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ADVERTISEMENT. 
 
 In preparing this treatise for the press, the chief 
 design of its lamented author was to present to the 
 profession a comprehensive and condensed view of 
 the general Principles of the Doctrine of Equity, as 
 administered in the Court of Chancery, and an out- 
 line of the proceedings by which those principles 
 are enforced. It comprises the substance, with ad- 
 ditions, of three series of Lectures, delivered before 
 the Incorporated Law Society, in the years 1842-5. 
 The completion of the work in its present form 
 occupied from that period a considerable portion of 
 the time and labour of the author; and, with the 
 exception of the last four chapters of the fourth 
 book, the treatise had received his final corrections, 
 and arrangements were making for its immediate 
 publication, when he was so suddenly called away 
 in the autumn of last year. 
 
VI ADVERTISEMENT. 
 
 The thanks of the author's friends are due to Mr. 
 James Willis, of the Equity Bar, for his valuable 
 assistance in the correction of the unfinished chap- 
 ters of the treatise, and in the general revision of 
 the work during its progress through the press. 
 
 J. A. 
 
 Michaelmas Term, 1849. 
 
CONTENTS. 
 
 THE PAGES EEFEEEED TO ARE THOSE BETWEEN BEAOKETS [ ]. 
 
 BOOK I. 
 
 OF THE JURISDICTION OF COURTS OP EQUITY AS REGARDS THEIR 
 POWER OP ENEORCING DISCOVERY. 
 
 CHAPTEE I. 
 Of DiscoYery, .... .1 
 
 CHAPTER II. 
 
 Of Commissions to examine Witnesses abroad, . 23 
 
 Of Perpetuation of Testimony, . . . .24 
 
 Of Examinations de bene esse, .... 25 
 
 BOOK II. 
 
 OE THE JURISDICTION OE THE COURTS OF EQUITY IN OASES IN 
 WHICH THE COURTS OF ORDINARY JURISDICTION CANNOT EN- 
 FORCE A RIGHT. 
 
 CHAPTEE I. 
 
 Of Trusts, both Ordinary and Charitable, . . .26 
 
Viii CONTENTS. 
 
 CHAPTER II. 
 
 Of Specific Performance, .... 77 
 
 Of Election, 92 
 
 Of Imperfect Consideration, .... 97 
 
 Of Discharge by Matter in pais of Contracts under Seal, . 106 
 
 CHAPTER III. 
 
 Of Mortgages. 
 
 Perfect, ..... 110 
 
 Imperfect, ..... 122 
 
 CHAPTER IV. 
 
 Of Conversion, ..... 135 
 Of Priorities, . . . • • .145 
 
 Of Tacking, ...... 163 
 
 CHAPTER V. 
 
 Of Re-execution, ..... 167 
 
 Of Correction, ..... 169 
 
 Of Rescission and Cancellation, . - . . . 174 
 
 CHAPTER VI. 
 
 Of Injunction against Proceedings at Law, . . 194 
 
 Of Bills of Peace, 199 
 
 Of Bills of Interpleader, .... 202 
 
 Of Injunction against Tort, .... 207 
 
 BOOK III. 
 
 OF THE JURISDICTION OF THE COUETS OF EQUITY IN CASES IN 
 WHICH THE COURTS OF ORDINARY JURISDICTION CANNOT AD- 
 MINISTER A RIGHT. 
 
 CHAPTER I. 
 
 Of Account, ...... 220 
 
CONTENTS. IX 
 
 CHAPTER II. 
 
 Of Partition, . . . . . .229 
 
 Of Assignment of Dower, .... 233 
 
 Of Subtraction of Tithes, . . . .235 
 
 Of Ascertainment of Boundary, . . . 287 
 
 CHAPTER III. 
 
 Of Partnership, . . . . . .239 
 
 CHAPTER IV. 
 
 Of Administration of Testamentary Assets, . . 249 
 
 CHAPTER V. 
 
 Of Contribution and Exoneration, . . . 267 
 
 Of Marshalling, ..... 271 
 
 CHAPTER VI. 
 
 Of Infancy, . . . . . .278 
 
 Of Idiocy and Lunacy, . . . 290 
 
 BOOK IV. 
 
 OF THE FORMS OF PLEADING AND PROOEDUEE BY WHICH THE 
 JURISDICTION OF THE COURTS OP EQUITY IS EXERCISED. , 
 
 CHAPTER I. 
 Of the Bill, 299 
 
 CHAPTER II. 
 Of Parties, 312 
 
X CONTENTS. 
 
 CHAPTER III. 
 Of Process and Appearance, .... 324 
 
 CHAPTER IV. 
 Of the Defence, ..... 331 
 
 CHAPTER V. 
 Of Interlocutory Orders, ..... 348 
 
 CHAPTER YI. 
 Of Evidence, ..... 363 
 
 CHAPTER VII. 
 
 Of the Hearing and Decree, . . . .374 
 
 CHAPTER VIII. 
 Of the Rehearing and Appeal, . . . 396 
 
 CHAPTER IX. 
 
 Of the Cross-Bill, ..... 402 
 
 Of the Bill of Revivor, .... 404 
 
 Of the Bill of Supplement, .... 408 
 
 Of the Bill to Execute or Impeach a Decree, . . 415 
 
TABLE OF ENGLISH CASES. 
 
 THE PA&ES KEFERKED TO ARE THOSE BETWEEN BRACKETS [ ]. 
 
 A. 
 
 Page 
 Abernethy v. Hutchinson, . . 213 
 Ackroyd v. Smithson, . 33, 138 
 Adair v. New River Co., . . 321 
 Adams v. Claxton, . 165, 386 
 
 V. Dowding, . . . 413 
 Adams v. Fisher, . '. .17 
 Adderley v. Dixon, ... 83 
 Agar V. Fairfax, . . 230, 231, 234 
 V. Regent's Canal Co., 212 
 
 Alden v. Gregory, . . . 176 
 Aldrich v. Cooper, . 272, 275 
 
 Aldridge v. Harper, . . . 107 
 Allen V. Macpherson, . . 249 
 Alexander v. Crosbie, . . 171 
 Allison V. Herring, . . . 221 
 Ambrose v. Dunmow Union, . 169 
 Ames V. Parkinson, . . 56, 63 
 Amphlett v. Parke, . . . 139 
 Ancaster v. Mayer, . . . 265 
 Anderson v. Wallis, . . . 302 
 Andrews v. Lockwood, . . 406 
 V. Partington, . . 287 
 V. Walton, . . .397 
 
 Angel V. Smith 353 
 
 Angell V. Angell, ... 24 
 V. Davies, . . . 400 
 Ansdell v. Ansdell, . 218, 357, 375 
 Ansley v. Bainbridge, . . 105 
 Antrobus v. Davidson, . . 270 
 V. Smith, . . .100 
 Appleby v. Duke, . . .391 
 Apperly v. Page, . . 241, 322 
 Archer v. Hale, . . . 107 
 
 Arkwright, Ex parte, . . 161 
 
 Armstrong v. Armstrong, . ' . 377 
 Arundell v. Phipps, . . . 151 
 Ash v. Rogle, .... 65 
 Ashburton v. Ashburton, . . 285 
 Ashby V. Ashby, . . . 142 
 
 Aston V. Heron 199 
 
 Atkinson v. Henshaw, . . 353 
 
 Att. Gen. v. Andrews, . . 72 
 
 V. Arnold, ... 71 
 
 V. Aspinali, . . 67 
 
 Page 
 Att. Gen. v. Bristol, Mayor of, 71 
 V. Butcher, . . 400 
 v. Caius College, 61, 69 
 V. Clack, ... 39 
 V. Clarendon, Earl of, 75 
 V. Cleaver, 
 V. Compton, 
 V. Cooper's Company, 
 V. Cradock, 
 V. Dixie, . 
 V. Drapers' Co., 68, 69, 71 
 V.Dublin, Mayor of, 67, 75 
 V. East Retford, . 11 
 V. Exeter, Mayor of, 68 
 V. Fishmongers' Co, 
 V. Flint, . 
 V. Foord, . 
 V. Forbes, . . 211, 212 
 V. Foster, . . 411, 412 
 V. Foundling Hospital, 75 
 V. Goldsmiths' Co., . 310 
 V. Green, ... 72 
 V. Grocers' Company, 71 
 V. Heelis, . 
 V. Ironmongers' Co., 
 V. Jackson, . 84, 238 
 V. Lambe, ... 17 
 V. Leeds, Duke of, 37, 115 
 V. Liverpool, Mayor of, 61 
 V. Lubbock, . . 75 
 V. Lucas, ... 4 
 V. Manchester and Leeds 
 
 Railway Company, 218 
 V. Mangles, . . 136 
 V. Merchant Tailors' Co. 
 
 310 
 V. MuUay, . . .290 
 V. Newark, Corporation 
 
 211 
 67 
 71 
 
 310 
 75 
 
 414 
 69 
 74 
 
 321 
 73 
 
 
 of. 
 
 
 74 
 
 V. 
 
 Nicholl, 
 
 
 211 
 
 V 
 
 Pargeter, 
 
 
 74 
 
 V 
 
 Pearson, 
 
 
 373 
 
 V 
 
 Poole, Corporal 
 
 on 
 
 
 
 of, . . 
 
 67 
 
 310 
 
 V 
 
 Pretyman, 
 
 
 68 
 
xu 
 
 TABLE OF ENGLISH CASES. 
 
 Att. Gen. v. Ray, ... 25 
 
 V. Sands, ... 51 
 
 V. Severne, . 290, 372 
 
 V. Shore, ... 61 
 
 V. Shrewsbury, . . 67 
 
 V. Sitwell, . . .172 
 
 V. Skinners' Company, 71 
 
 V. Smythies, . 71, 75 
 
 V. Southgate, . . 265 
 
 V. Todd, ... 73 
 
 V. Wansay, . . 72 
 
 V. Whitchurch, . . 71 
 
 V. Wilson, 71, 268, 319 
 
 Attwood V. Banks, . . .198 
 
 V. Small, 176, 177, 189, 321 
 
 Austen v. Hasley, . . 289 
 
 V. Taylor, ... 42 
 
 Aveling v. Knipe, ... 35 
 
 Averall v. Wade, . . 270, 273 
 
 Aylett V. Ashton, . . 46, 91 
 
 B. 
 
 Bacon v. Jones, . . . 218, 357 
 V. Spottiswoode, . . 219 
 
 Badcock, Re 297 
 
 Baggeth v. Meux, . 44, 45 
 
 Baglehole v. Walters, . . 179 
 Bailey v. Taylor, . . .219 
 V. Weston, . . 195, 359 
 Bainbridge v. Blair, 61, 353, 355, 410 
 Bainford v. Bainford, . . . 390 
 Baker v. Hains, .... 164 
 V. Hart, . . . .377 
 
 Balfe V. Lord 126 
 
 Balfour V. Welland, . . .156 
 
 Ball V. Ball, . . .283 
 
 V. Coutts, . . . 288, 289 
 
 V. Harris, . . . 255 
 
 V. Mannin 183 
 
 V. Montgomery, . 49 
 Ballard v. White, . . 386, 387 
 Balmain v. Shore, . . 245 
 Balmanno v. Lumley, . . 380 
 Bampton v. Birchall, . . 408, 413 
 Bannatyne v. Leader, . 15 
 
 Barfield V. Kelly, . . 413 
 Bariatinski, Re, . . . 290 
 Baring v. Nash, .... 230 
 Barker v. Wardle, . . .261 
 Barnard v. WalUs, . . . 196, 359 
 Barnard v. Laing, . . . 360 
 Barnes v. Racster, . , 274 
 Barnett v. Weston, . . . 163 
 Barrett v. Tickell, . . . 356 
 Barry V. Wrey, .... 115 
 Barlle v. Wilkins, . . .115 
 Bartletl v. Gillard, . . .~ 21 
 Bastord V. Clarke, . . .113 
 Bate V. Bate, . . . .18 
 Bateman v. Willoe, . . . 197 
 Bath, Earl of, V. Sherwin, . 202 
 Batty V. Chester, . . .175 
 Bayley v. Leominster, Corporation 
 of 89 
 
 Beadle v. Burch, . . . 176 
 Beatson v. Beatson, ... 80 
 Beauchamp v. Huntley, Marquis 
 of, 260 
 
 170, 171 
 242, 321 
 385 
 63 
 111 
 162 
 24 
 31, 302 
 347 
 246 
 215 
 9 
 28 
 55 
 61 
 167 
 238 
 19 
 247 
 359 
 
 196, 
 
 Beaumont v. Bramley, 
 V. Meredith, 
 
 Beavan v. Gilbert, 
 
 Beckford v. Wade, 
 
 Belcher v. Varden, 
 
 Belchier v. Butler, 
 
 Belfast, Earl of, v. Chichester, 
 
 Bell V. Cureton, 
 V. Dunmore, 
 V. Phyn, 
 V. Whitehead, . 
 
 Bellwood V. Wetherell, 
 
 Benbow v. Townsend, 
 
 Bennett v. CoUey, 
 Ex parte, 
 V. Ingoldsby, 
 
 Benson v. Baldwyn, . 
 
 Bent V. Young, . 
 
 Bemley v. Bates, 
 
 Bentinck v. Willink, . 
 
 Beresford v. Archbishop of Ar- 
 magh, 
 
 Berkeley v. Rider, 
 
 Berkhampsted Free School, Ex 
 parte, 
 
 Bernal v. Donegal, 
 
 Bernard v. Drought, . 
 
 Berney v. Sewell, 
 
 Besch V. Frolich, 
 
 Biederman v. Seymour, 
 
 Bignold V. Audland, . 
 V. Springfield, 
 
 Bilbie v. Lumley, 
 
 Birkett v. Hibbert, . 
 
 Birkley V. Presgrave, 
 
 Birmingham v. Kirwan, 
 
 Bishop V. Church, 
 
 B. J., Re, . 
 
 Blachford v. Kirkpatrick, 
 
 Blackburn v. Stables, 
 
 V. Staniland, 
 V. Warwick, 
 
 Blackford v. Christian, 
 
 Blacklow V. Law, 
 
 Blain v. Agar, . 
 
 Blair v. Bromley, 
 
 Re 
 
 Blake v. White, .... 
 
 Blakemore v. Glamorgan Canal 
 Company, . . 211, 212, 218 
 
 Bland v. Winter, . . 319 
 
 46 
 347 
 
 ;0 
 
 . 361 
 
 . 160 
 
 122, 353 
 
 . 243 
 
 205, 
 
 262 
 206 
 . 399 
 . 189 
 . 288 
 . 271 
 . 94 
 . 172 
 . 292 
 . 87 
 . 42 
 . 414 
 . 112 
 . 183 
 . 45 
 . 317 
 173, 174 
 . 297 
 107 
 
 Blandy v*. Widmore, . 
 Blaydes v. Calvert, . 
 Bligh V. Brent, . 
 Blofield V. Payne, 
 Blomfield v. Eyrie, . 
 Blount V. Hipkins, 
 Blundell v. Gladstone, 
 
 V. Winser, 
 Blunden v. Dysart, 
 Boehm v. Wood, 
 
 . 105 
 
 . 360 
 
 . 245 
 
 . 217 
 
 . 281 
 
 . 265 
 
 . 199 
 
 . 242 
 
 . 164 
 
 354, 360, 361 
 
TABLE OF ENGLISH CASES. 
 
 XUI 
 
 Bolton V. Liverpool, Corporation of, 15 
 Bond, Ex parte, . . . 288 
 
 V. Hopkins, . . .228 
 
 V. Kent, . . . .128 
 Booth V. Booth, . . . . 59 
 
 V. Creswicke, . . 400,408 
 Bootle V. Blundel!, . 250, 377, 378 
 Bor V. Bor, . ... 95 
 
 Borell V. Dann, . . 79, 159 
 
 Boughton V. James, . . . 265 
 Boultbee v. Stubbs, . . .107 
 Bouher v. Boulter, . . . 198 
 Bouverie v. Prentice, . . . 238 
 Bower v. Cooper, ... 79 
 Bowes V. Feme, . . . .15 
 
 Bowles V. Orr 221 
 
 V. Weeks, ... 39 
 
 Boys V. Ancell 108 
 
 Bozon V. Farlow, . . .82 
 Brace v.Blick 373 
 
 V. Marlborough, Duchess 
 of . . . . 162, 164 
 Braddick v. Thompson, . . 193 
 Bradley v. Collins, ... 84 
 Bramwell v. Halcomb, . . 215 
 Brandon V. Robinson, . . . 42 
 Braybrooke v. Meredith, . . 54 
 Breadalbane v. Chandos, . . 170 
 Breeze v. English, . . .382 
 
 Bridge, re, 293 
 
 Bridges v. Stephens, . . 209 
 
 Bridget V. Hames, . . .317 
 Bridgewater, Duke of, v. Edwards, 238 
 
 Brise v. Stocks, 
 Bristol V. Wilkins, 
 Bristow V. Wade, 
 Broadhurst v. Balguy, 
 Brocklehurst v. Jessop, 
 Brodie v. Barry, . 
 Bromfield, ex parte, . 
 Bromley v. Smith, 
 Brooke v. Hertford, Lord . 
 
 Lord, V. Rounthwaite 
 Brookfield v. Bradley, 
 Brooks V. Burt, . 
 
 V. Greathed, 
 V. Stuart, 
 Broom v. Broom, 
 Broome v. Monck, 
 Browell V. Read, 
 Brown v. Bamford, 
 
 V. Blount, 
 
 V. Carter, 
 
 V. Cole, . 
 
 V. Higgs, . 
 
 V. Lake, . 
 
 V. Lee, 
 
 V. Lockhart, 
 
 V. Tapscott, 
 
 V. De Tastet, 
 
 V. Weatherby, 
 Bruce, ex parte, . 
 Bruin v. Knott, . 
 Brunswick, Duke of, v 
 King of, 
 
 58,62 
 
 133 
 
 93 
 
 59, 382 
 
 125 
 
 93 
 
 143 
 
 321 
 
 230, 232 
 
 91 
 
 121,285 
 
 315 
 
 122, 353 
 
 107, 319 
 
 245 
 
 141 
 
 353 
 
 45 
 
 323 
 
 146 
 
 110 
 
 30, 396 
 
 262 
 
 268 
 
 115 
 
 240 
 
 '246 
 
 173 
 
 125 
 
 287, 288, 375 
 
 Hanover, 
 
 . • 314 
 
 Buckland v. Pocknell, 
 
 
 128 
 
 Buckle V. Mitchell, . 
 
 146 
 
 153 
 
 Buckworth v. Buckworth, 
 
 
 287 
 
 Bugden v. Bignold, . 
 
 
 274 
 
 Bullock V. Wheatley, . 
 
 
 56 
 
 Bulwer v. Astley, 
 
 111 
 
 ,270 
 
 Bunbury v. Bunbury, . 
 
 7, 
 
 198 
 
 V. Winter, . 
 
 
 112 
 
 Burges, re . 
 
 
 292 
 
 Burgess V. Wheate, 37, 50, 
 
 51, 114 
 
 115 
 
 Burlesv. Popplewell, . 
 
 
 260 
 
 Burley v. Charlton, . 
 
 
 212 
 
 Burn V. Carvalho, 
 
 
 54 
 
 Burnham v. Bennett, . 
 
 
 142 
 
 Burrell's case, . 
 
 
 146 
 
 V. Egremont, . 
 
 
 270 
 
 V. Nicholson, . 
 
 
 15 
 
 Burrough v. Philcox, . 
 
 
 30 
 
 Burroughs v. Elton, . 
 
 
 252 
 
 V. Oakley, 
 
 
 87 
 
 Burton v. Eggington, . 
 
 
 322 
 
 Butcher V. Butcher, . 
 
 
 186 
 
 Butlin v. Masters, 
 
 
 378 
 
 Byde v. Masterman, . 
 
 11 
 
 306 
 
 Byrne V. Vivian, . 
 
 
 191 
 
 Byrchall v. Bradford, . 
 
 . 63 
 
 251 
 
 c. 
 
 Cadman v. Horner, . . 84 
 
 Cadogan v. Kennett, . . . 147 
 Cafe v. Bent, . . .39 
 
 V. Robarts, . ... 39 
 Calcraft v. Roebuck, . . 87 
 
 V. West, . . .213 
 Calvert v Godfrey, . . .285 
 
 Camp V.Moody 388 
 
 Campbell v. Mackay, . 282, 310, 335 
 V. Scott, . . .215 
 V. Solomons, . . 206 
 Cann v. Cann, .... 24 
 Cannings v. Flower, . . . 287 
 Capel V. Girdler, . . 52 
 
 Capper v. Spottiswoode, . . 128 
 Carpmael v. Powes, . . . 370 
 Carr v. Appleyard, . . . 371 
 Carter v. Boehm, . . . 179 
 Carver v. Bowles, ... 94 
 
 Carysfoot, re 297 
 
 Cass v. Cass 372 
 
 Castellani v. Blumentltal, . . 356 
 Cathcart v. Lewis, . . .317 
 Catton v. Carhsle, . . . 413 
 Caultield v. Maguire, . . . 269 
 Cavan v. Pulteney, ... 96 
 Cawder v. Lewis, . . . 150 
 Chalie V. Pickering, . . .199 
 Chalmer v. Bradley, . . . 228 
 Chamberlain v. Lee, ... 89 
 Champernowne v. Scott, . . 384 
 Champion v. Champion, . . 364 
 Chancey's case, .... 105 
 v. May, . . .321 
 Chaplin v. Chaplin, . . .288 
 
XIV 
 
 TABLE OF ENGLISH CASES. 
 
 Chappel V. Purday, . . . 400 
 
 Cherry v. Boultbee, . . . 223 
 
 V. Molt 71 
 
 Cherves v. Jones, ... 20 
 
 Chesterfield, Earl of, v. Janssen, 187 
 
 Chippindale, ex parte, . . 124 
 Cholmondely v. Clinton, 
 
 113,119, 191,302 
 
 Christian v. Corren, 
 V. Foster, . 
 V. Taylor, . 
 Christopher v. Sparke, 
 Church V. Kemble, 
 Churchman v. Ireland, 
 Clapham v. Shillito, . 
 V. White, . 
 Clare v. Wood. . 
 Clarendon v. Barham, 
 V. Hornby, 
 Claridge v. Hoare, 
 Clark V. Burgh, . 
 
 V. Dew, 
 Clarke v. Bicker, 
 
 V. Freeman, . 
 
 V. Grant,. 
 
 V. Ormonde, Earl of 
 
 V. Parker, 
 
 Re, . 
 
 V. Royle, 
 Clarke's Charity, In re 
 Clay V. Willis, . 
 Clayton v. Cookes, 
 
 T. Meadows, . 
 V. Nugent, . 
 V. Winchelsea, 
 Clementson v. Gandy, 
 Clermont v. Tasburgh, 
 Cliiford v. Turrell, . 
 Clinan v. Cooke, 
 Close V. Wilberforce,. 
 Cloughv. Bond, . 
 Clough V. RadclifTe, . 
 Clowes V. Higginson, . 
 Clunn V. Crofts, . 
 Cocit V. Richards, 
 Cockerell v. Cholmeley 
 Cogan V. Stephens, . 
 Colburn v. Simms, . . . 219 
 Colclough V. Evans, . . . 413 
 Coleman v. Winch, . . . 165 
 Coles V. Trecothick, ... 61 
 Collard V. Allison, . . . 218 
 Collins V. Archer, . . 162 
 
 V. Wakeman, . . 33 
 
 Collinson v. Wakeman, . . 360 
 V. Patrick, ... 80 
 CoUis V. Robins, . . . 263 
 Colman v. Croker, . . . 148 
 Colombine v. Chichester, . . 83 
 Colyer v. Clay, . . . .186 
 Combe, ex parte, . . . 124 
 
 V. London, Corporation of 16 
 Coming, ex parte, . . . 124 
 Commissioners of Donations v. 
 
 Wybrants 69 
 
 65 
 390 
 
 11 
 115 
 
 95 
 
 94 
 117 
 356 
 132 
 263 
 231 
 3,4 
 174 
 354 
 172 
 217 
 
 84 
 259 
 186 
 297 
 128 
 
 76 
 256 
 
 65 
 376 
 376 
 338 
 
 95 
 
 84 
 382 
 
 87 
 
 142 
 
 56, 58 
 
 242, 322 
 
 85 
 
 408 
 
 187 
 
 370 
 
 33, 138, 392 
 
 83 
 
 Connop V. Hayward, . 
 Const V. Harris, . 
 Conyngham v. Plunkett, 
 Cook V. Black, . 
 
 V. Collingridge, 
 V. Hutchinson, . 
 Cooks V. Clayworth, 
 Cookson V. Cookson 
 Coope V. Eyre, . 
 Coope V. Twyman, . 
 Cooth V. Jackson, 
 Copis V. Middleton, . 
 Corbyn v. French, 
 Coslake v. Till, . 
 Cottom V. Partridge, . 
 Cottinghamv. Shrewsbury 
 Coulson V. While, 
 Court V. Jeffery, 
 Courtney v. Williams, 
 Coventry v. Coventry, 
 Cowell V. Edwards, . 
 Cowtan V. Williams, . 
 Cox V. Allingham, 
 
 Creditors of. 
 
 Lady, case of 
 Crabtree v. Bramble, . 
 Crackelt v. Bethune, 
 Crawford v. Fisher, . 
 Crawshay v. Collins, . 
 V. Maule, . 
 V. Thornton, 
 Craythorne v. Swinburne, 
 Creak v. Capel, . 
 Creuze v. Hunter, 
 Croft V. Day, 
 Crompton v. Wombwell, 
 Crosbie v. Tooke, 
 Crosse v. Bedingfield 
 
 21, 226, 382 
 
 243, 354 
 
 . 80 
 
 . 54 
 
 245, 246 
 
 . 33 
 
 . 183 
 
 136, 137, 245 
 
 . 239 
 
 Crossley v. Derby Gas Company, 219 
 Crowder V. Tinkler, . . .211 
 Crowfoot V. Mander, . . . 404 
 Crowley's case, .... 197 
 Cruickshank v. MoVicar, . . 309 
 Cruttwell V. Lye, . . 217, 246 
 Cudd V, Rutter, . . . 83 
 
 Curd V. Curd, . . . 15, 382 
 Curling v. Townshend, . . 347 
 
 Curtis V. Curtis, . 
 Custance v. Bradshaw, 
 Culler V. Simons, 
 
 D. 
 
 269 
 
 . 87 
 
 . 269 
 
 71 
 
 . 82 
 
 . 224 
 
 313, 403 
 
 . 210 
 
 . 316 
 
 223, 387 
 
 39 
 
 . 268 
 
 206 
 
 . 372 
 
 254, 256 
 
 . 252 
 
 . 137 
 
 . 64 
 
 . 206 
 
 . 246 
 
 241,245, 247 
 
 203, 205 
 
 . 269 
 
 . 351 
 
 . 388 
 
 . 217 
 
 . 413 
 
 . 177 
 
 20 
 
 234, 235, 263 
 . 246 
 . 352 
 
 Dale V. Hamilton, 
 
 35, 87 
 
 D'Almaine v. Boosey, 
 
 . 215 
 
 Daniel v. Skipwith, . 
 
 . 120 
 
 D'Arcy v. Blake, 
 
 . 51 
 
 Darley v. Nicholson, . 
 
 . 199 
 
 Darthez v. Clemens, . 
 
 . 226 
 
 Dartmouth v. Holdsworth, 
 
 7 
 
 Daubeney v. Cockburn, 
 
 . 185 
 
 Davenport v. Bishop, . 
 
 78, 146 
 
 David V. Frowd, . 
 
 . 262 
 
 Davies v. Denby, 
 
 . 112 
 
TABLE OF ENGLISH CASES. 
 
 XV 
 
 Davis V. Bluck, . 
 
 
 416 
 
 Dummer V. Pitcher, . 
 
 . 95 
 
 V. Cripps, . 
 
 
 11 
 
 Duncan v. Campbell, . 
 
 . 49 
 
 V. Dowding, 
 
 '. 121, 285 
 
 V. M'Calmont 
 
 . 197 
 
 V. Humphreys, 
 
 
 269 
 
 Duncuft V. Albrecht, . 
 
 . 83 
 
 V. Johnson, 
 
 
 233 
 
 Dundas v. Dutens, 
 
 . 148 
 
 V. Marlborough 
 
 , Duke of 
 
 Dunnage v. White, . 
 
 . 189 
 
 
 187, 353 
 
 Dursley v. Fitzhardinge, . 
 
 . 24 
 
 V. Quarterman, 
 
 
 . 302 
 
 Dutton y. Morrison, . 
 
 . 242 
 
 V. Strathmore, 
 
 
 155 
 
 Duvergier v. Fellowes, 
 
 . 242 
 
 V. Thomas, 
 
 
 HI 
 
 Dyer v. Dyer, 
 
 . 35 
 
 Dawson v. Paver, 
 
 
 212 
 
 Dykes V. Blake, 
 
 . 178 
 
 Day V. Merry, 
 
 
 . 209 
 
 Dyson v. Morris, 
 
 . 415 
 
 Deacon v. Smith, 
 
 
 36 
 
 
 
 Dearie v. Hall, . 
 
 56, 131 
 
 
 
 Dearman v. Wych, 
 
 
 397 
 
 E. 
 
 
 De Costa v. Scandret, 
 
 
 179 
 
 
 
 Deeks v. Strutt, . 
 
 
 250 
 
 Eades v. Harris, 
 
 . 408 
 
 Deerhurst, Lord, v. fc 
 
 t. Albans 
 
 _ 
 
 Earle v. Pickin, . 
 
 . 305 
 
 Duke of, 
 
 
 42 
 
 Earnshaw v. Thornhill, 
 
 . 358 
 
 Deering v. Winchelse 
 
 a. Earl of, 
 
 East V. East, 
 
 . 24 
 
 
 268, 269 
 
 E. L Company v. Bazett, . 
 
 . 377 
 
 Deelh v. Hale, . 
 
 
 . 137 
 
 V. Boddam, 
 
 . 167 
 
 De Manneville v. De ft 
 
 lanneville 
 
 
 V. Campbell 
 
 3 
 
 
 281, 283 
 
 V. Donald, 
 
 21, 188 
 
 Dent v. Bennett, 
 
 
 . 185 
 
 V. Keighly, 
 
 . 388 
 
 Denton v. Davies, 
 
 
 . 144 
 
 V. Vincent, 
 
 . 150 
 
 Denys v. Locock, 
 
 .' 338, 340 
 
 Edeiv. Knowles, 
 
 . 147 
 
 V. Struckburgh 
 Derby, Earl of, v. Athc 
 
 . 
 
 . 191 
 
 Eden v. Bute, Lord, . 
 
 . 399 
 
 1, Duke of, 19 
 
 Edsell V. Buchanan, . 
 
 . 335 
 
 De Themmines v. Boi 
 
 ival. 
 
 71,73 
 
 Edwards v. Abrey, . 
 
 . 297 
 
 Devaynes v. Morris, 
 
 
 407 
 
 V. Brown, . 
 
 . 187 
 
 Devonshire v. Newen 
 
 lam. 
 
 . 315 
 
 V. Edwards, 
 
 . 303 
 
 Dietrichsen v. Cabbur 
 
 n, . 
 
 . 82 
 
 V.Grand Junction R 
 
 ail- 
 
 Digby, Ex parte, 
 
 
 . 297 
 
 way, . 
 
 79, 92 
 
 Dikes, Ex parte. 
 
 
 297 
 
 V. Jones, 
 
 80, 356 
 
 Dillon V. Coppin, 
 
 
 . 80 
 
 V. M'Leary, 
 
 . 178 
 
 V. Parker, 
 
 
 . 96 
 
 V. Meyrick, 
 
 . 184 
 
 DiJly V. Doig, 
 
 
 200 
 
 Egerton v. Jones, 
 EFand v. Eland, . 
 
 . 387 
 
 Dinwiddle v. Bailey 
 
 
 . 221 
 
 . 156 
 
 Dixon V. Wyatt, 
 
 
 . 410 
 
 Elgie v. Webster, 
 
 240 
 
 Docker v. Somes, 
 
 
 . 64 
 
 Elibank v. Montolieu, 
 
 . 48 
 
 Dodd V. Lydall, . 
 
 
 . 223 
 
 Elliot V. Cordell, 
 
 . 49 
 
 Doe V. Manning, 
 
 
 . 146 
 
 V. Turner, 
 
 . 109 
 
 V. Rolfe, . 
 
 
 146 
 
 Ellis V. Lewis, . 
 
 . 94 
 
 Doloret v. Rothschild 
 
 
 83 
 
 Ellison V. Elwin, 
 
 . 142 
 
 Donaldson v. Beckett 
 
 
 213 
 
 Empringham v. Short, 
 
 199, 385 
 
 Donovan v. Needham 
 
 
 103 
 
 England v. Downs 
 
 182, 383 
 
 Dos Santos v. Frietas 
 
 
 9 
 
 Mary, Re, . 
 
 . 288 
 
 Downe v. Morris, 
 
 
 113 
 
 Errington v. Aynesley, 
 
 . 83 
 
 Downes v. Grazebroo 
 
 Is, .' 
 
 61 
 
 Esdaile v. Stephenson, 
 
 . 89 
 
 Downshire, Marquis ( 
 
 )f, .. San 
 
 
 Etty v. Bridges, . 
 Evans v. Bicknell, 
 
 . 161 
 
 dys, . . 
 
 
 209 
 
 151, 174 
 
 Drake v. Drake, . 
 
 
 401 
 
 V. Brown, 
 
 . 264 
 
 v. Martyn, 
 
 
 58 
 
 V. Cogan, 
 
 . 363 
 
 Druce v. Denison, 
 
 
 95 
 
 V. Stokes, 
 
 . 321 
 
 Drummond v. Pigou, 
 
 117, 19 
 
 5, 359 
 
 Evelyn v. Evelyn, 
 
 . 265 
 
 Re, . 
 
 
 297 
 
 V. Lewis, 
 
 . 199 
 
 Dryden v. Frost, 
 
 
 111 
 
 Exton V. Scott, . 
 
 . SO 
 
 Dubliss v. Flint, 
 
 
 351 
 
 Eyre v. Everitt, . 
 
 . 107 
 
 Dubost V. Beresford, . 
 
 
 216 
 
 V. Marsden, 
 
 . 138 
 
 Ex parte. 
 
 
 103 
 
 
 
 Du Howemelin v. She 
 
 Idon', 4 
 
 2, 138 
 
 F. 
 
 
 Duke V. Barnett, 
 
 
 87 
 
 
 
 Dummer v. Corporatio 
 
 n of Chip 
 
 
 Fallowes v. Williamson, . 
 
 . 414 
 
 penham. 
 
 
 4 
 
 Fairthorne v. Weston, 
 
 . 241 
 
XVI 
 
 TABLE OF ENGLISH CASES. 
 
 Farewell v. Coker, . 
 
 
 189 
 
 Gayler v. Fitzjohn, . 
 
 , 
 
 385 
 
 Farquhavson v. Seton, 
 
 313, 
 
 403 
 
 Gee V. Pritchard, 
 
 213 
 
 216 
 
 Farr v. Pearce, . 
 
 
 247 
 
 George v. Millbank, . 
 
 , 
 
 146 
 
 Faulder v. Stuart, 
 
 
 11 
 
 Gervis v. Gervis, 
 
 
 265 
 
 Faulkner v. Daniel 
 
 112, 
 
 270 
 
 Gibbs V. Glames, 
 
 
 31 
 
 Featherstonehaugh v. Fenwick, 
 
 
 Gibson v. Bell, . 
 
 . 
 
 223 
 
 60, 241 
 
 245 
 
 V. D'Este, 
 
 
 178 
 
 Fell V. Brown, . 
 
 
 323 
 
 GifTard v. Hort, . 
 
 399 
 
 412 
 
 Fellowes v. Gwydyr, Lord 
 
 
 177 
 
 Gilbee v. Gilbee, 
 
 
 291 
 
 Fencott v. Clarke, 
 
 
 350 
 
 Gillespie v. Alexander, 
 
 . 
 
 262 
 
 Fenne v. Craig, . 
 
 179 
 
 321 
 
 Gillett V. Peppercorne, 
 
 
 184 
 
 Fenn v. Edmonds, 
 
 
 206 
 
 Gilpin V. Southampton, 
 
 
 259 
 
 Fenner v. Taylor, 
 
 
 49 
 
 Gingell V. Home, 
 
 
 249 
 
 Fenton v. Brown, 
 
 
 392 
 
 Glascott V. Lang, 
 
 176 
 
 198 
 
 Fenwick v. Raid, 
 
 
 126 
 
 Glasscott V. Copperminers' 
 
 Co., 
 
 
 Fereday v. Wightwick, 
 
 
 247 
 
 
 9,20, 
 
 314 
 
 Fermor, Ex parte, 
 
 
 293 
 
 Glassington v. Thwaites, . 
 
 241 
 
 333 
 
 Few V. Grippy, . 
 
 
 357 
 
 Glendinning, Ex parte. 
 
 . 
 
 107 
 
 Field, Ex parte. 
 
 
 272 
 
 Glengall v. Fraser, . 
 
 
 12 
 
 Filder v. Hooker, 
 
 
 91 
 
 Gloucester, Corp. of, v. Wood, 
 
 401 
 
 Finch V. Finch, . 
 
 
 100 
 
 Glyn V. Duesbury, 
 
 
 204 
 
 Fisher v. Fisher, 
 
 
 365 
 
 V. England, Bank of. 
 
 
 168 
 
 Fisk V. Norton, . 
 
 
 379 
 
 Goddard, Re, . 
 
 
 117 
 
 Fitzgerald, Re, . 
 
 291 
 
 298 
 
 Goddard v. Snow, 
 
 
 182 
 
 Flack V. Holm, . 
 
 
 360 
 
 Goodson V. Ellison, . 
 
 59 
 
 318 
 
 Fletcher -v. Ashburner 
 
 136 
 
 137 
 
 Goldsmid v. Goldsmid, 
 
 
 105 
 
 V. Fletcher . 
 
 
 '•80 
 
 Gooch's case. 
 
 
 146 
 
 Flight V. Bolland, 
 
 
 82 
 
 Goodman v. Sayers, . 
 
 
 193 
 
 Flint V. Brandon, 
 
 
 83 
 
 V. Whitcomb, 241, 243 
 
 354 
 
 Flower v. Hartopp, . 
 
 
 386 
 
 Gordon v. Cordon, 
 
 
 189 
 
 Foley V. Hill, . . 22 
 
 6, 338 
 
 339 
 
 V. Graham, . 
 
 
 164 
 
 Folland v. Lamotte, . 
 
 
 406 
 
 Re, 
 
 
 292 
 
 Forbes v. Peacock, . 
 
 
 156 
 
 V. Simkinson, 
 
 
 236 
 
 Forlescue v. Barnett, 
 
 
 80 
 
 Gosling V. Carter, 
 
 
 255 
 
 Forth V. Norfolk, Duke of, 
 
 
 129 
 
 Goss V. Nugent, Lord, 
 
 84,87 
 
 Foss V. Harbottle, 
 
 
 335 
 
 Graham v. Coape, 
 
 
 333 
 
 Foster v. Alanson, 
 
 
 240 
 
 V. Oliver, 
 
 
 91 
 
 V. Cockerell, 
 
 53 
 
 161 
 
 Grant v. Grant, . 
 
 
 361 
 
 Fourdrin v. Gowdey, 
 
 
 138 
 
 In re. 
 
 384 
 
 387 
 
 Fowler v. Garlike, 
 
 
 33 
 
 V. Lyman, 
 
 
 30 
 
 Frampton v. Frampton, 
 
 
 45 
 
 Great North of England 
 
 lunc- 
 
 
 Freeman v. Baker, 
 
 
 178 
 
 tion Railway v. Cla 
 
 rence 
 
 
 V. Kairlie, . 
 
 . 57 
 
 ,351 
 
 Railway, 
 
 
 218 
 
 V. Tatham, . 
 
 
 21 
 
 Green v. Bridges, 
 
 
 109 
 
 Frere v. Green, . 
 
 
 24 
 
 V. Green, . 
 
 
 9, 92 
 
 V. Moore, . 
 
 
 162 
 
 V. Holden, 
 
 
 117 
 
 Frewin v. Lewis, 
 
 
 212 
 
 V. Pledger, 
 
 
 20 
 
 Frowd V. Lawrence, . 
 
 
 199 
 
 V. Weaver, 
 
 
 5 
 
 Fuller V. Bennett, 
 
 
 157 
 
 Greenlau v. King, 
 
 
 7 
 
 V. Knight, 
 
 
 62 
 
 Greenough v. Gaskell, 
 
 
 6 
 
 Fulton V. Gilmore, 
 
 
 347 
 
 Greenway, Ex parte. 
 
 
 168 
 
 Fyler v. Fyler, . 
 
 
 62 
 
 Greenwood v. Atkinson, 
 V. Evans, 
 
 
 347 
 55 
 
 
 
 
 V. Taylor, 
 
 121 
 
 272 
 
 G. 
 
 
 
 V. Wakeford, 
 
 39,62 
 
 
 
 
 Gregory v. Gregory, . 
 
 
 58 
 
 Garcias v. Ricardo, . 
 
 
 401 
 
 V. West, 
 
 
 386 
 
 Gardner V. Blane, 
 
 
 284 
 
 Gretton v. Haward, 79, 92 
 
 "96,97 
 
 ,285 
 
 V. Lachlan, . 
 
 . 54 
 
 ,161 
 
 Grey v. Grey, . 
 
 
 102 
 
 V. IWarshall, . 
 
 
 49 
 
 Griffith V. Ricketts, . 
 
 '. 407 
 
 ,414 
 
 V. M'Cutcheon, 
 
 
 357 
 
 Grimstone, Ex parte, 
 
 
 291 
 
 V. Rowe, 
 
 
 28 
 360 
 
 V. Gaunt, 
 Grinnell v. Cobbold, . 
 
 
 285 
 
 
 23 
 
 Garrard v. Lauderdale, Lo 
 
 rd, . 
 
 31 
 
 Crugeon v. Gerrard, . 
 
 
 165 
 
 Gaskell v. Gaskell, . 
 
 . 23C 
 
 ,316 
 
 Gwydir, Lord, Ex parte. 
 
 
 293 
 
TABLE OF ENGLISH CASES. 
 
 XVll 
 
 H. 
 
 Habershon v. Blurton, . . 242 
 
 Hale V. Hale, . . . 243, 354 
 
 Halford v. GiUow, . . .198 
 
 Hall, Ex parte, . . . 292, 293 
 
 V. Hardy, . . . .192 
 
 V. Hill, 102, 103, 104, 105, 106 
 
 V. Jenkinaon, . . . 354 
 
 V. Laver, . . . .387 
 
 Hallett V. Bousfield, . . .271 
 
 Halliwell v. Tanner, . . .264 
 
 Halsey v. Halsey, . . . 288 
 
 Hamilton v. Houghton, . . 416 
 
 V. Royse, . . .273 
 
 V. Watson, . . 179 
 
 V. Wright, . . 59 
 
 Hammond v. Messenger, . 303 
 
 Hampshire v. Bradley, . . 59 
 
 Hampson v. Hampson, . . 377 
 
 Hanby v. Roberts, . . . 276 
 
 Hansard v. Robinson, . . 168 
 
 Hanson v. Keating, . . 48, 191 
 
 Hardman v. EUames, . . 17 
 
 Harland v. Emerson, . . . 338 
 
 Harman v. Jones, . . 218, 357 
 
 Harmood v. Oglander, . 262, 378 
 
 Harries v. Bryant, ... 89 
 
 Harris v. Davison, . . . 132 
 
 V. Harris, . . .339 
 
 Harrison v. Gurney, . . . 198 
 
 V. Heathorn, . . 242 
 
 V, Netlleship, . 197 
 
 Hart V. Alexander, . . 173 
 
 Hartwell v. Chitters, . . .256 
 
 Harvey v. Harvey, . . . 320 
 
 Hastings, Ex parte, . . . 297 
 
 Hatch V. 351 
 
 Hawkins v. Hawkins, 320 . . 320 
 
 V. Lawse, . . . 255 
 
 Hayter v. Trego, ". . .73 
 
 Head v. Egerton, . . .160 
 
 Healey v. Jagger, . . . 370 
 Heathcote v. Hulme, ... 60 
 
 Heighington v. Grant, . 64 
 
 Henderson v. Elason, . . 232 
 
 Henley v. Stone, . . . 318 
 
 Hepworth v. Heslop, . 261, 390 
 Hercey v. Ferres, ... 15 
 
 Hercy v. Birch, . . . . 82 
 
 Hereford v. Ravenhill, . 138, 140 
 
 Herring v. Cloberry, . . 6, 399 
 
 Hertford V. De Zichi, . . .316 
 
 Re, . . . 358 
 
 Hichena V. Congreve, . 321,409 
 
 Higginson v. Clowes, . . 172 
 
 HiU v. Barclay, . . . .109 
 
 v. Gomme 283 
 
 V. Thompson, . . .218 
 
 Hills v. CroUs 82 
 
 V. Downton, . . . 101 
 
 Hilton V. Granville, . 218, 356, 357 
 
 Hindman v. Taylor, . . 19, 339 
 
 Hitchcock V. Gidding, . ■ 188 
 
 Hithcox V. Sedgwick, . . 157 
 
 Hobhouse v. Courteny, . . 324 
 Hobson V. Blackburn, . . 277 
 V. Ferraby, . . . 289 
 Hockley v. Brantock, . . 125 
 
 Hodgens v. Hodgena, . 49, 288 
 
 Hodle v. Healey, . . .119 
 Hodgaon v. Shaw, . . . 269 
 Hodaon v. Ball, . . 415, 416, 417 
 Hoggart V. Cutts, . . .204 
 Holder v. Chambury, . . 237 
 
 Holditch v. Holditch, . . 94 
 
 Holford V. Phipps, ... 59 
 Holland v. Baker, . . . 415 
 HoUoway v. Millard, . . .147 
 Holmes v. Baddeley, ... 7 
 
 V. Coghill, . . .100 
 
 Re 292 
 
 Holt V. Dewell, . . . .161 
 Holyland, Ex parte, . . .292 
 
 Hood V. Pimm 372 
 
 Hooper v. Brodrick, . . . 218 
 
 Ex parte, . . 123, 124 
 Hope V. Hope, ... 24 
 
 Horlock V. Smith, . . .119 
 Horncastle v. Gharleaworth, 
 
 230, 231, 232 
 
 Hoate v. Pratt 287 
 
 Houghton v. Houghton, . . 245 
 Houlditeh v. Collins, . . .134 
 v. Donegal, . . 410 
 Hovenden v. Annealey, 63, 176, 228 
 How V. Broomsgrove, . . 200 
 Howard v. Digby, . . 46 
 
 v. Harris, . . .112 
 Howden v. Rogers, . . . 360 
 Howe V. Dartmouth, Lord, . 57 
 v. Vigues, . . . 120 
 Howell V. George, . . 21 
 
 Hudson V. Madaison, . . 211 
 
 Hughes V. Eades, . . .372 
 
 V. Garner, . . .397 
 
 V. Stubbs, . 31, 80 
 
 Huguenin v. Basely, . 176, 185, 354 
 Huives v. Huives, . . 57 
 
 Hungate v. Gaacoyne, . . 417 
 Hunter V. Atkins, . . . 185 
 
 V. Daniel, ... 54 
 Hurst V. Beach, . . . 103, 104 
 Hyde v. Whitefield, . . 360 
 
 I. 
 
 Ibbeston v. Ibbeston, . . 265 
 
 Incorporated Society v. Richards, 
 
 69,75 
 Inge, Ex parte, .... 75 
 Inman v. Whitley, ... 14 
 Innes v. Jackson, . . . 174 
 Ireson v. Denn, .... 165 
 Irnham V. Child, . . .170 
 Irvine v. Young, ' . . . 227 
 
 J. 
 
 Jack V. Burnett, 
 
 71 
 
XVUl 
 
 TABLE OF ENGLISH CASES. 
 
 Jackman v. Mitchell, 
 
 . 180 
 
 Jackson v. Leaf, 
 
 198, 269 
 
 V. Petrie, 
 
 . 360 
 
 V. Stopherd, . 
 
 . 240 
 
 Jacob V. Lucas, . 
 
 . 302 
 
 Jacques V. Chambers, 
 
 . 265 
 
 James v. Dean, . 
 
 . 60 
 
 Ex parte, . 
 
 . 59 
 
 Janson v. Solarie, 
 
 9 
 
 J. C, Ex parte, . 
 
 . 289 
 
 Jefferys v. Jefferys, . 
 
 . 78 
 
 V. Smith, . 24 
 
 7, 354, 356 
 
 Jeffs V. Wood, . 
 
 . 105 
 
 Jenkins v. Bryant, 
 
 . 385 
 
 V. Cross, 
 
 . 412 
 
 V. Hiles, 
 
 . 84 
 
 V. Parkinson, 
 
 81, 360 
 
 Jervis v. White, 
 
 179, 351 
 
 Jervoise v. Northumberlani 
 
 1, Duke 
 
 of, . 
 
 42, 84 
 
 V. Silk, . 
 
 . 287 
 
 Jessop V. Watson, 
 
 . 140 
 
 Jew V. Wood, 
 
 . 205 
 
 Jodrell V. Jodrell, 
 
 . 45 
 
 Johnson v. Child, 
 
 . 264 
 
 V. Compton, . 
 
 . 257 
 
 V. Curtis, 
 
 . 226 
 
 V. Johnson, . 
 
 48, 90 
 
 V. Legard, 
 
 . 146, 147 
 
 V. Beattie, . 28 
 
 1, 282, 291 
 
 JoUand v. Stainbridge, 
 
 . 155 
 
 Jones V. Alephsin, 
 
 . 361 
 
 V. Gilham, 
 
 . 206 
 
 V. Goodrich, 
 
 . 354 
 
 V. Howells, 
 
 . 415 
 
 V. Jones, . 53, 16 
 
 1, 162,270 
 
 V. Lane, . 
 
 . 174 
 
 V. Morgan, 
 
 . 105 
 
 V. Mossop, 
 
 . 223 
 
 V. Noy, 
 
 . 243 
 
 V. Pugh, . 
 
 6 
 
 V. Smith, . 
 
 159, 165 
 
 V. Tanner, 
 
 . 250 
 
 Jope V. Morshead, 
 
 230, 231 
 
 Joy V. Campbell, 
 
 . 58 
 
 K. 
 
 
 Kaler v. Roget, . 
 
 93,94 
 
 Kay V. Marshall, 
 
 218, 340 
 
 Keeble, Ex parte, 
 
 . 287 
 
 Keeley v. Hooper, 
 
 . 393 
 
 Kemble v. Farren, 
 
 . 108 
 
 V. Kean, 
 
 . 82 
 
 Kemp V. Pryor, . 
 
 . 179 
 
 Kendall, Ex parte. 
 
 . 272 
 
 V. Granger, . 
 
 . 67 
 
 Kennedy v. Green, 
 
 . 16, 157 
 
 V. Lee, 
 
 . 85 
 
 Kennington v. Houghton, 
 
 . 222 
 
 Kent V. Burgess, 
 
 . 288 
 
 Keppell V. Bailey, 
 
 . 152 
 
 Kerr v. Dungannon, Lord, 
 
 . 159 
 
 V. Rew, 
 
 . 20, 314 
 
 V. Wauchope, . 
 
 . 97 
 
 Kerrich v. Bransby, . . . 250 
 Keys V. Williams, . . . 125 
 Kidney v. Coussmaker, . 95, 147 
 Kilminster v. Pratt, . . .409 
 King V. Daccombe, ... 50 
 V. Denison, ... 33 
 
 V. Hamlet, . 186, 187, 191 
 
 V. Smith 114 
 
 V. Wilson, .... 88 
 
 Kirby v. Barton, . . .260 
 
 V. Marsh, .... 61 
 
 Kirk V. Eddowes, . . 103, 104 
 
 Kirkby Ravensworth Hospital, 
 
 Ex parte, .... 75 
 
 Kirwan v. Daniel, ... 37 
 
 Knatchbull v. Fearnhead, . . 257 
 
 V. Grueber, . 87, 90 
 
 Knight V. Boughlon, ... 31 
 
 V. Davis, . . . 265 
 
 V. Knight, . . .319 
 
 V. Waterford, . . .236 
 
 KnoUys v. Shepherd, . . . 141 
 
 Knott V. Cottee, ... 31 
 
 V. Ex parte, . 161,162,164 
 
 Knox V. Symonds, . . . 193 
 
 Lacey, Ex parte, . . 59, 61 
 Lake v. Skinner, . . .373 
 Lambert v. Hutchinson, . . 302 
 Lancashire v. Lancashire, . . 375 
 Lancaster v. Evors, . . 10, 17 
 Lanchester v. Thompson, . . 321 
 Lane v. Dighton, . . 64, 144 
 V. Newdigate, . . . 218 
 
 V. Paul 350 
 
 Langley V. Fisher, 153,370,406,407 
 Langstaffe v, Fenwick, . . 112 
 Langston v. OUivant, . . 56 
 
 V. Walker, ... 56 
 Langton v. Horton, . 55, 149, 203 
 Lansdowne v. Lansdowne, . 376 
 
 Larkins v. Paxton, 
 
 . 261, 390 
 
 Latimer v. Neale, 
 
 15, 17 
 
 Law V. Hunter, . 
 
 . 363 
 
 Lawless v. Shaw, 
 
 . 31 
 
 Lawrence v. Smith, . 
 
 . 216 
 
 Lechmere v. Brasier, . 
 
 . 372 
 
 Lee V. Lee, 
 
 . 407,409 
 
 V. Milner, . 
 
 . 212 
 
 V. Pain, 
 
 . 103 
 
 V. Park, 
 
 . 260 
 
 V. Reed, 
 
 . 4,5 
 
 V. Willock, . 
 
 . 384 
 
 Leeds v. Amherst, 
 
 . 209 
 
 Duke of, V. New Radnor, 238 
 
 Le Grand v. Whitehead, 
 
 . 388 
 
 Leith V. Irvine, 
 
 . 112 
 
 Lench v. Lench, . 
 
 . 144 
 
 Leo v. Lambert, 
 
 . 361 
 
 Leonard v. Baker, 
 
 . 151 
 
 V. Leonard, . 
 
 . 189 
 
 Lewis V. Fullarton, . 
 
 . 215 
 
TABLE OF ENGLISH CASES. 
 
 XIX 
 
 Lewis V. Langdon, 
 
 
 247 
 
 Martindale v. Booth, . 
 
 
 
 151 
 
 V. Maddocks, . 
 
 
 144 
 
 Martinez v. Cooper, . 
 
 
 
 151 
 
 V. Zouche, 
 
 
 315 
 
 Mason v. Bogg, . 
 
 121 
 
 261 
 
 272 
 
 Lichfield v. Bond, 
 
 
 3 
 
 Massey v. Banner, 
 
 
 
 58 
 
 Lightfoot V. Heron, . 
 
 
 183 
 
 V. Massey, . 
 
 
 
 364 
 
 Lingard v. Bromley, . 
 
 
 268 
 
 V. Parker, 
 
 
 
 45 
 
 Lingen v. Touray, 
 
 
 137 
 
 Massie v. Banner, 
 
 
 
 221 
 
 Lister v. Turner, 
 
 
 125 
 
 Masterman v. Lewin, 
 
 , 
 
 
 206 
 
 Liversey v. Liversey, 
 
 . 
 
 387 
 
 Matson v. Swift. 
 
 . 
 
 
 139 
 
 Llewllyn v. Badeley, . 
 
 
 ), 15 
 
 Matthews v. Brise, . 
 
 
 
 58 
 
 Lloyd V. Jenkins, 
 
 
 357 
 
 V. Dana, 
 
 
 
 380 
 
 V. Johnes, . 316 
 
 411 
 
 412 
 
 Maundrell v. Maundrell 
 
 . 
 
 
 160 
 
 V. Mason, 
 
 
 49 
 
 Maxwell v. Montacule, 
 
 
 
 111 
 
 V. Passingham, 
 
 
 355 
 
 Mayhaw v. Crickett, 
 
 
 
 106 
 
 V. Spillets, 
 
 
 35 
 
 McDermott v. Kealy, 
 
 . 
 
 
 397 
 
 V. Wait, . 
 
 
 376 
 
 McDougall, Ex parte, 
 
 
 
 298 
 
 V. Williams, 
 
 
 49 
 
 McFadden v. Jenkyns, 
 
 
 28, 54, 80 
 
 Locke V. Colman, 
 
 
 377 
 
 Mcintosh V. Great Western Rail- 
 
 
 Lockhart v. Hardy, . 117 
 
 120 
 
 264 
 
 way, 
 
 
 
 24 
 
 Lodge V. Lyseley, 
 
 
 149 
 
 Medley v. Horton, : 
 
 
 
 45 
 
 London, City of, v. Mitford, 
 
 
 89 
 
 Meek v. Kettlewell, . 
 
 
 55,80 
 
 V. Perkins, 
 
 200 
 
 201 
 
 Mergrave v. Le Hooke, 
 
 
 
 165 
 
 Long V. Long, . 
 
 288 
 
 289 
 
 Merryweather v. Nixon 
 
 
 
 268 
 
 V. Younge, 
 
 , 
 
 321 
 
 Metcalfe v. Pulvertoft, 
 
 
 
 146 
 
 Longman v. Winchester, . 
 
 
 215 
 
 Meux V.Bell, . 
 
 161 
 
 205 
 
 384 
 
 Lord V. Wightwick, 
 
 . 
 
 46 
 
 V. Maltby, 
 
 
 
 321 
 
 Lorimer v. Lorimer, . 
 
 , 
 
 232 
 
 Mexborough, Earl of, v. 
 
 Bower, 
 
 218 
 
 Loscombe V. Russell,. 
 
 
 241 
 
 Meyer v. Montrio, 
 
 
 
 351 
 
 Lovell V. Hicks, 
 
 
 399 
 
 Micklethwaite v. Atkinson, 
 
 
 8 
 
 Low V. Carter, . 
 
 
 257 
 
 Middleton v. Dodswell, 
 
 
 
 353 
 
 Lowe V. Williams, 
 
 
 12 
 
 Milland v. Gray, 
 
 
 
 60 
 
 Lowes V. Lowes, 
 
 
 94 
 
 Millar v. Taylor, 
 
 
 
 213 
 
 Lowndes v. Cornford, 
 
 
 201 
 
 Miller v. Craig, . 
 
 
 
 227 
 
 V. Davies, . 
 
 
 6 
 
 V. Gow, . 
 
 
 
 382 
 
 Ludlow V. Greenhouse, 
 
 63, 75 
 
 V. Warmington, 
 
 
 
 237 
 
 Luffkin V. Nunn, 
 
 
 312 
 
 Milligan v. Mitchell, . 
 
 
 
 IS 
 
 Lumsden v. Eraser, . 
 
 
 423 
 
 Millington v. Fox, 
 
 217 
 
 392 
 
 393 
 
 Lund V. Blanshard, . 
 
 
 211 
 
 Mills V. Farmer, 
 
 
 
 71 
 
 Lupton V. White, 
 
 
 923 
 
 V. Mills, . 
 
 
 
 57 
 
 Lyon V. Colville, 
 
 
 255 
 
 Milner v. Harewood, . 
 
 
 289, 
 
 413 
 
 Lyons v. Blenkin, 
 
 280 
 
 283 
 
 Milnes v. Davison, 
 Mirehouse v. Scaife, . 
 
 
 
 21 
 
 275 
 
 M. 
 
 
 
 Mitchell V. Hayne, 
 Mitford V. Reynolds, . 
 
 
 
 205 
 67 
 
 Maber v. Hobbs, 
 
 
 373 
 
 Moggrid|e v. Thackwell, . 
 
 71, 73 
 
 Macartney v. Graham, 
 
 
 168 
 
 Mole V. Mansfield, 
 
 
 
 231 
 
 Macclesfield v. Davis, 
 
 
 92 
 
 Monday v. Monday, . 
 
 
 12i, 
 
 285 
 
 Mackenzie v. Johnson, 
 
 
 221 
 
 Monteith v. Taylor, . 
 
 . 
 
 
 409 
 
 V. Robinson, . 
 
 118 
 
 120 
 
 Montford, Lord, v. Cadogan 
 
 Lord, 55 
 
 Mackreth v. Symmons, 
 
 128 
 
 129 
 
 Moon V. Le Bernales, 
 
 
 60, 
 
 376 
 
 Macmahon v. Burchell, 
 
 
 
 Moore v. Frowd, 
 
 
 
 61 
 
 21, 223, 232 
 
 305 
 
 382 
 
 v. Prior, . 
 
 
 
 260 
 
 Macnamara v. Macnamara, 
 
 198 
 
 359 
 
 V. Usher, . 
 
 
 
 205 
 
 Maitland v. Bateman, 
 
 
 56 
 
 Moores v. Choat, 
 
 
 125 
 
 142 
 
 Malcolm v. Scott, 
 
 54 
 
 413 
 
 Morgan v. Goode, 
 
 
 . 
 
 356 
 
 Maiden v. Fyson, 
 
 80 
 
 392 
 
 V. Shaw, 
 
 
 
 352 
 
 Malins v. Freeman, . 
 
 
 85 
 
 Morley v. Bridges, . 
 
 
 
 HI 
 
 Man V. Ricketts, 
 
 250, 
 
 410 
 
 Morrett v. Paske, 
 
 
 163 
 
 165 
 
 Manser v. Jennier, 
 
 356, 
 
 357 
 
 Morrice v. Durham, Bis 
 
 hop of. 
 
 67 
 
 Manton v. Moore, 
 
 , 
 
 151 
 
 V. Langham, . 
 
 
 
 376 
 
 Mare v. Malachay, 
 
 
 317 
 
 Morris v. McNeil, 
 
 
 
 360 
 
 Marlborough v. Wheat, 
 
 
 385 
 
 v. Morgan, 
 
 
 
 334 
 
 Marrow, Re, 
 
 
 115 
 
 v. Morris, 
 
 
 
 25 
 
 Marshall v. Colman, . 
 
 241 
 
 243 
 
 V. Swabey, 
 
 
 
 14 
 
 V. HoUoway, 
 
 
 287 
 
 Morrison v. Arnold, . 
 
 
 
 25 
 
XX 
 
 TABLE OF ENGLISH CASES. 
 
 Mortimer v. Fraser, . . . 335 
 
 V. Shortall, . . 171 
 
 Mortlock V. Buller, . . 55, 81 
 
 Moss V. Baldock, . . .396 
 
 Mossop V. Eadon, . .168 
 
 Moatyn v. Spencer, . . 368, 370 
 
 Motley V. Downman, . . 217 
 
 Mozley v. Alston, . . . 321 
 
 Muckleson v. Brown, . . 33 
 
 Muddle V. Fry 376 
 
 Munch V. Cockerell, . . 317, 318 
 
 Mundy v. Joliffe, ... 87 
 
 V. Mundy, . . .234 
 
 Munoz V. De Tasker, . . 322 
 
 Murless V. Franklin, . . . 102 
 
 Murray v. Barlee, . . 46 
 
 V. Elibank, . . 48, 49 
 
 V. Shadwell, . . .364 
 
 V. Vipart, . . .324 
 
 V. Walter, ... 15 
 
 Mutter V. Chauvel, . . 413 
 
 N. 
 
 Nairn v. Prowse, . . . 129 
 Nash V. Morley, . . 67 
 
 Naylor V. Winch, . . 189,190 
 Neale V. Neale, . . .189 
 
 Neate v. Marlborough, Duke of, 
 
 130, 262 
 Nedby v. Nedby, . . .351 
 Nelson V. Bridges, . . 81,413 
 V. Bridport, . . 383 
 
 V. Duncombe, . 290, 291 
 
 Nelthorpe v. Holgate, 84, 91, 177,315 
 " ■ ■ -' 82 
 
 292 
 172 
 269 
 
 Neabitt v. Meyer, 
 
 Re, .... 
 Newburgh v. Newburgh, . 
 Newby v. Reed, 
 Newcastle, Duke of, v. Lincoln, 
 
 Countess of, . . . .42 
 Newcombe v. Borsham, . . 112 
 Newlands V. Paynter, . . 149 
 Newton v. Hunt, . . .187 
 Nichols V. Chalie, . . 193 
 
 NichoUs V. Maynard, . . 109 
 
 Nicholson v. Hooper, . . 150 
 V. Wordsworth, . 38 
 Nightingale v. Goulburn. . 67 
 
 Norcult, V. Dodd, . . 147, 148 
 Norris v. Wilkinson, . . 125 
 
 Northam Bridge Company v. 
 Southampton Railway Com- 
 pany, .... 376, 377 
 Norway v. Rowe, ... 11 
 
 0. 
 
 O'Connor v. Spaight, 
 Okill V. Whittaker, . 
 Oldham v. Eboral, . 
 Oliver v. Richardson, 
 Omerod v. Hardman, 
 
 . 224 
 170, 172 
 . 415 
 . 235 
 . 84 
 
 Ord V. Noel, 
 
 V. White, . 
 Ormond v. Huth, 
 Osborne v. Harvey, 
 Ottley V. Pensam, 
 Overton v. Banister, 
 Owens V. Dickinson, 
 Oxenden v, Compton, Lord, 
 
 143,291,297 
 Oxford V. Rodney, . . . 265 
 
 
 . 55 
 
 
 . 356 
 
 
 . 178 
 
 
 . 87 
 
 
 385, 386 
 
 
 . 176 
 
 
 46, 258 
 
 Pain V. Smith, . 
 
 
 125 
 
 Palin V. Gathercole, . 
 
 
 213 
 
 Palmer V. Neave, 
 
 
 180 
 
 Parker v. Fairlie, 
 
 
 12 
 
 V. Housefield, 
 
 123, 
 
 125 
 
 Parke's Charity, In re. 
 
 
 76 
 
 Parkhurst v. Lowton, 
 
 4 
 
 370 
 
 Parr v. Attorney-General, 
 
 
 310 
 
 Parrott v. Sweetland, 
 
 
 128 
 
 Partridge v. Usborne, 
 
 417, 
 
 418 
 
 Pasley v. Freeman, . 
 
 
 178 
 
 Pauli V. Von Melle, . 
 
 
 205 
 
 Paxton V. Douglass, . 
 
 
 259 
 
 Peacock v. Burt, 
 
 
 161 
 
 V. Evans, 
 
 
 187 
 
 v. Peacock, . 
 
 
 241 
 
 Peake v. Highfield, . 
 
 
 174 
 
 Pearce v. Loman, 
 
 
 276 
 
 Pearne v. Lisle, . 
 
 
 360 
 
 Pearse, Ex parte. 
 
 
 124 
 
 v. Green, 
 
 .57 
 
 222 
 
 v. Hewitt, 
 
 
 250 
 
 V. Pearse, 
 
 
 7 
 
 Pearson, Re, 
 
 295, 
 
 298 
 
 Pedley v. Goddard, . 
 
 
 193 
 
 Pelham v. Hilder, 
 
 
 221 
 
 Pemberton v. Pemberton, 
 
 250, 
 
 378 
 
 Penfold V. Nunn, 
 
 
 18 
 
 Penny v. Watts, 
 
 
 261 
 
 Perkin v. Stafford, . 
 
 
 333 
 
 Perkins v. Bradley, . 
 
 
 391 
 
 Perry v. Barker, 
 
 
 120 
 
 V. Phelips, 
 
 417 
 
 419 
 
 v. Phillips, 
 
 
 36 
 
 V. Truefitt, 
 
 
 217 
 
 V. Walker, 
 
 
 198 
 
 V. Whitehead, . 
 
 
 98 
 
 Petre v. Espinasse, . 
 
 
 146 
 
 Pettit,, Ex parte. 
 
 
 126 
 
 Philanthropic Society v. Kemp, 
 
 277 
 
 Philipo v. Munnings, 
 
 
 25] 
 
 Phillipott's Charity, In re. 
 
 
 76 
 
 Phillips v. Buckingham, Duke of, 177 
 
 V. Clarke, 
 
 
 409 
 
 v. Evans, 
 
 
 17 
 
 Ex parte. 
 
 285 
 
 297 
 
 v. Phillips, . 
 
 
 245 
 
 V. Worth, . 
 
 
 199 
 
 Pickering v. Ely, Bishop of, 
 
 82, 85 
 
 v. Pickering, 
 
 
 57 
 
 Pickup V. Atkinson, . 
 
 
 57 
 
TABLE OF ENGLISH CASES. 
 
 XXI 
 
 Pidcock V. Bishop, 
 
 
 179 
 
 Reed v. Harris, . 
 
 
 353 
 
 Pierson v. Shore, 
 
 
 143 
 
 Rees v. Keith, . 
 
 
 142 
 
 Piggings V. Cheetham, 
 
 
 113 
 
 Reeves v. Attorney-General, . 
 
 73 
 
 Pilling V. Armitage, . 
 
 
 150 
 
 V. Glastonbury 
 
 Coal 
 
 
 Pinkett v. Wright, . 
 
 242, 
 
 244 
 
 Company, 
 
 
 113 
 
 Pinkus V. Peters, 
 
 . 388 
 
 413 
 
 Reid V. Shergold, 
 
 
 100 
 
 Pitt V. Cholmondeley, 
 
 
 227 
 
 Rendall v. Rendall, . 
 
 
 353 
 
 Playfair v. Thames Junction Rai 
 
 . 
 
 R. V. Greenhill, . 
 
 
 280 
 
 way Company, 
 
 . 196 
 
 359 
 
 Rex V. Canterbury, Bishop 
 
 of, ; 
 
 75 
 
 Plummer v. Wildman, 
 
 
 271 
 
 Reynolds v. Pitt, 
 
 
 109 
 
 Plunkett V. Lewis, 
 
 
 105 
 
 Rich V. Cockell, . 
 
 
 93 
 
 V. Penson, . 
 
 
 256 
 
 Richards v. Platel, . 
 
 
 115 
 
 PoUey V. Seymour, . 
 
 
 136 
 
 Richardson v. England, Bank of. 
 
 
 Pope V. Onslow, 
 
 
 165 
 
 244, 351 
 
 352 
 
 Portarlington, Lord, v. Soulby, 
 
 195 
 
 v. Hastings, 
 
 241 
 
 322 
 
 Postlethwaite v. Blythe, 
 
 
 115 
 
 V. Larpent, 
 
 
 322 
 
 Pott V. Gallini, . 
 
 
 260 
 
 V. Smallwood, 
 
 
 147 
 
 Power V. Walker, 
 
 
 215 
 
 Rico V. Gaultier, 
 
 . 
 
 360 
 
 V. Whitmore, . 
 
 
 271 
 
 Rider v. Kidder, 
 
 . 35 
 
 130 
 
 Pownal V. Ferand, 
 
 
 269 
 
 Ridgway v, Roberts, 
 
 
 210 
 
 Powys V. Mansfield, . 
 
 
 98 
 
 Ripley v. Waterworth, 
 
 
 245 
 
 Praed v. Hull, . 
 
 
 113 
 
 Ripon, Earl of, v. Hobart, 
 
 
 211 
 
 Prendergast v. Eyre, 
 
 
 117 
 
 Roberts, Ex parte, 
 
 
 292 
 
 Prentice v. Phillips, . 
 
 
 350 
 
 V. Marchant, . 
 
 
 399 
 
 Preston v. Grand Collier 
 
 bock 
 
 
 V. Tunstall, . 
 
 62 
 
 186 
 
 Company, 
 
 
 321 
 
 V. Walker, . 
 
 
 265 
 
 Price V. Carver, 
 
 125, 
 
 253 
 
 Robertson v. Lubbock, 
 
 , 
 
 19 
 
 Pride v. Fooks, . 
 
 
 63 
 
 Robinson v. Byron, . 
 
 
 218 
 
 Prince v. Heylin, 
 
 
 233 
 
 v. Milner, . 
 
 
 387 
 
 Pritchard v. Draper, . 
 
 
 413 
 
 V. Page, 
 
 
 84 
 
 V. Fleetwood, 
 
 
 353 
 
 V. Rosher, . 
 
 142 
 
 392 
 
 Pritt V. Clay, 
 
 
 189 
 
 Rochford v. Fitzmaurice, 
 
 
 42 
 
 Prodgers v. Langham, 
 
 
 146 
 
 Rocke V. Cooke, 
 
 
 298 
 
 Prosser v. Edmonds, . 
 
 
 54 
 
 V. Hart, . 
 
 
 63 
 
 Prowse V. Abington, . 
 
 
 276 
 
 Rogers v. Earl, . 
 
 
 170 
 
 Pruen v. Lunn, . 
 
 
 406 
 
 Rodgers v. Marshall, . 
 
 98 
 
 101 
 
 Pulteney v. Darlington, 
 
 
 137 
 
 Rolfe v. Peterson, 
 
 . 
 
 108 
 
 V. Warren, 229, 234 
 
 235 
 
 V. Rolfe, . 
 
 
 82 
 
 Pulvertofi V. Pulvertoft, 
 
 146, 
 
 153 
 
 Rose V. Cunynghame, 
 
 
 141 
 
 Purcell V. M'Namara, 
 
 
 386 
 
 Rowley v. Adams, 
 
 
 383 
 
 Pusey V. Desbouverie, 
 
 
 96 
 
 Ruffin, Ex parte, 
 
 240 
 
 244 
 
 Pye, Ex parte, . 
 
 80, 98 
 
 Rumford Market case. 
 
 
 60 
 
 Pym V. Lockyer, 
 
 . 98 
 
 104 
 
 Rundell v. Murray, . 
 Russell V. Ashy, 
 
 
 215 
 361 
 
 Q. 
 
 
 
 V. Russell, 
 
 
 123 
 
 Quarrell v. Beckford, 
 
 . 
 
 119 
 
 S. 
 
 
 
 Queen's College, In re. 
 
 
 75 
 
 Sadler v. Jackson, 
 
 
 180 
 
 R. 
 
 
 
 Sainsbury v. Jones, . 
 St. Asaph V. Williams, 
 
 
 81 
 235 
 
 Radcliffe, Ex parte, . 
 
 
 293 
 
 St. John, Lord v. St. John, 
 
 Lady, 
 
 45 
 
 Raine v. Cairns, 
 
 
 236 
 
 Salisbury v. Hatcher, 
 
 82,89 
 
 Ramsbottom v. Freeman, 
 
 
 355 
 
 Salmon v. Randall, 
 
 . 
 
 212 
 
 Randall v. Randall, . 
 
 
 245 
 
 Salvidge v. Hyde, 
 
 
 310 
 
 V. Russell, . 
 
 
 60 
 
 Salway v. Salway, 
 
 
 57 
 
 Ranger v. Great Western Rail- 
 
 
 Sampson v. Pattison, . 
 
 
 126 
 
 way, 
 
 222 
 
 224 
 
 Samuell v. Howarth, . 
 
 
 106 
 
 Rankin v. Harwood, . 
 
 
 260 
 
 Sandon v. Hooper, 
 
 
 111 
 
 V. Huskisson, 
 
 
 218 
 
 Sanford v. Morrice, 
 
 313 
 
 403 
 
 Raphael v. Boehm, . 
 
 
 64 
 
 Saunders v. Annesley, Lor 
 
 d, . 
 
 190 
 
 Raven V. Waite, 
 
 
 103 
 
 V. Smith, . 
 
 
 215 
 
 Rawson v. Samuel, . 
 
 223, 
 
 358 
 
 Savage v. Brocksopp, 
 Saville v. Saville, 
 
 
 21 
 
 Rawstone v. Parr, 
 
 
 173 
 
 
 289 
 
 Raynes v. Wyse, 
 
 
 360 
 
 Sawyer v. Birchmore, 
 
 
 262 
 
XXll 
 
 TABLE OF ENGLISH CASES. 
 
 Say V. Creed, 
 Scawin v. Scawin, 
 Schneider v. Health 
 Scholefield v. Heafield 
 Schoole V. Sail, . 
 Schreiber v. Creed, 
 Scoones v. Morrell, 
 Scott V. Beecher, 
 
 V. Broadwood, 
 V. Dunbar, 
 V. Jones, . 
 V. Nicholl, 
 Seaborne v. Clifford; 
 Sealey v. Laird, . 
 Seddon v. Connell, . 268 
 Seeley v. Jago, . 
 Selby V. Jackson, 
 
 V. Selby, . 
 Semple v. Birmingham Railway 
 
 Company, 
 Shackell v. Macaulay 
 Shaftsbury v. Marlborough 
 Shakel v. Marlborough, 
 Shaloross v. Dixon, 
 Sharp V. Carker, 
 Sharpe v. Scarborough, 
 Shaw V. Borrer, . 
 
