returned unsatisfied 
 in whole or in part, or the said corporation shall have been dissolved, as 
 in the case of the stockholders of the Rossie Galena Company and Ros- 
 sie Lead Mining Company,^ still it is obvious, that though the creditor's 
 remedy be at law, the stockholder who shall have been compelled to pay 
 the debt, has no recourse but to a court of equity to compel contribution 
 from those who are equally liable with himself. Under the charter of 
 the Rossie Lead Mining Company, no stockholder was liable but he who 
 was a stockholder at the time the debt was contracted.' A party who 
 became a stockholder after the debt was contracted, was not liable for such 
 debt. Hence, it was held that creditors of the company whose debts had 
 been contracted by such company at different times, having no common 
 interest in the individual liability of different stockholders, could not lit- 
 igate their claims against such stockholders in a single suit.' 
 
 The stockholders, too, in such a company, being individually liable for 
 the whole amount of each debt contracted while they were stockholders, 
 
 ' The Charitable Oorporation V.Sutton, 119. Oorning v. McOullough, 1 Oomst. 
 
 2 Atk. 405. 47. 
 
 " Moss V. McOulloBgh, 5 Hill, 131. 7 ' Laws of 1887, pp. 441, 445, ohs. 396, 
 
 Barb. 279. Allen v. Bewail, 2 Wend. 401. 
 
 827. Moss V. Oakley, 2 Hill, 265. Bailey « Moss v. 0»kley, 2 Hill, 265. 
 
 V. Banoker, 8 id. 188. Adderly v. Storm, " Judson v. TJte Rossie Galena Oo. » 
 
 6 id. 624. Worrall v. Judson, 5 Barb, Paige, 698. 
 210. Harger v. McOuUough, 2 Denio, 
 
Ch. 11.] Proceedings against, in Equitt. 753 
 
 they are not entitled to an injunction to restrain the prosecution of suits 
 against them, and to compel the creditors to come in and prove their 
 debts under the decree in the first suit. It is otherwise under the Re- 
 vised Statutes, -which render the directors jointly liable to the creditors 
 and stockholders for losses occasioned by breach of duty ; and which ren- 
 ders the stockholders liable to the creditors, in cases of fraudulent insol- 
 vencies, to the extent of their stock, where there is a deficiency in the 
 effects of the corporation which could nof be charged upon or collected 
 from the directors who were responsible for the fraud. In such a case 
 no one of the creditors could collect the whole of the debt from those who 
 were liable to all the creditors collectively to a limited amount. The 
 proceedings to compel a ratable contribution to the amount of their several 
 debts, must, therefore, be analogous to the proceedings against the estate 
 of an insolvent testator, or intestate, in the hands of his personal repre- 
 sentatives ; not only in relation to the corporate effects but also as to the 
 limited liabilities of the directors and stockholders.' 
 
 Accordingly it is enacted that whenever any bill shall be filed, or any 
 application made against a corporation, its directors or other superin- 
 tending officers or its stockholders, according to the provisions of title 4 of 
 chapter 8, part 3d of the Revised Statutes, the court may, by injunction, 
 on the application of either party, and at any stage of the proceedings, 
 restrain all proceedings at law, by any creditor against the defendants in 
 such suit ; and whenever it shall appear necessary or proper, may order 
 notice to be published, in such manner as the court shall direct, requiring 
 all the creditors of such corporation to exhibit their claims and become 
 parties to the suit, within a reasonable time, not less than six months 
 from the first publication of such order, and in default thereof, to be pre- 
 cluded from all benefit of the decree which shall be made in such suit, 
 and from any distribution which shall be made under such decree.' 
 
 Enough has been shown under this head, to exemplify the jurisdiction 
 of equity in respect to corporations. To pursue the subject more in de- 
 tail would be to encroach upon ground more proper to be discussed in a 
 treatise upon the practice of the courts, and upon subjects exclusively of 
 legal cognizance. The number of corporations in this state, amenable in 
 some form or other to the jurisdiction of equity, is vastly numerous. 
 Their charters, though containing some provisions in common, are often 
 extremely dissimilar. The amount of property they own or control, the 
 
 ' Judson r. The Eossie Galena Co. 9 Morgan v. F. T. and Albany E. E. id. 
 Paige, 602. 2 E. 466, § 56. 290. Mann v. Pehtz, .3 Oomst. 415. James 
 
 = Id. Matter of the Eeceiver of the v. Woodruflf, 5 Paige, 541. 2 Denio, 574. 
 City Bank of Buffalo, 19 Paige, 878. 
 
 Eq. Jur. 95 
 
754 CoRPORATioNsr. [Ch. 11. 
 
 number of Individuals engaged in the management of their affiiirs, and 
 the complicated nature of their transactions, give rise to a great variety 
 of intricate and interesting questions for judicial decision. Equity, by 
 means of its general jurisdiction over frauds, trusts and matters of ac- 
 count, as well as by the express provisions of various statutes, has acquired 
 cognizance of these matters, sometimes concurrently with courts of law, 
 but more frequently, by reason of the remedy at law, being altogether 
 inadequate. A thorough knowFedge of the subject cannot be acquired 
 without an intimate acquaintance with an extensive mass of legislation ; 
 and with the law of corporations generally, and the decision of our courts 
 upon the various points which have arisen and been decided. 
 
INDEX. 
 
 A 
 ABATEMENT, 
 
 of legacies, when n^essary, 556. 
 ■what legacies abate and what not, 557, 558. 
 ABSOLUTE, 
 
 and conditional legacies, 522. See Legacy and Conditions. 
 ACCESSIONS, 
 
 industrial, when recoverahle, 311. 
 and when not, 312. 
 ACCIDENT, 
 
 relief in cases of, 51. 
 meaning of term, 51. 
 relief in cases of lost bonds, or negotiable securities, 52, 53. 
 
 to correct error in deed, 54, 55. 
 when indemnity required as a condition of relief, 52, 53. 
 relief in cases of penalties, 55. 
 
 breach of conditions subsequent, 56. 
 
 but not in case of conditions precedent, 57. 
 
 confusion of boundaries, 56. 
 effect of, as to conditions precedent and subsequent, 56. 
 
 stipulated damages, 66. 
 if party wilwntwrily destroy the instrument, no relief, 64. 
 by death of master of an apprentice, '55. 
 
 no relief unless the other party can be restored to as good a condition, &c. 56. 
 no relief to tenant, when premises destroyed by fire, 56. 
 nor against accident, happening by party's own gross negligence, 67. 
 no relief against forfeiture under by-law, 67. 
 nor against a forfeiture of a lease for willful waste, 58. 
 nor against the judgment of arbitrators, 58. 
 nor against a failure to make a further codicil to a will, 58. 
 grounds of equity jurisdiction in cases of, 69. 
 ACCOUNT, 
 
 antiquity of action at law in,, 85. 
 in what cases it lay^SS, 89. 
 
 (756) 
 
756 Index. 
 
 ACCOU'ST:— continued. 
 
 statute concerning, 85, 86. 
 
 difficulty of the action at law, 87. 
 
 ground of jurisdiction in equity, 88, 90. 
 
 in case of mutual accounts, 90. 
 
 concurrent jurisdiction, 88. 
 
 in oases between landlord and tenant, 91. 
 mines, 91. 
 when several estates involved, 91, 92. 
 
 when there is no mutuality of dealings, or other relief wanted, equity does 
 not interpose, 91. 
 
 where partial payments have been made, how appropriated, 92-100. See 
 Appeopeiation of Payment. 
 
 in case of partnership and changing the firm, 101. 
 on accession of uew partner, 103. 
 
 in case of agency, tenants in common, &c. 104. # 
 
 apportionment in, 127. See Appoetionment. 
 
 stated account, how and when opened, 142, 143. 
 
 court not inclined to open accounts of long standing, 148. 
 
 limitation of the action, 144. 
 AOOUMULATIOIT, 
 
 of personal property, how long, 477. 
 ADMIITISTRATION, 
 
 and marshaling assets, 561, 562. 
 
 order of payment, 568, 564. 
 
 as between heir and devisee, 565. 
 
 when personal estate will be applied in favor of the heir, 565, 566. 
 
 when bond and mortgage are given for the same debt, 567. 
 
 when mortgagee must look solely to the land, 568. 
 AGENCY, 
 
 application of payments in cases of, 104. 
 AGENT, 
 
 bound to keep accounts, 104. 
 
 in case of gross neglect, liable to costs, 104. 
 
 must not confound his own and his principal's acoounta, 104. 
 
 in cases of tenants in common, 104. 
 
 in cases of lien, 105. 
 
 employed to sell, cannot himself be the purchaser, 189, 603. 
 to purchase, cannot himself be the seller, 189, 603. 
 • same as to sub-agent, 189. 
 
 transactions between agent and principal, how viewed in equity, 1 89, 190, 603. 
 
 when treated as a trustee for liis principal, 190, 603, 604. 
 
 when cannot interplead his principal, 316. 
 AGEEEMENT, 
 
 what is necessary to make it valid, 170, 194. 
 
 when, and between what parties, watched with jealousy, 179. 
 
 when, and by whom, set aside for imbecility of mind, 195, 198. 
 
Index. Y57 
 
 AGREEMENT— co««mMe(i. 
 
 specific performance of, 260. See Speoipio Peepobmastoe. 
 
 to give a mortgage, ■when operative as a lieja, 442. 
 
 •when -within the statute of frauds, 280, 281. 
 
 ■when agreements within, will be specifically enforced, 281, 282 et seq. See 
 Specific Peefokmanob. 
 
 when admitted in the answer, enforced, 282, 383. 
 
 if in writing, not to be contradicted by parol, 286. 
 
 except in action to reform it, or in oases of mistake, &c. 286. 
 
 parol contract merged in written one, 286. 
 
 rescission of by parol, a bar to specific performance, 289. 
 
 re-ezeoution of, when decreed, 300, 301 . 
 
 correction of, how and when decreed, 300, 301. 
 
 enforced against assignee with notice, 298, 299. 
 ALIMONY, 
 
 ad interim, and permanent, 664r 668. See Divobce. 
 ALLOWANCES, 
 
 to trustees, guardians, &c. at common law, 183, 184. 
 AMBIGUITY, 
 
 of what kinds, and how explained, 495. 
 
 when raised by extrinsic evidence, explained by it, 495. 
 
 the reason of the rule, 495. 
 
 patent ambiguity, what, 495. 
 
 general rules, 496, 497. 
 ANCIENT LIGHTS, 
 
 when protected by injunction, 394, 395. 
 APPORTIONMENT, 
 
 meaning of the term, 127. 
 
 of rents, how ^lade, 127, 128. 
 
 an entire contract not apportionable at common law, 127. 
 
 how as to annuities and servants' wages, 131. 
 
 how as to common, 131, 132, 183. 
 
 assignee of lessee not liable for, after assignment, 185. 
 APPROPRIATION OF PAYMENTS, 
 
 in case of payment the debtor has the primary right to declare the appli- 
 cation, 92. 
 
 in case he omits to do so, then the right devolves on the creditor, 92. 
 
 if neither party declares it, then the court, 92. 
 
 civil law rule, and note from Domat, 94. 
 
 at what time the right to declare the appropriation, must be asserted, 95. 
 
 rule, as stated in several states, 97 to 100. 
 
 points of disagreement stated, 100. 
 
 tendency of the recent decisions to the civil law rule, 100. 
 
 the law makes the application to the oldest debt, 98. 
 
 to the debt most beneficial to the debtor to be relieved from, 98. 
 
 rule in United States supreme court, 98. 
 
 in case of partnership, on a change of the firm, 101. 
 
758 Index. 
 
 APPROPRIATIOlSr OF PAYME-^iTS-conUrmed. 
 
 law applies payments according to order of time, 101, 102. 
 
 on accession of a new partner, 103. 
 
 in case of agency, 104. 
 
 in case of foreclosure of mortgages, 453, 454. 
 
 order on a fund, when an appropriation, 464. 
 ARBITRATORS, 
 
 mistake by, when relieved against, 77. 
 ASSETS, 
 
 wasting of restrained by injunction, 367. 
 
 marshaling of and administration, 561. 
 
 legal and equitable, how marshaled, 562, 563. 
 
 in whose favor marshaled, 563, 564. 
 
 personal estate the primary fund, 564, 568. 
 ASSENT, 
 
 of executors to a legacy, 500. 
 
 of one of several executors, sufficient, 500. 
 
 not necessary to a devise of land, 500. 
 
 when equity will compel executors to assent, 500. 
 ASSIGNMENT, 
 
 to defraud creditors, how relieved against, 241. 
 
 in what cases void, 241, 242. . 
 
 what evidence of fraud in, 241. 
 
 when valid, though a preference given among the creditors, 245. 
 
 must devote the whole of. the debtor's property to pay his debts, 245. 
 
 must relate to debts existing at its date, 242. 
 
 bad, if it imposes conditions on the creditor, 246. 
 
 the power to declare preferenc&s cannot be delegated, 246. 
 
 must be for a lawful purpose and in good faith, 247. 
 
 with authority for assignee to sell on credit, bad, 248. 
 
 assignee with notice bound to execute agreement of assignor, 298, 299. 
 
 of both real and personal property, 459. 
 
 general rules as to, 459. 
 
 of choses in action at common law, 460. 
 
 idghta of assignee protected at law, 460. 
 
 of a possibility coupled with an intent,- 461. 
 
 delivery without writing, a good assignment, 462'. 
 
 a specialty, assignable by parol, 462. 
 
 equitable assignments, how made, 463, 464. 
 
 what constitutes, 463. 
 
 for benefit of creditors, 465, 466. 
 
 fraudulent, relief as to, 465-469. See Fkaitd and 'FnA.wxnxssT AseisNMENTB, 
 241, 242. 
 
 in contravention of law, void, 472. 
 ATTORNEY AND CLIENT, 
 
 transactions between, how viewed, 171, 172. 
 
 with respect to matters not in litigation, 174. 
 
Index. 759 
 
 ATTORNEY AND CUKTST— continued. 
 
 when cannot interplead each other, 316, 317. 
 
 in what cases they can, 317. 
 
 disahled to purchase for himself, when, 604, 605. ' 
 
 AUCTION SALES, 
 
 not set aside for mere inadequacy, 265. 
 
 when relieved against for misdescription, 295. 
 AVERAGE, 
 
 doctrine with respect to constrihution, 121. 
 AVARDS, 
 
 when relieved against in equity and when not, 164, 358. 
 
 B 
 
 BILL OF DISCOVERY, 
 
 in aid of another action, abolished by the code, 42. 
 
 every action for relief may he a bill of, at the election of the plaintiif, 42, 
 88, 224. 
 BILLS TO MARSHAL SECURITIES, 
 
 doctrine of, 337. 
 
 applies only where plaintiff and defendant are creditors of a common 
 debtor, 338. 
 
 not enforced to the prejudice of third parties, 339. 
 BILLS, OR NOTES, 
 
 when transfer of, restrained by injunction, 358. 
 BILLS OF PEACE, 
 
 when allowed, 323. 
 
 two classes of, 323, 324. 
 
 the distinction between same, 325. 
 
 the right claimed must affect many persons, 325. 
 
 when right established after repeated trials at law, 326. 
 BILLS QUIA TIMET, 
 
 when proper, 328. 
 
 in favor of legatee whose legacy is payable at a future day, 328, 329. See 
 StTKETrES, Rboeivbe, &o. 
 BONDS, 
 
 grounds of relief against penalties in, 55, 66. 
 BOUNDARIES, 
 
 confusion of, relieved against, 56. 
 BRIDGES, 
 
 when erection of, prevented, 399. 
 BUILDING, 
 
 when restrained to prevent darkening ancient lights, 394. 
 
 c 
 
 CANCELLATION 
 
 of agreements, when ordered, 302, 303. 
 
760 Index. 
 
 CAVEAT EMPTOE, 
 
 to what applicable, 151, 153. 
 
 rule of civil law, 151, 152. 
 
 when defects avo latent, 153. 
 
 the like vtYi&a. patent, 152. 
 
 with respect to real property, 153. 
 
 as to title, and quality, 152. 
 
 as to demise of land for agricultural purposes, 153. 
 
 as to demise of houses for occupation, rule, 154-156. 
 
 rule of, in case of sale of goods, 156. 
 
 as to qimlitj and title, 156 to 158. 
 CESTUI QUE TRUST. See Tbusts. 
 
 rights of, 611, 612. 
 
 when entitled to resale of trust property, without showing fraud, 605, 606, 
 612. 
 
 remedy of, for breach of trust in equity, 615. 
 OHAEGE, 
 
 effect of, on devisee with respect to the estate devised, 485. 
 
 distinction between, upon the estate, and upon the deioiae, in respect thereof, 
 485, 486. 
 
 on real estate to pay debts or legacies, creates a trust, 486. 
 
 enforced by equity, 486. 
 
 a power to sell to pay debts, authorizes a mortgage for the same, 486. 
 
 by what words a charge to pay debts is made, 487. 
 
 in what court a legacy charged on land is enforced, 500, 560, 565. 
 CHABGE AND DISCHARGE, 
 
 meaning of the terms, 140. 
 CHARITIES, 
 
 doctrine, and whence derived, 569, 570. 
 
 exists in this state independent of statute of 43 Eliz. 571-575. 
 
 that statute never in force here, 573. 
 
 as to persons who can hold, 575, 576. 
 
 as to corporations, 576. 
 
 effect of free toleration of all religions, on, 576, 577 et seq. 
 
 upholding of, does not afBrm the truth of the doctrine, 577. 
 
 in favor of doctrines tending to licentiousness, cannot be upheld, 578. 
 
 uncertainty of the recipient essential to a charity, 580. 
 
 violation of the trust will not revest the title in the heir of grantor, 581. 
 
 when an unincorporated body can take a charity, 583. 
 
 doctrine of charitable uses not abrogated by the R. S., 575, 587, 588. 
 
 property dedicated to the support of the ministry cannot be diverted, 588. 
 
 the R. S. as to perpetuities does not infringe the law of charity, 587. 
 property given to a charity cannot be diverted to other objects, even by the 
 
 consent of a majority of the beneficiaries, 589, 593. 
 intention of donor of charity, how ascertained, 690. 
 when parol evidence admissible, 690, 691 . 
 doctrine of ct pkbs sustained, 594-596. 
 
Index. 761 
 
 CEASmES—eonUimied. 
 
 ■whose object is to subvert Christianity, void, 696. 
 
 tending to licentiousness or breach of the peace, void, 596. ' 
 
 CHATTELS, 
 
 agreements concerning, when specifically enforced, and when not, 271, 276. 
 
 bequest of, for life, with remainder over, how secured, 830, 331. 
 
 when ordered to be delivered up, 865. 
 OHUEOHES. See Rbligiotis Ooepoeation, and Ooepobation, 7'34: to 736, and note. 
 COMMON, 
 
 different kinds of, 131, 132. 
 
 when apportioned, 132. 
 
 when a conveyance of, operates as an extinguishment, and when not, 1 S3. 
 COMPENSATION, 
 
 for defects, when allowed, 290, 291. 
 
 bill in equity will not lie for, alone, 291. 
 
 it lies where party puts it out of his power to perform, pendente Ute, 309. 
 
 how damages are assessed, 809. 
 
 when allowed, on election to take against the instrument, 545, 646. 
 COMMITTEE, 
 
 of person and estate of lunatics, &c. 684. See LmsrAxio, Idiot and Oonm- 
 DBNTiAi Relations. 
 
 rule as to his purchase of the trust property, 186 et seq. 
 CONDITIONS, 
 
 subsequent, when relieved against, 56. 
 
 in restraint of marriage, void, 215, 216. 
 
 precedent, must be strictly performed, 294, 295. 
 I precedent and subsequent, 523. 
 
 illegal or repugnant, void, 523. 
 
 where condition is precedent, its performance necessary to vest an estate, 523. 
 
 by what words created, 523, 624. 
 
 on marriage, when viewed with disfavor, 524. 
 
 when in terrorem, 524. 
 
 distinction between personal legacies and legacies charged on land, 525. 
 
 if condition precedent be impossible to perform, 528. 
 
 when condition subsequent is impossible, 528. 
 
 if condition precedent be illegal, 528. 
 
 if it require the performance of an act tnaJjum in »e, 528. 
 
 in restraint of marriage, 530 to 532. 
 
 difference between, when imposed by husband or by a stranger, 634. 
 
 repugnant conditions, void, 584. 
 
 rule as to performance, 634. 
 
 principle o{ cypres, 534. 
 
 subsequent, construed with striotness, 534. 
 CONDITIONAL, 
 
 legacy, 522. See Lkoaot. 
 Eq. Jub. 96 
 
762 Index. 
 
 CONTINGENT 
 
 legacy, 602 et seq. See Lb&aot. 
 CONFIDENTIAL 
 
 relations, transactions between parties standing to each other in, 169 et teq. 
 CONFUSION OF BOUNDARIES, 
 
 when relieved against, 56. 
 CONSIDERATION, 
 
 difference between a good and a vahiaMe, 227, 413. 
 
 actual payment of, essential, when, &c. 256. 
 
 rule of, as to commercial paper, 256. 
 
 of prior indebtedness, good between the parties, but not enough to shut out 
 the equities of prior parties, 256. 
 
 inadequacy of, when a defense to an action for a specific performance, 263 to 
 265. 
 
 marriage a meritorious consideration, 488, 
 CONSENT, 
 
 requisite to a valid agreement, 170, 194. 
 
 of court, to marriage of female ward, 633. 
 
 to the marriage of a legatee, when improperly withheld, how enforced, 525. 
 
 when required by several must be given by all, 526. 
 
 of acting executor, sufficient, 526. 
 
 marriage in lifetime of testator with his approbation, equivalant to consent, 
 526. 
 
 conseiit once given cannot be recalled, 527. 
 CONDONATION, 
 
 what amounts to and what avoids i^ 657, 658. See Ditoeob. 
 CONSTRUCTION, 
 
 of wills, rules of, 490 to 494. See Wills, Lbgaoies, &c. 
 CONSTRUCTIVE, Ott, IMPLIED TRUSTS, 
 
 defined and illustrated, 598. See Implied Teitsts. 
 CONSTRUCTIVE ERAUD, 209 et seq. See Fraud. 
 CONTRACT, 
 
 consent requisite, 170, 194. See Ageebment. 
 
 when obtained by persons knowing of the incapacity, 198. 
 
 of infants leaifeme coverts, when relieved against, 209. 
 
 in restraint of marriage, void, 214. 
 
 speoiflc performance of, when decreed, 260, &o. See Spboifio Pebfobmanob 
 
 when within statute of frauds, 280, 281, et aeq. 
 
 cannot rest partly in writing and partly in parol, 286. 
 CONTRIBUTION, 
 
 ground of the jurisdiction in, 106. 
 
 equality of benefit calls for equality of burden, 106. 
 
 the charge must not arise ex delioto, 106, 107. 
 
 it arises between sureties, 107. 
 
 also between joint debtors, 107. 
 
 when there are more than two sureties, 108. 
 
 •in case of party wall, 116. 
 