 Ex parte, . 
 
 V. Lindsey, 
 Sheddon v. Goodrich, 
 Sheehy v. Muskerry, 
 Sheffield v. Buckingham 
 
 chess of, . 
 Shelley v. Westbrooke, 
 Shepherd v. Morris, . 
 Shepherd v. Mouls, . 
 Sherman v. Sherman, 
 Sherwood v. Sanderson, 290 
 Shiphard v. Lutwidge, 
 Short V. Lee, 
 Shuttleworth v. Howarth, 
 Sidmouth v. Sidmouth, 
 Sidney v. Shelley, 
 Sieveking v. Behrens, 
 Simmons V. Leonard, 
 Simonds v. White, 
 Simpson v. Howden, Lord, 
 
 V. Vaughan, 
 Sirason v. Jones, 
 Skeats v. Skeats, 
 Skeeles v. Shearly, 
 Skinners' Company v. Irish, 
 Slaney v. Sidney, 
 Sloane v. Cadogan. 
 Small V. Attwood, 
 Smith V. Beaufort, 
 
 V. Clarke, 
 
 V. Claxton, 
 
 V. Clay, . 
 
 V. E. I. Company, 
 
 V. Effingham, . 
 
 V. Garland, 
 
 V. Hurst, . 
 
 V. Jeyes, . 
 
 V. Nethersole, . 
 
 251, 261 
 102 
 179 
 253 
 117 
 152 
 89 
 265 
 19 
 392 
 255 
 317 
 162 
 360 
 1, 303, 319 
 137 
 183 
 275 
 
 317 
 310 
 
 55 
 354 
 157 
 355 
 256 
 255 
 
 14 
 370 
 
 93 
 
 310, 397 
 
 Du. 
 
 195 
 283 
 
 12 
 
 63 
 227 
 , 291, 293 
 255 
 377 
 390 
 102 
 
 33 
 205, 206 
 245 
 271 
 174 
 172 
 285, 289 
 102 
 130 
 353 
 204 
 
 80 
 144, 321 
 
 16 
 
 177 
 
 140 
 
 228 
 
 8 
 
 353 
 
 147 
 
 132 
 
 243, 354 
 
 . 360 
 
 Smythe v. Smythe, . 
 Somerset, Duke of, v. Cookson, 
 South Sea Company v. Wy- 
 
 mondsell, 
 Southy V. Sherwood, . 
 Sowarsby v. Lacy, 
 Spain, King of v. Machado 
 Speer v. Crawter, 
 Spence, Re 
 
 Spencer v. Birmingham Railway, 218 
 
 Spottiswoode V. Clarke, 
 
 Sproule V. Prior, 
 
 Spry V. Bromfield, 
 
 Stacey v. Elph, . 
 
 Stackhouse v. Barnston, 
 
 Stafford v. Selby, 
 
 Stanney v. Walmsley, 
 
 Stansbury r. Arkwright, 
 
 Stanton v. Hall, . 
 
 V. Hatfield, . 
 Stapylton v. Scott, 
 Steele v. Stewart, 
 StefFe V. Andrews, 
 Stephens v. James, . 
 Sterndale v. Haukinson, 
 Stevens v. Keating, . 
 Stewart v. AUiston, . 
 V. Graham, . 
 V. Stewart, . 
 Stickney v. Sewell, . 
 Stiffe V. Everitt, . 
 Sfikeman v. Dawson, 
 Stileman v. Ashdown, 
 Stiles V. Guy, 
 StilwcU V. Wilkins, . 
 Stirling v. Forester, . 
 Stoker v. Dawson, 
 Stocken v. Stocken, . 
 Stockley v. Stockley, 
 Stone V. Compton, 
 
 V. Theed, 
 Storer v. Great Western 
 
 way, 
 Story V. Johnson, 
 
 V. Lennox, 
 
 V. Windsor, 
 Stretch v. Watkins, . 
 Strickland v. Strickland, 275, 340, 392 
 Stuart V. Bute, . 
 
 V. Welch, 
 
 Stubbs V. 
 
 Sturge V. Dimsdale, 
 
 Sturgis V. Champneys, 
 
 Suisse V. Lowther, Lord, . 103, 
 
 Sumner v. Powell, 
 
 Sutherland v. Briggs, 
 
 Sutton V. Scarborough, 
 
 Sykes v. Sykes, . 
 
 356 
 92 
 
 176 
 216 
 156 
 302 
 237 
 281, 283 
 
 217 
 275 
 376 
 
 37 
 228 
 122 
 372 
 303 
 
 49 
 391 
 
 84 
 7 
 192 
 282 
 258 
 218 
 
 90 
 360 
 189, 191 
 
 56 
 
 49 
 176 
 130 
 
 56 
 354 
 270 
 387 
 287 
 190 
 179 
 
 60 
 
 386 
 
 189 
 
 Rail 
 231 
 
 83 
 232 
 401 
 153 
 
 287 
 
 12 
 205 
 400 
 277 
 
 48 
 
 , 104 
 
 173 
 
 87 
 339 
 217 
 
 Taff Vale Company v. Nixon, 
 Talbot V. Ford, . 
 
 V. Shrewsbury, 
 
 222 
 85 
 
 282 
 
TABLE OF ENGLISH CASES. 
 
 XXUl 
 
 Tanner v. Dancey, 
 
 
 388, 
 
 390 
 
 Townshend Peerage Case, 
 
 
 24 
 
 Tasker v. Small, 
 
 
 
 315 
 
 Tregonwell v. Sydenham, 
 
 
 33 
 
 Tatam v. Williams, 
 
 
 173, 
 
 258 
 
 Trinity House Corporation v. 
 
 
 Tatham v. Wright, . 
 
 
 
 250 
 
 Burge, . 
 
 , 
 
 5 
 
 Taylor v. Barclay, 
 
 
 
 335 
 
 Trotter v. Trotter, . 
 
 
 
 383 
 
 V. Field, . 
 
 
 
 242 
 
 Tucker y. Wilson, 
 
 
 
 120 
 
 V. Haygarth, 
 
 
 51 
 
 139 
 
 TuUett V. Armstrong, 
 
 
 44,46 
 
 V. Haylin, 
 
 
 
 226 
 
 TuUit V. Tullit, . 
 
 
 
 143 
 
 V. Heming, 
 
 
 
 18 
 
 Turner v. Borlase, 
 
 
 
 317 
 
 V. Plumer, 
 
 
 
 144 
 
 V. Harvey, 
 
 
 
 178 
 
 V. Pugh, . 
 
 
 
 182 
 
 V. Morgan, 
 
 
 230 
 
 231 
 
 Re, . . 
 
 
 
 284 
 
 V. Turner, 
 
 
 
 287 
 
 V. Randell, 
 
 
 12, 15 
 
 Turton v. Benson, 
 
 
 
 180 
 
 V. Salmon, 
 
 
 184 
 
 321 
 
 Twyford v. Trail 
 
 
 
 387 
 
 V. Shepherd, 
 
 
 
 197 
 
 Twyne's case, . 
 
 
 147, 
 
 151 
 
 V. Southgate, 
 
 
 
 400 
 
 Tyler v. Lake, . 
 
 
 
 45 
 
 Tebbs y. Carpenter, 
 
 
 63, 64 
 
 Tyson v. Fairclough, 
 
 
 354 
 
 Tenham v. Herbert, 
 
 
 
 200 
 
 
 
 
 Teulon v. Curtis, 
 
 
 
 126 
 
 U. 
 
 
 
 Thelluson v. Woodford, 
 
 43, 94 
 
 
 
 
 Thetford School case, 
 
 
 71 
 
 Underbill v. Horwood, 
 
 
 173 
 
 Thomas v. Daring, 
 
 
 91 
 
 Upjohn V. Upjohn, 
 
 
 407 
 
 V. Oakley, . 
 
 
 210 
 
 Urch V. Walker, 
 
 . 37, 38 
 
 Re, . . 
 
 
 297 
 
 Usborne v. Baker, 
 
 , 
 
 413 
 
 Thompson v. Derhara, 
 
 ; 198 
 
 ,409 
 
 
 
 
 Ex parte, . 
 
 
 409 
 
 V. 
 
 
 
 V. Grifiin, . 
 
 
 287 
 
 
 
 
 V. Harrison, 
 
 
 180 
 
 Vandergucht v. De Blaquiere, . 
 
 47 
 
 V. Hefferman, 
 
 
 185 
 
 Vane V. Barnard, 
 
 
 209 
 
 V. Percival, 
 
 
 175 
 
 Vansandau v. Moore, 
 
 
 321 
 
 V. Spiers, . 
 
 
 54 
 
 Vaughan, Ex parte, _ . 
 
 
 109 
 
 V. Williamson, 
 
 
 243 
 
 Vernon v. Keys, 
 
 
 177 
 
 Thornet v. Haines, 
 
 
 178 
 
 V. Thelluson, 
 
 
 260 
 
 Thornton v. Hawley, . 
 
 
 136 
 
 Vice V. Thomas, 
 
 
 247 
 
 Thorpe v. Jackson, . 
 
 
 172 
 
 Vickers v. Cowell, 
 
 
 35 
 
 Thring v. Edgar, 
 
 
 338 
 
 Vigers v. Audley, Lord, 
 
 
 414 
 
 Tickel V. Short, . 
 
 
 227 
 
 Villamy v. Noble, 
 
 
 223 
 
 Timson v. Rarasbottom, 
 
 
 161 
 
 
 
 
 Tindal v. Cobham, 
 
 
 352 
 
 W. 
 
 
 
 Tipping V. Clarke, 
 
 11, 14 
 
 
 
 
 V. Power, 
 
 . 261 
 
 ,390 
 
 Wait, Re, . 
 
 
 242 
 
 Titley v. Davies, 
 
 
 272 
 
 Wake V. Conyers, 
 
 
 237 
 
 Todd V. Gee, . 
 
 
 81 
 
 Walburn v. Ingilby, . 
 
 303 
 
 ,317 
 
 Toldervy v. Colt, 
 
 
 354 
 
 Wales, Princess of V. Live 
 
 rpool. 
 
 
 ToUit V. Tollit, . 
 
 
 100 
 
 Lord, . 
 
 
 18 
 
 Tombs V. Roch, . 
 
 
 265 
 
 Walford v. Pemberton, 
 
 
 414 
 
 Tomlins v. Tomlins, . 
 
 
 363 
 
 Walker v. Fletcher, . 
 
 
 207 
 
 Tomlinson Ex parte, . 
 
 
 292 
 
 V. Jeffreys, . 
 
 
 88 
 
 V. Harrison, 
 
 
 360 
 
 Re, . . 
 
 
 288 
 
 Tonkin v. Lethbridge, 
 
 
 413 
 
 V. Symonds, . 
 
 . 56,58, 62 
 
 Tonson v. Walker, . 
 
 
 213 
 
 V. Wetherell, 
 
 
 286 
 
 Tooke V. Hartley, 
 
 
 120 
 
 V. Woodward, 
 
 
 64 
 
 V. Hastings, . 
 
 
 36 
 
 Wallace v. Pomfret, . 
 
 105 
 
 106 
 
 Tooth V. Canterbury, Dear 
 
 lof, : 
 
 317 
 
 Wallwyn v. Lee, 
 
 
 160 
 
 Topham v. Lightbody, 
 
 
 382 
 
 Walmsley v. Child, . 
 
 , 
 
 168 
 
 Toulmin v. Copland, 
 
 416 
 
 417 
 
 Walsh V. Gladstone, . 
 
 
 249 
 
 Toussaint v. Martinant, 
 
 
 265 
 
 Walsingham v. Goodriche 
 
 
 7 
 
 Townley v. Bedwell, 
 
 
 141 
 
 Walworth v. Holt, 
 
 241 
 
 322 
 
 V. Dean, 
 
 
 206 
 
 Warburton v. Storr, . 
 
 
 192 
 
 Townsend v. Carus, . 
 
 
 67 
 
 Ward V. Audland, 
 
 
 80 
 
 V. Champernow 
 
 ne, . 
 
 89 
 
 V. Baugh, 
 
 . 
 
 96 
 
 Re, . . 
 
 
 115 
 
 Ware v. PolhiU, 
 
 . 
 
 285 
 
 V. Stangroom, 
 
 
 
 Warner v. Baynes, . 
 
 
 230 
 
 85,1' 
 
 m, 171 
 
 ,172 
 
 Warren v. Richardson, 
 
 
 87 
 
 V. Westac 
 
 M, 
 
 
 147 
 
 Waterford v. Knight, 
 
 
 378 
 
 414 
 
XXIV 
 
 TABLE OF ENGLISH CASES. 
 
 Waters v. Bailey, ... 60 
 
 V. Taylor, . . 243, 354 
 
 Watkins v. Cheek, . . .156 
 
 Watts V. Girdlestone, . . 63 
 
 Re 293 
 
 Way V. Bassett. . . . 173 
 
 Weale v. Rice, . . . .105 
 w. West Middlesex Water 
 Works, . . .201 
 Weaver, Re, ... . 199 
 Webb V. Manchester and Leeds 
 
 Railway, . . 211 
 
 Re 292 
 
 V. Shaftesbury, Lord, . 285 
 
 Webber V. Hunt, . . .118 
 
 Wedderburn v. Wedderburn, 62, 246 
 
 Wedgewood v. Adams, . 84, 85 
 
 Wellesley's case, . . . 326 
 
 Wellesley v. Beaufort, 282, 283, 288 
 
 V. Wellesley, 36, 209, 281, 334 
 
 Wells V. Cooper, . . . -224 
 
 West V. Reid, . . . .159 
 
 V. Retford, In re, . 76 
 
 V. Shuttleworth, . . 68 
 
 V. Smith 397 
 
 Westby v. Westby, . . .189 
 
 Westcott V. Culliford, . . 392 
 
 Westmeath v. Salisbury, . . 45 
 
 Wetherell v. Collins, . . 115 
 
 Ex parte . . .124 
 
 Whalley v. Dawson, . . . 310 
 
 Wharton v. Durham, Earl of, 104, 105 
 
 V. Wharton, . 11 
 
 Whatman v, Gibson, . . . 152 
 
 Wheatley v. Slade, ... 91 
 
 Wheldale v. Partridge, . . 137 
 
 Whitaker v. Newman, . . 376 
 
 V. Wright, . 258, 370, 387 
 
 Whitbread v. Brockurst, . . 340 
 
 Exparle, 123, 124, 295,297 
 
 White V. Cuddon. 
 
 V. Hillacre 
 
 V. Lisle, . 
 
 V. Warner, 
 
 V. White, 
 
 V. Williams, . 
 
 V. Wilson, 
 Whitehead v. North, 
 Whitehouse v. Partridge, . 
 Whitemarsh v. Robertson, 
 Whitmore v. O-tborrow, . 
 
 V. Ryan, . 
 Whittaker, Re, . 
 Whittingham v. Thornburgh, 
 Whitton, Ex parte, . 
 Whitworlh v. Gangani, 
 Widdowson v. Harrington, Lord, 
 Wigsell V. Wigsell, . 
 Wilding V. Richards, . 
 Wilkens v. Arkin, 
 Wilkins v. Fry, . . . , 
 
 V. Stephens, . 
 Wilkinson v. Henderson, . 
 Willanv. WiUan, . 
 Willata V. Busby, 
 
 91, 177 
 
 . 165 
 
 . 376 
 
 . 109 
 
 39, 270 
 
 11 
 
 , 377 
 
 . 397 
 
 . 360 
 
 . 59 
 
 . 409 
 
 . 324 
 
 . 292 
 
 179 
 
 117 
 
 149 
 
 65 
 
 270 
 
 31 
 
 215 
 
 55 
 
 144 
 
 173 
 
 383 
 
 323 
 
 147, 
 
 Willet V. Winnell, . . .112 
 
 Willett V. Blandford, . 246, 247 
 
 Williams, Ex parte, ... 240 
 
 V. Jersey, Earl of, 150, 303 
 
 V. Lonsdale, . 51, 65 
 
 V. Owen, . . . Ill 
 
 V. Williams, . . 216 
 
 Williamson v. Gihon, . . 180 
 
 Willis V. Jernegan, . . . 227 
 
 Willoughby v. Willoughby, 52, 163 
 
 Wills V. Slade, . . . .230 
 
 Wills V. Stradling, ... 87 
 
 Wilmott V. Jenkins, . . . 251 
 
 Wilmfct V. Pyke, . 53, 160, 161 
 
 Wilson V. Beddard, . . .377 
 
 V. Cluer, . . .119 
 
 Ex parte, . . . 114 
 
 V. Metcalfe, . . .119 
 
 V. Moore, ... 62 
 
 V. Stanhope, . . 322 
 
 V. Wilson, . . .170 
 
 Wiltshire v. Rabbits, . . 161 
 
 Winter v. Anson, . . 128, 129 
 
 V. Innes, . . 173, 385 
 
 Withy V. Cottle, ... 83 
 
 Witter V. Witter, . . .143 
 
 Witty V. Marshall, . . .282 
 
 Wood V. Abrey, . . .187 
 
 V. Downes, ... 54 
 
 V. Griffith, . . 192, 400 
 
 V. Hitchings, ... 10 
 
 V. Milner, . . .399 
 
 V. Rowcliffe, ... 92 
 
 Woodgate v. Field, . . 258, 372 
 
 Woodhouse v. Shepley, . . 187 
 
 Woodmason v. Doyne, . 400 
 
 Woodroffe v. Daniel, . . .308 
 
 Woodward v. Millar, . . . 177 
 
 Woodyatt v. Gresley, . . 62 
 
 Wormald v. De Lisle, . . 303 
 
 Worrall v. Jacob, . . .170 
 
 V. Jones, . . . 364 
 
 Wortley v. Birkhead, . 162 
 
 Wrangham, Ex parte, . 75 
 
 Wray v. Steele, .... 35 
 
 Wren v. Kirton, . . . . ,58 
 
 Wright V. Atkyns, ... 31 
 
 V. Howard, . . 392 
 
 V. Jones, ... 21 
 
 V. Morley, ... 49 
 
 V. Pilling, . . 399 
 
 V. Simpson, . . . 273 
 
 V. Tallis, . . .216 
 
 Wyatt V. Barwell, . . .155 
 
 Wythe V. Henniker, . . 264, 275 
 
 Yates V. Hambley, ... 12 
 
 Yonge, E,x Parte, . . .246 
 York, Mayor of, v. Pilkington, 200, 204 
 
 Young V. Keighly, . . .241 
 
 V. Walker, . . .192 
 
 V. Young, , . . 172 
 
 Yovatt V. Winyard, . . . 210 
 
TABLE OF CASES, 
 
 CITED IN THE AMERICAN NOTES. 
 
 THE PAGES KEFEKEED TO AKE THOSE BETWEEN BRACKETS [ ]. 
 
 Abercrombie y. Knox, 
 Abraham v. Plestoro, 
 Adams v. Brackett, 
 Addison v. Bowie, 
 Adsit V. Adsit, . 
 Agnew V. Bell, . 
 Agric. Bk. v. PalleU; 
 Aiken v. Ballard, 
 Albea v. Griffin, . 
 Allen T. Coffraan, 
 V. Randolph, 
 V. Wood, . 
 T. Chambers, 
 V. Gratz, . 
 Allen's Estate, . 
 AUexander v. Fisher, 
 
 V. Pendleton, 
 Alison V. Allison, 
 Alsberry v. Hawkins, 
 Alston V. Munford, . 
 Ambler v. Norton, 
 Ameling v. Seekamp, 
 Ancrum v. Dawson, . 
 Anderson v. Thompson, 
 V. Lewis, . 
 V. Chick, . 
 V. Wilkinson, 
 V. Tompkins, 
 V. Ward, . 
 Andrews v. Jones, 
 
 V. Solomon, . 
 Annan v. Merrit, 
 Anthony v. Leftwick, 
 Apthorpe v. Comstock, 
 Arganbright v. Campbell, 
 Arendell v. Blackwell, 
 Armsby v. Wood, 
 
 Page 
 268 
 310 
 274 
 287 
 
 95 
 269 
 270 
 303 
 
 86 
 309 
 338 
 269 
 
 86 
 
 92 
 
 86 
 208 
 157 
 364 
 233 
 275 
 
 95 
 210 
 360 
 286 
 336 
 
 86 
 205 
 240 
 402 
 
 48 
 6 
 
 86 
 78, 304 
 196 
 
 43 
 346 
 364 
 
 
 Armstrong v. Athens Co., 
 Ashbrook v. Watkins, 
 Ashe V. Hale, 
 Astorv. Miller, . 
 
 V. Wells, . 
 Astreen v. Flanagan, 
 Atkins V. Chilson, 
 Atkinson v. Monks, 
 Atlantic Ins. Co. v. Lamar, 
 Attorney-General v. Utica 
 
 Co., 
 Atwood V. Vincent, 
 Averill v. Loucks, 
 Avery v. Kellogg, 
 V. Petten, 
 Aymar v. Rott, . 
 Aymer v. Gault, 
 Ayresv. Husted, 
 
 V. Mitchell, 
 
 V. Valentine, 
 
 B. 
 
 Page 
 
 . 362 
 
 . 188 
 
 . 196 
 
 . 114 
 
 . 157 
 
 . 102 
 
 . 208 
 
 21, 206 
 
 . 19 
 Ins. 
 
 . 211 
 
 . 128 
 
 252, 272 
 
 . 310 
 
 . 319 
 
 . 281 
 
 . 206 
 
 . 272 
 
 . 174 
 
 . 346 
 
 Backhouse v. Patton, . 
 
 
 
 254 
 
 Backler v. Farrow, . 
 
 
 
 233 
 
 Bailey v. Dean, . 
 
 
 
 20 
 
 V. Burton, 
 
 
 
 309 
 
 V. Green, 
 
 
 
 3 
 
 V. Le Roy, . 
 
 
 
 337 
 
 V. Wilson, 
 
 11, 
 
 308 
 
 344 
 
 V. Duncan's Rep's, . 233 
 Bainbridge V. Owen, . . .118 
 Baines v. McGee, . . .310 
 Baird v. Baird, . . . 241, 246 
 Baker v. Biddle 227 
 
XXVI 
 
 TABLK OF AMERICAN CASES. 
 
 Baker v. Whiting, . . .399 
 Baldwin v. Salter, ... 84 
 
 V. Johnson, . . . 246 
 Ballard v. Bowers, . . .233 
 
 V. Taylor, ... 45 
 Bankv. Adger, .... 269 
 Bank of Columbia V. Wagner, . 89 
 
 Kentucky v. Vance, . 272 
 
 Monroe v. Schermer- 
 horn, . 
 
 U. S. V. Daniel, 
 V. Carol!, 
 V, Beverly, 
 V. SohuUz, 
 
 Utica V. Messereau, ! 
 Baptist Association v. Hart's Ex- 
 ecutors, . 
 Barnes v. Lee, . 
 Barnett V. Barnett, 
 Barrow v. Rhinelander, 
 Bartholomew v. Yaw, 
 Bartle v. Nutt, . 
 Bartlett v. Gouge, 
 Bates V. Delavan, 
 Bayley v. Greenleaf, 
 Baylies v. Busen, 
 Beach V. Beach, . 
 V. White, . 
 Bean v. Valle, 
 Beaty v. Beaty, . 
 V. Kurtz, . 
 V. Thompson, 
 Beavers v. Smith, 
 Beck V. Simmons, 
 Beckwith v, Kouns, 
 Bedell v. Hoffman, 
 Bell V. Jasper, . 
 
 V. Mayor of New York, 
 
 113, 118,233 
 V. Shrock, . 
 Belloat V. Morse, 
 Bellows V. Stone, 
 Bemis v. Upham, 
 Benedict v. Lynch, 
 Benson v. Le Roy, 
 Bentley v. Cowman, 
 Benzein v. Lenoir, 
 Bergen v. Bennet, 
 Berry v. Rogers, 
 Besley v. Lawrence 
 Best v. Blackburns, 
 Beverly v. Brooke, 
 Bibb V. McKinley, 
 Bible V. Smith, . 
 Biddle v. Ash, . 
 Bigelow V. Wilson, 
 
 V. Hartford Bridgi 
 Biggs V. Kouns, . 
 Billington v. Welsh, 
 Bishop V. Day, . 
 
 V. Breckles, 
 
 196 
 170 
 315 
 261 
 304 
 ,344 
 
 65 
 . 110 
 . 188 
 
 227, 379 
 . 197 
 . 268 
 . 233 
 . 84 
 . 128 
 . 121 
 . 309 
 . 317 
 79, 86 
 . 194 
 . 321 
 . 21 
 . 233 
 . 174 
 . 84 
 . 202 
 
 269, 364 
 
 317 
 . 303 
 
 172, 338 
 . 211 
 82, 89 
 
 254, 259 
 333 
 151 
 121 
 297 
 272 
 177 
 270 
 281 
 21 
 211 
 114 
 211 
 205 
 152 
 270 
 243 
 
 Co, 
 
 241, 
 
 Bixler v. Taylor, 
 Bank of United States 
 
 rington, . 
 Black V. Bush, . 
 
 V. Hair et al., . 
 
 V. Scott, . 
 Blair v. Bass, 
 Blake v. Heyward, 
 Bloodgood V. Kane, . 
 V. Zeily, . 
 Blount V. Garen, 
 Blow V. Maynard, 
 Blue V. Patterson, 
 
 Car- 
 
 37 
 
 Bogardus v. Trinity Church, 338, 339 
 Bogert V. Bogert, ... 17 
 Boiling V. Boiling, . . .227 
 Bolton V. Gardner, . . . 338 
 Bolware v. Bolware, . . . 167 
 Bond V. Hendricks, . . . 196 
 Boone v. Childs, . . .304 
 
 Booth V. Albertson, . . .313 
 
 V. Barnum, . . . 151 
 Borah v. Archer, . . 233, 315 
 Borth V. Sincath, . . .287 
 
 Boston Co. V. Worcester R. R. 
 
 Corp 303 
 
 Botifeur v. Weyman et al., . 227 
 
 Botsford V. Beers et al., . . 303 
 
 V. Burr, ... 32 
 
 Boughton V. Allen, . . .312 
 
 Bowditch V. Green, . . . 269 
 
 Bowman v. Bates, . . .177 
 
 V. Irons, ... 78 
 
 V. Wathen, . . .157 
 
 Boyd V. Hawkins, . . 61, 62 
 
 V. Hoyt 310 
 
 V. McLean, ... 32 
 Bracken v. Kennedy, . . . 240 
 Brackenbridge v. Holland, 57, 61 
 
 Bradberry v. Keas, . . . 174 
 Bradbury v. White, ... 85 
 Bradford v. Geiss, . . . 344 
 Bradsher v. Lea, . . . 211 
 Brady v. McCosker, . . .309 
 
 V. Waldron, . . .208 
 
 v. Weeks, . . .211 
 Brailsford v. Heyward, . . 41 
 Brashear v. Macey, . . . 208 
 Brasher v. Van Cortlandt, . 297 
 
 Brashier v. Gratz, ... 89 
 Braxton v. Coleman, . . . 233 
 Brazee v. Lancaster Bank, . 163 
 Breckenridge v. Brooks, . . 118 
 V. Ormsby, . . 183 
 Brewster v. Hammet, . 242, 243 
 Brice v. Brice, .... 151 
 Brickell v. Jones, . . .197 
 Bridgen v. Carhartt, . . .163 
 Briggs v. The Planter's Bank, . 272 
 Brinckerhoffv. Shallhimer, . 121 
 Britton v. Updike, . . .270 
 
 . 32 
 . 243 
 . 61 
 . 254 
 32, 112 
 . 158 
 . 337 
 112, 227 
 . 335 
 . 233 
 . 248 
 
TABLE OF AMERICAN CASES. 
 
 XXVll 
 
 Broadus v. Roseon, . 
 
 
 286 
 
 Byers v. McClanahan, 
 
 . 269 
 
 Brock V. Cock, . 
 
 
 86 
 
 
 
 Brockway v. Copp, . 
 
 
 335 
 
 
 
 Brookfield v. Williams, 
 
 
 233 
 
 
 
 Brooks V. Byam, 
 
 9 
 
 344 
 
 C. 
 
 
 V. Gibbons, . 
 
 
 335 
 
 
 
 V. Wheelock, 
 
 
 86 
 
 
 
 Brewer v. Fisher, 
 
 
 290 
 
 Cabeen v. Gordon, 
 
 78, 82 
 
 Brown v. Caldwell, . 
 
 
 95 
 
 Caldwell v. Knott, . 
 
 . 210 
 
 V. Curtis, 
 
 
 334 
 
 V. Stileman, 
 
 . 241 
 
 V. Gilliland, . 
 
 
 78 
 
 V. Taggart, . 
 
 . 312 
 
 V. Haff, . 
 
 
 360 
 
 V. Williams, 
 
 . 194 
 
 V. Higginbotham, 
 
 
 239 
 
 Calvit V. Markham, . 
 
 . 240 
 
 V. James, 
 
 
 275 
 
 Calwell V. Boyer, 
 
 20, 231 
 
 V. Lynch, 
 
 
 32 
 
 Camblat v. Tupery, . 
 
 . 241 
 
 V. McDonald, . 
 
 . 257 
 
 309 
 
 Campbell v. Baldwin, 
 
 . 128 
 
 V. Nickle, 
 
 
 112 
 
 V. Johnston, 
 
 . 61 
 
 V. Ricketts, 55, 9 
 
 2, 257 
 
 320 
 
 V. Mesier, . 
 
 267, 319 
 
 V. Southworth, 
 
 
 23 
 
 V. Western, 
 
 . 192 
 
 V. Swann, 
 
 
 197 
 
 V. Whittinghara, 
 
 . 179 
 
 V. Thompson, 
 
 
 252 
 
 Cammack v. Johnson, 
 
 . 243 
 
 V. Vanlier, 
 
 
 128 
 
 Camp V. Bates, . 
 
 . 208 
 
 V. Worcester Bank, 
 
 
 114 
 
 Canal Co. v. Railroad Co., 
 
 . 303 
 
 Bruce v. Burdet, 
 
 
 220 
 
 Canfield v. Morgan, . 
 
 . 206 
 
 V. Edwards, 
 
 
 268 
 
 Cannon v. Norton, 
 
 . 20 
 
 Bruen v. Crane, .' 
 
 
 317 
 
 Capeheart v. Huey, . 
 
 . 364 
 
 Brurton v. Rutland, . 
 
 230 
 
 310 
 
 Capnerv. Flemington Mining 
 
 Co., 208 
 
 Brush V. Vandenbergh, 
 
 \ , 
 
 23 
 
 Carberry v. Tanehill, 
 
 . 84 
 
 Bryan v. BIythe, et al., 
 
 309 
 
 310 
 
 Carey v. Hillhouse, . 
 
 . 312 
 
 Buckham v. Sumner, 
 
 . 243 
 
 246 
 
 Carmichael v. Browder, 
 
 . 309 
 
 Buckley v. Corse, 
 
 . 195 
 
 346 
 
 Carneal v. Wilson, 
 
 . 344 
 
 Buddv. Busii, . 
 
 
 128 
 
 Carpenter v. Schermerhorn, 
 
 . 231 
 
 Buffalow V. Buffalo w. 
 
 . 183 
 
 310 
 
 Carrington v. Brents, . 
 
 . 157 
 
 Buford V. Francisco, . 
 
 
 360 
 
 Carson v. Murray, 
 
 . 45 
 
 BugbeeT. Sargent, . 
 
 
 310 
 
 Carter v. Carter, 
 
 . 233 
 
 Bull V. Bull, 
 
 
 31 
 
 V. Champion, . 
 
 . 154 
 
 Bullock V. Boyd, 
 
 . 226 
 
 227 
 
 V. Longworth, . 
 
 335, 336 
 
 Bulows V. Committee of 0' 
 
 Neal, 
 
 194 
 
 V. Treadwell, . 
 
 . 309 
 
 Eumpus V. Plainer, . 
 
 , 
 
 152 
 
 Cartwright v. Clark, . 
 
 . 403 
 
 Burden v. MoElmoyle, 
 
 
 228 
 
 Cary v. Folsom, 
 
 . 270 
 
 Burgess T. Smith, 
 Burhans v. Burhans, . 
 
 
 198 
 
 Case V. Abeel, . 
 
 57,61 
 
 . 230 
 
 312 
 
 of Covenhoven, . 
 
 . 292 
 
 Burk V. Chrisman, 
 
 
 269 
 
 ofKeyzey, . 
 
 . 261 
 
 Burn V. Poang, . 
 
 
 397 
 
 Casler V. Thompson, . 
 
 . 86 
 
 Burnett v. Denniston, 
 
 
 114 
 
 Castleman v. Veitch, . 
 
 230, 335 
 
 Burns v. Huntingdon Bank 
 
 _l [ 
 
 269 
 
 Catlin V. Valentine, . 
 
 . 211 
 
 Burnside v. Merrick, . 
 
 
 246 
 
 Caton V. Willis, . 
 
 . 303 
 
 Burpee v. Smith, 
 
 , 
 
 334 
 
 Chalmers v. Chambers, 
 
 . 309 
 
 Burr V. M'Ewen, 
 
 
 62 
 
 Chamberlain v. Thompson, 
 
 . 28 
 
 V. Sim, 
 
 136 
 
 139 
 
 Chamberlayne v. Temple, 
 
 . 270 
 
 Burrows v. McWhann, 
 
 
 269 
 
 Chambers, et al. v. Mauldin, 
 
 . 38 
 
 Burr's Trial, 
 
 
 8 
 
 Chamblainv. Laytin, . 
 
 . 170 
 
 Burt V. Cassity, . 
 
 
 151 
 
 Chamblin v. Chamblin, 
 
 9 
 
 Burwell V. Cawood, . 
 
 316 
 
 323 
 
 Chance v. Teeple, 
 
 . 21 
 
 V. Mandeville, 
 
 
 241 
 
 Chapin v. Weed, 
 
 . 61 
 
 Butler V. Ardia, 
 
 
 226 
 
 Chapline v. Moore, . 
 
 . 287 
 
 V. Catling, 
 
 
 344 
 
 Chapman v. Chapman, 
 
 . 23 
 
 V. Durham, 
 
 169 
 
 309 
 
 Chappedelaine v. Dechenaux 
 
 . 227 
 
 V. Elliott, 
 
 
 364 
 
 Chase v. Barrett, 
 
 . 239 
 
 V. O'Hear, . 
 
 
 84 
 
 V. Lookerman, 
 
 . 275 
 
 Butts V. Genung, 
 
 
 310 
 
 Chase's Case, , 
 
 . 335 
 
xxviii TABLE OF AMERICAN CASES. 
 
 Cheeseborough v. Millard, 270, 272 
 Cherry v. Belcher, . . .320 
 Chester v. Greer, . . . 250 
 Chesterman v. Gardner, . . 151 
 Child V. Brace, .... 61 
 Christ V. Diffenbach, . . .106 
 Christian v. Ellis, . . 240, 243 
 Christmas v. Mitchell, . . 290 
 Churchill v. Akin, ... 61 
 City Council v. Page, . . 224 
 City of Rochester V. Curtiss, . 211 
 Glamorgan v. Guisse, . . 310 
 Clancy v. Craine, . . . 334 
 Clark V. Beach, . . .256 
 
 V. Bundy 23 
 
 V. Burnham, ... 32 
 
 V. Davis, . . . 335 
 
 V. Dutcher, . . .188 
 
 V.Henry, . . .112 
 
 V. Hunt, . . . 128, 129 
 
 V. Long, .... 312 
 
 V. Partridge, . . 106, 172 
 
 V. Phelps, . . .335 
 
 V. Saginaw, . . . 339 
 
 Clarkson v. Morgan, . . . 157 
 
 V. De Fevster, . 55, 302 
 
 Clason V. Morris, ' . .21, 269 
 
 Clay V. Turner 174 
 
 Cleland v. Gray, . . .399 
 Cloud V. Hamilton, ... 17 
 Cloudas's Ex'r v. Adams, . 254 
 Clowes V. Dickinson, . . 270 
 Cocke V. Evans, . . 310, 399 
 V. Phillips, . . .233 
 Coe V. Turner, . . . .310 
 Cogswell V. Cogswell, . . 261 
 Coleman v. Gage, . . . 196 
 Coleman's Case, . . 290 
 Coles et al. v. Brown, . . 85 
 V. Raymond, ... 21 
 v. Trecothick, ... 61 
 Collins V. Dickinson, . . 220, 230 
 Collom V. Francis, ... 13 
 Colton V. Ross, . . . 248, 309 
 Coml. Bk. V. Western R. B., 269, 270 
 Commonwealth v. Martin's Ex- 
 ecutors, 136 
 
 Commonwealth v. Rodes, . . 154 
 Compton V. Greer, . . . 227 
 Comstock V. Rayford, . . 302 
 Conklin v. Conklin, . . . 233 
 Conner v. Chase, ... 20 
 Conrad v. Harrison, . , . 270 
 Consequa v. Fanning, . 227, 379 
 Contee v. Dawson, . . 55, 312 
 Conway, Ex parte, ... 37 
 Conwell V. Evill, . . .112 
 V. Sandidge, 242, 243, 244 
 
 Cooper V. Davis 208 
 
 V. Gunn, .... 317 
 V. Martin, . . .114 
 
 316, 
 
 112 
 268 
 211 
 310 
 400 
 . 151 
 . 270 
 . 248 
 . 270 
 . 361 
 . 196 
 . 303 
 . 78 
 . 233 
 . 86 
 . 128 
 . 360 
 92 
 136, 139 
 . 114 
 . 258 
 . 167 
 . 208 
 . 269 
 . 115 
 304, 312 
 
 Cooper V. Whitney, 
 Cope V. Smith, . 
 Corning v. Lowerre, 
 Cornwell v. Lee, 
 Coster V. Clarke, 
 Cotton V. Hart, . 
 Coutant V. Sevoss, 
 Cowden v. Cowden, 
 Cowden's Estate, 
 Cowdin V. Cram, 
 Cowles V. Carter, 
 
 V. Buchanan, 
 
 V. Whitman, 
 Cowman v. Hall, 
 Cox v. Cox, 
 
 v. Fenwick, 
 V. Scott, 
 Craig V. Craig, . 
 V. Leslie, . 
 Craik v. Clark, . 
 Cram v. Green, . 
 Crawford v. Summers, 
 Crawley v. Timberlake, 
 Creager v. Bengle, 
 Crittenden v. Brainard, 
 Crocker v. Higgins,' . 
 Croft V. Administrators of Town 
 
 send, .... 43 
 V. Moore, . . . .269 
 Cromer v. Pinckney, . . . 258 
 Cropster v. Griffith, . . .233 
 Crosby v. Berger, ... 6 
 Croton Turnpike v. Ryder, . 211 
 Crouch V. Puryear, . . . 208 
 Cruger and others v. Halliday's 
 
 Adm'x., ... 38, 303 
 Cruger v. Heyward, . . . 287 
 Cudworth V. Hall's Adm'r., . 40 
 CuUum V. Casey, . . . 197 
 
 V. Emanuel, . . . 118 
 Cumberland v. Codrington, 
 
 261,265,274 
 Cummins v. White, . . 220, 222 
 Cunningham v. Littlefield, . 240 
 Curry v. Larer, .... 108 
 Curtis V. Lunn, . . . 152 
 
 V. Tyler, . . .310 
 
 Cushing V. Ayer, . . . 270 
 Cutting V. Carter, . . . 208 
 Cuyler v. Ensworth, . . . 269 
 
 et al. V. Bogert et al., 8, 308 
 
 D. 
 
 Dabney v. Green, . . . 114 
 
 Dakin v. Demming, . . . 227 
 
 Dale v. Roosevelt, • . . . 194 
 
 Dalzell V. Crawford, ... 78 
 
TABLE OP AMERICAN OASES. 
 
 XXIX 
 
 Dana v. Brown, . 
 Dandridge v. Minge, 
 Danels v. Taggart, 
 Danforth v. Lowry, 
 Daniel v. Ballard, 
 V. Joyner, 
 V. Mitchell, 
 
 . 321 
 . 261 
 . 337 
 . 451 
 . 269 
 . 270 
 21, 397, 399 
 et al. V. Morrison's Ex'r, 
 
 309, 403 
 
 Dashiel v. Collier, 
 David V. Grahame, 
 Davis V. Davis, . 
 
 V. Harkness, 
 
 V. Mapes, 
 
 V. Mickell, 
 
 V. Roberts, 
 
 V. Simpson, 
 Davison v. De Freest, 
 Davoue v. Fanning, . 
 Dawes V. Howard, 
 Dawson v. Dawson, . 
 V. Lawrence, 
 V. Williams, . 
 Deal's Exr's v. Rogers, 
 Dean v. Dean, . 
 
 v. Mitchell, 
 Deas V. Harvie, . 
 Deaty v. Murphy, 
 Decamp v. Feay, 
 
 233 
 121 
 230 
 281, 286 
 308 
 269 
 286 
 
 61 
 285 
 61,309, 320 
 287 
 
 37 
 302 
 238 
 226 
 128 
 233 
 
 20 
 183 
 
 91 
 
 De Caters v. Le Roy de Chamont, 61 
 Deckard v. Case, . . . 241 
 Deibler v. Barwick, . . . 128 
 De La Vergne v. Evertson, . 312 
 Delafield v. State of Illinois, . 194 
 Delahay V. M'Connel, . . 112 
 Delaware and Maryland R. R, 
 
 Co. V. Stump, 
 Delony v. Hutchinson, 
 
 V. Walker, 
 Demarest v. Wynkoop, 
 Denton v. Denton, 
 
 V. Graves, 
 
 V. Jackson, 
 De Peyster v. Clendining, 
 V. Graves, 
 et al. v. Gould 
 Derush v. Brown, 
 Deveau v. Fowler, 
 Devereaux v. Cooper, 
 Dewit V. Tates, . 
 De Wolf V. Mallett, . 
 Dexter v. Arnold, 
 Dey V. Dunham, 
 Dias V. Bouchaud, 
 Dickey v. Thompson, 
 Dickinson v. Legare, 
 Didier v. Davison, 
 DiffenderfFer v. Winder; 
 Diles V. Fleming, 
 Dilly V. Heckrott, 
 Dimmock v. Bixby, . 
 
 115 
 
 et al, 
 
 211 
 246 
 231 
 152 
 360 
 194 
 321 
 37 
 196 
 32 
 233 
 243 
 
 308, 344 
 104 
 312 
 
 227, 386 
 112 
 
 315, 320 
 270 
 240 
 340 
 55 
 43 
 304 
 
 310, 335 
 
 242, 
 
 283 
 
 32 
 
 151 
 
 239 
 
 .302 
 
 240 
 
 310 
 
 243 
 
 272 
 
 61 
 
 285 
 
 32 
 
 118 
 244, 245 
 113 
 208 
 
 85 
 129 
 
 32 
 
 321 
 
 136 
 
 17, 403 
 
 170 
 
 281 
 
 Disbrow v. Henshaw, 
 Dismukes v. Tery, 
 Dixon V. Doe, 
 Dob V. Halsey, . 
 Dodge V. Perkins, 
 Donaldson v. Kendall 
 Donelson's Adm'rs v. Posey 
 Doner v.Stauffer, 
 Dorr V. Shaw, . 
 Dorsey v. Dorsey, 
 
 V. Gilbert, 
 
 et al. V. Clarke et al., 
 Dougherty v. Hampston, 
 V. McColgan, 
 V. Van Nostrand; 
 Douglass V. Sherman, 
 V. Wiggins, 
 Downey v. Hotchkiss, 
 Downing v. Palmateer, 
 Doyle V. Sleeper, 
 Dozier v. Edwards, 
 Drake v. Pell, . 
 Draper V. Gordon, 
 Drew V. Clark, . 
 Drury v. Conner, 
 Dubourg de St. Colombo's heirs 
 
 V. The United States, . .222 
 Duncan v. Lyon, . . . 240 
 
 V. Mizner, . . .312 
 
 Dunham v. Jackson, . . . 360 
 
 V. Minard, . . .231 
 
 V. Osborn, . . .233 
 
 V. Winans, . . .399 
 
 Dunkley V. Van Buren, . . 118 
 
 Dunlap V. Clements, . . . 196 
 
 V. Dunlap, . . .261 
 Dunn V. Moore, .... 86 
 Dunscomb v. Dunscomb, . . 37 
 Dunseth v. Bank U. S., . . 233 
 Dunwidie v. Kerley, . . . 220 
 Dupont V. Johnson, . . . 287 
 Dupuy V. Johnson, . . 268, 270 
 Dustin V. Newcomer, . . 91 
 
 Dutch Church v. Mott, . . 84 
 
 Duval V. Bibb 128 
 
 Duvall V. Waters, . 207, 208, 210 
 Dwinal v. Smith, ... 5 
 
 Dyer v. Clark 245 
 
 v. Martin, . . . 128, 364 
 Dykers v. Wilder, ... 20 
 
 E. 
 
 Eastland v. Vanarsdale, . . 84 
 Eckford v. De Kay, . . .365 
 Eddy V. Traver, . . .272 
 
 Edmonds v. Crenshaw, . . 157 
 Edwards v. Bohannon, . . 317 
 v. Handley, ... 84 
 
XXX 
 
 TABLE OF AMERICAN CASES. 
 
 Egbert v. Brooks, 
 
 . 61 
 
 Egberts v. Wood, 
 
 . 241 
 
 Elderkin v. Shultz, . 
 
 . 317 
 
 Eldred v. Camp, 
 
 . 196 
 
 Eleeson v. Nicholson, 
 
 . 233 
 
 EUerbe v. The Heirs and Lega- 
 
 tees of EUerbe, 
 
 . 287 
 
 EUingwood v. Stevenson, 
 
 . 360 
 
 ElHott V. Armstrong, 
 
 28, 32 
 
 V, Morris, 
 
 . 28 
 
 V. Waring, 
 
 48, 317 
 
 Ellis V. Ellis, . 
 
 . 86 
 
 Ellison V. Daniels, 
 
 . 114 
 
 V. Moffat, 
 
 . 227 
 
 Ellsworth V. Curtis, . 
 
 . 333 
 
 Elmendorf V. Delancey, 
 
 . 312 
 
 Elwood V. Diefendorf, 
 
 . 269 
 
 Emerson v. Udall, 
 
 . 197 
 
 English V. Foxall, 
 
 . 309 
 
 V. Lane, 
 
 . 112 
 
 Ensworth v. Lambert, 
 
 . 315 
 
 Eppes V. Randolph, . 
 
 . 269 
 
 Erb's Appeal, 
 
 . 269 
 
 Erskine v. Townsend, 
 
 . 121 
 
 Eskridge v. McClure, 
 
 . 128 
 
 Essex V. Berry, . 
 
 . 197 
 
 Estill V. Clay, . 
 
 . 312 
 
 Eubank v. Poston, 
 
 . 128 
 
 Evans v. Boiling, 
 
 . 371 
 
 V. Evans, . 
 
 233, 244 
 
 V. Goodlet, 
 
 . 128 
 
 V. Jones, . 
 
 . 154 
 
 V. Kingsberry, 
 
 90, 136 
 
 Everett v. Winn, 
 
 . 317 
 
 Everitt v. Watts, 
 
 . 338 
 
 Everly v. Rice, . 
 
 . 196 
 
 Evertson v. Booth, 
 
 . 272 
 
 V. Tappan, . 
 
 . 233 
 
 Executors of Burr v. Smit 
 
 1, . 65 
 
 Ex'rs of Radcliffe v. Wigh 
 
 man, 227 
 
 Ex parte Crumb, 
 
 281, 283 
 
 " de Graffenreid, 
 
 . 283 
 
 " Drayton, 
 
 . 292 
 
 Fabre v. Colden, 
 Faucher v. Ingraham, 
 Farmer's Bant v. Vanmeter. 
 Farnsworth v. Childs, 
 Faulkner's Adm'x v. Harwood, 
 Felch v. Hopper, 
 Fenton v. Williams, 
 Fentriss v. Robins, 
 Fenwick v. Macey, 
 Fenwicke v. Gibbes, 
 Ferguson v. O'Hara, 
 
 48 
 335 
 197 
 154 
 20 
 20 
 402 
 197 
 115 
 379 
 338 
 
 Field V. Arrovpsmith, . 37, 61 
 
 v. Eaton, .... 92 
 V. Schieffelin, . . 17, 402 
 Findlay v. Smith, . . .208 
 Findlay's Ex'r v. U. S. Bank, . 272 
 Fish v. Miller, . . . .338 
 Fisher v. Fields, . . 28 
 
 V.Kay 91 
 
 V. Tucker, . . .240 
 Fitzgerald v. Peck, . . . 170 
 Fitzpatrick v. Featherstone, 81, 84 
 Flagg V. Mann, . . 123, 151 
 
 Fleming et al. v. Donahoe et al., 28 
 Fletcher V. Wilson, . . .403 
 Foltz V. Pourie & Dawson, . 20 
 Forbes v. Whitlock, . . .321 
 Forde v. Heron, .... 246 
 Forman v. Murray, . . . 286 
 V. Rodgers, . . . 317 
 Foster v. Alston, . . .280 
 V. Cook, . . . .309 
 V. Crenshaw's Ex'rs, . 274 
 Trustees of the Athe- 
 naeum, . . .32, 269 
 Fowle V. Lawrason, . . . 220 
 Fowler v. Saunders, . . . 303 
 Franklin v. Osgood, . . .309 
 Frazer v. Legare, . . 312 
 
 Freeland v. Cocke, . . .227 
 V. Heron, . . .228 
 French v. Loyal Company, . 157 
 V. Shotwell, . 338, 339 
 
 Frisby v. Ballance, . . 78, 84, 85 
 Frothingham v. M'Kusick, . 114 
 Fuller v. Benjamin, . . 321 
 
 V. Yates, .... 95 
 Furman v. Coe, .... 57 
 
 Gadsden v. Lord, . . .269 
 Gaillard v. Parcher, ... 45 
 Gaines v. Chew, . . . 310 
 V. Spann, . . .280 
 Gaines et ux v. Chew, . . 248 
 Gallatian v. Cunningham, . . 17 
 V. Erwin, . . 17, 403 
 Gallegor's Ex'rs v. Attorney- 
 General 65 
 
 Gallegor's Ex'rs v. Lambert, . 65 
 Galloway v. Hamilton's heirs, . 129 
 
 Gait V. Calland 240 
 
 Galphin v. McKinney, . . 316 
 Gammon v. Howe, . . . 108 
 Gans V. Renshaw, ... 84 
 Gardiner v. Dering, . . . 208 
 Gardner V. Newburgh, . . 211 
 Garnett v. Macon, . 79, 89, 261 
 
TABLE OF AMERICAN OASES. 
 
 XXXI 
 
 Garr v. Bright, . 
 
 . 313 
 
 Green v. Winter, 
 
 55, 61, 62 
 
 V. Drake, . 
 
 . 379 
 
 Greenault v. Krider, . 
 
 . 268 
 
 Garretson v. Weaver, 
 
 . 243 
 
 Greene v. Greene, 
 
 . 246 
 
 Garritt v. White, 
 
 . 230 
 
 Greenleafv. Queen, . 
 
 . 55 
 
 Garson v. Green, 
 
 . 128 
 
 Gregory v. Murrell, . 
 
 . 269 
 
 Garton v. Bates, 
 
 . 235 
 
 Gregory's Ex'r v. Forreste 
 
 r, . 227 
 
 Garton's heirs v. Bates, 
 
 . 303 
 
 Griffith V. Coleman, . 
 
 . 313 
 
 Gary v. Cannon, 
 
 . 268 
 
 V. Frederick Co. B 
 
 ank, . 77 
 
 Gass V. Stinson, . 
 
 . 371 
 
 V. Griffith, . 
 
 . 157 
 
 Gatewood v. Rucker, . 
 
 . 317 
 
 Griggs V. Thompson, . 
 
 . 335 
 
 Gause v. Hale, . 
 
 . 45 
 
 Grim v. Wheeler, 
 
 . 344 
 
 Gayle v. Singleton, . 
 
 . 346 
 
 Grimstone v. Carter, . 
 
 . 151 
 
 Gelston v. Hoyt, 
 
 19,20 
 
 Groton v. Roxborough, 
 
 . 114 
 
 Gernon v. Boccaline, . 
 
 . 360 
 
 Grover v. Hall, . 
 
 . 227 
 
 Getman v. A. & C. Getma 
 
 n, . 32 
 
 
 
 Gibbs V. Claggett, 
 
 . 310 
 
 
 
 Gibert v. Colt, . 
 
 . 360 
 
 
 
 Gibson v. Bailey, 
 
 . 121 
 
 
 
 V. Goldthwaite, 
 
 
 H. 
 
 
 203, 2C 
 
 4, 205, 206 
 
 
 
 V. McCormick, 
 
 . 261 
 
 
 
 V. Tilton, 
 
 . 196 
 
 Hackett v. Alcock, 
 
 . 108 
 
 Gibson et al. v. Broadfoot, 
 
 . 192 
 
 Hackwith v. Dararon, 
 
 . 152 
 
 Gilkey v. Paige, 
 
 . 344 
 
 Haddix v. Haddix, 
 
 . 61 
 
 Gill V. Lyon et al.. 
 
 . 270 
 
 Hagthorp v. Hook, 9, 118, 152, 308, 344 
 
 V. Webb, . 
 
 . 175 
 
 Haines v. Beach, 
 
 . 315 
 
 Gillespie v. Moon, 
 
 . 172 
 
 v. 0' Conner, . 
 
 . 32 
 
 V. Somerville, 
 
 . 233 
 
 Halbert v. Grant, 
 
 . 310 
 
 GiUett V.Hall, . 
 
 . 240 
 
 Hale V. James, . 
 
 . 233 
 
 Gilman v. Brown, 
 
 . 128 
 
 V. Hale, 
 
 . 221 
 
 V. Hedin, 
 
 . 121 
 
 V. Henrie, . 
 
 . 246 
 
 Gilmore v. N. A. Land Co 
 
 ., . 243 
 
 Haleyburton v. Kershaw, 
 
 . 261 
 
 Glaze V. Drayton, 
 
 . 81 
 
 Hall V.Hall, . .86,92,263,274 
 
 Glenn v. Fowler, 
 
 . 194 
 
 V. Ross, 
 
 . 84 
 
 Golden v. Maupin, 
 
 . 235 
 
 V. Thompson, 
 
 . 177, 179 
 
 Good V. Herr, 
 
 . 170 
 
 Hallett V. Hallett, 
 
 . 258, 320 
 
 Goodhue v. Barnwell, 
 
 . 281 
 
 Hall's Ex'rs v. Click, 
 
 . 128 
 
 Goodrich v. Pendleton, 3; 
 
 !7, 339, 340 
 
 Hallstead v. Bank of Kentucky, 154 
 
 Goodwin v. State Bank, 
 
 . 196 
 
 Halsted v. Rabb, 
 
 . 221 
 
 Gordon v. Stevens, . 
 
 . 95 
 
 Hamberlin v. Terry, 
 
 . 248 
 
 V. Watkins, . 
 
 . 23 
 
 Hamblin v. Dinneford, 
 
 . 81 
 
 Gorham v. Gorham, . 
 
 . 290 
 
 Hamilton v. Bishop, et al.. 
 
 . 45 
 
 Gott v. Cook, 
 
 . 136 
 
 V. Hughes, . 
 
 . 233 
 
 Gould V. Womack, . 
 
 . 78 
 
 HamHn v. Bridge, 
 
 . 313 
 
 Governeur v. Lynch, . 
 
 . 270 
 
 Hammond v. Hammond, 
 
 . 103 
 
 Gowan v. Jeffries, 
 
 . 243 
 
 V. Michigan £ 
 
 State 
 
 Gracie v. Freeland, . 
 
 . 397 
 
 Bank, . 
 
 . 310 
 
 Graham v. Davidson, . 
 
 . 58 
 
 Hampton v. Levy, 
 
 . 269 
 
 V. Hackwith, 
 
 84, 167 
 
 Hancock v. Day, 
 
 . 268 
 
 Graham's Appeal, 
 
 . 282 
 
 Handley v. Fitzhugh, 
 
 . 220 
 
 Grant v. Duane, 
 
 . 113 
 
 Hanna v. Spotts, 
 
 . 281 
 
 V. U. S. Bank, . 
 
 20, 163 
 
 Hardeman v. Burge, . 
 
 . 192 
 
 Graves v. Fresh, 
 
 . 310 
 
 Harden v. Miller, 
 
 . 335 
 
 Gray v. Washington, . 
 
 . 227 
 
 Harding v. Handy, 
 
 . 303 
 
 Graydon v. Graydon, 
 
 230, 231 
 
 Hardy v. Summers, . 
 
 . 151 
 
 Green v. Green, . 
 
 . 233 
 
 Harland's Accounts, . 
 
 . 287 
 
 V. McKinney, . 
 
 . 312 
 
 Harper v. Reno, . 
 
 . 151 
 
 V. Phillips, 
 
 . 196 
 
 V. Williams, . 
 
 . 128 
 
 V. Ramage, 
 
 . 270 
 
 Harris v. Carter, 
 
 . 151 
 
 V. Slayter, 
 
 151, 157 
 
 V. Thomas, 
 
 . 208 
 
 V. Thompson, . 
 
 . 183 
 
 V. Knickerbocker, . 
 
 . 86 
 
XXxii TABLE OF AMERICAN CASES. 
 
 Harriaon v. Long, 
 
 
 
 221 
 
 Hewitt V. Sturdevant, 
 
 . 241 
 
 V. Mock, 
 
 
 
 57 
 
 Hickey v. Young, 
 
 . 32 
 
 V. Sterry, 
 
 
 
 241 
 
 Hickman v. Cooke, . 
 
 . 310 
 
 Hart V. Hart, 
 
 
 
 86 
 
 V. Grimes, . 
 
 . 78 
 
 V. Hawkins, 
 
 
 
 246 
 
 V. Stout, . 
 
 220, 222 
 
 V. McKean, 
 
 
 
 310 
 
 Higgins V. Woodward, . . 
 
 . 196 
 
 V. Ten Eyck, 
 
 
 57 
 
 379 
 
 Higinbotham v. Burnet, 
 
 . 335 
 
 V. The Mayorof Albany 
 
 ,210 
 
 211 
 
 High and wife v. Batte, 
 
 . 129 
 
 Hartshorne v, Hartshorne, . 
 
 
 233 
 
 Hilar v. Darby's Adm'r, 
 
 . 254 
 
 Harwood v. Kirby, 
 
 
 230 
 
 Himes v. Keller, 
 
 . 269 
 
 Hassanclever v. Tucker, . 
 
 
 274 
 
 Hine v. Hay, 
 
 . 194 
 
 Hasting's Case, . 
 
 
 272 
 
 Hinkle v. Currin, 
 
 . 20 
 
 Hatcher v. Hatcher, . 
 
 86 
 
 270 
 
 Hinsdill v. Murray, . 
 
 . 269 
 
 Hattier v. Elinaud, 
 
 
 192 
 
 Hinson v. Pickett, 
 
 . 399 
 
 Haughy v. Strang, 
 
 
 197 
 
 Hinton v. Cole, . 
 
 . 310 
 
 Havens v. Havens, 
 
 
 95 
 
 Hitchcock v. Harrington, 
 
 . 114 
 
 V. Hussey, 
 
 
 241 
 
 V. Skinner, 
 
 230, 233 
 
 Hawkins v. Hawkins, 
 
 
 364 
 
 V. St. John, 
 
 . 241 
 
 V. King, 
 
 
 110 
 
 Hite T. Hite, 
 
 . 103 
 
 Hawley v. Clowes, . 
 
 
 208 
 
 Hitt v. Halliday, 
 
 . 114 
 
 V. Cramer, . 61 
 
 1.51 
 
 ,312 
 
 Hobart v. Frisbie, 
 
 . 303 
 
 V.James, 37,57,136 
 
 ,139,233 
 
 Hodgson V. Butts, 
 
 . 154 
 
 V. Mancius, . 
 
 61 
 
 272 
 
 Hoes V. Vanhosen, 
 
 . 261 
 
 V. Sheldon, . 
 
 
 82 
 
 Hoffman v. Livingston, 
 
 . 196 
 
 V. Wolverton, 
 
 
 306 
 
 Holgate V. Palmer, . 
 
 . 364 
 
 Hay y. Marshall, 
 
 220 
 
 222 
 
 Holden v. McMakin, . 
 
 243, 246 
 
 Haydon v. Goode, 
 
 
 275 
 
 V. Pike, . 
 
 . 270 
 
 Hayes v. Caldwell, . 
 
 
 3 
 
 HoUister v. Barkley, . 
 
 . 196 
 
 V. Ward, 
 
 
 268 
 
 HoUoway v. Moore, . 
 
 . 20 
 
 Hays v. Jackson, 
 
 263 
 
 275 
 
 Hollsclaw v. Johnson, 
 
 . 335 
 
 V.Hall, . 
 
 
 81 
 
 Holmes v. Logan, 
 
 . 286 
 
 V. Wood, . 
 
 
 270 
 
 Holridge v. Gillespie, 
 
 . 113 
 
 Hayward v. Carroll, . 
 
 20 
 
 304 
 
 Honore v. Colmesnil, 
 
 . 24 
 
 V. Cuthbert, 
 
 
 287 
 
 Hood V. Bowman, 
 
 . 86 
 
 Haywood v. Judson, . 
 
 
 231 
 
 v. Fahnestock, . 
 
 . 157 
 
 Hazen v. Durling, 
 
 
 258 
 
 V. Inman, . 
 
 . 306 
 
 V. Thurber, 
 
 
 233 
 
 Hooper v. Royster, . 
 
 . 319 
 
 Head v. Muir, . 
 
 
 192 
 
 V. Savage, 
 
 . 286 
 
 Hedges v. Ricker, 
 
 
 285 
 
 Hoover v. Hoover, 
 
 263, 275 
 
 Heirs of Holman v. Bank of Nor- 
 
 
 Hopkins Exr's v. Mazynx, 
 
 . 170 
 
 folk 
 
 
 310 
 
 Hopkins v. M'Laren, 
 
 . 157 
 
 Heister v. Madeira, . 
 
 
 112 
 
 Hopkirk v. Page, 
 
 . 317 
 
 Heistrer v. Fortner, . 
 
 
 154 
 
 Horry v. Horry, . 
 
 . 45 
 
 Helm V. Darby, . 
 
 
 259 
 
 Hosford v. Mervin, 
 
 . 230 
 
 Henderson v. Burton, 
 
 128 
 
 254 
 
 Hough V. Richardson, 
 
 . 157 
 
 V. Hays, . 
 
 
 78 
 
 House V. Falconer, 
 
 . 232 
 
 V. Lowry, . 
 
 
 121 
 
 Howe V. Harvey, 
 
 . 302 
 
 V. Wilson, 
 
 
 139 
 
 Howell y. , 
 
 . 243 
 
 Hendricks v. Robinson, 
 
 
 61 
 
 Hoxie v. Carr, . 
 
 243, 246 
 
 Henn v. Walsh, . 
 
 
 243 
 
 Hoy V. Hansborough, 
 
 . 78 
 
 Henning v. Beaver, 
 
 
 
 269 
 
 V. M'Murry, 
 
 . 321 
 
 Henry v. Liles, . 
 Henshaw v. Wills, 
 
 
 
 85 
 
 Hoye V. Brewer, 
 
 . 261 
 
 
 
 114 
 
 Hoyt V. Hilton, . 
 
 . 280 
 
 Hepburn v. Auld, 
 
 .' 84, 89, 90 
 
 Hubble V. Perrin, 
 
 . 243 
 
 v. Curts, 
 
 
 
 240 
 
 Hudson V. Barrett, . 
 
 . 241 
 
 V. Dunlop, 
 
 
 
 84 
 
 V. Isbell, 
 
 . 112 
 
 v. Snyder, 
 
 
 
 128 
 
 V. Huger, 
 
 . 285 
 
 Herbert v. Wren, 
 
 
 
 233 
 
 Huger V. Huger, 
 Huggins V. Hall, 
 Hughes V. Blake, 
 
 . 285 
 
 Herrick v. Blair, 
 
 
 
 192 
 
 . 315 
 
 Herron v. Williamson, 
 
 
 51 
 
 . 21 
 
 Heth V. Cocke, . 
 
 
 
 233 
 
 T. Edwards, . 
 
 114, 118 
 
TABLE OF AMEEICAN CASES. XXxiii* 
 
 Hughes V. Hughes, . . . 287 
 
 Hulbert v. M'Kay, . . .385 
 
 Hultz V. Wright, . . .106 
 
 Humes V. Shelly, . . .121 
 
 Humphrey v. Phinney, . . 233 
 
 Hunt V. Bass, .... 61 
 
 V. Freeman, ... 85 
 
 V. Gookin, . . . 240, 344 
 
 V. Moore, . . . .183 
 
 V. Rousmaniere, . . 170 
 
 V. Townsend, . . .272 
 
 Hunter's Exr's v. Spotswood, . 222 
 
 Hurd V. James, .... 121 
 
 Hunt V. Fisher 136 
 
 Hussey v. Dole 312 
 
 Huston V. M'Clarty's Heirs, . 312 
 Hutcheson v. M'Nutt, . . 82 
 Hutchins v. Hope, . . . 196 
 V. Olcutt, . . .128 
 Hutchinson v. Brown, . . 177 
 
 IngersoU v. Kirby, 
 
 Ingliss V. The Trustees of the 
 
 Sailor's Snug Harbour, 
 Innes v. Evans, . 
 V. Lansing, 
 In re Cooper, 
 
 Kennedy, . 
 Pettit, 
 
 Receiver of the City Bank 
 of Buffalo, 
 In the matter of Isaac L. Kipp, 
 Joshua Jones, 
 Stuyvesant, 
 Wadaworth, 
 the Petition of 
 Oakley, 
 Irwin V. Davidson, 
 
 310 
 
 65 
 337 
 243 
 283 
 283 
 297 
 
 259 
 23 
 37 
 37 
 58 
 
 61 
 210 
 
 Jackson v. Outright, 86, 304, 346, 347 
 
 V. Edwards, . . .232 
 
 v. Forrest, . . .310 
 
 v. Inabinit, ... 6 
 
 V. Jackson, . . . 286 
 
 v. Ligon, ... 89 
 
 Jacobs V. Locke, ... 85 
 
 James v. Bostwick, . . . 240 
 
 V. Hubbard, . . .270 
 
 V. M'Kernon, . . 303, 305 
 
 V. Morey, . . . 154 
 
 Jarvis v. Palmer, . 334, 335, 339 
 
 Jenison v. Graves, ... 32 
 
 Jenkins v. Eldredge, 62, 305, 397, 399 
 
 V. Jenkins, . . . 233 
 
 V. Pye 186 
 
 Jennings v. Davis, ... 55 
 
 V. Spring, , . . 346 
 
 Jerome v. Jerome, ... 23 
 
 V. Ross, . . .210 
 
 Jobe V. O'Brien, . . .270 
 
 John V. Benedict, ... 84 
 
 Johnson v. Brown, . . . 310 
 
 V. Clendenin, . . 360 
 
 V. Gray, . . .112 
 
 V. Johnson, . . 208, 309 
 
 v. Rankin, . . .317 
 
 Johnson's Exr's V. Clarke, . 112 
 
 V. Ketchum, . 227 
 
 Johnston V. Glancey, . . 86 
 
 Jones V. Bullock, . . 220, 364 
 
 V. Creveling's Exr's, . 104 
 
 V. Evans 183 
 
 V. Jones, .... 243 
 
 v. Lynds 313 
 
 V. Stockett, . . 38, 287 
 
 v. Whitehead, . . .208 
 
 Jordon v. Hunt, .... 55 
 
 Joy V. Wirtz 323 
 
 Judah V. Brandon, . . . 258 
 Judd V. Seaver, .... 20 
 
 K. 
 
 King V. Gott 136 
 
 Keeler v. Eastman, . . . 208 
 Keisselbrock V. Livingston, . 106 
 Keith V. Trapier, . . .233 
 Kelly V. Greenleaf, . . .221 
 Kelsey v. Western, . . . 261 
 Kendall v. Honey, . . .235 
 v. The Nev 
 Carpet Co, 
 Kennedy v. Davis, 
 
 V.Kennedy, 
 V. Nedrow, 
 v. Udall, 
 Kerns v. Chambers, 
 
 V. Swope, . 
 Kerr v. Gilmore, 
 
 V. Steamboat Co 
 Kettle V. Vandyck, 
 Kettletas v. Gardiner, 
 Key V. Lambert, 
 Kimberley v. Sells, 
 Kincheloe v. Kincheloe 
 King V. Baldwin, 
 v. Bardeau, 
 V. Donnelly, 
 y. Hamilton, 
 
 England 
 
 61, 272 
 . 317 
 241,243,310,316 
 95 
 48 
 269 
 151 
 112 
 221 
 233 
 283 
 312 
 335 
 23 
 268 
 90, 91 
 . 37 
 84,85 
 
XXxiv* TABLE OF AMERICAN CASES. 
 
 King V. Morford, 
 
 . 78 
 
 V. Ray, 
 
 9 
 
 V. Trice, . 
 
 . 303 
 
 Kinlock v. Hamlin, 
 
 . 240 
 
 Kinsley v. Woodward, 
 
 . 95 
 
 Kinsler v. Clark, 
 
 208, 356 
 
 Kirby v. Dalton, . 
 
 . 233 
 
 V. Schoonmaker, 
 
 . 243 
 
 Kirk V. Hodgson, 
 
 . 364 
 
 Kirkman v. Vaulier, . 
 
 222 
 
 Kirkpatrick v. White, 
 
 . 339 
 
 Kisor V. Stancifer, 
 
 . 334 
 
 Kitredge v. Glaremont, 
 
 9 
 
 Knox V. Smith, . 
 
 . 303 
 
 Koonce v. Bryan, 
 
 . 43 
 
 Krider v. Laflerty, 
 
 . 152 
 
 Kunkle v. Wolfersberger, 
 
 . in 
 
 Kuypers v. Reformed J 
 
 Dutch 
 
 Church, 
 
 . 335 
 
 Kyle V. Roberts, 
 
 . 240 
 
 L. 
 
 19, 
 
 r, 
 
 Lacey ex parte, . 
 Lacy V. Wilson, . 
 Laight V. Morgan, 
 Lainhart v. Reilly, 
 Laraoureux v. Crosby, 
 Lane v. Stebbins, 
 Langdon v. Goddard, 
 
 V. Roane's Adm' 
 Lansing v. Eddy, 
 Larkin v. Mann, 
 Larkins v. Jlhodes, 
 Lasalle v. Barnett, 
 Lathrop's Appeal, 
 Laughlin v. Ferguson, 
 Law V. Ford, 
 Lawrence v. Hammett, 
 Lawson v. Mason, 
 Leacraft v. Demprey, 
 Leadenham v. Nicholson, 
 Leavitt v. Steenbergen, 
 Lee V. Baird, 
 
 V. Beatty, . 
 Lee's Adm'r v. Reed, 
 Leeds v. Marine Ins. Co. of 
 
 Alexandria 20 
 
 Le Fort v. Delafield, . . .335 
 Leggett V. Postly, . . 19, 20 
 
 Leiby v. Wolfe 154 
 
 Leigh V. Cramp, . . 78, 84 
 Lemaster v. Burkhart, . . 304 
 Leroy v. Servis, .... 334 
 Le Roy v. Veeder, . . . 335 
 Lessee of Huston v. Hamilton, . 32 
 Letcher v. Letcher's heirs, . 32 
 V. Schroeder, . . 312 
 
 . 61 
 
 . 152 
 
 . 335 
 
 . 322 
 
 . 290 
 20, 339 
 9 
 
 . 228 
 
 . 197 
 
 . 231 
 
 . 32 
 
 . 151 
 
 . 269 
 
 . 270 
 
 . 243 
 
 . 238 
 
 . 233 
 
 . 339 
 
 . 136 
 
 . 365 
 
 . 197 
 
 . 376 
 227 
 
 Lever v. Lever, . 
 Levert v. Redwood, 
 Levinz v. Mills, 
 Lewis v. Baird, . 
 V. Mew, . 
 V. Moorman, 
 V. Robards, 
 Lightner v. Mooney, 
 Lindsay v. Etheridge, 
 Lindsey v. Rankin, 
 Lingan v. Henderson 
 Lining v. Geddes, 
 Linker v. Smith, 
 Littell V. Mclver, 
 Little V. Marsh, . 
 Livingston v. Harris, 
 
 V. Livingston 
 
 200, 210, 274, 275, 335 
 V. Newkirk, 
 V. Reynolds, 
 V. Story, . 
 V. Tompkins, 
 Lloyd V. Brewster, 
 Lock wood V. Lock wood, 
 Lodwick V. Johnson, . 
 Lomax v. Pendleton, . 
 Long v. Majestre, 
 V. Norcom, 
 v. Oliver, . 
 Longworth v. 'Taylor, 
 Lord V. Lowry, . 
 Lorillard v. Coster, . 
 Loudon V. Warfield, . . . 208 
 Louvalle v. Menard, . . . 233 
 Lowndes v. Chisholm, 118, 170, 269 
 Lozier's Executors v. Van Saun's 
 
 221 
 379 
 154 
 154 
 157 
 233 
 112 
 154 
 196 
 152 
 
 23, 303, 304, 309 
 210 
 180 
 21 
 196 
 334 
 102, 196, 
 275, 335 
 263, 274 
 . 208 
 . 335 
 108, 334 
 . 309 
 . 121 
 . 272 
 . 55 
 222, 316 
 . 286 
 . 196 
 . 84 
 . 23 
 43, 136 
 
 Administrators, 
 Lucas V. Atwood, 
 
 V. Bank of Darien, 
 V. Hickman, 
 Luckett V. White, 
 Ludlow V. Simond, 
 Lunsford v. Bostion, . 
 Lupton V. Janney, 
 V. Lupton, 
 Lynch v. Johnson, 
 Lyne v. Guardian, 
 Lyon V. Tallmadge, . 
 Lyrely v. Wheeler, . 
 
 M. 
 
 Maccubin v. Cromwell, 
 Macon v. Sheppard, . 
 Mactier v. Lawrence, 
 Mallow V. Hinde, 
 Manchester v. Dey, . 
 Mandeville v. Riggs, . 
 
 . 203 
 . 243 
 
 197, 312 
 . 360 
 . 310 
 
 220, 221 
 . 379 
 . 227 
 
 103, 364 
 . 310 
 . 248 
 . 346 
 . 196 
 
 . 58 
 . 151 
 194, 259 
 . 303 
 . 196 
 . 321 
 
TABLE OF AMEEICAN CASES. 
 
 XXXVs 
 
 Mange v. Guenat, 
 
 
 13 
 
 Maury v. Lewis, 
 
 379 
 
 Mann v. Butler, . 
 
 
 321 
 
 Maxwell v. Pittenger, 
 
 84 
 
 Manners v. Manners, . 
 
 
 230 
 
 May V. Armstrong. . . 17, 403 
 
 Manning v. Manning, 
 
 
 61 
 
 V. Eastin, . 
 
 112 
 
 ManseU's Estate, 
 
 
 274 
 
 Mayburry v. Brien, . 
 
 233 
 
 Many v. Beekman Iron Co., 
 
 
 
 Mayo V. Alcock, 
 
 108 
 
 303 
 
 310 
 
 314 
 
 V. Murchie, 
 
 303 
 
 Marbury v. Madison, . 
 
 
 8 
 
 Mayor of Georgetown v. Alex 
 
 
 March v. Davidson, . 
 
 19, 20 
 
 andria Canal Co., 
 
 211 
 
 V. Ludlum, 
 
 
 6 
 
 McCampbell v. McCampbell, 263, 275 
 
 Marine Ins. Co. v. Hodgson, 
 
 
 197 
 
 McCants v. Bee, 
 
 61 
 
 Marquand v. N. Y. Man. Co 
 
 •i • 
 
 242 
 
 McCauly v. McFarlane, . 
 
 244 
 
 Marsh v. Hague, 
 
 103 
 
 258 
 
 McClintock v. Manns, 
 
 230 
 
 V. Turner, 
 
 
 128 
 
 McClung V. Beirne, . 
 
 270 
 
 V. Wlieeler, 
 
 
 136 
 
 McConnell v. McConnell, . 309, 312 
 
 Marten v. Van Schaick, 
 
 
 243 
 
 V. Scott, . 
 
 270 
 
 Martin v. Densford, . 
 
 
 258 
 
 McCormack v. Obannon, . 
 
 269 
 
 V. Dryden, 
 
 
 321 
 
 McCormick v. Malin, 
 
 183 
 
 V. Greer, 
 
 
 28 
 
 MoCosker v. Brady, . 
 