Index. 763 
 
 COWSmnmiOTH—eontinued. 
 
 division fences, 116. 
 
 between owners and railroads, 117. 
 
 rule under the general railroad act, 118, 
 
 rule where a charge in several lots, 118. 
 
 rule in oases of several insurances, 119, 120. 
 
 rule as to successive purchasers of parts of lands mortgaged, 119. 
 
 distinction between mortgages and judgments, ll9. 
 
 rule in cases of average and jettison, 121, 122, 
 
 rule in cases of lien and salvage, 123. 
 
 rule in cases of factors and agents, 124. 
 COPYRIGHTS, 
 
 violation of, restrained by injunction, 383, 385. 
 COimTEROLAIM, 
 
 nature of, and how made available, 355. 
 CORPORATIONS, 
 
 restrained by injunction like natural persons, 397. 
 
 relief granted against municipal, 397. 
 
 protected in enjoyment of their franchises, 401, 407. 
 
 may take devises and bequests to charitable uses, when, and in what way, 
 576. 
 
 right to acquire and convey property when not restricted by their charter, 
 610, 611. 
 
 on dissolution, who trnstees of its effects, 611, 743. 
 
 proceedings against, in equity independently of statute, 729. 
 
 how defined at common law, 729, 730. 
 
 different kinds of, 730, to 732. • 
 
 how created, 733. 
 
 their capacity to hold property and to alienate it, 734. 
 
 capacity of religious corporations, 734. 
 
 may hold lands in trust, &c. 735. 
 
 what conditions may be imposed, 736. 
 
 equity will compel performance of trusts, 735, 736. 
 
 municipal corporations relieved against, 738, 739, 740. 
 
 claims of creditors how enforced, 740. 
 
 when individual stockholders liable, 740, 741. 
 
 when corporation authorized to execute trusts, 742. 
 
 consequences of a dissolution at common law, on the effects of a corporation, 
 742. 
 
 effect under the statutes of N. Y. 743. 
 
 the trnstees alone incorporated in religious corporations, 736 to 738, note. 
 
 may mortgage their property and franchises, 744. 
 
 effect of foreclosure, and title of purchaser, 744. 
 
 equity jurisdiction over by statute, 745 to 754. 
 over directors, 746 
 
 how exercised, 747. 
 
764 Index. 
 
 OORPORATIOJSrS— coMimwi. 
 
 two classes of cases provided for, 747, 748. 
 
 refusal to pay debts, &c. 749. 
 
 Eot liable to creditor's bill, 750. 
 
 remedy by sequestration, 751. 
 
 when directors of, liable for breach of tmst, 751. 
 
 where stockholders personally liable, on failure of the corporation to pay, 
 
 752, 753. 
 not dissolved by neglect to pay their debts, until decree, 743, 750. 
 before dissolution, the title of their property in the corporation, 750. 
 after dissolution, in the trustees, 750. 
 CREDITOR, 
 
 when entitled to apply indefinite payments, 92. See Appeopbiation of 
 
 Patmbntb. 
 when he is to make the appropriation, 100. 
 frauds against, relievable, 225, 467, &c. See Eeatid. 
 can reach the chases of his debtor, 237. 
 relief in favor of, against judgment debtor, 237, to 239. 
 what choses cannot be reached, 239, 240. 
 when buying incumbrances at an under value, allowed the whole amonct 
 
 and when not, 339. 
 trusts in favor of, allowed, 417. 
 may by parol show a deed a mortgage, 431. 
 relief in favor of, against fraudulent assignments, 467, &o. See Feaub, 
 
 ASSIQNMENTS, &C. 
 
 CREDITOR BILL, 
 
 what interest can be reached by, anrwhat not, 237 to 240. 
 
 when injunction to restrain transfer of property by debtor, 863. 
 
 not the remedy against a corporation, 750, 751. 
 CTMDLATIVE LEGACIES, 
 
 rules vrith respect to, 580, 540, 541. See LEaAoiBS. 
 Cy PRES, 
 
 doctrine in existence in this state, 594, 695. 
 
 D 
 
 DAMAGES, 
 
 in what oases granted on bills for specific performance, 308, 309. 
 
 how ascertained, 309. 
 DEAF AND DUMB, 
 
 not necessarily an idiot, 198. 
 DEBTS, 
 
 the personal estate the primary fund to pay, 488, 564. 
 
 when and how charged on real estate of testator, 487, 488, 564. 
 DEBTOR, 
 
 when entitled to apply payments, 92, See Appbofbiatioit as Patmehts. 
 
Index. Y65 
 
 DEED, 
 
 what capacity necessary to make a valid deed, 196. 
 
 which party to prepare a deed in case of an executory contract to sell land, 
 296, 297. 
 
 when ordered to be delivered up, 804, 305, 361. 
 
 an ancient head of equity, 807. 
 
 when statute and rules apply to deliver up deeds, 308. 
 
 deed intended as a mortgage should be so recorded, 430. 
 
 may in equity be shown a mortgage by parol, 429. 
 DEFENSE, 
 
 when lost, if not made in proper time, 865. 
 
 equitable, when allowed to a legal demand, 356, 356. 
 DEMONSTRATIVE LEGACY, 
 
 what it is, 502. See Legacy. 
 
 when required to abate and when not, 557, 558. 
 DEVISE, 
 
 to a charity, when limited as to amount, 576. 
 DISCRETION, 
 
 exercised by courts of equity, what, 263, 803. 
 DISCOVERY, 
 
 not abolished by the code except in aid of another action or defense, 42, 
 88, 224. 
 
 action in nature of bill of, sustainable under the code, 224. 
 
 every action is a bill of, at the election of the plaintiflF, 224. 
 DIVISION FENCES, 
 
 relief in equity, with respect to, 116, 117. 
 DIVORCE, 
 
 jurisdiction of equity over, by statute, 654. 
 
 no jurisdiction at common law, 655. 
 
 nature and extent of the jurisdiction, 656, 656. 
 
 when the contract was void, 655. 
 
 when for adultery, 656. 
 
 when denied and for what cause, 657. 
 
 doctrine of recrimination and condonation, 657, 658. 
 
 when separation from bed and board granted, 669, 660. 
 
 when for cruelty, 660. 
 
 what deemed cruelty, 660, 661. 
 
 when by husband for separation on account of cruelty by wife, 662, 663, 
 
 alimony, ad ir^terim, 664, 665, 668. 
 
 restoration of property, when decreed to wife, 669. 
 
 custody of children, how disposed of, 679. 
 
 when and how costs are allowed, 671. 
 DONATIO MORTIS CAUSA, 
 
 what it is, 553. 
 
 what essential to constitute, 553, 554. 
 
 delivery necessary, 554, 555. 
 
 a debt may be discharged by, 655. 
 
766 Index. 
 
 DONATIO MORTIS OAVSA— continued. 
 
 ■wherein it resembles a legacy, 655. 
 
 wherein a gift, inter vkos, 655, 556. 
 DOWER, 
 
 how satisfied on a partition of lands, 126. 
 
 when legacy in lien of, a bar, 5i6, 547 et seq. 
 
 remedy for in equity, 693-698. 
 
 husband's conveyance before marriage in fraud of wife's right to dower, 
 invalid, 696. 
 
 dower in an equity of redemption, 696. 
 
 assets marshaled in favor of, 697. 
 
 where equity affords relief not available at law, 698. 
 
 where provision in lieu of dower fails, 698, 699. 
 
 when compensation for, in partition, 703. 
 DRUNKARDS, HABITUAL, 
 
 proceedings against, 683 et seq. See Idiots, Lttnatios, &c. 
 DRUNKENNESS, 
 
 effect of, on contracts, 201. 
 on wills, 201. 
 
 contracts when relieved against, 200. See Habitual DBUNSAEDa 
 DURESS, 
 
 different kinds, and how relieved against, 208. 
 
 E 
 
 EJECTMENT, 
 
 not sustainable by mortgagee in N. Y., 449. 
 ELECTION, 
 
 doctrine of, with respect to legacies, 544. 
 
 ground of the jurisdiction, 544, 545. 
 
 when party put to, 545, 546. » 
 
 if legatee elects to take against the instruiment, C45. 
 
 when widow required to elect, 546 et seq. 
 
 when legatee or devisee put to, 549 to 552. 
 EQUITABLE 
 
 conversion, 588, 600, 601. 
 EQUITABLE ASSINGMENTS, 
 
 what constitutes, 463. 
 EQUITABLE DEFENSES, 
 
 when allowed to a legal demand, 855, 8^6. 
 EQITABLE LIEN, 
 
 how and when enforced, 489, 440. 
 EQUITY, 
 
 a distinct branch of jurisprudence, 38, 87. 
 
 pleadings in, 86. 
 
 K«n«ral uatura of, 87. 
 
Index. 767 
 
 EQUTTY— continued. 
 
 does not relieve against a general rule of law, 41. 
 
 mode of trial in, 42. 
 
 maxims of, 44 to 49. 
 
 follows the law, 44 to 49. 
 
 if equities equal, the law prevails, 45, 253, 255. 
 
 he who seeks equity must do equity, 46. 
 
 equality is equity, 47. 
 
 treats things as done, which ought to be done, 47, 298, 299, 567. 
 
 for relief in, in cases of accident, mistake, fraud, &c. {See those titles.) 
 
 equality of benefit calls for equality of burden, 115. 
 
 the legal title and equal equity prevail over the equity, 255. 
 
 when it grants relief, where no action at law will lie, 279. 
 
 of redemption, what, 427. See Moetoa&e, 
 ESTATES, 
 
 how limited, 466. 
 
 rules at common law, 476. 
 
 modification of law, 476. 
 EVIOTION, 
 
 when a discharge of rent, 128. 
 EXECUTION, 
 
 against one partner, what interest of the partnership may be taken, 720 et 
 seq. See Paetnbe aito Paetnebship. 
 EXEOUTOKS, 
 
 treated as trustees, and liable as snch, 490. 
 
 legacies to, how treated, 535. 
 
 presumption with respect to, 535. 
 
 not regarded as a debt, 536. 
 
 when delay in accepting the office will require an abatement of the legacy, 
 537, 538. 
 
 obtaining probate, when an acceptance and when not, 538, 539. (SeeLBOAOT. 
 
 no right to retain for his own debt until proved and allowed by the surro- 
 gate, 559, 560. 
 
 when required to relieve the heir of a burden, 567. 
 
 his title to the residue at common law, 602. 
 
 present law otherwise, 602. 
 
 disabled to purchase for their own benefit, 604 to 606. 
 
 ground of the disability, 604, 606. 
 EXEOTJTOES AND ADMINISTRATORS, 
 
 transactions of, with the estate, 189. 
 • may, for benefit of creditors, avoid a fraudulent sale, &o. of the testator, 240. 
 
 they represent the rights of creditors, 240, 337. 
 EXONERATION, 
 
 ground of the jurisdiction in, 106, 109. 
 
 exoneration, relief granted before payment, 110. 
 
768 Index. 
 
 EXPECTANT HEIRS, 
 
 transactions with, 178, 179. 
 ground of the jurisdiction, 179. 
 
 F 
 FACTORS, 
 
 lien of, for accounts, 124. 
 FATHER, 
 
 liability to support his children, 626. 
 
 in what place to support them, 626. 
 
 in what cases equity interferes to compel him, 626, 627. 
 
 not bound to support his wife's children by a former marriage, 629. 
 FIXTURES, 
 
 what constitutes, 376. 
 
 the rule with respect to, 376, 377. 
 between heir and executor, 376. 
 
 between executor of tenant for life and remainderman, 376. 
 between landlord and tenant, 376, 377. 
 FORECLOSURE, 
 
 of mortgages, two kinds, 450. 
 
 effect of, 451, 452. 
 
 mode of, and order of payment, 453. 
 
 paying off liens, 454. 
 
 strict, effect of, 452. 
 
 when it extinguishes the debt, and when not, 452. 
 
 of right to redeem a pledge, 452. 
 FORFEITURES, 
 
 when relieved against, 56, 56. 
 FRANCHISE, 
 
 enjoyment of, protected by injunction, 407. 
 
 of a corporation, what it is, 729, 730, 744. 
 
 a subject of sale or mortgage, 744. 
 FRAUD, 
 
 cognizable formerly in star chamber, 145. 
 
 remediable at law as well as in equity, 146. 
 
 when fraud is not penal, equity has concurrent jurisdiction in, 146. 
 
 in obtaining a will, 145, 146. 
 
 equity will declare a trust upon a will, when* 146. 
 
 definition of fraud, 147. 
 
 when not to be presumed, 148. 
 
 different kinds of fraud, 148. 
 
 suggesUo falsi, 148 to 150. 
 
 difference between fraud and warranty, 149. 
 
 mppreeaio veri, 150. 
 
 in insurance cases, and cases of suretiship, 150, 151 
 
 concealment predicable only of material facts, 151. 
 
 disclosure required by conscience, 151. 
 