 309 
 
 V. McBryde, . 
 
 
 303 
 
 McCrae v. HoUis, 
 
 188 
 
 Marvin v. EUwood, . 
 
 204 
 
 206 
 
 McCrea v. Purmort, . 
 
 303 
 
 V. Trumbull, . 
 
 
 246 
 
 McCrocklin v. McCrocklin, 
 
 45 
 
 Mason V. Connell, 
 
 241 
 
 ,242 
 
 McCubbin v. Cromwell, . 
 
 28, 37 
 
 V. Man, . 
 
 
 221 
 
 McCulloh V. Dashiel, . 
 
 243 
 
 V. Peck, . 
 
 
 21 
 
 McCuUough V. Somerville, 
 
 241 
 
 Massey v. Mcllwain, . 
 
 
 86 
 
 McDaniel v. Bell, 
 
 192 
 
 Mattacks v. Tremain, 
 
 
 360 
 
 V. Moorman, 
 
 183 
 
 Matter of Andrews, . 
 
 
 281 
 
 MoDermott v. Blois, . 
 
 335 
 
 Arnhout, . 
 
 
 290 
 
 McDonald v. Lawless, 
 
 261 
 
 Babcock, . 
 
 
 268 
 
 V. McDonald, . 
 
 308 
 
 Bostwick, . 
 
 
 287 
 
 V. McLeod, 
 
 112 
 
 Burr, 
 
 
 292 
 
 McDowell V. Bk.of Wilmington 
 
 De Peyster, 
 
 
 62 
 
 and Brandywine, 21, 269 
 
 Drayton, . 
 
 
 296 
 
 T. Caldwell, 
 
 286 
 
 Fowler, 
 
 
 293 
 
 V. Graham, 
 
 303 
 
 Gause, 
 
 
 293 
 
 McElhatton v. Howell, . 
 
 48 
 
 Hanks, 
 
 
 292 
 
 McFarland v. McDowell, . 
 
 196 
 
 Heeney, 
 
 
 297 
 
 McFerran v. Taylor, . 
 
 85 
 
 Heller, 
 
 
 296 
 
 McGinnis v. McGinnis, 
 
 92 
 
 Hemiup, 
 
 261 
 
 ,385 
 
 McGrew v. Tombeckbee Bank 
 
 197 
 
 Hopper, 
 
 
 297 
 
 McGuire v. McGowen, 
 
 32 
 
 Kane, . 
 
 287 
 
 288 
 
 Mclntyre v. Hughes, . 
 
 78 
 
 Livingston, 
 
 293 
 
 296 
 
 V. Trustees of Union 
 
 
 Mason, 
 
 
 290 
 
 College, . 303, 30 
 
 9,344 
 
 McClean, . 
 
 
 292 
 
 McKay V. Carrington, 
 
 89 
 
 Morgan, 
 
 
 290 
 
 V. Green, 
 
 258 
 
 Nicoll, 
 
 
 281 
 
 McKennan v. Phillips, 
 
 45 
 
 Perkins, . 
 
 
 293 
 
 McKim V. Odom, 
 
 220 
 
 Pettit, 
 
 
 293 
 
 McKinnie v. Rutherford, . 
 
 317 
 
 Roberts, . 
 
 
 293 
 
 McLaren v. Steapp, . 
 
 220 
 
 Salisbury, . 
 
 
 296 
 
 McLaurin v. Wright, . 
 
 112 
 
 Skinner, 
 
 
 231 
 
 McLin V. McNamara, 
 
 222 
 
 Tracy, 
 
 
 292 
 
 McMahon v. Fawcetts, 
 
 269 
 
 Wendell, . 290 
 
 291 
 
 292 
 
 McMurtrie v. Bennett, 78, i 
 
 32, 86 
 
 Whitenack, 
 
 
 292 
 
 McNair v. Ragland et al., . 
 McNamara v. Dwyer, 
 
 55 
 
 Woolstonecraft, 
 
 
 280 
 
 361 
 
 Matthews v. Aiken, 
 
 
 269 
 
 MoNaughten v. Partridge, 
 
 240 
 
 V. Dragard, 
 
 
 61 
 
 MoNitt V. Logon, 
 
 152 
 
 V. Matthews, 
 
 
 230 
 
 MePherson v. Talbott, 
 
 269 
 
 Matthewson v. Clarke, 
 
 
 242 
 
 McRae v. McKenzie, 
 
 241 
 
 Maude v. Rodes, 
 
 
 243 
 
 McWhorter v. McMahan, . 
 
 84 
 
XXXVl* TABLE OF AMERICAN OASES. 
 
 McWilliama v. Herndon, 
 
 . 
 
 346 
 
 Meacham v. Sternes, . 
 
 
 62 
 
 Mead v. Peck, . 
 
 
 198 
 
 Mechanics' Bank v. Levy, 
 
 
 
 11, 305, 308 
 
 , 344 
 
 V. Lynn, 
 
 
 308 
 
 V. Seton, 
 
 
 312 
 
 Medlock v. Cogburn, 
 
 
 292 
 
 Meeker v. Meeker, . 
 
 
 78 
 
 Merriam v. Barton, . 
 
 
 113 
 
 Merritt, Matter of. 
 
 
 194 
 
 Messervey v. Barelli, 
 
 
 320 
 
 Methodist Epis. Church v. 
 
 Jaequ 
 
 es, 
 
 
 9,32 
 
 , 308 
 
 Miami Co. v.V. S.Bank, 
 
 
 272 
 
 Michoud V. Girod, 
 
 
 61 
 
 Miles V. Bacon, . 
 
 
 61 
 
 Mill V. Argall, . 
 
 
 241 
 
 Milledge v. Lamar, . 
 
 
 233 
 
 Millegan v. Milledge, 
 
 
 322 
 
 Miller v. Beverly, 
 
 55, 62 
 
 V. Fenton, 
 
 
 268 
 
 V. Ford, . 
 
 
 334 
 
 V. Furse, . 
 
 
 304 
 
 V. Harwell, 
 
 
 275 
 
 V. Henderson, . 
 
 
 106 
 
 V. McCan, 
 
 194 
 
 364 
 
 V. Schackelford, 
 
 
 152 
 
 V. Womack's Admr 
 
 s, . 
 
 227 
 
 Mills V. Dennis, . 
 
 121, 
 
 285 
 
 Mims V. Macon, 
 
 
 128 
 
 Minturn v. Seymour, 
 
 78 
 
 196 
 
 Mitchell V. Bunch, . 
 
 360, 
 
 361 
 
 V. Lenox, 
 
 
 346 
 
 V. Manufacturing 
 
 Co.,' 
 
 220 
 
 V. Oakley, . 
 
 
 194 
 
 V. Smith, 
 
 , 
 
 19 
 
 V. Sproul, . 
 
 
 269 
 
 Mix V. Holchkisa, 
 
 121, 
 
 302 
 
 Moale V. Buchanan, . 
 
 
 86 
 
 Mock V. Cundiff, 
 
 
 197 
 
 Mohawk Bridge Co. v. Utica and 
 
 
 Schenectady Railroad Co 
 
 ., 
 
 211 
 
 Mollan V. Griffith, 
 
 
 275 
 
 Monell V. Monell, 
 
 57, 58 
 
 Monk V. Harper, 
 
 
 226 
 
 Moody V. Payne, 
 
 
 242 
 
 Mooers v. White, 
 
 
 227 
 
 Moor V. Story, . 
 
 
 243 
 
 Moore v. Anderson, . 
 
 
 312 
 
 V. Cable, 
 
 
 115 
 
 V. Hilton, 
 
 
 196 
 
 V. Holcombe, . 
 
 
 128 
 
 V. Isley, . 
 
 
 269 
 
 V. Moore, 
 
 
 269 
 
 Moreland v. Lemasters, 
 
 
 86 
 
 Moreton v. Harrison, . 
 
 
 340 
 
 Morey v. Forsyth, 
 
 
 317 
 
 Morris v. Dillard, 
 
 
 302 
 
 V. Nixon, 
 
 
 111 
 
 V. Parker, 
 
 308 
 
 344 
 
 Morrison v. Beckworth, 
 
 V. Hart, 
 Morrow v. Brenizer, 
 Morss V. Elmendorf, 
 Morton v. Harrison, 
 Mosby V. Taylor, 
 Moses V. Murgatroyd, 
 Mosher v. Mosher, 
 Motley v. Jones, 
 Mulock V. Mulock, 
 Mumford v. Murray, 
 Munro v. Allaire, 
 Murphy v. Clark, 
 V. Trieg, 
 Murray v. Ballow, 
 V. Lyiburn, 
 v. Murray, 
 V. Toland, 
 Myers v. Hays, . 
 • V. Myers, 
 V. Wade, 
 V. White, 
 
 N. 
 
 Naglee v. IngersoU, 
 Nailer v. Stanley, 
 Napier v. Catron, 
 
 V. Elam, 
 Nash V. Smith, . 
 Nathans v. Morris, 
 Naylor v. Naylor, 
 Neale v. Hagthorp, 
 Neilson v. M'Donald, 
 Neimcewicz v. Gahn, 
 Nelson v. Carrington, 
 
 V. Clay, . 
 
 V. Harris, 
 
 V. Owen, 
 Nevitt V. Gillespie, . 
 Newland v. Rogers, . 
 New London Bk. v. Lee, . 
 Newman v. Kendall, . 
 Newport v. Cook, 
 Newson v. BufTerlow, 
 Newton v. Swazey, . 
 Niles V. Anderson, 
 Nixon V. Richardson, 
 Noble V. Wilson, 
 Norment v. Wilson, . 
 North American Coal Co. 
 
 Dyett 
 
 Northampton Paper Mills 
 
 Ames 
 
 Northrop v. Hatch, . 
 Norton v. Stone, 
 
 V. Warner, 
 Norwood V. Norwood, 
 
 . 270 
 
 . 304 
 136, 139 
 
 . 85 
 
 . 128 
 
 . 108 
 
 . 252 
 
 . 233 
 
 . 239 
 
 . 309 
 57, 61 
 
 . 61 
 
 . 310 
 
 . 112 
 
 . 158 
 
 . 144 
 
 . 243 
 
 . 228 
 
 . 108 
 57, 287 
 
 • 286 
 
 . 114 
 
 . 136 
 . 270 
 . 240 
 . 179 
 205, 334 
 . 62 
 
 21, 
 
 290 
 308 
 . 364 
 . 269 
 . 121 
 . 268 
 . 220 
 . 196 
 . 208 
 . 310 
 
 312, 321 
 . 315 
 
 286, 287 
 . 172 
 . 86 
 . 336 
 . 361 
 . 196 
 . 231 
 
 . 346 
 
 V. 
 
 . 114 
 3, 5, 334 
 
 . 32 
 
 . 11 
 
 . 231 
 
TABLE OF AMERICAN CASES. 
 
 XXXVU 
 
 Nourse v. Prime, . . . 227 
 Noyes v. Sawyer, . 312, 321, 346 
 Nugent V. Riley, . . . 112 
 N. Y. Steamboat Co. v. New 
 Jersey Co 272 
 
 O. 
 
 Ocean Insurance Company v. 
 
 Fields, 3 
 
 O'Connor V. Debraine, . . 360 
 
 Ohio y. Baum 82 
 
 V. Ellis 302 
 
 Oldham v. Rowan, . . .317 
 
 Oliver v. Palmer, . . 23, 312 
 
 V. Piatt 310 
 
 Ontario Bank v. Schermerhorn, 346 
 
 Oppenheim v. Leo Wolf, . . 205 
 Orcutt V. Orms, . . .339 
 
 Ormsby v. Bakewell, . . 364 
 
 Orrar v. Tanner, ... 85 
 
 Osborn v. Carr, .... 163 
 
 V. Phelps, . . . 172 
 
 Osborne v. Bk. of United States, 20 
 
 Osgood et al. v. Franklin, . . 79 
 
 Overholt's Appeal, . . . 246 
 
 Owing's Case, .... 291 
 
 Page V. Page, 
 Pain V. Packard, 
 Fallen v. Bank, . 
 Palmer v. Guernsey, 
 Pannell v. Farmers' Bk, 
 Pardee v. De Cala, 
 Parish v. Lewis, 
 V. Sloan, . 
 Park V. Ballentine, 
 Parker v. Carter, 
 Parker v. Wells, 
 Parkhurst v. Van Cortland 
 Parkinson v. Trousdale, 
 Parkman v. Welch, . 
 Parks V. Jackson, 
 Parsons v. Browne, . 
 Parson's Adm'r v. Wilson 
 Pascalis v. Canfield, . 
 Patterson v. Gaines, . 
 
 V. Hobbs, . 
 
 V. Patterson, 
 Patton V. M'Clure, . 
 Patty V. Pease, . 
 Pauling T. Sturges, . 
 Paxton T. Harrier, 
 
 21 
 
 , 32, 102 
 . 268 
 270, 272 
 112 
 121 
 373 
 243 
 310, 335 
 312 
 304, 305 
 86 
 86 
 8 
 270 
 151 
 335 
 167 
 252 
 310 
 21 
 334 
 86 
 270 
 21 
 270 
 
 Payne v. Matthews, . . . 243 
 Pearl v. Nashville, . . 220, 222 
 Pearson v. Daniel, . . . 151 
 V. Duckham, . . 269 
 
 Peck V. Ashley, ... 20 
 
 V. Ellis 268 
 
 V. Woodbridge, . . 194 
 
 Peebles v. Reading, . . 32, 154 
 Pell V. Ball, . . . 230, 231 
 Pemberton v. Riddle, . . 317 • 
 Pendleton v. Wambersie, . . 220 
 Pennock v. Swayne, . . . 240 
 Penny v. Davis, .... 32 
 
 Ferine v. Dunn 121 
 
 Perkins v. Hays, . . 32 
 
 V. Hollowell, . . 196 
 V. Kershaw, . . . 269 
 V. M'Gavock, . . 179 
 V. Wright, . . 78, 84 
 Perrine v. Stryker, . . . 194 
 
 Perry v. Head 32 
 
 Peter v. Beverly, . . 37, 136 
 
 Peters v. Goodrich, . . 151, 154 
 
 Pettit v. Candler, . . 11,308 
 
 V. Jennings, ... 20 
 
 Petty V. Petty 180 
 
 Peyton v. Smith, . . 268, 280 
 
 Phelps v. Green, . . .231 
 
 V. Spafford & Curtis, . 23 
 
 Phillips V. Belden, . . 227, 228 
 
 V. Cook, . . .242 
 
 V. Crammond, . 32, 143 
 
 V. Prevost, . . 8, 308 
 
 Phcenix v. Ingraham, . . 20 
 
 Phyfe v. Warden, . . 78 
 
 Piatt V. St. Clair, . . .272 
 
 Pierce v. Fuller, . . .108 
 
 v. Tiernan, . , .243 
 
 V.Trigg 233 
 
 Pierpont v. Graham, . . . 241 
 Pigg v. Corder, .... 77 
 Pike v. Armistead, . . . 154 
 Pinkston v. Taliaferro, . . 269 
 Piriney v. Fellows, . . 28, 32 
 Pintard v. Martin, . . .174 
 
 Pirtle V. Peun 240 
 
 Pitney v. Leonard, . . . 151 
 Pitts V. Cottingham, . . .177 
 Place V. Sweetzer, . . . 242 
 Pleasants v. Glasscock, . 220, 309 
 Pleasants et al. v. Ross, . . 192 
 Poindexter v. Henderson, . . 208 
 Polkv. Gallant, . . . 270,317 
 Pollard v. Collier, . . .319 
 Pomeroy v. Pomeroy, . . 309 
 
 Pool V. Lloyd 334 
 
 Poor V. Carleton, . . . 196 
 Pope V. Andrews, . . . 364 
 
 V. Melone 315 
 
 Porter v. Clements, . . . 315 
 V. Spencer, . . 222, 360 
 
XXXviii* TABLE OF AMERICAN CASES. 
 
 Porter v. Witham, 
 Post V. Dart, 
 
 V. Kimberly, 
 V. Mackall, 
 Poston v; Eubank, 
 Powell v^ Manufacturing Co 
 
 V. Powell, 
 Power V. Reeder, 
 Powers V. Butler, 
 V. Heery, 
 Prater v. Miller, 
 Pratt V. Taliaferro, 
 Prentice v. Achorn, 
 V. Buxton, 
 Prescott V. Hubbell, 
 Prevo V. Walters et al 
 Prevost V. Gratz, . 32, 
 Price V. Clevenger, 
 V. Nesbit, 
 V. Price, . 
 Pride v. Boyce, . 
 Prince v. Logan, 
 Pritchard v. Hicks, 
 Pugh V. Currie, . 
 V. Good, . 
 Pugh's Heirs v. Bell's Heirs, 
 Purcell V. Maddox, 
 Purdy V. Doyle, . 
 Purviance v. McClintee, 
 
 Quackenbush v. Van Riper, 
 Quinn v. Brittain, 
 
 R. 
 
 Ragan v. Echols, 
 Ragusin v. Fort, 
 Rames v. Jones, 
 Rainey v. Yarborough, 
 Rambo v. Rambo, 
 Ramsay's Appeal, 
 Randall v, Phillips, 
 Randolph v. Kinney, . 
 V. Randolph, 
 Rankin v. Maxwell, . 
 Rathbone v. Clark, 
 Ray V. Bank of Kentucky, 
 
 V. Bogart, . 
 Raynor v. Pearsall, 
 Read v. Long, 
 Reade v. Livingston, . 
 Reading v. Blackwell, 
 Redd V. Wood, . 
 
 
 211 
 
 Redman v. Green, 
 
 . 227 
 
 . 364 
 
 Reed v. Morrison, 
 
 . 233 
 
 . 220 
 
 Reid V. Gilford, . 
 
 . 211 
 
 . 291 
 
 Reimsdyck v. Kane, . 
 
 . 20 
 
 . 270 
 
 Remsen v. Remsen, . 
 
 379, 383 
 
 . 233 
 
 Renwick v. Renwick, 
 
 . 23 
 
 . 32 
 
 Repp et al. v. Repp, . 
 
 . 128 
 
 ., 222 
 
 Respass v. Breckenridge, 
 
 . 233 
 
 . 197 
 
 Reybold v. Dod, 
 
 . 220 
 
 . 210 
 
 Reynolds v. Reynolds, 
 
 . 231 
 
 . 78 
 
 Rhodes v. Cousins, 
 
 . 360 
 
 136, 139 
 
 Rice V. Barnard, 
 
 243, 246 
 
 . 84 
 
 V. Bixter, . 
 
 . 136 
 
 . 221 
 
 V. Rawlingg, 
 
 . 84 
 
 . 346 
 
 Richards v. Salter, 
 
 . 203 
 
 . 32 
 
 Richardson v. Baker, . 
 
 . 129 
 
 , 61, 399 
 
 V. Hunt, . 
 
 . 320 
 
 . 196 
 
 V. Jones, . 
 
 . 61 
 
 . 250 
 
 V. McKinson, 
 
 . 302 
 
 . 233 
 
 V. Wyatt, . 
 
 233, 246 
 
 . 270 
 
 Ridgely v. Warfield, . 
 
 . 340 
 
 . 286 
 
 Ridley v. McNairy, . 
 
 . 86 
 
 . 258 
 
 Rinehart v. Harrison, 
 
 . 136 
 
 . 246 
 
 Ringgold V. Ringgold, 
 
 55, 58, 62 
 
 . 86 
 
 Ringo V. Warder, 
 
 . 313 
 
 . 32 
 
 Roane v. Pickett, 
 
 . 319 
 
 . 319 
 
 Roane's Ex'rs v. Hern, 
 
 . 45 
 
 . 252 
 
 Robards v. Wortham, 
 
 . 275 
 
 . 239 
 
 Robb V. Stevens, 
 
 . 243 
 
 
 Roberts v. Anderson, 
 
 . 196 
 
 
 V. Jackson, . 
 
 . 285 
 
 
 V. Ross, 
 
 . 128 
 
 
 Robertson v. Bingley, 
 
 9, 335, 344 
 
 
 V. Maxcey, 
 
 . 269 
 
 
 V. Robertson, 
 
 . 32 
 
 . 196 
 
 V. Stephens, 
 
 . 310 
 
 . 118 
 
 Robeson v. Hornbacker, 
 
 . 86 
 
 
 V. Pittenger, 
 
 . 211 
 
 
 Robinson v. Codman, 
 
 . 233 
 
 
 V. Crowder, 
 
 . 241 
 
 
 V. Sampson, 
 
 . 20 
 
 
 y. Woodgate, 
 
 . 11 
 
 
 Rockwell V. Folsom, . 
 
 . 23 
 
 . 364 
 
 V. Hobby, . 
 
 . 124 
 
 
 23 
 
 Rodes V. Crockett, . 
 
 . 269 
 
 
 21 
 
 Rodgers v. Jones, 
 
 . 121 
 
 
 269 
 
 V. Rodgers, . 
 
 . 196 
 
 
 336 
 
 Rodman v. Zilley, 
 
 79, 84 
 
 
 272 
 
 Rodriguez v. Hefferman, 
 
 . 243 
 
 
 112 
 
 Rogers v. Rogers, 
 
 . 45, 261 
 
 
 220 
 
 V. Ross, . 
 
 . 32 
 
 
 227 
 
 V. Saunders, . 
 
 . 77 
 
 
 90 
 
 Roosevelt v. Eliihorp, 
 
 . 13 
 
 26 
 
 8,270 
 
 Rose v. Rose, 
 
 . 309 
 
 
 189 
 
 Ross V. Carter, . 
 
 . 365 
 
 
 227 
 
 V. Clore, 
 
 . 270 
 
 
 227 
 
 V. Norvell, . 
 
 111, 115 
 
 
 79 
 
 V. Whitson, 
 
 . 128 
 
 
 43 
 
 Rosser v. Randolph, . 
 
 . 211 
 
 
 136 
 
 Rowe V. Granite Bridge C 
 
 0., . 211 
 
 
 335 
 
 Rowland v. Martindale, 
 
 . 221 
 
TABLE OF AMERICAN CASES. XXXIX 
 
 Rowton V. Rowton, . 
 
 . 233 
 
 Shinnie v. Coil, . 
 
 
 192 
 
 Ruggev. Ellis, . 
 
 . 90 
 
 Shipp V. Swan, . 
 
 
 172 
 
 Rundle v. Murgatroyd's Assignees, 43 
 
 Shirras v. Caig, . 
 
 
 111 
 
 Runyan v. Messereau, 
 
 . 114 
 
 Shitz V. Diffenbach, . 
 
 
 124 
 
 Russ V. Hawes, . 
 
 303, 304 
 
 Shobe V. Carr, . 
 
 43, 
 
 103 
 
 Russell V. Austin, 
 
 . 233 
 
 Shoemaker v. Walker, 
 
 51, 
 
 233 
 
 V. Clark, 
 
 . 323 
 
 Short V. Skipwith, 
 
 
 221 
 
 V. Howard, . 
 
 . 272 
 
 Shotwell V. Murray, . 
 
 
 170 
 
 V. Lanier, 
 
 . 335 
 
 Shotwell's Ex'r v. Mott, , 
 
 . 
 
 65 
 
 Rutherford v. Green, . 
 
 . 136 
 
 Shreve v. Black, 
 
 
 210 
 
 V. Ruff, . 
 
 . 183 
 
 Shubrick v. Guerard, 
 
 , 
 
 208 
 
 Rutledge v. Greenwood, 
 
 . 268 
 
 Shutt V. Carloss, 
 
 
 288 
 
 V. Smith, . 
 
 . 28 
 
 Shutts V. Moore, 
 Sidle V. Walter, 
 
 
 154 
 32 
 
 
 
 Sigourney v. Munn, . 151 
 
 244 
 
 246 
 
 
 
 Silcox V. Nelson, 
 
 
 310 
 
 S. 
 
 
 Simmons v. North, . 
 
 
 169 
 
 
 V. Tongue, 
 
 
 243 
 
 
 
 V. Whitaker, 
 
 
 259 
 
 Salmon v. Glaggett, 9, 20 
 
 8, 269, 303 
 
 Simpson v. Feltz, 
 
 
 239 
 
 Salters v. Tobias, 
 
 . 340 
 
 Singleton v. Gayle, . 
 
 
 20 
 
 Sampson v. Sampson, 
 
 . 102 
 
 Siter V. McClanahan, 
 
 136, 
 
 163 
 
 Sanford v. Jackson, . 
 
 . 95 
 
 Sites V. Keller, . 
 
 , 
 
 86 
 
 Sarles v. Sarles, 
 
 . 208 
 
 Sitler V. Walker, 
 
 
 242 
 
 Satterthwaite v. Emley, 
 
 . 43 
 
 Skinner v. Bailey, 
 
 
 304 
 
 Saunders v. Frost, 
 
 . 118 
 
 V. Dayton, . 108 
 
 240 
 
 241 
 
 Saxon V. Barksdale, . 
 
 . 335 
 
 V. Judson, . 
 
 3 
 
 4,5 
 
 Schenck's Adm'r. v. Cattr 
 
 ell, . 192 
 
 V. Miller, 
 
 
 113 
 
 Schermerhorn v. Barhydt, 
 
 . 274 
 
 V. Smith, 
 
 
 115 
 
 Schieffelin v. Stewart, 
 
 . 55 
 
 V. White, 
 
 108 
 
 174 
 
 Schmidt v. Livingston, 
 
 . 85 
 
 Skipp V. Jameson, 
 
 
 220 
 
 Schryner v. Teller, 
 
 270 
 
 Skipwith's Ex'r v. Cunningham, 
 
 28 
 
 Schutt V. Large, 
 
 . 154 
 
 Slaughter v. Tindle, . 
 
 
 91 
 
 Schuyler v. Hoyle, . 
 
 . 313 
 
 Slee V. Bloom, . 
 
 
 227 
 
 Schwarz v. Wendell, 
 
 . 337 
 
 V. The Manhattan Company, 
 
 Scott V. Britton, . 
 
 . 112 
 
 
 111 
 
 115 
 
 Scrimeger v. Buckhannon, 
 
 . 302 
 
 Sloan V. Little, . 
 
 
 11 
 
 Scudder v. The Trenton 
 
 Dela- 
 
 Slocum et ux. v. Marshall et 
 
 ai.; 
 
 32 
 
 ware Falls Co., 
 
 . 210 
 
 Slossum V. Beadle, . 
 
 
 108 
 
 Sears v. Hyer, . 
 
 . 231 
 
 Smedburg V. Mark, . 
 
 
 360 
 
 Sebring v. Mersereau, 
 
 . 230 
 
 Smith V. Babcock, 
 
 
 346 
 
 Sellman v. Bowen, 
 
 . 235 
 
 V. Bailey, . 
 
 
 121 
 
 Sexton V. Wheaton, . 
 
 . 43 
 
 V. Brittain, 
 
 
 231 
 
 Seymour v. Delancy, . 
 
 . 78, 79, 85 
 
 V. Burnham, . 
 
 
 305 
 
 V. Hazard, . 
 
 . 360 
 
 V. Clark, . 
 
 
 303 
 
 V. Seymour, 
 
 . 20 
 
 V. Fisher, . 
 
 
 344 
 
 Shannon v. Marselis, . 
 
 . 270 
 
 V. Jackson, 
 
 233 
 
 246 
 
 Sharp V. Morrow, 
 
 . 364 
 
 V. Jones, . 
 
 
 246 
 
 Shaw V. Chester, 
 
 . 205 
 
 V. Kane, . 
 
 
 48 
 
 V. Coster, . 
 
 . 206 
 
 V. Kniskern, 
 
 
 95 
 
 Sharp V. Sharp, . 
 
 . 334 
 
 V. Lasher, 
 
 11 
 
 308 
 
 Shed V. Garfield, 
 
 . 335 
 
 V. Lowe, . 
 
 
 243 
 
 Sheldon v. Bird, 
 
 . 114 
 
 V. Manning's Ex'rs, 
 
 
 113 
 
 Shepard v. Shepard, . 
 
 . 303 
 
 V. Marks, 
 
 
 224 
 
 Shepherd v. McEvers, 
 
 . 38 
 
 V. Maxwell's Ex'rs, 
 
 
 43 
 
 V. Starkie, . 
 
 . 309 
 
 V. McCrary, . 
 
 
 136 
 
 Shermer v. Beale, 
 
 . 192 
 
 V. Moore, . 
 
 
 114 
 
 Sherwood v. Sutton, . 
 
 . 228 
 
 V. Petiingill, 
 
 
 210 
 
 Shields v. Arndt, 
 
 . 211 
 
 V. Poyas, . 
 
 
 208 
 
 V. Commonwealth, 
 
 . 167 
 
 V. Ramsay, 
 
 
 246 
 
 Shine v. Wilcox, 
 
 . 208 
 
 V. Richards, 
 
 
 179 
 
xl* 
 
 TABLE OF AMERICAN OASES. 
 
 Smith V. Smith 
 
 V. Starr, 
 
 V. Tariton, 
 
 V. Trenton Falls Co, 
 
 V. Underdunk, . 
 Sneed v. Atherton, . 
 Snelgrove v. Snelgrove, 
 Snelling v. Boyd, 
 
 V. Uterback, 
 Snowhill V. Snowhill, 
 Solms V. McCuUoch, . 
 Southard v. Morris Canal, 
 Southgate v. Montgomery, 
 Souza V. Belcher, 
 Souzer v. De Meyer, . ■ 
 Speed's Ex'r v. Nelson's Ex'r, 
 
 55, 86, 230, 331, 309 
 136 
 246 
 309 
 
 86 
 233 
 
 95 
 317 
 
 32 
 285 
 154 
 210 
 197 
 334 
 339 
 254 
 
 Spence v. Duren 
 Spiller V. Spiller, 
 Spivey v. Jenkins, 
 Spofford V. Manning, . 
 Spooner v. McConnell, 
 Spotswood V. Dandridge, . 
 Sproule V. Samuel, 
 Stafford v. Brown, 
 
 V. Bryan, 
 
 V. Van Rensselaer, 
 Stanard v. Rogers, 
 Stanley v. Stocks, 
 Stapleton v. Langstaff, 
 Stark's Heirs v. Cannaday 
 Stale Bank v. Marsh, 
 Stearns v. Hubbard, . 
 
 V. Page, . 
 Steedman v. Weeks, . 
 Steere v. Steere, 
 Steiger v. Hillen, 
 Steman's Appeal, 
 Stephens v. Terrel, . 
 Stephenson v. Taylor, 
 Sterry v. Arden, 
 V. Servant, 
 Stevens v. Beekman, . 
 
 y. Cooper, 
 
 V. Gregg', 
 
 v. Smith, 
 Stewart v. Ives, . 
 
 V. Stone, 
 
 V. Turner, 
 St. Felix V. Rankin, . 
 Stires v. Stires, . 
 St. John V. Benedict, . 
 Stoever v. Stocver, . 
 Stoney v. Shultz, 
 Storm V. Mann, . 
 Story V. Livingston, . 
 
 V. Moon, . 
 Stontenburg v. Peck, 
 Stovall V. N. Bank of Miss 
 Strange v. Watson, 
 Straughan v. Wright, 
 Streaton v. Jones, 
 
 178, 303 
 . 121 
 . 322 
 333, 335. 
 208, 211 
 268 
 364 
 303 
 21 
 128 
 197 
 270 
 285 
 32 
 61 
 86 
 337, 339 
 230, 231 
 . 28 
 . 235 
 . 62 
 . 346 
 . 177 
 . 102 
 . 402 
 . 210 
 . 270 
 . 261 
 51, 233 
 . 128 
 . 20 
 . 379 
 . 233 
 . 274 
 . 78 
 . 112 
 . 270 
 . 208 
 386 
 243 
 196 
 336 
 309 
 230 
 112 
 
 312, 383, 
 
 Strong v. Stewart, 
 Stuart v. Carson, 
 v. Coulter, 
 Stubbs V. Burwell, 
 v. Whiting, 
 Stump V. Rogers, 
 Sturtevant v. Goode, 
 Sfuyvesant v. Hall, 
 
 v. Peckham, 
 Sullivan v. Winthrop, 
 Sumner v. Hampson, . 
 Sweet V. Sweet, 
 Swift V. Dean, 
 V. Eckford, 
 
 . Ill 
 
 261, 263 
 
 230, 310 
 
 . 23 
 
 . 43 
 
 . 270 
 
 230, 224 
 
 . 154 
 
 6 
 
 . 103 
 
 233, 246 
 
 . 283 
 
 . 21 
 
 . 310 
 
 Tabh V. Archer, 
 Talbot V. McGee, 
 Taliaferro v. Taliaferro, 
 Tallmadge v. Lovett, 
 Talmage v. Pell, 
 Tankersley v. Anderson, 
 Tarleton v. Victes, 
 Tassey v. Church, 
 Tatum V. Tatum, 
 Taylor v. Benham, 
 
 V. Heriot, 
 
 V. James, 
 
 V. Luther, 
 
 V. Sandiford, 
 
 V. Savage, 
 
 V. Titus, 
 Taylor's Adm'r v. Nicholson; 
 Tazewell v. Smith, . 
 Telfair v. Stead, 
 Terrill v. Craig, 
 Thaver v. Lane 
 
 288 
 
 402 
 
 32 
 
 335 
 
 19 
 
 270 
 
 17 
 
 . 240 
 
 . 269 
 
 . 136 
 
 . 270 
 
 . 102 
 
 11, 111, 339, 344 
 
 . 103 
 
 269 
 
 402 
 
 192 
 
 136 
 
 316 
 
 302 
 
 246, 335 
 
 The Bank of Utica v. Messereau, 
 The Cape Sable Co.'s Case, '. 
 The Governor v. McEwen, 
 The New London Bank v. Lee, 
 312, 
 The People v. Mercein, 
 The Union Bank v. Barker, 
 Thomas v. Hearn, 
 
 V. Phillips, . 
 v. Sheppard, 
 Thomason v. Smithson, 
 Thompson v. Adams, 
 
 v. Berry, . 
 
 V. Bostwick, 
 
 v. Branch, 
 
 V. Brown, 
 
 V. Ebbets, 
 
 V. Eugh, . 
 
 V. Hardman, 
 
 V. Jackson, 
 
 6 
 
 242 
 222 
 
 321 
 . 2S0 
 3 
 . 270 
 . 197 
 . 183 
 . 309 
 . 269 
 . 197 
 . 268 
 . 32 
 258, 287 
 . 206 
 . 13 
 . 231 
 . 174 
 
TABLE OF AMERICAN OASES. 
 
 Xli* 
 
 Thompson v. McDonald, . 
 
 317 
 
 V. Morrow, 
 
 233 
 
 V. Murray, 233, 270 
 
 272 
 
 V. Newlin, 
 
 335 
 
 Patton, 
 
 112 
 
 Thompson, 
 
 38 
 
 Tod, . . . 
 
 84 
 
 Thorn v. Coles 
 
 139 
 
 Thorne v. Halsey, 
 
 360 
 
 Thornton v. Knox's Ex'rs, 
 
 128 
 
 Threewits v. Threewits, . 
 
 43 
 
 Thurman v. Shelton, . 302 
 
 310 
 
 Tibbs V. Barker, 
 
 86 
 
 Tice V. Annin 
 
 113 
 
 Tierman v. Beam, 
 
 128 
 
 Tier's Rep. v. Richardson's 
 
 
 Heirs 
 
 48 
 
 Tilfordv. Emerson, . 
 
 302 
 
 Tillman v. Cowand, . 
 
 154 
 
 Tilman v. Searcy, 
 
 302 
 
 Tilton V. Hunter, 
 
 154 
 
 V. Tilton, . . 86 
 
 , 169 
 
 Timberlake v. Parish, 
 
 95 
 
 Tingley v. Cutler, 
 
 102 
 
 Titus V. Neilson, 
 
 233 
 
 Tobey v. County of Bristol, 78, 81 
 
 ,192 
 
 Tod V.Baylor, . . .233 
 
 ,235 
 
 Tompkins v. Mitchell, 
 
 128 
 
 Tone V. Brace 
 
 194 
 
 Topliffv. Vail 
 
 243 
 
 Torrey v. Bank of Orleans, 
 
 61 
 
 V. Buck, 
 
 179 
 
 Torr's Estate, . . . . 
 
 274 
 
 Towle V. Mack, 
 
 62 
 
 V. Pierce, . . 303 
 
 ,304 
 
 Towner v. Lane, 
 
 243 
 
 Townsend v. Auger, 
 
 321 
 
 V. Huston, 
 
 86 
 
 Townshend v. Duncan, 
 
 303 
 
 Tradesman's Bank v. Hyatt, 
 
 11 
 
 Traip v. Gould, .... 
 
 309 
 
 Travis v. Waters, 
 
 400 
 
 Traynor v. Brooks, . 
 
 230 
 
 Trescot v. Smyth, . 312 
 
 319 
 
 Tripp V. Tripp, .... 
 
 79 
 
 Trotter v. Blocker, . 
 
 40 
 
 Troup V. Haight, 
 
 227 
 
 V. Sherwood, . 
 
 371 
 
 Trowbridge v. Harleston, . 
 
 272 
 
 Truly V. Wanzer, 
 
 197 
 
 Trustees of the Baptist Associ- 
 
 
 ation V. Smith, . 
 
 65 
 
 of Huntington V. Nicoll, 
 
 200 
 
 Tucker v. Keeler, 
 
 114 
 
 Tunno v. Trezevant, 
 
 243 
 
 Turley v. Younff, 
 Turner v. Bissell, 
 
 320 
 
 239 
 
 V. Clay 
 
 78 
 
 V. Crebill, 
 
 158 
 
 Turnpike Co. v. Allen, 
 
 226 
 
 Tyree v. Williams, . 
 
 85 
 D 
 
 u. 
 
 Udall V. Kenney, ... 48 
 Undcrhill v. Dennis, . . . 282 
 V. Van Cortlandt, . 403 
 Underwood v. Brockman, . 183, 189 
 Union Bank v. Geary, . 21 
 
 Unitarian Society v. Woodbury, 28 
 United States v. Saline Bank, . 3 
 Upham v. Brooks, . . .317 
 Upshaw v. Upshaw, ... 92 
 
 U. S. V. Green 280 
 
 Utica Ins. Company V. Lynch, . 
 
 57, 308, 344 
 
 V. 
 
 337: 
 
 Valentine v. Farrington, . 
 Van Alst v. Hunter, . 
 Van Buren v. Olmstead, . 
 Van Cortlandt v. Beekman, 
 Van Cortland v. Underbill, 
 Vandever's Appeal, . 
 Van Doren v. Todd, . 
 Van Duzer v. Van Duzer, . 
 Van Eppa v. Van Dusen, . 
 Van Hook v. Whitlock, 
 Van Home v. Fonda, 
 Vanhouten's Case, 
 Vanmeter v. McFaddin, 
 Vann v. Hargett, 
 Van Valkinburgh v. Watson, . 
 Van Winkle v. Curtis, 
 Varick v. Edwards, . 
 
 V. Smith, 
 Vaughan v. Law, 
 Venable v. Beauchamp, 
 Verplank v. Caines, . 
 Verplanck v. Merc. Iris. Co. of 
 
 N.Y 
 
 Vickv. The Mayor of Vicksburg, 
 Vidal et al. v. Girard's Ex'rs, . 
 Vilas V. Jones, . 
 Villard v. Chovin, 
 Villines v. Norfleet, . 
 Vliet v. Lowmason, . 
 Volentine v. Johnson, 
 Vose V. Philbrook, . 
 
 W. 
 
 Wack V. Lorber, 
 Wade V. Green, . 
 Waggoner v. Speck, . 
 Wainwright v. Read, . 
 
 . 268 
 
 . 248 
 
 111, 118 
 
 . 303 
 
 . 192 
 
 . 58 
 
 . 128 
 
 48 
 
 48 
 
 340 
 
 61 
 
 280 
 
 124 
 
 312 
 
 287 
 
 211 
 
 186 
 
 309 
 
 211 
 
 319 
 
 335 
 
 312 
 230 
 
 65 
 319 
 286 
 
 61 
 196 
 268 
 323 
 
 86 
 
 269 
 
 86 
 
 90 
 
xlii* 
 
 TABLE OF AMEBICAN CASES. 
 
 Wakeman v. Gillespy, 
 
 
 196 
 
 Wheeler v. Clinton Co. Bank, . 310 
 
 Walingsford v. Walingsford, 
 
 
 45 
 
 Whelan v. Whelan, . 
 
 . 183 
 
 Walker v. Crowder, . 
 
 
 287 
 
 Whilden v. Whilden, 
 
 . 95 
 
 V. Dunlop, 
 
 
 177 
 
 Whipple V. Dow, 
 
 . 287 
 
 V. Gilbert, 
 
 
 151 
 
 V. McClure, . 
 
 . 183 
 
 V. Hallett, 
 
 
 346 
 
 V. Van Rensselae 
 
 r, . 364 
 
 Walker's Estate, 
 
 261 
 
 ,275 
 
 White V. Booth, 
 
 . 211 
 
 Wall V. Cloud, . 
 
 
 211 
 
 V. Bullock, 
 
 . 402 
 
 Wall et al. v. Hill, . 
 
 
 303 
 
 V. Buloid, 
 
 17, 19, 402 
 
 Wallace v. Duffield, . 
 
 
 32 
 
 V. Carpenter, . 
 
 . 32 
 
 Wallis V. Thornton, . 
 
 
 58 
 
 V. Cox, . 
 
 . 179 
 
 Walsh V. Smyth, 
 
 
 397 
 
 V. Dingley, 
 
 . 108 
 
 Wamble v. Battle, . 
 
 
 128 
 
 V. Dougherty, . 
 
 . 243 
 
 Ward V. Jewett, 
 
 
 383 
 
 V. Forbes, 
 
 . 211 
 
 V. Van Bokkelen, 
 
 
 196 
 
 V. Thompson, . 
 
 . 79 
 
 Warfield v. Warfield, 
 
 
 231 
 
 V. Turner, 
 
 . 319 
 
 Waring v. Cram, 
 
 
 246 
 
 V. Whitney, 
 
 . 114 
 
 Warley v. Warley, 
 
 
 275 
 
 V. Williams, . 
 
 . 128 
 
 Warren v. Sproule, . 
 
 
 364 
 
 V. Yaw, . 
 
 . 304 
 
 Washburn v. Goodman, 
 
 
 246 
 
 Whitehorn v. Hines, . 
 
 . 183 
 
 Washington v. Tait, . 
 
 
 270 
 
 Whitesides v. Darris, 
 
 . 48 
 
 Waters v. Riley, 
 
 
 269 
 
 v. Greenlee, • 
 
 . 84 
 
 V. Travis, 
 
 , 
 
 87 
 
 Whitney v. Whitney, 
 
 . 310 
 
 Watkins v. Collins, . 
 
 
 174 
 
 Whitrick v. Kane, 
 
 . Ill 
 
 Watson V. Cox, . 
 
 
 310 
 
 Whitton V. Smith, 
 
 . 241,242 
 
 V. Hunter, 
 
 
 208 
 
 Wickes V. Clark, 
 
 . 43 
 
 V. Wells, 
 
 128 
 
 157 
 
 Wickoffv. Davis, 
 
 . 270 
 
 Watt V. Watt, . 
 
 
 114 
 
 V. Sniffer, 
 
 . 11 
 
 Watts V. Waddle, 
 
 
 84 
 
 Wilbanks v. Duncan, 
 
 . 379 
 
 Waugh V. Mitchell, . 
 
 
 246 
 
 Wilcox V. Mills, . 
 
 . 310 
 
 Webb V. Bowman's Ex'rs, 
 
 
 167 
 
 V. Wilkinson, 
 
 . 397 
 
 V. Evans, 
 
 
 95 
 
 Wilde V. Fox, . 
 
 . 86 
 
 V. Pell, . 
 
 
 .20 
 
 V. Jenkins, 
 
 . 227 
 
 V. Portland Manufac. 
 
 Co.' 
 
 211 
 
 Wilder V. Keeler, 
 
 . 243 
 
 Weed V. SmuU, . 
 
 226 
 
 ,337 
 
 Wilkes V. Rogers, 
 
 . 287 
 
 Weirich v. De Zoya, . 
 
 
 197 
 
 Wilkin V. Wilkin, . 
 
 230, 309 
 
 Wellborn v. Tiller, . 
 
 
 310 
 
 Wilkins v. French, . 
 
 . 114 
 
 Welles v. River Raisin R 
 
 R. 
 
 
 V. Sears, 
 
 . 113 
 
 Co 
 
 
 334 
 
 Wilkinson V. Wilkinson, a minor, 81 
 
 Wellington v. Gale, . 
 
 
 114 
 
 Williams v. Beard, 
 
 . 364 
 
 Wells V. Strange, 
 
 
 310 
 
 V. Berry, 
 
 . 196 
 
 Wendell v. Van Rensselaer 
 
 
 312 
 
 V. Cox, 
 
 . 233 
 
 Wesley v. Thomas, . 
 
 167 
 
 , 172 
 
 v. Craig, 
 
 . 270 
 
 West V. Belches, 
 
 
 268 
 
 V. Hall, 
 
 . 196 
 
 v. Hall, . 
 
 
 346 
 
 V. Helme, . 
 
 . 270 
 
 V. Patton, . 
 
 
 167 
 
 V. Hubbard, 
 
 . 335 
 
 V. Randall, 
 
 , 
 
 312 
 
 V. Lockwood, 
 
 . 197 
 
 V. Walker, 
 
 
 210 
 
 V. Maitland, 
 
 . 364 
 
 Westbrook v. Gomstook, . 
 
 
 281 
 
 V. Roberts, . 
 
 . 128 
 
 Western Ins. Co. v. Eagle 
 
 Fire 
 
 
 V. Stratton, . 
 
 . 124 
 
 Ins. Co 
 
 
 335 
 
 V. Washington, 
 
 . 272 
 
 Western R. R. Corporation v. 
 
 
 V. Williams, 
 
 . 360 
 
 Babcock 
 
 84,85 
 
 V. Wilson, . 
 
 . 246 
 
 Western Reserve Bank v. Stry- 
 
 
 Williamson v. Hodgson, 
 
 V. Williamson, 
 
 . 240 
 
 ker 
 
 
 347 
 
 . 103 
 
 Westervelt v. Huff, . 
 
 
 157 
 
 V. Wilson, 
 
 . 241, 243 
 
 Weston v. Foster, 
 
 
 230 
 
 Willing V. Brown, 
 
 . 229 
 
 Wetmore v. While, . 
 
 
 86 
 
 V. Peters, 
 
 . 136 
 
 Wharffv. Howell, . 
 
 
 112 
 
 Wilso V. Troup, . 
 
 6 
 
 Wheatley v. Calhoun, 
 
 
 233 
 
 Wilson V. City Bank, 
 
 . 323 
 
 Wheeland v. Swartz, . 
 
 
 112 
 
 V. Hamilton, . 
 
 . 312 
 
TABLE OF AMERICAN CASES. 
 
 xliii. 
 
 Wilson V. Troup, 
 Wilton V. Harwood, 
 Winder v. DifFenderfFer, 
 Wingate v. Dale, 
 V. Fry, . 
 Wingfield v. Crenshaw, 
 Winn V. Elliott, . 
 Winne v. Reynolds, 
 Winship v. Pitts, 
 Winslow V. Chiffelle, 
 Wintermute v. Snyder, 
 Wisely v. Findlay, 
 Wiser v. Blachly, 
 Wiswall V. McGowan. 
 Witter V. Richards, 
 Woddrop V. Price, 
 Wolf V. Wolf, . 
 Wood V. Barringer, 
 
 V. Wood, . 
 ^Voodcock V. Bennet, 
 Wooden v. Hairland, 
 Woodfolk v.- Blount, 
 Woods V. Morrell, 
 Woodward v. Schatzell, 
 Woodworth v. Wilson, 
 Woolridge v. Wilkin, 
 Worthington v. Lee, . 
 
 110, 113, 121 
 
 86 
 
 55 
 
 86 
 
 . 84 
 
 . 211 
 
 233 
 
 84 
 
 208 
 
 246 
 
 . 170 
 
 230 
 
 399 
 
 91 
 
 243 
 
 243 
 
 334 
 
 302 
 
 95 
 
 78, 305, 379 
 
 172 
 
 . 151 
 
 11,306,344 
 
 . 360 
 
 317 
 
 . 246 
 
 . 317, 333 
 
 Wotten V. Copeland, . . 230 
 
 Wragg's Rep. V. Compt. Gen., . 128 
 Wright V. Dame, . . 303 
 
 V. Trustees of Method. 
 
 Epis. Church, 139, 277 
 
 V. Wright, . . 55, 364 
 Wynne v. Tunstall, 231 
 
 Wyse V. Smith, . 261 
 
 Y. 
 
 Yancy v. Fenwick, 
 
 V. Green, 
 Yates V. Tisdale, 
 Yestman v. Woods, . 
 Young V. Bilderback, . 
 
 V. Pate, . 
 
 Zeigler v. Long, 
 Zentmeyer v. Mittower, 
 
 303 
 85 
 203 
 246 
 315 
 312 
 
 27(1 
 128 
 
INTRODUCTION. 
 
 Tece subject of the present Treatise is the preroga- 
 tive j urisdiction of the Great Seal for giving effect 
 to certain civil rights, technically called Equities, 
 where the ordinary process of law is inadequate. 
 
 By the original system of English jurisprudence, 
 as explained by Lord Chief Justice Hale, the whole 
 judicial authority of the Crown was exercised by the 
 King in person, sitting in his Koyal Court, called the 
 Aula or Curia Eegis. Portions of this authority 
 were afterwards delegated to the Courts of law ; and 
 where an injury had been committed, which the 
 authority of those Courts was adequate to redress, a 
 writ under the Great Seal was issued out of Chan- 
 cery, called an original writ, directed to the sheriff 
 of the county where the injury was alleged to have 
 been committed, containing a summary statement of 
 the cause of complaint, and requiring him to bring 
 the wrong-doer before the proper Court of law, there 
 to answer the plaintiff's charge. The use of original 
 writs in personal actions is now abolished. But such 
 a writ was formerly essential to the institution of 
 any action in the superior Courts of law, and in real 
 and mixed actions it is still necessary. The portion 
 of the royal authority which was not thus delegated 
 to the Courts of law appears to have remained in 
 
XXXIV ADAMS S DOCTRINE OF EQUITY. 
 
 the Sovereign as a branch of the prerogative, and to 
 have been naturally entrusted to the Lord Chancel- 
 lor as the minister in whose custody the Great Seal 
 P^ -| was placed.^ The *manner of its exercise 
 was by another writ, also issuing under the 
 Great Seal, called the writ of subpoena, which was 
 directed to the defendant personally, and commanded 
 him under a penalty to appear to answer such things 
 as were alleged against him, and to abide by the 
 decree which should be made. The principle by 
 which its exercise was regulated appears to have 
 been the one above stated ; viz., that of affording an 
 effectual remedy, where the remedy at common law 
 was imperfect, but not as has been sometimes erro- 
 neously supposed, that of creating a right which the 
 common law had denied. 
 
 The existence, of this prerogative or equitable 
 jurisdiction seems to be in a great degree peculiar to 
 this country, and to pervade the whole system of its 
 judicial polity.^ The Court of Exchequer, esta- 
 blished for enforcing payment of debts and duties to 
 the King, and incidentally administering justice to 
 the debtors and accountants to the Crown, was, un- 
 til the recent abolition by statute of its equitable 
 jurisdiction, subdivided into a Court of equity, and 
 a Court of common law ; and there are also several 
 inferior Courts of equity, which exercise exclusive 
 jurisdiction, over matters within their cognizance, 
 having their own peculiar Courts of appeal, and 
 without any appellate jurisdiction in the Court of 
 
 ' Hale's Jurisdiction of H. L. King v. Hare, 1 Str. 150; 1 
 Story on Eq., s. 41-49. 3 Steph. Black. 407. Steph. on Plead. 5. 
 » Mitf. 6, 50, 151. 
 
INTRODUCTION. XXXV 
 
 Chancery. If, however, a suit be commenced in 
 those Courts, where the cause of suit is without their 
 jurisdiction, or where by reason of the limited juris- 
 , diction of the Court the defendant cannot have com- 
 plete justice, the defendant, before decision of the 
 suit, may file a bill in the High Court of Chancery, 
 showing the incompetency of the inferior Court, and 
 praying a special writ of certiorari to remove the 
 cause into the Court of Chancery. The principal 
 inferior jurisdictions in England which have cogni- 
 zance of equitable cases, are those of the Counties 
 Palatine of Lancaster and Durham, the Courts of 
 the two Universities of Oxford and Cambridge, the 
 Courts of the city of London, and the Cinque Ports. 
 The County Palatine of Chester and the Principality 
 of Wales, had also, formerly. Courts of equitable 
 jurisdiction, but these Courts are now abolished.' 
 
 The earliest instances which have been hitherto 
 published of the exercise *of the prerogative p^j. .-i 
 jurisdiction of the Great Seal, are found in 
 a series of Chancery records, commencing with the 
 reign of Richard 2, and ending with that of EHza- 
 beth, which was published in 1827, 1830, and 1832, 
 by the Record Commissioners.'' 
 
 Some of the petitions contained in this collection 
 appear to have been merely presented to the Chan- 
 cellor, as the official framer of ordinary writs, to 
 obtain a suitable one for the plaintiff's case ; others, 
 especially during the reigns of Edward 4, Henry 6, 
 
 ' Mitf. on Pleading, 6, 50, 151 ; 1 Daniel's Chancery Practice, 
 509 ; 1 Haddock's Chancery Practice, 249 ; 1 Equity Draftsman, 
 131; 5 Vict. c. 5; 11 Geo. 4 & 1 Wm. 4, c. 70, s, 14. 
 
 " Calendar of Chancery Proceedings, vols. 1, 2, and 3. 
 
xxxvi Adams's doctrine of equity. 
 
 and Henry 8, are for a writ in the nature of a habeas 
 corpus to have the complainant released from an ille- 
 gal imprisonment ; but in the majority of instances 
 they appeal to the prerogative jurisdiction of the 
 Chancellor, and pray, not that the wrong complained 
 of may be remedied at law, but that the Chancellor 
 will examine the parties, and give appropriate 
 redress. 
 
 In many cases a special ground is alleged for call- 
 ing on the Chancellor to exercise a jurisdiction, 
 which would naturally fall within the province of 
 the common law Courts. One of the grounds so 
 alleged, and which strongly marks the character of 
 the age, is the difficulty of obtaining justice by reason 
 of the wealth and power of the wrong-doer. Thus, 
 in one case, it is said that the plaintiff cannot have 
 any remedy at law in consequence of the defendant 
 being surrounded by many men of his maintenance. 
 In another, that the defendant is strong and abound- 
 ing in riches, and a great maintainor of quarrels, and 
 the complainant is poor, and hath not the means to 
 sue for remedy at the common law. In a third, the 
 relief is prayed, "because your petitioners John and 
 Catherine are so poor, and the said John so ill, that 
 they cannot pursue the common law." Of this sort 
 of jurisdiction there are many instances, but in one 
 case towards the end of Henry the Eighth's reign, 
 the prayer is, that the petitioner, who had been re- 
 strained by injunction from proceeding at law, "may 
 be relieved from the prohibition, because he is a 
 poor man, and unable to sue in the King's Court of 
 Chancery."' 
 
 * Goddard v. Ingepenne, 1 Chan. Cal. viii. Thomas v. Wyse, 
 lb. xiy. Bell v. Savage, lb. xiv. Koyal t. Garter, lb. cxxx. 
 
INTRODTJCTIOiSr. XXXVll 
 
 The jurisdiction exercised on the ground of poverty 
 or overbearing power has necessarily died with the 
 state of society in which it originated ; but it appears, 
 like the present jurisdiction of *the court, p^ ..-, 
 to have been based on the principle of giv- 
 ing an efficacious remedy for aright existing at law 
 and many instances occur in the records where the 
 ordinary doctrines of modern equity are brought for- 
 ward as the grounds for relief. The most frequent 
 of these equities, especially in the latter years of 
 Henry 6, and in the subsequent reigns, is for enfor- 
 cing conveyances by feoffees in trust; but many other 
 ordinary equities occur. Thus, for example, we find 
 a bill seeking to set aside a conveyance which the 
 defendant had obtained by intoxicating the plaintiff;' 
 a bill by a tithe-owner to obtain payment for his 
 tithes f a bill stating that the plaintiff had recovered 
 her land at law, but that the defendant continued 
 vexatiously to harass her and seeking to have him 
 restrained f a bill by an executor, stating that the 
 defendant had by a trick obtained from him a general 
 release, when he was ignorant of a debt due from 
 the defendant to his testator, and intended the re- 
 lease to apply to other matters, and praying an in- 
 junction against setting it up at law as a discharge 
 of that debt ;* a bill against an executor for payment 
 of his testator's debt ;' a bill to perpetuate testimony f 
 
 * Stonehouse v. Stanshaw, 1 Ch. Cal. xxix. 
 'Arkenden v. Starkey, lb. xxxv. 
 
 ' Freeman v. Pontrell, lb. xlii. 
 
 * Cobbethorn v. Williams, lb. li. 
 ' Vavasour v. Chadwick, lb. xciii. 
 
 = Earl of Oxford v. Tyrrell, lb. cxx. 
 
xxxviii Adams's doctrine of equity. 
 
 a bill for discovery of title deeds ; and a bill for spe- 
 cific performance of a contract.^ 
 
 It must not, however, be supposed that in all the 
 petitions to the Chancellor contained in these records 
 the principles of modern equity were rigorously 
 observed ; or even that it was the uniform practice 
 to set out any special ground for interference. In 
 many instances the doctrines of equity may be traced ; 
 but there are many others, where the complaints 
 made are merely of violent assaults, or of other 
 wrongs which might apparently have been redressed 
 at law. And we sometimes find the jurisdiction re- 
 sisted on that ground. Thus, for example, in one of 
 the cases already referred to, the bill, after men- 
 tioning the subtraction of the plaintiff's tithes, com- 
 plains also that the defendant, had violently driven 
 away his sheep, and the defendant, after answering 
 P^ ..-1 the former charge, says with reference *to 
 the latter, "that the same is determined 
 at the common law ; wherefore he understands not, 
 that the King's Court of his Chancery in this case 
 will have knowledge ; nevertheless, for declaration 
 of the matter to you, my Lord Chancellor, the defen- 
 dant saith, that he never took nor drove away any 
 sheep of the said complainant." And in a subse- 
 quent case we find the defendant alleging that some 
 of the matter contained in the bill is " matter triable 
 at the common law, by action of trespass or false 
 imprisonment, the which matter ought not, by the 
 
 » Baker v. Parson, 2 Chan. Cal. 1. 
 » Tyngelden v. Warham, lb. liv. 
 
INTRODUCTION. XXXIX 
 
 King's law of this land, to be determined in this 
 Court :" and that other matters in the bill alleged 
 are, in like manner determinable at the common law, 
 by assize of novel disseisin, and by writ of dower : 
 "nevertheless," he goes on to say, "for the truth and 
 plainness of the matter, he denies having done the 
 acts complained of."' 
 
 Whether this last class of cases were ever properly 
 within the jurisdiction of the Chancellor may admit 
 of some doubt. That they are not so now is un- 
 questionable ; and, from the earliest time when such 
 jurisdiction was claimed down to the time of its 
 final abandonment, we find a perpetual struggle going 
 on against its authority.^ 
 
 The first instance of this opposition occurs in the 
 13th year of Richard 2 (a. d. 1389), when the com- 
 mons petitioned that no man might be brought before 
 the Chancellor or the King's Council for matters re- 
 medial at the common law. But the only answer 
 given by the King was, that "he would keep his re- 
 gality as his predecessors had done before him."^ 
 In four years afterwards (A. D. 1393-4), on a second 
 petition being presented to the same effect, a partial 
 remedy was granted by a statute, which authorized 
 the Chancellor to give costs to the defendant, where 
 writs of subpoena should have been obtained on un- 
 true suggestions." In the first year of Henry 4 
 (a. d. 1399), a similar petition was again presented, 
 
 * Arkenden v. Starkey, 1 Ch. Cal. xxxv. Harry v. Lyngeyn, 
 lb. xlix. 
 
 ' Rotuli Parliamentorum ut et Petitiones et Placita in Parlia- 
 mento, vol. iii., 1377-1411 ; vol. iv., 1413-1436. 
 
 »3Rot. Pari. 266. * Ibid. 323. 
 
xl ADAMS'S DOCTRINE OF EQUITY. 
 
 and the King answered that "the statutes should be 
 kept except where one party was so great and rich, 
 and the other so poor, that he could not otherwise 
 r^ . 1 have remedy."^ In the fourth *year of the 
 same reign (a. d. 1402), the Commons 
 again made the usual complaint, alleging that, ac- 
 cording to the statutes of Edw. 3, no man ought to 
 be imprisoned or put out of his freehold except by 
 the processes of common law. The King, however, 
 in this instance distinctly asserted his own jurisdic- 
 tion ; and his answer was, that " he would desire his 
 officers to abstain more from sending for his subjects 
 than they had hitherto done ; but that it was not 
 his intention that they should refrain from so doing 
 in reasonable causes, as had been done by his good 
 progenitors.'" This answer, however, was far from 
 giving satisfaction to the Commons; and, in the 
 third and ninth years of his successor (a. d. 1415 and 
 1421), we find them speaking in very angry terms 
 of the writ of subpoena, and alleging that such writs 
 were never granted or used before the time of the 
 late King Richard, " when John De "Waltham, of his 
 subtlety, first found out the novelty, contrary to the 
 form of the common law of the realm.'" The King 
 still refused to abolish the writ ! but, from an inspec- 
 tion of the records already referred to, it is apparent 
 that the instances of interference with the common 
 law were at this time gradually decreasing. The 
 last petitions which we meet with on this subject 
 were presented in the reign of Henry 6, and were 
 couched in the usual terms, praying that the writ 
 
 » 3 Kot. Pari. 446. » Ibid. 506. » 4 Rot. Pari. 84. 156. 
 
INTRODUCTION. xli 
 
 of subpoena might not issue formatters determinable 
 at the common law ; but the only answer given was 
 a direction that " the statutes which already existed 
 should be observed, and that no writ of subpoena 
 should be granted unless the plaintiff gave proper 
 security for costs." 
 
 This is the last time we meet with any petitions 
 hostile to the jurisdiction, and from the tenor of all 
 the remonstrances made, as well as from that of the 
 bills which appeared in the calendar, it seems obvious 
 that the acknowledged jurisdiction of Chancery was 
 in cases where the common law gave or admitted a 
 right, but which were irremediable by its process. 
 We do not find either in the remonstrances or in the 
 biUs any trace of a jurisdiction to give relief, on the 
 ground that the strict law had denied a right which, 
 in the Chancellor's view of justice, ought to have 
 been admitted. 
 
 If such an authority had ever been claimed, the 
 complaints of the Commons would surely have been, 
 not that decisions were made by an *irre- r* -i 
 
 I XXXV I 
 
 gular authority, and under an irregular 
 process, but that when made they were contrary to 
 law. This, however, is not the case ; but the only 
 objection made is, that whereas certain matters 
 ought to be decided by a Court of law, they were 
 decided by the Chancellor, and the very pledge 
 which was in one instance given that the Chancery 
 should not interfere in matters of common law, " un- 
 less where one party is so rich and the other so poor 
 that justice cannot otherwise be obtained," clearly 
 points to a class of cases in which a right existed 
 
xlii Adams's docteine of equity. 
 
 according to law, but in which, for some reason or 
 other, the common law remedy was ineffectual. 
 
 The same principle still governs the jurisprudence 
 of the Court. It does not create rights which the 
 common law denies ; but it gives effectual redress for 
 the infringement of existing rights, where, by reason 
 of the special circumstances of the case, the redress 
 at law would be inadequate. 
 
 The manner of redress at law is by a judgment 
 for the plaintiff, entitling him to recover, as the case 
 may be, either possession of his property or damages 
 for its detention or injury, followed by a writ of exe- 
 cution to the sheriff, requiring him to give effect to 
 the judgment obtained. If this redress be sufficient 
 there is no jurisdiction in equity ; and, in accordance 
 with this principle, it is held that the Court of 
 Chancery cannot assess damages, or decree posses- 
 sion of land or payment of rent under a legal title ; 
 for in the one case the assessment may be made by 
 a jury, in the other the possession may be obtained 
 by ejectment, and the intermediate rent may be re- 
 covered either by assumpsit for use and occupation, 
 or by trespass for mesne profits. The manner of 
 redress in Chancery is by a decree against the wrong- 
 doer, compelling him specifically to make good his 
 default ; and therefore if the wrong require specific 
 redress, and such specific redress is not attainable at 
 law, there is a prerogative jurisdiction in equity to 
 relieve. And whether specific redress be requisite 
 or not, the inability of the common law Courts to 
 examine the defendant creates, in all cases of civil 
 wrong, a jurisdiction in equity to that extent. 
 
 The jurisdiction, however, is confined to civil 
 
INTRODUCTION. xliii 
 
 suits, and cannot be extended to the trial of crime. 
 It is the right of every man, when charged as a 
 criminal, to be exempt from giving evidence against 
 himself, and to have his guilt or innocence tried by 
 a jury. And, therefore, in all criminal proceedings, 
 and in those also which *may be termed _. ._ 
 
 r xxxvin 
 
 quasi-criminal, such as a mandamus, a quo •- -■ 
 
 warranto, or the enforcement of a penalty or forfei- 
 ture, there is no jurisdiction in equity (unless con- 
 ferred by special enactment), either to compel disco- 
 very or to afford relief.' 
 
 The jurisdiction over civil rights is founded, as we 
 have seen, on the writ of subpoena ; and, in accord- 
 ance with the requirements of that writ, is exerted 
 for a double purpose, viz. : 1. For discovery, compel- 
 ling the defendant to answer the complaint ; and 2. 
 For relief, compelling him to perform the decree. 
 
 The Court of Chancery, in enforcing discovery, 
 does not depart from the general policy of the law. 
 It requires a defendant to discover the truth of the 
 plaintiff's claim, notwithstanding that he is himself 
 the party sued; but it does not require him to answer 
 questions which on grounds of general policy he is 
 entitled to resist. In accordance with this principle 
 it is held, first, that no man need discover matters 
 tending to criminate himself, or to expose him to a 
 penalty or forfeiture ; secondly, no man need dis- 
 cover legal advice which has been given him by his 
 professional advisers, or statements of fact which 
 have passed between himself and them in reference 
 to the dispute in litigation ; and thirdly, that official 
 
 » Story on Plead. 553. Re Hertford, 1 Hare, 584. Attorney- 
 General T. Lucas, 2 Hare, 566. 
 
xliv Adams's doctrine of equity. 
 
 persons must not disclose matters of state, the pub- 
 lication of which may be prejudicial to the com- 
 munity. 
 
 Subject to these restrictions, every competent de- 
 fendant in equity must answer on oath as to all 
 facts material to the plaintiff's case. He must 
 answer to all and not to a portion only. And he 
 must answer distinctly, completely, without needless 
 prolixity, and to the best of his information and 
 belief. He is also bound, if required by the plain- 
 tiff, to set forth a list of all documents in his posses- 
 sion or power from which similar discovery can be 
 obtained ; and if the possession of such documents 
 and their character as fit subjects of discovery can 
 be shown from his answer, he must permit the plain- 
 tiff to inspect and copy them. 
 
 The jurisdiction thus exercised for enforcing dis- 
 covery is available in aid of proceedings of civil re- 
 lief, whether such relief be asked from the Court of 
 Chancery, or from any other public tribunal which is 
 itself unable to enforce discovery. If the consequent 
 Pxxxviil ^^^^^^ *^® attainable in equity, a prayer to 
 that effect is introduced in the bill, which 
 is then termed a bill for the relief, or more correctly 
 for discovery and relief. If it be attainable in a 
 different Court, the mere fact that discovery is re- 
 quisite will not alter the jurisdiction. The Court of 
 Chancery will compel the discovery, but the relief 
 must be sought before the appropriate tribunal, and 
 the bill is for discovery alone. 
 
 In addition to the jurisdiction for discovery, there 
 is another substantially similar under which the 
 Court of Chancery interposes ; namely, for the pro- 
 
INTRODUCTION. xlv 
 
 curement of evidence to be used elsewhere, without 
 itself deciding, on the result, viz., in suits for a com- 
 mission to examine witnesses abroad, and in suits 
 for the perpetuation of testimony where the subject- 
 matter cannot be immediately investigated ; and for 
 granting, in aid either of its own proceedings or of a 
 proceeding elsewhere, the pecuHar remedy termed 
 an examination de hene esse. 
 
 The jurisdiction of equity to grant relief originates, 
 as we have seen, in the occasional inadequacy of 
 the remedy at law, and the supplemental character 
 which it thus sustains gives rise to two important 
 maxims : the one, that " equity follows the law ;" 
 the other, "that he who would have equity must do 
 equity." The former maxim, that " equity follows 
 the law," imports that if a legal claim, i. e., a claim 
 triable at law, be contested in equity, it will be de- 
 cided in accordance with the legal right; if the con- 
 tested claim be equitable, i. e., triable in equity alone, 
 the decision will follow the analogy of law. The 
 latter maxim, that "he who would have equity 
 must do equity," imports that where a party, not 
 content with his legal remedy, seeks the supple- 
 mental aid of equity, he must give effect to all equi- 
 table rights in his adversary respecting the subject- 
 matter of the suit. 
 
 The cases of inadequacy at common law, which 
 originate the supplemental jurisdiction of equity, 
 may be conveniently divided under two heads, viz. : 
 1. Where the Courts of ordinary jurisdiction cannot 
 enforce a right ; and 2. Where they cannot admi- 
 nister it. 
 
 The equities under the first head of this division, 
 
xlvi ADAMS'S DOCTRINE OF EQUITY. 
 
 viz., where the Courts of ordinary jurisdiction cannot 
 enforce a right, are those for performance of trusts 
 and contracts; for elections between inconsistent 
 benefits ; for completion of gifts on meritorious con- 
 sideration in favour of the donor's intention after his 
 pj. ...-, death ; for giving effect to *discharges by 
 matter in pais of contracts under seal; for 
 relief against penalties and forfeited mortgages ; for 
 re-execution or correction of instruments which have 
 been lost or erroneously framed ; for setting aside 
 transactions which are illegal or fraudulent, or which 
 have been carried on in ignorance or mistake of mate- 
 rial facts ; and for injunction against irreparable torts. 
 
 The jurisdiction to enforce performance of trusts 
 arises where property has been conferred upon, and 
 accepted by, one person on the terms of using it for 
 the benefit of another. The former person, or owner 
 at law, is called the trustee ; the latter or owner in 
 equity the cestui que trust. And it is manifest that the 
 trustee, being the admitted owner at law, may deal 
 with the property at law as his own, and that the 
 equitable ownership, or right to compel performance of 
 the trust, is only cognizable in the Court of Chancery. 
 
 In order to originate a trust, two things are essen- 
 tial : first, that the ownership conferred be coupled 
 with a trust, either declared by the parties or result- 
 ing by presumption of law ; and secondly, that it be 
 accepted on those terms by the trustee. The con- 
 sequence of its creation and acceptance is that the 
 property is subjected to a double ownership, an equi- 
 table ownership in the cestui que trust, and a legal 
 ownership in the trustee. 
 
 The equitable ownership is in strictness a mere 
 
INTRODUCTION. xlvii 
 
 chose in action or right to sue a subpoena against 
 the trustee ; but it is considered in equity the estate 
 itself, and is generally regulated by principles cor- 
 responding with those which apply to an estate at 
 law. The terms in which it is declared are inter- 
 preted by the same rules ; it is subject to the same 
 restraints of policy, and is governed by the same laws 
 of devolution and transfer. The analogy, however, 
 which exists between the two forms of ownership, is 
 not free from exception. The legal rules of inter- 
 pretation, though uniformly applicable to an executed 
 trust, i. e., a trust of which the scheme has in the 
 outset been completely declared are not applied with 
 equal stringency in determining the limitations of 
 an executory trust, i. e., a trust where the ultimate 
 object has been alone denoted, with a direction to 
 effectuate that object in some convenient way. The 
 legal restraints of policy, though generally binding 
 an equitable estate, admit in that respect of two sin- 
 gular exceptions; the one in what are called the 
 separate use and pin-money trusts, enabling a married 
 woman to hold property independent of her husband, 
 and allowing *such property to be made r* , ^ • -i 
 inalienable; the other in what is called 
 the wife's equity for a settlement, restraining the 
 husband's rights over her equitable chattels real and 
 choses in action until an adequate settlement has 
 been made. And in respect also to the devolution 
 of trusts, there are two exceptions to the general 
 rule ; the one real in their exemption from dower, 
 the other apparent in the attendance of satisfied 
 terms on the inheritance, so that the trust devolves 
 on the real instead of the personal representative. 
 
xlviii ADAMS'S DOCTRINE OF EQUITY. 
 
 The means by which an equitable ownership is 
 transferred or charged, where its subject-matter is 
 personal estate, are analogous to those which apply 
 to a legal ownership, rather than strictly identical 
 with them. The distinction originates in the doc- 
 trine that personal property passes at law by mere 
 delivery, which, where an equitable interest is trans- 
 ferred, may not be practicable ; and, therefore, in 
 order to pursue as nearly as possible the analogy of 
 law, it is required that the assignment of an equita- 
 ble interest should be perfected by notice to the 
 trustee, so as to deprive the assignor of subsequent 
 control and to effect a constructive delivery to the 
 assignee. It is otherwise with respect to real estate. 
 For real estate passes by title, and not by delivery ; 
 and the character of the grantor's interest, whether 
 legal or equitable, does not affect the terms of his 
 deed. The principle of constructive delivery by no- 
 tice to the trustee is applied also to a debt or other 
 chose in action. The right of recovering such an 
 interest, like that of enforcing a trust, is in strictness 
 merely a right of litigation, and except in the case 
 of negotiable securities, is not capable of transfer at 
 law. But if it be in substance a right of property, 
 it is treated in equity as of that character, and may 
 be transferred by an assignment or agreement to 
 assign, perfected by notice to the party liable. 
 
 The legal ownership of the trustee confers on him 
 at law an absolute dominion, but is considered in 
 equity as subservient to the trust ; so that the trustee 
 is bound to use it for those purposes, and those only 
 which were contemplated by the grantor ; to account 
 for and protect the property whilst the trust con- 
 
INTRODUCTION. xlix 
 
 tinues ; to restore it to the parties entitled when the 
 trust is at an end ; and not to avail himself of his 
 fiduciary character for any object of personal benefit. 
 If he perform his duties, he may claim indemnity 
 against all personal loss ; but if he fail in their per- 
 formance, he is liable, at the option of the cestui que 
 trust, either to replace the property in its rightful 
 *state, or to account for any benefit which has r* n 
 accrued ; nor will the mere lapse of time, if 
 unaccompanied by knowledge and acquiescence on 
 the part of the cestui que trust, discharge him from 
 this liability. 
 
 Besides the ordinary trusts which we have just 
 considered, there is another class of trusts — those 
 for charitable and public purposes, where the legal 
 ownership is conferred on a fiduciary holder, but the 
 trust is declared for general objects, and not for the 
 benefit of a specific owner. The incidents of a trust 
 of this class are for the most part the same with 
 those of one for ordinary purposes. But there are 
 two principal distinctions ; the one, that a charitable 
 trust is not afiected by lapse of time in the same 
 manner as a trust for private persons ; the other, 
 that where an apparent charitable intention has 
 failed, whether by an incomplete disposition at the 
 outset, or by subsequent inadequacy of the original 
 object, effect may be given to it by a gy pres or ap- 
 proximate application, to the exclusion of a result- 
 ing trust for the donor. 
 
 The jurisdiction of equity for superintending a 
 charitable trust is called into action by information 
 of the Attorney-General, suing on behalf of the 
 Crown. It extends, in the case of unincorporated 
 
1 ADAMS'S DOCTRINE OF EQUITY. 
 
 charities, to their internal administration, as well as 
 to the management of their estates. But in the case 
 of eleemosynary corporations it is confined to the 
 latter object ; and the internal administration of such 
 charities, together with the election and amotion of 
 corporators, is exclusively subject to the jurisdiction 
 of a visiter. In addition to the jurisdiction of the 
 dourt of Chancery over charities, a special jurisdic- 
 tion was created by 43 Eliz. c. 4, called the Statute 
 of Charitable Uses, to be exercised by commissioners 
 appointed by the Crown. But their jurisdiction has 
 now fallen into disuse. And there is also a summary 
 jurisdiction in equity, to be enforced on petition, 
 instead of information or bill, created by 52 Geo. 
 3, c. 101, commonly known as Sir Samuel Romilly's 
 Act. 
 
 The jurisdiction of compelling performance of a 
 contract involves the consideration, not merely of 
 what is technically termed specific performance, but 
 also of the doctrines of election, of meritorious or 
 imperfect consideration, of the discharge by matter 
 in pais of contracts under seal, and of relief against 
 penalties and forfeited mortgages. 
 
 The equity to compel specific performance of a 
 contract arises where a contract binding at law has 
 Pxlil ^^^^ infringed, and the remedy *at law by 
 damages is inadequate. And in order to 
 originate this equity, it is essential that the con- 
 tract shall have been made for valuable consideration, 
 and that its enforcement in specie be practicable and 
 necessary. 
 
 The first requisite is, that the contract be made for 
 valuable consideration. For so long as a promise 
 
INTRODUCTION. li 
 
 rests in fieri, there is not, in the absence of such con- 
 sideration, any equity to insist on its performance. 
 It is otherwise if the promise has been already exe- 
 cuted, either by the transfer of a legal ownership, or 
 by the creation of a final trust. The exact line of 
 demarcation, where the contract ceases to be an 
 executory agreement and becomes a perfected trust 
 in equity, is often difficult to distinguish. But the 
 principle itself is sufficiently clear. If the donor has 
 perfected his gift in the way which he intended, so 
 that there is nothing left for him to do, and nothing 
 which he has authority to countermand, the donee's 
 right is enforceable as a perfected trust, and the con- 
 sideration is immaterial. If, on the contrary, the 
 transaction is incomplete, and its final completion 
 is asked in equity, the Court will not interpose to 
 perfect the liability without first inquiring into the 
 origin of the claim and nature of the considera- 
 tion. 
 
 The second requisite is that the enforcement in 
 specie be practicable ; and therefore, if the contract 
 is one which the party making it is unable to per- 
 form, or which the court is unable practically to en- 
 force, performance will not be decreed ; and the same 
 result will frequently follow where enforcement is 
 sought against the defendant, but a corresponding 
 performance by the other party cannot be secured. 
 
 The third requisite is that the enforcement in 
 specie be necessary as well as practicable ; and there- 
 fore, if the possession of the specified thing is not 
 essential, but a compensation in damages will redress 
 its loss, the Court will not interpose. And in deter- 
 mining on its necessity, the effect on both parties 
 
lii Adams's doctrine of equity. 
 
 will be taken into consideration ; and specific per- 
 formance may be refused, if there has been any un- 
 fairness on the part of the plaintiff, or if the defen- 
 dant has entered into the contract by mistake, or 
 even on the mere ground that the contract is a hard 
 one, and that its enforcement in specie would press 
 heavily on him. 
 
 In applying this equity to contracts relating to real 
 estate, there are some modifications of legal rules, 
 Pxliil "^^^^^ ** ^^^^ sight appear inconsistent *with 
 them and repugnant to the maxim, that 
 " equity follows the law." The modifications here 
 referred to are those of enforcing parol contracts re- 
 lating to land, on the ground that they have been 
 already performed in part ; of allowing time to make 
 out a title beyond the day which the contract speci- 
 fies ; and of allowing a conveyance with compensa- 
 tion for defects. The wisdom of permitting any de- 
 viation is a subject admitting of much doubt. But 
 the particular doctrines now in question are fully 
 established by the course of precedent, and may 
 perhaps be considered, not so much deviation from 
 the rule of law, as subordinate equities, or develop- 
 ments from the original doctrine, that specific per- 
 formance of a contract, and not pecur^iary compen- 
 sation for its breach, is the equitable measure of 
 redress. 
 
 The first of these subordinate equities is that of 
 enforcing parol contracts relating to land, on the 
 ground that they have been already performed in 
 part. A parol contract in relation to land is made 
 incapable of enforcement by the Statute of Frauds; 
 and, so long as the contract remains in fieri, it is 
 
INTRODUCTION. Kii 
 
 alike ineflPectual at law and in equity. It sometimes, 
 however, happens that a contract, which is still in 
 fi&ri at law, has been already performed by construc- 
 tion of equity ; for if it is one of which specific per- 
 formance would be decreed, it is itself in some sort 
 an equitable title ; and if the parties have clothed 
 that title with possession, or have otherwise acted 
 on it as an existing ownership, they are held to have 
 perfected their agreement in equity, and if the terms 
 of their parol contract can be proved, may be decreed 
 to perfect it by a conveyance at law. 
 
 The second equity is that of allowing time to 
 make out a title beyond the day which the contract 
 specifies. The rule on this point is expressed by 
 the maxim, that " time is not of the essence of the 
 contract in equity ;" and it seems, like that of part 
 performance, to be founded on the principle, that 
 the contract itself is in the nature of a title, so that 
 if a substantial ownership exists, though the title be 
 not fully cleared on the appointed day, specific per- 
 formance may be properly decreed. 
 
 The third equity is that of allowing a conveyance 
 with compensation for defects, where a contract has 
 been made for sale of an estate, which cannot be 
 literally performed in toto, whether by reason of an 
 unexpected failure in the title to part, of inaccuracy 
 in the terms of description, or of diminution in value 
 by liability to a *charge. The principle of ^ ,...-, 
 this equity appears to be, that where the 
 property contracted for can be substantially trans- 
 ferred, it is against conscience to take advantage of 
 small circumstances of variation. The equity for 
 performance with compensation may be enforced by 
 
liv Adams's doctrine of equity. 
 
 either the vendor or purchaser, but is of course more 
 readily granted to the latter. In either case the 
 defect must be one admitting of compensation, and 
 not a mere matter of arbitrary damages, and the 
 compensation given must be really compensation for 
 a present loss, and not indemnity against a future 
 risk. 
 
 A corresponding relief to that by specific perfor- 
 mance is given, even in the absence of a contract, in 
 the case of title deeds or specific chattels of peculiar 
 value, detained from the legitimate owner, by direct- 
 ing them to be delivered up or secured. 
 
 The equities of election and of meritorious or im- 
 perfect consideration are closely connected with the 
 principle which has been already stated, of enforcing 
 those contracts, and those only, which are based on 
 valuable consideration. 
 
 The first of these equities is that of election. The 
 equity to enforce contracts made for value is ex- 
 tended by parity of reasoning to cases where a bene- 
 fit has been conferred as the consideration for an act, 
 and knowingly accepted, although the party so ac- 
 cepting it may not be bound by an actual contract, 
 or by a condition of performance annexed to the gift. 
 The equity of election is analogous to this : it ap- 
 plies, not to cases of contract or of conditional gift, 
 but to those in which the donor of an interest by will 
 has tacitly annexed a disposition to his bounty, 
 which can only be effected by the donee's consent ; 
 e. g., where a testator leaves a portion of his property 
 to A., and by the same will disposes of property 
 belonging to A. In this case there is no contract by 
 A. to relinquish his own property, nor is there any 
 
INTRODUCTION. Iv 
 
 condition annexed to the testator's gift, which re- 
 quires him to do so as a term of its acceptance. 
 But the fact that a double disposition has been made, 
 implies that he shall not have both the interests ; 
 and he must therefore elect between the two, and 
 must either relinquish his own property or compen- 
 sate the disappointed donee out of the property be- 
 queathed. A doubt, however, exists on this last 
 point, and it appears to be uncertain whether the 
 consequence of an election to take against the will 
 is confined to a liability to compensate, or is a for- 
 feiture of the property devised. 
 
 *The doctrine of meritorious consideration r* i- -i 
 originates in the distinction between the 
 three classes of consideration on which promises may 
 be based; viz., valuable consideration, the perfor- 
 mance of a moral duty, and mere voluntary bounty. 
 The first of these classes alone entitles the promisee 
 to enforce his claim against an unwilling promisor; 
 the third is for all legal purposes a mere nullity un- 
 til actual performance of the promise. The second 
 or intermediate class is termed meritorious, and is 
 confined to the three duties of charity, of payment 
 of creditors, and of maintaining a wife and children, 
 or persons towards whom the party promising has 
 placed himself in loco parentis. This class of con- 
 sideration is not distinguished at law from mere 
 voluntary bounty, but is to a modified extent recog- 
 nised in equity. 
 
 The rule of equity on this subject is, that although 
 a promise, made without valuable consideration, 
 cannot be enforced against the promisor or any one 
 in whose favour he has altered his intention, yet, if 
 
Ivi Adams's doctrine of equity. 
 
 a gift on meritorious consideration be intended, but 
 imperfectly executed, and tbe intention remain un- 
 altered at tbe deatb of tbe donor, tbere is an equity 
 to enforce tbe intended gift against persons claiming 
 by operation of law, witbout an equally meritorious 
 claim. Tbe principal applications of tbis equity are, 
 in supplying surrenders of copybold against tbe beir, 
 and in supporting defective executions of powers, 
 wben tbe defect is formal, against tbe remainderman. 
 Anotber class of cases to wbicb tbe doctrine of 
 meritorious consideration applies, are tbose wbere a 
 man, subject to a moral duty, does an act wbicb 
 may bave reasonably been meant in satisfaction of 
 tbat duty, and is tberefore presumed to bave so in- 
 tended it. In accordance witb tbis principle, acts 
 wbicb, as between strangers would bear one con- 
 struction, may be construed differently wbere meri- 
 torious consideration exists ; e. g., a purcbase made 
 by one person in tbe name of anotber may be con- 
 strued an advancement in favour of a cbild, instead 
 of a resulting trust for tbe purcbaser. A legacy may 
 be construed a provision instead of mere bounty, and 
 may, as sucb bear interest from tbe testator's deatb. 
 Tbe equities for giving effect to discbarges by 
 matter in pais of contracts under seal, and for rebef 
 against penalties and forfeited mortgages, are tbe 
 converse to tbe equity for specific performance. Tbe 
 first of tbese equities originates in tbe rule of law, 
 tbat an agreement under seal, tecbnically termed an 
 Pxlvl ^S''"^^™®^* by specialty, can only *be avoided 
 by anotber specialty, and tbat it is unaffected 
 by matter in pais wbicb would operate as a dis- 
 cbarge of a simple contract. In equity, tbe rule is 
 
INTRODUCTION. Ivii 
 
 otherwise ; for the form of agreement is immaterial, 
 and if the act done is in substance a discharge, it 
 will warrant a decree for the execution of a release, 
 or for delivery up and cancellation of the specialty. 
 The most ordinary application of this equity is in 
 favour of sureties, where a guarantee has been given 
 under seal, and the creditor, without the surety's 
 consent, has discharged or modified the principal's 
 liability. 
 
 The second of these equities originated in the rule 
 of law, that, on breach of a contract secured by 
 penalty, the full penalty might be enforced without 
 regard to the damage sustained. The Court of 
 Chancery, in treating contracts as matter for specific 
 performance, was naturally led to the conclusion 
 that the annexation of a penalty did not alter their 
 character; and, in accordance with this view, re- 
 strained proceedings to enforce the penalty on a 
 subsequent performance of the contract itself; viz., 
 in the case of a debt, on payment of the principal, 
 interest, and costs, or, in that of any other contract, 
 on reimbursement of the actual damage sustained. 
 A similar authority is now conferred by statute on 
 courts of law, but the equitable jurisdiction is not 
 destroyed. The same relief has been granted on 
 clauses of re-entry for non-performance of covenants 
 in a lease ; but the soundness of the application is 
 questionable, and it is now strictly confined to cases 
 where the covenant is for payment of money, so 
 that the damage may be certainly measured by inte- 
 rest. 
 
 The equity for relief against penalties applies most 
 extensively to the case of forfeited mortgages, where 
 
Iviii ADAMS'S DOCTRINE OF EQUITY. 
 
 a loan has been secured by the transfer of property, 
 with a condition to redeem on a specified day, and 
 the right of redemption has been forfeited at law by 
 non-payment at the appointed time. 
 
 The equity in these cases is, that the real trans- 
 action is a loan on security, and the forfeiture by 
 non-payment is a mere penalty, which may be re- 
 lieved against on subsequent satisfaction of the debt. 
 If it be not in fact a loan, but a hona fide sale, with 
 power to repurchase, there is no equity to interpose. 
 A clause of redemption, however, is prima facie evi- 
 dence that a loan was intended ; and if that fact be 
 established, no cotemporaneous stipulation can clog 
 the right of redemption, or entitle the creditor to 
 more than his principal, interest, and costs. A 
 P^. T .-.partial power to give relief in cases of *mort- 
 gage has been also conferred, by 7 Geo. 2, c. 
 20, on courts of common law. 
 
 The right of the mortgagor to redeem is termed 
 his " Equity of Redemption," and is treated in equity 
 as a continuance of his estate, subject to the mort- 
 gagee's pledge for repayment. And therefore, whilst 
 he is left in possession by the mortgagee, he is looked 
 upon as holding in respect of his ownership, and is 
 not accountable for his receipts. 
 
 The legal ownership of the mortgagee is e converso 
 treated as a mere pledge for repayment. He may 
 enter into possession if he think fit ; but, if he does 
 so, is accountable for all which he receives, or, with- 
 out wilful default, might have received ; and if he has 
 taken possession when no interest was in arrear, or 
 has continued in possession after both principal and 
 interest were discharged, he is liable for interest. 
 
INTRODUCTION. Hx 
 
 The remedy of the mortgagee by taking possession 
 is practically very inconvenient, yet if the forfeiture 
 by non-payment had been taken away, and not re- 
 placed by any substitute, it would have been the 
 only one attainable under his security. To remedy 
 this objection, he is allowed, after forfeiture, to file 
 a bill praying foreclosure of the equity to redeem. 
 A new day for payment is then fixed by decree ; 
 and if default be made, the mortgagor's right is de- 
 stroyed. The right, however, is merely, to fore- 
 close the equity, and does not extend to warrant a 
 sale. 
 
 In addition to regular or perfected mortgages, which 
 convey the legal estate to the mortgagee, and specify 
 a day of forfeiture at law, there are other securities 
 of an analogous character, but defective in one or 
 both of these respects. These imperfect securities 
 are seven in number, viz., 1. Mortgages of a trust, 
 or equity of redemption, and equitable mortgages by 
 imperfect conveyance or by contract to convey. In 
 these mortgages the legal ownership is not transferred, 
 and the mortgagee therefore cannot obtain possession 
 at law, but is entitled in equity to a receiver of the 
 rents ; 2. Equitable mortgages by deposit of title 
 deeds, unaccompanied by a written contract. Under 
 these mortgages there is the same right to a receiver 
 as in the preceding class ; and there is a doubt whe- 
 ther, in addition to the remedy by foreclosure, the 
 mortgagee has not an alternative remedy by sale 
 of the estate; 3. Welsh mortgages, in which there 
 is no specified day of payment, but the contract 
 is for payment out of the *rents : in this r-^ , ..-i 
 case the mortgagee's remedy is confined to 
 
Ix ADAMS'S DOCTRINE OF EQUITY. 
 
 perception of rents, and he has no right to foreclosure 
 or sale ; 4. Trust deeds in the nature of mortgage, 
 which are mere conveyances to the creditor on trust 
 to sell and to retain his debt out of the proceeds ; 5. 
 The equitable lien of a vendor or purchaser of 
 real estate, where the one has conveyed before pay- 
 ment, or the other has paid before conveyance. In 
 either of these cases the payment or return, as the 
 case may be, of the purchase money, is secured in 
 equity by an implied charge on the land ; 6. Equi- 
 table fieri facias and elegit, where a judgment is 
 made available against trusts and equities, either by 
 injunction against setting up an outstanding estate 
 in bar of execution at law, by appointment of a re- 
 ceiver of the accruing profits, or by permitting the 
 judgment creditor to redeem ; and, 7. Judgment 
 charges under 1 & 2 Vict. c. 110, ss. 13, 14, by 
 which a judgment is made a charge in equity, on the 
 debtor's interest in real estate and in stock or shares 
 enforceable in like manner with a charge by con- 
 tract. 
 
 In immediate connexion with the subjects just 
 considered of trust contract and mortgage, we have 
 to consider the doctrines of equitable conversion 
 and of priority among conflicting equities ; doctrines 
 which, though applicable to all subjects of equi- 
 table jurisdiction, are more especially important in 
 regard to these. 
 
 The doctrine of equitable conversion is embodied 
 in the maxim, that " what ought to be done is con- 
 sidered in equity as done ;" and its meaning is, that 
 whenever the holder of property is subject to an 
 equity in respect of it, the Court will, as between 
 
INTRODUCTION. Ixi 
 
 the parties to the equity, treat the subject-matter 
 as if the equity had been worked out, and as im- 
 pressed with the character which it would then have 
 borne. The simplest operation of this maxim is 
 found in the rule already noticed, that trusts and 
 equities of redemption are treated as estates ; but its 
 effect is most obvious in the constructive change of 
 property from real to personal estate, and vice versa, 
 so as to introduce new laws of devolution and trans- 
 fer. If, for example, an imperative trust is created, 
 either for employing money in the purchase of land, 
 or for selling land and turning it into money, the 
 money or land, of which a conversion is directed, 
 will be dealt with in equity during the continuance 
 of the trust, and for objects within the scope of the 
 trust, as if the purchase or sale had been actually 
 made. In like manner, if a binding contract be made 
 for *the sale of land, enforceable in equity, p^ , ...-i 
 such contract, though in fact unexecuted, 
 is considered as performed, so that the land becomes 
 in equity the property of the vendee, and the pur- 
 chase-money that of the vendor. 
 
 The doctrine of conversion, by changing the cha- 
 racter of trusts and contracts, and altering them 
 from mere rights of action into actual, though im- 
 perfect titles in equity, gives rise to questions be- 
 tween them and the legal title, and also to questions 
 between conflicting equities, where several have been 
 created in reference to the same thing. 
 
 The rule of priority in regard to transfers and 
 charges of the legal estate is, that the order of date 
 prevails, subject, however, to modifications by statute 
 in respect to voluntary or fraudulent grants ; and 
 
Ixii ADAMS'S DOCTRINE OF EQUITY. 
 
 the same rule, subject to the same modifications, 
 governs in the absence of a special equity, transfers 
 and charges of the equitable interest. But if legal 
 and equitable titles conflict, or if, in the absence of 
 a legal title, there is a perfect equitable title by 
 conveyance on the one hand, and an imperfect one 
 by contract on the other, a new principle is intro- 
 duced, and priority is given to the legal title, or if 
 there is no legal title, to the perfect equitable one. 
 This doctrine is embodied in the maxim, that " be- 
 tween equal equities the law will prevail." 
 
 In order that this maxim may operate, it is essen- 
 tial that the equities be equal. If they are unequal, 
 the superior equity wUl prevail. And such supe- 
 riority may be acquired under any of the three fol- 
 lowing rules : 1. The equity under a trust or a con- 
 tract in rem. is superior to that under a voluntary 
 gift, or under a lien by judgment at law; 2. The 
 equity of a party who has been misled is superior to 
 his who has wilfully misled him ; 3. A party taking 
 with notice of an equity, takes subject to that equity. 
 
 If no superior equity exists, the common course 
 of law is not interfered with. The equities are 
 equal, and the law or the analogy of law will pre- 
 vail. If there be a legal right in either party, the 
 Court of Chancery remains neutral, and the matter 
 is left to be decided at law without either rehef or 
 discovery in equity. If there be no legal right it 
 cannot be neutral ; and, therefore, acts on the analogy 
 of law, and gives priority to that title which most 
 nearly approximates to a legal one, viz., to an exe- 
 cuted and perfect title in equity, rather than to one 
 which is executory and imperfect. 
 
INTRODITCTION. Ixiii 
 
 *The maxim of non-interference between r* r -i 
 equal equities is the foundation of the doc- 
 trine of tacking in equity. The cases to which this 
 doctrine applies are those where several incum- 
 brances have been created on an estate, and two or 
 more of them, not immediately successive to each 
 other, have become vested in a single claimant. 
 Under these circumstances the question arises, 
 whether an immediate claimant may redeem one of 
 such incumbrances, and postpone the other to his 
 own charge, or whether the party holding the two 
 incumbrances may tack or consolidate them, so that 
 the earlier in date cannot be separately redeemed. 
 The doctrine on this point is, that if the double in- 
 cumbrancer is clothed with a legal or superior equi- 
 table right, he may, as against the mesne claimants, 
 tack to it a claim for any further amount due to him 
 in the same character, which was advanced expressly 
 or presumptively on the credit of the estate without 
 notice of the mesne equity. A similar equity ac- 
 crues where two mortgages of different estates are 
 made to one person, or, being originally made to two, 
 become vested in one, whilst the equities of redemp- 
 tion remain united in a single hand. In such a case 
 neither the mortgagor, nor any person making title 
 under him, can after forfeiture redeem one without 
 redeeming both. 
 
 In addition to the equity for performance of a 
 trust or contract where the original transaction and 
 its evidence are ^pimpeached and clear, there is an 
 equity for re-execution, correction, or rescission, where 
 the instrument evidencing a transaction is destroyed 
 or lost ; where, through mistake or accident it has 
 
Ixiv Adams's docteine of equity. 
 
 been incorrectly framed ; or where the transaction 
 is vitiated by illegality or fraud, or as having been 
 carried on in ignorance or mistake of facts material 
 to its operation. These equities, like the equity for 
 performance in specie, are incapable of enforcement 
 by the courts of law, and fall therefore within the 
 province of the Court of Chancery. 
 
 The equity for re-execution and other similar re- 
 lief arises, not only on wilful destruction or conceal- 
 ment, but also on an accidental destruction or loss, 
 where the missing instrument is such that its non- 
 production would perpetuate a defect of title, or would 
 preclude the plaintiff from recovering at law. Such 
 for instance is a conveyance or bond, which under 
 the old practice must have been pleaded with profert 
 at law, and a negotiable security, which must be 
 p^,-| produced *at law before verdict, because the 
 court cannot otherwise indemnify the defendant 
 against its possible re-appearance. 
 
 The equity to correct written instruments which 
 have been erroneously framed is appropriate to 
 Chancery alone ; for a court of law cannot compel 
 an alteration in the instrument, and its entire avoid- 
 ance would be a nullification, and not an affirmance, 
 of what was meant. It arises, firstly, where an in- 
 strument has been executed in order to the per- 
 formance of a pre-existing trust, but is framed in a 
 manner inconsistent with its terms ; secondly, when 
 an instrument purports to carry into effect an agree- 
 ment which it recites, and exceed^ or falls short of 
 that agreement ; and, thirdly, where an instrument 
 is admitted or proved to have been made in pur- 
 suance of a prior agreement, by the terms of which 
 
INTRODUCTION. Ixv 
 
 both parties meant to abide, but with which it is in 
 fact inconsistent, or where it is admitted or proved 
 that an instrument, intended by both parties to be 
 prepared in one form, has by an undesigned inser- 
 tion or omission been prepared and executed in 
 another. It is in conformity with this principle that 
 bonds given for payment of a joint and several debt, 
 but drawn up as merely joint, have been reformed in 
 equity, and made joint and several, in conformity 
 with the original liability ; and that mortgages by 
 husband and wife of the wife's estate, which have 
 limited the equity of redemption to the husband, 
 have been reformed by restoring it to the wife. 
 
 The equity for rescission and cancellation arises 
 where a transaction is vitiated by illegality or fraud, 
 or by reason of its having been carried on in igno- 
 rance or mistake of facts material to its operation. 
 And it is exercised for a double purpose ; first, for 
 cancelhng executory contracts where such contracts 
 are invalid at law, but their invalidity is not appa- 
 rent on the instrument itself, so that the defence 
 may be nullified by delaying to sue until the evi- 
 dence is lost ; and, secondly, for setting aside exe- 
 cuted conveyances or other impeachable transactions 
 where it is necessary to replace the parties in statu 
 quo. An executed conveyance, however, cannot 
 generally be set aside on the ground of its illegal or 
 immoral character, for it is a maxim that in ''pari 
 delicto melior est conditio defendentis." But it is 
 otherwise where the contract remains executory, for 
 its illegality would be admissible as a defence at law, 
 and the decree for cancelling is only an equitable 
 mode of rendering that defence effectual. 
 
Ixvi Adams's doctrine of equity. 
 
 P^,.-| *The ordinary instances of fraud are the pro- 
 ^ ^-' curing contracts to be made, or acts to be done, 
 by means of wilful misrepresentation, either express 
 or implied, and the procuring them to be made or 
 done by persons under duress or incapacity. The 
 same principle which vitiates a contract with an in- 
 capacitated person is extended in equity to avoid 
 benefits obtained by trustees from their cestuis qtw 
 trustent, or by other persons sustaining a fiduciary 
 character from those in regard to whom that cha- 
 racter exists. And there is a similar equity, though 
 perhaps less obviously founded on principle, for 
 setting aside bargains made with expectant heirs 
 and reversioners without the knowledge of the parent 
 or other ancestor, partly as having been made under 
 the pressure of necessity, but chiefly as being a fraud 
 on the parent or ancestor, who is misled in disposing 
 of his estate. 
 
 The ignorance or mistake which will authorize 
 relief in equity must be an ignorance or mistake of 
 material facts; as, for example, where an instrument 
 is executed, not by way of releasing or compromising 
 a particular right, but in ignorance or mistake of the 
 facts which originate the right. If the facts are 
 known, but the law is mistaken, the same rule ap- 
 plies in equity as at law, viz., that a mere mistake 
 of law, where there is no fraud or trust, is immaterial. 
 In addition to the jurisdiction for setting aside con- 
 tracts on the ground of mistake by the parties, there 
 is a jurisdiction to set aside awards for miscarriage 
 in the arbitrators, where the fact of such miscarriage 
 does not appear on the award. 
 
INTRODUCTION. Ixvii 
 
 The equity for rescission which has been juststated, 
 may be effectuated, not only by cancellation of an 
 instrument, or by re-conveyance of property which 
 has been unduly obtained, but also by injunction 
 against suing at law on a \T.tiated contract, or against 
 taking other steps to complete an incipient wrong. 
 The right, however, to relief by injunction is not 
 confined to this equity, but extends to all cases 
 where civil proceedings have been commenced before 
 the ordinary tribunals in respect of a dispute which 
 involves an equitable element, or where any act not 
 criminal is commenced or threatened, by which any 
 equity would be infringed. The restraint may be 
 either imposed by a final decree, forbidding the act 
 in perpetuum on establishment of the adverse right, 
 or by interlocutory writ, forbidding it pro tempore 
 whilst the right is in litigation. 
 
 The injunction against proceeding in another 
 Court, where equitable elements are involved in the 
 dispute, is commonly issued*in regard to actions p^. . .-■ 
 at law, and is obtainable as of course within a 
 short period after the commencement of a suit, so as 
 to restrain the proceedings at law until an answer 
 is filed. If the answer show the existence of an 
 equitable question, such question will be preserved 
 intact until the hearing of the cause, by continuing 
 the injunction, either absolutely or in a modified 
 form, until that time. If at the hearing the decision 
 is with the plaintiff in equity, the injunction may be 
 made perpetual. The same jurisdiction exists in 
 regard to proceedings in the Ecclesiastical and Ad- 
 miralty Courts, and even to proceedings in the 
 
Ixviii ADAMS'S DOOTEINE OF EQUITY. 
 
 Courts of foreign and independent countries, when 
 the parties are personally within the jurisdiction of 
 the Court of Chancery. But it does not extend to 
 proceedings in courts which are of equal competency 
 to adjudicate on the equity. 
 
 The relief by injunction against proceedings at law 
 is also applied under a distinct equity on bills of peace 
 and bills of interpleader. A bill of peace is a bill 
 filed for securing an established legal title against 
 the vexatious recurrence of litigation, whether by a 
 numerous class of claimants insisting on the same 
 right, or by an individual reiterating an unsuccessful 
 claim, and its equity is, that if the right be esta- 
 blished at law it is entitled to adequate protection. 
 A bill of interpleader 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 not incurred an independent liability to any of 
 them, and who does not himself claim an interest in 
 the matter. Its equity is, that the conflicting claim- 
 ants should litigate the matter amongst themselves 
 without involving the stakeholder in their dispute. 
 
 The injunction against an act commenced or 
 threatened, by which an equity may be infringed, 
 is often used as an auxiliary process in respect of 
 ordinary equities. But there is one class of cases in 
 which the necessity for injunctive relief constitutes 
 jper se an independent equity, viz., that of torts, as a 
 class of civil wrongs, distinct from cases of trust, of 
 contracts, and of fraud. The principle of injunctive 
 relief against a tort is, that wherever damage is 
 caused or threatened to property, admitted or legally 
 
INTRODUCTION. Ixix 
 
 adjudged to be the plaintiff's, by an act of the de- 
 fendant, admitted or legally adjudged to be a civil 
 wrong, and such damage is not adequately reme- 
 diable at law, the inadequacy of the remedy at law 
 is a sufficient equity, and will warrant an injunction 
 against the commission or continuance of the wrong. 
 *And though damages cannot be given in r*i"-| 
 equity for the plaintiff's loss, yet if the de- 
 fendant has made a profit he will be decreed to 
 account. The equity is not confined in principle 
 to any particular acts; but those in respect of which 
 it is most commonly enforced are waste, destructive 
 trespass, nuisance, infringement of patent right, and 
 infringement of copyright. 
 
 The equities under the second head of our divi- 
 sion, viz., where the Courts of ordinary jurisdiction 
 cannot administer a right, are those for investigation 
 of accounts ; for severance of co-tenancies, and other 
 analogous relief; for winding up partnerships and 
 administering testamentary assets; for adjusting 
 liabilities imder a common charge ; and for protec- 
 tion of the persons and estates of infants, idiots, and 
 lunatics. 
 
 The jurisdiction over account is exercised in a 
 twofold form ; first, for compelling an account from 
 an agent or steward, or any person whose duty it is 
 by reason of his character, position or office, to render 
 an account, and who has failed to do so ; and, secondly 
 for investigating mutual accounts where items exist 
 on both sides, not constituting mere matters of set- 
 off, but requiring, in order to ascertain the balance, 
 a more complicated account that can practically be 
 taken at law. 
 
IXX ADAMS'S DOCTRINE OF EQUITY. 
 
 The equity for severance of co-tenancy and other 
 analogous relief, originates in the fact that the co- 
 tenants have a rightful unity of possession, and that 
 its severance cannot be adequately effected at law. 
 It is most frequently applied in effecting partition 
 between co-parceners, joint-tenants, or tenants in 
 common. But its principle extends to suits by a 
 widow against the heir for assignment of dower, and 
 to suits by a tithe-owner against the tithe-payer for 
 relief against subtraction or non-payment of tithe ; 
 for in the one case the heir is rightfully in possession 
 of the entirety, and ought himself to make the 
 assignment; in the other, the tithe-payer is right- 
 fully in possession of the produce, and ought him- 
 self to set apart the tithe. There is also an equity 
 for ascertainment of boundary between the estates 
 of independent proprietors where the confusion has 
 arisen by the defendant's fault, and for compelHng 
 payment of rents where by confusion of boundaries 
 or other cause, the remedy by distress is gone with- 
 out default in the plaintiff. 
 
 The equity for winding up the business of a part- 
 nership originates in the peculiar character of that 
 p,- -1 relationship, as involving not merely *a com- 
 munity of interest, but the employment of a 
 common stock in some common undertaking with 
 a view to a common profit. In order to ascertain 
 this common profit, and the share of each individual 
 partner therein, an account must be taken of the 
 business, the assets, and the liabilities. The incapa- 
 city of the Courts of law to take this account, con- 
 fers a jurisdiction on the Court of Chancery, so that 
 if the partnership has been already dissolved, or if 
 
INTRODUCTION. Ixxi 
 
 there be misconduct or incompetency in either part- 
 ner sufficient to warrant its dissolution, a bill will 
 lie to have the assets converted into money, the 
 debts discharged out of their produce, and the sur- 
 plus distributed among the partners, or the defi- 
 ciency made good by contribution among them, and 
 a receiver appointed in the mean time to manage the 
 business. If, after a partnership has been dissolved 
 by death or bankruptcy, the assets are used by the 
 surviving or solvent partner for the purposes of 
 profit, he is in the same position as any other fidu- 
 ciary holder of property, using it for his own benefit, 
 and is liable to account to the executors or assignees 
 for the profit which he has made. There is also a 
 special equity, in the case of mines and collieries, to 
 deal with them on the footing of a quasi partnership, 
 so that where the co-owner cannot agree on the 
 management, a receiver may be appointed over the 
 whole. 
 
 The equity for administering the assets of a tes- 
 tator or intestate does not authorize the Court of 
 Chancery to try the validity of a will. The juris- 
 diction for that purpose in regard to wills of per- 
 sonal estate belongs to the Ecclesiastical Courts, and 
 in regard to wills of real estate to the Courts of 
 common law. If, however, under a will of real 
 estate, there is a trust to perform or assets to admi- 
 nister, so that the will is drawn within the cogni- 
 zance of equity, there is an incidental jurisdiction to 
 declare it established, after first directing an issue 
 {devisavit vel non) to try its validity at law. 
 
 Assuming the title of representative to be esta- 
 blished, whether that of an executor or devisee, or 
 
Ixxii ADAMS'S DOCTRINE OF EQUITY. 
 
 that of an administrator or heir, there is an equity 
 for administering the assets of a testator or in- 
 testate originating in the inefficiency of the ordi- 
 nary tribunals. In the exercise of this equity for 
 administration of assets, all such assets as would be 
 recognised at law are termed legal assets, and are 
 administered in conformity with legal rules, by 
 giving priority to debts in order of degree. There 
 are other assets, recognised in equity alone, which 
 are termed equitable assets, and are distributed 
 P^, -, *among the creditors pari passu, without 
 regard to the quality of their debts. The 
 principal assets of this class are real estates devised 
 for or charged with payment of debts, and equities 
 of redemption on forfeited mortgages. 
 
 The manner of administration in equity is on a 
 bill filed either by creditors or by legatees, pray- 
 ing to have the accounts taken and the property 
 administered ; or if no creditor or legatee is willing 
 to sue, then by the executor himself, who can only 
 obtain complete exoneration by having his accounts 
 passed into Chancery. The personalty is secured by 
 payment into Court ; a receiver of the real estate and 
 of the outstanding personalty is appointed, if the 
 circumstances require it ; and a decree is made for 
 taking the accounts ; all actions by creditors are 
 stayed ; advertisements are issued for claimants to 
 come in; and the funds are ultimately distributed by 
 the Court, so as to protect the representative from 
 subsequent liability. 
 
 The equity for adjusting liabilities under a com- 
 mon charge arises where a charge or claim, affecting 
 several persons, is or may be enforced in a manner. 
 
INTRODUCTIOK. Ixxiii 
 
 not unjust in the person enforcing it, but unjust or 
 irregular, as between the parties liable. And it is 
 exercised under the three forms of contribution, ex- 
 oneration, and marshalling. The equities of contri- 
 bution and exoneration arise where several persons 
 are bound by a common charge, not arising ex delicto, 
 and their order of liability has been accidentally 
 deranged. If the liability 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 dis- 
 charge the claim, are entitled to exoneration. Both 
 these equities are exemplified in the case of surety- 
 ship ; the one by the rights of sureties as between 
 themselves ; the other by their rights as against the 
 principal. Their enforcement in equity instead of 
 at law is advantageous, because the machinery of 
 equity is in general best fitted for such enforcement; 
 and more especially in questions of contribution, be- 
 cause all parties can be united in a single suit, and 
 losses caused by the insolvency of any can be distri- 
 buted rateably among the rest. The equity mar- 
 shalling arises where the owner of property subject 
 to a charge, has subjected it (together with another 
 estate or fund) to a paramount charge, and the pro- 
 perty thus doubly charged is inadequate to satisfy 
 both the claims. Under these circumstances there 
 is an equity against the debtor that the *acci- j-^,, -i 
 dental resort of the paramount creditor to 
 the doubly charged estate or fund and the conse- 
 quent exhaustion of that security, shall not enable 
 him to get back the second property discharged of 
 both debts. If, therefore, the paramount creditor 
 
Ixxiv ADAMS'S DOCTRINE OF EQUITY. 
 
 resort to the doubly charged estate, the puisne cre- 
 ditor will be substituted to his right, and will be 
 satisfied out of that other fund to the extent to 
 which his own has been exhausted. 
 
 The equities of contribution, exoneration, and 
 marshalling, are applied, as already noticed, in the 
 administration of assets, to rectify disorders which 
 may incidentally occur ; and the two former are ap- 
 plied where debts or legacies are charged on several 
 kinds of assets, either pari passu or successively ; the 
 latter, where they are charged, some on several 
 kinds of assets, and some on one kind only, and the 
 doubly charged assets have been applied in discharge 
 of the doubly secured claims. 
 
 The last equity which remains for notice is the 
 equity for administering the estate and protecting 
 the persons of infants, idiots, and lunatics. 
 
 The protection of an infant's person and estate is 
 to some extent provided for by the right of guardian- 
 ship, and by the writs of habeas corpus and of ac- 
 count at law. But this protection is of very limited 
 extent, and is far from adequate to secure a proper 
 education of the infant and a prudent management 
 of his estate. For these purposes there is a preroga- 
 tive in the Crown as parens patriae, exercised by the 
 Court of Chancery, for protection of any infant re- 
 siding temporarily or permanently within its juris- 
 diction. The jurisdiction is called into operation by 
 filing a bill, which constitutes the infant a ward of 
 Court; and such wardship is attended by three 
 principal incidents. Firstly, the infant must be 
 educated under the Court's superintendence, which 
 is exercised either by appointment of a guardian, 
 
INTRODUCTIOK. IxxV 
 
 where there is none, by a general control of the 
 legal guardian, when there is one within the jurisdic- 
 tion, or by displacement of the legal guardian, if he 
 has voluntarily reHnquished his right, or has for- 
 feited it by misconduct tending to the infant's cor- 
 ruption. Secondly, the estate of the infant must be 
 managed and applied under the like superinten- 
 dence, to be exercised either by appointment of a 
 receiver when there are no trustees, or by a general 
 control of the trustees where they already exist, and 
 do not misconduct themselves. And in the exercise of 
 such superintendence, an adequate part of the p^, . .-. 
 *income will be allowed for maintenance and 
 education, provided such income belong absolutely 
 to the infant, and the allowance be for his benefit; 
 but there is no power to dispose of the estate itself 
 except in the special cases of partition and election, 
 and of the devolution on an infant of a mortgaged 
 estate, and in the cases where it is expressly con- 
 ferred by statute. Thirdly, the marriage of the in- 
 fant must be with the sanction of the Court. And 
 such sanction will only be given on evidence that 
 the marriage is suitable, and, if the infant be a fe- 
 male, on a proper settlement being made. 
 
 The jurisdiction to protect persons under mental 
 incapacity is of an analogous origin with that for pro- 
 tection of infants ; and extends in like manner to all 
 persons, whether subjects of the Crown or not, whose 
 persons or property are within the local limits of the 
 jurisdiction. It differs, however, from the jurisdic- 
 tion in infancy, because the Crown, in the event of 
 idiotcy or lunacy, has not a mere authority to pro- 
 tect, but an actual interest in the land of the idiot 
 
Ixxvi Adams's doctrine of equity. 
 
 or lunatic, determinable on his recovery or death. 
 If the owner is an idiot, the profits are applied as a 
 branch of the revenue, subject merely to his requi- 
 site maintenance : if he is a lunatic, they are applied 
 on trust for his support, and the surplus is to be 
 accounted for to himself or his representatives. The 
 effect of the interest thus vested in the Crown is 
 twofold ; first, that a special grant is required for its 
 administration, and, consequently, that such admi- 
 nistration does not belong to the Court of Chancery, 
 but is conferred on the Lord Chancellor personally 
 by warrant from the Crown ; and secondly, that the 
 mere lunacy does not originate the jurisdiction, but 
 it must be inquired of by a jury under a commission 
 from the Great Seal, and found of record. 
 
 When the fact of lunacy has been duly estabhsh- 
 ed, the custody of the estate and person of the 
 lunatic is granted by the Chancellor to committees, 
 with a proper allowance for maintenance. On the 
 subsequent recovery of the lunatic, the commission 
 may be superseded ; and on his death the power of 
 administration is at an end, and the property will 
 be delivered up to his representatives. 
 
 In addition to the prerogative jurisdiction in 
 equity, there are other jurisdictions belonging to the 
 Court of Chancery. It is a Court of State, where 
 all public acts of government are sealed and enrolled. 
 It is an officina justiticB for the issuing of writs under 
 the Great Seal, e. g., writs of certiorari, of prohibition, 
 Plviiil ^^^ '^^ habeas corpus, *as well as the original 
 writ which has been already noticed, and the 
 writs of subpoena and injunction, which are appro- 
 priated to the equitable jurisdiction of the Court. 
 
INTRODUCTION. Ixxvii 
 
 It has a common law jurisdiction in what is called the 
 Petty Bag Office, the chief objects of which are, to 
 hold plea on scire facias to repeal letters-patent on 
 petitions of right, monstrans de droit, traverses of 
 office, and the like, and in personal actions where 
 any officer or minister of the Court is a party.^ It 
 has many special jurisdictions by statute, which are 
 generally directed to be exercised by summary 
 orders on petition, instead of the more regular pro- 
 cedure by suit; e. g., for relieving summarily against 
 breaches of charitable trusts, or regulating their ad- 
 ministration, for effectuating conveyances and trans- 
 fers by incapacitated trustees or mortgagees, for 
 managing property belonging to infants, femes covert, 
 lunatics, and persons of unsound mind, and for a 
 variety of miscellaneous purposes, depending in each 
 instance for their character and extent on the lan- 
 guage of the statute in which they originate.^ It 
 has a very important jurisdiction, also of statutory 
 origin, under the law of bankruptcy, for administer- 
 ing the property of an insolvent trader in his life- 
 time, in order to the satisfaction of his creditors pari 
 passu, and for discharging the debtor, after full sur- 
 render of his property and conformity with the re- 
 quisitions of the law, from further liability for his 
 antecedent debts.^ And lastly, it has a jurisdiction 
 over the solicitors of the Court for the summary en- 
 forcement of their professional duty, including the 
 
 ' 4 Inst. 79. Eex v. Hare, 1 Str. 150; 3 Steph, Bl. 408^10; 
 1 Madd. C. P., book i. 
 
 « 2 Dan. C. P. Ch. 40. 
 
 » 6 Geo. 4, c. 16, and 1 & 2 Wm. 4, c. 56; 5 & 6 Vict. c. 122 ; 
 10 & 11 Vict. c. 102. 
 
Ixxviii ADAMS'S DOCTRINE OF EQUITY. 
 
 delivery of papers and payment of money in their 
 hands, on satisfaction of their claim for costs.' The 
 consideration, however, of these additional jurisdic- 
 tions is not within the scope of the present Treatise, 
 which is confined to the prerogative, or proper equi- 
 table jurisdiction. 
 
 We have hitherto been considering the jurisdiction 
 in equity. But an inquiry still remains as to the 
 forms of pleading and procedure in accordance with 
 r-^y -| which that jurisdiction is exercised. It *is 
 ■- ^^-^ obvious that in every Court some forms must 
 exist ; of which the character will be determined by 
 the nature of the jurisdiction, and the objects which 
 it is principally exercised to attain. In accordance 
 with this view, the forms of pleading and procedure 
 in equity are directed to eliciting discovery on oath 
 from the defendant, and to placing on the record of 
 the Court a full and clear detail of facts on which 
 the equities may be adjusted by a decree. 
 
 The suit is commenced by filing a bill of com- 
 plaint, or if the claim made is on behalf of the Crown, 
 an information by the Attorney-General. The biU 
 of information consists of five principal parts, viz. : 
 the statement, the charges, the interrogatories, the 
 prayer for relief, and the prayer of process. The 
 statement is a narrative of the plaintijBf's case ; and 
 it is essential that it state a consistent case on behalf 
 of all the plaintiffs, and that it state such case in 
 direct terms, with reasonable certainty, and without 
 scandal or impertinence. The charges are generally 
 
 » 6 & 7 Vict. c. 73 ; 1 Smith's Ch. Pr. c. 3. Beames on Costs, 
 pi. 2; 2 Law Eeview, 317; 3 Ditto, 155, 319. 
 
INTRODUCTION. Ixxix 
 
 used for collateral objects; such, for example, as 
 meeting an anticipated defence by matter in avoid- 
 ance, or by inquiries to sift its truth ; giving notice 
 of e^-idence which might otherwise operate as a sur- 
 prise ; and obtaining discovery as to matter of detail, 
 which could not be conveniently introduced in the 
 statement. The interrogatories are an examination 
 of the defendant on oath. The prayer for relief, or 
 statement of the relief required, must state with 
 reasonable clearness what relief is asked, and must 
 not combine distinct claims against the same de- 
 fendant, or unite in the same suit several defendants, 
 some of whom are unconnected with a great portion 
 of the case. If the prayer is objectionable on either 
 of these two latter grounds, the bill is termed multi- 
 farious. The prayer of process asks that a writ of 
 subpoena may issue, directed to the parties named 
 as defendants, and requiring them to appear and 
 answer the bill, and to abide by the decree when 
 made. In bills for discovery or to perpetuate testi- 
 mony, the words " to abide by the decree" are 
 omitted, as well as the prayer for relief If any 
 other writ be required, such as an injunction, a ne 
 exeat, or a certiorari, it should be asked for in the 
 pra^^er of process, either singly or, if the defendant 
 be required to appear, together with the writ of sub- 
 poena. 
 
 The persons against whom process is asked are 
 the defendants to *the bill, and should consist p^, -, 
 of all persons interested in the suit, who are 
 not already joined as plaintiffs. 
 
 With respect to the nature of the interest which 
 requires a person to be joined in a suit, there is of 
 
Ixxx Adams's doctrine of equity. 
 
 course no difficulty as to persons against whom re- 
 lief is expressly asked ; but with respect to those who 
 are incidentally connected with the relief asked 
 against others, the line of demarcation is less easy 
 to draw. The interests, however, which require 
 such joinder seem generally referable to one of the 
 three following heads : first, interests in the subject- 
 matter, which the decree may affect, and for the 
 protection of which the owners are joined ; secondly 
 concurrent claims with the plaintiff, which, if not 
 bound by the decree, may be afterwards litigated ; 
 and thirdly, liability to exonerate the defendant, or 
 to contribute with him to the plaintiff's claim. In 
 cases where the persons thus interested are too in- 
 definite or numerous to be individually joined, one 
 or more members of a class may sue or be sued on 
 behalf of the whole, provided the interest of every 
 absent member in the claim made or resisted is iden- 
 tical with that of the members who are personally 
 before the Court. 
 
 After the bill has been filed, it is next requisite 
 that the subpoena should be served, that the defen- 
 dant should enter his appearance, and that after ap- 
 pearing he should put in his defence. If he be con- 
 tumacious and refuse to do so, his disobedience may 
 be punished as a contempt ; and the plaintiff is 
 enabled, on compliance with certain rules, to enter 
 an appearance for him, and, on continuance of his 
 default, either to take the bill pro confesso, or to put 
 in a formal defence in his name, and proceed to sup- 
 port the bill by evidence. 
 
 Assuming that the defendant is not contumacious, 
 his defence may be made in four forms, those of dis- 
 
INTRODUCTION. Ixxxi 
 
 claimer, demurrer, plea, or answer. And any two 
 or more of these forms may be combined, provided 
 they be applied to different parts of the bill, and 
 their respective application be distinctly pointed 
 out. 
 
 A disclaimer denies that the defendant has any 
 interest in the matter, and asks that he may be dis- 
 missed from the suit. 
 
 A demurrer submits that on the plaintiff's own 
 showiiig his claim is bad. The decision on a de- 
 murrer is obtained by setting it down for argument. 
 If the demurrer is allowed on argument the suit is 
 *at an end, unless it be confined to a part of p^, .-, 
 the bill, or the Court give permission for the 
 plaintiff to amend. If it is overruled, the defendant 
 must make a fresh defence by answer, unless he ob- 
 tain permission to avail himself of a plea. 
 
 A plea avers some one matter of avoidance, or 
 denies some one allegation in the bill, and rests the 
 defence on that issue. The former class of* pleas 
 are termed affirmative, the latter negative, pleas. 
 There is also a third description of plea, which may- 
 be termed the anomalous plea, and which is appli- 
 cable when the plaintiff has anticipated a legitimate 
 plea, -and has charged an equity in avoidance of it ; 
 e. g., when having stated a release of his original 
 equity, he charges that such release was obtained 
 by fraud. In this case, the release or other original 
 defence may be pleaded with averments, denying 
 the fraud or other equity charged in avoidance ; and 
 the term anomalous is used, because it does not 
 tender an independent issue, but sets up anew the 
 
Ixxxii Adams's docteine of equity. 
 
 impeached defence with averments in denial of the 
 impeaching equity. 
 
 The adoption of the negative and anomalous plea 
 has introduced a peculiar form of pleading, called a 
 plea supported by an answer. It often happens, 
 where a negative plea is used, that the bill contains 
 allegations in evidence of the disputed statement. 
 In this case, the plea of its untruth will not protect 
 from discovery of matters which would prove it true ; 
 and, therefore, these allegations must be excepted 
 from the plea, and must be met by an answer in sup- 
 port. In all instances of the anomalous plea, the 
 same necessity occurs, for such a plea, though good 
 as to the original equity, is clearly ineffectual as to 
 the equity in avoidance ; and that equity, therefore, 
 must not only be denied by averments in the plea, 
 so as to render the defence complete, but must in 
 respect of the plaintiff's right of discovery, be the 
 subject of a full answer in support. 
 
 The rules of pleading applicable to a plea are that 
 it must raise a single issue, and that its averments 
 must have the same certainty as in a plea at law. 
 It is also generally requisite to the validity of a plea 
 that it be verified by the defendant's oath. 
 
 The decision on a plea, is obtained in two ways : 
 first, by setting it down for argument in order to try 
 its validity ; and, secondly, by filing a replication 
 and bringing the cause to a hearing on the issue ten- 
 dered, in order to determine its truth. If the plea 
 is overruled on argument, the defendant must answer; 
 [*lxii] ^^ allowed, its validity is *established, but the 
 plaintiff may still file a replication, and go to 
 a hearing on the question of its truth. If on the 
 
INTRODTTCTIOK. Ixxxiii 
 
 hearing it is sustained by the evidence, there will be 
 a decree for the defendant ; if disproved, he can set 
 up no further defence, but a decree will be made 
 against him. 
 
 The defence by answer is the most usual, and 
 generally, the most advisable course. It puts on the 
 record the whole case of the defendant, and enables 
 him to use all or any of his grounds of defence, sub- 
 ject only to the necessity of verifying them on oath ; 
 and it unites with this statement of the defence a 
 discovery on oath as to the matters alleged in the 
 bill. Its averments, so far as it is a narrative of the 
 defendant's case, are governed by the same rules as 
 those of a bill ; viz., they must state a consistent case, 
 and must state it with reasonable certainty, and 
 without scandal or impertinence. In so far as it 
 consists of discovery, it is regulated by the principles 
 which have been already noticed under that head of 
 jurisdiction. 
 
 After the answer is put in the next question which 
 arises regards its sufficiency ; viz., whether the de- 
 fendant has given all due discovery. If he has not 
 done so the plaintiff may except, stating the points 
 on which the answer is defective, and praying that 
 a sufficient one may be enforced. If the defendant 
 does not submit to the exceptions, they are referred 
 to one of the Masters for consideration, and if he 
 reports in their favour, a further answer must be 
 filed. If either party is dissatisfied with the Master's 
 decision, he may bring the question before the 
 Court by exceptions to the report ; and it will then 
 be finally decided. 
 
 The next step is the amendment of the bill. The 
 
Ixxxiv Adams's doctrine of equity. 
 
 object of t^e amendment may be either to vary or 
 add to the case originally made, or to meet the 
 defence b new matter. If the amendment make 
 fresh discovery requisite, the plaintiff may call for a 
 further answer, or if the defendant considers it 
 material to make a further answer, he may do so 
 though not required by the bill. The right of 
 amending is not absolutely confined to the plaintiff. 
 The defendant may, under special circumstances, 
 obtain a similar indulgence by getting leave to file a 
 supplemental answer ; but as an answer is put in on 
 oath, the Court, for obvious reasons, will not readily 
 suffer alterations to 1 e made. 
 
 The final result of the pleadings is, that the ori- 
 r^i •••-, ginal or ultimately *amended bill and the 
 answer or successive answers of the defen- 
 dant constitute the whole record. The plaintiff may 
 then either set down the cause for hearing on bill 
 and answer, admitting the answer to be true through- 
 out, or if he controverts any part of the answer, or 
 requires additional proof of his case, may file a short 
 general form, called a replication, stating that he 
 joins issue with the defendant. 
 
 The answer of the defendant is the chief founda- 
 tion of interlocutory orders, that is, of orders not 
 made at the hearing of the cause, but obtained 
 during its progress for incidental objects ; and such 
 orders, therefore, will naturally fall under our notice 
 at this stage of our inquiry. 
 
 The mode of obtaining interlocutory orders is 
 either by a viva voce application, called a motion ; 
 or by a written one, called a petition. The state- 
 ments made in the answer have generally a consi- 
 
INTEODUCTION. IxXXV 
 
 derable influence on the application, and in some in- 
 stances they are the only admissible evidence. 
 Where other evidence is admitted it is brought 
 forward, not by the regular examination of wit- 
 nesses, but by the affidavits of voluntary depo- 
 nents. 
 
 Applications of this k'nd are made for a variety 
 of objects; but those of most ordinary occurrence, 
 and which alone seem material to be noticed, are 
 six in number ; viz., First, production of documents, 
 when documents are admitted to be in the defen- 
 dant's possession, and to be capable of affording dis- 
 covery to which the plaintiff is entitled. Secondly, 
 payment into Court, when the defendant admits 
 money to be in his hands, which he does not claim 
 as his own, and in which he admits that the appli- 
 cant is interested. Thirdly, for a receiver, where no 
 competent person is entitled to hold the property, 
 or the person so entitled is in the position of a de- 
 faulting trustee ; or even where an adverse title is 
 claimed, if gross fraud or imminent danger be shown. 
 Fourthly, an injunction to restrain a defendant, so 
 long as the litigation continues, from doing acts pro- 
 ductive of permanent injury, or from proceeding in 
 an action at law, where an equity is alleged against 
 his legal right. Fifthly, a writ of ne exeat, in the 
 nature of equitable bail, to restrain a defendant 
 from quitting the kingdom ; and Sixthly, a prelimi- 
 nary reference to the Master, where accounts or in- 
 quiries are requisite before the cause can be decided, 
 which cannot be conveniently taken or made by the 
 Court. 
 
Ixxxvi Adams's doctrine of equity. 
 
 P^, . -| *The next regular step after replication is 
 that the parties should prove their cases by 
 evidence. 
 
 The general rules of evidence are the same in 
 equity as at law, but the manner of taking it is dif- 
 ferent. The difference in this respect arises, from 
 the difference of the object in view. The object at 
 law is to enable the jury to give their verdict. And 
 for this purpose it is essential that the evidence be 
 taken viva voce and publicly, so that conflicting 
 testimony may be compared and sifted. In equity 
 the object is to elicit a sworn detail of facts on which 
 the Court may adjudge the equities, and to preserve 
 it in an accurate record, for the use, if needed, of the 
 appellate Court. 
 
 For this reason the evidence in equity is taken in 
 writing, by examination on interrogatories previously 
 prepared. And in order to avoid the risk of defects 
 being discovered in the course of taking it, and false 
 evidence procured to remedy them, it is taken secretly 
 by an officer of the Court, and no portion is disclosed 
 until the depositions are complete, and the time 
 arrives for publication of the whole. 
 
 After the depositions have been published and 
 read, no further evidence is admissible without 
 special leave, except evidence to discredit a witness, 
 either by impeaching his general credibility or by 
 showing him to have sworn falsely in a part of his 
 evidence, not material to the issue in the cause. 
 With respect to the material parts of his evidence, 
 such discretionary evidence is not admissible, lest 
 under the pretence of impeaching his credibility new 
 evidence should be introduced. 
 
INTRODUCTION. Ixxxvii 
 
 The only exceptions to the system of taking "Evi- 
 dence on written interrogatories and before publican 
 tion are, in the case of documents in the custody of 
 a public officer, and of documents, the authenticity 
 of which is not impeached, and which require only 
 the proof of handwriting or the evidence of an at- 
 testing witness. This evidence may be given by 
 affidavit at the hearing. 
 
 At the hearing of the cause the pleadings and 
 evidence are stated, and the Court either makes a 
 final decree, or, if any questions are involved which 
 the evidence does not satisfactorily determine, it eli- 
 minates them from the general statement, and 
 provides for their determination by a preliminary 
 decree. 
 
 The causes which create a necessity for a preli- 
 minary decree are four in number, viz., 1. That in 
 the course of the suit a dispute has arisen on a 
 matter of law, which the Court is unwilling to de- 
 cide ; *2. That a similar dispute has arisen p^j., -■ 
 on a matter of fact; 3. That the equity 
 claimed is founded on an alleged legal right, the de- 
 cision of which the Court of Chancery declines to 
 assume; and 4. That there are matters to be inves- 
 tigated which, although within the province of the 
 Court, are such as the presiding Judge cannot at the 
 hearing effectually deal with. The machinery for 
 obviating these impediments is that of a preliminary 
 decree, directing, 1. A case for a Court of law ; 2. 
 An issue for a jury ; 3. An action at law, to be de- 
 termined in the ordinary course ; or 4. A reference 
 to one of the Masters of the Court to acquire and 
 impart to it the necessary information. 
 
Ixxxviii Adams's doctrine of equity. 
 
 Directions for a case, an issue, or an action, are 
 rather transfers to another tribunal than steps of 
 procedure in the Court itself; but a reference to the 
 . Master is an ordinary step in the cause, and is di- 
 rected principally to three objects, viz., 1. To the 
 protection of absent parties against the possible ne- 
 glect or malfeasance of the litigants ; 2. To the more 
 effectual working out of details, which the Judge 
 sitting in Court is unable to investigate ; and 3. To 
 the supplying defects or failures in evidence. 
 
 The mode of conducting a reference is by written 
 statements and counter-statements, which are sup- 
 ported either by aflSdavits, by depositions, or by viva 
 voce testimony. When the evidence is complete, the 
 Master prepares a draft report, and it is the duty of 
 any dissatisfied party to lay before him written 
 objections, specifying the points in which he con- 
 siders it erroneous. If this is not done he cannot 
 afterwards contest the correctness of the report. 
 
 When the Master has disposed of all objections? 
 and come to a conclusion on the matters referred, 
 he settles and signs his report, and such report is 
 then filed. 
 
 If any of the persons interested, whether actual 
 or quasi parties, are dissatisfied with the report, 
 they may file written exceptions, founded on the 
 objections previously taken, and specifying the al- 
 leged errors and the corrections proposed. The 
 exceptions are then heard and determined by the 
 Court. 
 
 When the exceptions have been disposed of, and 
 the report confirmed, the cause is heard on further 
 directions, and the costs are generally disposed of, 
 
INTRODtrCTION. Ixxxix 
 
 at the same time. If the nature of the case made 
 on the report involves the necessity of new inquiries 
 a reference is again made, and further directions are 
 again reserved, *and the same process is from p^., .-■ 
 time to time repeated until a final decree is 
 made. 
 
 The power to compel obedience to the decree, 
 like that for enforcing appearance or answer, was 
 originally confined to process of contempt ; and the 
 party against whom the decree was made was ex- 
 posed to have his person imprisoned and his goods 
 sequestered as a punishment for disobedience ; but 
 if he still continued contumacious he could not be 
 forced to perform the decree. By the statutes of 1 
 Wm. 4, c. 36, and 1 & 2 Vict. c. 110, this inconve- 
 nience has been to some extent remedied, and the 
 Court is enabled to direct an execution of instru- 
 ments by another person in the name of the contu- 
 macious party, to take possession of documents in 
 his hands which he refuses to deliver up, and to 
 levy moneys out of his property by writ of execution. 
 Where none of these remedies can be adopted, as 
 where the act ordered requires the personal agency 
 of the defendant, the Court is remitted to the pro- 
 cess of contempt, and can only enforce its decree by 
 imprisonment and sequestration. 
 
 The next subject for consideration after the decree 
 is the jurisdiction for alteration or reversal, and it 
 should be observed that the jurisdiction for this pur- 
 pose is not confined, as to law, to the final judgment, 
 but extends to interlocutory proceedings in the 
 cause. 
 
 A decree, when made, is not perfected until enrol- 
 
XC ADAMS'S DOCTRINE OF EQUITY. 
 
 ment ; and therefore, so long as it continues unen- 
 rolled, it may be altered on a rehearing before the 
 same jurisdiction, viz., either before the Judge who 
 originally made it, or before the Lord Chancellor as 
 the head of the Court. 
 
 After enrolment it is a conclusive decree, and can 
 only be altered on appeal. 
 
 For the purpose of such appeal there is a twofold 
 jurisdiction : first, in the king, whose conscience is 
 ill administered, and who may issue a special com- 
 mission pro re natd to reconsider his Chancellor's 
 decree; and, secondly, in the House of Lords, on 
 petition to them as the supreme judicature of the 
 realm. The former of these courses, however, is 
 now disused, and the latter, which at one time was 
 the subject of vehement contention, has practically 
 superseded it. 
 
 In the observations which have been hitherto 
 made on procedure in equity, three things have been 
 assumed, viz., first, that a decree on the plaintiff's 
 bill will determine the litigation ; secondly, that the 
 bill is properly framed in the outset for obtaining 
 Plxviil ^^^^ decree ; *and thirdly, that the suit is 
 conducted to its termination without inter- 
 ruption or defeat. It is obvious that these assump- 
 tions cannot always be correct, and it is therefore 
 requisite, before quitting the subject, to consider 
 the means for remedying the imperfections which 
 occur. 
 
 The first class of imperfection is where a decree 
 on the plaintiff's bill will not determine the litiga- 
 tion. This may arise either from cross-relief or dis- 
 covery being required by the defendants, or from the 
 
INTRODUCTION. XCl 
 
 existence of litigation between co-defendants. In 
 either case the imperfection is remedied by one or 
 more cross bills, filed by one or more of the defen- 
 dants against the plaintiflf and against such of their 
 co-defendants as the cross-relief may affect. If this 
 has not been done, and the difficulty appears at the 
 hearing, the cause may be directed to stand over for 
 the purpose. A cross bill may also be filed to 
 answer the purpose of a plea puis darrein cantin'Uance 
 where a new defence arises after answer, but not for 
 the purpose of indirectly altering the answer itself. 
 
 The second class of imperfection is where the bill 
 is framed improperly at the onset. This ought re- 
 gularly to be rectified by amendment, but if the 
 time for amendment has elapsed, it may be rectified 
 by a supplemental bill, or by a bill in the nature of 
 supplement, the character of which will be considered 
 under the next head. 
 
 Imperfections of the third class are those "vvhich 
 originate in an interruption or defect subsequent to 
 the institution of the suit, and they are rectified, 
 according to circumstances, by bill of revivor, or in 
 the nature of revivor, and by bill of supplement, or 
 in the nature of supplement. 
 
 Interruptions of a suit are called abatements, and 
 are cured by a bill of revivor, or in nature of revivor. 
 They occur on the death of any litigating party, 
 whose interest or liability does not either determine 
 on death or survive to some other litigant, and on 
 the marriage of a female plaintiff or co-plaintiff. If 
 the interest or liability be transmitted by act of lawj 
 viz., to a personal representative or heir, or to the 
 husband of a married plaintiff, the abatement is 
 
XCU ADAMS S DOCTRINE OF EQUITY. 
 
 cured by a bill of revivor, followed by an order on 
 motion to revive. If the transmission is by act of 
 the party, viz., to a devisee, the bill is one in nature 
 of revivor, and requires a decree at the hearing to 
 revive. 
 
 Defects in a suit subsequent to its institution may 
 J. ... be caused either *in respect of parties, by 
 ^ J the transfer of a former interest, or the 
 
 rise of a new one, or in respect of issues between the 
 existing parties, by the occurrence of additional facts, 
 and they are cured by bill of supplement, or in the 
 nature of supplement. 
 
 Where an existing interest has been transferred, 
 the transferree is bound by the previous proceedings, 
 and may be introduced into the suit by a supplemen- 
 tal bill, stating the transfer, and praying his sub- 
 stitution for the transferror. Where a new interest 
 has arisen, as on the birth of a tenant in tail, he must 
 be added by a bill in the nature of a supplement, 
 restating the case against him, and praying an inde- 
 pendent decree. 
 
 With respect to the occurrence of additional facts, 
 it must be observed, that if they are intended to 
 establish a new title in the plaintiff, they are not 
 admissible at all, for he must stand or fall by the 
 title which he had at the outset. If they are mere 
 evidence of his original title, it seems that their in- 
 troduction on the pleadings is not required, but that 
 the proper course is to apply for liberty to examine 
 witnesses, and to have the depositions read at the 
 hearing. But if the new facts are such as, leaving 
 the original equity untouched, vary the form of 
 relief, or create a necessity for additional relief, they 
 
INTRODtrCTIOK. XClil 
 
 are regularly admissible in the suit. And being 
 subsequent to the filing of the bill, and therefore not 
 properly matters of amendment, they are introduced 
 by supplemental bill. 
 
 If new matter occurs, or is discovered after the 
 hearing, it is not properly matter of supplement, 
 but may be introduced into the cause, if necessary, 
 by a bill expressly framed for the purpose, and called 
 a bill to execute or to impeach the decree. 
 
 A bill to execute a decree is a bill assuming as its 
 basis the principle of the decree, and seeking merely 
 to carry it into effect. 
 
 A bill to impeach a decree is either a bill of re- 
 view, a supplemental bill in the nature of review, an 
 original bill of the same nature, or an original bill 
 on the ground of fraud. 
 
 A bill of review is used to procure the reversal of 
 an enrolled decree, and may be brought either on 
 error of law apparent on the decree, or on the oc- 
 currence or discovery of new matter. If it proceed 
 on the latter ground, the leave of the Court must be 
 first obtained. 
 
 A supplemental bill in the nature of review is 
 used to procure the reversal of a decree before enrol- 
 ment, on the occurrence or *discovery of p^, . -, 
 new matter, and must be filed by leave of 
 the Court. The manner of procedure on such a bill 
 is to petition for a rehearing of the cause, and to 
 have it heard at the same time on the new matter. 
 If the ground of complaint be error apparent, it 
 may be corrected on a rehearing alone, and a sup- 
 plemental bill is unnecessary. 
 
 An original bill in the nature ofreview is applica- 
 
xciv Adams's doctrine of equity. 
 
 ble when the interest of the party seeking a reversal 
 was not before the Court when the decree was made, 
 and it may be filed without obtaining leave from the 
 Court. 
 
 We have now concluded our introductory inquiry 
 into the jurisdiction, the pleadings, and the proce- 
 dure of the Court of Chancery. The treatise itself 
 will be occupied in filling up the outline which has 
 been drawn, and in presenting a detailed examina- 
 tion of the doctrines which have been already slated 
 in their general effect. 
 
THE DOCTRINE OF EQUITY, 
 
 BOOK L 
 
 OF THE JUKISDICTION OF THE COURTS OF EQUITY AS RE- 
 GARDS THEIR POWER OF ENFORCING DISCOVERY. 
 
 CHAPTER I. 
 
 OF DISCOVERT. 
 
 The jurisdiction of the Courts of Equity for the 
 enforcement of civil rights, as distinguished from the 
 jurisdiction of the Courts of common law, derives 
 much of its utility from the power of the Great Seal 
 to compel the defendant in a suit to discover and set 
 forth upon oath every fact and circumstance within 
 his knowledge, information, or belief, material to the 
 plaintiff's case. 
 
 This right to enforce Discovery, as it is called, does 
 not exist in the Courts of common law. In those 
 Courts the plaintiff must make out his case by the 
 evidence of witnesses, or the admissions of the de- 
 fendant. By this right, more effectual means of ascer- 
 taining the truth are afforded to plaintiffs in equity 
 
96 Adams's doctrine of equity. 
 
 P^,(,-| than in the Courts of *common law ; whilst the 
 rights of the defendant are equally provided 
 for, by the privilege, in his turn, of requiring from 
 the plaintiff, by a cross suit (the reconvention of 
 the civil law), the like discovery upon oath of all 
 the circumstances within the plaintiff's knowledge. 
 
 The jurisdiction thus enforced in the Courts of 
 Equity is, at the same time, carefully guarded, so 
 that it may only elicit the truth, without wrong to 
 the party examined. He is not liable to be examined 
 suddenly and without time for deliberation; he 
 knows from the bill what are the objects aimed at; 
 he has the plaintiff's statement and the whole of the 
 interrogatories before him ; he may give a modified 
 or explanatory answer ; and he is aided by the ad- 
 vice of counsel, whose duty it is to see that every- 
 thing really material is stated, as well as that the 
 record of the Court is not incumbered with irrelevant 
 matter. 
 
 The Court of Chancery, as has already been ob- 
 served in the Introduction, does not, in requiring 
 discovery, depart from the general policy of the law. 
 It requires a defendant to discover the truth of the 
 plaintiff's claim, notwithstanding that he is himself 
 the party sued; but it does not require him to 
 answer questions which, on grounds of general policy, 
 he is entitled to resist. In accordance with this 
 principle it is held, first, that no man need discover 
 matters tending to criminate himself, jor to expose 
 him to a penalty or forfeiture ; secondly, that no 
 man need discover legal advice which has been given 
 him by his professional advisers, or statements of 
 facts which have passed between himself and them 
 
OF DISCOVERT. 97 
 
 in reference to the dispute in litigation ; and thirdly, 
 that official persons cannot be called on to disclose 
 any matter of state, the publication of which may be 
 prejudicial to the community. 
 
 The first of these maxims is, that "no man need 
 discover matters tending to criminate himself or to 
 expose him to a penalty or forfeiture." He has a 
 right to refuse an answer, not merely as to the broad 
 and leading fact, but as to every incidental fact 
 which may form a link in *the chain of evi- n^„-. 
 dence, if any person should choose to indict 
 him.(a)^ 
 
 If the objectionable nature of the discovery asked 
 appears on the bill, the protection may be claimed 
 by demurrer; as, for example, if the bill alleges 
 an usurious contract, maintenance, champerty, or 
 simony ; or again, if it be filed to discover whether 
 a defendant is married, who would thereby forfeit an 
 estate or legacy, or to discover matter, which would 
 subject a defendant entitled to an office or franchise, 
 to a quo warranto, [b) 
 
 (a) East India Company v. Campbell, 1 Ves. sen. 246; Claridge 
 V. Hoars, 14 Ves. 59, 65; Lichfield v. Bond, 6 Bea. 88. 
 (6) Mitford on Pleading, 4th edit., 193-197. 
 
 * It is well settled in the United States, that a defendant in a 
 Bill of Chancery is not bound to make a discovery as to any charge 
 of felony against him, or as to any criminal offence involving 
 moral turpitude. United States v. Saline Bank, 1 Pet. 100 ; 
 Northrop v. Hatch, 6 Conn. 361 ; Skinner v. Judson, 8 Conn. 
 528 ; Hayes v. Caldwell, 5 Gillman's Kep. 38 ; Ocean Insurance 
 Company v. Fields, 2 Story's Kep. 59 ; The Union Bank v. Bar- 
 ker, 8 Barb. Ch. Kep. 358. And it seems an action for slander 
 is in the nature of a penal action, and comes within the general 
 rule. Bailey v. Green, 5 Barb. S. C. Kep. 297. 
 
 7 
 
98 Adams's docteike op equity. 
 
 If the tendency of the question is not apparent on 
 the bill, the defendant may take the objection, by a 
 plea, setting forth by what means he may be liable; 
 to punishment or forfeiture, and may insist he is not 
 bound to answer the bill, or so much thereof as the 
 plea will cover. Thus to a bill brought to a dis- 
 covery of a marriage, the defendant pleaded with* 
 success that the person whom she was alleged to 
 have married had previously married her sister, so 
 that the marriage, if real, was incestuous; and to a 
 bill against bankers for obtaining a re-transfer of 
 stock, alleged to have been unduly obtained from 
 the plaintiff for the purpose of making good a de- 
 ficiency in his son's accounts, the defendants pleaded' 
 that the transaction referred to a fraudulent embez- 
 zlement by the son as their clerk, and amounted 
 therefore to a composition of felony ; and they were: 
 held to be exempt from giving discovery. In like 
 manner, where a bill was filed to discover whether, 
 the defendant had assigned a lease, he pleaded to the 
 discovery a proviso in the lease, making it void in 
 case of assignment. And to a bill seeking a dis- 
 covery whether a person under whom the defendant, 
 claimed was a papist, the defendant pleaded his title 
 and the statute of 11 & 12 Wm. 3, disabling papists. 
 But such a plea will only bar the discovery of the 
 fact which would occasion a forfeiture. Therefore, 
 p^ .-, where a *tenant for life pleaded to a bill for 
 discovery whether he was tenant for life or not, 
 that he had made a lease for the life of another, 
 which, if he was tenant for his own life only, might 
 occasion a forfeiture, the plea was overruled. So 
 upon a bill charging the defendant to be tenant for 
 
OF DISCOVERT. 99 
 
 life, and that lie had committed waste, it was deter- 
 mined that he might plead to the discovery of the 
 waste, but that he must answer whether he was 
 tenant for life or not.(c) 
 
 If the facts are such as to exclude both a de- 
 murrer and a plea, the privilege may be claimed by 
 answer, and if the defendant states in his answer 
 that he cannot give the information asked without 
 affording evidence of his crime, he will not be com- 
 pellable to give it.{d) 
 
 The protection thus afforded to a defendant 
 against being compelled to prove himself guilty of a 
 criminal act, is subject to modification in respect to 
 frauds/ And it seems that an objection will not 
 hold to discovery of a fraud, on the mere ground 
 that it might be indictable as a conspiracy at law, 
 unless there is an indictment actually pending, or at 
 all events a reasonable probability that one will be 
 preferred. The result of an opposite course would 
 be to render the very magnitude of a fraud its pro- 
 tection against redress, (e) It has also been decided 
 that a defendant may have so contracted with the 
 plaintiff as to bind himself to make discovery of the 
 facts relating to that contract, notwithstanding that 
 it may subject him to pecuniary penalties; and 
 
 (c) Mi6f. 284-287 ; Claridge v. Hoare, 14 Ves. 59. 
 
 (i) Parkhurst v. Lowten, 1 Meriv. 391 ; S. C. 2 Swanst. 194, 
 214 ; Att. Gen. v. Lucas, 2 Hare, 566. 
 
 (e) Dummer v. Corporation of Chippenham, 14 Ves. 245 ; Lee 
 V. Bead, 5 Bea. 381. 
 
 * A Court of Chancery will generally compel a discovery to de- 
 tect fraud and imposition, and to set aside a fraudulent conveyance. 
 Skinner v. Judson, 8 Conn. 528 ; 8 Barb. Ch. Rep. 358. 
 
100 Adams's doctrine op equity. 
 
 therefore a London broker was compelled to give 
 discovery in aid of an action brought against him by 
 his employer for misconduct, although it subjected 
 him to the penalty of a bond given for the faithful 
 discharge of his official duties. It was his duty to 
 give the account asked, and he was not allowed to 
 |-^r-| set up his own violation *of the law as an ex- 
 cuse for its non-performance. It was observed 
 by the Court that if such a defence were permitted, 
 it might be difficult to show any reason why an 
 executor or administrator who has made oath duly 
 to administer the assets, and has executed a bond 
 for that purpose, might not allege those matters in 
 answer to a bill, charging him with a fraudulent 
 account. It seems, however, that a mere contract 
 by the defendant to answer, and not to avail himself 
 of the protective privilege, does not iger se exclude 
 him from the protection of the law. (/) 
 
 In addition to the cases just mentioned, there are 
 other cases which have been termed exceptions to 
 the doctrine, but which are in fact instances to 
 which its principle does not apply. Such, for in- 
 stance, are those where the penalty has ceased by 
 effluxion of time, or where the plaintiff is alone en- 
 titled to the penalty, and expressly waives it by his 
 bill ; {g) or where what is called a penalty or forfeiture 
 is in reality mere stipulated damages or cessation of 
 interest.' Thus where a lessee covenanted not to 
 
 (/) Mitf. 1955 Green v. Weaver, 1 Sim. 404; Lee v. Bead, 
 
 5 Bea. 381. 
 
 (g) Mitf. 195-197 ; Trinity House Corporation v. Burge, 2 Sim. 
 411. 
 