Index. 769 
 
 FRAUD — continued. 
 
 ea/oeat emptor, 151 et seq. See Caveat Emptob. 
 
 in sale of land as to title, quality, &o., 152. 
 
 demise of house for occupation, 153, 164. 
 
 in sale of goods, 156 to 158. 
 
 in deeds, relievable in equity, 160. 
 
 in judgments and decrees also, 160. 
 
 in what cases, 160, 162. 
 
 but not -when defense at law has failed for want of proof, or by his own 
 
 neglect, 161, 163. 
 not for irregularity, 163. 
 in case of awards, 164. 
 when obtained by fraud, &e. 164. 
 in case of letters patent, 165, 167. 
 in case of policies of insurance, 166 to 168. 
 ■what disclosures must be made, 167, 168. 
 effect of fraudulent concealment, 167. 
 against releases obtained by fraud, 168. 
 against deeds, 169, 304, 305. 
 if injured party with full knowledge settles the matter, no relief is granted, 
 
 169. 
 between parties standing in cofid«a1nal relations, 169. 
 between attorney and client, 171. 
 
 patient and physician, 175. 
 parent and child, 176. 
 in case of expectant heirs, 179. 
 
 post obit bonds, 180. 
 between guardia?i ,and ward, 182. 
 
 trustee and cesttd qxbc trust, 186, 187, 190. 
 
 executors and administrators, 189, 
 
 principal and surety, 190. 
 
 partners, 190, 192. 
 
 principal and agent, 190. 
 
 joint debtors, 190. 
 
 rule in this state with respect to charging the representatives of the de- 
 ceased, 193. 
 when surprise a fraud, 205, 206. 
 pirating trade-marks, 206. 
 illusory appointments, 207, 208. 
 in cases of duress, 208. 
 in case of a fine, ho'jr relieved, 197. 
 implied frauds, 209. 
 
 underhand agreements, relieved against, 209. 
 marriage brocage bonds, 210, 218. 
 contracts in restraint of marriage, 218, 214. 
 
 in fraud of the marriage, 211. 
 
 usurious, 216, 224. 
 Bq. Jur. 9'^ 
 
770 Index. 
 
 FEATJD — continued. 
 
 statute of frauds, 226. 
 
 contracts in fraud of creditors, purchasers, &o. 225 to 232. 
 
 in marriage settlements', 228, &c. 480, 481. 
 
 indebtedness alone not enough to avoid, &o. 233. 
 
 assignments, &c. 241, 466, &o. 
 
 what evidence of fraud in, 241, 242. 
 
 in subscriptions, &o. 257, 268. 
 
 vfhen prevented by injunction, 341 et aeq. See iNJirrrcTiON-. 
 rEAUDS, STATUTE OF, 
 
 agreements within, when enforced, 280, 281. 
 FEAUDULENT 
 
 conveyances, 226 et seq. See Feaud. 
 
 settlements, 229 et seq. See Feaud, Maeeiage Settlement. 
 
 assignments, 241, 242 et seq., 465 to 469. 
 
 G 
 
 GUARDIAN, 
 
 transactions of, with ward, 182, 185. 
 gifts to, by ward during guardianship, 183. 
 
 afterwards, 183. 
 allowances to, at common law, 183, 184. 
 
 the like by statute of N. T. 185, 186. 
 . gratuities to guardian by ward, 186. 
 
 when guardianship of infant female terminates, 869. 
 
 when N. Y. Life Ina. and Trust Co. may be, without giving security, 558, 559. 
 
 three kinds of guardianship at common law, 621. 
 
 guardianship by nature, by nurture and in socage, 621. 
 
 the nature of them explained, 621. 
 
 but two kinds in this state, 622, 623. 
 
 jurisdiction of surrogate, how exercised, 622. 
 
 grounds for removal, 624. 
 
 power of guardian over personal estate, 624. 
 
 over real estate, 624, 625. 
 
 to change domicil of ward, 625. 
 
 of court to change the investment, 625. 
 
 H 
 
 HABITUAL DEUNKAEDS, 
 
 proceedings against, 683. 
 
 what evidence sufficient, 684. 
 
 persons furnishing drunkard with-liquor, how punished, 684. 
 
 when commission will be superseded, 689. 
 
 commission usually su^ended first, 690. 
 
 contracts made by drunkard while commission la in full force, invalid, 691. 
 HEIE, 
 
 when compelled to perform agreement of his ancestor, 269, 2T0, 271. 
 
Index. 77I 
 
 HEIK — continued. 
 
 when chargeable with the payment of a legacy, 489. 
 
 ■when he can compel the executors to remove a charge from lands descended 
 567 to 569. 
 
 and when not, 567 to 569. 
 HEIRS EXPECTANT, 
 
 transactions with, watched with jealousy, 178, 179. 
 HYPOTHEOATIOF, 
 
 meaning of, 459. 
 
 wherein it differs from a pledge, 459. 
 
 IDIOTS, 
 
 meaning of term, 196, 673, 674. 
 
 contracts of, how and in whose favor relieved against, 195, 196, 200. 
 
 how protected and by what court, 674 et seq. See LtmAiios. 
 
 doctrine with respect to, treated, 671 et seq. 
 
 origin of the jurisdiction, 672. 
 
 meaning of the term, 673. 
 
 of persons of unsound mind, 675, to 679. 
 
 mode of taking inquisition, 681, 682. 
 
 habitual drunkards, 683. 
 
 traverse of inquisition, not of course, 676, 682, 683. 
 
 jurisdiction of committee, 684. 
 
 who should he appointed, 584, 685. 
 
 interest of idiot to be consulted in the management of his estate, 685. 
 
 allowance to kindred, when made, 685, to 687. 
 
 when inquisition will be set aside, 688. 
 
 when quashed, 688. 
 
 when a new commission will go, 688. 
 
 of discharging commission, 689. 
 
 idiots liable for personal torts, 692. 
 IGNOEANOE OE LAW, 
 
 effect of, in contracts, 62, &c. See Mistake. 
 ILLUSORY APPOINTMENTS, 
 
 former doctrine changed by law, 207, 208. 
 IMBECILITY OE MIND, 
 
 effect on contracts, 203. See "Weakness of Mnro, Idioot, LtiirAOT, Non-oom- 
 pos Mentis. 
 connected with other things, a ground of relief, 203, 204. 
 IMPLIED TRUSTS, 
 
 defined and illustrated, 598. 
 
 resulting trusts, 417, 599, 601, 603. 
 
 where the acquisition of the estate is affected with fraud, 599. 
 
 by equitable construction in the absence of fraud, 599. 
 
772 Index. 
 
 IMPLIED TKUSrS—contimied. 
 
 resulting trust the creature of equity, 600. 
 
 never raised in fraud of the law, 600. 
 
 when agent to sell becomes purchaser, converted into a trustee, 608. 
 
 trustee disabled to purchase for himself, 604. 
 
 reasons of the disability, 604, 605. 
 
 not necessary to show fraud, 605, 
 
 object is to prevent fraud, 605. 
 
 may purchase with consent 6f a court of equity, 606. 
 
 remedy is only in equity, 607. 
 
 equity of the cestui que trust with respect to such sales, 607. 
 
 rule with respect to executory contracts, 607. 
 
 purchase with notice of trusts, 608. 
 
 relation of vendor and vendee, 610. 
 INADEQUACY, 
 
 of consideration, its eflfect on contract, 20^. 
 
 what is meant by gross inadequacy, 203. 
 
 its effect on bills for specific performance, 204. See Speoifio Peefokmascb. 
 INCUMBRANCES, ' 
 
 order of paying same, 125, 448 et seq. 
 IliTDUSTEIAL 
 
 accessions, under what circumstances recoverable, 311. 
 
 and when not, 312. 
 INFANTS, 
 
 when decreed to perform agreements of their ancestor, 269. 
 
 when parent restrained, from moving out of statfe, 869. 
 allowed to receive legacy to, 558. 
 
 protected by courts of equity, 617. 
 
 father entitled to the custody of, 617. 
 
 when his right forfeited and by what acts, 617. 
 
 right of the mother, when, 617. 
 
 in what manner the right of custody is examined, 618. 
 
 habeas corpus, when proper, 618. 
 
 testamentary guardian, by whom made, 620. 
 
 right does riot extend to natural children, 621. 
 
 three kinds of guardians at common law, 621. 
 
 two kinds in this state, 622. See GtrAEDiAN. 
 
 right to maintenance, when, &c. 628. See Maintenano6. 
 
 when real estate to be sold for, 629. 
 INJUNCTION, 
 
 meaning of the term, 341. 
 
 different kinds, 841. 
 
 when the granting of, rests in discretion and when not, 841, 34-2v 
 
 never granted against persons not parties, 842» 
 — - nor unless prayed for in complaint, S42. 
 
 nor till the complaint is filed, 842. 
 
Index. 773 
 
 ISJJmO'nO^—eontmued. 
 
 difference in the Englisli practice between common and special injunction, 842. 
 
 in this state all are special, 342., 
 
 vyrit of injunction abolished, and injunction hj order substituted, 842. 
 
 preliminary, what and when granted, 343. 
 
 when should be prayed for in the complaint, 343. 
 
 to stay proceedings in other courts, 345. 
 
 opposition thereto by Lord Ooke, 345. 
 
 in what stage of a cause granted, 346. 
 
 when granted in favor of a surety, 346. 
 
 grounds of the jurisdiction over suits at law, 247. 
 
 not granted when remedy at law perfect, 84T. 
 
 nor when plaintiff lost his defense by his own negligence, 348, 852. 
 
 not granted against the proceedings in the courts of another state, 348. 
 
 nor against proceedings in U. S. courts, 348. 
 
 statutory restrictions in N. T., 348, 349. 
 
 when bail is required and when not, 349, 350. 
 
 When deposit of money required and when not, 349, 350. 
 
 provisions of the code with respect to, 851. 
 
 when defense at law lost by accident, 353. 
 
 ■ lost by fraud of the other party, 353. 
 
 for newly discovered evidence, 357. 
 but not, if remedy at law be adequate, 357, 358. 
 to restrain the transfer of bills or notes, 358, 859. 
 ground of the jurisdiction, 859. 
 when note void on its face, or only by matter dehors^ rnle with respect to, 
 
 360. 
 to deliver up deeds, &c. 861. 
 
 not granted to restrain the publication of a libel, 361. 
 nor to restrain collection of a tax, unless the assessment be void, 362. 
 to restrain sale of real estate, 362. 
 the sailing of a ship, 362 
 the transfer of stock, '362, 363. 
 the sale of personal property, 362, 363. 
 to compel the delivering up of chattels, 865 to 866. 
 to restrain the wasting of assets, 367. 
 ground of the jurisdidtiOnj 368. 
 enjoyment of property protected by, S64. 
 parent restrained from moving Ms child, 369. 
 Infant ward from marrying, 369. 
 to prevent waste and trespass, 369 et seq. 
 by and against what parties granted, 879, 880.- 
 to restrain trespasses, 381j 
 
 infringement of patents, 383. 
 
 violation of copyrights, 383. 
 
 the unauthorized publication of letters, 383. 
 
 nuisances, public or private, 388, 
 
774 Index. 
 
 mjTTSCTlO'N—aonUmied. 
 
 purprestures, 388, 398. 
 
 protect ancient lights, 394 to 397. 
 
 restrain corporations, 397. 
 
 to prevent erection of wharves and bridges, 399, 400. 
 
 to restrain multiplicity of suits, 401. 
 
 to quiet possession, 401. 
 
 to repress vexatious litigation, 401. 
 
 to prevent pirating trade-marks, 403, 404. 
 
 to prevent disclosing secrets, &c. 407. 
 not granted to restrain building a railroad in a street, 402. 
 not to prevent the reasonable use of one's property, 402. 
 right to injunction lost by delay, 404. 
 when it must be applied fqr by the attorney general, 406. 
 to prevent trustee from violating his duty, 472. 
 INQUISITION-, 
 
 of lunacy, presumptive evidence of insanity, 199. 
 when suspended, lunatic may make will, 199, 690. 
 INTENTION, 
 
 how sought, 490, 497. 
 
 carried out, if consistent with rules of law, 568. 
 of donor of a charity, how ascertained, 590. 
 INTEEPLEADEE, 
 
 nature of the remedy, 313. 
 summary remedy by code, 313. 
 no objection that one claim is equitable, 316. 
 when will not lie between landlord and tenant, 316. 
 or principal and agent, 316. 
 or attorney and client, 316. 
 reasons of the rule, 317. 
 
 in what oases attorney may interplead his client, 318. 
 in strict bill of interpleader, nature of the claim, 318. 
 a party claiming a beneficial interest in the subject cannot interplead, 319. 
 by filing the bill plaintiff admits title as against himself, 320. 
 what bill must show, 320. 
 
 when bill in nature of a bill of interpleader lies, 321. 
 to what decree plaintiff entitled, 321. 
 ' when cause will be decided without a reference, 822. 
 costs usually chargeable to the fund, 821. 
 bill of interpleader not much favored, 223. 
 INSUEANOE, 
 
 policies of, when relieved against, 167. 
 