 ' Skinner v. Judson, 8 Conn. 528 ; But see Northrop v. Hatch, 
 
 6 Conn. 361 ; Dwinal v. Smith, 12 Maine Eep. 379. 
 
OF DISCOVERT. i^l 
 
 dig clay or gravel, except for the purpose of building 
 on the land demised, with a proviso that if he should 
 dig for any other purpose, he should pay to the les- 
 sor twenty shillings a load, and he afterwards dug 
 great quantities of each article ; on a bill for dis- 
 covery of the quantities, waiving any advantage of 
 a possible forfeiture of the term, a demurrer of the 
 lessee, because the discovery might subject him to 
 pajmient by way of penalty, was overruled. And 
 where a devise over of an estate in case of marriage 
 was considered a conditional limitation, and not a 
 forfeiture, an answer as to a second marriage was 
 compelled. In like manner where the discovery 
 sought is of matter which would show the defendant 
 incapable of having an interest, as, for example, 
 whether a claimant by devise is an alien, and con- 
 sequently incapable of taking by purchase, a de- 
 murrer will not hold, (h) In *respect also to r-^p-, 
 some transactions made illegal by statute, such 
 as gaming and stockjobbing, it has been expressly 
 enacted, that the parties shall be compellable to give 
 discovery in equity, notwithstanding that by so 
 doing- they may expose themselves to penalties. (*) 
 
 The second maxim of privilege is, that no man 
 need discover legal advice which has been given him 
 by his professional advisers ; or statements of fact 
 which have passed between himself and them in 
 reference to the dispute in litigation.' 
 
 (K) Mitf. 195, 196, 197. 
 
 (t) Mitf. 288 J 9 Ann. c. 14., s. 3 ; 7 Geo. 2, c. 8, s. 2. 
 
 * Parker v. Carter, 4 Munf. 273 ; Jackson v. Inabinit, Riley 
 Ch. 9 ; March v. Ludlum, 3 Sand. Ch. Rep. 35 ; Crosby v. Ber- 
 ger, 11 Paige 377 ; Stuyvesant v. Peckham, 3 Ed. Ch. Rep. 579 ; 
 
102 Adams's docteine of equity. 
 
 The statement of the above doctrine is thus limited 
 in its terms, because it seems doubtful whether state- 
 ments of fact which have passed between himself 
 and his advisers, if made before the litigated question 
 arose, are entitled to the same privilege. There is 
 no doubt that the privilege exists, where the dis- 
 covery is sought from the professional adviser; for 
 the rule is in all cases imperative and express, that 
 wherever an attorney or counsel is professionally 
 employed, any communication with his cUent for 
 the purpose of that employment is privileged; and 
 whether he be examined as a witness, or whether he 
 be made on some special ground a defendant in the 
 suit, he cannot divulge what he has so learnt. (A) 
 There is also no doubt that where discovery is sought 
 from the client, he is not bound to discover the ad- 
 vice or opinions which have been given. But it has 
 been contended, and generally considered, that he 
 must disclose the statements on which they were 
 given, unless made in contemplation of or pending a 
 
 (7e) Greenbongh v. Gaskell, 1 M. & K. 98 ; Herring v. Cloberry, 
 1 Ph. 91 J Jones v. Pugh, 1 Ph. 96. 
 
 The Bank of Utica v. Messereau, 3 Barb. Ch. Eep. 528. And the 
 same rule applies to interpreters between client and attorney. 
 Parker v. Carter, 4 Munf. 273. But the rule does not apply to a 
 student in an attorney's office. Andrews v. Solomon, Pet. C. C. 
 356. 
 
 Letters written by a client to an attorney in relation to profes- 
 sional business transacted by him for the client, are privileged 
 communications. Wilso v. Troup, 7 John. C. K. 25. And an at- 
 torney employed to draw a deed is bound to secrecy in respect to 
 matters disclosed to him by those who employ him. Parker v. 
 Carter, 4 Munf. 273. But it has been held that an attorney em- 
 ployed to draw a deed, may in certain cases be compelled to testify. 
 The Bank of Utica v. Messereau, 3 Barb. Ch. Rep. 528. 
 
OF DISCOVERT. 103 
 
 suit. The existence, however, of this supposed lia- 
 bility in the client seems open to doubt. The cases 
 which have been considered to establish it are appa- 
 rently capable of a different interpretation ; and it 
 seems diflScult to discover any substantial diflference, 
 in point of reason, principle, or convenience, between 
 the liability of the client, and that of his *coun- r-^,j-, 
 sel or solicitor, to disclose communications 
 made in confidence, or between the communications 
 so made and others which differ from them only in 
 this, that they precede instead of following the ac- 
 tual arising of a dispute. (Z) If, before the communi- 
 cations were made, litigation, or a dispute ending in 
 litigation, had commenced, the client is certainly 
 exempt from discovery, at least if they relate to the 
 dispute, or matters in dispute. The first point de- 
 cided on this subject was, that communications made 
 pending litigation, and with reference to such litiga- 
 tion, were privileged. The next, that communica- 
 tions made before litigation, but in contemplation of, 
 and with reference to, litigation which was expected 
 and afterwards arose, were entitled to the same 
 privilege. A third question then arose with regard 
 to communications taking place after a dispute had 
 arisen between the parties, which was afterwards 
 followed by litigation, but not made in contemplation 
 of, or with reference to, that litigation ; and these 
 communications were also protected. And it was 
 finally decided that a defendant might protect from 
 discovery in the suit of one party, cases or state- 
 ments made after litigation commenced or contem- 
 
 (?) Pearse v. Pearse, 1 D. a. S. 12. 
 
104 Adams's doctrine of equity. 
 
 plated on the same subject with other persons, with 
 the view of asserting the same right, (m) The right 
 to protection is not affected by the circumstance that 
 the communications have not been made directly to 
 or by the solicitor or counsel, but have been trans- 
 mitted through an intermediate agent. (?^) But it is 
 essential that they should be made in respect of his 
 professional character, and it is not sufficient to 
 allege that they were communications with a solici- 
 tor, or that they bore a reference to legal proceed- 
 ings, (o) 
 
 The third maxim of privilege protects official per- 
 r*Q-i sons *from disclosing matters of state, the pub- 
 lication of which might be prejudicial to the 
 community. Such, for example, are official com- 
 munications between the governor and law officer of 
 a colony respecting the state of the colony; orders 
 given by the governor to a military officer ; corre- 
 spondence between an agent of government and a 
 Secretary of State ; and other communications of the 
 same class. Such communications are privileged 
 from disclosure, because if, at the suit of a particular 
 individual, they were liable to production in a Court 
 of justice, the effect would be to render them less 
 unreserved, and thus to prejudice the public interest. 
 Questions as to the extent of this privilege most 
 usually arise in the examination of witnesses at law. 
 But if discovery of matters within its scope be asked 
 
 (m) Walsingham v. Goodricke, 3 Hare, 122 ; Holmes v. Badde- 
 ley, 1 Ph. 476. 
 
 («) Bunbury v. Bunburv, 2 Bea. 173 j Steele v. Stewart, 1 Ph. 
 471. 
 
 (o) Bunbury v. Bunbury, 2 Bea. 173 ; Greenlau v. King, 1 
 Bea. 137 ; Dartmouth v. Holdsworth, 10 Sim. 476. 
 
OF DISCOVERT. 105 
 
 from a defendant in equity, he may successfully 
 refuse to give it.(j5)^ 
 
 It will be observed that the exceptions just con- 
 sidered are merely exceptions to the right of dis- 
 covery. There is no rule that matters falling within 
 their scope cannot be alleged in a bill ; or, that, if 
 proved, they may not warrant relief. But the plain- 
 tiff must prove them for himself, and has no right to 
 examine the defendant respecting them, (q) 
 
 Subject to these exceptions, the rule respecting 
 discovery is that "every competent defendant in 
 equity must answer as to all facts, material to the 
 plaintiff's case, he must answer to all, and not to a 
 portion only, and he must answer distinctly, com- 
 pletely, and without needless prolixity, and to the 
 best of his information and belief" As against an 
 incompetent defendant discovery cannot be enforced ; 
 viz., against an infant, or lunatic without committee, 
 or the Attorney-General when made a defendant on 
 behalf of the Crown, (r) 
 
 The first rule respecting discovery is that the de- 
 fendant must answer to all facts material to the 
 plaintiff's case.^ 
 
 (p) Phillipps on Evidence, 8th edit. 189 ; Smith y. East India 
 Company, 1 Ph. 50. 
 (q) Mitf. 196. 
 (r) Micklethwaite v. Atkinson, 1 Coll. 173. 
 
 ' Although the principle cited in the text is familiar to the pro- 
 fession, yet the American Editor has been able to discover only 
 two cases bearing upon the subject, and these decided not ia 
 Chancery, but at law. Marbury v. Madison, 1 Cranch 144 ; 1 
 Burr's Tr. ; by Robinson 186, 187. 
 
 » Cuyler et al. v. Bogert et al., 3 Paige, Ch. E. 186 ; Phillips 
 V. Prevost, 4 John. C. E. 205 ; Parkinson v. Trousdale, 3 Scam- 
 
106 Adams's doctrine of equity. 
 
 pqi *He is not bound to answer questions of law ; 
 for such questions ought to be decided by the 
 Court. He is not bound to answer questions of fact, 
 unless reasonably material; for he is not to be 
 harassed with idle, and perhaps mischievous, in- 
 quiries. And it will not be sufficient to show, that, 
 somehow or other, they may be connected with the 
 case ; for if such connexion be very remote, so that 
 the discovery would be oppressive, it will be refused': 
 as for example, where the bill charged an executor 
 with mixing his testator's moneys with his own, and 
 called on him to set out a monthly account of his 
 banker's balances, with an account of his own pro- 
 perty, debts and liabilities, (s) And lastly, he is not 
 bound to answer merely because the question is mar 
 terial to the issue, but it must be also material to 
 the plaintiff's case; but although the plaintiff is en- 
 titled to know what the defence is, and to have it 
 verified on oath, he is not entitled to cross-examine 
 the defendant as to the precise mode in which he 
 intends to establish it. (t) 
 
 Some doubt has been thrown upon the applicar 
 bility of this last doctrine where the discovery i? 
 sought in aid of the defence to an action, or to a suit 
 
 (s) Dos Santos v. Frietas, Wigr. on Discovery, s. 239 ; Janson 
 V. Solarte, 2 Y. & C. 127. 
 
 («) Llewellyn v. Badeley, 1 Hare, 527. 
 
 mon's Eep. 367 ; Hagthorp v. Hook, 1 Gill & John. 272 ; Sal- 
 mon V. Clagett, 8 Bland. Ch. Eep. 142 ; Brooks t. Byam, 1 
 Story's Eep. 296-301 ; Langdon v. Goddard, 8 Story's Eep. 131; 
 Methodist Epis. Church v. Jacques, 1 John. Ch. Eep. 65 ; Bank 
 of Utica V. Messereau, 7 Paige 517 ; King v. Eay, 11 Paige 235; 
 Kitredge v. Claremont, 3 Story's Eep. 590; Champlin v. Champ-- 
 lin, 2 Edw. Ch. 362 ; Eohertson v. Bingley, 1 Mo. C. Ch. 833. 
 
OF DISCOVEET. 107 
 
 already pending in equity. The language of the 
 cases which have created the doubt may certainly 
 be taken to imply that, in answer to such a bill, the 
 defendant is bound to set forth his evidence. But it 
 may be doubted whether it was intended to go so far, 
 and whether it must not be limited to the general 
 rule, that he must answer as to the nature of his 
 title, and as to the truth of the assertions by which 
 he sustains it, though not as to the particular evi- 
 dence on which he relies. («) 
 
 This rule is embodied in the maxim that " if a de- 
 fendant *answers at all, he must answer r*-|n-i 
 fully ;" and its meaning is, that if a defen- 
 dant, instead of demurring or pleading to the bill, 
 puts in an answer, and thus professes to take issue 
 on the whole case, and to go to a hearing on the 
 whole, he cannot deny a portion of the plaintiff's 
 statement, and then allege that, in consequence of 
 such denial, the rest of the discovery sought has be- 
 come immaterial. If he wish to insist on that point, 
 he must protect himself by demurrer or plea, resting 
 his defence on the statement in the bill, or on a sin- 
 gle independent issue. If he does not adopt that 
 course, but goes to a hearing on the whole contro- 
 versy, he must give discovery on all points, so that 
 the plaintiff, if the decision be in his favour, may 
 obtain a complete decree, (v) It is manifest from this 
 explanation of the rule, that it applies to such mat- 
 ters only as are in themselves proper objects of dis- 
 
 (u) Lowndes v. Davies, 6 Sim. 468 ; Bellwood v. Wetherell, 1 
 Y. & C. 211-218; Wigr. on Discovery, s. 378; Glascott v. Cop- 
 perminers' Company, 11 Sim. 305 ; Mitf. 53. 
 
 (v) Lancaster v. Bvors, 1 Ph. 349. 
 
108 Adams's doctrine of equity. 
 
 covery. It will not therefore apply to interrogatories 
 respecting privileged matters, or respecting matters 
 which are immaterial, or which do not concern the 
 plaintiff's case, or which for any other reason are 
 not among the subjects on which the Court enforces 
 discovery, (w) 
 
 The last rule is that the defendant must answer 
 distinctly, completely, without needless prolixity, 
 and to the best of his information and behef/ 
 
 His answer must be distinct, as containing a posi- 
 tive allegation of each fact, and not merely implying 
 it by way of argument. And it must distinctly 
 meet each specific question by a specific reply ; for 
 the object of specific questions is to sift the defen- 
 dant ; and it might happen that, when he came to 
 answer on individual points, it would recall matters 
 to his memory. An inquiry, for example, whether 
 the defendant did not receive a specified sum at a 
 specified time, is not sufficiently answered by giving 
 a schedule of receipts, which does not include that 
 r*i 1 -\ *sum, and then saying that the schedule con- 
 tains a list of all moneys received, (x) 
 
 It must be complete, and so framed, that the 
 
 (w) Wood V. Hitchings, 3 Bea. 504. 
 
 (x) Faulder v. Stuart, 11 Ves. 2965 Mitf. 309, 310. Wharton 
 V. Wharton, 1 S. & S. 235 ; Anon. 2 Y. & C. 310 ; Topping 7. 
 Clarke, 2 Hare, 883, 389. 
 
 ' Taylor v. Luther, 2 Sumner, 223 ; Woods v. Morrell, 1 John. 
 C. R. 103 ; Smith v. Lasher, 5 John C. R. 247 ; Mechanics' Bank 
 V. Levy, 1 Edw. Ch. 316 ; Tradesmens' Bank v. Hyatt, 2 Edw. 
 Ch. 195; Wickoff, v. Sniffer, Id. 581; Norton v. Warner, 3 Edw. 
 Ch. 106 ; Robinson v. Woodgate, Id. 422 ; Sloan v. Little, 3 Paige 
 C. R. 103 ; Bailey v. Wilson, 1 Dev. & Bat. Ch. 187 ; Pettit v. 
 Candler, 3 Wend. 618. 
 
OF DISCOVERT. 109 
 
 plaintiff can effecH;ually make use of it. For instance, 
 if the plaintiff were to ask for an account, it would 
 not be sufficient to tender him a collection of account 
 books, saying that he would find the account there. 
 But the defendant must himself examine the hooks 
 and make out a reasonable account, referring to the 
 books for verification and details, {y) The rule, how- 
 ever, wUl not be enforced to an oppressive extent. 
 And therefore, where the executors of a deceased 
 partner were called upon for the accounts of a part- 
 nership, and answered that they could not state them 
 from their own knowledge ; that they had tried to 
 make them out from the books, but found it would 
 occupy a great time, and be a ruinous expense ; and 
 that the plaintiff was at liberty to inspect the books 
 himself: the answer was held sufficient, on the ground 
 that they had not been personally concerned in the 
 transaction, and that they had given the plaintiff an 
 opportunity of making out the account as fully as 
 they could do themselves. (2) 
 
 It must be framed without needless prolixity. 
 The chief cases in which the prolixity of an answer 
 has been discussed, were those where accounts were 
 demanded of receipt and expenditure. And it has 
 been repeatedly decided that, although an interro- 
 gatory requiring such accounts would not be satis- 
 fied by a mere general statement, yet a statement 
 setting forth the items of a tradesman's bill, or copy- 
 ing an auctioneer's catalogue, of furniture, is imper- 
 
 (y) White v. Williams, 8 Ves. 193 ; Attorney-General v. East 
 Ketford, 2 M. & K. 35 J Wigr. on Discovery, s. 283. 
 (z) Christian v. Taylor, 11 Sim. 401. 
 
110 Adams's doctrine of equity. 
 
 tinent, and will be expunged by tbe Court, (a) If,; 
 however, the matters inquired after be material to 
 P^-| 21 the *defence, mere prolixity, such as setting 
 out documents at length which might have 
 been simply referred to, will not be dealt with as 
 impertinence, although it may be attended with the 
 risk of costs. For in case the answer should ever 
 be used against the defendant in a Court of law, a 
 part of it could not be so used without the whole ; 
 and therefore the setting out of such documents may 
 ultimately prove of importance, (b) 
 
 It must be to the best of the defendant's informa- 
 tion and belief. And the information meant is not 
 only that which he actually possesses, but that also 
 which, either by inspecting his books, or by making, 
 inquiries of his solicitors or agents, or of others from 
 whom he has a right to information, is fairly withia 
 his reach. And a mere allegation that he beUeves 
 such parties will not give him the information^' 
 or even that they have refused to do so, will not be 
 sufficient to excuse its want. Whatever means of 
 information he has a right to possess, the Court will 
 look upon as being in his possession ; and he must 
 resort to proper means for enforcing his right, (c) 
 
 A question has sometimes been raised whether a 
 plaintiff having a document in his possession, can 
 by his bill call on the defendant to inspect it, and 
 
 (a) Norway v. Rowe, 1 Meriv. 347 ; Byle v. Masterman, Or. 
 & P. 265 ; Davis r. Cripps, 2 N. C. C. 435. 
 
 (6) Parker v. Fairlie, 1 S. & S. 295 ; T. & E. 362 j Lowe v. 
 Williams, 2 S. & S. 574. 
 
 (c) Taylor v. Rundell, Or. & P. 104 ; 1 N. C. C. 128 ; 1 Ph. 
 222 ; Glengall v. Fraser, 2 Hare, 99 ; Stuart v. Bute, 11 Sim. 
 441. 
 
OF DISCOVERT. Ill 
 
 ;hen to give an answer with respect to its contents. 
 There appears to be some doubt on this point, {d) 
 
 A defendant is also bound, if required by the 
 Dlaintiflf, to set forth a list of all documents in his 
 jossession from which discovery of the matters in 
 [uestion can be obtained ; and if the possession of 
 ;uch documents and their character as fit subjects of 
 liscovery can be shown from the answer, he must 
 )ermit the plaintiff to inspect and copy them.' 
 
 In order to obtain this production, an interrogatory 
 s *generally included in the bill, asking whe- p^-. o-i 
 iher the defendant has any documents in his 
 possession or power relating to any of the matters 
 lUeged, and requiring him to enumerate and describe 
 hem in the schedule. If he admits the possession 
 )f such documents, a motion is made that he may 
 )roduce them, that the plaintiff may have liberty 
 inspect and copy them, and that they may be 
 )roduced before the examiner and at the hearing of 
 he cause. 
 
 The right thus conferred of enforcing the produc- 
 ;ion of documents is a substitute, for the more 
 
 (d) Shepherd v. Morris, 1 Bea. 175, 179. 
 
 * Koosevelt v. Ellithrop, 10 Paige, 415 ; see also CoUom v. 
 Francis, 1 Parson's Select Eq. Cases, 527. It seems a party is not 
 ntitled to a discovery of title deeds relating solely to his adver- 
 ary's title. Thompson v. Eugh, 3 Grreen Ch. 271 ; and a defendant 
 s not bound to produce by way of answer any public documentary 
 vidence of which he is the oflScial keeper. 3 Bland. Ch. Kep. 
 .45. 
 
 Under the Pennsylvania Statute of the 16th of June, 1836, the 
 lupreme Court has not jurisdiction to compel the discovery of title 
 eeds unless material to an issue pending in court. Mange v. 
 ^uenat, 6 Whart. 141. 
 
112 Adams's docteine of equity. 
 
 troublesome and expensive method of requiring their 
 contents to be set out in the answer ; and in con- 
 formity with this view it is held, first, that the right 
 exists for the purpose of discovery alone, and se- 
 condly, that it must be regulated by the same princi- 
 ples which regulate the right to discovery in the 
 answer itself 
 
 It is a right existing for the purpose of discovery 
 alone, and does not depend on, nor will be aided 
 by a title to possess the documents themselves. 
 
 It may happen that a suit is instituted for the 
 purpose of obtaining possession of documents, alleged 
 to be improperly withheld from the plaintiff; and, 
 if that be its object, and the discovery be not barred 
 by demurrer or plea, the plaintiff is entitled to have 
 them described in the answer, and to be informed 
 whether they are in the defendant's possession, be- 
 cause, without proof on those points, he could not, 
 supposing his claim to be well-founded, obtain a per- 
 fect decree. If the documents, on inspection, will 
 or may afford evidence to sustain his claim, he has a 
 further right to their production on the general 
 principles of discovery; but, unless he can require 
 them on that ground, the mere fact that he claims 
 them as his own, will not entitle him to see them, 
 until after the decree, (e) 
 
 It is regulated by the same principles which regu- 
 late the right to discovery in the answer itself. 
 r^-iA-i *An immediate consequence of this doctrine 
 is, that the right to production must be shown 
 from admissions in the answer, and cannot rest on 
 extrinsic evidence. The question is not, whether 
 
 (e) Wigr. on Discovery, s. 295-298. 
 
OF DISCOVERT. 113 
 
 the allegations in the answer are true or false, for to 
 try that question would require a hearing of the 
 cause ; but it is whether, in respect of the plaintiff's 
 right to discovery, the documents are necessary to 
 make the discovery complete. If therefore the de- 
 fendant does not admit their possession, or their 
 relevancy to the plaintiff's case, the production can- 
 not be enforced. The same result will follow if they 
 are uncertainly described so that the Court cannot 
 ascertain to what its order should apply. (/) If the 
 bill contained interrogatories to elicit the requisite 
 admissions, and the answer has failed to give them, 
 it may be open to an exception for insufficiency ; or 
 if the interrogatories have been inadequately framed, 
 their inadequacy may render an amendment requi- 
 site, but in either case the admissions must be ex- 
 tracted from the defendant before the order for pro- 
 duction can be made. 
 
 The admissions necessary to compel production, 
 are, that the documents are in the defendant's pos- 
 session or power, and that they are of such a charac- 
 ter as to constitute proper matters of discovery within 
 the ordinary rules. 
 
 The documents must be in the defendant's posses- 
 sion or power. And for this purpose it is sufficient 
 that they are admitted to belong to him, although 
 they may be out of his actual custody. The posses- 
 sion therefore of his solicitor or agent, or of any 
 other person whose possession he can control, is 
 equivalent to his owa.(g) If however a document 
 
 (/) Inman v. Whitley, 4 Bea. 548 j Tipping v. Clarke, 2 Hare, 
 383, 389. 
 
 (g) Ex parte Shaw, Jac. 270 ; Morris v. Swabey, 2 Bea. 500. 
 
 8 
 
114 Adams's, DOCTRINE of equity. 
 
 be in the joint possession of the defendant and of 
 some other person who is not before the Court, its 
 production will not be compelled f and that for two 
 reasons ; one, that a party will not be ordered to do 
 that which he cannot, or may not, be able to do ; 
 P^-| K-. the other, that another ^person not present 
 has an interest in the document, which the 
 Court cannot deal with. (A) The result is the same, 
 if he holds the documents in his sole possession, but 
 on the joint account of himself and of other persons, 
 who are not before the Court. But, if his possessioa 
 is on his own account only, and he owes no duty to 
 such other persons, the mere fact that the documents 
 are important to their interests will not prevent their 
 production, (i) 
 
 The documents must be of such a character as to 
 constitute proper matters of discovery within the 
 ordinary rules ; viz., they must not fall within any 
 of the protected classes ; and they must be material 
 to the plaintiff's case. Their character on these 
 points must be learnt from the answer. If the 
 answer, by its want of distinct allegation, leave the 
 right to protection doubtful, the omission may be 
 supplied by affidavit ; or if part only of the document 
 is entitled to protection, the defendant may seal up 
 such parts as he shall swear by affidavit to be of a 
 protracted character, (k) If, however, the uncertainty 
 be not remedied by affidavit, or if the answer con- 
 
 (K) Taylor V. Kundell, Cr. & P. 104; Murray v. Walter, Cr. 
 & P. 114. 
 
 (i) Hercy v. Ferrers, 4 Bea. 97. 
 
 (k) Llewellyn v. Badeley, 1 Hare, 257 ; Curd v. Curd, 1 Hare, 
 274. 
 
OF DISCOVERT. 115 
 
 tradict itself or be palpably incredible, production 
 may be enforced, to ascertain the truth. (Z) 
 
 It will be observed that, in order to entitle the 
 plaintiff to have a document produced, it is sufficient 
 to show that it is material to his own case. His 
 right will not be excluded, because it happens to be 
 evidence for the defendant also, (m) But if it be not 
 relevant as affirmative evidence for himself, he will 
 not be entitled to inspect his adversary's evidence, 
 merely because on inspection it may prove defec- 
 tive. («) It is otherwise if the bill alleges a r^if.-! 
 ^specific defect in the defendant's title, and 
 charges that the documents will prove the existence 
 of that defect. Such a charge will entitle the plain- 
 tiff to discovery, to the extent of a positive allegation 
 in the answer that they will not afford such proof 
 And if the answer be doubtful, he is entitled to pro- 
 duction.(o) The same principle seems applicable 
 where the bill seeks to impeach a document, and 
 alleges that its invalidity would appear by inspection. 
 In such a case inspection before the hearing would 
 probably be permitted, unless the answer satisfac- 
 torily displaced the charge, (p) 
 
 If the possession and character of the documents 
 are sufficiently admitted, the next step is to order 
 their production; and unless some ground can be 
 
 (0 Bowes V. Fernie, 3 M. & C. 632; Latimer v. Neale, 11 
 Bligh, 112 ; 4 CI. & F. 570 ; Bannatyne v. Leader, 10 Sim. 230. 
 
 (m) Burrell v. Nicholson, 1 M. & K. 680. 
 
 (n) Bolton V. Corporation of Liverpool, 3 Sim. 467 ; 1 M. & K. 
 88 ; Llewellyn v. Badeley, 1 Hare, 527. 
 
 (o) Smith V. Beaufort, 1 Hare, 507 ; 1 Ph. 209 ; Coombe v. 
 Corporation of London, 1 N. C. C. 631. 
 
 (jp) Kennedy v. Green, 6 Sim. 7; Wigr. on Discovery, s. 311. 
 
116 Adams's doctrine of equity. 
 
 shown for refusing it, an order for that purpose is 
 almost of course. It has indeed been contended to 
 be of absolute right in respect of the maxim that 
 " he who answers at all must answer fully," and it 
 has been argued that, in accordance with that maxim, 
 wherever the possession and character of the docu- 
 ments are admitted, no denial by answer of the 
 plaintiff's equity, however full and explicit, will ex- 
 cuse from production. This view, however, seems 
 to be incorrect ; for although the fitness of produc- 
 tion, so far as it depends on the character of the 
 documents, is determined on the same principles as 
 if the bill had asked that they should be incorporated 
 with the answer, yet it does not follow that an ob- 
 jection to discover their contents must be taken in 
 both cases in the same technical form. The thing 
 'demanded is the same in both, but the form of de- 
 mand is different, and so also may be the form of 
 resisting that demand. In the case which we are 
 now considering the only thing asked is a descrip- 
 tive schedule; the answer gives the schedule; and 
 is a full answer according to the requirements of the 
 r*i 17-1 bill. If the contents had been asked *for, the 
 defendant might have been compelled to plead, 
 and might have adopted that course to avoid the 
 technical rule. But there is no such requisition in 
 the bill ; and, therefore, if the plaintiff's equity be 
 effectually displaced by the answer, the mere techni- 
 cal rule that an answer must be full, does not apply 
 to the production of documents, {q) 
 
 A defendant may also in some cases bind himself 
 
 (q) Adams v. Fisher, 3 M. & C. 526 ; Wigr. on Discovery, s. 
 148-185 ; Lancaster v. Evors, 1 Ph. 349. 
 
OF DISCOVERT. 117 
 
 by the frame of his answer to produce a document, 
 which is evidence of his own title alone, and which 
 does not contain, nor is alleged to contain, any evi- 
 dence of the plaintiff's case. A mere reference to 
 the document as existing, and as constituting a por- 
 tion of his own evidence, will not expose him to this 
 liability ; but if he professes to set out its contents, 
 or to give an abstract of it, referring for verification 
 to the document itself, he will be considered to have 
 made it substantially a part of his answer ; and if he 
 admits possession, will be bound to produce it, in 
 order that the plaintiff may ascertain that it is cor- 
 rectly stated, (r) 
 
 The right of enforcing discovery on oath is con- 
 fined to the plaintiff in the cause. If the defendant 
 wishes on his part to obtain discovery, he must con- 
 stitute himself a plaintiff by filing a cross-bill, and 
 will be entitled in his turn to an answer on oath, so 
 soon as he has answered the original bill.' If how- 
 
 (r) Hardman v. EUames, 2 M. & K. 732 ; Latimer v. Neale, 11 
 Bligh, 112 ; Adams v. Fisher, 3 M. & C. 526, 548 ; Att.-Gen. v. 
 Lambe, 3 Y. & C. 171 ; Phillips v. Evans, 3 N. C. C. 647 ; Wigr. 
 on Discovery, s. 385, 424. 
 
 ' When defendant seeks the discovery of books and papers in 
 the possession of the plaintiff, he should file a cross-bill. Bogert v. 
 Bogert, 2 Edw. Ch. 399. See also as to cases in which it is proper 
 to file cross-bills, White v. Buloid, 2 Paige Ch. 164 ; Cloud v. 
 Hamilton, 3 Yerg. 81 ; Tarelton v. Victes, 1 G-ilm. 470. A cross- 
 bill is merely a defence, and cannot be the foundation of a decree 
 concerning matters not embraced in the original writ. Grallatian v. 
 Erwin, Hopk. 48; Draper v. Gordon, 4 Sandf. Ch. Eep. 210; 
 Gallatian v. Cunningham, 8 Cowen, 361, S. C. ; Field v. Schieffelin, 
 7 John. C. E. 252 ; May v. Armstrong, 3 J. J. Marsh. 262. See 
 Kemarks of Kent, Ch., as to cross-bills, in Fields v. Schieffelin, 7 
 John. Ch. Kep. 252. 
 
118 ADAMS'S DOCTRINE OF EQUITY. 
 
 ever the plaintiff's title be made out by documents, 
 the production of which is material for making out 
 the defence, the right of .filing a cross-bill would ob- 
 viously afibrd no adequate aid to the defendant ; be- 
 cause it would not enable him to see the documents, 
 until after his own answer had been filed. It ap- 
 pears that under such circumstances the Court can- 
 not compel the plaintifi" to produce the documents, 
 P^l n-i but, if he states the *alleged document to be 
 in his possession, may excuse the defendant 
 from answering until it is done. 
 
 The leading case on this doctrine is one where a 
 bill was filed against executors, prajdng payment of 
 two promissory notes given by the testator for se- 
 curing 15,000Z. One of the executors made an affi- 
 davit that he had inspected the first note, and had 
 observed on the face of it circumstances tending to 
 impeach its authenticity ; that he was informed and 
 believed that the second note had been produced by 
 the plaintiff for payment in a foreign country ; and 
 that he was advised and believed it was necessary^ 
 in order that his answer might fully meet the case, 
 that he should, before answer, have inspection of 
 such second note. It was ordered that the defendants 
 should not be compelled to answer, till a fortnight 
 after the production of the second note. For the 
 purpose however of obtaining such production, it will 
 not be sufficient to allege that it may be material to 
 the defence. But the circumstances which constitute 
 the materiality must be so stated by affidavit, that 
 the Court may estimate the alleged necessity, and 
 may be satisfied that it is not needlessly compelling 
 a production. The validity of the doctrine is still , 
 
OF DISCOVERT. 119 
 
 ■ancertain. It has been said by a Judge of great ex- 
 perience, that he never understood the reasoning on 
 which it proceeded, whilst another has expressed his 
 conviction that it is founded on principles, which 
 upon examination would fully support it. (s)^ 
 
 The jurisdiction of the Great Seal for enforcing 
 discovery is available in aid of proceedings for civil 
 relief, whether such relief be asked from the Court 
 of Chancery, or from another public tribunal in this 
 country which is itself unable to enforce discovery.^ 
 But discovery wiU not be enforced to aid a proceed- 
 ing before arbitrators, or before an inferior Court. 
 And it has also been refused in regard *to pro- p^-. q-, 
 ceedings in the Ecclesiastical Court. But the 
 true reason in this latter case is that it is not wanted, 
 for the Ecclesiastical Court itself can compel an 
 answer. Discovery has been enforced in one instance 
 to aid the jurisdiction of a foreign Court ; but the 
 
 (s) Princess of Wales v. Lord Liverpool, 1 Sw. 114 ; Taylor v. 
 Beming, 4 Bea. 235; Milligan v. Mitchell, 6 Sim. 186; Penfold 
 V. Nunn, 5 Sim. 405; Bate v. Bate, 7 Bea. 528. 
 
 ' To entitle a plaintiff in a cross-bill to a stay of proceedings in 
 the original bill until the cross-bill has been answered, the cross- 
 bill must be sworn to positively, either by the plaintiff, or by the 
 .person from whom his information is derived. Talmage v. Pell, 9 
 Paige C. E. 410; White v. Buloid, 2 Paige, 164. 
 
 " March v. Davidson, 9 Paige, 580 ; Lane v. Stebbins, Id. 622 ; 
 Atlantic Ins. Co. v. Lamar, 1 Sandf. C. R. 91. But a discovery 
 will not be allowed merely to guard against anticipated perjury, 
 in a suit at law. Leggett v. Postly, 2 Paige, 599. Whether a 
 <!0urt will sustain a bill of discovery merely to procure such ad- 
 missions as might be used in mitigation of damages, quxre ? Gel- 
 ston V. Hoyt, 1 John. C. R. 543. 
 
120 Adams's doctrine of equity. 
 
 propriety of such enforcements seems open to 
 doubt, {tf 
 
 In order to entitle himself to such discovery, the 
 plaintiff must show a title to sue the defendant in 
 some other Court, or that he is actually involved in 
 litigation with the defendant, or is Uable to be so, 
 and must also show that the discovery prayed is 
 material to support or defend the suit. If he does 
 not show this, he shows no title to the discovery, (m) 
 And therefore, when a bill was filed for discovery in 
 aid of an action at law, which the plaintiff alleged 
 by his bill that he intended to commence, the Court 
 being of opinion that the case stated would not sup- 
 port an action, allowed a demurrer to the bill.(?;) 
 Where the plaintiff alleges on his biU a sufiBcient 
 case at law, it has been doubted to what extent dis- 
 covery can be resisted, by pleading matters which 
 would be a defence at law. In a case of Hindman 
 v. Taylor, before Lord Thurlow, it was said that, 
 where the bill was for discovery leading to rehef at 
 law, the defendant could not plead matter in bar to 
 the discovery, which would be a bar to the relief 
 there. The proposition, however, thus widely ex- 
 pressed, does not seem consistent with later decisions. 
 And the true principle appears to be that, if the le- 
 gal defence is of a character showing that the dis- 
 covery would have no bearing on the issue at law, it 
 
 (0 Mitf. 53, 186, 225 ; Earl of Derby v. Duke of Athol, 1 Ves. 
 sen. 202, 205; Bent v. Young, 9 Sim. 185. 
 
 (u) Mitf 191. („) Mitf 187. 
 
 1 In New York it has been decided that a bill of discovery will 
 be sustained to aid the prosecution or defence of a civil suit in a 
 foreign tribunal. Mitchell v. Smith, 1 Paige, 287. 
 
OF DISCOVERT. 121 
 
 will be a sufficient answer to the bill. If tbe legal 
 defence is not of this character, but the trial at law 
 will be of the general merits, the discovery will be 
 enforced, (w)^ 
 
 *A bill thus filed for enforcing discovery in r.i;2o-i 
 aid of proceedings before some other tribunal 
 is called a bill for discovery, in contradistinction to 
 those bills, on which the consequent relief is attain- 
 able in equity, and which are called bills for relief, 
 or more correctly for discovery and relief. If the 
 relief be attainable in a different Court, the mere 
 fact that the discovery is requisite will not alter the 
 
 (10) Hindman v. Taylor, 2 B. C. C. 7; Eobertson v. Lubbock, 
 4 Sim. 161, 172 ; Scott v. Broadwood, 2 Coll. 447 ; Hare on Dis- 
 covery, 47-60. 
 
 ' Leggett V. Postley, 2 Paige, 599 ; March v. Davidson, 9 Paige, 
 580 ; Lane v. Stebbins, Id. 622 ; Deas v. Harvie, 2 Barb. Ch. 
 Eep. 448 ; Seymour v. Seymour, 4 Johns. C. K. 409 ; 2 Stewart, 
 280 ; Bailey v. Dean, 5 Barb. S. C. Eep. 297 ; Gelston v. Hoyt, 
 1 Johns. C. L. 543. 
 
 Where a bill seeks for discovery alone, and not for relief also, 
 the defendant will be compelled to make discovery, if the court 
 suppose that it can in any way be material to the plaintiff, in sup- 
 port or defence of any suit. Peck v. Ashley, 12 Met. 478. But 
 see Leggett v. Postley, 2 Paige Eep. 599. And a bill of discovery 
 to obtain evidence which might have been useful in a trial at law, 
 must be filed pending the suit at law, unless some sufficient excuse 
 is shown why it was not filed at that time. Faulkner's Adm'x v. 
 Harwood, 6 Eandolph, 125 ; and see Foltz v. Pourie & Dawson, 2 
 Desau, 40; 3 Miss. 433. After a verdict at law a party comes 
 too late with a bill of discovery, 3 John. C. E. 855, 402 ; Foltz 
 V. Pourie & Dawson, 2 Desau, 40, 623. 
 
 It seems that it is not necessary to state particularly the plead- 
 ings at law, so as to show what precise issues are pending. Hin- 
 kle V. Currin, 1 Humph, sen. Eep. 74. 
 
122 ADAMS'S DOCTRINE OF EQUITY. 
 
 jurisdiction. The Court of Chancery will enforce 
 the discovery, but the relief must be sought before 
 the appropriate tribunal. 
 
 The discovery obtained by a bill in equity is only 
 available against the answering defendant.^ It can- 
 not be read as evidence against a co-defendant, unless 
 he refers to it by his answer as correct, or is so con- 
 nected with the answering party as to be bound, 
 under the ordinary rules of law, by his declarations 
 or admissions, {x) If therefore a bill is filed for rehef, 
 no person can be made a party who is unaffected by 
 the relief, notwithstanding he might give important 
 discovery, because, as against himself, discovery is 
 needless, and, as against the other parties, it would 
 be unavailing. In like manner, if the bill be for 
 discovery alone, no person can be made a defendant 
 who is not a party to the record at law. There is 
 an exception however in the case of suits against cor- 
 
 (x) Mitf. 188 ; Anon., 1 P. W. 301 ; Cherves v. Jones, 6 Mad. 
 267 ; Crosse v. Bedingfield, 12 Sim. 35 ; Grreen v. Pledger, 3 Hare, 
 165. 
 
 ' As a general rule, the answer of one defendant cannot be 
 used as evidence against his co-defendant. Leeds v. Marine 
 Ins. Co. of Alexandria, 2 Wheaton, 380 ; Osborne v. Bank of 
 United States, 9 "Wheaton, 738 ; Reimsdyek v. Kane, 1 Grallis, 630 ; 
 Robinson v. Sampson, 23 Maine, 388 ; Cannon v. Norton, 14 
 Verm. 178 ; Conner v. Chase, 15 Verm. 764 ; Grant v. U. S. 
 Bank, 1 C: C. E. 112 ; Phoenix v. Ingraham, 5 John. 512 ; Pettit 
 V. Jennings, 2 Eob. Va. 676 j HoUoway v. Moore, 4 S. & M. 594; 
 Felch V. Hooper, 20 Maine, 159 ; Singleton v. Gayle, 8 Porter, 
 270; Webb v. Pell, 3 Paige, C. R. 368; Judd v. Seaver, 8 
 Paige, C. R. 548 ; Dykers v. Wilder, 3 Edw. Ch. 496 ; Hayward 
 V. Carroll, 4 Har. & J. 518 ; Stewart v. Stone, 8 Gill. & J. 510; 
 Calwell V. Boyer, 8 Gill. & J. 136 ; and in numerous other 
 
OF DISCOVERY. 123 
 
 porations ; and in such suits it is allowable to join 
 the officers or members personally as defendants, in 
 order that they may give discovery on oath, which 
 the corporate body cannot do. {y) 
 
 As against the defendant himselfj if he be not 
 under incapacity, the answer is evidence. If the 
 plaintiff does not reply to it, and thus give him an 
 opportunity of verification by evidence, the whole 
 answer must be taken as true. If a replication be 
 filed, the answer is not evidence in the defendant's 
 favour, but the plaintiff may use *any portion r^^l'] 
 of it, without admitting the remainder to be 
 read, except so far as it is explanatory of the portion 
 used.(z) The defendant however is so far entitled 
 to the benefit of his answer, that any material sug- 
 gestion made by it, though not established by proof, 
 may at the discretion of the Court be referred for 
 inquiry. («) And if a positive denial in the answer 
 be met by the evidence of one witness only, the 
 Court will neither make a decree, nor send the 
 question to a trial at law.' If there are corroborative 
 
 (y) Mitf. 188 ; Kerr v. Eew, 5 M. & C. 154; Glasoott v. Cop- 
 perminers' Company, 11 Sim. 305, 314. 
 
 (z) Bartlett v. Gillard, 3 Euss. 149, 156 ; Freeman v. Tatham, 
 6 Hare, 329 ; East v. East, 5 Hare, 343. 
 
 (a) Connop t. Hayward, 1 N. C. C. 33 ; Macmahon v. Burchell, 
 2 Ph. 127. 
 
 * When the facts alleged in the "com plain ant's bill are denied in 
 the answer, it is a general principle that they must be proved by 
 two credible witnesses, or one witness and strong corroborating 
 circumstances; Swift v. Dean, 6 Johns. K. 522; Clason v. Morris, 
 10 Id. 524 ; Atkinson v. Monks, 1 Cow. 691 ; Stafford v. Bryan, 
 1 Paige, C. R. 239 ; Chance v. Teeple, 3 Green, Ch. 173 ; M'Dow- 
 rellv. Bank of Wilmington & Brandywine, 1 Harring, 369 ; Beatty 
 
124 Adams's doctrine of equity. 
 
 circumstances in the plaintiff's favour, the Court will 
 depart from this rule, and will either make an imme- 
 diate decree, or if the defendant desire it, will direct 
 an issue, ordering his answer to be read as evidence 
 on the trial, so that it may be contrasted with the 
 testimony given against him. (6) The defendant's 
 answer may also be read on the question of costs ; 
 and the Court, though compelled by the evidence to 
 make a decree against him, may give credit to his 
 statement on oath as to his own conduct, so far as 
 to exempt him from payment of costs. But it has 
 been held that where a tender is relied on by the 
 defendant, the mere unproved statement that such 
 tender has been made, is not sufficient to save costs. 
 Nor can the answer of a mortgagor be read against 
 a mortgagee to deprive him on the ground of mis- 
 conduct of his ordinary right to costs, (c) 
 
 The rule which allows a plaintiff, who has replied 
 to the answer, to read selected portions only, is ne- 
 cessarily confined to cases where the hearing is in 
 equity. If the bill be for discovery in aid of a pro- 
 cedure at law, the answer is treated at law like any 
 
 (6) East India Company v. Donald, 9 Ves. 275 ; Savage v. Broek- 
 sopp, 18 Ves. 335. 
 
 (c) Howell V. George, 1 Mad. 1 ; Milnes v. Davison, 3 Mad. 
 374; Wright v. Jones, C. P. Coop. 493. 
 
 V. Thompson, 2 Hen. & M. 395 ; Kaines v. Jones, 4 Humph. 490 ; 
 Coles v. Eaymond, 5 Blackf. 435 ; Bible v. Smith, 1 Dana, 580 ; 
 Mason v. Peck, 7 J. J. Marsh, 300 ; Patterson v. Hobbs, 1 Lit. 
 275 j Littell v. M'lver, 1 Bibb, 203; Pauling v. Sturges, 3 
 Stewart, 95 ; Neale v. Hagthorp, 3 Bland, 551 ; Hughes v. Blake, 
 6 Wheaton, 458 ; Union Bank v. Grearp, 5 Pet. 98 ; Page v. Page, 
 8 N. H. 187 ; Daniel v. Mitchell, 1 Story, 173 ; and many othe:^ 
 cases which it is unnecessary to quote. 
 
OF DISCOVERT. 125 
 
 other admission, and must be read throughout, if it 
 be read at all. The costs also of such an answer 
 are subject to a different rule, from those of an 
 answer to a bill *for relief In the one case r*no-i 
 the costs of discovery are a portion of the 
 costs in the cause, and are disposed of in that cha- 
 racter at the hearing. In the other the defendant is 
 entitled to costs as a matter of course immediately on 
 putting in a full answer ; for the Court of Chancery 
 never hears the cause ; and the Court which does 
 hear it has no jurisdiction over the Chancery costs. 
 
 This principle which applies to bills for discovery 
 in aid of a procedure at law was, until lately, applied 
 to cross-bills for discovery alone, when filed in aid of 
 a defence in equity ; so that in a suit of this class the 
 answer, if read at all, must have been read through- 
 out, and the defendant on filing it was entitled to 
 his costs. The practice however is now altered, and 
 it is directed, that the answer to a cross-bill for dis- 
 covery only may be read and used in the same 
 manner, and under the same restrictions, as the 
 answer to a bill praying relief, and that the costs 
 of it shall be costs in the original cause, unless the 
 Court otherwise orders, (c?) 
 
 (d) 42d Order of August, 1841 ; 125th Order of May, 1845. 
 
126 ADAMS'S DOCTRINE OF EQUITY. 
 
 [*23] CHAPTER 11. 
 
 ON COMMISSIONS TO EXAMINE WITNESSES ABROAD; OF 
 PERPETUATION OF TESTIMONY AND OF EXAMINATIONS DK 
 BENE ESSE.' 
 
 In addition to tlie jurisdiction for discovery, there 
 is another substantially similar to it, under which: 
 the Court of Chancery interposes for two objects ; 
 first, for the procurement of evidence to be used 
 elsewhere, without itself deciding on the result, viz., 
 in suits for a Commission to Examine Witnesses 
 Abeoad, and in suits to Perpetuate Testimony ; and, 
 
 ' Courts of Cbancery in the United States, and Courts of 
 Law exercising Chancery powers, are in the constant practice of 
 entertaining jurisdiction of bills for the perpetuation of testimony," 
 issuing commissions for the examination of witnesses abroad, and 
 of permitting testimony to be taken de bene esse ; and it will he 
 found, that generally the rules of practice are analogous to those 
 of the English High Court of Chancery. See upon this subject 
 Clark V. Bundy, 6 Paige, 432 ; Brown v. Southworth, et al., 9 Id. 
 351; Lingan v. Henderson, 1 Bland, 236; Jerome etal. v. Jerome, 
 5 Conn. 352 ; In the matter of Isaac L. Kipp, 1 Paige, C. E. 
 601; Kagusin v. Fort, 2 Johns, C. R. 146; Rockwell; v. Fol- 
 som, 4 Id. 165 ; Renwick v. Renwick, 10 Paige, C. R. 420 ; 
 Brush V. Vandenbergh, 1 Edw. Ch. 649 ; Phelps v. Spafford & 
 Curtis, 1 Green, Ch. 387; Stubbs v. Burwell, 2 Hen. & M. 536; 
 Chapman v. Chapman, 4 Id. 426 ; Oliver v. Palmer, 11 Gill. & J. 
 426; Knicheloe v. Knicheloe, 11 Leigh, 393; "Gordon v. Watkins 
 etal., 1 8. &M. 37. 
 
COMMISSIONS TO EXAMINE WITNESSES. 12,7 
 
 secondly, for granting, either in aid of its own pro- 
 ceedings or of a proceeding elsewhere, an examina- 
 tion of witnesses de bene esse. 
 
 The jurisdiction for issuing Commissions to Exa- 
 mine Witnesses Abroad is sufficiently explained by 
 its name. It originated in the incapacity of the 
 common law Courts to issue such commissions with- 
 out iJie consent of both parties. That incapacity is 
 removed by a recent statute; but the jurisdiction of 
 equity stiU. continues, though its exercise is less fre- 
 quently required, (a) 
 
 The jurisdiction in suits to Peepetijate Testimony 
 arises where the fact, to which the testimony relates, 
 cannot be immediately investigated at law, e. g., 
 where the person fiUng the bill has merely a future 
 interest, or having an immediate interest, is himself 
 in possession and not actually disturbed, though 
 
 threatened by the defendant *with disturb- ^,„,^ 
 
 . r 241 
 
 ance at a future time. (6) Under a late statute ^ -' 
 
 the jurisdiction has been extended; and it has been 
 enacted, that "any person who would under the 
 circumstances alleged by him to exist, become enti- 
 tled upon the happening of any future event, to any 
 honour, title, dignity, or ofl&ce, or to any estate or 
 interest in any property real or personal, the right 
 or claim to which cannot by him be brought to trial 
 before the happening of such event, shall be entitled 
 to file a bill to perpetuate any testimony which may 
 be material for establishing such claim or right." (c) 
 
 (a) 1 Wm. 4, c. 22, s. 4; Grinnell v. Cobbold, 4 Sim. 546. 
 
 (6) Mitf. 51; 1 Mad. Ch. Practice, 253; Dursley v. Fitafhard- 
 inge, 6 Ves. 251 ; Angell v. Angell, 1 8. & S. 83. " 
 
 (c) Earl of Belfast v. Chichester, 2 J. & W. 439 ; Townshend 
 Peerage case, 10 CI. & F. 289 ; 5 & 6 Vict. c. 69. 
 
128 Adams's doctrine of equity. 
 
 The jurisdiction to examine witness de bene esse is 
 a jurisdiction for permitting evidence to be taken 
 before the cause is regularly at issue, in cases where, 
 from the age or illness of a witness or from his being 
 the only witness to an important fact, there is reason 
 to apprehend that, before the regular opportunity 
 arrives, material evidence may be lost. This is 
 called an examination de bene esse; and the deposi- 
 tions taken under it can only be read, if the party 
 seeking the benefit of them has used all diligence to 
 examine in the ordinary course, but there has been 
 a moral impossibility of his so doing, [d) The same 
 course may be pursued where a similar danger exists 
 in reference to an action at law ; and a bill may be 
 entertained for an auxiliary examination de bene esse, 
 provided there be annexed to it an affidavit of the 
 circumstances which render such examination neces- 
 sary, (e) The principle on which this affidavit is 
 required, where the matter is capable of being imme- 
 diately the subject of an action at law, seems to be 
 that the bill tends to alter the ordinary course of the 
 administration of justice, which ought not to be per- 
 mitted on the bare allegation of a plaintiff. The 
 same principle is applied, as *we shall here- 
 after see, where a bill is filed, in respect of an ^ ^ 
 instrument on which an action at law would lie, 
 alleging that it is destroyed or lost, or is in the 
 defendant's custody, to obtain relief which, but for 
 such circumstances, might be had at law.(/) 
 
 (rf) Frere v. Green, 19 Ves. 320; Hope v. Hope, 3 Bea. 317; 
 M'Intosh V. Great Western Kailway, 1 Hare, 329 ; Cann v. Cann, 
 1 P. W. 567. 
 
 (e) Mitf. 52, 150 ; Angell v. Angell, 1 S. & S. 83. 
 
 (/) Post. Re-exeoution of Lost Instruments. 
 
COMMISSIOIfS TO EXAMINE WITNESSES. 129 
 
 The mode of taking the evidence, either under a 
 commission to Examine Witnesses Abroad, or in a 
 suit to Perpetuate Testimony, or in an examination 
 de bene esse, is in all material points similar to that 
 adopted in the ordinary examination in a cause. 
 
 In a suit however to Perpetuate Testimony, the 
 cause does not proceed beyond the examination of 
 the witnesses. When that has been completed it is 
 considered at an end ; and the only remaining step 
 is the publication of the evidence. This is effected 
 by an order of the Court ; but such an order cannot 
 be obtained except for the purpose of a suit or action, 
 nor even for that purpose during the lifetime of the 
 witnesses, unless on special grounds showing that 
 their examination is morally impossible. ((/) 
 
 The same principle applies to depositions taken 
 de lene esse; and their publication cannot be ob- 
 tained, unless the witness dies or is otherwise inca- 
 pacitated from giving his evidence before issue is 
 joined. 
 
 If the evidence is required for the purposes of a 
 trial at law, the order made is that the depositions 
 be published, and that the officer attend with and 
 produce to the Court of law the record of the whole 
 proceedings; and that the parties may make such 
 use of the same as by law they can. (A) It has been 
 determined that it is no objection to the publication 
 of depositions which have been taken in a suit to 
 Perpetuate Testimony, that the proceedings for 
 which they are required are in the Court of a foreign 
 country, (i) 
 
 (g) Morrison v. Arnold, 19 Ves. 670. 
 (Ji) Attorney-General v. Ray, 2 Hare, 518. 
 (i) Morris v. Morris, 2 Ph. 205. 
 9 
 
130 Adams's doctrine of equity. 
 
 BOOK 11. 
 
 OF THE JURISDICTION OF THE COURTS OF EQUITY, IN CASES 
 IN WHICH THE COURTS OF ORDINARY JURISDICTION CANNOT 
 ENFORCE A RIGHT. 
 
 [*26] ^CHAPTER I. 
 
 OF TRUSTS, BOTH ORDINARY AND CHARITABLE. 
 
 The jurisdiction of equity to grant relief originates, 
 as we liave seen, in the occasional inadequacy of the 
 remedy at law ; and the instances in which this in- 
 adequacy occurs, may be conveniently divided under 
 two heads; viz., 1. "Where the Courts of ordinary 
 jurisdiction cannot enforce aright; and 2. Where 
 they cannot administer it. 
 
 It has been already stated in the Introduction, that 
 the equities under the first head of this division, viz., 
 where the Courts of ordinary jurisdiction cannot en- 
 force a right, are those for performance of trusts and 
 contracts, for election between inconsistent benefits, 
 for completion of gifts on meritorious consideration 
 in favour of the donor's intention after his death, for 
 giving eflfect to discharges by matter in pais of con- 
 tracts under seal, for relief against penalties and for- 
 
ORDINART AND CHARITABLE TRUSTS. 131 
 
 feited mortgages, for re-execution or correction of 
 instruments which 'have been lost or erroneously 
 framed, for rescission of transactions which are ille- 
 gal or fraudulent, or which have been carried on in 
 ignorance or mistake of material facts, and for in- 
 junction against irreparable torts. 
 
 The jurisdiction to enforce performance of trusts 
 arises where property has been conferred upon, and 
 accepted by, one person, on the terms of using it for 
 the benefit of *another. The former person, r^oy-i 
 or owner at law, is called the trustee ; the 
 latter, or owner in equity, the cestui que trust. 
 
 The principal advantage of a conveyance on trust 
 is, that it enables the owners of property to effectuate 
 dispositions of a more complex character than is con- 
 sistent with the machinery of conveyances at law ; 
 and that it also affords the means of protecting in- 
 fants and other incapacitated persons, by vesting 
 their property in trustworthy holders, who may 
 manage and apply it for their benefit. It is on the 
 other hand attended with some inconvenience and 
 risk, because it makes the cestui que trust's security 
 in some degree dependent on a trustee who has no 
 beneficial interest, and may enable a fraudulent trus- 
 tee, by concealing his fiduciary character, to sell the 
 property to a stranger. 
 
 The distinction between a trustee's legal owner- 
 ship, and the beneficial interest of a cestui que trust, 
 is in some instances recognised even at law; and 
 where the trust is created by will, the character of 
 its duties and the nature of the estate required for 
 their performance are allowed to affect the construc- 
 tion of the devise, in reference both to its passing 
 
132 ADAMS'S DOCTRINE OF EQUITY. 
 
 any estate, and also in reference to the extent and 
 duration of the estate passed, ((f) But, in so far as 
 a legal ownership is conferred, it invests the trustee 
 with absolute dominion at law, and the equitable 
 ownership, or right to compel performance of his 
 trust, is only cognizable in the Court of Chancery. , 
 
 In order to originate a trust, two things are essen- 
 tial : first, that the ownership conferred be coupled 
 with a trust, either declared by the parties or result- 
 ing by presumption of law ; and secondly, that it be 
 accepted on those terms by the trustee. 
 
 The declaration of a trust by the parties is not, 
 independently of the Statute of Frauds, required to 
 be made or evidenced in any particular way. And 
 ra:oc-| therefore, previously *to that statute, a trust, 
 whether of real or personal property, might 
 be declared either by deed, by writing not under seal, 
 or by mere word of mouth ; subject, however, to the. 
 ordinary rule of law, that if an instrument in writing 
 existed, it could not be explained or contradicted by 
 parol evidence. 
 
 With respect, however, to real estate, the rule is 
 altered by the Statute of Frauds, and it is enacted, 
 " that all declarations or creations of trusts or con- 
 fidences of any lands, tenements, or hereditaments, 
 shall be manifested and proved by some writing, 
 signed by the party who is by law enabled to declare 
 such trust, or by his last will in writing ; or else they 
 shall be utterly void and of no effect." And further, 
 that " all grants and assignments of any trust or con- 
 fidence shall likewise be in writing, signed by the 
 
 (a) 2 Jarm. on Wills, 196 ; Adams on Ejectment, 4th edit., 
 •60-65. 
 
OEDINART AND CHARITABLE TRUSTS. 133 
 
 party granting or assigning the same, or by such last 
 will or devise." It will be observed that this act 
 does not require that the trust shall be declared in 
 writing, but only that it shall be manifested and 
 proved by writing. And therefore, if the existence 
 of a trust, together with its precise terms and subject- 
 matter, can be proved from any subsequent acknow- 
 ledgment, written and signed by the trustee, as by a 
 letter, memorandum, or recital in a deed, it will be 
 sufficient. (5)' 
 
 (b) 29 Car. 2, c. 3, ss. 7 and 9 ; Gardner v. Kowe, 9 S. & S. 
 346 J 5 Kuss. 258. 
 
 ' No particular form of words is necessary to create a trust, the 
 intent only being regarded by courts of equity ; Fisher v. Fields, 
 10 Johns. Kep. 494. 
 
 A trust estate in real property, as separate from the legal own- 
 ership, may be created by an express declaration of trust, or may 
 be raised upon certain facts' by implication of law ; Elliott v. Arm- 
 strong, 2 Blackf. 198 ; and see Chamberlain v. Thompson, 10 Conn. 
 242. And it is not necessary to the validity of a trust deed, that 
 it should be executed by the cestui que trust. The deed operates 
 to pass the legal title, as soon as executed, by the grantor and 
 trustees; Skipwith's Ex'or v. Cunningham et al., 8 Leigh, 272. 
 
 Though a trust deed need not be created by writing, yet to take' 
 the case out of the Statute of Frauds, its terms and conditions 
 must be clearly manifested and proved in writing, under the hand 
 of the party charged, before the court will carry it into execution ; 
 Steere v. Steere, 5 John. Kep. 1 j McCabbin v. Cromwell, 7 Grill 
 & Johns. 157; Pinney v. Fellows, 15 Verm. 525; Unitarian So- 
 ciety V. Woodbury, 14 Maine, 281 ; Eutledge v. Smith, 1 McC. 
 Ch. Kep. 119 ; Elliott v. Morris, 1 Harp. Eq. 281 ; Fleming et al. 
 V. Donahoe et al., 5 Hammond, 256. 
 
 A trust respecting personal property may be proved by parol 
 evidence, and this, whether the trust be considered as an express 
 or resulting trust ; Martin v. Greer, 1 Geo. Decis. 109 ; Lord v. 
 Lowry, 1 Bailey Ch. 510. 
 
134 ADAMS'S DOCTEINE OF EQUITY. 
 
 WitlT respect to personal estate, including moneys 
 out on mortgage, the original rule continues, and it 
 is sufficient that, either by writing or by word of 
 mouth, there should be a certain declaration of the 
 trust, (c) 
 
 The intention thus evidenced, whether by writing 
 or by parol, to impose a trust on the donee, must be 
 declared with certainty ; and there must also be a 
 certain declaration of its terms ; viz., of the property 
 on which the trust is to attach, the parties for whom 
 r*9qi ^^® benefit is meant, and the *interests which 
 they are respectively to take. If there be 
 uncertainty in this latter respect, but it be sufficiently 
 certain that a trust was meant, and not a gift for the 
 donee's benefit, the case will fall under a different 
 rule, and there will be a resulting trust for the donor 
 by operation of law. 
 
 The certainty, however, of a trust is not necessa- 
 rily affected by the circumstance that it has been 
 declared in the form of a power, enabling the trustee 
 to give the estate to the parties interested, instead 
 of an immediate gift to them : nor by the use of pre- 
 catory or recommendatory words, instead of more 
 imperative language. And, on the other hand, a 
 trust is not necessarily created, because the formal 
 language of a trust is used, if a contrary intent 
 appear from the gift. 
 
 The creation of trusts in the form of powers 
 occurs where no positive direction is given that the 
 trustee shall hold for the parties interested, but he 
 is authorized to give them an interest, if he see fit. 
 
 (c) Benbow v. Townsend, 1 M. & K. 506 ; M'Fadden v. Jen- 
 kyns, 1 Hare, 158; 1 Ph. 153. 
 
ORDINARY AND CHARITABLE TRUSTS. 135 
 
 Such a power as this does not necessarily constitute 
 a trust ; for it may be absolutely discretionary in 
 the donee, and one which he cannot be compelled 
 to execute ; but on the other hand, it may be given 
 him in a different character, and as one which he is 
 entrusted and bound to execute. If the context of 
 the gift establish this latter construction, he has not 
 a discretion whether he will execute his power or 
 not, but if he neglect his duty, the Court will to a 
 certain extent, discharge it in his stead. It will not, 
 however, in so doing assume an arbitrary discretion, 
 although such a discretion may have been given to 
 the trustee, but it will adopt such general maxim as 
 under the circumstances appears applicable, e. g., 
 that a fund given for the benefit of " relations" shall 
 be distributed among those who are within the Star 
 tute of Distributions, although the donee might have 
 selected out of a wider class. The leading case on 
 this subject is one where leaseholds were bequeathed 
 to a man, with a direction to make certain payments 
 out of the rents ; and the testator *empowered p^pni 
 him to employ the residue for such of his L -^ 
 nephew's children as he should think proper. On 
 the trustee's failure so to employ the residue, it was 
 decreed to be a trust for all the children. There is 
 another class of cases, apparently similar to these, 
 but based on an entirely distinct principle, where a 
 non-compulsory power of appointment has been con- 
 ferred, but the context has implied a gift in default 
 of appointment to the persons who in the event of 
 execution would have been objects of the power. 
 Such, for instance, is a gift to children and their 
 issue in such proportions as A. shall appoint, under 
 
136 Adams's doctrine of equity. 
 
 which it has been held that in default of appoint- 
 ment the children took by implication estates tail. 
 The distinction between the two cases is, that in the 
 one the objects of the power take, notwithstanding 
 the trustee's failure to appoint, because his failure 
 was a neglect of duty ; in the other they take, not 
 because he was bound to appoint, but because it is 
 adjudged, on perusal of the gift, that an express 
 trust was by mistake or carelessness omitted. (cZ) 
 
 The use of precatory or recommendatory words, 
 whether arising from want of due consideration, or 
 from an unwillingness to use language implying dis- 
 trust, or from an intention to give a control over the 
 suggested disposition, is not unfrequent in wills; 
 and we often meet with such expressions as "I 
 recommend," " I entreat," or " I desire" that such a 
 thing be done, or " I have no doubt, or well know," 
 that it will be done. In these cases the mere gram- 
 matical construction of the words is not sufficient to 
 determine whether a trast exists. It is clear that 
 words simply intimating an expectation, provided 
 their object be expressed with sufficient certainty, 
 may operate as imperative on the person to whom 
 they are addressed. But although they may create 
 a trust, yet they have not necessarily that eflfect. 
 They are in themselves of a flexible character, and 
 r*qn ™^®* &^^ way if the imperative construction 
 ^ -■ *be inconsistent with any positive provision 
 in the will, or if it appear from the general context 
 that the testator meant to depend on the justice or 
 
 (d) Brown v. Higgs, 8 Ves. 561 ; Grant v. Lynam, 4 Euss. 
 292 ; Burrough v. Philcox, 5 M. & C. 73 ; 2 Sug. on Powers, 7th 
 edit. 157. 
 
ORDINARY AND CHARITABLE TRUSTS. 137 
 
 gratitude of the donee. The question, therefore, in 
 each particular case is merely of construction on the 
 terms of the instrument, (e) ' 
 
 The non-creation of a trust in a donee, notwith- 
 standing that a trust is formally declared, occurs 
 principally in conveyances for payment of debts 
 where the language used, if taken in its literal ac- 
 ceptation, would constitute the creditors' cestuis que 
 trust, and would entitle them to enforce an applica- 
 tion of the fund. It has been decided, however, 
 that notwithstanding the similarity of form, the 
 transaction is substantially different from the crea- 
 tion of a trust ; and that a man who, without com- 
 munication with his creditors, puts property into the 
 hands of a trustee for the purpose of paying his 
 debts, proposes only a benefit to himself, and not to 
 his creditors. The nominal trustee, therefore, is 
 merely his agent ; and the nominal trust is only a 
 method of applying his own property for his own 
 convenience. (/) 
 
 A resulting trust by presumption of law arises 
 where the legal ownership of property has been dis- 
 posed of, but it is apparent from the language of the 
 disposition itself, or from the attendant circumstances, 
 that the equitable ownership or beneficial interest 
 
 («■) "Wright V. Atkyns, 17 Ves. 255 ; 19 Ves. 299 ; Lawless v. 
 Shaw, 1 Lloyd & Goold, 154; 5 CI. & F. 129; Knight v. Bough- 
 ton, 11 01. & F. 513;'Knott v. Cottee, 2 Ph. 192; 2 Sug. on 
 Pow. 171. 
 
 (/) Garrard v. Lord Lauderdale, 3 Sim. 1 ; Bell v. Cureton, 2 
 M. & K. 503 ; Hughes v. Stubbs, 1 Hare, 476 ; Gibbs v. Glames, 
 11 Sim. 584; Wilding v. Kichards, 1 Coll. 655. 
 
 ' Bull V. Bull, 8 Conn. 47. 
 
138 ADAMS'S DOCTRINE OF EQUITY. 
 
 was intended to go in a different channel, although 
 there is no declaration, or no sufficient declaration, 
 as to what that channel should be. In this case 
 a trust is implied for the real owner, termed a 
 resulting trust, or trust by operation of law. And 
 such a trust, although relating to real estate, is 
 exempted by a proviso in the Statute of Frauds 
 from the necessity of being declared or evidenced ia 
 writing. The enactment is, that " where any con- 
 P^ veyance shall be made of any lands or *tene- 
 '- -' ments by which a trust or confidence shall or 
 may arise or result by implication or construction of 
 law, or be transferred or extinguished by act or 
 operation of law, then and in every such case such 
 trust or confidence shall be of the like force and 
 effect as the same would have been if this statute 
 had not been made.(g')^ 
 
 (jf) 29 Car. 2, c. 3, s. 8. 
 
 ■ Of Resulting Trusts. — It is a general principle that when a 
 purchase is made in the name of one person, and the purchase 
 money is paid by another, there is a resulting trust in favour of 
 him who made the payment : McGuire v. McGowen, 4 Deseau, 
 486 ; Perry v. Head, 1 A. K. Marsh, 47 ; Letcher v. Letcher's 
 heirs, 4 J. J. Marsh, 592 ; Elliott v. Armstrong, 2 Blackf 198 ; 
 Jenison v. Grraves, 2 Blackf. 440; Doyle v. Sleeper, 1 Dana, 536; 
 Boyd V. McLean, 1 Johns. C. E. 582 ; Bottsford v. Burr, 2 Johns. 
 C. K. 409 ; Prevo v. Walters et al., 4 Scam. 35 ; Powell v. Poyell, 
 1 Freeman's Ch. 134 ; Taliaferro v. Taliaferro, 6 Ala. 404; Foster 
 V. Trustees of the Athenaeum, 3 Ala. 302 ; Dorsey et al, v. Clarke 
 et al., 4 Har. & J. 551 ; Bk. of United States v. Carrington et al., 
 7 Leigh, 566 ; Depeyster et al. v. Gould et al., 2 Green Ch. 474; 
 Pinney et al. v. W. & C. Fellows, 15 Vermont, 525 ; Page v. 
 Page, 8 N. H. 187. See also, Getman v. A. & C. Getman, 1 Barb. 
 Ch. Rep. 499; Prevost v. Gratz, Peters C. C. Rep. 364; Id. 6 
 Wheaton, 481; Clark v. Burnham, 2 Story Rep. 12; Lessee of 
 Huston V. Hamilton, 2 Binn. 387 ; Sidle v. Walter, 5 Watts, 389; 
 
ORDINARY AND CHARITABLE TRUSTS. 139 
 
 Eesulting trusts of the first class, viz., those where 
 the intention to sever the legal and equitable owner- 
 
 and the remarks of Mr. Justice Gribson upon the nature of result- 
 ing trusts, in Wallace v. Duffield, 2 S. & E. 529. 
 
 A resulting trust is not within the Statute of Frauds, and may 
 be proved by parol evidence ; Elliott v. Armstrong, 2 Blackf. 198, 
 441 ; Pugh's heirs v. Bell's heirs, 1 J. J. Marsh, 403 ; Stark's 
 heirs v. Cannady, 3 Litt. 399 ; Depeyster et al. v. Gould et al., 2 
 Green, Ch., 474; Page v. Page, 8 N. H. 187; Dismukes v. Tevy, 
 Walker, 197 ; Blair v. Bass, 4 Blackf. 539 ; Snelling v. Uter- 
 back, 1 Bibb, 609 ; Larkins v. Rhodes, 5 Porter, 195 ; Peebles v. 
 Rea'ding, 8 S. & R. 484 ; Botsford v. Burr, 2 Johns. C. E. 405 ; 
 it cannot be raised against the intention of the parties ; White v 
 Carpenter, 2 Paige, 217 ; and it seems must be positively alleged 
 and indisputably proved ; Hickey v. Young, 1 J. J. Marsh, 3 ; 
 Slocum & wife v. Marshall et al., 2 W. C. C. R. 397; Peebles 
 V. Reading, 8 S. & R. 492. 
 
 Lands purchased by the husband with the separate money of 
 his wife in his own name, enure to the benefit of the wife as a 
 resulting trust, and he must account for the rents and profits ; 
 Methodist Episcopal Church v. Jaques, 1 John. C. R. 450. A 
 Court of Chancery will also relieve against a fraud, by convetting 
 the person guilty of it into a trustee for those who have been 
 injured thereby ; Brown v. Lynch, 1 Paige, 147 ; Robertson v. 
 Robertson, 9 Watts, 86; Haines v. O'Connor, 10 Id. 313. See 
 Perkins v. Hays, 1 Cooke, 166 ; and an heir-at-law will be con- 
 sidered a trustee, where it becomes necessary to carry the inten- 
 tion into effect; Rogers v. Ross, 4 John. C. R. 388. So a result- 
 ing trust will arise, where the lands have been purchased by one 
 partner, and paid out of the funds of the partnership ; Phillips v. 
 Crammond, 2 Wash. C. C. 441. 
 
 In New York, where real estate is purchased by one person 
 with the moneys of another, and a conveyance is taken in his own 
 name, with the consent of the owner of the fund, there is no 
 resulting trust in favour of the latter under the revised statutes ; 
 Norton v. Stone, 8 Paige, 222. 
 
 The proof of a trust lies on the party who alleges it ; Prevost v. 
 Gratz, 1 P. C. C. 366. How resulting and implied trusts may be 
 created, see Thompson v. Branch, 1 Meigs Rep. 390, 393. 
 
140 Adams's doctrine of equity. 
 
 ship is apparent, either directly or indirectly, from 
 the language of the gift, occur for the most part in 
 dispositions by will. They are not necessarily 
 restricted to such dispositions ; for whenever, in any 
 conveyance or disposition of property, it is apparent 
 that any beneficial interest was not intended to 
 accompany the legal ownership, but no other suffi- 
 cient and effectual gift of it has been made, it will 
 result back to the original owner. But in gifts by 
 deeds, which are generally made with full delibera- 
 tion and under professional advice, this circumstance 
 does not often occur. In gifts by will it is not 
 unfrequent. 
 
 In gifts of this class, the bequest of the beneficial 
 interestis sometimes intentionally deferred; as where 
 property is devised to a trustee " upon trusts to be 
 declared by a subsequent codicil," and no such de- 
 claration is made ; sometimes a trust is declared, but 
 lapses by the death of the beneficial donee, or is in- 
 validated by its uncertainty, by its illegal character, 
 or by the refusal of the donee to accept the benefit; 
 and sometimes a partial trust is declared, e. g. for 
 payment of debts, which does not exhaust the whole 
 estate, and the surplus is left without any express 
 disposition. In this latter instance, it may appear 
 by the context of the will, or by the aid of parol 
 evidence, that the devisee was intended to take the 
 surplus ; but the primd facie inference is, that the 
 creation of the partial trust was the sole object, and 
 that the equitable interest undisposed of is in the 
 nature of a resulting trust. 
 
 r*331 *^" ^^^ ^^^^^ ^^ *^^® ^md, the rule of law is 
 that the beneficial interest undisposed of results 
 
ORDINARY AND CHARITABLE TRUSTS. 141 
 
 back to the original owner, or to his representatives 
 real or personal, according to the nature of the pro- 
 perty. 
 
 If, for example, a testator devises land for purposes 
 altogether illegal, or which altogether fail, the heir- 
 at-law takes it as undisposed of. If the purposes 
 are partially illegal, or partially fail, or if they re- 
 quire the application of a part only of the land de- 
 vised, the heir takes so much of the land or of its 
 produce as was destined for the ineffective purpose, 
 or so much as is not required for the purposes of the 
 will. And e converso, if there be a bequest of personal 
 property for purposes which are altogether or par- 
 tially illegal, or which altogether or partially fail, 
 the next of kin are entitled to it, or to so much of 
 it as cannot or need not be applied to the purposes 
 of the" will. (A) 
 
 Kesulting trusts of the second class, viz., where the 
 intention to sever the legal and equitable ownership 
 is apparent from the attendant circumstances, occur 
 where an estate has been purchased in the name of 
 one person, and the purchase-money or consideration 
 has proceeded from another. In this case the pre- 
 sumption of law is, that the party paying for the 
 estate intended it for his own benefit, and that the 
 nominal purchaser is a mere trustee. 
 
 Qi) Collins V. Wakeman, 2 Ves. J. 683 j Muckleston v. Brown, 
 6 Ves. 52 ; Fowler v. Garlike, 1 K. & M. 232 ; Ackroyd v. Smith- 
 son, 1 B. C. C. 503 ; King v. Deoison, 1 Ves. & B. 260 ; Tregon- 
 well V. Sydenham, 3 Dow. 194 ; Sydney v. Shelley, 19 Ves. 352 ; 
 Cogan V. Stephens, Lewin on Trustees, Appendix vii. ; 1 Jarm. on 
 Wills, c. xviii. ; Cook v. Hutchinson, 1 Keen, 42, 50 ; Infra, Con- 
 version. 
 
142 Adams's doctrine of equity. 
 
 This presumption exists in all cases where the con- 
 veyance of a legal estate is made to one who has not 
 really advanced the price. And it is equally appli- 
 cable whether such conveyance be in the name of a 
 stranger only, without mention of the actual pur- 
 chaser, or in the joint names of a stranger and the 
 purchaser himself; whether the estate be originally 
 r^oAi conveyed to one purchaser out of many, or *be- 
 come ultimately vested in one as the survivor, 
 under an assurance which has created a legal joint 
 tenancy : or whether, in the case of several nominal 
 purchasers, an immediate joint estate be given to all, 
 or the grant be to take successively one after another. 
 Whatever be the peculiar form in which the assu- 
 rance is made, it does not affect the presumption, 
 that an estate or share of an estate, vested in a man 
 who did not pay its price, was not intended by way of 
 beneficial ownership ; and therefore, in all those cases 
 alike, if there be no evidence of an opposite intention, 
 the trust of such legal estate will result to the par- 
 ties who have advanced the purchase-money, in pro- 
 portion to the amount of their respective advances. 
 And as trusts of this kind are expressly exempted 
 from the Statute of Frauds, it is competent for the 
 real purchaser to prove his payment of the purchase- 
 money by parol evidence, even though it be other- 
 wise expressed in the. deed. 
 