Index. 775 
 
 JETTISON, 
 
 meaning of the term, 121. 
 
 in -what cases contribution takes place in, 122. 
 
 principle of the rule, 122. 
 JOINT DEBTOBS, 
 
 transactions between, 191, 192. 
 
 when agent for each other, 192. 
 
 notice to one notice to all, 191. 
 
 estate of deceased joiht debtor cannot be reached, without showing the in- 
 solvency of the survivor, 193. 
 
 the rule otherwise in England, 192, 193. 
 JUDGMENTS, 
 
 relieved against for fraud, 161 to 164, 353. 
 
 but not for irregularity, 163. 
 
 nor when suflFered to be taken by neglect, 161. 
 
 postponed to a prior unrecorded mortgage, 255, 438. 
 
 rule under the revised statutes, 439. ' 
 
 when relieved against as contrary to equity, 353. 
 
 when relieved by motion in same court, 356. 
 
 when by action, 356, 357. 
 
 L 
 
 LAND, 
 
 when sale of, restrained by injunction, 362. 
 
 contracted for, descends to the heir, 567. 
 
 when treated as money, 298, 299. 
 LANDLORD AND TENANT, 
 
 transactions between, 189. 
 
 when covenants between, will be specifically enforced, 278. 
 
 when restrained from violating, 278. See Injunotioit. 
 
 when allowed to interplead, and when not, 318, 319. 
 
 doctrine of waste with respect to, 373, 374. 
 
 LAPSE, 
 
 in what cases legacies lapse by the death of legatee Ufore the testator, and 
 
 when not, 508 
 
 not affected by words of limitation, 510. 
 
 may be prevented by express words, 510, 511. 
 
 a legacy to a child or other descendant does not lapse on death of legatee, 
 by statute, 511, 512. 
 
 legacy to two or more jointli/, does not lapse on death of one, but the sur- 
 vivor takes, 512. 
 
 otherwise, when given to tenants in oommon, 512. 
 
 when it happens by death of -legatee after the death of testator, 518, 514. 
 
 vesting of interests favored, 518. 
 
776 ' Index. 
 
 LAPSE — continued. 
 
 when time of payment annexed to the gift, death of legatee before, occa- 
 sions a lapse, 515, 516. 
 
 what circumstances vary the rule, 51T. 
 
 ■when legacy payable out of real estate only, how the rule is varied, 517, 618. 
 
 the reason of the rule, 518. 
 
 how varied by express intention, 520. 
 
 when legacy payable out of a mixed fund of real and personal, 5^0, 521. 
 LEGACY, 
 
 payable at a future day, how secured, 331. 
 
 of personal chattels for life, 330. 
 
 when and how charged on real estate, .487, 488. 
 
 when charged by implication, 489. 
 
 how enforced, 489. 
 
 purchaser of land, charged with notice, 489. 
 
 liable to pay the legacy, 489. 
 
 when purchaser ohargable with notice, 489. 
 
 when estate devised on condition to. pay legacy and the devjsee declines ac- 
 cepting the estate, the legatee's remedy is in equity alone, 489. 
 
 construction of, rules, 490. 
 
 intention, how sought, 490. 
 
 grounds of equity jurisdiction over, 498. 
 
 how defined, and wherein it differs from devise, 498. 
 
 by what courts payment enforced, 499. 
 
 when an action at law lies for ^ame, 500. 
 
 to a married woman, on what terms husband allowed to recover it, 501. 
 
 different kinds of legacies, 502. 
 
 general, specific, 502 to 505. 
 
 absolute and conditional, 502 to 504. 
 
 demonstrative, 502 to 504. 
 
 vested and contingent, 502, 507, 508. 
 
 when it lapses on death of legatee hefore the testator, 608. 
 
 and when not, 508. 
 
 when by creditor to his debtor, a release, 509. 
 
 how lapse affected by Words of limitation, 510. 
 
 by direct words that it shall not lapse, 510. 
 
 how far controlled by the expressed intention, 511. 
 
 to a child or descendant, no lapse, 511, 612. 
 
 to two or more jointly, does not lapse on death of one, but the survivor 
 takes the whole, 512. 
 
 otherwise, when given to several in common, 612. 
 
 when legacy due, when no period fixed, 512. 
 
 when to one for life, remainder over, on death of tenant for life before tho 
 testator, remainder takes effect, 513. 
 
 when it lapses by death of legatee after the death of the testator, 618, 514. 
 
 rules of the civil law in this respect, 513. 
 
 court favors a vesting of interests, 618. 
 
Index. 7t7 
 
 LEGACY — continued. 
 
 when time of payment is annexed to the gift, death of legatee before it ar- 
 rives oocasions a lapse, 515, 616. 
 
 ■what circumstances vary the rule, 517. 
 
 when payable out of real estate only, how varied, 517, 518. 
 
 the reason of the rule, 518. 
 
 how varied by express intention, 520. 
 
 payable out of a mixed fund of real and personal, rule, 520, 521. 
 
 absolute and conditional, 522. 
 
 no precise words necessary to make a condition, 523, 527. 
 
 imposing restrictions on marriage, 525. 
 
 if condition precedent be impossible to perform, 528. 
 
 if condition subsequent be impossible, 528. 
 
 if condition precedent be illegal, 528. 
 
 if it requires to do an act malum in se, 528. 
 
 in restraint of marriage, when good and when not, 629 to 531. 
 
 conditions repugnant, void, 533. 
 
 rule as to performance of condition, 534. 
 
 to executor for care and pains, 535. 
 
 presumption with respect to, 535. 
 
 failing to comply with the condition, 636. 
 
 not regarded as a debt, 536. 
 
 when apportioned, 537, 538. 
 
 wh«n obtaining probate not suflBcient acceptance of the trust, 538, 639. 
 
 when cumulative and when not, 639, 540. 
 
 when legacy a satisfaction of a debt, 542, 543. 
 
 when satisfied by testator in his lifetime, 543. 
 
 doctrine of election with respect to, 544, ggg Election. 
 
 abatement of, and to whom payable, 656 et seg. See Abatement. 
 
 general, when it abates, 556. 
 
 to whom payable, 558. 
 
 when to parent for infant, 568. 
 
 when to husband, 659. 
 
 when to married woman, 669. 
 
 in- what courts enforced, 560. 
 
 when given to a charity, Imitation as to amount, 570. 
 LETTERS, 
 
 publication of, restrained by injunction, 885, 386, 
 
 ground of the jurisdiction, 885. 
 LETTERS PATENT, 
 
 when relieved against in equity, 165. 
 LEX LOCI 
 
 governs in marriage contracts, 482. 
 LIEN, 
 
 moaning of the term, 123. 
 
 possession necessary to a lien on goods, 123. 
 
 not so in maratime a&irs, 123. 
 IIq. Jvr. 98 
 
778 Index. 
 
 LIEN' — eontiimed. 
 
 rnlo as to, in equity, 128. 
 
 sustained in equity when not at law, 124. 
 
 in favor of puvchaster of land, for purchase money, 124. 
 
 T/rheu factors and agents have, 124. See Faotob and Agent. 
 
 of vendor, for purchase moneiy, 301, 443. 
 how taken away, 443. 
 judgments, from what tim^ 438. 
 
 equitahle, how enforced, 439, 440. , 
 by deposit of title deeds, 440. 
 
 equitable mortgage, 441, 462. 
 
 how lien for purchase money enforced, 443. 
 LmiTATIOir 
 
 of actions, part payment by one of several joint debtors does not revive the 
 debt, except as against party paying, 728. 
 LIS PENDENS, 
 
 what it is, and when it operates as notice, 251. 
 
 reasons of the rule, 252. 
 
 New-York statute on the subject, 252. 
 LITEEARY PROPERTY, 
 
 in what court protected, and how, 384 to 888. 
 LUNACY, 
 
 what constitutes, 194 to 196. 
 
 what capacity essential to a contract, 201. 
 
 effect on capacity to make a will, 199, 200. 
 
 commission of, its effect on same, 200. 
 
 effect of suspending same, 200. 
 
 what acts relieved against, 200. 
 
 who appointed committee, 684, 690. 
 
 remedy of creditors agains't lunatic, 691. 
 
 lunatic liable for personal costs, 692. 
 
 contracts made by party under a commission, invalid, 691. 
 LUNATICS, 
 
 when decreed to perform agreements of their ancestor, 270, 271. 
 
 meaning of the term, 673. 
 
 persons of unsound mind, 675 to 679. 
 
 mode of taking inquisition, 681, 682. 
 
 habitual drunkards, 688. 
 
 traverse of inqaisiton, not of course, 676, 682, 688. 
 
 jurisdiction of committee, 684. 
 
 who should be appointed, 684, 685. , 
 
 ■frhose interest to "be consulted in managing estate, 685. 
 
 allowance to kindred, when proper, 686, 687. 
 
 inquisition, when quashed or set aside, 688, 
 
 when suspended in whole or in part, 690. 
 
Index. Y79 
 
 M 
 
 MAINTENANCE, 
 
 obligation of parents ■with respect to, 626. 
 
 power of court over, 626. 
 
 from what fnnd to be granted, 62T, 628. 
 
 ■when principal of infant's estate may be taken, 627. 
 
 ■when for past maintenance, 627. 
 
 liability of husband as to wife's children, 629. 
 
 of wife to support children of a former marriage, 629. 
 
 sale of infants' estates by statute, C29. 
 MANUSCRIPTS, 
 
 unauthorized publication restrained by injunction, 385. 
 MARRIAGE, 
 
 brocage bonds, 210. 
 
 frauds on, 210 to 213. 
 
 conditions in restraint of, void, 215. 
 
 legacy on condition of consent to, 215, 216. 
 
 of ward, without consent, how punished, 369. 
 
 consent of court, when necessary, &c. 633. 
 
 effect of, on capacity of wife to contract, 473. 
 on her property, real and personal, 47, 473. 
 
 a meritorious consideration, 488. 
 
 of infants, doctrine with respect to, 630 to 632. 
 
 nsual settlement ordered on, 633. 
 MARRIAGE SETTLEMENTS, 
 
 when presumed to be fraudulent, 228, &c. 
 
 cases of, considered, 228 to 230. 
 
 effect of indebtedness of settlor on, 233, 234. 
 
 rule in N. Y. 233. 
 
 of trusts in, 472 et seq. 
 
 object of, 473. 
 
 strict settlement, what, 473, 475 
 
 by whom made, 474. 
 
 before marriage, 478. 
 
 words necessary to create a trust, 477. 
 
 intervention of trustees not necessary in, 479. 
 
 frauds in, effect of, 480. 
 
 rights in, governed by lex loci, 482. 
 
 voluntary, by a person indebted, when void as against creditors, 483. 
 MARRIED WOMEN, 
 
 legacy to, to whom payable, 559. 
 
 of protection of tie court to, 634. 
 
 treated as/e?rees sole by courts of equity, 634. 
 
 control over her property, 634. 
 
 equity of wife to a provision out of her own property, 635 to 640. 
 
 not confined to cases where husband is plaintiff, 636. 
 