 The doctrine however is merely one of presump- 
 tive evidence. It is not a rule of law that a trust must 
 be intended on such a purchase, but it is a reasonable 
 presumption, as a matter of evidence, in the absence 
 of proof to the contrary. It is therefore open to the 
 nominal purchaser to rebut that presumption by 
 
ORDINAET AND CHARITABLE TRUSTS. 143 
 
 direct or circumstantial evidence to the contrary. 
 He may, for instance, show that it was intended to 
 give him the beneficial interest, either altogether or 
 in part ; that the purchase-money was advanced by 
 way of loan to himself, and that the party advancing 
 it intended to become his creditor, and not the equi- 
 table owner of the estate ; or that the purchase- 
 money, on a conveyance in joint tenancy, was ad- 
 vanced by the several purchasers in equal shares, so 
 that there is no improbability of an estate in joint 
 tenancy having been really contemplated, with equal 
 chance of survivorship to all. In this manner a 
 counter presumption may be raised in opposition to 
 the original one ; and this again in its turn may be 
 met by other evidence of an opposite intention. 
 Lastly, the evidence which is thus brought forward 
 on either side may be derived either from contempo- 
 raneous declarations *or other direct proof of r^oc-i 
 intention, or from the circumstances under 
 which the transaction took place, or from the subse- 
 quent mode of treating the estate and the length of 
 time during which a particular mode of dealing with 
 it has been adopted on all sides. (*') 
 
 The most important class of cases in which, as 
 an ordinary rule, this counter presumption arises, 
 are those where a purchase has been made in the 
 name of a child, or of one towards whom the 
 party paying the money has placed himself in loco 
 farentis. The general principle on which this 
 
 (0 3 Sug. V. & P. 275; Lloyd v. Spillets, 2 Atk. 150; Dyer 
 V. Dyer, 2 Cox, 92; Rider v. Kidder, 10 Ves. 360; Aveling v. 
 Knipe, 19 Ves. 441 ; Wray v. Steele, 2 Ves. & B. 388 ; Vickers v. 
 Cowell, 1 Bea. 529. 
 
144 Adams's doctrine of equity. 
 
 counter presumption proceeds is that, inasmuch as it 
 is a father's duty to provide for his child, it is not 
 improbable that he may make the provision by 
 giving the child an estate, or by purchasing one for 
 him and in his name. And therefore, if he does 
 make a purchase in the child's name, the pri/md fade 
 probability is that he intended it as a provision or 
 advancement. The doctrine on this point will be 
 hereafter separately considered under the head of 
 meritorious consideration. 
 
 In accordance with the same principle it is held 
 that if land is acquired as the substratum of a part- 
 nership, or is brought into and used by the partner- 
 ship for partnership purposes, there will be a trust 
 by operation of law for the partnership, as tenants in 
 common, although a trust may not have been de- 
 clared in writing, and the ownership may not be 
 apparently in all the members of the firm, or if in 
 all, may apparently be in them, not as partners but 
 as joint tenants. (^•) 
 
 Another class of cases in which the circumstances 
 give rise to the presumption of a resulting trust, are 
 where a man, whose duty it was to create a trust, 
 has done an ambiguous act, and the Court construes 
 such act as having been done in accordance with 
 that duty. 
 
 r*361 *^^ therefore a man is a trustee of certain 
 funds for investment in land, or has bound 
 himself by covenant to lay out money on land, and 
 he purchases an estate at a corresponding price, it 
 will be presumed, independently of positive evidence, 
 
 {k) Dale V. Hamilton, 5 Hare, 369, 382 ; 2 Ph. 266. 
 
ORDINARY AND CHARITABLE TRUSTS. 145 
 
 that his object in the investment was to effectuate 
 the trust ; and a trust may be implied accordingly. 
 But it will be observed that this is not as a hostile 
 or compulsory decree, but on the supposition that 
 such a result was really contemplated ; and therefore 
 if the contrary be proved, as by showing that the 
 purchase was made under a mistaken opinion of the 
 trust, the presumption cannot be raised. It is other- 
 wise if the covenant be to settle such land as the 
 covenantor may have on a specified day, or to pur- 
 chase a specific estate, which he afterwards acquires; 
 for in these cases the trust attaches by virtue of the 
 covenant, independently of any intention in the party 
 bound. (Z) 
 
 The second requisite to the creation of a trust is 
 that the ownership be accepted on the proposed 
 terms. The effect however of non-acceptance is not 
 to invalidate the beneficial gift, but merely to free 
 the non-accepting party from the liability to act. It 
 is a settled principle in equity that a trust shall not 
 fail for want of a trustee ; and, therefore, whether a 
 trustee has been named, who afterwards refuses the 
 trust ; whether, as is often the case in wills, no trus- 
 tee be named, or it is doubtful who is the proper 
 trustee ; or whether, from any other cause, there 'be 
 a failure of a regularly appointed trustee ; the Court 
 of Chancery will see to the execution of the trust. 
 It will ascertain in whom the legal ownership is 
 vested, and will declare him a trustee for the pur- 
 poses of the gift, or will nominate, if required, a 
 
 (J) Tooke V. Hastings, 2 Vern. 97; Deacon v. Smith, 3 Atk. 
 323 ; Perry v. Phillips, 4 Ves. 108 ; Wellesley v. Wellesley, 10 
 Sim. 256; 4 M. & C. 561. 
 
 10 
 
146 Adams's doctrine of equity. 
 
 trustee of its own, to whom the estate may be con- 
 veyed. And it is provided by a late statute that, if 
 a trustee be a lunatic or infant, or if he be out of 
 the jurisdiction of the Court, or if it be uncertain 
 r*^71 (*^^6re there were several trustees) which 
 was the survivor, or uncertain whether the 
 trustee last known to have been seised, is living or 
 dead, or, if dead, who is his heir, or if he refuse to 
 convey when required, the Lord Chancellor, in the 
 case of lunacy, and the Court of Chancery, in the 
 ■other cases, may substitute some person to make the 
 conveyance, (m) ' 
 
 (m) 11 Geo. 4, and 1 Wm. 4, c. 60. 
 
 ' Maccubbin v. Cromwell, 7 Grill. & J. 157. No formal accep- 
 tance on the part of the trustee is necessary to pass the title ; such 
 <ieed recorded prevents the operation of the statute of frauds upon 
 the subsequent possession of the cestui que trust, and protects the 
 interest of the children of the cestui que trust from a sale made 
 by him ; the children also being cestui que trusts in the same 
 deed. Bixler v. Taylor, 3 B. Monr. 362 ; Penny v. Davis, Id. 
 313. A trustee cannot defeat a trust-deed by refusing to accept 
 the trust ; and a court, if necessary, will appoint a trustee in his 
 place. Dawson v. Dawson, Rice Ch. 248 ; Field v. Arrowsmith 
 et al., 3 Humph. 442. And a trust will not be permitted to fail 
 for want of a 'trustee. Peter v. Beverly, 10 Pet. 534 ; Conway, 
 ex parte, 4 Ark. Rep. 302. And where one of several trustees 
 refuses to accept the trust, it devolves upon the others, and the 
 whole trust estate vests in them ; but if all refuse, though the 
 legal estate nominally vests in the trustees, the execution of the 
 trust devolves upon the court, and new trustees may be appointed 
 if necessary. King v. Donnelly, 5 Paige, C. R. 46. See, on the 
 power of a Court of Chancery to appoint trustees, Hawley v. 
 James, 5 Paige C. R. 318 ; De Peyster v. Clendining, 8 Paige C 
 R. 295 ; Dunscomb v. Dunscomb, 2 Hen. & M. 11 ; Conway, ex 
 parte,4Ark Rep.302. And it seems the court will demand security 
 if there are infant beneficiaries. In the matter of Joshua Jones, 
 
ORDINARY AND CHARITABLE TRUSTS. 147 
 
 If, however, there is not merely a faihire of the 
 specific trustee, but the estate derived from the donor 
 is at an end, and there is an owner holding by a 
 paramount or adverse title, the trust ceases to bind. 
 It is binding on the trustee himself if he accept it, 
 and on any person claiming through or under him, 
 except as purchaser for value without notice of the 
 trust. And, if he do not accept it, it is in like man- 
 ner binding on those who take in his stead under the 
 donor. But it is not binding on an adverse claimant 
 making title by a bond fide disseisin of the trustee ; 
 nor was it, until a late statute, binding on the lord 
 entitled by forfeiture or escheat. The privilege of 
 the lord by escheat is now excluded by statute ; and 
 the Court is enabled to appoint new trustees, and to 
 direct a conveyance by substitution to them, when 
 a trustee dies without an heir, in like manner as 
 when his heir is uncertain, (w) 
 
 The acceptance of a trustee may be direct by exe- 
 cution of the trust deed, or by a statement that he 
 accepts the trust ; or it may be implied from any act 
 which shows an intention on his part to deal with 
 the property, and to act in the execution of the du- 
 ties imposed, (o) And in like manner his renuncia- 
 tion may be evidenced by his conduct, without an 
 express declaration to that effect. But the more 
 
 (n) Gilbert on Uses, by Sug. 429 ; Burgess v. Wheate, 1 Eden, 
 177; Attorney-General v. Duke of Leeds, 2 M. & K. 343 ; 4 & 5 
 Wm. 4, c. 23, ss. 2 and 3. 
 
 (o) Urch V. Walker, 3 M. &' C. 702 ; Kirwan v. Daniel, 5 
 Hare, 493. 
 
 Trustee, 4 Sandf. Ch. Rep. 615 ; In the matter of Stuyvesant, 3 
 Edw. Ch. Eep. 299. 
 
148 Adams's doctrine of equity. 
 
 prudent course is to execute a deed of disclaimer. (j») 
 If, instead of a formal disclaimer, lie execute an im- 
 mediate release to his co-trustees for the mere pur- 
 r*9QT pose of disclaiming, *it seems doubtful whether 
 such a release, although technically a dealing 
 with the property, would be treated as an acceptance 
 of the trust, {q) If the legal ownership has become 
 vested in him, so that he cannot get rid of it by mere 
 disclaimer, e. g., on a descent to him as heir, he must 
 convey to a new trustee under the sanction of the 
 Court, but is not bound to do any further act. 
 
 A trustee after acceptance cannot divest himself 
 of his trust except in three ways : viz., 1. By assent 
 of all his cestuis que trust ; 2. By means of some spe- 
 cial power in the instrument creating the trust ; and 
 3. By an application to the Court of Chancery.^ 
 
 If all the cestuis que trust are of full age and free 
 from disability, there is no difficulty on the subject; 
 for' their sanction will necessarily secure the trustee. 
 But if there are infants or femes covert interested, or 
 if there is a trust for children not in esse, or if for 
 any other reason the sanction of all cannot be ob- 
 
 (jp) Stacy V. Elph, 1 M. & K. 195. 
 
 {q) Nicolson V. "Wordsworth, 2' Swanst. 365 ; Uroh v. Walker, 
 3 M. & C. 702. 
 
 ' A trustee after he has accepted a trust cannot discharge him- 
 self from liability by resignation merely, he must be discharged 
 in one of the three methods named in the text. Cruger & others 
 V. Halliday's adm'x, 11 Paige, 314; Jones v. Stockett, 2 Bland, 
 409 ; Shepherd v. McEvers, 4 Johns. C. R. 136. 
 
 It is proper in this connexion to add, that Courts of Equity 
 will, in cases of fraud, negligence, incapacity to act, and breach of 
 trust, remove the trustee. Chambers et al. v. Mauldin et al., 4 
 Ala. 477; Thompson v. Thompson, 2 B. Monr. 161. 
 
ORDINARY AND CHARITABLE TRUSTS. 149 
 
 tained, then the mere act of transfer would be a 
 breach of trust ; and therefore the trustee cannot by 
 his own act relinquish his office, but would incur an 
 additional liability for any misconduct on the part of 
 his transferee. In order to meet this inconvenience 
 it is usual in all settlements, the trusts of which are 
 likely to last for any length of time, to introduce a 
 clause, authorizing the retirement of existing trustees 
 and the nomination of new ones, with such pro- 
 visions against misuse of the authority as may be 
 considered expedient. If no such authority be given, 
 or if the trustee is unwilling to exercise it, he can 
 only be denuded of his office by a decree in equity. 
 If he has a sufficient ground for retiring, the costs of 
 a suit for that purpose will be paid out of the estate ; 
 as for instance, if he becomes involved in complicated 
 questions, which could not have been anticipated 
 when he undertook the trust ; but he cannot burden 
 the estate with costs occasioned by a capricious 
 abandonment *of his charge. (r) After a bill r^oq-i 
 has been filed for the appointment of new 
 trustees, it is improper, though not absolutely in- 
 competent, for the original trustees to make an ap- 
 pointment without authority from the Court, not- 
 withstanding there may be a power of appointment 
 in the deed of trust ; nor will the existence of such 
 a power induce the Court to appoint new trustees on 
 the nomination of the old ones, without inquiry as 
 to the fitness of the parties nominated, (s) In some 
 
 (r) Coventry v. Coventry, 1 Keen, 758 ; Greenwood v. Wake- 
 ford, 1 Bea. 576. 
 
 (s) Attorney-G-eneral v. Clack, Bea. 467 ; Cafe v. Bent, 3 Hare, 
 245; V. Robarts, IJ. & W. 251. 
 
150 Adams's doctrine of equity. 
 
 decrees appointing new trustees, a power for such 
 new trustees to supply future vacancies without a 
 fresh, application to the Court has been inserted, but 
 the admissibility of such a power, except under spe- 
 cial circumstances, appears to be doubtful, (i) 
 
 Where a conveyance by substitution under the 
 statute is requisite, an appointment of new trustees 
 may be made summarily on petition without bill. 
 But this authority is confined to cases of substituted 
 conveyance, and does not apply generally to the ap- 
 pointment of new trustees, (if) 
 
 A trustee of stock or money is now enabled to get 
 rid of his trust by payment or transfer to the Ac- 
 countant-General, without the necessity of filing a 
 bill. For this purpose it is enacted, thai all trustees, 
 executors, administrators, or other persons, holding 
 moneys, stock, or government or parliamentary se- 
 curities, belonging to any trust, or the major part, 
 may pay, transfer, or deposit them into or in the 
 name of the Accountant-General,.on filing an afiida- 
 vit shortly describing the instrument creating the 
 trust 5 and that the application of the fund shall 
 be afterwards regulated by the Court on petition. (■«) 
 
 So soon as the creation and acceptance of a trust 
 are perfected, the property which it affects is sub- 
 r*40T j^ctsd, as we *have seen, to a double owner- 
 ship ; an equitable ownership in the cestui que 
 trust, and a legal ownership in the trustee. 
 
 The equitable ownership or interest of the cestui 
 
 (0 White V. White, 5 Bea. 221 ; Bowles v. Weeks, 14 Sim. 591. 
 («) 1 Wm. 4, c. 60. (d) 10 & 11 Vict. c. 96. 
 
ORDINARY AND CHARITABLE TRUSTS. 151 
 
 que trust is in strictness a mere chose in action, or 
 right to sue a subpoena against the trustee. But it 
 is considered in equity the estate itself; and is gene- 
 rally regulated by principles corresponding with 
 those which apply to an estate at law. The terms in 
 which it is declared are interpreted by the same 
 rules ; it is subject to the same restraints of policy, 
 and is governed by the same laws of devolution and 
 transfer. The analogy however is not free from ex- 
 ception ; and the character of the exceptions which 
 exist, together with the general operation of the rule 
 will now form the subject of consideration. 
 
 1. The terms in which a trust is declared are in- 
 terpreted by the ordinary rules of law.^ 
 
 It was at one time suggested, that the language of 
 a trust might be construed with greater license than 
 that of a gift at law. But this notion is now at an 
 end. And it is clear that the declaration of an exe- 
 cuted trust, i. e., a trust of which the scheme has in 
 the outset been completely declared, will bear exactly 
 the same construction as if it had been a conveyance 
 of the legal estate. If the scheme has been imper- 
 fectly declared in the outset, and the creator of the 
 trust has merely denoted his ultimate object, impos- 
 ing on the trustee or on the Court the duty of effectu- 
 ating it in the most convenient way, the trust is call- 
 
 • Equity subjects trusts to the same construction that a Court 
 of Law does legal estates ; and a donee must have capacity to take 
 whether it is attempted to convey title directly to the party him- 
 self, or to another in trust for him j Trotter v. Blocker, 6 Porter, 
 269 ; unless the testator plainly intends the contrary ; Gudworth v. 
 Hall's adm'r, 3 Desau, 256. 
 
152 ADAMS'S DOCTRINE OF EQUITT. 
 
 ed executory, and is construed by a less stringent 
 rule.' 
 
 The reason of this apparent exception is obvious, 
 for the very existence of a requirement to devise 
 means for effectuating the trust, proves that the lan- 
 guage already used is not meant as a conclusive de- 
 claration of its terms. And such language is accord- 
 ingly treated by the Court as indicating the mere 
 heads of an arrangement, the details of which must 
 be ascertained from general usage. 
 
 If, for example, an executed trust be declared in 
 P^ i -■ -| favour *of one for life, with remainder to his 
 issue, subject to a proviso that he shall not bar 
 the entail, the first taker will be tenant in tail under 
 the rule in Shelley's case, and the proviso will be void 
 as inconsistent with his estate. But if the trust were 
 executory, a similar direction would be held to sig- 
 nify that the estate should go as nearly as possible 
 in the line of an entail, without giving the first taker 
 a power to alienate, and would be effectuated by di- 
 recting a strict settlement, i. e., aa estate to himself 
 for life, with a limitation to trustees to preserve con- 
 tingent remainders, with remainder to his sons suc- 
 cessively in tail. 
 
 In the case of executory marriage articles, there 
 is an indication furnished by the nature of the in- 
 strument, independently of any expressed intention 
 leading to this construction of the trust; for it is 
 
 * The Court will supply words of intention, in cases of executory 
 trust estates. A marked distinction exists between legal devises 
 and trusts ; the latter are rights arising solely out of the intent of 
 the party who created them, and therefore such intent is the only 
 guide j Brailsford v. Heyward, 2 Desau, 292. 
 
ORDINARY AND CHARITABLE TRUSTS. 153 
 
 assumed, in accordance with ordinary practice, and 
 in the absence of reason, to conclude the contrary, 
 that the settlement contemplated by such articles is 
 one which will not only provide for the husband 
 and wife, but will also secure a provision for the 
 children of the marriage. If therefore the articles, 
 strictly interpreted, would have a different result, 
 they will be moulded in conformity with the pre- 
 sume dobject. In the case of wills, on the other hand, 
 there is no such. primd fade indication of intent. The 
 gifts in a will are mere bounty, and are themselves 
 the only guide in the construction of their terms. If 
 therefore technical words are used, and are not modi- 
 fied or explained by the context, it seems that the 
 trusts, whether executory or not, must be construed 
 in accordance with the technical sense. But in the 
 case of an executory trust, the intention so to modify 
 them may be collected from slighter indications than 
 would be sufficient in that of an executed one ; e. g., 
 in case of an executory trust to make an entail, the 
 Court would be enabled to direct a strict settlement 
 of the estate upon the intention gathered, and from 
 an express limitation to the first taker for life, though 
 followed by a remainder to the heirs of *his r^^o-i 
 body (especially if the gift for life be made 
 in terras unimpeachable of waste) ; or from a limita- 
 tion to preserve contingent remainders ; or a limita- 
 tion of the remainder to issue instead of heirs; 
 although clauses of this kind would be ineffectual to 
 vary an executed trust, if its terms would in them- 
 selves create an entail, (w) 
 
 (vi) Austen v. Taylor, 1 Eden, 361 ; Blackburn v. Stables, 2 
 Ves. & B. 367 ; Jervoise v. Duke of Nortbumberland, 1 J. & W. 
 
154 Adams's doctrine of equity. 
 
 In cases where marriage articles, after limiting a 
 freehold estate in strict settlement, have directed that 
 leaseholds shall be settled on analogous trusts, or that 
 pictures or other personal chattels shall be settled to 
 go as heir-looms with the estate, a question has arisen 
 as to the correct frame of the settlement. The effect 
 of a settlement of personal chattels on limitations 
 identical with those of the freehold estate, would be, 
 that the leaseholds or other personalty, being incapa- 
 ble of entail, would vest absolutely in the first tenant 
 in tail ; and on his death would go to his executor. 
 This inconvenience, however, may be to some extent 
 obviated during the period within the limits of per- 
 petuity, viz., a life in being, and twenty-one years 
 afterwards, by directing that on the death of a tenant 
 in tail, without issue, the personalty shall go by way 
 of executory gift to the party next entitled under the 
 settlement ; and it seems that articles directing such 
 a settlement are to be construed to imply such an 
 executory gift on death, under twenty-one and with- 
 out issue, (cc) 
 
 2. The equitable ownership is subjected to the 
 same restraints of policy as if the legal estate were 
 transferred. 
 
 It cannot, for example, in the case of real estate, 
 be enjoyed by an alien •,{y) it cannot be made inca- 
 pable of alienation by the owner, or be denuded of 
 
 559 ; Eochford v. Fitzmaurice, 1 Conn. & L. 158 ; 2 Jarm. on 
 Wills, 253-266 ; Lewin on Trustees, 4-561. 
 • (x) Duke of Newcastle v. Countess of Lincoln, 3 Ves. 387 ; 
 12 Ves. 218 ; Lord Deerhurst v. Duke of St. Albans, 5 Madd. 
 282. 
 
 (y) Du' Howemelin v. Sheldon, 1 Bea. 79 ; 4 M. & C. 525. 
 
ORDINARY AND CHARITABLE TRUSTS. 155 
 
 any other right incidental to ownership ;(z) nor can 
 it be settled in a *series of limitations extend- r*43-| 
 ing, or which may extend, beyond the limit 
 of perpetuity ; viz., a life or lives in being, and 
 twenty-one years afterwards, (a) and in the particular 
 case of trusts for accumulation, the period of dura- 
 tion is still more narrowly limited ; and it is enacted, 
 that no such accumulation shall be allowed for a 
 longer term than the life of the grantor, or twenty- 
 one years from the death of the grantor or testator, 
 or the minority of some person living or in ventre sa 
 mere at his death, or during the minority only of such 
 person as would for the time being, if of full age, be 
 entitled to the rents and profits. This restriction, 
 however, does not extend to any provision for pay- 
 ment of debts, or for raising portions for children, or 
 to any directions touching the preservance of woods 
 or timber. (6)' 
 
 The rule, however, which subjects equitable estates 
 to the same restraints of policy as if they were legal, 
 admits of two singular exceptions, both having refe- 
 rence to married women ; the one in what are called 
 the separate use and pin-money trusts, enabling a 
 married woman to hold property independent of her 
 husband, and allowing such property to be made in- 
 alienable ; the other in what is called the wife's equity 
 for a settlement, restraining the husband's right over 
 
 (z) Brandon v. Kobinson, 18 Ves. 429. 
 (a) 1 Jarm. on Wills, c. ix., s. 2. 
 
 (h) Thelluson V. Woodford, 4 Ves. 227; 11 Ves. 112 ; 39 and 
 40 Geo. 3, c. 98 ; 1 Jarm. on Wills, c. ix., s. 3. 
 
 ' See ante, note 1 to page 40 ; and see the subject of perpetui- 
 ties, discussed in Lorillard v. Coster, 5 Paige C. R. 172. 
 
156 Adams's doctrine of equitt. 
 
 her equitable chattels real and choses in action, until 
 an adequate settlement has been made.^ 
 
 The effect of the separate use trust is to enable a 
 married woman, in direct contravention of the prin- 
 ciples of law, to acquire property independently of 
 her husband ; and to enter into contracts, and incur 
 liabilities in reference to such property, and dispose 
 of it as a feme sole, notwithstanding her coverture 
 
 * A secret settlement by a woman, on the eve of her marriage, 
 and in contemplation of that event, has been decided to be fraudu- 
 lent and void against the husband; 4 W. C. C. 224. 
 
 And a marriage settlement made after marriage, in pursuance of 
 articles entered into he/ore marriage, 'is controlled by the articles ; 
 Stubbs V. Whiting, 1 Eandolph, 322 ; though if made in pursu- 
 ance of a parol agreement, entered into before marriage, it will be 
 void as against creditors ; Reade v. Livingston, 3 Johns. C. R. 
 488. See also on this subject, Argenbright v. Campbell and wife, 
 3 Hen. & Munf 144; Shobe v. Carr, 3 Munf. 10 ; Smith v. Max- 
 well's Ex'rs, 1 Hill, 103 ; Koonce v. Bryan, 1 Dev. & Batt. 227. 
 And equity will enforce a post-nuptial settlement made in pursu- 
 ance of a parol ante-nuptial agreement ; Satterthwaite v. Emley, 
 3 Green C. R. 489. 
 
 Voluntary settlements made after marriage, though not good 
 against prior creditors, are good as between the parties ; Threewits 
 V. Threewits, 4 Desau, 560 ; see Croft v. Administrators of Town- 
 send, 3 Desau, 223 ; though if made by a person not indebted at 
 the time, is valid as against subsequent creditors; Sexton v. Whea- 
 ton, 8 Wheat. 229. 
 
 And a post-nuptial agreement, made upon sufficient considera- 
 tion between husband and wife, will be enforced in equity ; Diles 
 V. Fleming, 1 Dev. Eq. 185. So a wife, by property of her own, 
 may become a purchaser from the husband, so as to support a post- 
 nuptial settlement; Wickes v. Clark, 3 Edw. Ch. Rep. 58. 
 
 It has been said by Ch. J. Shippen, that the law respecting 
 marriage settlements is the same in Pennsylvania as in England. 
 It requires fair notice and valuable consideration ; Rundle v. Mur- 
 gatroyd's Assignees, 4 Dallas, 304. 
 
ORDIKART AND CHARITABLE TRUSTS. 157 
 
 and disability at law. When this object had been 
 effected, it was found that the influence of the hus- 
 band in inducing his wife to alienate, rendered the 
 trust in practice nugatory ; and, to obviate this diffi- 
 culty, *and secure to her the desired protection r^AA.-] 
 against the marital rights, another principle 
 was infringed, by deciding that the gift of the sepa- 
 rate estate, whether for life or for an absolute interest, 
 might be fettered and qualified by prohibiting anti- 
 cipation or alienation, (c) The question then arose, 
 whether the operation of such a clause was confined 
 to an existing coverture, or might be extended to 
 take effect on a future marriage. It was admitted, 
 that during discoverture the clause was void, and 
 that the ownership was absolute up to the moment 
 of marriage ; and it might therefore have been ex- 
 pected that, by the act of marriage, the usual interest 
 would be conferred on the husband. A contrary de- 
 cision, however, was not a greater violation of prin- 
 ciple than that which originally gave validity to the 
 trust. The trust is founded on the power of the 
 Court of equity to model and qualify an interest in 
 property which it had itself created, without regard 
 to those rules by which the law regulates the enjoy- 
 ment of property in other cases. And in accordance 
 with this view, it was decided that, although the pro- 
 hibitory clause is nugatory whilst the discoverture 
 lasts, yet if the property be not disposed of during 
 that period, the prohibition will attach immediately 
 on the second marriage, (d) At this point, however, 
 a line has been drawn ; and the separate use trust is 
 
 (c) Baggett V. Meux, 1 Coll. 138 ; 1 Ph. 627. 
 
 (d) Tullett V. Armstrong, 1 Bea. 1 ; 4 M. & C. 377. 
 
158 Adams's doctrine of equity. 
 
 so far bound by the policy of the law, that it must 
 contemplate the wife's continuance with her husband. 
 If it be framed with a view to future separation, it 
 violates principle beyond the authorized limit, and is 
 for that reason invalid. A deed, however, which 
 contemplates an immediate separation, and makes a 
 separate provision for the wife, with a view to that 
 object, may be sustained and enforced, notwithstand- 
 ing that its primary object — the separation itself— 
 is incapable of enforcement by either party. But 
 such a provision is upheld on the ground of its legal 
 validity, and not on the footing of a separate trust. 
 rt.Aer\ The consistency of the doctrine *which thus 
 invalidates the primary object of a deed, but 
 gives effect to a collateral one, was doubted by Lord 
 Eldon, but he felt himself bound by the decisions at 
 law. If after a provision has been made for an im- 
 mediate separation, the parties come together again, 
 its operation is at an end with respect to any future, 
 as well as the past, separation, (e)^ 
 
 The language which will create a separate trust, 
 as well as that which will impose a fetter on antici- 
 
 (e) Lord St. John v. Lady St. John, 11 Ves. 537 ; Westmeath 
 V. Salisbury, 5 Bligh, 339 ; Frampton v. Frampton, 4 Bea. 287 ; 
 Jodrell V. Jodrell, 9 Bea. 45. 
 
 * A contract between husband and wife for immediate separa- 
 tion, and for a separate allowance to the wife, made through the 
 intervention of a trustee, is valid ; Carson v. Murray, 3 Paige C. 
 R. 483 ; and where a reservation of a right to visit each other in 
 case of sickness, was made in the deed, but never acted on, this 
 reservation was held not to invalidate the agreement ; Id. But 
 see Rogers v. Rogers, 4 Paige C. R. 516 ; Wallingsford v. Wal- 
 lingsford, 6 Har. & J. 485 ; McKennan v. Phillips, 6 Wharton, 
 571 ; McCrocklin v. McCrocklin, 2 B. Monr. 370. 
 
ORDINARY AND CHARITABLE TRUSTS. 159 
 
 pation, has been the subject of nice distinctions. It 
 is not sufficient that there be a gift for the wife's 
 benefit, or a direction to pay the money into her own 
 hands, for there is nothing in this inconsistent with 
 the marital right. But there must be a direction 
 that it shall be for her sole separate or independent 
 use, or in other equivalent terms showing a manifest 
 intent to exclude the husband. (/) In like manner, 
 in order to create a fetter on anticipation, there must 
 be positive words or a manifest intention to restrain 
 that power of disposal, which is prima facie inciden- 
 tal to ownership, (g')^ 
 
 In the absence of any fetter on anticipation, the 
 wife has the same power over her separate property 
 as if she were unmarried. Her disability to bind 
 herself or her general property is left untouched; 
 but she may pledge or bind her separate property, 
 and the Court may proceed in rem against it, though 
 not in personam against herself. In order that the 
 separate property may be thus bound, it is not 
 necessary that she should execute an instrument 
 expressly referring to it, or purporting to exercise a 
 
 (/) Tyler v. Lake, 1 E. & M. 183; Massey v. Parker, 2 M. & 
 K. 174; Blacklow v. Law, 2 Hare, 49. 
 
 ((/) Brown v. Bamford, 11 Sim. 127; 1 Ph. 620; Medley v. 
 Horton, 14 Sim. 222 ; Baggett v. Meux, 1 Coll. 138 ; 1 Ph. 627. 
 
 * No technical words are necessary to create a separate estate ; 
 any words indicating that intention are sufficient; Ballard v. Tay- 
 lor, 4 Desau, 550 ; Hamilton v. Bishop et al., 8 Yerg. 33 ; Roane's 
 Ex'rs V. Hern, 1 Wash. 47; and in marriage settlements the 
 most favourable exposition will be made of words in order to sus- 
 tain the intention of the parties ; Horry v. Horry, 2 Desau, 125 ; 
 Gause v. Hale, 2 Ired. Ch. 241 ; Gaillard v. Parcher, 1 McMul- 
 lan Ch. 358. 
 
160 Adams's doctrine of equity. 
 
 power over it. It is sufficient that she professes to 
 act as a feme sole. For the Court of Chancery, in 
 giving her the capacity to hold separate property, 
 P^ gives also the capacity, incident *to property 
 ■- -I in general, of incurring debts to be paid out 
 of it ; and enforces payment of such debts when con- 
 tracted, not as personal liabilities, but by laying hold 
 of the separate property, as the only means by which 
 they can be satisfied.(A) 
 
 The fin •money trust is so far similar to that for 
 separate use, that in both cases the property subject 
 to the trust is placed at the wife's sole disposal, 
 independent of her husband's control. But in one 
 respect the two trusts are essentially different ; the 
 one places the property at her absolute disposal for 
 any purpose which she may select ; the other secures 
 to her an income during the coverture, to be specifi- 
 cally expended in her dress and personal expenses, 
 lest the husband should refuse her an adequate al- 
 lowance. It is a fund, therefore, which she is not 
 entitled to accumulate, but may be made to spend 
 during the coverture by the intercession and advice, 
 and at the instance, of her husband : it seems proba- 
 ble that, should she refuse so to spend it, the hus- 
 band would be entitled to withhold it from her ; and 
 it has been decided that, if it be not in fact paid to 
 her, no claim for arrears beyond a year can be made 
 by herself, and no claim, even for that period, by 
 her personal representatives. {%) 
 
 (h) Murray v. Barlee, 4 Sim. 82 ; 3 M. & K. 209 ; Aylett v, 
 Asliton, 1 M. & C. 105 ; ^Tullett v. Armstrong, 4 Bea. 319 ; 
 Owens V. Dickinson, Cr. & P. 48 ; Lord v. Wightwick, 2 Ph. 110. 
 
 (i) Howard v. Digby, 8 Bligh, 224, 245, 267, 268 ; Beresford 
 V. Archbishop of Armagh, 13 Sim. 643. 
 
ORDINARY AND CHARITABLE TRUSTS. 161 
 
 It has been contended that alimony is in the 
 nature of separate estate, so that the wife may bind 
 herself by contracts respecting it, and that a bill 
 may be sustained by her executors for an account. 
 This, however, is not the case. Alimony is not 
 separate estate, but a mere provision for maintenance 
 from day to day, decreed by a competent Court to a 
 wife legally separated from her husband, and is sub- 
 ject in respect to its amount, continuance, and mode 
 of payment, to the discretion of the *Ecclesi- 
 astical Court. The wife has in fact no pro- '- ^ 
 perty therein ; and the Court of Chancery can give 
 no relief respecting it, except by granting a writ of 
 ne exeat regno, when the husband is about to leave 
 the kingdom, on the special ground that the Eccle- 
 siastical Court cannot compel him to find bail, (k) 
 
 The wife's equity for a settlement attaches on her 
 equitable chattels real, and on such of her equitable 
 choses in action as are capable of being immediately 
 reduced into possession, and it authorizes a restraint 
 of the husband's right, until he shall have made an 
 adequate settlement. 
 
 The rule at law with respect to chattels real and 
 choses in action, of which the wife has the legal 
 ownership, is that in both cases, if the wife survive 
 her husband, and no act be done by him to bar her 
 right, she is entitled by survivorship on his decease. 
 But the nature of the husband's title and the means 
 by which he may bar his wife's right, differ materi- 
 ally in the two cases. With respect to terms of 
 years and other chattels real, the right of the hus- 
 band is a right to the profits during coverture, with 
 
 (k) Vandergucht V. De Blaquiere, 8 Sim. 315; 5 M. «& C. 229. 
 
 11 
 
162 ADAMS'S DOCTRINE OF EQUITT. 
 
 an absolute right of disposal bj act inter vivos ; and 
 if he survive his wife, they are absolutely his. With 
 respect to choses in action his right is more limited; 
 for the mere right of action is not transferable, but 
 remains in the wife notwithstanding her coverture, 
 to be exercised by her and her husband jointly. If 
 it is so exercised by them, and the chose in action 
 is reduced into possession, it becomes, like her other 
 personalty in possession, the husband's property ; but 
 until that time it remains in the wife. If she sur- 
 vives, she takes it absolutely ; and if the husband 
 survives, he takes it as her administrator, and not 
 in his own right. (Z) 
 
 In order therefore to exclude the wife's right of 
 survivorship, the husband must assign her chattel 
 real, and must reduce into possession her chose in 
 action. And if *he can effectuate this by 
 L -I course of law, there is no equity to restrain 
 him. It might therefore be expected that where 
 the wife's interest is equitable, instead of legal, the 
 analogy of law would be pursued in equity, so that 
 the husband's assignee of the chattel real would be 
 entitled wholly to exclude the wife, and the husband 
 himself might proceed of right in equity to reduce 
 into possession the chose in action. The practice of 
 the Court, however, is otherwise. The trustee or 
 holder of the property may transfer it without suit 
 to the husband, and will not be responsible for so 
 doing. But if he refuses to do so, or a bill be filed 
 on the wife's behalf to prevent him, so that the pro- 
 perty is brought within the control of the Court, and 
 the assistance of the Court is required to give any 
 
 (0 2 Steph. Blacks. 300. 
 
ORDINARY AND CHARITABLE TRUSTS. 163 
 
 benefit in it to the husband or his assignee, it is an 
 3stablished equity, founded on long practice, that 
 bhe husband shall not have it, if it exceed 200Z., 
 unless he makes, or has already made, an adequate 
 provision for his wife and children. This is termed 
 the wife's equity for a settlement. It is unaffected 
 by any act or assignment of the husband ; and the 
 )nly mode by which it can be barred, is by the wife's 
 personal waiver in Court on examination apart from 
 ber husband, (m) If the chose in action be one 
 which the husband cannot reduce into present pos- 
 session, as if it be to take effect after the coverture, 
 3r on the determination of an existing life estate, 
 the wife is entitled to the whole, notwithstanding 
 ber marriage, and there is no interest in the husband 
 3n which the equity can attach.' 
 
 The equity, though called that of the wife, is ef- 
 fectuated by a settlement on her children also, as 
 
 (m) Elibant v. Montolieu, 5 Ves. 737; Murray v. Elibank, 10 
 Ves. 84; 13 Ves. 1; Johnson v. Johnson, 1 J. & W. 452; Stur- 
 gis V. Champneys, 5 M. & C. 97; Hanson v. Keating, 4 Hare, 1. 
 
 ' The doctrine stated in the text is sustained by the American 
 luthorities ; Tiers's Eep. v. Eichardson's Heirs, 7 Monroe, 660 ; 
 Fabre v. Golden, 1 Paige, 166 ; Smith v. Kane, 2 Paige, 303 ; 
 M'Elhatton v. Howell, 4 Haywood, 19, 24; Udall v. Kenny, 8 
 3owen, 590; Kenny v. Udall, 5 Johns. C. R. 464, S. C. ; Elliott 
 f. Waring, 5 Monroe, 340 ; Van Duzer v. Van Duzer, 6 Paige, 
 i66; Whitesides v. Darris, 7 Dana, 107; Andrews & Bro. v. 
 Tones et al., 10 Ala. Eep. 400 ; 1 Kelley, 637 ; and a Court of 
 squity will go to a great length in protecting the wife, and the 
 loctrine has been carried so far, that the Court say that the hus- 
 )and and his assignees will be restrained in obtaining possession 
 )f his property by process of law, if she has no other means of 
 lupporting herself and children, unless a suitable provision is 
 illowed her out of it ; Van Epps v. Van Deusen, 4 Paige, 64. 
 
164 ADAMS'S DOCTRINE OF EQUITY. 
 
 being, if the property is settled at all, the most pro- 
 per mode of doing it ; and the wife cannot separate 
 their interest from her own, or claim a settlement on 
 herself to their exclusion. Their right, however, 
 P^j. . q-| though inseparable from hers, is *merely inci- 
 dental, and does not constitute an indepen- 
 dent equity ; and therefore, if she die without having 
 asserted her right, or if, after its assertion and while 
 the matter rests in proposal, she come in and waive 
 it, the husband after her death may receive the pro- 
 perty, and the children have no equity to compel a 
 settlement, (n) 
 
 The provision usually made is one commencing 
 from the husband's decease ; for, during his lifetime, 
 he is the proper person to maintain his family. And 
 accordingly, if the wife's interest be a mere life in- 
 come, the equity does not attach ; for the payments 
 during the coverture are properly receivable by the 
 husband; and those to accrue afterwards are rever- 
 sionary, and not reducible into the husband's pos- 
 session, (o) If however the husband does not in fact 
 maintain his wife, or if he has deserted her, or by ill 
 usage has driven her from him ; or if he has become 
 incapable of maintaining her, as by his bankruptcy 
 or by an assignment of all his property in trust for 
 creditors, an immediate provision will be directed. 
 In this case it is immaterial whether the wife's inte- 
 
 (n) Murray v. Elibank, 10 Ves. 84 ; S. C. 13 Ves. 1; Lloyd v. 
 ■Williams, 1 Mad. 450 j Fenner v. Taylor, 2 E. & M. 190; Hod- 
 gens V. Hodgens, 11 Bli. 62, 103 ; 4 CI. & F. 328, 271 ; Lloyd v. 
 Mason, 5 Hare, 149. 
 
 (o) Wright V. Morley, 11 Ves. 12, 18 ; Elliott v. Cordell, 5 
 Mad. 149 ; Stanton v. Hall, 2 R. & M. 175, 180 ; Stiffe v. Ereritt, 
 1 M. & C. 37. 
 
OEDINAET AND CHARITABLE TRUSTS. 165 
 
 est is for life only, or of a more permanent charac- 
 3r ; and it is competent for the Court to settle such 
 proportion on her as the circumstances require, or 
 ven to settle the entire income, if the husband has 
 Iready received other portions of her fortune. If 
 be desertion be on the part of the wife, the Court 
 all give her no benefit from the fund ; but it has been 
 .eld that, as the husband does not in fact maintain 
 ler, he cannot be entitled to the whole property, and 
 he dividends therefore should be paid into Court, {p) 
 
 3. The equitable ownership is governed by the 
 ame laws of devolution and transfer as the legal 
 me. 
 
 *The maxims therefore of the common law r^cn-i 
 ,s to descent, possesso fratris, customs of 
 ;avelkind and borough English, and the like, have 
 )een always enforced by analogy in equity, subject 
 lowever to an exception in the case of dower, which 
 ve shall presently notice. A trust estate may 
 )e entailed or otherwise settled by the owner, and 
 vill devolve regularly in the line of entail ; it might, 
 mtil the late statute, be again disentailed by a fine 
 )r recovery, and may now be disentailed by a statute 
 leed, in the same manner as a legal estate. But a 
 rust of realty is not liable to escheat ; for escheat is 
 nerely an incident of tenure, arising out of the feudal 
 ystem, whereby the escheated estate on the death 
 without heirs of the person last seized escheats to the 
 ord as reverting to the original grantor, there being 
 10 longer a tenant to perform the services incidental 
 the tenure. It is therefore inapplicable to estates 
 
 (jp) Ball V. Montgomery, 2 Ves. Jun. 191; Duncan v. Camp^ 
 lell, 12 Sim. 616; Gardner v. Marshall, 14 Sim. 575. 
 
166 Adams's doctrine of equity. 
 
 which do not lie in tenure, such as rents, commons, 
 &c. ; and is equally inapplicable to an equitable estate. 
 If the line of descent fails by the death of the cestm 
 que trust without heirs, the trustee will have the 
 enjoyment as the legal owner, for there is no one 
 who can sue a subpoena against him.(g') If the de- 
 scent fails by attainder, there appears to be some 
 doubt as to the position of the trustee, as to his 
 right of holding against the felon if pardoned, or 
 against his heir if the felon be executed. The for- 
 feiture to the Crown by attaint of treason has been 
 specially extended by statute to trusts, (r) And 
 where a trust of land is declared for an alien the 
 Crown is entitled, as in the case of a legal estate ; 
 r*c-| -| for the incapacity *of an alien is not an in- 
 cident of tenure, but a result of public policy 
 which disables an alien from purchasing except for 
 the king's use. In the case of chattels, whether real 
 or personal, the doctrine of escheat has no place, but 
 if the cestui que trust die intestate and without leaving 
 next of kin, his interest vests in the Crown as lona 
 vacantia, and if he be convicted of treason or felony, 
 it has always been deemed forfeitable to the Crown, (s) 
 
 (2) On the subject of the escheat and forfeiture of trust estates 
 and the respective rights of the Crown, and trustee on the death of 
 the cestui que trust without heirs or his attainder, vide Burgess t. 
 Wheate, 1 Eden. Ch. Cas. 177. 
 
 (r) 33 Hen. 8, c. 20, s. 2 ; 1 Hale, P. 0. 248 ; but see King v. 
 Daccombe, Cro. Jac. 512. In case of the death of a trustee or 
 mortgagee without heirs or his attainder, it is provided by a recent 
 statute, 4 & 5 Wm. 4, c. 23, that no lands, chattels, or stock, 
 vested in such person upon any trust, or by way of mortgage, shall 
 escheat or be forfeited, but shall be conveyed by the Court of Chan- 
 cery as the case may require. 
 
 (s) 1 Steph. BI. 401, 443 ; 4 lb. 446 ; Att.-Gen. v. Sands, 
 
ORDINARY AND CHARITABLE TRUSTS. 167 
 
 The subjection of equitable estates to the legal 
 rules of devolution and transfer admits of two excep- 
 tions ; the one real, in their exemption from dower/ 
 the other apparent, in the attendance of satisfied 
 terms on the inheritance. 
 
 The right of a widow to dower at common law 
 was a right to have a third part of her husband's 
 freehold lands of inheritance assigned to her for her 
 use, on his decease, for her life. And as the right 
 was given as a matter of general policy, it might 
 have been expected that Courts of Equity, following 
 the policy of the law, would have annexed the same 
 right to an equitable estate. It was, however, de- 
 cided otherwise; and the reason assigned is, that 
 long before the question was raised a general im- 
 pression had prevailed that the widow would be 
 barred by a trust, and that many estates had been 
 purchased on the faith of this opinion, the titles to 
 which would be shaken and much mischief produced, 
 by a decision to the contrary. And, on this ground 
 of anticipated inconvenience, whether a judicious one 
 
 Freem. 130; Lewin on Trustees, 556; Burgess v. Wheate, 1 
 Eden. 177 ; Williams v. Lonsdale, 3 Ves. 752 ; Taylor v. Haygarth, 
 14 Sim. 8. 
 
 * The general principle is, that at Common Law a wife was not 
 entitled to dower in a trust estate ; Stevens v. Smith, 4 J. J. Marsh, 
 64 ; Danforth v. Lowry, 3 Haywood, 68 ; Herron v. Williamson, 6 
 Litt. Sel. Gas. 250. Though in some of the States, as in Kentucky 
 and Virginia, special statutes have been enacted relieving the wife 
 from this disability; Stevens v. Smith, before cited, and 4 Hen. & 
 Munf. 376. 
 
 By the usage and law of Pennsylvania a woman is entitled to 
 dower in a trust estate ; Shoemaker v. Walker, 2 S. & R. 554. 
 
 See post, note to pages 233, 234. 
 
168 Adams's doctrine of equity. 
 
 or not, the decision in question was made, (t) The 
 point is worth noticing, as having for many years 
 been an anomaly in the doctrines of equity. But by 
 the passing of the Dower act, (u) .which abolishes the 
 distinction in this respect between legal and equita- 
 r*'i21 ^^^ estates, *and at the same time gives to 
 the husband a control over his wife's dower, 
 which previously he did not possess, it has ceased to 
 be of much practical importance. 
 
 The exception in respect to attendant terms is 
 rather apparent than real. It frequently happens 
 that long terms of years are created in real estates, 
 for securing moneys lent on mortgage, for raising 
 jointures and portions for children, and for other 
 special trusts ; and that, after the fulfilment of the 
 trust, the terms continue in existence. It might 
 prima fade be supposed, that so long as the legal 
 term subsists, the trust under it is in the nature of 
 a chattel, and will devolve to the executor and not to 
 the heir. But the rule is rightly otherwise. For the 
 trust of the term, under these circumstances, is not 
 for any individual person, but for the owner of the 
 inheritance, whoever he may be. This would be the 
 eiFect, if a surrender were compelled, and the mere 
 absence of a legal surrender does not change the 
 effect in equity. In accordance with this principle, 
 a term may be made attendant, either by implication 
 of law, where the ejQfect of a surrender would be im- 
 mediate merger, or by express declaration of the 
 parties. And the trust of such attendant term will 
 
 (0 D'Arcy v. Blake, 2 Sch. & L. 387. 
 (w) 3 & 4 Wm. 4, 0. 105. 
 
OEDINAEY AND CHARITABLE TRUSTS. 169 
 
 follow the descent of the inheritance, and the con- 
 veyances, assurances, and charges of the owner. It 
 may, however, be afterwards disannexed by the 
 owner and converted into a term in gross ; and it 
 will be so disannexed whenever it fails of a freehold 
 to support it, or is divided from the inheritance by 
 distinct limitations, (v) The effect of getting in an 
 attendant term, where two purchasers or incum- 
 brancers are contending for priority, will be hereafter 
 considered under a different head, [iv) 
 
 The doctrine (tew;) of attendant terms will shortly 
 become of little importance ; for by 8 & 9 Vict. c. 
 112, it is enacted, that every term of years which on 
 the 31st Dec. 1845, *should be attendant on r*co-| 
 the inheritance, should cease and determine 
 on that day, except for the purposes of any protection 
 which it would have afforded if it had continued to 
 exist, but had not been assigned or dealt with after 
 that day ; and that every term which after that day 
 should become attendant, should immediately on its 
 becoming so attendant cease and determine. 
 
 The means by which an equitable ownership is 
 transferred or changed, where its subject-matter is 
 personal estate, are analogous to those which apply 
 to a legal ownership, rather than strictly identical 
 with them. The distinction originates in the doc- 
 trine that personal property passes at law by mere 
 delivery, which, where an equitable interest is trans- 
 ferred, may not be practicable ; and therefore, in 
 
 (v) Willoughby v. Willoughby, 1 Term. Eep. 763 ; Capel v. 
 Girdler, 9 Ves. 509 ; 3 Sug. V. & P. lOth edit. c. 15. 
 (w) Infra, Priorities. 
 (ww) See the case of Doe d. Clay v. Jones, 13 Jurist, 824. 
 
170 Adams's doctrine op equity. 
 
 order to pursue as nearly as possible the analogy of 
 law, it is required that the assignment of an equita- 
 ble interest should be perfected by notice to the 
 trustee, so as to deprive the assignor of subsequent 
 control, and to effect a constructive delivery to the 
 assignee, (x) It is otherwise with respect to real 
 estate ; for real estate passes by title, and not by de- 
 livery, and the character of the grantor's interest, 
 whether legal or equitable, does not effect the terms 
 of his deed. The period at which the transfer of au 
 equity becomes complete is often material to be con- 
 sidered, where such transfer has been made without 
 consideration, or where several purchasers or incum- 
 brancers have acquired conflicting rights; but its 
 effect in these cases will be hereafter separately con- 
 sidered, {y) 
 
 The principle of constructive delivery by notice to 
 the trustee is applied also to a debt or other chose in 
 action. The right of recovering such an interest, like 
 that of enforcing a trust, is in strictness merely a 
 right of litigation ; and except in the case of nego- 
 tiable securities, is not capable of transfer at law. 
 r^KA-1 But if it be in substance a right *of property, 
 it is treated in equity as of that character, 
 and may be transferred by an assignment or agree- 
 ment to assign perfected by notice to the party liable. 
 If the right is not substantially a title to property, 
 but a mere litigious right, as, for instance, the right 
 of action for a personal wrong, or for suing in equity 
 to redress a fraud, it cannot be made the subject of 
 
 (x) Dearie v. Hall, 3 Russ. 1 ; Foster v. Cockerell, 3 01. & F. 
 456 ; Jones v. Jones, 8 Sim. 633 ; Wilmot v. Pike, 5 Hare, 14. 
 (y) Infra, Priorities. 
 
OEDINART AND CHARITABLE TRUSTS. 171 
 
 assignment; for the transaction would be directly 
 adverse to the policy of the law, which prohibits the 
 encouragement of litigation, by the introduction of 
 strangers to enforce rights which the owners are not 
 disposed to maintain, (z) 
 
 The regular mode of transferring a debt is by an 
 instrument purporting to assign it, accompanied by 
 a power of attorney to sue in the name of the as- 
 signor, and followed by notice to the party from 
 whom the assignor is to receive payment. There is 
 not, however, any special form necessary, but any 
 declaration, either by writing or word of mouth, that 
 a transfer is intended, will be effectual, provided that 
 it amount to an appropriation to the assignee ; for 
 inasmuch as the fund is not assignable at law nor 
 capable of manual possession, an appropriation is all 
 that the case admits, (a) 
 
 Possible and contingent interests are also to a cer- 
 tain extent assignable in equity on the same princi- 
 ple as choses in action, although, by reason of their 
 being devoid of any substantive or certain character, 
 they were until 8 & 9 Vict. c. 106, and in the case 
 of personal estate still are, incapable of assignment 
 at law. In this way a contingent legacy or other 
 interest may be made the subject of equitable assign, 
 ment; and so also may the freight to be earned by 
 a ship on some future voyage, although the earning 
 
 (z) Prosser v. Edmonds, 1 Y. & C. 481 ; Wood v. Downes, 18 
 Ves. 120; Hunter v. Daniel, 4 Hare, 420. 
 
 (a) Gardner v. Lachlan, 4 M. & C. 129 ; Thompson v. Spiers, 
 13 Sim. 469; Burn v. Carvalho, 4 M. & C. 690; Cook v. Black, 
 1 Hare, 390; M'Fadden v. Jenkyns, 1 Hare, 458; 1 Ph. 158; 
 Malcolm v. Scott, 8 Hare, 39, 52 ; Braybrooke v. Meredith, 13 
 Sim. 271. 
 
172 Adams's doctrine of equity. 
 
 P^Kf--| of such freight *is at the time of assignment 
 a mere expectant possibility. (&) There is 
 however a distinction between choses in action and 
 possibilities in personalty with respect to the com- 
 pletion of an equitable transfer. In the case of 
 choses in action, the transfer may be completed, as 
 we have already seen, by a constructive delivery, but 
 in the case of possibilities the interest, though a sub- 
 stantial one, is for the time being non-existent, and 
 there are no means of perfecting the possession by 
 notice or otherwise, but the contract remains in fieri 
 until the contingency determines, (c) 
 
 The next subject for notice is the legal ownership 
 of the trustee, which confers on him at law an abso- 
 lute dominion, but is considered in equity as sub- 
 servient to the trust ; so that the trustee is bound to 
 use it for those purposes, and those only, which were 
 contemplated by the grantor ; to account for and pro- 
 tect the property whilst the trust continues ; to re- 
 store it to the parties entitled when the trust is at 
 an end ; and not to avail himself of his fiduciary 
 character for any object of personal benefit. 
 
 A trustee is bound to use his legal dominion for 
 those purposes, and those only, which were contem- 
 plated by the grantor.' If, for instance, he is trustee 
 
 (b) Langton v. Horton, 1 Hare, 549. 
 
 (e) Meek v. Kettlewell, 1 Hare, 464 ; 1 Ph. 342. 
 
 ' Where property is conveyed to a trustee to sell the same " at 
 public auction," and pay a certain debt of the grantor, the trustee 
 has no authority to sell except at public auction, although he may 
 promote the interests of the grantor by selling at private sale ; 
 Greenleaf v. Queen, 1 Pet. 138. So if trustees are empowered to 
 sell real estate, they cannot exchange it for other real estate ; if 
 
ORDINAET AND CHARITABLE TRUSTS. 173 
 
 for sale of an estate, he must not sell unless there be 
 a legitimate object in view ; and, when he does sell, 
 he must take care that the interests of all his cesiuis 
 qtie trust are duly consulted, and that all prudent 
 precautions are taken for obtaining the full value, (d) 
 If he is a trustee of renewable leaseholds, he must 
 be careful that the renewals are made in the usual 
 course, and the requisite funds provided for that 
 
 (d) Ord V. Noel, 5 Mad. 438; Mortlock v. Buller, 10 Ves. 292, 
 308 ; Wilkins v. Fry, 1 Meriv. 244, 268 ; 2 Sug. on Powers, 486. 
 
 such an exchange be made, the trustees are responsible to the 
 cestui que trust for the full value of the land at the time of the 
 exchange. Kinggold v. Kinggold, 1 Har. & Gr. 11. And a trustee 
 loaning money on personal security, it seems, will be responsible 
 for a loss by the insolvency of the borrower ; Smith v. Smith, 4 
 John. C. K. 281. 
 
 Where a trustee was directed to invest in the public securities 
 of England, and he removed the fund, and invested in this coun- 
 try, by reason of which a loss occurred, he was held to be guilty 
 of a gross violation of the trust, unless the change was made by 
 consent of the cestui que trust, competent to act. Contee v. Daw- 
 son, 2 Bland, 264. 
 
 See 5 Johns. C. E. 441, 446; 10 Yerg. 263-400 ; 6 Munf. 
 447; 4 Barb. S. C. Eep. 626 ; 8 Dana, 72; 2 B. Monr. 385. 
 
 Trustees are also chargeable with interest if they have made use 
 of the money themselves, or have been negligent in not paying 
 over or properly investing it. Green v. Winter, 1 John. C. R. 
 27, 527 ; Brown v. Eicketts, 4 Id. 305 ; Jenning's ex'rs v. Davis, 5 
 Dana, 132 ; Lomax v. Pendleton, 3 Call. 538 ; Miller v. Beverley, 
 4 Hen. & M. 415 ; McNair v. Eagland et al., 1 Dev. Ch. 516; 
 Jordan v. Hunt, 2 Hill Ch. 145 ; 11 Paige, 520 ; 6 John. C. E. 
 17. See 8 S. & E. 187. And also in special and peculiar cases 
 with compound interest. SchieflFelin v. Stewart & others, 1 Johns. 
 C. E. 620 ; Clarkson v. De Peyster, Hopk. Eep. 424 ; Winder v. 
 Diffenderffer, 2 Bland, 166 ; Wright v. Wright, 2 McC. Ch, 185; 
 Diffenderffer v. Winder, 3 Gill. & J. 311. 
 
174 ADAMS'S DOCTRINE OF EQUITY. 
 
 purpose, (e) If he is a trustee of money secured by 
 nj^Ke-i covenant, *or of other outstanding property, 
 he must realize or secure it with all conve- 
 nient speed. (/) And if he is trustee of moneys for 
 the purpose of investment, he should invest them in 
 three per cent, consols as the fund sanctioned by 
 the Court, or on such other securities, if any, as are 
 authorized by his trust ; and should at the same time 
 execute a declaration of trust, so that in the event 
 of his bankruptcy or insolvency the fund may be 
 identified, (g) If there be an express power to lend 
 on personal security, it will of course warrant a loan 
 to a responsible person on his mere bond or promis- 
 sory note ; but such .a loan would not be warranted 
 by an authority to adopt such security as the trustee 
 shall think safej(7i) nor would a power to lend 
 generally on personal security authorize an advance 
 to a trader by way of accommodation, or a loan to 
 one of the trustees themselves, (i) K the fund is 
 already outstanding on personal security, but no au- 
 thority is given to leave it so, the trustee is bound to 
 call it in and make a proper investment. If, how- 
 ever, it is invested on an actual security, the trustee 
 is not bound to call it in for the mere purpose of re- 
 investment in consols, unless a direction to that 
 
 (e) Lord Montfort v. Lord Cadogan, 17 Ves. 485 ; Greenwood 
 V. Evans, 4 Bea. 44 ; Shaftsbury v. Marlborough, 2 M. & K. Ill ; 
 Bennett v. Colley, 2 M. & K. 233. 
 
 (/) Maitland v. Bateman, 13 Law Journ. 273. 
 
 (g) Clough V. Bond, 3 M. & C. 496 ; Stickney v. Sewell, 1 M. 
 & C. 8 ; Ames v. Parkinson, 7 Bea. 379. 
 
 (K) Bullock V. Wheatley, 1 Coll. 130 j Stiles v. Guy, 4 Y. & 
 C. 571 ; Walker v. Symonds, 3 Sw. 1, 62. 
 
 (^■) Langston t. Ollivant, Coop. 33 ; v. Walker, 5 Kuss. 7. 
 
ORDINARY AND CHARITABLE TRUSTS. 175 
 
 effect is contained in the instrument, or is deducible 
 by implication from the character of the trusts. A 
 question as to what will amount to such an implied 
 direction has frequently arisen where property of a 
 less safe or less permanent character than the regular 
 investment of the Court, and therefore yielding a 
 larger immediate income, such as leasehold estates 
 or foreign funds, has been bequeathed for life with 
 remainder over. The general principle is, that a 
 gift of the kind implies a ^conversion into r^ci?-! 
 three per cent, consols, unless there be some- 
 thing in the language of the will pointing to a con- 
 tinuance in specie. (A;) 
 
 A trustee is bound to account for and protect the 
 property whilst his trust continues.' It is one of his 
 
 (k) Howe V. Lord Dartmouth, 7 Ves. 137 ; Pickering v. Picker- 
 ing, 4 M. & C. 289 ; Huives v. Huives, 3 Hare, 609 ; Pickup v. 
 Atkinson, 4 Hare, 624; Mills v. Mills, 7 Sim. 501; 1 Jarm. on 
 Wills, 546. 
 
 ^ If trustees either use or mix trust funds with their own, they 
 will be liable for all losses which may arise from their neglect or 
 mismanagement. Case v. Abeel, 1 Paige, 393 ; Braekenbridge v. 
 Holland, 2 Blackf 377 ; Myers v. Myers, 2 McC. Ch. Kep. 265 ; 
 Utica Ins. Company v. Lynch, 11 Paige, 520 ; Mumford v. Mur- 
 ray, 6 John. C. E. 1 ; Hart v. Ten Eyck, 2 Id. 520. 
 
 So guardians and trustees may be called to account by infants, 
 and may be required to bring the trust-moneys into court, and to 
 give further security to account when the infants become of age. 
 Monell V. Monell, 5 John. C. R. 297. Though if a trustee, or an 
 executor, be robbed of trust-money, it is a good answer to a bill for 
 an account. Furman v. Coe, 1 Cai. Ca. 96. 
 
 If a trustee permit a debtor to retain possession of a trust estate 
 waste it, and use it as his own, he will be held responsible for the 
 injury to the trust-fund out of his own estate. Harrison v. Mock, 
 10 Ala. Rep. 185. 
 
176 ADAMS'S DOCTRINE OF EQUITY. 
 
 principal and most important duties that he should 
 keep regular and accurate accounts, clearly dis- 
 tinguishing the trust property from his own, and 
 showing all his receipts and payments in respect of 
 it; and that he should be always ready to produce 
 those accounts to his cestui que trust. (T) It is also a 
 most important duty that he should protect the pro- 
 perty confided to him whilst the trust continues, and 
 should for that purpose retain the control of it in his 
 own hands. And it has been doubted whether he is 
 even warranted in devising the estate, so as to break 
 the descent to his heir, and whether, by so doing, he 
 may not render his executors responsible for any 
 breach of trust by the devisee. (972) 
 
 The duty of retaining the control in his own hands 
 precludes the trustee, not only from assigning the 
 property altogether to a stranger, but even from 
 conferring on such stranger a joint authority with 
 himself.' It is true that in the latter case he does 
 not actually part with the estate, but he enables a 
 third party to interfere with his discretion, and de- 
 featspro tanio the object contemplated by the trust, {n) 
 A trustee, however, is not necessarily precluded from 
 
 (J) Pearse v. Green, 1 J. & W. 135 ; Freeman v. Fairlie, 3 
 Meriv. 24, 42. 
 
 (m) 1 Jarm. on Wills, 638 ; 2 lb., Appendix. 
 
 (ra) Salway v. Salway, 4 Russ. 60 ; 2 R. & M. 215. 
 
 * A trustee who has only delegated discretionary power cannot 
 give a general authority to another to execute such power, unless 
 he is specially authorized to do so by the deed or will creating the 
 trust ; and when an estate is devised with power to sell, a general 
 authority to an agent to sell and convey lands belonging to the 
 estate, or to contract absolutely for the sale of such lands, cannot 
 be legally given by the trustees. Hawley v. James, 5 Paige, 323. 
 
OBDINARY AND CHARITABLE TRUSTS. 177 
 
 acting by the agency of others, where such a mode 
 of acting is according to the ordinary course of busi- 
 ness. For instance, he may employ a steward or 
 agent; he may direct moneys to be paid into a bank ; 
 he may transmit money by means of bills drawn on 
 respectable parties, and so forth ; and if there has 
 been sufficient *ground for his so doing, and r.-i:5g-| 
 he take care to keep the fund separate from 
 his own property, he will not be answerable for in- 
 cidental loss, (o) 
 
 The same principle which prohibits a trustee from 
 giving up the control of the trust estate to a stranger, 
 also prohibits him from supinely leaving it to his co- 
 trustees. For when several trustees are appointed, the 
 property is committed to the charge of all, and the 
 cestui que trust is entitled to the vigilance of all.' 
 
 (o) Wren v. Kirton, 11 Ves. 377; Massey v. Banner, 1 J. & 
 W. 241 ; Clough v. Bond, 3 M. & C. 490 j Drake v. Martyn, 1 
 Bea. 525 ; Matthews v. Brise, 6 Bea. 239. 
 
 * Co-trustees are bound to know the receipts, and watch over the 
 conduct of each other; Ringgold v. Ringgold, 1 Har. & Gill. 11. 
 
 In matters requiring the exercise of discretion by trustees, and 
 not in mere ministerial acts, co-trustees must all join, and cannot 
 act separately in discharge of their trust ; Vandever's Appeal, 8 
 Watts & Serg. 405. 
 
 And it is not sufficient to exempt one of the two joint trustees 
 from liability, that the duties of the trust have been exclusively 
 performed by the co-trustee, with the concurrence and consent of 
 the former. On the contrary, he is responsible for the conduct 
 and management of his co-trustee, to whom he has thought proper 
 to delegate his power, in the same manner and to the same extent 
 as if they had been executed by himself ; Maccubin v. Cromwell, 
 7 Gill. & J. 157 ; Spencer v. Spencer, 11 Paige, 299 ; but see 8 
 Ala. 83 ; 3 Sandf. Ch. 99. 
 
 12 
 
178 ADAMS'S DOCTRINE OF EQUITY. 
 
 It is not meant that in every act done under the 
 trust, every trustee must actively interfere, for such 
 a course would he practically impossible ; and it is 
 therefore the ordinary doctrine of the Court, that 
 trustees are responsible for their own acts only, and 
 not for those of each other. If, for instance, there 
 be a sum of money payable to several trustees, it is 
 sufl&cient that one should actually receive it ; and, 
 unless it be afterwards improperly left in his hands, 
 the co-trustees will not be responsible. Nor will 
 their position in this respect be altered by their being 
 parties to a joint receipt for the sake of conformity, 
 unless the money be improperly raised, or there be 
 some other independent act of misconduct ; because, 
 as no single trustee has any separate authority, the 
 receipt would not be valid without the signature of 
 all. It is otherwise in regard to executors ; for the 
 receipt of one is a valid discharge ; and, therefore, if 
 all join, it is treated, in the absence of special circum- 
 
 So •when by the act of one trustee, a portion of the trust fund 
 gets into the hands of his co-trustee, they are both responsible 
 therefor ; Grraham v. Davidson, 2 Dey. & Bat. Ch. 155 ; but a 
 trustee is not liable for money received by his co- trustee, in the 
 regular discharge of the trust, though he join in a receipt; but 
 where he joins in a receipt for money received by his co-trustee, 
 when he had no right to receive it, he will be liable ; Wallis v. 
 Thornton, 2 Brock, 422. See also Monell v. Monell, 5 John. C. 
 E. 296. 
 
 The common law made no provision for the execution of a joint 
 trust by one of the trustees, where the co-trustee, by reason of 
 lunacy or other inability, becomes incompetent to execute the trust; 
 In the matter of Wadsworth, 2 Barb. Ch. Rep. 381. But by spe- 
 cial statute, the court may remove the incompetent trustee, as in 
 the State of New York ; 2 Barb., Id. 
 
ORDINARY AND CHARITABLE TRUSTS. 179 
 
 stances, as an admission that the money was under 
 the control of all. (p) 
 
 The cases, however, in which joint trustees may 
 permit some of their body to act in the management, 
 without themselves incurring personal liability, are 
 very different from those where a trustee so conducts 
 himself as to throw the whole *trust fund into r^cg-i 
 the hands of his colleagues, and to abandon 
 the interests which it is his duty to protect. Any 
 conduct of this latter kind is a dereliction from duty, 
 and will make him responsible for consequent loss. 
 If, for instance, he voluntarily aid his co-trustee to 
 commit a breach of trust 5 if he neglect to prevent 
 or remedy such breach of trust, when it comes to his 
 knowledge ; if he give facilities for it, as by suffering 
 his co-trustee to detain the trust-money for a long 
 period, without security ; or even if he unnecessarily 
 incur the risk of it by parting with that control, which 
 has been entrusted to him ; as by a mutual agree- 
 ment between himself and his co-trustee, that one 
 shall have the exclusive management of one part of 
 the property, and the other of the other part, he will 
 be chargeable for the result of his misconduct or 
 negligence, to the full extent of any mischief in- 
 curred, (q) 
 
 If in any case there is a bond fide doubt as to the 
 course which, under the circumstances, a trustee 
 should pursue, he may obtain directions by a suit in 
 
 (p) Brice V. Stokes, 11 Ves. 319 ; Walker v. Symonds, 1 Sw. 
 1, 64; Joy v. Campbell, 1 Sch. & L. 328, 341 ; Gregory v. Gre- 
 gory, 2 Y. & C. 313. 
 
 (3) Booth V. Booth, 1 Bea. 125 ; Broadhurst v. Balguy, 1 N. 
 C. C. 16. 
 
180 Adams's doctrine of equity. 
 
 equity at the cost of the estate. And a cautious 
 trustee will generally do so, whenever a reasonable 
 doubt exists. 
 
 "When the trust is at an end, the trustee is bound 
 to restore the estate to the parties entitled, and for 
 that purpose to make such conveyance as they may 
 require, receiving from them a release of his trust, (r) 
 . Lastly, a trustee must not avail himself of his 
 fiduciary character for any object of personal benefit. 
 His fundamental duty is to do his utmost for the 
 cestui que trust ; and every advantage which he appro- 
 priates to himself, must be. acquired by a derehction 
 from that duty. If, therefore, a trustee or executor 
 buy in charges on the estate for less than their actual 
 amount, the purchase will enure for the benefit of 
 p^^Q-j the trust ; (s) if a trustee or executor, *holding 
 renewable leaseholds, renew in his own name, 
 he cannot hold for himself, even though a renewal 
 on the former trusts may have been refused by the 
 lessor ; (^) and the same result will follow on a re- 
 newal by a mortgagee or partner, or by a tenant for 
 life ; for although he may not be bound to renew, 
 yet, if he does renew behind the back of the other 
 parties interested, he cannot, by converting the new 
 acquisition to his own use, derive an unconscientious 
 benefit out of the estate on which it is a graft, (m) 
 
 (r) Godson v. Ellison, 3 Russ. 583 ; Holford v. Phipps, 3 Bea. 
 434, 475 ; Whitmarsh v. Robertson, 1 Y. & C. 715 ; Hampshire 
 V. Bradley, 2 Coll. 34. 
 
 (s) Ex parte Lacey, 6 Ves. 625 ; Hamilton v. Wright, 9 CI. & 
 E. Ill ; Ex parte James, 8 Ves. 337, 345. 
 
 it) Rumford Market Case, Sel. Ch. Ca. 61 ; James v. Dean, 11 
 Ves. 383 ; Randall v. Russell, 3 Meriv. 190. 
 
 {u) Stone V. Theed, 2 B. C. C. 243 ; Waters v. Bailey, 2 N. C. 
 C. 219 ; Eeatherstonehaugh v. Fenwick, 17 Ves. 298. 
 
ORDINARY AND CHARITABLE TRUSTS. 181 
 
 In like manner it is a breach of trust if a trustee em- 
 ploy the trust fund in carrying on a trade, or if he 
 deposit it at his bankers, mixed up with his own 
 moneys, so as to obtain the credit of an additional 
 balance. (^?) 
 
 The most obvious instance of the abuse of a fidu- 
 ciary character is, where a trustee for sale or pur- 
 chase, attempts to buy from or sell to himself. The 
 permitting such a transaction to stand, however 
 honest it might be in the particular case, would de- 
 stroy all security for the conduct of the trustee ; for 
 if he were permitted to buy or sell in an honest case, 
 he might do so in one having that appearance, but 
 which from the infirmity of human testimony, might 
 be grossly otherwise. It is not therefore necessary 
 to show that the trustee has in fact made an impro- 
 per advantage ; but the cestui que trust, if he has not 
 confirmed the transaction with full knowledge of the 
 facts, may at his option set it aside. The rule, how- 
 ever, which imposes this absolute incapacity, applies 
 to those cases only where a trustee attempts to pur- 
 chase from or sell to himself There is no positive 
 rule that he cannot deal with his cestui que trust. 
 But in order to do so, he must fully divest himself of 
 all advantage which his character as trustee might 
 confer, and *must prove, if the transaction be r^f.-]-! 
 afterwards impugned, that it was in all re- 
 spects fair and honest. (to)' 
 
 (v) Heathcote v. Hulme, 1 J. & W. 122 ; Moon v. De Bernales, 
 1 Kuss. 301 ; Milland v. Gray, 2 Coll. 295. 
 
 (w) Ex parte Lacey, 6 Ves. 625 ; Coles v. Trecothick, 9 Ves. 
 234, 247 ; Ex parte Bennett, 10 Ves. 381 ; Downes v. G-razebrook, 
 3 Meriv. 200, 208 ; 3 Sug. V. & P., 10th edit., c. xix., s. 2. 
 
 ' Michoud V. Girod, 4 How. U. S. 503 ; De Caters v. Le Roy 
 
182 ADAMS'S DOCTRINE OF EQUITY. 
 
 The restraint on any personal benefit to the trus- 
 tee is not confined to his dealings with the estate, 
 
 de Chaumont, 3 Paige C. R. 178 ; Child v. Brace, 4 Paige C. K 
 309 ; Campbell v. Johnston et al., 1 Sandf. C. R. 148 ; Boyd v. 
 Hawkins, 2 Ired. Ch. 304; Mathews v. Dragaud, 3 Desau, 25; 
 1 Gilm. 614 ; Davis v. Simpson, 5 Har. & J. 147; Richardson v. 
 Jones, 3 Gill. & J. 163 ; In the matter of the petition of Oakley 
 et al., 2 Edw. Ch. 478 ; Hawley v. Manicus, 7 John. C. R. 174; 
 Haddix's heirs v. Haddix's adm'rs, 5 Lit. 202 ; Dorsey v. Dorsey, 
 3 Har. & J. 410 ; Brackenridge v. Holland, 2 Blackf. 377 ; Case 
 V. Abeel, 1 Paige, 393 ; Davone v. Panning, 2 John. C. R. 252; 
 Churchill's heirs v. Akin's adm'rs, 5 Dana, 481 ; Torrey v. Bank 
 of Orleans, 9 Paige, 650. A trustee incompetent to purchase on 
 his own account, cannot purchase as agent for a third person; 
 Hawley v. Cramer, 4 Cow. 717. Nor can a third person purchase 
 in trust or as the agent for the trustee ; Hunt v. Bass, 2 Dev. Ch. 
 292. And if he purchase a mortgage or judgment, which is a 
 lien on the trust estate, at a discount, he will not be allowed to 
 turn the purchase to his own advantage ; Green v. Winter, 1 John. 
 C. R. 27. See, also, Boyd v. Hawkins, 2 Dev. Ch. 195; Van 
 Home V. Fonda, 5 John. C. R. 409. And it seems a trustee may 
 not purchase the trust property for his own benefit, when it is sold 
 under a judicial decree, which he was not instrumental in pro- 
 curing, unless by the order of sale he was specially allowed so to 
 purchase ; Chapin v. Weed, 1 Clark, 464. 
 
 But a mortgagee of personalty does not fall within the principle 
 which prevents a trustee to sell, from buying at his own sale; 
 Black V. Hair et al., 2 Hill, 623. And where a bonft fide creditor 
 afterwards becomes a trustee, he may buy in a judgment against 
 a cestui que trust, and may pursue all legal remedies to enforce 
 payment of it ; nor has the cestui que trust any right to inquire 
 how much the former paid for it; Prevost v. Gratz, Pet. C 
 C. 364. 
 
 A trustee cannot come into a court of equity, to enforce a pur- 
 chase by himself of the trust fund, though icith the assent of the 
 cestui que trust; Munro v. Allaire, 2 Cai. Ca. 183. It has, how- 
 ever, been decided, that where a purchase by a trustee, at his own 
 sale, was perfectly fair, and the sale was proper, and he and the 
 
OEDINAET AND CHARITABLE TRUSTS. 183 
 
 but extends even to remuneration for his services, 
 and prevents him from receiving anything beyond 
 reimbursement of his expenses, unless there be an 
 express contrary stipulation. So far as such reim- 
 bursement extends, he is entitled to claim it in the 
 fullest extent. All payments made and liabilities 
 incurred by him, and all his reasonable costs, as be- 
 tween solicitor and client, of any suit relating to 
 the trust, are to be paid out of the estate, or, 
 if that should prove deficient, by the cestui que 
 trust personally. But if the trustee is himself a soli- 
 citor, he cannot of course charge the trust for his 
 own professional services, so as to derive in that 
 form a personal benefit, (a;)^ 
 
 (x) Moore v. Frowd, 3 M. & C. 45 ; Bainbrigge v. Blair, 8 Bea. 
 
 588. 
 
 cestui que trust subsequently came to a settlement, in which the 
 price is accounted for, the settlement will be binding; Villines v. 
 Norieet, 2 Dev. Ch. 167. 
 
 See, as to the power of a trustee to purchase the trust fund, if the 
 beneficiary agree to the purchase ; Field v. Arrowsmith, 3 Humph. 
 Tenn. Kep. 442; and also, Coles v. Trecothick, 9 Ves. 244; Lacey, 
 Ex parte, 6 Id. 626; Hendricks v. Kobinson, 2 Johns. C. E. 311. 
 A sale by a trustee to his cestui que trust, stands on the same 
 footing as a purchase by a trustee for his cestui que trust, and is 
 void, especially if the trustee has taken any advantage of the cestui 
 que trust; McCants v. Bee, 1 McCord Ch. 383. 
 
 ' The rule stated in the text is adopted in the United States 
 generally ; see Green v. Winter, 1 John. C. R. 37, 38 ; Manning v. 
 Manning, Id. 532 ; Mumford v. Murray, 6 Id. 17 ; State Bank 
 V. Marsh, Saxton, 288 ; Egbert v. Brooks, 3 Barring, 110 ; Miles 
 V. Bacon, 4 J. J. Marsh, 457 ; Kendall v. The New Eng. Carpet Co., 
 3 Conn. 384 ; but commissions may be agreed upon at the creation 
 of the trust ; Boyd v. Hawkins, 2 Dev. Ch. 212. 
 
 Though no compensation, as such, may be allowed to the trustee 
 
184 ADAMS'S DOCTRINE OF EQUITY. 
 
 If a trustee fail in performance of his trust, whe- 
 ther by exceeding or falling short of its proper 
 limits, the cestui que trust is entitled to a remedy in 
 equity. 
 
 We have already seen that, if there be no trustee, 
 or if the trustee is desirous to be discharged from 
 his trust, the Court of Chancery will undertake the 
 office. If there be an existing and acting trustee, 
 who either refuses to perform, a particular duty, or 
 threatens to do an unauthorized act, he may be com- 
 pelled to act in the one case, or restrained in the 
 other ; [y) or, if necessary, he may be removed alto- 
 gether from the trust, and another appointed in his 
 room.(z)' 
 
 If a breach of trust has been committed, the trus- 
 r*co-i tee *will be liable to make good any conse- 
 quent loss, whether immediately resulting 
 
 {y) Kirby v. Marsh, 3 Y. & C. 295 ; Att.-Gen. v. Mayor of 
 Liverpool, 1 M. & C. 171, 210. 
 
 (z) Att.-Gen. V. Shore, 9 CI. & E. 355 ; Att.-Gen. v. Caius Col- 
 lege, 2 Keen, 150. 
 
 except such as may be authorized by special statute, yet he has a 
 right to a liberal indemnity for his expenses and responsibilities 
 incurred in the faithful execution of his trust ; Towle v. Mack, 2 
 Verm. 19 ; Green v. Winter, 1 John. C. K. 27. 
 
 It may, however, be stated that in most of the United States, 
 trustees are allowed compensation in analogy to compensation al- 
 lowed to executors. Upon the subject of compensation to trustees, 
 see Meacham v. Sternes, 9 Paige C. R. 398 ; Ringgold v. Ring- 
 gold, 1 Har. & Gill. 11 ; Boyd v. Hawkins, 2 Dev. Ch. 329 ; 
 Miller v. Beverleys, 4 Hen. & M. 415 ; Jenkins v. Eldredge, 8 
 Story, Rep. 325; Matter of De Peyster, 4 Sandf. Ch. 511; Burr 
 V. M'Ewen, 1 Bald. 163 ; Nathans v. Morris, 4 Wh. 389 ; Ste- 
 man's Appeal, 5 Barr, 413. 
 
 ' See note to page 38, ante. 
 
ORDINARY AND CHARITABLE TRUSTS. 185 
 
 from it, or traceable as its effect. And if several 
 trustees have concurred in its commission, each of 
 them will, in favour of the cestui que trust, be seve- 
 rally liable for the whole loss. But if no actual 
 fraud has been committed, a contribution may be 
 enforced as between themselves. And if any third 
 party has knowingly reaped the benefit of the breach 
 of trust, the loss may be eventually cast on him. 
 If the cestuis que trust themselves, being sui juris, 
 have consented to the act, they cannot afterwards be 
 heard to complain of it ; and if some only out of 
 several have so consented, the trustee and the other 
 cesttds que trust must be indemnified out of their in- 
 terest, ; nor can the trustee waive the right to such 
 indemnity, because it is a security, not to himself 
 alone, but to the other cestuis que trust, also to be 
 worked out through him. {a) If, after the commission 
 of a breach of trust, the trustee has given full and 
 complete information to the cestuis que truest, and 
 they have acquiesced in the existing state of things, 
 and have dealt with the trustee on the footing of 
 that acquiescence, the breach of trust will be consi- 
 dered as waived. (6) But unless there be acquies- 
 cence in the cestui que trust, the mere lapse of time 
 will not bar the liability of an express trustee ; for 
 his possession is according to his title. It is other- 
 wise with regard to persons who, not being them- 
 selves express trustees, have acquired property with 
 
 (a) Walker y. Symonds, 3 Sw. 1, 75 ; Wilson v. Moore, 1 M. 
 & K. 127 ; Greenwood v. Wakeford, 1 Bea. 576 ; Fyler v. Fyler, 
 3 Bea. 550 ; Woodyatt v. Gresley, 8 Sim. 180 ; Fuller v. Knight, 
 6 Bea. 205. 
 
 (6) Brioe v. Stokes, 11 Ves. 319 ; Walker v. Symonds, 8 Sw. 
 1, 64, 67, Eoberts v. Tunstall, 4 Hare, 257. 
 
186 ADAMS'S DOCTRINE OF EQUITY. 
 
 notice of a trust, or have otherwise become trustees 
 by construction of equity; for such persons, though 
 bound in equity to perform the trust, are not in 
 strictness existing trustees, but are to be constituted 
 trustees by a decree. Their possession, therefore, in 
 r*c9n t^® mean time is *adverse to the cestui que 
 '- ^ trust, and, if left undisturbed, will ultimately 
 exclude him.(c) 
 
 The extent of the remedy which equity affords, 
 depends on the character of the wrong done. There 
 does not appear to be any case where the Court has 
 awarded damages for mere injury to the estate ; but 
 the trustee must account for what he has or ought 
 to have received, with interest at four per cent, on 
 moneys improperly retained, (t^)' 
 
 The giving of interest, however, is merely an im- 
 perfect method of estimating the indemnity which 
 the cestui que trust may claim, and does not preclude 
 the adoption of a more accurate rule. If, therefore, 
 the property is at the time of the trustee's misappli- 
 cation actually invested in stock, and is improperly 
 sold out by him, or if the trust deed contains a direc- 
 tion so to invest it, the amount of such stock will be 
 the measure of the indemnity ; and the trustee may, 
 at the option of the cestui que trust, be compelled either 
 to repay the money with interest, or to make good 
 the amount of stock which has been improperly sold, 
 
 (c) Beokford v. Wade, 17 Ves. 97 ; Hovenden v. Annesley, 2 
 Sch. & L. 633 ; Wedderburn v. Wedderburn, 2 K. 722 j S. C 4 
 M. & C. 41 ; 3 & 4 Wm. 4, c. 27, s. 25. 
 
 (d) Ludlow V. Greenhouse, 1 Bligh. N. S. 17, 57; Kocke v. 
 Hart, 11 Ves. 58 ; Tebbs v. Carpenter, 1 Madd. 290. 
 
 ' See notes to pages 56, 57, ante. 
 
ORDINARY AND CHARITABLE TRUSTS. 187 
 
 or which a timely investment would have produced. 
 The eflfect in this respect of an option given by the 
 instrument of trust to invest either in stock or real 
 security, but not exercised by the trustee, appears to 
 be doubtful, (e) If there is also an express direction 
 to accumulate, the replacement may be extended to 
 the amount of accumulation which would have been 
 produced by a proper investment of the dividends. (/) 
 If an improper investment has been made, it is con- 
 sidered, as against the trustee himself, equivalent to 
 no investment. But in favour of the *cestui 
 que trust, it gives an option to claim either the L J 
 investment made, or the replacement of the original 
 fund with interest, according as the one or the other 
 may be most for his benefit, [g) 
 
 If there be circumstances of actual malfeasance, 
 as, for instance, if the trustee has not only neglected 
 to invest the fund, but has applied it to his own 
 purposes, as by using it in his trade, he may be 
 charged with interest at five per cent., instead of four. 
 And the same may be done where his misconduct 
 has been very gross, as where an executor, being 
 directed to lay out property in the funds, had un- 
 necessarily sold out stock, kept large balances in his 
 hands, and resisted payment of debts by a false pre- 
 tense of outstanding demands. Where the improper 
 application has produced an ascertainable profit, as, 
 for example, where the trust money has been applied 
 either solely or as mixed up with other property 
 
 (e) Byrchall v. Bradford, 6 Madd. 255 ; Watts v. Girdlestone, 6 
 Bea. 188 ; Ames v. Parkinson, 7 Bea. 379 ; Shepherd v, Mouls, 4 
 Hare, 500. 
 
 (/) Pride V. Fooks, 2 Bea. 430. 
 
 (g') Lane v. Dighton, Amb. 409 ; Infra, Conversion. 
 
188 Adams's doctrine of equity. 
 
 belonging to the trustee, in carrying on a trade or 
 other speculation, the cestui que trust is entitled to 
 claim the profits. And with this view he may insist 
 on an account of the profits made, so that after they 
 have been ascertained, he may have an option to 
 accept either the amount realized, or interest at five 
 per cent. Qi) 
 
 In some cases, where there has been an express 
 direction to accumulate accompanied by special cir- 
 cumstances of malfeasance, the account has been 
 directed in such a form as to charge the trustee with 
 compound interest, (i) 
 
 The costs of a suit for rectifying a breach of trust 
 are to some extent dependent on the degree of mis- 
 conduct. The general rule seems to be, that if the 
 suit has been actually occasioned by the breach of 
 trust, the trustee must pay the costs. If a suit were 
 r*ft f^i ^^cessary for other purposes, *as for adminis- 
 L -• tering the estate or construing the trusts, he 
 may have his general costs, as between solicitor and 
 client, notwithstanding that it includes a prayer for 
 remedying the efiect of his misconduct. But he 
 may at the same time be compelled to pay any addi- 
 tional costs, which that misconduct occasions. 
 
 The jurisdiction for compelling admittance to 
 copyholds seems analogous to that for compelling 
 performance of a trust. For the copyholder has the 
 beneficial interest in the land, and the lord is bound 
 
 (h) Tebbs v. Carpenter, 1 Mad. 290 ; Crackelt v. Bethune, 1 
 J. & W. 586; Docker v. Somes, 2 M. & K. 65. 
 
 (0 Eaphel v. Boehm, 11 Ves. 92 ; 13 Ves. 407, 590 ; Walker 
 V. Woodward, 1 Russ. 107 ; Tebbs v. Carpenter, 1 Mad. 290 ; 
 Heighington v. Grani, 5 M. & C. 258. 
 
ORDINARY AND CHARITABLE TRUSTS. 189 
 
 to perfect his title by admittance, and to place the 
 evidence of it on the manor rolls. But the lord can- 
 not e converso bring his bill against the copyholder, 
 to compel him to come in and be admitted tenant ; 
 for he has his remedy by seizing the land after pro- 
 clamation made. It is said, too, that if there be 
 error in any adversary proceeding in the lord's Court, 
 the Court of Chancery v?ill order the lord to examine 
 it ; and that if judgment be given in the lord's Court 
 on a copyholder's petition, though no appeal or writ 
 of error will lie, yet the Court of Chancery will cor- 
 rect the proceedings, if anything be done against 
 conscience, (k) 
 
 Besides the ordinary trusts which we have just 
 considered, there is another class of trusts, those for 
 charitable and public purposes, where the legal 
 ownership is conferred on a fiduciary holder, but the 
 trust is declared for general objects, and not for the 
 benefit of a specific owner.^ 
 
 (k) Christian v. Corren, 1 P. Wms. 329; Clayton v. Cookes, 2 
 Atk. 449 ; Ash v. Eogle, 1 Vern. 367 ; Williams v. Lord Lons- 
 dale, 3 Ves. 752 ; Widdowson v. Lord Harrington, 1 J. & W. 
 532. 
 
 ' Upon the subject of charitable trusts, bequests for pious and 
 charitable uses, and also the doctrine of Cypres, see the following 
 authorities : Baptist Association v. Hart's Executors, 4 Wheaton, 
 1 ; Ingliss v. The Trustees of the Sailor's Snug Harbour, 3 Peters, 
 99, Appendix, 481 ; Trustees of the Baptist Association v. Smith, 
 4 Wheaton, 39-43 ; Executors of Burr v. Smith et al., 7 Verm. 
 Eep. 241 ; Gallegor's Ex'rs v. Attorney-General, and Id. v. Lam- 
 bert and wife, 3 Leigh, 450; Shotwell's Executor v. Mott et al., 
 2 Sandf. Ch. Eep. 46; Vidal et al. v. Girard's Ex'rs, 2 How. U. 
 S. Eep. 127. Mr. Justice Baldwin, in the celebrated case of Ma- 
 gill V. Brown, which involved the construction of the will of Sarah 
 
190 Adams's doctrine of equity. 
 
 The meaning of the word charity, as applied to a 
 trust, is different from any signification which it 
 ordinarily bears. 
 
 The word in its widest sense denotes all the good 
 affections which men ought to bear towards each 
 other ; in its most restricted and most usual sense, 
 relief of the poor. In neither of these senses is it 
 employed by the Court of Chancery, but a significar 
 tion has been affixed to it, derived *for the 
 L -' most part from the enumeration given in the 
 Statute of Charitable Uses.(Z) And the purposes 
 enumerated in that act, together with others analo- 
 gous to them, are accordingly considered as the only 
 charities which the Court will recognise. 
 
 The purposes enumerated in the statute as chari- 
 table are "the relief of aged, impotent, and poor 
 people ; the maintenance of maimed and sick soldiers 
 and mariners; the support of schools of learning, 
 free schools, and scholars of Universities ; repairs of 
 bridges, &c. ; education and preferment of orphans ; 
 the relief and maintenance of houses of correction ; 
 marriages of poor maids ; help of young tradesmen, 
 handicraftsmen, and persons decayed; redemption 
 or relief of prisoners or captives ; and the aid of poor 
 inhabitants concerning payment of fifteenths, setting 
 out of soldiers, and other taxes." These are the 
 
 43 Eliz., c. 4. 
 
 Zane (reported in Brightley's Pa. Nisi Prius Reports, p. 347, &c.), 
 gave to the subject of bequests for pious and charitable uses, a 
 most profound investigation, and condensed in the elaborate and 
 learned opinion, which he delivered in that cause, all the English 
 and American learning upon this most interesting branch of Equity 
 jurisprudence. 
 
ORDINARY AND CHARITABLE TRUSTS. 191 
 
 only uses which the statute in terms reaches, but it 
 is not necessarily confined to them ; and gifts, not 
 within its letter, have been deemed charitable within 
 its equity. Such, for instance, are gifts for religious 
 or educational purposes ; for the erection of a hospi- 
 tal or a sessions house ; or for any other beneficial or 
 useful public purpose, not contrary to the policy of 
 the law. But a gift merely for useful or benevolent 
 purposes, without specifying what the purposes are, 
 does not constitute a gift to charity ; because there 
 may be many useful or benevolent purposes, which 
 the Court cannot construe to be charitable ; a gift 
 also to mere private charity is not within the analogy 
 of the statute ; and although there are cases where 
 the Court has apparently interfered in favour of 
 private charity, yet such cases have in fact been 
 those, not of gifts to charitable purposes, but of gifts 
 to individuals with a benevolent purpose. Such 
 for example would be a gift to " poor relations." 
 That is not a charity in the legal sense of the term, 
 but a trust to give to poor relations; and the only 
 question under such a trust is, whether the objects 
 are sufficiently specified to enable *the Court 
 to execute it, or whether the gift is void on L -■ 
 the ground of uncertainty, (wi) 
 
 In order to create a public or charitable trust it is 
 not necessary that the property on which the trust 
 
 (m) Morrice v. Bishop of Durham, 9 Ves. 399, 405 ; 10 Ves. 
 522, 541; Mitford v. Keynolds, 1 Ph. 185; Nash v. Morley, 5 
 Bea. 177; Kendal v. Granger, 5 Bea. 300; Townsend v. Carus, 
 3 Hare, 257 ; Nightingale v. Goulburn, 5 Hare, 484 ; 1 Jarm. on 
 Wills, 192. 
 
192 ADAMS'S DOCTRINE OF EQUITY. 
 
 attaches should be derived from private bounty. 
 The principle is equally applicable to a fund levied 
 by authority of Parliament, and placed in the hands 
 of public officers, in order to its application for public 
 purposes. And in accordance with this view, it has 
 been determined, that since the passing of the Muni- 
 cipal Corporation Act,(n) directing the corporatioa 
 property to be applied, first, for certain specified 
 purposes, and afterwards, for other general purposes 
 for the benefit of the town, a trust has attached on 
 the property, giving jurisdiction in equity to control 
 any improper dealing by the corporation, (o) 
 
 It should be observed, that trusts for charitable 
 purposes, equally with those for individual benefit, 
 must be of a character not prohibited by the policy 
 of the law. A trust therefore to promote rehgion 
 must not be directed to what the law calls a super- 
 stitious use ; as, for example, the maintenance of a 
 priest to pray for the soul of the donor. If such a 
 trust be created in terms which show that the illegal 
 object alone was contemplated, e. g., that the only 
 object was to obtain for the donor the benefit of the 
 prayers, the gift will be simply void. If it appears 
 that charity was the object contemplated, e. g., that 
 it was intended to benefit the priest or to support 
 his chapel, the illegality of the particular method 
 will not exclude some other application, but the fund 
 will be at the disposal of the Crown, to be applied 
 
 (m) 5 & 6 Wm. 4, o. 76, s. 92. 
 
 (o) Att.-Gen. v. Mayor of Dublin, 1 Bligli, N. S. 312 ; Att.- 
 G-en. V. Compton, 1 N. C. C. 417 ; Att.-Gen. v. Aspinall, 2 M. & 
 C. 613 ; Att.-Gen. v. Corporation of Poole, 2 K. 190 ; 4 M. & C. 
 17 ; 8 CI. & F. 409; Att.-Gen. v. Shrewsbury, 6 Bea. 220. 
 
OEDINAET AND CHARITABLE TRUSTS. 193 
 
 *uncler the sign manual for some lawful p^„„, 
 object, (jp) In respect also to gifts or any ■- -■ 
 charitable purpose, whether religious or not, there 
 is an express restriction by statute, invalidating all 
 gifts of or charges on real estate, or on estate savour- 
 ing of the realty, for charitable uses, unless made by 
 indenture twelve months previously to the donor's 
 decease. By the operation of this act, if the trust is 
 entirely for charity, the gift is invalid at law ; if the 
 gift at law is good, yet the trust is invaUd, and the 
 estate must be reconveyed. (g) 
 
 The incidents of a trust for charitable purposes 
 are for the most part the same with those of an 
 ordinary trust. The principal points of distinction 
 are, first, that a charitable trust is not affected by 
 lapse of time in the same manner as a trust for prir 
 vate persons ; and secondly, that where an apparent 
 charitable intention has failed, whether by an incom- 
 plete disposition at the outset, or by subsequent 
 inadequacy of the original object, effect may be given 
 to it by a cy pres or approximate application, to the 
 exclusion of a resulting trust for the donor. 
 
 The first of these peculiarities exists in reference 
 to the rule which has been already stated, that, as 
 between the cestui que trust and an express trustee, 
 no length of time is a bar to the right ; and that, on 
 the other hand, with respect to constructive trustees, 
 or parties who have acquired an estate with notice 
 of a trust, the same principle does not apply. In 
 the case of charities both branches of this rule are 
 
 (p) West V. Shuttleworth, 2 M. & K. 684; Infra, Cy pres 
 Application, 
 (j) 9 Geo. 3, c. 136 ; 1 Jarm. on Wills, 198. 
 
 13 
 
194 ADAMS'S DOCTRINE OF EQUITY. 
 
 subject to modification. With respect to the first 
 branch it has been determined, that if the trustees 
 of a charity have hond fide mistaken the right mode 
 of application, and have actually disbursed the funds 
 in accordance with that mistake, and without notice 
 of the objection, the' disbursements shall not be dis- 
 allowed ;(r) and further, that, although the mere 
 length of an erroneous usage *cannot alter 
 L J the original trust, yet where trusts have been 
 imposed on colleges or other existing corporations, 
 who are under no obligation to accept them, tradi- 
 tional usage may be allowed an effect which in ordi- 
 nary cases it might not possess. And it has been 
 accordingly held that, if there are questions on the 
 original instrument of foundation, and an arrange- 
 ment be fairly made at the time of acceptance, and 
 evidenced by cotemporaneous instruments or by 
 constant subsequent usage, the Court will not dis- 
 turb it, although in its own view of the original 
 instrument such arrangement was in effect a modifi- 
 cation of that which might now be considered the 
 best construction, (s) 
 
 In these instances the lapse of time is allowed to 
 operate iagainst a charity to a greater extent than 
 against an individual. But on the other hand, its 
 operation under the second branch of the rule as a 
 bar to claims against a constructive trustee, was not 
 until the late statute of 3 & 4 Wm. 4, c. 27, available 
 
 (r) Att.-Gren. v. Pretyman, 4 Bea. 462 ; Att.-G-en. v. Drapers' 
 Company, 6 Bea. 382 ; Att.-G-en. v. Mayor of Exeter, Jao. 443 ; 
 2 Russ. 362. 
 
 (s) Attorney-General v. Caius College, 2 K. 150 ; Attorney- 
 General V. Drapers' Company, 6 Bea. 382. 
 
ORDINARY AND CHARITABLE TRUSTS. 195 
 
 to protect a purchaser with notice of a charitable 
 trust, either by analogy to the Statute of Limitations, 
 or as a presumptive bar by acquiescence. The pre- 
 cise effect of the statute does not appear to have been 
 determined. Its enactments are in terms imperative, 
 and it contains no exception in favour of charity. 
 But it seems to have been doubted by Sir Edward 
 Sugden whether charity is not a casus omissus, and 
 whether the former rule does not continue, {t) 
 
 The second and most singular peculiarity is, that 
 where an apparent charitable intention has failed, 
 whether by an incomplete disposition at the outset, 
 or by subsequent inadequacy of the original object, 
 effect will be given to it by a cy pres or approximate 
 application, notwithstanding that in ordinary cases 
 the trust would be void for uncertainty, or would 
 result to the donor or his representatives. 
 
 *The soundness of the distinction thus p^-p.-, 
 drawn is perhaps open to doubt; but its ^ J 
 existence is established by many precedents ; and it 
 appears to rest, partly on the favour due to charity, 
 and partly on the hjrpothesis that the details of a 
 charitable gift are not, like those of a gift to indivi- 
 duals, the primary object of the donor, but that the 
 true intention is, first to effectuate a charity, and 
 seibndly, to do so in the particular way which the 
 trust denotes. Of course this doctrine, whether well 
 or ill founded, cannot apply to an ordinary trust : 
 for there the donor's object is to benefit the persons 
 
 (t) 3 & 4 Wm. 4, c. 27, ss. 24, 25 ; Incorporated Society v. 
 Kichards, 1 Conn. & L. 58 ; Att.-Gen. t. Flint, 4 Hare, 147 ; 
 Commissioners of Donations v. Wybrants, 2 Jones & Latouche, 
 182. 
 
196 Adams's doctrine of equity. 
 
 specified ; and if that benefit is not available, there 
 is no ulterior intention to which effect can be given. 
 In accordance with this principle two doctrines 
 appear to be established; viz., 1. If in a gift to 
 charity an intention be manifested of appropriating 
 the entire fund, it will be effectuated, to the exclu- 
 sion of a resulting trust, notwithstanding that the 
 gift actually made is of a portion only. And such 
 intention may be evidenced, either by words declar- 
 ing an intention to give the whole ; or by a gift of 
 specified sums out of the income, if it appear that at 
 the time of gift such specified sums exhausted the 
 whole available income. For such exhausting gift 
 is considered equivalent to a gift of the whole, and 
 will carry any subsequent increase. If it appears 
 from the instrument of gift that the specified pay- 
 ments were meant as fixed charges, and not by way 
 of illustration only, and that the corpus was meant 
 for the benefit of the immediate donees, they will of 
 course be entitled, in exclusion of the charity, to any 
 subsequent increase. The result of the decisions in 
 this respect is, that an intention in favour of the 
 donee will be presumed, first, if the gift be made to 
 him subject to certain specified payments ; secondly, 
 if it be made on condition of making certain pay- 
 ments, and subject to forfeiture on non-performanfc ; 
 or thirdly, if the donor would be liable to make 
 good the payments, notwithstanding a subsequent 
 r*711 *^^ficiency of the fund. In like manner, if 
 L -I it is apparent that the charity was to have 
 only a .limited interest, but that the immediate 
 donee was to have no benefit, the surplus or the sub- 
 
ORDINARY AND CHARITABLE TRUSTS. 197 
 
 sequent increase will revert to the donor or his 
 heir.(M) 
 
 2. If in a gift to charity the intended object be 
 not specified at all, or not with sufficient certainty; 
 or if it cease to exist, or to afford the means of ap- 
 plying the entire fund, the presumed general object 
 will be effectuated by an application cypres; i. e., an 
 application to some other purpose, having regard as 
 nearly as possible to the original plan. 
 
 The assumption on which this doctrine is based, 
 viz., that the general idea of charity was uppermost 
 with the donor, and that the particular charity spe- 
 cified was merely illustrative, is one of a very doubt- 
 ful character. Lord Eldon repeatedly expressed his 
 disapprobation of it, but considered it firmly es- 
 tablished by precedent, and for that reason refused 
 to overthrow it. (v) It is, however, a mere presump- 
 tion of law ; and, therefore, if it appears from the 
 wording of the instrument that the individual charity 
 was the only one in the donor's mind, and that, if 
 that should fail, he intended the property to revert 
 to himself, there is no equity to alter his disposi- 
 tion, (w) 
 
 (u) Thetford School ease, 8 Eep. 130 ; Att.-Gren. v. Arnold, 
 Show. P. C. 22; Att.-Gen. v. Mayor of Bristol, 2 J. & W. 294 ; 
 Att.-Gen. v. Skinners' Company, 2 Kuss. 407; Att.-6en. v. 
 Smythies, 2 E. & M. 717; Att.-Gen. v. Wilson, 3 M. & K. 362 ; 
 Att.-Gen. v. Drapers' Company, 2 Bea. 508 ; Att.-Gren. v. Coop- 
 ers' Company, 3 Bea. 29; Att-.Gen. v. Grrocers' Company, 6 
 Bea. 526 ; Jack v. Burnett, 12 CI. & F. 812. 
 
 (y) Moggridge v. Thackwell, 7 Ves. 36 ; Mills v. Farmer, 19 
 Ves. 483. ' 
 
 (w) Corbyn v. French, 4 Ves. 418 ; De Themmines v. Bouval, 
 5 Kuss. 288; Att.-Gen. v. Whitchurch, 3 Ves. 141; Cherry v. 
 Mott, 1 M. & C. 123. 
 
198 ADAMS'S DOCTRINE OF EQUITY. 
 
 The manner in which the cy pres application is 
 effected, is by referring it to the Master to settle a 
 scheme, having a regard to the instrument of gift. 
 In ordinary cases this is not difficult ; as for ex- 
 ample, in one instance, where a legacy was given to 
 University College to purchase advowsons, and it 
 was found that they already held as many advowsons 
 r*721 *^^ ^^ ^^^ would permit ; and in another, 
 where a devise was made to Trinity Hall, 
 Cambridge, for the purpose of founding fellowships 
 for the scholars of a particular school, and the col- 
 lege alleged that fellowships of that class were con- 
 trary to their statutes. In both these cases the real 
 intention of the donor was sufficiently obvious. 
 There could be no doubt in the one that he meant 
 to increase the advowsons of the college, or in the 
 other that he meant to provide endowments for the 
 school ; and accordingly the fund was applied in the 
 former case for increasing the value of the existing 
 advowsons, and in the latter it was suggested by 
 Lord Thurlow that it would be near the purpose, if 
 the college would admit the scholars as exhibi- 
 tioners ; or if any other college would receive them 
 as fellows, {x) 
 
 In cases where the charity is of a compound 
 character, it is sometimes difficult to determine in 
 what part of the description its essence resides. A 
 doubt of this kind arose in a case where a gift had 
 been made for apprenticing the sons of poor Presby- 
 terians, resident in the testator's parish ; a surplus 
 
 (x) Att.-Gen. v. Greene, 2 B. C. C. 492 ; Att.-Gen. v. Andrew, 
 3 Ves. 633. 
 
ORDINARY AND CHARITABLE TRUSTS. 199 
 
 arose, to be applied cy pres ; and it was contended 
 on one side, that the proper objects would be poor 
 Presbyterians resident out of the parish; on the 
 other, that they would be poor persons in the parish, 
 not being Presbyterians. The court on looking at 
 all the circumstances, came to the conclusion, that 
 the profession of Presbyterianism, and not the resi- 
 dence in the parish, was in the particular instance 
 the primary object, and decreed in favour of the first 
 scheme. (2/) 
 
 In some instances the object specified is so pecu- 
 liar, that it is difficult to find anything substantially 
 analogous. In this case, if other charities are men- 
 tioned in the will, they may afiord a clue for the 
 guidance of the Court. The application, however, 
 must be a cy pres one to the object which has failed, 
 and not a mere transfer to the other charities. The 
 *principle on which such charities can be r^^q-i 
 available as a guide, appears to be that of 
 ascertaining how much of the original object it is 
 possible to adopt, and then filling up the deficiencies 
 from the other objects. An instance of this kind 
 occurred under a bequest of property on three trusts ; 
 Adz., as to one-half for the redemption of British 
 slaves in Algiers; as to a quarter for Church of 
 England schools in London ; and as to the remaining 
 quarter for poor freemen of the Ironmongers' Com- 
 pany. The first trust failed for want of objects. It 
 was held, that so much of the first trust as conferred 
 a benefit on all British subjects might still be effec- 
 tuated, and that the mode of efiectuating it might 
 
 (y) Att.-Gen. v. Wansay, 15 Ves. 231. 
 
200 ADAMS'S DOCTRINE OF EQUITY. 
 
 be borrowed from the second trust ; and the fund was 
 accordingly applied for the maintenance of Church 
 of England Schools throughout England, (z) The 
 difficulties, however, which may occur in discovering 
 an analogy, will not obviate the necessity of doing 
 it. If the fund is clearly dedicated to charity, the 
 Court of Chancery must so apply it. And similari- 
 ties of character, however remote, may properly 
 warrant a proposed application, if no other plan of 
 nearer affinity can be found. 
 
 The jurisdiction in equity for a cypres application 
 appears to exist in all cases where the original gift 
 creates a trust for distribution in charity, although 
 the trust as designated fails of effect.. But if there 
 be a general indefinite gift to charity or the poor, or 
 a gift to a charity of a superstitious character, which 
 is considered in law as equivalent to an indefinite 
 gift, it seems that the disposition is in the Crown by 
 sign manual.(a) 
 
 The jurisdiction to superintend a charitable trust 
 is set in motion by the information of the Attorney- 
 P^r, . -1 General *suing on behalf of the Crown, or, if 
 the nature of the trust is such that its non- 
 performance has inflicted personal injury on an indi- 
 vidual, then by a compound form of suit, uniting 
 both the public and the private wrong, and called an 
 information and bill. So far as its exercise is re- 
 quired for controlling the management of the pro- 
 
 (z) Att.-Gen. v. Ironmongers' Company, 2 M. & K. 576 ; 2 
 Beav. 313 ; Or. & P. 208 ; 10 CI. & F. 908. 
 
 (a) Moggridge v. Thackwell, 7 Ves. 86 ; Hayter v. Trego, 5 
 Russ. 113; De Themfliines v. Bouval, 5 Russ. 292; Att.-Gen. v. 
 Todd, 1 K. 803 ; Reeve v. Att.-Gen. 8 Hare, 191. 
 
ORDINARY AND CHARITABLE TRUSTS. 201 
 
 perty, it extends to all charities, whether corporate 
 or not, and is regulated by the same principles as in 
 the case of ordinary trusts. The trustee having the 
 legal dominion, may exercise that dominion for eflfec- 
 tuating the objects of his trust, but he cannot do so 
 for any other object ; he may manage the property 
 in a husbandlike way, but he cannot waste or alienate 
 
 it.(6) 
 
 So far as the jurisdiction is sought to be exercised 
 for directing the internal administration of the 
 charity, and determining the manner in which the 
 funds shall be applied, it is confined to charities at 
 large, i. e., such charities as have no charter of in- 
 corporation, but are under the management of pri- 
 vate persons, or of some independent corporation, in 
 whom, as trustees, their property is vested. 
 
 In the case of eleemosynary corporations, i. e., 
 corporations established by charter for the purposes 
 of the charity, and having endowments for that pur- 
 pose, the jurisdiction of equity is confined to the 
 management of the estate, and does not extend to 
 the election or amotion of corporators, or to the in- 
 ternal administration of the charity. The proper 
 jurisdiction for these purposes is that of the visitor, 
 which is incidental to all eleemosynary corporations, 
 and, if not expressly or impliedly conferred by the 
 charter itself, will arise of common right to the 
 founder and his heirs. If the King be founder, or 
 if the heir of the founder be unknown or a lunatic, 
 the jurisdiction will be in the Crown, to be exercised 
 
 (h) Att.-Gen. v. Pargeter, 6 Bea. 150 ; Att.-Gen. v. FooM, 
 6 Bea. 289; Att.-Gen. v. Corporation of Newark, 1 Hare, 
 395. 
 
202 ADAMS'S DOCTRINE OF EQUITY. 
 
 through the Lord Chancellor on petition to him. If 
 the visitor refuses to hear and decide a dispute,- he 
 P^^r-, may be compelled to do so by *mandamus; 
 '■ -' but his decision cannot be controlled. If, 
 however, the visitors are also in receipt of the revenue, 
 so that they are in fact trustees, subject to no inde- 
 pendent control, the j urisdiction of equity will attach ; 
 and the same result will follow when the object 
 sought is beyond the visitor's functions, such, for 
 instance, as a new apportionment of the charity re- 
 venues, (c) 
 
 In addition to the jurisdiction of equity in matters 
 of charity, a special jurisdiction was created by the 
 statute of 43 Eliz. c. 4, called the Statute of Chari- 
 table Uses, for remedying abuses of charitable gifts. 
 And it is thereby enacted, that commissioners may 
 be appointed by the Crown for the regulation of cha- 
 rities, whose decision shall be subject to review by 
 the Lord Chancellor, with a further appeal to the 
 House of Lords. The statute, however, does not 
 exclude the right to proceed in Chancery ; and the 
 proceeding under it has fallen into disuse. ((^) 
 
 There is also a statutory jurisdiction in the Court 
 
 (c) Ex parte "Wrangham, 2 Ves. Jun. 609 ; Ee Queen's Coll. 
 Jac. 1 ; 3 Steph. Bl. 183 j Ex parte Inge, 2 R. & M. 591; Eexv. 
 Archbishop of Canterbury, 15 East, 117 ; Att.-Gren. v. Foundling 
 Hospital, 2 Ves. Jun. 42 ; Att.-Gen. v. Dixie, 13 Ves. 519; Ex 
 parte Kirkby Ravensworth Hospital, 15 Ves. 305 ; Att.-Gren. v. 
 Earl of Clarendon, 17 Ves. 491 ; Ex parte Berkhampstead Free 
 School, 2 Ves. & B. 134 ; Att.-Gen. v. Lubbock, 1 Coop. Ch. 
 Ca. 15 ; Att.-Gen. v. Smythies, 2 R. & M. 717, 737 ; 2 M. & C. 
 185. 
 
 (d) Att.-Gen. v. Mayor of Dublin, 1 Bl. N. S. 312, 347 ; In- 
 corporated Society v. Richards, 1 Conn. & L., 58. 
 
OEDINAEY AND CHARITABLE TRUSTS. 203 
 
 of Chancery itself for remedying abuses by a sum- 
 mary process, instead of the more regular course by 
 information and bill. This jurisdiction is created by 
 52 Geo. 3, c. 101, commonly known as Sir Samuel 
 Eomilly's Act, which directs that, where a breach of 
 trust has been committed by the trustees of a charity, 
 or where the direction of a Court of Equity is deemed 
 necessary for its administration, the parties seeking 
 relief may proceed summarily by a petition, to be 
 sanctioned by the fiat of the Attorney-General. The 
 summary jurisdiction thus conferred, if the statute 
 had been construed in its widest acceptation, would 
 have been one of a very *extensive character, r*iTg-i 
 but it is confined by the decisions to plain 
 breaches of trust, or to cases where no contention 
 exists, and where the trustees are merely asking the 
 direction of the Court. If any question is involved 
 as to who are to be intrusted with the estate, or who 
 are to be entitled to the benefit of it, or if the interest 
 of any stranger may be affected, or if a new applica- 
 tion of the fund is sought, the proper course is by an 
 information, (e) 
 
 In 'the particular case of Grammar Schools an 
 additional jurisdiction has been conferred on the 
 Court by 3 & 4 Vict. c. 77. And authority is given 
 to make decrees and orders, either in the progress of 
 an ordinary suit, or on petition under Sir Samuel 
 Eomilly's Act, for extending the system of education 
 to other branches of learning besides Greek and 
 
 (e) 52 Geo. 3, c, 101 ; Corporation of Ludlow v. Greenhouse, 1 
 B1.N. S. 17; Ee Clarke's Charity, 8 Sim. 34; Ee Phillipott's 
 Charity, 8 Sim. 881 ; Ee West Eetford, 10 Sim. 101 ; Ee Parke's 
 Charity, 12 Sim. 329. 
 
204 Adams's doctrine of equity. 
 
 Latin ; for extending or restricting the right of ad- 
 mission ; and for establishing schemes for the appli- 
 cation of the revenue, having due regard to the inteu: 
 tions of the founder. By the same act authority is 
 given to the Court to enlarge and confer powers for 
 regulating the discipline of such schools, and to ap- 
 point the mode of removing masters. 
 
 A summary jurisdiction is also conferred by sta- 
 tute for superintending and controlling the of&cers 
 of Friendly Societies ; (/) for apportioning charitable 
 bequests between new parishes and districts formed 
 under the Church Building Acts and the remainiag 
 parts of the old parishes, and making a like appor- 
 tionment of debts or charges contracted or charged on 
 the credit of church rates ; {g) and for administering 
 property which was formerly vested in the municipal 
 corporations on charitable trusts. (A) 
 
 (/) 10 Geo. 4, c. 56, ss. 14, 15, 16. 
 (/) 8 & 9 Vict. c. 70, s. 22. 
 (h)bk,Q "Wm. 4, c. 76, s. 71. 
 
OF SPECIFIC PERFORMANCE. 205 
 
 *CHAPTER 11. [*77] 
 
 OF SPECIFIC PERFORMANCE. — ELECTION. — MERITORIOUS OR 
 IMPERFECT CONSIDERATION. — DISCHARGE BY MATTER IN 
 PAIS OF CONTRACTS UNDER SEAL. — RELIEF AGAINST 
 PENALTIES. 
 
 The jurisdiction for compelling performance of a 
 contract involves the consideration, not merely of 
 what is technically termed specific performance, but 
 also of the doctrines of election, of meritorious or 
 imperfect consideration, of the discharge by matter 
 in pais of contra,cts under seal, and of relief against 
 penalties and forfeited mortgages. The equities, 
 therefore, which exist under those heads, except 
 those relating to forfeited mortgages, will form the 
 subject of the present Chapter. The jurisdiction of 
 equity over mortgages will be afterwards separately 
 considered. 
 
 The equity to compel Specific Performance of a 
 contract arises where a contract, binding at law, has 
 been infringed, and the remedy at law by damages 
 is inadequate.' And in order to originate this equity, 
 
 ' The specific performance of a contract, is not a matter of 
 course, but rests in the sound discretion of the Court, and it may 
 be refused when circumstances render it inequitable or improper ; 
 Rogers v. Saunders, 16 Maine, 92 ; Griffith v. Frederick County 
 Bank, 6 Gill. & J. 424; Pigg v. Corder, 12 Leigh, 69, 76; 
 
206 Adams's doctrine of equity. 
 
 it is essential that the contract shall have been made 
 for valuable consideration, and that its enforcement 
 in specie be practicable and necessary. The validity 
 of the contract at law is not material to be here con- 
 sidered. And our attention will therefore be directed 
 to those requisites alone which, assuming the fact of 
 its legal validity, are essential to the equity for speci- 
 fic enforcement. 
 
 r*78T *The first requisite is, that there be a valu- 
 able consideration, either in the way of bene- 
 fit bestowed, or of disadvantage sustained, by the 
 party in whose favour a contract is to be enforced.(a)' 
 
 (a) 2 Steph. Bl. 113. 
 
 Meeker v. Meeker, 16 Conn. 403 ; Seymour v. Delancey, B Cow. 
 445 ; 6 Jolin. C. E. 222 ; King v. Morford, Saxton 274; Anthony 
 V. Leftwick, 3 Eand. 238 ; Prater v. Miller, 3 Hawks, 629 ; Tur- 
 ner v. Clay, 3 Bibb. 52; Frisby v. Ballance, 4 Scam. 287; 
 M'Murtrie v. Bennett, Harring. Ch. 124 ; Dougherty v. Hamp- 
 ston, 2 Blackf. 273; St. John v. Benedict, 6 John. C. R. 
 Ill; Henderson y. Hays, 2 Watts, 148; Perkins v. Wright, 
 3 Har. & M'Hen. 324; Leigh v. Cramp, 1 Ired. Ch. 299; 
 Gould V. Womack, 2 Ala. 83; Tobey v. County of Bristol, 3 
 Story's Rep. 800 ; Dalzell v. Crawford, 1 Parson's Sel. Bq. Ca. 
 45. It is a general rule, that a bill in Chancery will not lie 
 for a specific performance of an agreement relating to personal 
 chattels, the breach of which may be compensated in damages; 
 Cowles V. Whitman, 10 Conn. 121; Hoy v. Hansborough, 1 
 Freem. Ch. 533. Chattels of special value (^pretium affectionis) 
 are exceptions to this rule ; 6 Ves. 773 ; 10 Ves. 163 ; 3 Ves. & 
 Beames, 16; 13 Ves. 95; 3 Ves. 71; 1 Vern. 273; 3 P. Wms. 
 389 ; Brown v. Gilliland, 3 Desau, 541 ; and a specific performance 
 will not be decreed, except where the legal remedy is inadequate, 
 and something remains to be done besides the mere payment of 
 money ; Phyfe v. Wardell, 2 Ed. Ch. 51 ; Bowman v. Irons, 2 
 Bibb. 78. 
 
 ' To entitle a party in Chancery to the aid of the Court in 
 
OF SPECIFIC PERFORMANCE. 207 
 
 The necessity for such consideration exists at law, 
 where the agreement is by simple contract only j but 
 if it be an agreement under seal, technically called a 
 contract by specialty, the solemnity of a deed is held 
 at law to imply a consideration. In equity, however, 
 where a special remedy is sought in addition to the 
 ordinary one of pecuniary recompense, a valuable 
 consideration is always requisite, and no additional 
 force is given to the agreement, because it is evi- 
 denced by an instrument under seal. If there be 
 no consideration, or if the only consideration be a 
 moral duty or natural affection, which are termed 
 good, but not valuable, considerations, the Court of 
 Chancery will not interfere ; e. g., if a man contract 
 after marriage, in consideration of duty or affection 
 towards his wife and children. (6) If, on the other 
 hand, the contract be made before marriage, it will 
 be supported, in consideration of the subsequent 
 marriage, and may be enforced on the application of 
 any person claiming within that consideration. It 
 will not, however, be enforced on the application of 
 a party not within the consideration, to whom a 
 collateral interest has been voluntarily given, — 
 although, if enforced at all, it will be enforced 
 
 (6) Jefferys v. Jefferys, Cr. & P. 141. 
 
 obtaining a specific performance, the instrument 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 and child ; Minturn v. Seymour, 4 
 John, C. K. 500 ; Woodcock v. Bennet, 1 Cowen, 733 ; Cabeen 
 V. Gordon, 1 Hill. Ch. 51 ; and see M'Intyre v. Hughes, 4 Bibb. 
 186 ; Hickman v. Grimes, 1 Marsh, 87. 
 
208 Adams's docteine of equity. 
 
 throughout, (c) The peculiar doctrine of equity with 
 respect to meritorious or imperfect considerations, 
 which are distinguished from valuable considerations 
 on the one hand, and from an absolute want of con- 
 sideration on the other, will be presently considered. 
 It is sufiicient here to remark, that where a decree 
 for specific performance is asked, there must be a 
 valuable consideration to support the equity. A 
 distinction, however, must be noted between value 
 and adequacy. It is essential that the consideration 
 be valuable, but it is not essential *that it be 
 ■- -■ also adequate. The parties themselves are 
 the best judges of that; and therefore mere inade- 
 quacy, if not so gross as to prove fraud or imposition, 
 will not warrant the refusal of relief, (c?)^ 
 
 By parity of reasoning, if a benefit has been con- 
 ferred as the consideration for any act, a party who 
 knowingly accepts that benefit, though he may not 
 be bound by an actual contract, or by a condition of 
 
 (c) 3 Sug. V. & P. 289 ; Davenport v. Bishopp, 2 N. C. C. 
 451 ; 1 Ph. 698. 
 
 (d) 1 Sug. V. & P. 440 ; Borell v." Dann, 2 Hare, 440, 4505 
 Bower v. Cooper, 2 Hare, 408. 
 
 ' Mere inadequacy of price is not per se sufficient to set a,side a 
 transaction, yet where it is so great as to give to the contract the 
 character of unreasonableness and hardship, the Court maybe 
 induced to stay the exercise of its discretionary power, in enforc- 
 ing the specific performance of a private contract for the salfr of 
 land, and leave the party to seek his compensation in damages 
 at law. Osgood et al. v. Franklin et al., 2 John. C. R. 23, S. C. 
 on appeal, 14 John. Eep. 527 ; see also Seymour v. Delancy, 3 
 Cowen, 445 ; G-arnett v. Macon, 2 Brock, 185 ; Rodman v. Zilley, 
 Saxton, 320; White v. Thompson, 1 Dev. & Bat. Ch. 493; Tripp 
 V. Tripp, Rice, Ch. 84; Bean v. Valle, 2 Miss. 126. 
 
OF SPECIFIC PERFORMANCE. 209 
 
 performance annexed to the gift, is compellable in 
 equity to do the act. (e) And in like manner it is a 
 principle of the common law, that if a service has 
 been rendered and accepted by any person, it will be 
 implied, in the absence of a specific contract, that he 
 shall pay as much as it is reasonably worth. (/) 
 
 The necessity for valuable consideration is con- 
 fined in equity, as well as at law, to promises which 
 rest in fieri} If the promise has been already exe- 
 cuted, whether at law by transfer of a legal owner- 
 ship, or in equity by the creation of a final trust, 
 the consideration on which it was made is immate- 
 rial. And it is therefore frequently contended, that 
 effect should be given to a voluntary promise, on the 
 ground that the party making it, though he has not 
 absolutely perfected his gift, has gone sufiiciently far 
 to constitute himself a trustee for the claimant. The 
 exact line of demarcation, where the contract ceases 
 to be an executory agreement, and becomes a per- 
 fected trust in equity, is often difficult to distinguish : 
 but the principle itself is sufficiently clear. If the 
 donor has perfected his gift in the way which he 
 intended, so that there is nothing left for him to do, 
 and nothing which he has authority to countermand, 
 the donor's right is enforceable as a trust, and the 
 consideration is immaterial. Such, for instance, is 
 the case where an instrument of gift has been fully 
 
 (e) Edwards v. Grand Junction Kailway, 1 M. & C. 650 ; 
 Green v. Green, 19 Ves. 665 ; 2 Meriv. 86 ; Gretton v. Haward, 
 1 Sw. 409, 427. 
 
 (/) 2 Steph. Bl. 186. 
 
 ' Equity will aid in enforcing an agreement executed though 
 ■voluntary, aliter if it be executory ; Read v. Long, 4 Yerg. 68. 
 
 14 
 
210 ADAMS'S DOCTRINE OF EQUITY. 
 
 executed, *althoug]i retained in the donor's 
 L -I possession ; {g) where the legal ownership of a 
 right enforceable at law has been completely vested 
 in a trustee for the claimant ; (A) where the legal 
 estate is already in a trustee, and the equitable 
 ownership, retaining the old trustee, has been com- 
 pletely assigned to the claimant, or a trustee for 
 him ;(*) where a chose in action, which is transfera- 
 ble in equity alone, has been transferred by a com- 
 plete equitable assignment ; {k) or where by a formal 
 declaration of trust, which purports to be and is ,3, 
 complete transaction, the donor has assumed the 
 character of a trustee. (J) If, on the contrary, the 
 transaction is incomplete, and its final completion is 
 asked in equity, the Court will not interpose to per- 
 fect the author's liability, without first inquiring 
 into the origin of the claim, and the nature of the 
 consideration given. (?n) 
 
 The second requisite is that the mutual enforce- 
 ment of the contract in specie be practicable, i. e., 
 that the contract be one which the defendant can 
 
 (gr) Conyngham v. Plunkett, 2 N. C. C. 245 ; Hughes v. Stubbs, 
 1 Hare, 476 ; Exton v. Scott, 6 Sim. 31 ; Fletcher v. Fletcher, i 
 Hare, 67. 
 
 (h) Fletcher v. Fletcher. 4 Hare, 67. 
 
 (i) Collinson v. Patrick, 2 K. 122 ; Sloane v. Cadogan, 3 Sug. 
 V. & P., App. 66 ; Beatson v. Beatson, 12 Sim. 281. 
 
 (Jc) Ex parte Pye v. Dubost, 18 Ves. 140 ; MacFadden v. Jen- 
 kins, 1 Hare, 458 ; 1 Ph. 153 ; Fortesoue v. Barnett, 3 M. & K. 
 36; Edwards v. Jones, 1 M. & C.226. 
 
 (I) Meek v. Kettlewell, 1 Hare, 464; 1 Ph. 342. 
 
 (m) Edwards v. Jones, 1 M. & C. 226 ; Dillon v. Coppin, 4 M. 
 &C. 647; Meek V. Kettlewell,! Hare, 464; 1 Ph. 342; Fletcher 
 V. Fletcher, 4 Hare, 67; Ward v. Audland, 8 Bea. 201. 
 
OF SPECIFIC PERFORMANCE. 211 
 
 fulfil ; and the fulfilment of whicli on his part, and 
 also on the part of the plaintiff, can be judicially 
 secured.^ 
 
 If the defendant cannot fulfil the contract which 
 he has made, it may be a ground for exempting the 
 plaintiff from costs on the dismissal of his bill, but it 
 cannot authorize the Court to decree an impossibility. 
 Such, for example, is the case, where the vendor of 
 property has no estate, or only a limited estate 
 therein ;(w) where he holds it as a *trustee r*Q-i-] 
 without authority to sell ; (o) or where, being 
 the absolute owner at the time of his contract, he 
 subsequently conveys to a stranger who is ignorant 
 of the prior sale, and is therefore bound by no equity 
 to give it effect. In this last case, the vendor's mis- 
 conduct may be a ground for charging him with 
 costs, but a decree for performance of the contract is 
 obviously impossible, and there is no jurisdiction in 
 equity to give damages for the breach, {p) 
 
 A similar obstacle is sometimes occasioned, where, 
 after a contract has been made, the property which 
 it affects descends or is devised to persons, who by 
 
 (n) Maiden v. Fyson, 9 Bea. 347. 
 
 (o) Mortlock V. Buller, 10 Ves. 292. 
 
 (p) Todd V. Gee, 17 Ves. 273; Jenkins v. Parkinson, 2 M..& 
 K. 5 ; Sainsbury v. Jones, 2 Bea. 462 ; Nelson v. Bridges, 2 Bea. 
 239. 
 
 ' The specific performance of an agreement will not be enforced 
 where the decree would be a vain and imperfect act. Tobey v. The 
 County of Bristol, 3 Story's Rep. 800. And the specific perform- 
 ance of a contract for the conveyance of land, will not be decreed 
 when the vendor has no title, as it would decree the performance 
 of an unlawful act. Fitzpatrick v. Featherstone, 3 Ala. 40. 
 
212 ADAMS'S DOCTRINE OF EQUITY. 
 
 reason of infancy, or of the limited nature of their 
 estate, are unable to make the requisite conveyance.' 
 The effect of an incapacity of this kind is not to oust 
 the jurisdiction of equity, but to delay its exercise 
 until the requisite capacity is attained. The incon- 
 venience, however, has been remedied by a recent 
 statute, and it is enacted that in such cases, after a 
 decree has been made for specific performance, the 
 Court may direct a conveyance in the same manner 
 as in the case of an incapacitated trustee. (5) A 
 corresponding authority is given by another statute, 
 where a contracting party becomes lunatic after a 
 contract has been made.(r) 
 
 If the defendant, though able to fulfil his contract, 
 cannot be judicially compelled to do so, the jurisdic- 
 tion of equity is equally at an end. Such, for ex- 
 ample, is the case where a tradesman has contracted 
 to sell the good will of a business, unconnected with 
 any specific property, or where an actor has engaged 
 to perform at a particular theatre f for the Court is 
 incompetent to tell the actor what parts he shall 
 perform, or how he shall perform them ; or to tell 
 
 (2) 1 "Wm. 4, c. 60, ss. 16 and 17. 
 (r) 1 Wm. 4, c. 65, s. 27. 
 
 ' The contract of the ancestor was decreed to be performed by 
 the infant heir-at-law, who was allowed six months after coming 
 of age to show cause. Glaze v. Drayton, 1 Desau, 109 ; Wilkin- 
 son V. Wilkinson, a minor, 1 Desau, 201. Where specific per- 
 formance of a contract would be decreed between the original 
 parties to a contract, it will be decreed between all claiming under 
 them if there are no intervening equities controlling the case. 
 Hays V. Hall, 4 Porter, 374. 
 
 ' Hamblin v. Dinneford, 2 Edw. Ch. 529. 
 
OF SPECIFIC PERFORMANCE. 213 
 
 the tradesman how he shall induce his customers to 
 employ his *assignee. (s) Such again is a con- poo-i 
 tract for entering into a partnership, where 
 no term is fixed for its duration, and where the de- 
 cree might therefore he nullified by an immediate 
 dissolution ; or for granting a lease, where the term 
 contracted for has expired before the hearing of the 
 cause. It seems, however, that if special cause be 
 shown, the Court may insist on such a lease being 
 executed ; and dated as of the time when it ought to 
 have been made, and may compel the lessor to admit 
 such date as the true one in any proceeding at law. (t) 
 If, when the cause comes on for hearing, the 
 plaintiff's part of the agreement has not been per- 
 formed, and its fulfilment by him cannot be secured, 
 there is a want of mutuality between the parties.' 
 And such want of mutuality, though it may not in 
 all cases . absolutely exclude the jurisdiction, is a 
 material ingredient in restraining its exercise. For 
 example, where an agreement had been made be- 
 tween the plaintiff and the defendant, that the plain- 
 tiff should supply certain acids for the defendant, 
 and that the defendant should purchase them from 
 the plaintiff alone, the Court refused to restrain the 
 
 (s) Coslake v. Till, 1 Buss. 376 ; Kemble v. Kean, 6 Sim. 333; 
 Dietrichscn v. Cabburn, 2 Ph. 52. 
 
 (t) Hercy v. Birch, 9 Ves. 357 ; Nesbitt v. Meyer, 1 Sw. 223. 
 
 ' The contract or agreement sought to be enforced, must be 
 mutual, and the tie reciprocal, or a Court of Equity will not en- 
 force a performance. McMurtrie v. Bennett, Harring Ch. 124 ; 
 Hawley v. Sheldon, Id. 420 ; Hutcheson v. McNutt, 1 Ham. 14 ; 
 Cabeen v. Gordon, 1 Hill Ch. 51 ; Benedict v. Lynch, 1 John. C. 
 R. 370 ; Ohio v. Baum, 6 Ham. 383. 
 
214 ADAMS'S DOCTRINE OF EQUITY. 
 
 defendant from purchasing elsewhere, because it 
 could not compel the plaintiff to furnish all the acids 
 which might be required. And it has been held on 
 the same principle, that an infant cannot sustain a 
 suit for specific performance of a contract made by 
 him, for, if a decree were made in his favour, it 
 would be impossible to compel him to execute that 
 decree, (u) 
 
 The third requisite is, that an enforcement in 
 specie be necessary, i. e., it must be really important 
 to the plaintiff, and not oppressive on the defendant. 
 P^nq-i *It must be really important to the plain- 
 tiff; for the equitable remedy is not concur- 
 rent with the legal one, but supplemental to it, and 
 will not therefore be substituted for such legal re- 
 medy, unless a particular necessity be shown. In 
 accordance with this principle, specific performance 
 may be enforced of contracts for the sale of land, of 
 shares in a public company, (u) or of a life an- 
 nuity ;(i«) for refraining from specific injurious acts, 
 and generally for any purpose, where the specific 
 thing or act contracted for, and not mere pecuniary 
 compensation, is the redress practically required, (a;) 
 On the other hand, it will not ordinarily be decreed 
 
 (u) Hills V. Crolls, 2 Ph. 60; Flight v. Bolland, 4 Euss. 298; 
 Bozon V. Farlow, 1 Meriv. 459 ; Pickering v. Bishop of Ely, 2 
 N. C. C. 249; Salisbury v. Hatcher, 2 N. C. C. 54; Dietrichsen 
 V. Cahburn, 2 Ph. 52; Rolfe v. Rolfe, 15 Sim. 88. 
 
 (y) Duncuft V. Albrecht, 12 Sim. 189 ; Colombine v. Chiches- 
 ter, 2 Ph. 27. 
 
 (w) Withy V. Cottle, 1 S. & S. 174 ; Clifford v. Turrell, 1 N. 
 C. C. 138. 
 
 (x) Adderley v. Dixon, 1 S. & S. 610. 
 
OF SPECIFIC PERFORMANCE. 215 
 
 on a contract for the sale of stock or goods ; because 
 with a sum equal to the market-price, the plaintiff 
 may buy other stock or goods of the same descrip- 
 tion. (2/) On the same principle, a covenant to repair 
 a house, or to put lands into a particular state of 
 cultivation, will not be enforced in equity ; for the 
 matter really in controversy is nothing more than 
 the cost of employing some other person to do the 
 work. In the case of a contract for building a house, 
 and not for repairing only, the application of the 
 principle is doubtful, but if the building be one which 
 the defendant only can erect, and the non-erection 
 of which cannot be compensated by money, the juris- 
 diction is clear, and the Court will see that the work 
 is properly done, (z) 
 
 It must not be oppressive on the defendant. If 
 its importance to the plaintiff be shown, a material 
 step is gained towards obtaining a decree. But the 
 establishment of this fact is not conclusive ; for how- 
 ever important specific performance may be to the 
 plaintiff, yet he has at all events another remedy by 
 damages at law ; and it is therefore open to the de- 
 fendant to contend that a wrong *would be r^QA-] 
 inflicted on him by going beyond the ordinary 
 remedy, greater than would be inflicted on the 
 plaintiff by refusing to interpose, (a) Specific per- 
 formances will accordingly be refused, if there has 
 been misrepresentation by the plaintiff on a material 
 
 (y) Cudd V. Butter, 1 P. W. 570 ; Doloret v. Eothschild, 1 S. 
 & S. 590 ; Adderley v. Dixon, 1 S. & S. 610. 
 
 (2) Errington v. Aynesley, 2 B. C. C. 342 ; Flint v. Brandon, 
 8 Ves. 164 ; Storer v. Great Western Railway, 2 N. C. C. 48. 
 
 (a) Wedgwood v. Adams, 6 Bea. 600. 
 
216 ADAMS'S DOCTRINE OF EQUITY. 
 
 point, although it may not be sufficient to invalidate 
 the contract ; (6) if he has induced the defendant to 
 execute a written agreement, on the faith of his ver- 
 bal promise that it shall be subsequently altered ; (c) 
 or if after making a contract in writing, he has put 
 an end to it by a parol waiver, although it is doubt- 
 ful whether such a waiver would be good at law in 
 respect of a contract aiFected by the Statute of 
 Frauds, (c?)' 
 
 (6) Cadman v. Horner, 18 Ves. 10 ; Clermont v. Tasburgh, 1 
 J. & W. 112; Bradley V. Collins, You. 317; 1 Sug. V. & P. 
 338 ; Nelthorpe v. Holgate, 1 Coll. 203. 
 
 (c) Clarke v. Grant, 14 Ves. 519 ; Omerod v. Hardman, 5 Ves. 
 722 ; Attorney-General v. Jackson, 5 Hare, 366. 
 
 (d) Goss V. Lord Nugent, 5 B. & Ad. 58 ; Kobinson v. Page, 
 3 Kuss. 114, 119 ; 1 Sug. V. & P., c. Hi., s. 9. 
 
 ' Where a contract is hard, and destitute of all equity, the court 
 will leave the parties to their remedy at law ; and if such remedy 
 has been lost by negligence, they must abide the consequences. 
 King V. Hamilton, 4 Pet. 311 ; Western Rail-Road Corporation 
 V. Babcock, 6 Met. 346 ; Perkins v. Wright, 3 Har. & McHen. 
 324 ; Leigh v. Cramp, 1 Ired. Ch. 299 ; Hall v. Ross, 3 Hey. 
 200; Rice v. Rawlings, Meigs, 496; Eastland v. Vanarsdale, 3 
 Bibb. 274; Wingate v. Pry, Wright, 105; Edwards v. Handley, 
 Hardin, 602. And when one of the parties to a contract has been 
 guilty of unfair conduct, in relation to the contract of which he 
 seeks the specific performance, his bill will be dismissed and he 
 will be left to his legal remedy. Thompson v. Tod, Pet. C. C. 380 ; 
 Prisby v. Ballance, 4 Scam. 287. So* where the contract is un- 
 reasonable. McWhorter v. McMahan, 1 Clark, 400. And where 
 it is entered into for the purpose of defrauding a creditor. St. 
 John V. Benedict, 6 John. C. R. 111. Or was not originally honest 
 and fair. Carberry v. Tannehill, 1 Har. & J. 224. The intoxica- 
 tion of a purchaser at the time of sale, will not be ground for re- 
 fusing to enforce specific performance of the contract against him, 
 unless it appear that his intoxication was produced or procured by 
 
OF SPECIFIC PEKPORMANCE. 217 
 
 In accordance with the same principle, it is held 
 that where specific performance is asked of a contract 
 for the purchase of real estate, the defendant may 
 have the title examined by a Master ; so that its 
 validity may be sifted in a way which would not be 
 possible on a mere abstract, authenticated as the 
 vendor thinks proper, and that, in consideration of 
 the relief sought beyond the law, he may have an 
 assurance about the nature of his title, such as he 
 cannot have elsewhere, (e) If the investigation shows 
 a reasonably clear, and marketable title, specific per- 
 formance will be compelled. But if there be a ra- 
 tional doubt on its validity, the Court, though it may 
 be of opinion that the title is good, will not compel 
 the purchaser's acceptance, but will leave the parties 
 tolaw.(/)' 
 
 (e) Jenkins v. Hiles, 6 Ves. 646, 653. 
 
 (/) Stapylton v. Scott, 16 Ves. 272 ; Jervoise v. Duke of 
 Northumberland, IJ. & W. 559, 569. 
 
 the vendor, or that undue advantage was taken of it. Maxwell v. 
 Pittenger, 2 Green Ch. 156; Rodman v. Zilley, Saxton, 320; 
 Whitesides v. G-reenlee, 2 Dev. Ch. 152; Contra, Prentice v. 
 Achorn, 2 Paige, 30. 
 
 ' Butler V. O'Hear, 1 Desau, 382 ; Longworth v. Taylor, 1 
 McLean, 395 ; Watts v. Waddle, 6 Pet. 389 ; Bates v. Delavan, 
 5 Paige C. R. 299 ; Winne v. Reynolds, 6 Paige C. R. 407 ; 
 Dutch Church v. Mott, 7 Paige C. R. 77 ; Gans v. Renshaw, 2 
 Barr, 34 ; Fitzpatrick v. Peatherstone, 3 Ala. 40 ; Beckwith v. 
 Kouns, 6 B. Monr. 222 ; Hepburn v. Auld, 5 Cranch, 262, 275. 
 But a Court of Equity will decree a specific performance of a con- 
 tract for the sale of lands, if the vendor is able to make a good 
 title at any time before the decree is pronounced. Hepburn v. 
 Dunlop, 1 Wheat. 179 ; Baldwin v. Salter, 8 Paige, 473 ; Hep- 
 burn V. Auld, ubi. supra ; Graham v. Hackwith, 1 Marsh, 423 ; 
 
218 ADAMS'S DOCTRINE OF EQUITY. 
 
 Specific performance may be refused where the 
 defendant has by mistake, not originating in mere 
 r*Qc;-) carelessness, *entered into a contract framed 
 differently from his own intention ; notwith- 
 standing that there is no unfairness on the plaintiff's 
 part, and no defect or doubt in his title ; {g) and even 
 the mere fact that the contract is a hard one, and 
 would press heavily on the defendant, has in some 
 cases been considered a ground for refusing to inter- 
 fere, (/i)' 
 
 In applying the. equity of specific performance to 
 
 (^) Clowes V. Higginson, 1 Ves. & B. 524, commented on in 1 
 Sug. V. & P. 228 ; Townsend v. Stangroom, 6 Ves. 328 ; Malins 
 V. Freeman, 2 K. 25 ; Kennedy v. Lee, 3 Meriv. 441. 
 
 Qi) Wedgwood v. Adams, 6 Bea. 600 ; Talbot v. Ford, 13 Sim. 
 173 ; Pickering v. Ely, 2 N. C. C. 249, 266. 
 
 Tyree v. Williams, 3 Bibb. 366 ; Seymour v. Delancey, 3 Cowen, 
 445. And where a vendor of land cannot make a valid title to 
 the whole land sold, the vendee may insist upon the specific per- 
 formance by the vendor, so far as such vendor can execute it. 
 Jacobs V. Locke, 2 Ired. Ch. 286 ; Henry v. Liles, Id. 407. 
 
 ' King V. Hamilton, 4 Pet. 311; Bradbury v. White, 4 Greenl. 
 391 ; Yancy v. Green, 6 Dana, 444 ; Orrear v. Tanner, 1 Bibb. 
 237 ; Frisby v. Balance, 4 Scam. 287 ; Western Kail-Road Com- 
 pany V. Babcock, 6 Met. Rep. 346 ; Morss v. Elmendorf, 11 
 Paige, 277; Coles & others, Ex'rs, v. Browne, 10 Paige, 526; 
 Schmidt V. Livingston, 3 Edw. Ch. Rep. 213. 
 
 But where a mistake is a matter deemed perfectly immaterial 
 by both parties at the time of the contract, which would not have 
 varied it if it had been known, and of which both parties were 
 equally ignorant, and where the contract is an advantageous one to 
 the purchaser — Quere, whether a Court of Equity should inter- 
 fere. McFerran v. Taylor, 3 Cranch, 270. And a Court of Equity 
 will carry into effect the original intention of the parties when 
 defectively expressed in an instrument through fraud or mistake. 
 Hunt V. Freeman, 1 Ham. 490. 
 
OF SPECIFIC PERFORMANCE. 219 
 
 real estate, there are some modifications of legal 
 rules, which at first sight appear inconsistent with 
 them, and repugnant to the maxim, that " equity 
 follows the law." The modifications here referred 
 to are those of enforcing parol contracts relating to 
 land, on the ground that they have been already 
 performed in part ; of allowing time to make out a 
 title beyond the day which the contract specifies ; 
 and of allowing a conveyance with compensation for 
 defects. The wisdom of permitting any deviation is 
 a subject admitting of much doubt. But the particu- 
 lar doctrines now in question are firmly established 
 by the course of precedent, and may perhaps be con- 
 sidered, not so much deviations from the rule of law, 
 as subordinate equities, or developments from the 
 original doctrine, that specific performance of a con- 
 tract, and not pecuniary compensation for its breach, 
 is the equitable measure of redress. 
 
 The first of these subordinate equities is that of 
 enforcing parol contracts relating to land, on the 
 ground that they have been already performed in 
 part. It is enacted by the Statute of Frauds, that 
 no action shall be brought on any contract or sale of 
 lands, tenements, or hereditaments, or any interest 
 in or concerning them, unless the agreement or some 
 memorandum or note thereof shall be in writing and 
 signed by the party to be charged therewith, or some 
 other person thereunto by him lawfully *au- r^gg-i 
 thorized.(i) If the requirements of this 
 statute are not complied with, a contract falling 
 within its scope, so long as it remains in fieri, cannot 
 be enforced either at law or in equity. It sometimes 
 
 (t) 29 Car. 2, c. 3, s. 4. 
 
220 Adams's doctrine of equity. 
 
 however happens that a contract which is still in 
 fieri at law, has been already performed by construc- 
 tion of equity ; for if it is one of which specific per- 
 formance would be decreed, it is itself in some sort 
 an equitable title ; and if the parties have clothed- 
 that title with possession, or have otherwise acted on 
 it as an existing ownership, they are held to have 
 perfected their agreement in equity; and, if the 
 terms of their parol contract can be proved, may be 
 decreed to perfect it by a conveyance, at law. 
 
 The doctrine on this point is called the doctrine 
 of part performance,' and its principle appears to be 
 
 ^ In nearly every State in the Union, the rule is settled, that 
 part performance takes a parol agreement out of the Statute of 
 Frauds ; Newton v. Swazey, 8 N. H. 9 ; Downey v. Hotchkiss, 2 
 Day, 225; Annan v. Merrit, 13 Conn. 478; Pugh v. Good, 3 
 Watts & Serg. 56 ; Harris v. Knickerbocker, 5 Wend. 688 ; Park- 
 hurst V. Van Cortland, 14 Johns. 15 ; Hall & wife v. Hall et al., 1 
 Gill. 383; Tilton v. Tilton, 9 N. H. 386 ; Wilde v. Fox, 1 Kand. 165. 
 
 But in some of the States, as in Tennessee, North Carolina, 
 Massachusetts, and Maine, the rule is dififerent. See Patton v. 
 McClure, 1 Mart. & Yerg. 333 ; Ridley v. McNairy et al., 2 Humph. 
 174 ; Stearns v. Hubbard, 8 Green. 320 ; Wilton v. Harwood, 23 
 Maine, 131 ; Robeson v. Hornbaker, 2 Green. Ch. 60 ; Brooks v. 
 Wheelock, 11 Pick. 439 ; Wingate v. Dail, 2 Har. & J. 76 ; Ellis 
 V. Ellis, 1 Dev. Eq. 341 ; Albea v. Griffin, 2 Dev. & Bat. Eq. 9 ; 
 Dunn V. Moore, 3 Ired. Eq. 364 ; Allen v. Chambers, 4 Id. 125. 
 
 Payment or part payment of the purchase money, is not such a 
 part performance of a parol contract, as will take the case out of 
 the Statute of Frauds. Parker v. Wells, 6 Wharton, 153 ; Jack- 
 son V. Cutright, 5 Munf. 308 ; Hatcher v. Hatcher, 1 M'MuUan's 
 Ch. 311 ; Smith V. Smith, 1 Rich. Ch. 130; Anderson v. Chick, 1 
 Bailey Ch. 118 ; Hood v. Bowman, 1 Freem. Ch. 290 ; Bean v. 
 Valle, 2 Miss. 126 ; Johnston v. Glancey, 4 Blackf. 94 ; Sites v. 
 Keller, 6 Ham. 483 ; contra, Townsend v. Huston, 1 Har. 532 ; 
 M'Mutrie v. Bennett, 8 Harring Ch. 124. 
 
 But where the purchaser has taken possession, paid the purchase 
 
OF SPECIFIC PERFORMANCE. 221 
 
 that, if one of the contracting parties induce the 
 other so to act, that, if the contract be abandoned, 
 he cannot be restored to his former position, the con- 
 tract must be considered as perfected in equity, and 
 a refusal to complete it at law is in the nature of a 
 fraud. Such, for instance, is the case, where upon a 
 parol agreement for the purchase of an estate, a 
 party, not otherwise entitled to the possession, is 
 admitted thereto ; for if the agreement be invalid, he 
 is made a trespasser, and is liable to answer as a 
 trespasser at law. The equity, is still stronger if, 
 after being let into possession, he has been allowed 
 to build and otherwise to expend money on the 
 
 money, and made improvements thereon, equity will enforce a 
 specific performance. Casler v. Thompson, 3 Green Ch. 59 ; 
 Wetmore v. White, 2 Cai. Ca. 87 ; Ellis v. Ellis, 1 Dev. Ch. 180 ; 
 (contra, S. C. 341;) Smith v. Smith, 1 Rice Ch. 130; Massey 
 V. M'llwain, 2 Hill Ch. 421 ; Cox v. Cox, Peck, 443 ; see also 
 Johnston v. Glancey, 4 Blackf. 94 ; Tibbs v. Barker, 1 Blackf. 
 58 ; Moreland v. Lemasters, 4 Blackf. 383. 
 
 So it is a sufficient part performance to take the case out of the 
 Statute of Frauds for the purchaser to take possession of the lands 
 sold by virtue of the agreement, where the assent of the vendor is 
 shown, or is inferable. Smith v. Underdunk, 1 Sandf Ch. R. 
 579; Pugh v. Good, 3 Watts & Serg. 56; Moale v. Buchanan, 11 
 Gill. & J. 314 ; Hart v. Hart, 3 Desau, 592 ; Anderson v. Chick, 
 
 1 Bailey Ch. 118; Brock v. Cock, 3 Porter, 464; Waggoner v. 
 Speck, 3 Ham. 294. 
 
 But it has been held that delivery of possession of a part of the 
 land is not sufficient; Allen's Est., 1 Watts & Serg. 383; or where 
 the party going into possession made temporary improvements 
 much less in value than the rent of the premises ; Waek v. Lorber, 
 
 2 Wharton, 387 ; neither is the remaining in possession of the 
 purchaser, if he was in possession at the time of the purchase ; 
 Hatcher v. Hatcher, 1 M'Mullan Ch. 311 ; Johnston v. Glancey, 
 4 Blackf. 94. 
 
222 ADAMS'S DOCTRINE OF EQUITY. 
 
 estate. If the possession may be referred to an inde- 
 pendent title, e. g., where it is held under a previously 
 existing tenancy, the same principle does not apply, 
 unless the parties so conduct themselves, as to show 
 that they are acting under the contract, nor does it 
 apply to any acts which do not alter the position of 
 the parties. Such, for instance, are the taking of 
 surveys, the preparation of conveyances, the payment 
 of earnest, and even the payment of purchase money 
 itself; for, although all these acts are in some sense 
 a performance of the contract, yet their consequences 
 pni,-| may be set right by *damages at law, and 
 they do not place the parties in a position 
 from which they can only be extricated by its com- 
 pletion. (^) 
 
 The same principle which estabhshes a parol con- 
 tract, where the title under it is sustained by part 
 performance, is also applicable where the purchaser 
 of real estate has waived by his conduct any ob- 
 jection of title.^ The general rule is, that a contract 
 
 (k) Mitf. 266; 1 Sug. V. & P., c. iii.,s. 7; Wills v. Stradling, 
 3 Ves. 378 ; Cootli v. Jackson, 6 Ves. 12 ; Clinan v. Cooke, 1 
 Seh. & L. 22, 41 ; Sutherland v. Briggs, 1 Hare, 26 ; Dale v. 
 Hamilton, 5 Hare, 369, 381 ; Mundy v. JolifFe, 5 M. & C. 167. 
 