780 Index. 
 
 MARRIED WOMM— continued. 
 
 right may be actively enforced by her, 636. 
 
 her equity binding on the husband and those succeeding to him, 637. 
 
 her children no equity but through her, 637. 
 
 it is personal to her, 638. 
 
 the amount of her property to be settled, 638, 639. 
 
 her equity may be waived, 639. 
 
 how barred by a settlement, 639. 
 
 in case wife a ward of court, 64, 639. 
 
 effect of acts of 1848 and 1849, considered, 640 et seq. 
 
 may convey her real property without uniting in a deed with her husband, 
 644. 
 
 how treated as a, feme sole as to contracts, 645, 646. 
 
 separate property of, 647, 648. 
 
 may mortgage separate property for husband, 648. 
 
 may become surety, when, 649. 
 
 in what way charge her separate estate, 651. 
 
 what meant by separate estate, 653, 653. 
 
 maintenance of wife, when decreed, 653. 
 
 divorces, 654. See DrvoEOE. 
 
 alimony, 664 to 668. 
 
 when her property restored to her on divorce, 669. 
 
 custody of children on divorce, 670. 
 MARSHALING 
 
 of assets, 561 et seq. See Adminibtkatok, Assets. 
 
 securities, doctrine of, 337. 
 
 applies only when plaintiff and defendant are creditors of a common debtor, 
 338. 
 
 never enforced to the prejudice of third persons, 339. 
 MAXIMS 
 
 of equity, 44 to 49. See Eqihtt. 
 
 things agreed to be done, treated as if done, 298, 299, 567. 
 
 when and between what parties, 298, 299, 567. 
 MENTAL WEAKNESS, 
 
 when ground of relief, 194, 195 et seq. 
 
 rule at law and in equity as to, 195. 
 
 with respect to deeds, 196. 
 MERGER, 
 
 when equitable estate merged in legal, 425. 
 
 in what cases kept distinct, though in the same person, 425. 
 MISDESCRIPTION, 
 
 when a bar to an action for specific performance, 295, 296. 
 MISTAKE, 
 
 definition of, 69. 
 
 mistake or ignorance of law not relievable, 69, 60. 
 
 no distinction between ignorance of the law, and miataki. of the law, as to 
 remedy, 62. 
 
Index. 781 
 
 MISTAKE— cowtrnwecZ. 
 
 money paid, with full knowledge of the facts, cannot be recovered back, on 
 
 the ground of mistake, 62. 
 Chancellor Kent's opinion, 63. 
 Judge Bronson's opinion, 63. 
 Chancellor "Walworth's opinion, 64. 
 
 ignorance of the law, has reference to the law of one's own country, 64. 
 a man is not presumed to know the law of another state, 64. 
 as to wrong advice as to the law, 65, 66. 
 
 as to mistake or ignorance of law, mixed with surprise, misplaced confi- 
 dence, &o. 66, 67. 
 a comproinise of a doubtful right, not relieved against, 68. 
 every man is presumed to know the law, 68. 
 mistahe or ignorance of fact relievable, 69. * 
 
 fact must be material, and party asking relief must apply without delay. 69. 
 case of mutnal mistakes, 69. 
 mistake as to the existence of a mine, 69. 
 a receipt given by mistake, relievable, 70. 
 
 a payment by misttake of a satisfied mortgage, may be relieved against, 70. 
 to entitle the party to relief, the fact must be material, and the ignorance of 
 
 it not the result of negligence, 70. 
 the fact, if known to the other party, is not a ground of relief, unless he 
 
 was bound to communicate it, 71. 
 if both parties are equally innocent, no relief, 71. 
 , no relief for mistake of judgment as to value, 72. 
 but granted as to mistake of quantity, 73. 
 and mistake as to subject matter, 73. 
 parol evidence competent to show mistake in written contract in an action 
 
 to reform it, 73, 300. 
 deed absolute may be shown to have been intended for a mortgage, 74, 77. 
 mistakes by arbitrators, 77. 
 when legal rights of parties have been changed by mistake, equity restores 
 
 them, 78. 
 decrees and judgments when mistakes in, corrected, 77, 78. 
 no diflFerence, if mistake occasioned by the party himself, 79. 
 specific performance not decreed against purchaser at auction, who bids under 
 
 mistake as to lot put up, 79. 
 less danger in correcting mistakes in written than oral contracts, 79, 
 mistake in wills, when corrected, 80, 82. 
 as to person of legatee, 80, 81. 
 as to subject of bequest, 82. 
 relief in case of defective execution of powers, 83. 
 not as to non-execution of powers, 83, 
 ignorance in matters of law, not relieved, S3, 
 rule in New-York as to mistake in powers, 84. 
 when an excuse for performing an agreement, 288. 
 
782 Index. 
 
 MONEY, 
 
 agreed to be laid out in land when treated as land, 298, 299. 
 
 bequeathed to be so laid out, how treated, 299. 
 MORTGAGE, 
 
 of chattels, relieved against when fraudulent, 241. 
 
 non-delivery of possession, badge of fraud, 241. 
 
 New-York cases on, reviewed, 241, 242 et seg. 
 
 ditinotion between sales and mortgages, 244. 
 
 when and where to be-reoorded, 245. 
 
 object of the record, 243. 
 __^ foreclosure of, 455 to 457. 
 
 when good without delivery, 456, 457. 
 
 of real estate, to be recorded in separate books from deeds, 254. 
 
 if improperly recorded, not notice, 254. 
 
 if not recorded, it is preferred to a subsequent docketed judgment, and why, 
 255, 435. 
 
 effect of the law of tacking, 255, 434. 
 
 if incorrectly recorded, only notice to the extent of the record, 254. 
 
 when equitable merged in legal estate, 425. 
 
 nature of mortgage, considered, 426. 
 
 meaning of, at this time, 428. 
 
 equity of redemption, what, 427. 
 
 mortgagee a trustee, 427. 
 
 need not contain a covenant to reconvey, 429. 
 
 nor a covenant to pay the debt, 430. 
 
 absolute deed may in equity be shown to be a mortgage by parol, 429. 
 
 not so in a court of law, 429. 
 
 no implied covenant in, 430. 
 
 power of sale not necessary, 430. 
 
 an absolute deed, if intended as a mortgage, should be recorded as such, 430. 
 
 not enough to record it as a deed, 431. 
 
 purchaser with notice bound by unrecorded mortgage, 431. 
 
 creditors may impeach it by parol, 431, 432. 
 
 deed and defeasance treated as one instrument, 432. 
 
 no reconveyance necessary on payment of mortgage, 433. 
 
 how discharged on payment, 433. 
 
 estate of mortgagor liable to dower, &o. 433. 
 
 except on an instantaneous seisin, 434. 
 
 may be sold on execution) 438. 
 
 mortgagor treated as owner till foreclosure, 433. 
 may cut timber, 484. 
 rule as to growing crops, 434. 
 
 by deposit of title deeds, 434, 435, 440, 441. 
 
 for future advances, 436, 437. 
 
 for consideration money, has preference, 437. 
 
 priority under recording act, 438. 
 
 effect of tender on lien of, 442. 
 
Index. 783 
 
 MORTGAGE— eflwiinwea!. 
 
 equitable, postponed to creditgrs without notice, 441. 
 agreement to give a mortgage, effect of, 442. 
 tender of the amount due, effect of, 442. 
 interest of mortgagee before foreclosure, 444. 
 
 of mortgagee in possession, 445. 
 
 his rights and duties, 445, 446. 
 redemption, equity of, 447, 448. 
 remedies of mortgagee, 449, 450. 
 modes of foreclosure, 450. 
 
 strict foreclosure, when it extinguishes the debt, 450. 
 in what cases it amounts to a discharge of the debt, 451. 
 concurrent remedies of mortgagee, 451. 
 mode of foreclosure, 451, 452. 
 order of payment and distribution of surplus, 453. 
 paying off liens, 454. 
 
 by whom payable as between heir and executor, 567. 
 the primary fund of the creditor, 567. 
 
 N 
 NEW TRIAL, 
 
 in what oases bill for, will lie, 357. 
 NON-GOMPOS MENTIS, 
 
 what constitutes, 195, 196. See Lttuaot. 
 
 contracts of, when void and voidable, 195. 
 
 by whom they may be avoided, 195. 
 
 what capacity essential to a contract, 201. 
 NOTICE, 
 
 to one partner, notice to all, 191. 
 
 its effect on purchasers, 249. 
 
 to agent or attorney, notice to principal, 249, 250, 608. 
 
 qualification of the rule, 250, 351, 608. 
 
 when persons dealing with agent chargeable with notice of his instructions, 
 250, 608. . 
 
 possession of real property is notice, 251. 
 
 so possession of tenant, 251. 
 
 under the recording laws, 258, 254. 
 
 record of deeds, &c. not notice of collateral facts, 256. 
 
 of assignments, 460. 
 
 purchaser without notice, from a fraudulent purchaser, 608. 
 
 a purchaser with notice, from a purchaser without notice, 608. 
 
 when notice to the attorney must be in the same transaction, and when 
 good without, 609. 
 NinSANOE, 
 
 public or private, 388. 
 
 restrained by injunction, 888 to 892. 
 
 injunction must be applied for by attorney general, when, 406. 
 
784 Index. 
 
 
 
 OBSERVATOET, 
 
 trusts in favor of, allowed, 417. 
 ORDER, 
 
 upon a fund, when an equitable assignment, 463. 
 
 when an assignment in full, and when pro tanto, 463. 
 ORNAMENT, 
 
 waste to out down trees planted for, 372. 
 
 what are deemed such, 372. 
 
 PAROL EVIDENCE, 
 
 inadmissible to contradict a written agreement, when, 386. ' 
 
 when admissible m equity to show a deed a mortgage, 429. 
 
 not admissible at law, 429. 
 PAROL RESCISSION 
 
 of contract a bar to an action for a specific performance, 289. 
 PARTIES, 
 
 •when numerous, how to proceed, 326, 327. 
 
 in case of assignments, 462. 
 PARTITION, 
 
 what estates at common law held in common, and the remedy for partition, 
 699. 
 
 advantages of remedy in equity, 701. 
 
 compensation, when made for equality of partition, 701, 702. 
 
 when a sale of premises is ordered, 708, 704. 
 
 when a servitude may be charged on one of the shares, 704. 
 
 when title is doubtful, 704. 
 
 of an equity of redemption, 704. 
 
 when the plaintiff's portion may be set off, and the defendants' portions ag- 
 gregately, 705. 
 
 when compensation will be decreed for equality, 705. 
 PARTNERS, 
 
 accounts between, 101, 104. 
 
 each partner agent for his companion, 190. 
 
 may release a debt due the firm, 190, 717. 
 
 a release to one, good as to all, 190. 
 
 notice to one, notice to all, 191. 
 
 effect of promise by one, on statute of limitations, 191, 728. 
 
 when estate of deceased partner may be reached, 193. 
 
 transactions between, how viewed, 193. 
 
 residuary interest of, can be reached by creditor, 239. 
 
 executors of deceased partner restrained from using the partnership name, 
 in what cases, 403. 
 
 joint tenants of the stock, 707. See Paetneeship. 
 
Index. 785 
 
 PARTNERSHIP, 
 
 ground of the jnrisdioti-on, 706. 
 
 joint tenants of the stock, 707. 
 
 effects of partnership a trust fund, 708. 
 
 ■what constitutes a partnership, 708, 709. 
 
 when real estate held in partnership, 710, 711. 
 
 separate creditors of partner no right to partnership property till joint debts 
 paid, 712. 
 
 •where persons liable by holding themselves out as partners, 781. 
 
 limited or special partnership under the statute, 713 to 716. 
 
 mode of forming it, and liability of the partners, 713, 714. 
 
 in case of insolvency, 715. 
 
 in whose name business done, 715, 716. 
 
 how dissolved, 715, 717. 
 
 partnership may be formed by parol, 716. 
 
 one partner may release a debt, 717. 
 
 dissolved by death, insanity, or bankruptcy, 717. 
 
 by marriage of a, feme sole, 717. 
 
 by breaking out of war between two countries, where the members become 
 subjects of hostile governments, 717. 
 
 by assignment by one partner, 718. 
 
 in what way partnership continues after dissolution, and for what purposes, 
 718. 
 
 right of surviving partner to carry on the business, 718. 
 
 with respect to third persons after dissolution, what notice necessary, 718. 
 
 how effects are applied in oases of insolvency, 719. 
 
 where administering their own funds, copartnership creditors no lien, 719. 
 
 how, in case of insolvency, 719. 
 
 if surviving partner insolvent, equity holds the estate of th« deceased liable, 
 719. 
 
 on execution Against one partner, how and to what extent partnership prop- 
 erty sold, 720 to 724. 
 
 rule in England, ,721. 
 
 rule in N". Y. 722, 723. 
 
 sale of a special interest in property, 725. 
 
 how, on sale by execution against pawnee, 725. 
 
 how, with respect to delivering possession, 726. 
 
 on dissolution of partnership, relief in equity, when necessary, 727. 
 PART OWNERS, 
 
 bound to good faith towards each other, 193. 
 
 transactions between, 198. 
 PART PERFORMANCE, ^ 
 
 when it takes the case out of the statute of frauds, 282, 283. 
 
 principle on which the doctrine rests, 283 et leq. 
 
 what acts amount to, 284 to 286. 
 
 pa/rtial payment not such act, 284. 
 
 payment in full is such act, 284, 285. 
 Eq. Jub. 99 
 
786 Index. 
 
 PARTY VALL, 
 
 ■where equity compels making or repairing same, 115, 115. 
 PATENTS, 
 
 infringement of, restrained by injunction, 383. 
 PAYMENT, 
 
 how appropriated, and by -whom, 92 to 100. See Appeopkiation of Pat- 
 
 MENTS. 
 
 rule of civil law, 94 et seq. note. 
 
 effect of part payment by one of two or more joint debtors, on statute of 
 limitation, 191, 728. 
 
 of judgment, remedy of defendant on, 362. 
 PEACE, 
 
 bills of, 323. See Bills op Peace. 
 PENALTIES, 
 
 relief against, and the ground thereof, 55. 
 
 not relieved against, when damages stipulated, 66. 
 PERSONAL ESTATE, 
 
 the primary fund to pay debts and legacies, 564, 
 PIOUS USES. See Ohakitibs, 669. 
 PLEDGES, 
 
 wherein they differ from a mortgage, 456. 
 
 what essential to, 456. 
 
 pledgee may call on pawnor to redeem, 456. 
 
 for future advances, 455. 
 
 of property not capable of manual delivery, 458. 
 
 interest of pawnor liable to execution, 725, 726. 
 
 but possession not delivered to purchaser till he redeems, 726. 
 POLICIES OF INSURANCE, 
 
 relieved against in equity for fraud, 167, 168. 
 POSSIBILITY, 
 
 when assignable and when not, 461. 
 POSSESSION 
 
 in vendor after sale, evidence of fraud, 241, 242, &c. , 
 POST OBITS, 
 
 when relieved against, 180, 181. 
 POWERS, 
 
 mistakes in, relieved, 83, 84. 
 
 defective execution supplied, 84. 
 
 when a trust power is imperative, 84, r^ 
 
 illusory appointments, 207, 208. 
 
 to sell land by will to pay debts, authorizes a mortgage for the same pur- 
 pose, 486. 
 PRINCIPAL AND AGENT, 
 
 transactions between, 189, 190. See Agent. 
 
 cannot interplead each other, 316. 
 PRINCIPAL AND SURETY See Stobtt and Paktnehs, 190. 
 
Index. 787 
 
 PURCHASER, 
 
 with notice of a trust, becomes a trustee, 249, 608. 
 
 from one who had not noti,oe, may be protected, 249, 608. 
 
 reason of the rule, 249, 608. 
 
 information sufficient to excite inquiry, when notice, 249. 
 
 of real estate, chargeable with notice of party in possession, 251. 
 
 chargeable with notice of Us pendens, 282. 
 
 what necessary to constitute a lonajide purchaser, &o. 256. 
 
 what title may be insisted on by, 295, 296. 
 
 with notice of a contract by his vendor to sell, may be compelled to perform 
 it, 298, 301, 302. 
 
 from an executor, knowing that he sells in violation of his trust, is liable, 
 569. 
 PURPRESTURE, 
 
 what constitutes, 398. 
 
 wherein it differs from' a nuisance, 398. 
 
 how restrained and when, 398, 399. 
 
 Q 
 
 QUIA TIMET, 
 
 in what cases it lies, 303, 328. See Bills Qota Timet, Reobitbe. 
 
 R 
 
 RAILROAD, 
 
 in a street, not per se a nuisance, 402, 406. 
 
 nor is it a purpresture, 406. 
 RECEIVER, 
 
 when appointed, 333. 
 
 how treated at common law, 332. 
 
 at what time the appointment vests property, 332. 
 
 power under the New- York statutes, 383. 
 
 may bring actions in his own name, 333, 336. 
 
 his appointment does not affect priority of liens, 334. 
 
 protected by court when acting by its order, 334. 
 
 otherwise, not, 335. 
 
 when property is in the hand of a third person, duty of receiver with re- 
 spect to, 335. 
 
 his possession, when protected, 335. 
 
 represents the creditors, 336. 
 
 may attack a fraudulent assignment, 387. 
 
 when treated as a trustee, 418. 
 RECORDING LAWS, 
 
 general object of, 253, 254. 
 
 when the record operates as notice, 253, 254. 
 
 to what extent notice, if the record differs from the original, 254. 
 
788 Index. 
 
 RECORDING LAWS— <!0»<«»«ed 
 
 if record be defective, 254. 
 
 unrecorded mortgages preferred to a subsequent docketed judgment, 255. 
 
 record not notice of collateral facts, 256. 
 EEOOUPMENT, 
 
 origin of the doctrine of, 354. 
 • when admissible as a defense, 354, 855, 
 
 when lost if not used in time, 365. 
 REDEMPTION, 
 
 equity of, how enforced, 44T, 448. 
 
 as to amount to be paid, 448, 449. 
 
 by judgment creditor, what bound to pay, 449. 
 
 by pawnor of a pledge, 456. 
 RE-EXECUTION 
 
 of agreements, doctrine of, 300, 301. 
 RELEASE, 
 
 relieved against when obtained by fraud, 168. 
 
 to guardian, when set aside, 183. 
 
 to one of two or more joint debtors, its effect, 190. 
 
 by one partner, &c. its effect, 190. 
 RELIGIOUS CORPORATIONS, 
 
 how formed, and what trusts they may execute, 734 to YS6, and note. 
 
 bound to perform conditions, 736. 
 
 the trustees alone incorporated, 736 to 738, note. 
 
 the congregation is not incorporated, 738. 
 REMAINDER, 
 
 doctrine of, at common law, 476. 
 
 how, under revised statutes, 476. 
 RENT, 
 
 what it is, 127. 
 
 when recoverable in equity, 133 to 136. 
 
 when apportioned, 127. 
 
 when lost by eviction, 128. 
 
 when the land charged with rent is sunk, there is no apportionment, and 
 rent is lost, 137. 
 
 if land be burnt with ilre, rent is payable, 137. 
 
 if deed be lost equity will entertain jurisdiction for rent, 134. 
 
 relief not given to a landlord who is enforcing a forfeiture at law, 135. 
 RESCISSION, 
 
 of contract by parol, when a bar to an action for specific performance, 289. 
 
 action to rescind contract by vendee, 290. 
 
 when granted, 302. 
 
 ground of the equity to relief, 303, 306. 
 RESULTING TRUSTS. See Trusts. 
 
 abolished by revised statutes, except, &c. 417, 599. 
 
 how proved and disproved, 600, 602. 
 
Index. , 789 
 
 S 
 
 SALVOES, 
 
 meaning of the term, 123. 
 
 in what oases applicable, 123. 
 SATISFACTION 
 
 of mortgages, how obtained, 449. 
 
 when legacy amounts to, 542. 
 
 when satisfied by testator in his lifetime, 643. 
 SEQUESTRATION, 
 
 of effects of a corporation, when obtained, 750, 751. 
 
 how obtained, 750, 751. 
 SHIP, 
 
 when sailing of, restrained by injunction, 862. 
 SOCIETIES, 
 
 charitable, when allowed to take by devise or bequest, 576. 
 SOLICITOR AND CLIENT, 
 
 transactions between, how viewed, 171, 172. 
 
 how with respect to matters not in litigation, 174. 
 SPECIFIC PERFORMANCE, 
 
 in what cases granted, 260, 262. 
 
 not granted on a gratuitous promise, 263. 
 
 inadequacy of consideration, when a defense, 263, 265. 
 
 rule in this state, 266. 
 
 no defense in auction sales, 265. 
 
 when inadequacy is gross, 264. 
 
 what required of a party seeking a specific performance, 264. • 
 
 character of the agreement to be enforced, 267, 271. 
 
 want of mutuality and the exception, 267. 
 
 must be fair and just in all its parts, 267, 268. 
 
 not a hard and unconscionable bargain, 268, 
 
 infants decreed to execute agreements made by their ancestoi", 269. 
 
 lunatics decreed to perform agreements by their ancestor, 270, 271. 
 
 agreements relative to personal property, when decreed to be enforced, 271 
 to 276. 
 
 when enforced as to stock, 271, 272. 
 
 when as to contracts, 272, 278. 
 
 agreements as to personal acts, 276 to 279. 
 
 grounds of the jurisdiction, 276. 
 
 agreements as to land, 279. 
 
 agreements within statute of fraud, 280, 281. 
 
 when refused, 271, 272. 
 
 when remedy not mutual, 267, 274. 
 when bargain is unconscionable, 268. 
 if bargain is uncertain, 268. 
 
790 Index. 
 
 SPECIAL PEEFORMANCE— (!o»<mM«a!. 
 if it be an illegal contract, 268. 
 if consideration is inadequate, 268. 
 if its performance becomes impossible, 268. 
 if it is tainted with fraud, 268. 
 if remedy at law adequate, 268. 
 if agreement be gratuitous, 263. 
 if title be defective, 296. 
 if plaintiff is in fault, 297. 
 wbeu part performance will entitle party to relief, 283 et aeq. 
 when parol rescission a bar, 289. 
 when waived by parol, 289. 
 
 when decreed with compensation for defects, 290, 291. 
 bill will not lie for compensation alone, 291. 
 party seeking performance must be ready, 291, 292. 
 not negligent, &c. 292. 
 when time is material, 292 to 294. 
 conditions precedent must be performed, 294, 295. 
 when contracts not within the statute, 297. 
 
 a purchaser without notice from vendor of an executory agreement to con- 
 vey to another, protected, 298. 
 a purchaser with notice, liable to complete the bargain, 298. 
 money, when treated as land, 298, 299. 
 re-execution and correction of agreements, 300. 
 SPEOIEIO LEGACIES, 
 
 general description of, 502 to 505. 
 
 do not in general abatp ratably with other legacies, 557. See LsaAOiES. 
 STIPULATED DAMAGES, 
 
 not relieved against in equity, 56. 
 STOCKS, 
 
 when transfer of restrained by injunction, 862, 368. 
 STREET, • 
 
 when public, obstruction of, a nuisance, 892. 
 SUBSCRIPTIONS, 
 
 made void by a secret agreement to refund, 257, 258. 
 the like, when invalid subscription is taken, 257, 258. 
 SUPERSTITIOUS USES, 
 
 defined, and when invalid, 596. 
 how ascertained, 696. 
 SURCHARGE AND FALSIFY, 
 meaning of the terms, 142. 
 SURETIES, 
 
 contribution between, 107. See Conteibution. 
 
 where more sureties than two, and one pays the whole, he must sue each 
 
 for contribution, 108. 
 creditor may proceed at once against surety, 108. 
 
Index. 791 
 
 BXTKEJIES—eonUnued. 
 
 may resort to equity and compel creditor to proceed against principal, 
 
 108, 327, 331. 
 mnst indemnify the creditor, 108. 
 
 a variation of the contract by the creditor discharges surety, when, 109. 
 it discharges property bound, 109. 
 giving time by creditor discharges surety, 109. 
 when surety entitled to exoneration, 109. See Exonebation. 
 difference between law and equity, 109. 
 surety entitled to the securities which the creditor has against the principal, 
 
 110. 
 entitled to be subrogated to the rights of the creditor, 111. 
 when giving time to principal discharges the surety, 111, 112. 
 a joint judgment against the sureties does not prevent the relationship as 
 
 between themselves from being proved, 113, 114. 
 whether an usurious agreement giving time will discharge surety, 114. 
 when he can be relieved for usury of the borrower, 220, 221. 
 injunction when granted in his favor, 346. 
 STJEPEISE, 
 
 meaning of the term, 205. 
 when a ground of relief, 205, 206. 
 when an objection to specific performance, 288. 
 SURK0GATE8' COURTS, , 
 
 in what cases have jurisdiction over legacies, 499. 
 the like over debts, &c. 559, 560. 
 may liquidate an equitable as well as legal claim, 560. 
 jurisdiction to appoint guardians, 622. 
 
 T 
 
 TACKING 
 
 abrogated by the recording laws in Few-York, 255, 256. 
 TAXES 
 
 paid by mortgagee, allowed to him, 446, 448. 
 TENDER, 
 
 effect of, on mortgage, 442. 
 
 TIME, 
 
 when material in actions for a specific performance, 292, 293. 
 
 and when not, 293, 294. 
 
 when not of the essence of the contract, may be disregarded, 293, 294. 
 
 but not when it is the essence of it, 294. 
 
 rule applies to both parties, 295. 
 TITLE, 
 
 what purchaser entitled to, 295, 296. 
 
 if defective, not compelled to complete the purchase, 296. 
 TOLERATION, 
 
 of all religions, does not affect the law with respect to charities, 577, 578. 
 
792 Indkx. 
 
 TRADE-MARKS, 
 
 relief against pirating, in equity, 306. 
 
 when injunction granted to prevent pirating, 403, 404. 
 TRUSTS, 
 
 definition of, 186, 412. 
 
 estates in, 186. 
 
 of what kind at common law, 409. 
 
 origin of trusts, 409 to 412. 
 
 statutory alterations of,- 412 to 416, &c. 
 
 future creation of, how far prevented, 416. 
 
 kind of trusts I'eoognized by statute, 416. 
 
 express trusts and implied trusts, 416, 425. 
 
 resulting, abolished except in favor of creditors and in cases of fraud, 417. 
 
 how proved and disproved, 600, 602. 
 
 express, when allowed, 417, 418. 
 
 when purchaser of trust estate a trustee, 418, 419, 
 
 and when not, 419, 422. 
 
 on death of sole trustee, trust vests in the court, 419. 
 
 mere formal trusts abolished, 421. 
 
 property held in trust, when liable to creditors, 421. 
 
 in what cases not assignable, 421. 
 
 invalid, vests no estate in trustee, 422. 
 
 when valid as a power, 422. 
 
 invalid trusts do not vitiate legal ones, 424. 
 
 of personal property not within the act, 423. 
 
 trusts for accumulation, how regulated, 424. 
 
 when property is bequeathed in trust, and no trustee appointed, who is 
 trustee, 424. 
 
 express trusts, executed and executory, 425. 
 
 relate to real and personal property, 425. 
 
 created by deed or devise, 425. 
 
 in mortgages, 426. See Mortgages. 
 
 in assignments, 465 et seq. See Assignments. 
 
 in marriage settlements, 472 et seq. 
 
 executed and executory, 474. 
 
 to receive rents and profits, &c. 477. 
 
 how long may accumulate, 477. 
 
 how long ownership of personal property suspended, 477. See Ligaoibs, Wills. 
 
 in wills, 488, 486. See "Wills. - 
 
 created by a (iharge to pay debts and legacies, 486. 
 
 to uphold doctrines tending to subvert the christian faith, invalid, 596. 
 
 tending to licentiousness,' or dangerous to the safety of the state, void, 596. 
 
 implied or constructive, 598. See Implied Trusts. 
 TRUSTEE, 
 
 allowances to, at common law, 184. 
 
 purchases by, of trust estate, 186, 249, 608, 612. 
 
TRUSTEE— eontinued. 
 
 right of cestui que trust with respect to, 186. 
 
 to gain no benefit by, 186. 
 
 purchase by trustee of trust estate at auction, 186, 187. 
 
 reasons why trustee shall not purchase for himself, 187, 604 to 606. 
 
 when trustee may buy from cestui, 187. 
 
 when court allows him to purchase, 187, 188. 
 
 cannot deal for his own benefit with the funds of the estate, 188. 
 
 when resignation of, accepted, 423. 
 
 in what cases rem^Dvable, 428, 470. 
 
 violation of duty ground of removal, 470. 
 
 neglect of duty ground of removal, 470. 
 
 may be compelled to do his duty, 47, 471. 
 
 not indispensable to a marriage settlement, 479. 
 
 office and duty of, 611, 612, &o. 
 
 cannot, after accepting, renounce the trust without leave of the court, 61-2. 
 
 when a joint trust, all must act, 612. 
 
 effect of death of all the trustees, 612 
 
 must reduce the property to his possession, 613. 
 
 duly invest it, and keep full accounts, 613. 
 
 only answerable for his own default, 613. 
 
 must take real security or invest in the funds, 613. 
 
 must pay to the party gntitled, 614. 
 
 cannot delegate his trust, 612, 614. 
 
 if he mingles trust funds with his own he is chargeable with interest, 614 
 
 so also when guilty of gross neglect, 614. 
 TRUST COMPANY, 
 
 New-York Life Insurance and Trust Oo. when allowed to receive legacies, 
 &c. 558, 559. 
 
 when to be guardian of the estate of infants, without, giving bail, 559. 
 
 u 
 
 UNDEKHAND AGREEMENTS, 
 
 relieved against, 209. 
 UNDUE INFLUENCE, 
 
 what is meant by the term, 171. 
 
 when inferred, without proof, 171. 
 
 in transactions between attorney and client, 171. 
 
 not inferred from the relationship alone, 174. 
 
 by parent over child, 177. 
 
 its effect when arising from the confidential relations of the partie»,r 
 See Feattd and Impued Teusts. 
 UNSOUND MIND; 
 
 doctrine with respect to, 676 to 679. JSee Ipiots, LraATioa. 
 
 Bq. Jub. 100 
 
794 Index. 
 
 TJSEB AND TRUSTS, 
 
 general view of, and as modified by statute, 409. 
 
 incidents of uses at common law, 410. 
 
 inconveniences of, 410, 411, 413. 
 
 how a use migKt be created at common law, 412. 
 
 when required to be in writing, 41 3, 414. 
 
 not raised without a consideration, 412. 
 USURY, 
 
 principles on which relieved against in equity, 216. 
 
 doctrine with respect to, in IT. Y. reviewed, 216 to 222. 
 
 action for discovery of, sustainable, 224. 
 
 money paid on usurious agreement, when recovered baclf, 224. 
 
 when party seeking equity must pay the sum loaned, 223 to 325. 
 
 VENDEE, 
 
 when land in his hands, the primary fund to pay judgment against vendor, 
 568. 
 
 when a trustee of the purchase money, 610. 
 VENDOR, 
 
 possession of after sale, badge of fraud, 241, 242, &o. 
 
 seeking specific perftrmance, 286. 
 
 when must show title, 289. 
 
 lien of for purchase money, 301. 
 ' when a trustee of the vendee, 610. 
 VESTED . 
 
 and contingent legacies, 502 et seq. See Legacy. 
 VESTING 
 
 of interests favored, 513. 
 VOLUNTARY CONVEYANCES, 
 
 what, 227. 
 
 void as against creditors, but good between the parties, 240. 
 
 not specifically enforced, 268. 
 VOLUNTARY SETTLEMENTS, 
 
 when void and when valid, 229 to 281. 
 
 doctrine of, in N. Y., 232, 233, 285. 
 
 w 
 
 WAGER CONTRACT, 
 
 when valid at law, 225. 
 
 when relieved against in equity, 225. 
 WAIVER, 
 
 when by parol, a bar to specific performance, 289. 
 WARD, 
 
 transactions with guardian, 182. 
 
 marrying with, without consent of court, 869. 
 
Index. 795 
 
 WAKEANTY, 
 
 difference between -warranty and representation, 149. 
 
 implied warranty of title, when, 1S5. ' 
 
 of quality, when, 155 to 157. 
 
 a sound price does not imply a warranty, 157. 
 
 implied warranty of title of a chattel, by vendor in possession, but not if he 
 were out of possession, 158, 159. 
 
 implied as to goodness of provisions sold for domestic use, but not as mer- 
 chandise, 158. 
 WASTE, 
 
 when equity relieves in case of, 138. 
 
 what constitutes, 138, 139, 370 et seq. 
 
 when restrained by injunction, 369. 
 
 remedies to prevent or punish, 379, 380. 
 
 when the action did not lie at common law, 378, 379. 
 WATER COUESE, 
 
 unauthorized diversion of, a nuisance, 392. 
 
 protected by injunction, 392. 
 "WEAKNESS OF MIND, 
 
 how it affects contracts, 194, 195. 
 
 in what cases relieved against, 195. 
 
 in whose favor, 195. 
 
 what constitutes incapacity of mind, 195. 
 
 its effect on contracts, 201. 
 
 connected with other disqualifications, its effect, 202. 
 WHAEF, 
 
 when erection of, restrained, 399. 
 WIDOW, 
 
 when put to her election between a legacy or a devise and her dower, 546. 
 et seq. See Election. 
 WIPE'S EQUITY, 635 et seq. See Maeeied Women. 
 WILLS, 
 
 of trusts therein and the construction thereof, 483. 
 
 former rule with respect to lands after acquired, 484. 
 
 present rule, 484. 
 
 from what time a will speaks, 484. 
 
 when it passes all the estate in land the testator had at his death, 484, 485. 
 
 when it passes a fee without words of limitation, 485. 
 
 effect of a charge on the devisee, 485. 
 
 no particular words necessary to pass a fee, 486. 
 
 by what words an effective charge ismade, 487. 
 
 if the thing required cannot be done without a sale of real estate, it is well 
 charged, 487, 488. 
 
 construction of, rules, 490. 
 
 intention of testator, how sought, 490, 497. 
 
 in what sense words are to be understood, 490. 
 
 will and codicil one instrnment for this purpose, 490. 
 
796 Index. 
 
 "WILLS — contimied. 
 
 ■when admitting of two coustniolions, the one most consistent ■with the 'whole 
 
 'Will, adopted, 491. 
 grammatical sense may be disregarded, 491, 
 the order of arrangement not always folki'wed, 491. 
 techaioal words, how nnderstood, 493. 
 words not technical, 493. 
 gMiieral intent eontrola particular intentj 493i 
 the words " children" and "issue" how construed, 494. 
 ambiguity, how ezplained, 494. 
 of real and personal property, ho'W far alilie, 499i 
 who may make same, 499. 
 
 devising or bequeathing to a charity^ when ymA, 5T6. 
 limitation of sum, to be given by, 5T6. 
 
 THE 4!ND. 
 
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