 ' And there is a settled distinction between the case of a 
 vendor, coming into a court of equity, to compel a vendee to per- 
 formance, and of a vendee resorting to equity to compel a vendor 
 to perform. In the first case if 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 agreement, there is much 
 greater reason for affording him the aid of the court, where he is 
 desirous of taking the part to which a title can be made. Waters 
 V. Travis, on Appeal, 9 Johns. Rep. 450. 
 
OF SPECIFIC PERFORMANCE. 223 
 
 for the purchase of realty imphes as one of its terms 
 that a title shall be shown. And if there be no 
 "waiver of this right in the contract, it cannot be 
 afterwards waived at law by parol, for such waiver 
 would in effect create a new contract, to be proved 
 partly by the written agreement and partly by the 
 subsequent parol waiver. (Z) In equity, however, 
 the purchaser may accept the defective title, and by 
 treating the contract as already performed, may pre- 
 clude himself from insisting on any further title. 
 He may, for instance, thus bind himself by taking 
 possession and doing acts of ownership after he is 
 aware that objections exist, where such possession 
 and acts of ownership are not authorized by his 
 contract ; or he may do so by simple acquiescence. 
 The waiver, however, must be intentional ; and his 
 conduct is merely evidence from which the intention 
 may be presumed. If, therefore, there be a subse- 
 quent treaty respecting objections, the presumption 
 of waiver is at an end.(m) And even if he has 
 waived his right to call for a title, yet if the title be 
 proved bad, he is not compelled to accept it, unless 
 he has expressly contracted to take such title as the 
 vendor has. (n) 
 
 The second equity is that of allowing time to make 
 out *a title, beyond the day which the con- r*Qo-| 
 tract specifies. It is an obvious principle, 
 
 (I) Goss V. Lord Nugent, 5 B. & Ad. 58. 
 
 (m) KnatchbuU v. Grueber, 1 Mad. 153, 170 ; Burroughs v. Oak- 
 ley, 3 Sw. 159 ; Calcraft v. Roebuck, 1 Ves. J. 221 ; Osborne v. 
 Harvey, 1 N. C. G. 116 ; 2 Sug. V. & P., c. viii., s. 1. 
 
 (n) Warren v, Richardson, You. 1 ; Blaohford v. Kirkpatriok, 6 
 Bea. 232 ; Duke v. Barnett, 2 Coll. 337. 
 
224 ADAMS'S DOCTRINE OF EQUITY. 
 
 both of law and of equity, that no one can have a 
 contract enforced in his favour, unless he has per- 
 formed, or is ready to perform, his own part. And 
 it would apparently follow from this principle that, 
 if the seller of an estate has contracted to show a 
 title by a specified day, and has failed to do so, he 
 cannot afterwards enforce his contract. This conclu- 
 sion is accurate with respect to proceedings at law, 
 but is modified in equity by the doctrine already 
 noticed, that the contract itself is in the nature of a 
 title. And it is accordingly held that if a substantial 
 ownership exists, though the title be not fully cleared 
 on the appointed day, specific performance may be 
 decreed ; and the Court may rectify the incidental 
 delay by giving the intermediate rents to the pur- 
 chaser, and interest on the purchase money to the 
 vendor. 
 
 The doctrine on this point is expressed by the 
 maxim, that " time is not of the essence of a con- 
 tract in equity." 
 
 It is not, however, to be understood from this 
 maxim that time cannot be made of the essence of 
 the contract. The mere fact that a day has been 
 specified for completion, will not per se render it es- 
 sential. But the parties may contract on what terms 
 they will, and may declare, if they think fit, that it 
 shall be so considered. The same conclusion may 
 be drawn by implication from the nature of the pro- 
 perty to which the contract refers ; as, for instance, 
 if it be property in reversion, or if it be required for 
 the purposes of a trade or manufactory, or be of a 
 fluctuating value. If time is not originally declared 
 essential, it cannot be made so by either party alone. 
 
OF SPECIFIC PERFORMANCE. 225 
 
 But if delay takes place, the aggrieved party may 
 give notice that he abandons the contract, and if the 
 other makes no prompt assertion of his right, he will 
 be considered as acquiescing in such notice, and as 
 abandoning his equity for specific performance. (0)1 
 
 *In the absence of any special matter, a 
 wide liberty as to time is given to the ven- ^ ' J 
 dor. He is permitted to make out his title after the 
 commencement of a suit, or at any time before 
 the making of a final decree, subject however to a 
 liability for costs, where the title has not been shown 
 before litigation began, (p) And in some cases where 
 a person, being owner of a portion only of the estate, 
 or having but a limited interest therein, has hand 
 fide contracted for a sale of the whole, he has been 
 
 (o) Walker v. Jeffei-ys, 1 Hare, 341, 348 ; King v. Wilson, 6 
 Bea. 124 ; 1 Sug. V. & P., c. v. 
 
 (p) Townsend v. Champernowne, 3 Y. & C. 505 ; Scoonesv. Mor- 
 rell, 1 Bea. 251. 
 
 ' Time is not generally of the essence of the contract, but where 
 it appears that time is really material to the parties, the right to 
 a specific performance may depend on it ; Grarnett v. Macon, 2 
 Brock. 185; S. C, 6 Call. 308. And where by lapse of time the 
 value of the property is greatly diminished, performance will not 
 be compelled; M'Kay v. Carrington, 1 M'Lean, 50. So where ' 
 the vendee has purchased to sell, time is of the essence of the con- 
 tract; Id. See, also, Benedict v. Lynch, 1 John. C. K. 370; 
 Jackson v. Ligon, 3 Leigh, 161. But see Brashier v. Grratz, 6 
 Wheaton, 528 ; Bank of Columhiav. Wagner, 1 Pet. 465 ; Hepburn 
 V. Auld, 5 Cranch, 262 ; where in the Supreme Court of the 
 United States it was held, that time is not of the essence of a con- 
 tract of sale ; and a failure on the part of vendor or purchaser on a 
 stipulated day, does not of itself deprive him of the right to a 
 specific performance when he is able to comply with his part of the 
 
 agreement. 
 
 15 
 
226 Adams's doctrine of equity. 
 
 allowed time to obtain a title to the rest,' or to extend 
 his interest into a fee. (q) 
 
 It has been sometimes attempted to extend the 
 maxim, that " time is not of the essence of a contract" 
 to cases where covenants have been contained in a 
 lease that the lessor will renew, on request, within a 
 specified time, and the lessee has failed in making the 
 request. In cases of this kind, if the delay has been 
 occasioned by unavoidable accident or misfortune 
 which has disabled the lessee from applying at the 
 stated time, it seems that he may have relief in 
 equity. But unless there be some special circum- 
 stances of excuse, a specific performance will not be 
 decreed ; for the contract is, that the question of re- 
 newal or non-renewal shall be determined at the 
 time appointed, and if the lessee were relievable, 
 notwithstanding the delay, the effect would be to 
 bind the lessor, and to leave himself unbound, (r) 
 
 The third equity is that of allowing a conveyance 
 with compensation for defects where a contract has 
 been made for sale of an estate, which cannot be 
 literally performed in toto, whether by reason of an 
 unexpected failure in the title to part, of inaccuracy 
 in the terms of description, or of diminution in value 
 by liability to a charge. It is not unusual to pro- 
 r*Qm ^^^^ against these contingencies by a *con- 
 dition that misdescriptions and errors shall 
 not vitiate the sale, but that a compensation shall be 
 
 (q) Esdaile v. Stephenson, 2 Sug. V. & P. 30 ; Chamberlain v. 
 Lee, 10 Sim. 444; Salisbury v. Platoher, 2 N. C. C. 54. 
 
 ()•) Bayley v. Corporation of Leominster, 3 B. C. C. 529; 
 City of London 7. Mitford, 14 Ves. 41 ; Harries v. Bryant, 4 Euss. 
 
 89. 
 
OF SPECIFIC PERFORMANCE. 227 
 
 given for the difference in value. But, unless there 
 be such a condition, the contract cannot be partially 
 enforced at law ; for a Court of law has no adequate 
 machinery by which it may investigate the several 
 points of variance, and determine how far they affect 
 the essence of the contract, and how far they may 
 be remedied by compensation. The vendor, there- 
 fore, cannot at law recover part of the purchase- 
 money if unable to convey the entire property, nor 
 can the purchaser insist on paying a part only in 
 respect of a partial failure in the sale, (s) In equity, 
 on the other hand, there is no difficulty in making 
 the requisite investigation ; and therefore, on a bill 
 for specific performance, inquiry will be made 
 whether the property can be either literally or sub- 
 stantially transferred. If a substantial transfer can 
 be made, it has been considered against conscience 
 to take advantage of small circumstances of varia- 
 tion.' 
 
 In such a case, therefore, where the mistake made 
 has been bond fide, and not material to the purchaser's 
 enjoyment, the vendor may insist on performance 
 with compensation.^ But it must be clear that the 
 
 (s) Johnson v. Johnson, 3 Bos. & P. 162. 
 
 ' But where there is a great deficiency in the quantity of land 
 the Court will not, in the absence of fraud, compel the vendor to 
 complete the sale, making a deduction in the price for the defi- 
 ciency; Rugge V. Ellis, 1 Desau, 160. A deficiency of 171 acres 
 out of 662 is not such a deterioration as will entitle the purchaser 
 to have a contract rescinded, notice being given at the sale that a 
 claim existed, and that if it succeeded, a proportional deduction 
 would be made; Wainwright v. Read, 1 Desau, 573. 
 
 " Hepburn v. Auld, 5 Cranch, 262 ; Evans v. Kingsberry, 2 
 Rand. 120; Rankin v. Maxwell, 2 A. K. Marsh. 488; King v. 
 
228 Adams's doctrine of equity. 
 
 defect is not substantial, for a purchaser cannot be 
 required against his will to pay for anything but 
 what he has bought. He is not, for example, com- 
 pellable to accept a lease instead of an underlease ; a 
 copyhold instead of a freehold ; a life estate instead 
 of a fee ; an estate of reversion instead of one in 
 possession ; nor to take a part only of the estate con- 
 tracted for, where the other part is a large portion 
 of the entire subject-matter, or is in its nature ma- 
 terial to the enjoyment of the rest.(^) 
 
 In favour of the purchaser the equity is of wider 
 application, and the rule is that, although he cannot 
 have a partial interest forced upon him, yet if he 
 P^Q^I entered into the contract *in ignorance of 
 the vendor's incapacity to give him the whole, 
 and chooses afterwards to take as much as he can 
 get, he has generally, though not universally, a right 
 to insist on that, with compensation for the defect, [u) 
 
 (f) Stewart v. Alliston, 1 Meriv. 26 ; Knatchbull v. Grueber, 
 1 Mad. 153 ; 1 Sug. V. & P., c. vii. 
 
 (u) Thomas v. Dering, 1 K. 729 ; Wheatley v. Slade, 4 Sim. 
 126 ; Graham v. Oliver, 3 Bea. 124 ; Nelthorpe v. Holgate, 1 
 Coll. 203. 
 
 Bardeau, 6 John. C. R. 38 ; Wiswall v. M'Gowan, 1 Hoff. C. R. 
 125 ; damages may in some cases also he decreed ; Wiswall v. 
 M'Gowan, ubi. supra; Slaughter v. Tindle, 1 Lit. 358; Fishery. 
 Kay, 2 Bibb, 434 ; and the rule of compensation on a bill for a 
 specific performance, where a conveyance cannot be enforced, is the 
 value of the land at the time the contract should have been per- 
 formed; Dustin V. Newcomer, 8 Ham. 49. 
 
 In Pennsylvania it is competent for a jury, on principles of 
 equity, to find conditional damages ; but it is not competent for 
 the Court to instruct them to find such damages as will insure the 
 specific performance of the contract ; Decamp v. Feay, 5 S. & R. 
 322. 
 
OF SPECIFIC PERFORMANCE. 229 
 
 In both cases alike, whether the claim be made 
 by the vendor or the purchaser, the defect must be 
 one admitting of compensation, and not a mere mat- 
 ter of arbitrary damages, (v) And the compensation 
 given must be really compensation for a present loss, 
 and not indemnity against a future risk. For the 
 oflfer to give such indemnity is in truth merely an 
 offer of a defective title, with pecuniary compensa- 
 tion in the event of its failure. In some cases where 
 an estate has been liable to a contingent charge, a 
 purchaser has been compelled to accept the title with 
 a security protecting him against the charge. But 
 it has been doubted whether the doctrine of these 
 cases is sound, and whether, in the absence of an 
 express contract, the Court ought to compel either a 
 vendor to give or a purchaser to accept an indem- 
 nity, (tf?) 
 
 A corresponding relief to that by specific perform- 
 ance is given, even in the absence of a contract, in 
 the case of title deeds or specific chattels of peculiar 
 value detained from the legitimate owner, by direct- 
 ing them to be delivered up or secured. 
 
 The remedies at law for such unlawful detainer 
 are by an action of trespass for the unlawful taking, 
 by trover, for the unlawful conversion to the defen- 
 dant's use, or by detinue for the actual detainer. In 
 the two former actions the judgment at law is for 
 damages only; in the third the judgment is for 
 restoration of the deed or chattel, if it can be found, 
 
 (y) White v. Cuddon, 8 CI. & F. 766, 792 ; Lord Brooke v. 
 Rounthwaite, 5 Hare, 298. 
 
 (to) Pilder v. Hooker, 3 Mad. 193 ; Aylett v. Ashton, 1 M. & 
 C. 105, 114; 2 Sug. V. & P. c. X., s. 2. 
 
230 ADAMS's DOCTRINE OF EQUITY. 
 
 or for the value, if it has been destroyed or eloigned. 
 The remedy, however, though in terms specific, 
 poon *is inferior to that by suit in equity; for 
 there is no power to prevent destruction or 
 defacement whilst the suit is pending. The defects 
 thus existing in the remedy at law originate a juris- 
 diction in the Court of Chancery, and suits have 
 accordingly been entertained for recovery of an 
 ancient silver altar, claimed by the plaintiff as trea- 
 sure-trove ; for a cabinet of family jewels ; for a pic- 
 ture or statue by a particular artist, and for other 
 objects of the like kind.(a;) 
 
 The two next subjects which fall under our notice 
 are those of Election and of Meritorious or Imper- 
 fect CONSIDERATION; and both these subjects are 
 closely connected with the principle of enforcing 
 those contracts, and those only, which are based on 
 valuable consideration. 
 
 We will first consider the equity of election.' It 
 has been stated as a general principle that the equity 
 to enforce contracts made for value, is extended by 
 parity of reasoning to cases where a benefit has been 
 
 (x) Mitf. 117 ; Duke of Somerset v. Cookson, 3 P. W. 389 ; 
 Earl of Macclesfield v. Davis, 3 Ves. & B. 16 ; Wood v. Row- 
 cliffe, 8 H. 304. 
 
 ^ See an elaborate discussion of the Doctrine of Election in Spence 
 on The Equitable Jurisdiction of the Court of Chancery, Vol. 
 II., page 585 et seq. Story's Equity Jurisprudence, § 1076 et 
 seq. ; and Gretton v. Haward, 1 Swanst., cited post, in the notes 
 to the text of this edition. See, also, Hall v. Hall, 1 Bland, 130, 
 134; M'Ginnis et al. v. M'Ginnis, 1 Kelley, 496; Craig v. Craig 
 and Hart, 7 Dana, 1 ; Field v. Eaton, 1 Dev. Eq. 283, 286 ; 
 Brown v. Ricketts, 3 John. Ch. R. 553 ; Allen v. Gratz, 2 Pen. 
 & W. 311; Upsfiaw v. Upshaw and others, 2 Hen. & M. 381. 
 
OF ELECTION. 231 
 
 conferred as the consideration for an act, and know- 
 ingly accepted, although the party so accepting it 
 may not be bound by an actual contract, or by a 
 condition of performance annexed to the gift.(?/) 
 The equity of election is analogous to this. It ap- 
 plies not to cases of contract or of conditional gifts, 
 but to those on which the donor of an interest by 
 will has tacitly annexed a disposition to his bounty, 
 which can only be effected by the donee's assent, 
 e. g., where a testator leaves a portion of his pro- 
 perty to A., and by the same will disposes of pro- 
 perty belonging to A. In this case there is no con- 
 tract by A. to relinquish his own property ; nor is 
 there any condition annexed to the testator's gift, as 
 a term of its acceptance, which requires him to do 
 so. But the double disposition made by the testator 
 implies that he did not intend that A. should have 
 both the interests ; and he must therefore elect be- 
 tween the two, *and either relinquish his r*Qo-| 
 own property or compensate the disappointed 
 donee out of the property bequeathed. 
 
 From the definition given of this equity, it is ob- 
 vious that two things are essential to originate it, 
 viz., 1. That the testator shall give property of his 
 own ; and 2. That he shall profess to give also the 
 property of his donee. 
 
 1. The testator must give property of his own; 
 for otherwise, if the recipient refuse to give effect to 
 the will, there is nothing on which the right to com- 
 pensation can attach. In the case, therefore, of an 
 
 {y) Edwards v. Grrand Junction Kailway, 1 M. & C. 650 ; 
 Green v. Green, 19 Ves. 665 ; 2 Meriv. 86 ; Gretton v. Haward, 
 1 Swanst. 409, 427. 
 
232 ADAMS'S DOCTRINE OF EQUITY. 
 
 appointment under a power which is void as to some 
 appointees, but good as to the rest, the doctrine does 
 not apply ; but the legitimate appointees may claim 
 their appointed shares without giving effect to the 
 invalid appointment. If, on the other hand, they 
 have independent legacies out of the testator's pro- 
 perty, they must elect between those legacies and 
 their claim to the fund of which the appointment 
 fails, (z) 
 
 2. The testator must profess to dispose of property 
 belonging to his donee. There will therefore be no 
 equity for election, if the gift of such property be not 
 judicially cognizable; as, for example, where, pre- 
 viously to the late Wills' Act, a will was made by 
 an infant, or without proper attestation, professing 
 to devise real estate, the heir-at-law might take a 
 personal legacy under such will, and yet dispute the 
 validity of the devise ; for such a will was judicially 
 read, as if the devise were blotted out, and an inten- 
 tion to give the realty did not appear, (a) So again, 
 where a feme covert has made a will in exercise of a 
 testator's power of appointment, and assumed to 
 dispose of other property also, the gift of such other 
 property is judicially non-existent ; and her husband 
 may take a benefit under the appointment, without 
 relinquishing his marital right. (6) The same prin- 
 ciple applies where a testator, having a limited power 
 
 (z) Bristow V. Warde, 2 Ves. J. 336 ; Kater v. Koget, 4 Y. & 
 C. 18. 
 
 (a) Brodie v. Barry, 2 V. & B. 127 ; Sheddon v. Goodrich, 8 
 Ves. 481. 
 
 (6) Rich V. Oockell, 9 Ves. 369. 
 
OF ELECTION. 233 
 
 of appointment, exercises it in favour of the r^qj^-i 
 *legal object, and then attempts to cut down 
 the gift, in violation of the power. In this case, the 
 original legal disposition is not affected by the subse- 
 quent illegal one ; but the will is read as if it stopped 
 at the original gift. A claimant, therefore, under it, 
 though in one sense claiming against the illegal gift, 
 is in law claiming in conformity with the will, and 
 need not elect in respect of other interests which he 
 may take under it. (c) 
 
 If, on the other hand, the devise is in itself a valid 
 devise, but is ineffectual to pass the particular pro- 
 perty, the doctrine of election is not excluded. Such, 
 for example, was the case where a will of earlier date 
 than 1 Vict., c. 26, professed to extend to after-ac- 
 quired lands. The lands did not pass by the will ; 
 but if the heir claimed an interest under it, he was 
 put to his election. ((^) 
 
 In accordance with the same principle, there is no 
 equity for election, if the testator has himself a par- 
 tial interest, which might satisfy the terms of his 
 gift ; e. g., where a testator gives a legacy to his widow 
 entitled to dower, and devises his real estate to an- 
 other person, under circumstances to which the 
 Dower Act does not apply. If such devise be ex- 
 pressly made free of dower, or if its nature be incon- 
 sistent with the contrary hypothesis, the widow is 
 bound to elect. But it is otherwise, if the devise be 
 in general terms. For it may be intended as a gift 
 
 (c) Carver v. Bowles, 2 K. & M. 304 ; Kater v. Koget, 4 Y. & 
 C. 18. 
 
 (a!) Churchman v. Ireland, 4 Sim. 520 ; 1 K. & M. 250 ; Thel- 
 luson V. Woodford, 13 Ves. 209. 
 
234 Adams's doctrine of equity. 
 
 of what was strictly his own, viz., the estate subject 
 to dower ; and it will not be needlessly presumed 
 that he intended to dispose of another's property, (e)' 
 For the same reason, it has been decided, that the 
 doctrine of election does not apply to creditors, but 
 that they may take the benefit of a devise of lands 
 for payment of debts, and at the same time enforce 
 their legal claims against personal estate, to the ex- 
 r^QK-i elusion of *specific legatees. For it will be 
 presumed that the testator bequeathed no 
 more than what really belonged to him, and that the 
 legatees were to take the personal estate, subject to 
 its ordinary liabilities. (/) 
 
 In like manner, no case of election will arise, if 
 the testator shows by the terms of his gift, that he is 
 doubtful whether the property in fact belongs to him, 
 and that he only intends to dispose of it, if it is his 
 own ; e. g., if he directs a different disposition, in the 
 
 (e) Birmingham v. Kirwan, 2 Sch. & L. 442 ; Holdich v. Hol- 
 dich, 2 N. C. C. 18 ; Ellis v. Lewis, 3 H. 310; 1 Jarm. on Dev. 
 396, 408 ; Lowes v. Lowes, 5 Hare, 501. 
 
 (/) Kidney v. Coussmaker, 12 Ves. 136. 
 
 * See, as to the application of the doctrine of election to the case of 
 a devise or bequest made to the widow of a testator, when the estate 
 of which she is dowable, is disposed to others, Adsit v. Adsit, 2 
 Johns. C. R. 448, and Gordon, adm'r, v. Stevens, 2 Hill Ch. 46 ; 
 Brown v. Caldwell, 1 Speer's Eq. 322 ; Whilden v. Whilden, Ri- 
 ley's Ch. 205 ; Timberlake v. Parish's ex'r, 5 Dana, 345 ; Kinsey 
 V. Woodward, 3 Harring, 459 ; Smith v. Kniskern, 4 John. C. R. 
 9 ; Wood V. Wood, 5 Paige, 597 ; Havens v. Havens et al., 1 
 Sandf. 325; Puller v. Yates, 8 Paige, 825; Sanford v. Jackson, 
 10 Id. 266 ; Webb v. Evans, 1 Binney, 565 ; Kennedy v. Ned- 
 row, 1 Dal. 415; Snelgrove v. Snelgrove, 4 Desau, 274; Ambler 
 V. Norton, 4 Hen. & M. 23. 
 
OF ELECTION. 235 
 
 event of its proving that he has no power to give, or 
 if he expressly makes the disposition, in case he has 
 power, or so far as he lawfully can or may. [g) 
 
 It was at one period doubted whether evidence 
 dehors the will itself was admissible in cases of elec- 
 tion, in contravention of the ordinary rule of law, for 
 the purpose of showing that a testator, in making 
 a bequest of his estate, intended to include property 
 which was not strictly his own, although in some 
 sense subject to his dominion ; e. g., lands of which 
 he was tenant in tail, or leaseholds and mortgages 
 belonging to his wife. The weight of authority, 
 however, seems to be against its admissibility, and 
 in favour of abiding by the ordinary rule. (7i) 
 
 If both the requisites concur, which have been 
 here explained ; if the testator has conferred a benefit 
 out of his own property, and has professed to dispose 
 of the property of his donee, the equity of election 
 arises, and the donee must choose between the con- 
 flicting interests. 
 
 The election may be either express or implied; 
 and if not made voluntarily, may be compelled by 
 decree. But the electing party is entitled to know 
 the value of both interests ; and the mere fact that 
 the benefit has been conferred, or even that it has 
 been accepted in ignorance of the ^conveyance, r^g ^-, 
 does not bind his right. If therefore a bill be 
 filed against him, he may insist on the values being 
 
 {g) Bor V. Bor, 3 B. P. C, by Toml. 167; Church v. Kemble, 
 5 Sim. 525. 
 
 Qi) Druce v. Denison, 6 Ves. 388 ; Dummer v. Pitcher, 2 M. & 
 K. 262; Clementsonv. Gaudy, 1 K. 309 ; 1 Jarm. on Wills, 391; 
 Wigram on Wills, 39. 
 
236 Adams's doctrine of equity. 
 
 ascertained before a decree to elect is made ; or he 
 may himself as plaintiff sustain a bill, to have the 
 accounts taken and the property ascertained, (i) If 
 he be incompetent to make his election, as in the 
 case of infancy or coverture, the Court will do so in 
 his stead, and will refer it to the Master to inquire 
 what election should be made.(^) 
 
 The principle which gives the right of choice to 
 the donee necessarily leads to the result that his 
 election, when made, binds himself alone, and does 
 not afiect the interests of donees in remainder. A 
 contrary election by them may possibly create some 
 inconvenience ; but this is no ground for allowing a 
 preceding taker to bind their rights, or for depriving 
 them of an independent election as their respective 
 interests accrue. Nor will such donees be affected 
 in their choice by acquiring derivative interests 
 under the first elector ; for such derivative interests 
 are incidental to his estate, and not to their own. 
 If, for instance, a married woman elect to take an 
 estate of inheritance against a will, her husband may 
 have his curtesy of that estate, and nevertheless 
 claim a legacy under the will, (l) 
 
 The effect of election is not to divest the property 
 out of the donee, but to bind him to deal with it as 
 the Court shall direct. 
 
 If he elects to relinquish his own property, con- 
 forming throughout to the testator's disposition, he 
 
 (i) Pusey V. Desbouverie, 3 P. W. 315 ; Dillon v. Parker, 1 
 Swans. 359, 381. 
 
 (k) G-retton v. Haward, 1 Swanst. 413 n. 
 
 (0 Cavan v. Pulteney, 2 Ves. J. 544 ; Ward v. Baugh, 4 Ves. 
 623. 
 
or ELECTION. 237 
 
 is said to take under the will, and must convey 
 accordingly. If he elects to retain it, he is said to 
 take against the will ; and must convey the estate 
 devised to him to the disappointed donee, or must 
 compensate him thereout for his disappointment. 
 With respect, however, to this last point some doubt 
 exists. And it appears to be uncertain whether the 
 consequence of an election to take against the will 
 is confined to a liability *to compensate, or is p.„^, 
 a forfeiture of the property devised. In the '- -■ 
 case of a contract for valuable consideration, the 
 result would be clearly forfeiture ; for if the party 
 claiming will not give the price, he must relinquish, 
 the benefit for which it was to be paid. But in the 
 case of election it seems to be otherwise. For the 
 equity does not originate in a gift on consideration, 
 but in the intention presumable from the double gift, 
 that the disappointed donee shall have some benefit. 
 This intention is at once effected if compensation be 
 the result ; but will be manifestly defeated by for- 
 feiture, unless the Court can imply a gift to the dis- 
 appointed donee, for which the testator has given no 
 authority, or can decree the heir taking as on an 
 intestacy, to be a constructive trustee for him. It 
 seems, however, difficult to conceive how the heir 
 can be thus affected with a trust on the election of 
 a devisee, which would not have attached, if there 
 had been an express condition of forfeiture in the 
 will, or if the devisee instead of electing had dis- 
 claimed the interest devised, (m) 
 
 (m) 2 Sug. on Powers, 145 ; 1 Eoper, Hus. and Wife, by Jacob, 
 156 n. ; G-retton v. Haward, 1 Sw. 433 n. ; 2 Eoper on Legacies, 
 571-8 ; Kerr v. "Wauchope, 1 Bligh, 1. 
 
238 Adams's doctrine of iequitt. 
 
 The next equity which requires notice is that of 
 meritorious, or imperfect consideration. 
 
 The doctrine of meritorious consideration origi- 
 nates in the distinction between the three classes of 
 consideration on which promises may be based ; viz., 
 valuable consideration, the performance of a moral 
 duty, and mere voluntary bounty. The first of these 
 classes alone entitles the promisee to enforce his 
 claim against an unwilling promisor ; the third is for 
 all legal purposes a mere nullity until actual perfor- 
 mance of the promise. 
 
 The second, or intermediate class, is termed meri- 
 torious, and is confined to the three duties of charity, 
 of payment of creditors, and of maintaining a wife 
 and children ; and under this last head are included 
 provisions made for persons, not being children of the 
 party promising, but in *relation to whom he 
 !- -I has manifested an intention to stand in loco 
 parentis, in reference to the parental duty of mak- 
 ing provision for a child, (n) 
 
 Considerations of this imperfect class are not dis- 
 tinguished at law from mere voluntary bounty, but 
 are to a modified extent recognised in equity. And 
 the doctrine with respect to them is, that although 
 a promise made without a valuable consideration 
 cannot be enforced against the promisor, or against 
 any one in whose favour he has altered his inten- 
 tion, yet if an intended gift on meritorious considera- 
 tion be imperfectly executed, and if the intention 
 remains unaltered at the death of the donor, there is 
 
 (n) Perry v. Whitehead, 6 Ves. 544 ; Ex parte Pye, 18 Ves. 
 140 ; Powys v. Mansfield, 3 M. & C. 359 ; Pym v. Lockyer, 5 M. 
 & C. 29. 
 
OF IMPERFECT CONSIDERATION. 239 
 
 an equity to enforce it in favour of his intention, 
 against persons claiming by operation of law with- 
 out an equally meritorious claim. 
 
 The principal applications of this equity are in 
 supplying surrenders of copyhold against the heir, 
 and in supporting defective executions of powers, 
 when the defect is formal, against the remainder- 
 man. 
 
 The equity for supplying surrenders of copyholds 
 originates in the doctrine, that a copyhold does not 
 pass by grant or devise, but by a surrender into the 
 hands of the lord to the use of the grantee, or of the 
 will. In the one case, the grantee is entitled to 
 immediate admission ; in the other, the person desig- 
 nated in the will is entitled to admission on the tes- 
 tator's death. If a grant or devise were made with- 
 out a previous surrender, it was formerly inoperative 
 at law ; but if it were made for meritorious conside- 
 ration, the surrender might be supplied in equity. 
 The jurisdiction thus to supply a surrender existed 
 whether the gift were by deed or will, (o) but it was 
 ordinarily called into exercise in the case of wills ; 
 and it is now rendered of little practical importance 
 by the enactment that all real estate may be devised 
 by will, and that copyholds *shall be included p^qq-, 
 under that description, notwithstanding that L -■ 
 the testator may not have surrendered them to the 
 use of his will, nor have even been himself admitted 
 to them, (p) 
 
 The exercise, therefore, of the equity in question 
 is now principally confined to defective executions 
 
 (o) Eodgers v. Marshall, 17 Ves. 294. (p) 1 Vict. c. 26, s. 3. 
 
240 Adams's doctrine of equity. 
 
 of powers. And tlie powers to which it applies are 
 those which have been created by way of use, as 
 distinct from bare authorities conferred by law. 
 Acts done under authorities of this latter kind, as, 
 for example, leases or conveyances by a tenant in 
 tail, are only binding when regular and complete. 
 The principle of the distinction appears to be, that 
 powers limited by use are mere reservations out of 
 the original ownership, constituting the donee a quasi 
 owner, and the remainderman a quad heir ; and 
 consequently that, in conformity with this hypothe- 
 sis, the donee's contracts for value ought to bind the 
 remainderman, and his meritorious intention, if 
 unaltered, ought to have the same effect. The sound- 
 ness of this equity has been questioned by Sir Wil- 
 liam Grant, and its principle seems difficult to sus- 
 tain. For the power given, though doubtless in 
 some sense a modified ownership, does not confer an 
 absolute right to dispose of the property, but a right 
 to do so in a specific way. And the chance that the 
 power may never be executed, or that it may not be 
 executed in the manner presciibed, is an advantage 
 given to the remainderman. If, therefore, his inte- 
 rest is to be regarded, it is difficult to see why he 
 should be bound by any other than the prescribed 
 act ; for he is a stranger to any equity or considera- 
 tion. If, on the other hand, his interest is subordi- 
 nate to the donee of the power, the intention of such 
 donee ought to be sustained, whatever be the con- 
 sideration on which it rests. The objection, how- 
 ever, which is noticed in these remarks, appears not 
 to be peculiar to the execution of powers, but to 
 apply generally to the equity of meritorious conside- 
 
OF IMPERFECT CONSIDERATION. 241 
 
 ration, and to the principle of enforcing *a 
 gift on the ground of intention alone, as dig- L J 
 tinet from any binding contract, and yet inquiring 
 into the consideration on which that intention was 
 based, [q] 
 
 Whatever opinion may be entertained as to the 
 original soundness of the equity, there is no question 
 that it is established by precedent ; but it is confined 
 to cases of execution formally defective, or of contract 
 amounting to such defective execution. If there be 
 no such execution or contract the Court cannot inter- 
 pose ; for, unless when the power is in the nature of 
 a trust, the donee has his choice whether to execute it 
 or not ; and if he does not execute or attempt to execute, 
 there is no equity to execute for him. If the defect 
 be not formal, but in the substance of the power, the 
 execution cannot be aided in equity ; for such aid 
 would defeat the intention of the donor. A power,, 
 for example, which is given to be executed by deed, 
 may be effectuated where the execution has been by 
 will ; for the mode of execution is immaterial. But 
 if given to be executed by will, its execution by deed 
 is altogether invalid ; for it was meant to have con- 
 tinuance until the death of the donee, and the deed, 
 if it avail at all, must avail to its destruction, (r) 
 
 The rule that the intention must remain unaltered 
 does not require any special notice. It might per- 
 haps have been originally contended, that the very 
 fact of the appointment being left imperfect was evi- 
 
 (2) Holmes V. Coghill, 7 Ves. 499 ; 12 Ves. 206 ; 2 Sug. on 
 Powers, c. 10. 
 
 (r) Tollit V. Tollit, 2 P. W. 489 ; Keid v. Shergold, 10 Ves^ 
 370. 
 
 16 
 
242 Adams's doctrink of equity. 
 
 dence that the intention had not continued. The 
 doctrine, however, is clearly otherwise ; but if there 
 be any subsequent act of the donor showing that 
 his original intention is recalled, the equity is at an 
 end ; for it is not one to enforce a contract against 
 him, but to effectuate his intention in his own fa- 
 vour, (s) 
 
 The only remaining requisite is, that the party 
 against whom relief is asked must not have an 
 equally meritorious claim. If, therefore, the heir- 
 r*1 m 1 ^^1*^ ^^ remainderman be a *child unpro- 
 vided for, it seems the better opinion that the 
 equity will not be enforced; and the same rule 
 prevails where relief is sought against a grandchild, 
 although a defective execution cannot be supplied in 
 his favour. It is not, however, sufficient that the 
 heir is disinherited ; for if he is provided for, it is 
 immaterial from whom the provision moved. Nor 
 will the Court inquire into the relative amount of 
 the provisions made; for on that point the parent is 
 the best judge. (<) 
 
 Another class of cases, to which the doctrine of 
 meritorious consideration applies, are those where a 
 man, subject to a moral duty, does an act which may 
 reasonably have been meant in satisfaction of that 
 duty ; and is therefore presumed to have so intended 
 it. 
 
 In accordance with this principle acts, which as 
 between strangers would bear one construction, may 
 
 (s) Finch V. Finch, 15 Ves. 51 ; Antrobus v. Smith, 12 Ves. 
 39. 
 
 (i) Eodgers t. Marshall, 17 Ves. 294 ; Hills v. Downton, 5 
 Ves. 557 ; 2 Sug. on Powers, c. 10, and App. 24. 
 
OF IMPERFECT CONSIDERATION". 243 
 
 be construed diflferently where meritorious considera- 
 tion exists ; e. g., a purchase made bj one person in 
 the name of another, may be construed an advance- 
 ment in favour of a child, instead of a resulting 
 trust for the purchaser ; a legacy may be construed 
 a provision, instead of mere bounty, and may on that 
 ground bear interest from the testator's death. And 
 in like manner if there be a prior legacy bequeathed 
 or promise made to a child, a subsequent gift or 
 legacy may be construed as a substituted portion, 
 instead of being a cumulative benefit. 
 
 With respect to purchases by one person in the 
 name of another, it has been already stated to be a 
 presumption of law that the purchase is intended for 
 the benefit of the purchaser, and that the conveyance 
 is taken on trust for him. If, however, the convey- 
 ance is taken in the name of a child, or of one towards 
 whom the purchaser stands mi Zoco^)are;z<is, a counter 
 presumption arises. And the prima facie proba- 
 bility is that the purchase was meant as a provision 
 or advancement for the child.^ In either case the 
 *doctrine is one of presumption, not of the p.^-. ^o-i 
 construction of the conveyance itself. There 
 
 * The general rule of equity is, that if a father makes a purchase 
 in the name of the son, even though illegitimate, it will not be 
 deemed a resulting trust but an advancement; Page v. Page, 8 
 N. H. 187. And a purchase in the name of a wife or child will 
 be considered an advancement until the contrary is proved, and no 
 trust will result to the husband or father ; Astroen v. Flanagan, 
 3 Edw. Ch. 279 ; see Livingston v. Livingston, 2 John. C. R. 
 537; Sampson v. Sampson, 4 S. & R. 329; Taylor v. James. 4 
 Desau, 1. In Sterry v. Arden, 1 John. C. R. 261, a voluntary 
 advancement to a child was decided to be void against a purchaser, 
 for valuable consideration, with only constructive notice ; and also 
 where the notice is direct the rule seems to be the same. 
 
244 Adams's doctrike of equity. 
 
 is, therefore, no rule of law which prohibits the use 
 of parol evidence, either to counteract or to support 
 the presumption. But the only difference is that, 
 in the case of a stranger, the onus lies on those who 
 allege that he was intended to take beneficially; in 
 the case of a child, it lies on those who allege that 
 he was to take as a trustee, (u) It may for instance 
 be shown that the child was already fully provided 
 for, which affords a presumption that no further 
 advancement was intended. It may be shown that 
 at the time of the purchase, or in immediate con- 
 nexion therewith, the father dealt with the property 
 as his own ; but the mere receipt of rent, which may 
 possibly be by the child's permission, will not alter 
 the presumption ; or again it may be shown that, at 
 the time of making the purchase, the father declared 
 his intention either against, or in favour of the pre- 
 sumed advancement. It must be observed, however, 
 that the only question to which the evidence can 
 apply is what the father intended at the time of the 
 purchase, and not whether his intention has been 
 afterwards changed. And for this reason his subse- 
 quent acts and declarations cannot be admitted as 
 evidence in his favour, although those of the child 
 might be so used.('?;) 
 
 With respect to legacies, the distinction between 
 legacies to strangers and those to children is that, in 
 the case of a stranger, the legacy is considered mere 
 bounty, and is dealt with by the ordinary rules of 
 
 («) Hall V. Hill, 1 Conn. & L. 120. 
 
 (?)) Murless v. i"ranklin, 1 Sw. 13 ; Grey v. Grey, 2 Sw. 594 ; 
 Sidmouth v. Sidmouth, 2 Bea. 447; Scawin v. Scawin, 1 N. C. 
 C. 65; Skeats v. Skeats, 2 N. C. C. 9. 
 
OF IMPERFECT CONSIDERATION. 245 
 
 law; in the case of a child it is presumed to be 
 meant as a provision for him, and the ordinary rules 
 are modified by that presumption. 
 
 One instance in which this distinction occurs re- 
 gards the period from which interest is given. The 
 ordinary rule is that, if the testator has not express- 
 ed a different *intention, a legacy shall bear r^-iriq-i 
 interest from the time fixed for payment of 
 the principal, or if no time be fixed, then from the 
 end of a twelvemonth after the testator's death. But 
 if it be given by a parent, or by one who stands in 
 loco pm-entis, it is treated as a gift by way of provi- 
 sion ; and the legatee, if he be not adult, and there 
 be no other provision for his maintenance, will be 
 allowed interest by way of maintenance from the 
 time of the death. (lo)' Another instance of the 
 same distinction occurs in the case of successive 
 legacies or gifts, viz., where a legacy has been be- 
 
 Qui) Raven v. Waite, 1 Sw. 553 ; Donovan v. Needham, 9 Bea. 
 164. 
 
 ' Generally, when no time is fixed by a will, a pecuniary legacy 
 is payable in a year after testator's death ; and not before, and in- 
 terest is not payable until the end of the year, or the expiration of 
 the period fixed by the will ; Sullivan v. Winthrop, 1 Sumner, 1 ; 
 Marsh v. Hague, 1 Edw. Ch. 174; so in Virginia and New York; 
 Shobe V. Carr, 3 Munf. 10 ; Williamson v. "Williamson, 6 Paige 
 C. R. 298; see Hammond v. Hammond, 2 Bland. 306. But 
 where a legacy is given to an infant child, who is otherwise un- 
 provided for, interest will be allowed from the testator's death, 
 whether a time is fixed for the payment of interest or not, and 
 this doctrine applies to testators placing themselves in loco pa- 
 rentu; Sullivan v. Winthrop, ubi. supra; Hite v. Hite, 2 Rand. 
 409; though this exception does not extend to the case of a 
 grandchild ; Lupton v. Lupton, 2 John. 0. R. 614. 
 
246 Adams's doctrine of equity. 
 
 queathed or a promise made, which has been fol- 
 lowed by a gift inter vivos, or by a legacy of later 
 date. 
 
 It will be convenient to consider each case sepa- 
 rately, taking first that of a prior legacy, and after- 
 wards that of a prior promise. 
 
 In the case of a prior legacy, followed by a gift or 
 legacy of later date, the question Avhich arises is, 
 whether the later gift or legacy was intended to be 
 identical with the first, so as to operate either by 
 way of anticipated payment or as a I'eiteration of the 
 original gift. If it was so intended, and the intention 
 is proved by admissible evidence, the first legacy is 
 as obviously at an end, as if a man were to bequeath 
 a particular horse, and were afterwards to give the 
 horse in his lifetime, or again bequeath it to the 
 same person. The construction put by law on the 
 later gift or legacy is prima facie against its being 
 meant as identical, and in favour of its being held 
 an independent benefit. And if it be conferred by 
 a written instrument, extrinsic evidence of the in- 
 tention is not admissible. (x) The construction, 
 however, may be altered by a presumption of law, 
 to be raised by a comparison of the two gifts, and of 
 the motives respectively assigned for each, or by the 
 I'elative position in which the parties stand. The- 
 p^-| Q . -| first *ground of presumption, arising from 
 the similarity of the gifts and motives, is not 
 material to our present purpose. It is sufficient 
 
 (x) Ex parte Dubost, 18 Ves. 140 ; Kirk v. Edowes, 3 Hare, 
 509 ; 2 Will, on Exors., 2d edit. 923 ; Hurst v. Beach, 5 Madd. 
 351 ; Suisse v. Lord Lowther, 2 Hare, 424 ; Lee v. Pain, 4 Hare, 
 201 ; Hall v. Hill, 1 Conn. & L. 120. 
 
OF IHPERFECT CONSIDERATION. 247 
 
 to observe, that mere equality of amount is not such 
 an identification of the gifts as will prevent their 
 cumulative efiect. But if, in addition to this, the 
 same motive is expressed for both, the double coin- 
 cidence gives rise to a presumption that repetition 
 was intended, and not accumulation. (3/)^ The 
 second ground of presumption arises out of the rela- 
 tive position of the parties, and is that with which 
 we are now more immediately concerned. If the 
 donor be a parent, or in loco parentis, the presump- 
 tion is that the first legacy was intended as a pro- 
 vision, proportioned to the then existing claims of 
 the legatee, and that the later gift or legacy had the 
 same object, and was intended as an immediate 
 payment or a modified repetition, either in full or 
 pro tanto, by reason of altered circumstances, of the 
 first. And the circumstances, that the second bene- 
 fit differs in amount or disposition from the first, is 
 not inconsistent with such presumption. The doc- 
 trine on this point is expressed by the maxim, that 
 "the presumption is against a double portion."(z) 
 The presumption thus raised, whether it be based on 
 a comparison of the two gifts, or on the relative 
 position of the two parties, is against the prima facie 
 construction of the second gift. And therefore it 
 may be rebutted by extrinsic evidence of intention, 
 
 (y) Hurst V. Beach, 5 Madd. 351 ; Suisse v. Lord Lowther, 2 
 Hare, 424. 
 
 (z) Wharton v. Earl of Durham, 3 M. & K. 472 ; 3 CI. & F. 
 146 ; Pym v. Lockyer, 5 M. & C. 29 ; Suisse v. Lord Lowther, 
 2 Hare, 424. 
 
 ' See the cases of Dewitt v. Yates, 10 Johns. 156 ; Jones v. 
 Creveling's Ex'rs, 4 Harrison, 127 j Id., 1 Zabriskie, 573. 
 
248 Adams's doctrine of equity. 
 
 and sustained by counter evidence of the same kind, 
 notwithstanding that the gift is by a written instru- 
 ment, (a) 
 
 The second case is that of a promise inter vivos, 
 followed by a gift or legacy of later date. 
 
 If the benefit promised and the benefit conferred 
 are precisely identical, no question arises; for the 
 promisor has done that which he undertook to do ; 
 r*i r\K-\ ^^^ ^^^ promise is in *fact performed. (6) But 
 if they are not precisely identical, then a 
 question arises whether the gift or legacy was meant 
 in satisfaction, either wholly or in part, of the ori- 
 ginal promise. If an intention to that effect be 
 shown, the promisee must elect between the two 
 benefits. The principle of decision in this case is 
 the same as in that of double legacies. The prima 
 facie construction of the second gift is in favour of its 
 being considered independent of the first. And that 
 construction may be rebutted, either by a comparison 
 of the promise and the gift, and of the motives for 
 which they are respectively expressed to be made ; 
 or by the presumption that both are by way of por- 
 tion, and consequently that the second is in lieu of 
 the first, (c) The effect, however, of differences be- 
 tween the promise and the benefit, is much greater 
 than in the case of successive legacies ; for the donor 
 must know that he cannot alter his promise, and 
 
 (a) Hurst V. Beach, 5 Madd. 351 ; Hall v. Hill, 1 Conn. & L. 
 120 ; Kirk v. Eddowes, 3 Hare, 509. 
 
 (6) Blandy v. Widmore, 1 P. W. 324 ; Goldsmid v. Goldsmid, 
 
 1 Sw. 211. 
 
 (c) Ansley v. Bainbridge, 1 R. & M. 657 ; Jones v. Morgan, 
 
 2 Y. & C. 403 ; Weall v. Rice, 2 R. & M. 251 ; Plunkett v. 
 Lewis, 3 Hare, 316; Hall v. Hill, 1 Conn. & L. 120. 
 
OF IMPERFECT CONSIDERATION. 249 
 
 therefore any variation from its terms tends to the 
 conclusion that it was not in his mind, (d) 
 
 The presumption, which arises from the relation- 
 ship of parent and child, exists also in a less degree 
 with respect to creditors, whether mere strangers, or 
 children to whom, by transactions independent of 
 the relationship, the parent has become indebted. 
 In such cases the presumption is, that a payment by 
 the debtor, equal to or exceeding the debt, is meant 
 in discharge, and the same doctrine applies to a 
 legacy, provided it be substantially equivalent to 
 payment, (e) But the presumption is much weaker 
 than with respect to portions, and may be excluded 
 by a less degree of difference ; as for example, if the 
 legacy be less than the debt, or if it be payable at a 
 different time. (/) 
 
 Whenever the presumption arises, it may, as we 
 have seen, *be rebutted or confirmed by evi- p^-, /^«-| 
 dence, notwithstanding that the gift is by a 
 written instrument. But it must be evidence in re- 
 buttal or confirmation of the presumption, and not 
 evidence to construe the instrument itself The pre- 
 sumption, therefore, must first arise, and if the instru- 
 ment is so worded that its prima facie construction 
 is not altered by the relationship alone, extrinsic 
 evidence of intention is not admissible, (g) 
 
 (d) Wharton v. Earl of Durham, 3 M. & K. 472 ; 3 CI. & P. 
 146, 155. 
 
 (e) Plunkett V. Lewis, 3 Hare, 316 j Jeffs v. Wood, 2 P. W. 
 129 ; Chancey's case, 1 P. W. 408 ; Wallace v. Pomfret, 11 
 Ves. 542. 
 
 (/) 2 Will, on Ex'ors, 929; 2 Story on Equity, s. 1122. 
 ((/) Wallace v. Pomfret, 11 Ves. 542 ; Hall v. Hill, 1 Conn. & 
 L. 120. 
 
250 ADAMS*S DOCTRINE OF EQUITY. 
 
 The last equity which will be considered in the 
 present chapter, is the converse to that of specific 
 performance, and consists in giving effect to dis- 
 charges by matter in pais of contracts under seal, 
 and in confining the claim on a contract with a 
 penalty to the specific performance of its terms. 
 
 We will first consider the doctrine as to Discharges 
 BY Matter in pais of Contracts under Seal.' 
 
 It is a rule of law, that an agreement under seal, 
 technically termed an agreement by specialty, can 
 only be avoided by a like specialty ; and it is there- 
 fore unaffected by an accord by parol, or other matter 
 in pais, which would operate as a discharge of a 
 simple contract. (7i) In equity, however, the rule 
 is otherwise. For the form of agreement is imma- 
 terial; and if the act done is in substance a dis- 
 charge, it will warrant a decree for the execution of 
 a release, or for delivery up and cancellation of the 
 specialty. 
 
 The most ordinary application of this equity is in 
 favour of sureties, where a guarantee has been given 
 under seal, and the creditor, without the surety's 
 consent, has discharged or modified the principal's 
 liability. In this case the doctrine of the law is, that 
 
 (70 1 Selw. N. P. 518, 549. 
 
 * Sec, post, notes to pp. Ill, 112. 
 
 It is settled in Pennsylvania, that verbal stipulations by one 
 party, on the faith of which a writteii agreement is executed by 
 the other, will control the writing, even in the absence of evidence 
 of a fraudulent design ; Hultz v. Wright, 16 S. & E. 345 ; Christ 
 V. Diffenbach, 1 S. & R. 464 ; Miller v. Henderson, 10 Id. 292 ; 
 Clark V. Partridge, 2 Barr. 13, 4 Id. 166. See Keisselbrock v. 
 Livingston, 4 John. Ch. E. 114. 
 
DISCHARGES, ETC., OF CONTRACTS, ETC. 251 
 
 by such discharge or modification of the principal's 
 liability, the surety is absolutely discharged ; for he 
 has contracted to guarantee a specific agreement; 
 and if a new agreement be substituted without his 
 assent, his contract is at an end.('i) 
 
 *The same effect is produced if the creditor p^-, ^.r,-, 
 enters into a binding contract to give time for 
 payment to the principal. For it would be a fraud 
 on the contract, if he wei'e afterwards to receive his 
 debt from the surety, and thus confer on him an im- 
 mediate right of action against the principal. The 
 position of the surety is therefore varied, and he is 
 in consequence discharged altogether from his gua- 
 rantee. If, however, the creditor, in agreeing to give 
 time, expressly reserve his remedies against the 
 surety, there is no discharge ; for although he under- 
 takes not to sue the principal directly, he does not 
 preclude himself from enabling the surety to do so. 
 Nor will the surety be discharged by mere forbear- 
 ance to sue, unless there be a stipulation in the 
 guarantee, binding the party guarantied to use due 
 diligence against the principal. (Jc) 
 
 The doctrine which has been just laid down"~is not 
 peculiar to the Court of Chancery ; but its operation 
 at law is confined to guarantees by simple contract. 
 If the guarantee be by specialty, the rule that its 
 discharge must be by a like . specialty, prevents the 
 creditor's conduct from being pleaded at law. And 
 
 (f) Samuell v. Howarth, 3 Bleriv. 272 ; Mayhew v. Crickett, 2 
 Sw. 186 ; Smith's Merc. Law, 423 ; 3 Jarman's Bythewood, Sd 
 edit., p. 298-305. 
 
 (k) Ex parte Glendinning, Buck, 517; Boultbee v. Stubbs, 18 
 Ves. 20 ; Eyre v. Everitt, 2 Kuss. 381. 
 
252 Adams's doctrine of equity. 
 
 a consequent equity arises to restrain him from suing 
 at law, and to compel him, if requisite, to give up or 
 cancel the guarantee. (Z) 
 
 The equity for relief against enforcement of Pe- 
 nalties, originates in the rule which formerly pre- 
 vailed at law, that on breach of a contract secured 
 by penalty, the full penalty might be enforced with- 
 out regard to the damage sustained.' The Court of 
 Chancery, in treating contracts as matter for specific 
 performance, was naturally led to the conclusion that 
 the annexation of a penalty did not alter their cha- 
 racter ; and in accordance with this view, would not 
 on the one hand permit the contracting party to 
 evade performance by paying the penalty; and on 
 r*l 081 ^^^ other hand, would restrain ^proceedings 
 to enforce the penalty on a subsequent per- 
 
 (0 Archer v. Hale, 1 Moore & P. 285 ; Aldridge v. Harper, 3 
 Moore & Sc. 518; Blake v. White, 1 Y. & C. 420; Brooks v. 
 Stuart, 1 Bea. 512. 
 
 ' A court of equity will always relieve against a penalty, where 
 compensation caahe made; Hackett v. Alcock, 1 Call. 533 ; Mayo 
 V. Alcock, 5 Munf. 495 ; and also against back interest, secured 
 by way of penalty; Mosby v. Taylor, Gilm. 72; but Chancery 
 will not aid the recovery of a penalty of forfeiture, or anything in 
 the nature of one ; Livingston v. Tompkins, 4 John. Ch. Eep.431; 
 and where the sums covenanted to be paid are in the nature of 
 stipulated damages, a court of chancery will not relieve ; Skinner 
 V. Dayton, 2 John. C. R. 526 ; S. C, Skinner v. White, 17 John. 
 Rep. 357 ; see, also, White v. Dingley, 4 Mass. 433 ; Pierce v. 
 Fuller, 8 Id. 223 ; Tingley v. Cutler, 7 Conn. 291 ; Slossom v. 
 Beadle, 7 Johns. 72 ; Myers v. Hays, 7 Missouri, 98 ; Gammon 
 V. Howe, 14 Maine, 250. Where a stipulation is designated in the 
 contract as a penalty, how far a court will consider the sum stipu- 
 lated as liquidated damages, see Taylor v. Sandiford, 7 Wheat. 19 ; 
 Curry v. Larer, 7 Barr, 470. 
 
DISCHARGES, ETC., OF COKTRACTS, ETC. 253 
 
 formance of the contract itself; viz., in the case of a 
 debt, on payment of the principal, interest, and costs ; 
 or in that of any other contract, on reimbursement 
 of the actual damage sustained. An authority of 
 a similar kind has been now conferred on courts of 
 law by two statutes, the first of which applies to 
 penalties for non-performance of covenants, and the 
 second to those for non-payment of money.(m) The 
 effect of these statutes has been to diminish the fre- 
 quency of equitable interference. But they do not 
 affect the authority to interfere. The jurisdiction is 
 not limited to the case of bonds or of instruments 
 which in terms impose a penalty ; but extends to all 
 agreements where a stipulation is made in the event 
 of non-performance, which on the whole matter ap- 
 pears intended as such. If it be not in truth meant 
 as a penalty, but be merely an agreement between 
 the parties that a fixed sum shall be paid, as ascer- 
 tained or liquidated damages, or doing or omitting a 
 particular act, there is no equity to substitute a new 
 agreement. The mere use, however, of the words 
 '^ liquidated damages," will not of itself decide the 
 question ; but it depends on the substantial meaning 
 of the contract. If, for example, the payment of a 
 smaller sum is secured by a larger, or if there be a 
 series of covenants of varying importance, and the 
 same specific sum is made payable in respect of each, 
 the stipulated payment will be held a penal one, not- 
 withstanding that it may be otherwise named in the 
 contract, (n) The distinction thus drawn between a 
 
 (m) 8 & 9 Wm. 3, c. 11, s. 8 ; 4 & 5 Ann. c. 16, ss. 12, 13 ; 
 1 Selw. N. P. 542, 569, 588. 
 - (w) Kolfe V. Peterson, 2 B. P. C. by Toml. 486 ; Kemble v. 
 
254 Adams's doctrine of equity. 
 
 penalty for securing the performance of the contract, 
 and •a stipulation which makes part of the contract 
 itself, may be illustrated by the rule, that if a certain 
 rate of interest be reserved on a mortgage, with an 
 agreement that if it be not paid punctually, the rate 
 r*l OQl ^^^^^ ^^ increased, the larger *interest is in 
 the nature of a penalty, and may be relieved 
 against in equity. But on the other hand, if the 
 larger rate be originally reserved, with an agreement 
 for reduction on punctual payment, the condition for 
 such punctual payment is part of the contract, and 
 relief cannot be given if it is not fulfilled, (o) 
 
 The same relief which is granted in the case of 
 penalties has also been extended to clauses of re- 
 entry for non-performance of the covenants in a lease. 
 In respect to covenants for payment of rent, the 
 jurisdiction for this purpose has been long established 
 on the principle that payment of the rent with in- 
 terest is a complete compensation for the damage 
 sustained. Its soundness, even in this case, has been 
 questioned by Lord Eldon, for it is by no means true 
 that subsequent interest is an equivalent for punc- 
 tuality ; but its exercise is established by precedent, 
 and has been for the last century recognised by an 
 express statute, defining the circumstances to which 
 it shall apply, and conferring a similar jurisdiction 
 on Courts of law.(p) To this extent therefore the 
 jurisdiction is settled; but it is not carried beyond 
 this limit. Relief will be granted where a forfeiture 
 
 Farren, 6 Bing. 141 ; Boys v. Ancell, 5 B. N. C. 390 ; 3 Jarm. 
 Byth. 325-386. 
 
 (o) Nicholls V. Maynard, 3 Atk. 519. 
 
 (p) 4 Geo. 2, c. 28 ; Adams on Ejectment, 122. 
 
DISCHARGES, ETC., OF CONTRACTS, ETC. 255 
 
 is incurred by non-payment of money, and perhaps 
 in other cases also, if a special equity be raised on 
 the ground of unavoidable ignorance or accident ; 
 but it will not be granted, without such special 
 equity, in respect of covenants for repairing, insuring, 
 or doing any specific act, where the compensation 
 must be estimated in damages. ($) 
 
 (2) Hill V. Barclay, 18 Ves. 56; Eeynolds v. Pitt, 19 Ves. 
 134 ; Ex parte Vaughan, T. & E. 434; Green v. Bridges, 4 Sim. 
 96; White v. Warner, 2 Meriv. 459 ; Elliott v. Turner, 13 Sim.. 
 477. 
 
256 Adams's doctrine of equity. 
 
 [*110] *CHAPTEE III. 
 
 The equity for relief against penalties applies most 
 extensively to the case of Foefeited Mortgages, 
 where a loan has been secured by the transfer of 
 property, with a condition to redeem on a specified 
 day, and the right of redemption has been forfeited 
 at law by non-payment at the appointed time. 
 There are other methods of charging loans on pro- 
 perty, which will be presently noticed as imperfect 
 mortgages. But a regular mortgage is in the form 
 which has been just mentioned, and may be defined 
 as a " security for a debt, created by conveyance of 
 the legal ownership in property, either to the entire 
 extent of the mortgagor's estate, or for a partial 
 estate carved out of it, with a proviso that, on pay- 
 ment at a specified time, the conveyance shall be 
 void or the mortgagee shall reconvey.'" 
 
 ' Both at law and in equity, a mortgage is considered a mere 
 security for money, and is a mere incident of the debt j Wilson v. 
 Troup, 2 Cow. 195 ; and anything which transfers or extinguishes 
 the debt, transfers or discharges the mortgage as an incident of 
 the debt. Hawkins v. King, 2 A. K. Marsh. 109 ; Barnes v. 
 Lee, 1 Bibb. 526 ; and it is not necessary to the validity of a 
 mortgage that it should state truly, the debt it is intended to se- 
 cure, but it shall stand as security for the real equitable claims of 
 
PERFECT A2SrD IMPERFECT MORTGAGES. 257 
 
 Until the day of redemption is passed, the debtor 
 is not invested with any special equity, (a) He may 
 pay his money according to the proviso, and may 
 thus avoid the conveyance at law ; or if the proviso 
 is not for an avoidance of the estate, but for a recon- 
 veyance to be made by the mortgagee, he may call 
 on the mortgagee to reconvey accordingly, and on 
 his refusal may file a bill for specific performance. 
 After the day of redemption is passed, a special 
 equity arises for redemption. The express remedy 
 under the proviso is gone ; the mortgagee's estate is 
 absolute at law ; and the mortgagor's right, to the 
 extent to which it was originally transferred to the 
 mortgagee, is *at law finally extinguished. r.i:-|-|-i-| 
 If he has mortgaged his entire estate, e. g., if 
 he has mortgaged land in fee simple, he has no in- 
 terest remaining ; if he has mortgaged a partial 
 estate carved out of his own, e. g., if, being tenant in 
 fee, he has mortgaged for a term, he has only the 
 reversion expectant thereon. 
 
 The equity is that the real transaction was a loan 
 on security, and the forfeiture by non-payment a 
 mere penalty, which may be relieved against on a 
 subsequent satisfaction of the debt. And in accor- 
 dance with this equity the mortgagor may file a bill 
 notwithstanding forfeiture, praying for an account 
 and redemption of the estate, and insisting on a re- 
 conveyance by the mortgagee on repayment of the 
 
 (a) Brown v. Cole, 14 Sim. 427. 
 
 the mortgagees whether they existed at the date of the mortgage, 
 or arose afterwards upon the faith of the mortgage before notice of 
 the subsequent title of a bona fide purchaser. Shirras v. Caig, 7 
 Cranch, 34. 
 
 17 
 
258 ADAMS'S DOCTRINE OF HQTJITY, 
 
 principal and interest due, together with all costs in 
 equity or at law properly incurred by the mortgagee 
 in protecting his right. (6) Under this head are in- 
 cluded costs fairly incurred in defending the title to 
 the estate, in keeping the property in necessary re- 
 pair, in procuring a renewal of leasehold interests, 
 and so forth ; but not the costs of mere improve- 
 ments, unless they were made by the mortgagor's 
 consent, or acquiesced in by him after notice, (c) 
 
 If the transaction be not in fact a loan, but a bona 
 fide sale, with power to repurchase, there is no equity 
 to interfere, (dl) A clause of redemption, however, 
 is prima facie evidence of a loan. And even if on 
 the face of the conveyance the transaction is termed 
 a purchase, yet its true character may be proved by 
 parol evidence, or by the subsequent conduct of the 
 parties themselves, e. g., if the alleged vendee, instead 
 of entering into receipt of the rents, demands and 
 receives interest for his purchase-money, (e)' 
 
 (S) Dryden V. Frost, 3 M. & C. 670; Morley v. Bridges, 2 
 Coll. 621. 
 
 (c) Sandon v. Hooper, 6 Bea. 246 ; 14 Law J. 120. 
 
 (d) Davies v. Thomas, 1 E. & M. 506 ; Williams v. Owen, 10 
 Sim. 386; Eeversed, 12 Law J. 207; Bulwer v. Astley, 1 Ph. 
 422 ; Belcher v. Varden, 2 Coll. 162. 
 
 (e) Maxwell v. Montaoute, Pre. Cha. 526. 
 
 ' A deed absolute on its face may be shown to be a mortgage 
 by parol evidence, and when it appears that a deed was intended 
 as security for a debt, the debt being paid, will entitle the debtor 
 to a reconveyance of the estate. Taylor v. Luther, 2 Sum. 228 ; 
 Morris v. Nixon, 1 How. U. S. 118 ; Slee v. The Manhattan 
 Company, 1 Paige, 48 ; Whitriok v. Kane, 1 Id. 202 ; Van Buren 
 V. Olmstead, 5 Id. 1 ; Strong v. Stewart, 4 John. Ch. R. 167 ; 
 Ross V. Norvell, 1 Wash. Va. 14 ; Kunkle v. Wolfersberger, 6 
 
PERFECT AND IMPERFECT MORTGAGES. 259 
 
 If the character of a security is once impressed on 
 the *conveyance, it is a rule never departed p^, ■, „-, 
 from, that no contemporaneous stipulation 
 can clog the right of redemption, or entitle the credi- 
 tor to more than repayment of his principal, interest, 
 and costs. This rule is expressed by the maxim 
 that " Once a mortgagee always a mortgagee :" and 
 stipulations repugnant to this maxim have been fre- 
 quently set aside.^ Such, for example, are agree- 
 ments for restricting the right of redemption to a 
 limited time, (/) for restricting it to a particular line 
 of heirs, {g) for entitling the mortgagee after default 
 
 (/) Newcombe v. Borsham, 1 Vera. 7. 
 (g) Howard t. Harris, 2 Ch. Ca. 147. 
 
 Watts. 126 ; Johnsons' Ex'rs v. Clarke, 5 Arkansas, 321 ; 
 McDonald v. McLeod, 1 Ired., Eq. 321 ; Eandall v. Phillips, 3 
 Mason, 378 ; MoLaurin v. Wright, 2 Ired. Ch. 94 ; Hudson v. 
 Isbell, 5 Stew. & Port. 67 ; Murphy v. Trigg, 1 Monr. 72 ; 
 Lewis V. Kobards, 3 Monr. 406 ; Blair v. Bass, 4 Blackf. 539; 
 Delahay v. McConnel, 4 Scam. 156 ; but see Streator v. Jones, 
 1 Monr. 449 ; Thompson v. Patton, 5 Litt. 74 ; Kerr v. Gilmore, 
 6 Watts. 405 ; Brown v. Nickle, 6 Barr, 390. But the proof 
 in such case must be clear, strong, and satisfactory. English v. 
 Lane, 1 Porter, 328 ; Conwell t. Evill, 4 Blackf. 67 ; Scott v. 
 Britton, 2 Yerg. 215 ; May v. Eastin, 2 Porter, 414 ; 10 Yerg. 
 373. 
 
 ' This is the universal rule in equity, and no agreement in a 
 mortgage to change it into an absolute conveyance upon any con- 
 dition or event whatever will be allowed to prevail. Clark v. 
 Henry, 2 Cow. 324 ; Wheeland v. Swartz, 1 Yeates, 579 ; John- 
 son V. Gray, 16 S. & R. 361. See also, Bloodgood v. Zeily, 2 
 Cai. Ca. 124; Stoever v. Stoever, 9 S. & E. 434; Wharff v. 
 Howell, 5 Bin. 499 ; Cooper v. Whitney, 3 Hill, 95 ; Palmer v. 
 Guernsey, 7 Wend. 248 ; Nugent v. Riley, 1 Met. 117; Dey v. 
 Dunham, 2 John. Ch. R. 182; 15 John. 355 ; Heister v. Madeira, 
 3 W. & S. 384. 
 
260 ADAMS'S DOCTEINE OF EQUITY. 
 
 to purchase at a specific sum, (A) for converting ar- 
 rears of interest into principal, so as in effect to give 
 compound interest, (i) for allowing the mortgagee a 
 percentage as receiver, beyond interest on the money 
 advanced, (Z^) or for allowing him, when in possession 
 under a West Indian mortgage, a like percentage as 
 consignee of the produce. There is a different, and 
 apparently exceptional, rule in favour of a West 
 Indian mortgagee out of possession. And he is al- 
 lowed to insist on being consignee of the produce, 
 with the usual percentage on the consignments 
 made.(Z) 
 
 The relief thus given on a forfeited mortgage was 
 at first confined to Courts of equity, and the forfeiture 
 at law continued absolute. A partial jurisdiction 
 has been now created at law, but it is confined to 
 cases of the simplest kind, and does not apply even to 
 them if any suit of foreclosure or redemption has 
 been commenced. 
 
 The enactment on this subject is, that where an 
 action is brought by a mortgagee either for payment 
 of the money or for possession of the estate, and no 
 suit of foreclosure or of redemption is pending, if the 
 mortgagor shall appear and become defendant in the 
 r*1 1 '^l ^^^i<^°j ^^^ shall *pay to the mortgagee, or 
 on his refusal, shall bring into Court the 
 principal, interest, and costs, the Court of law may 
 
 (K) Willett V. Winnell, 1 Vern. 488. 
 
 (i) Blackburn v. Worwiok, 2 Y. & C. 92. 
 
 (Ic) Davies v. Denby, 3 Madd. 170 j Langstaffe v. Fenwick, 10 
 Ves. 405. 
 
 (I) Bunbury v. Winter, 1 Jac. & W. 255; Leith v. Irvine, IM. 
 & K. 277; Faulkner v. Daniel, 3 Hare, 218. 
 
PERFECT AND IMPERFECT MORTGAGES. 261 
 
 discharge him from the mortgage, and may compel 
 the mortgagee to reconvey. By the same statute it. 
 is enacted, that where a bill of foreclosure is filed, 
 the Court of Equity may, on the defendant's appli- 
 cation, and on his admitting the plaintiff's title, make 
 such order or decree before the hearing as it might 
 have made if the suit had been brought to a 
 hearing. But the act does not apply to cases where 
 the right of redemption or the sums chargeable are 
 in controversy, (m) 
 
 The mortgagor's right to redeem is technically 
 called his " Equity of Eedemption," and is treated as 
 a continuance of his old estate, subject to the mort- 
 gagee's pledge for repayment.^ 
 
 (m) 7 Geo. 2, 0. 20 ; Bastard v. Clarke, 7 Ves. 489 ; Praed v. 
 Hull, 1 S. & S. 331 ; Piggin v. Cheetham, 2 Hare, 80 ; Pieeves v. 
 G-lastonbury Canal Company, 14 Sim. 351. 
 
 ' Contracts made with the mortgagor to lessen or embarrass the 
 right of redemption, are regarded with jealousy. Holridge v. 
 G-illespie, 2 John. Ch. E. 34. And a mortgagee before foreclosure 
 can do no act to bind the mortgagor when he offers to redeem. 
 Wilson V. Troup, 7 Johns. Ch. K. 25. A Court of Equity 
 will restrain a mortgagee from proceeding at law to sell the equity of 
 redemption, or put him to his election either to proceed directly 
 on his mortgage or to seek other property (where the rights of 
 creditors do not interfere), or the person of the debtor for the satis- 
 faction of the debt. Tice v. Annin, 2 John. Ch, K. 125. As a 
 general rule, no person can come into a Court of Equity for a re- 
 demption, unless he is entitled to the estate of the mortgagor, or 
 claims a subsisting interest under it. Grant v. Duane, 9 John. 
 Kep. 591. As to the right of redemption by the mortgagor, his exe- 
 cutors, administrators, heirs, and assigns, see Smith v. Manning's 
 Exr's, 9 Mass. Kep. 422 ; Wilkins v. Sears, 4 Monr. 347 ; Dou- 
 glass V. Sherman, 2 Paige, 358 ; Skinner v. Miller, 5 Litt. 85 ; Bell 
 V. Mayor of New York, 10 Paige, 49 ; Merriam v. Barton, 14 
 
262 Adams's doctrine of equity. 
 
 It therefore remains subject to the ordinary inci- 
 . dents of the estate ; it passes in the same course of 
 devolution ; it may be devised, settled, or conveyed 
 in the same way ; or may be transferred to a new 
 claimant by mere length of enjoyment, (re) And the 
 parties making title by these or any other means to 
 the mortgagor's estate, have the same right with 
 himself to sue for redemption. If there be several 
 persons all claiming under the mortgagor, they will 
 be entitled to redeem successively according to their 
 priorities. Where the mortgagor's estate has alto- 
 gether determined, and the only claim is in the lord 
 by escheat, a different question arises; for escheat is 
 a mere incident of the law of tenure, and that law, 
 as we have already seen, does not apply to equitable 
 estates, (o) In accordance with this principle, the rule 
 appears to be, that if the mortgage be in fee, so that 
 the whole estate is transferred to the mortgagee, and 
 nothing remains in the mortgagor *which can 
 L -^ escheat at law, the lord is not entitled ; but 
 if the mortgage be for a term only, so that a rever- 
 sion is left which may escheat at law, the incidental 
 equity will pass with it. (oo) 
 
 (n) Cholmondeley v. Clinton, 4 Bligh, 0. S. 1 ; 3 & 4 "Wm. 4, 
 c. 27, s. 24. 
 
 (o) Supra. 
 
 (oo) Burgess v. Wheate, 1 Eden, 177 ; Downs v. Morris, 3 Hare, 
 394. 
 
 Verm. 501 ; Sheldon v. Bird, 2 Boot, 509 ; Craik v. Clark, 2 Hay. 
 32. By judgment creditors, see Hitt v. Holliday, 2 Litt. 332 ; 
 Babney v. Green, 4 Hen. & Munf. 101 ; Bigelow v. Wilson, 1 
 Pickering, 485. By subsequent incumbrances, see Burnett v. 
 Denniston, 5 John. Ch. K. 35 ; Cooper v. Martin, 1 Dana, 25 ; 
 Brown v. Worcester Bank, 8 Met. 47 ; Watt v. Watt, 2 Barb. Ch. 
 K. 371. 
 
PERFECT AND IMPERFECT MORTGAGES. 263 
 
 Another result of the principle which treats the 
 equity of redemption as a continuance of the old es- 
 tate is, that so long as the mortgagor is left in pos- 
 session, he is considered to hold in respect of his 
 ownership.' The ordinary practice now is, that he 
 should be so left in possession, and that the mortga- 
 gee should receive regular payments of interest, and 
 should be entitled to call for his principal at six 
 months' notice. If there be an express agreement 
 that the mortgagor shall have possession for a spe- 
 cified period, he is a termor for that period at law 
 if there be no express agreenaent, or if he continue to 
 hold after determination of the specified period, he 
 is at law merely an occupant by permission, and may 
 be ejected at any moment by the mortgagee. So 
 long, however, as the mortgagee does not exert his 
 power, the mortgagor is considered in equity to hold 
 as owner, and is entitled to the rents in that charac- 
 
 ' As between the mortgagor and third persons the mortgagor is 
 to be considered as possessed of the freehold. Wilkins v. French, 
 20 Maine, 111; Ellison v. Daniels, 11 N. H. 274 ; Wellington v. 
 Grale,' 7 Pick, 159 ; Groton v. Eoxborough, 6 Mass. 50 ; Hitchcock 
 V. Harrington, 6 John. 295 ; White v. Whitney, 3 Met. 81. And in 
 Pennsylvania it has never been understood that such privity exists 
 as that the mortgagee can compel the tenant of the mortgagor to 
 pay him the rent whether the lease was executed before or after 
 the mortgage. Myers v. White, 1 R. 355. In New York, it has 
 been held that the mortgagee has no right to the freehold, or to 
 anything more than a bare possession, even as between himself 
 and the mortgagor. Kunyan v. Messereau, 11 John. 584 ; Astor v. 
 Miller, 2 Paige, 68. See Hughes v. Edwards, 9 Wheat, 499 ; 
 Tucker v. Keeler, 4 Verm. 161 ; Northampton Paper Mills v. 
 Ames, 8 Metcalf, 1 ; Smith v. Moore, 11 N. H. 55 ; Prothingham 
 V. M'Kusick, 24 Maine, 403 ; Henshaw v. Wills, 9 Humph. 
 568. 
 
264 ADAMS'S DOCTRINE OF EQUITY. 
 
 ter. He cannot, therefore, be made accountable for 
 bygone rents, (p) But if the security be insufficient 
 he may be restrained, at the instance of the mortga- 
 gee, from cutting timber on the mortgaged pre- 
 mises. (g) If the possession of the mortgagor 
 continue for twenty years, the mortgagee may 
 under circumstances be altogether barred of his 
 right. The effect of such possession under the 
 old law, without demand of possession by the mort- 
 gagee, or receipt or demand of principal or interest, 
 was to raise a presumption that the debt was satis- 
 fied. And by the present law it is expressly de- 
 clared, that a mortgagee out of possession shall not 
 proceed, either at law or in equity, to recover the 
 land, except within twenty years after he last had 
 r*l 1 'iT possession, *or after the last payment of any 
 principal or interest, (r) ' The same principle 
 which treats the mortgagor's equity as the actual 
 
 (p) Ex parte Wilson, 2 Ves. &B. 252. 
 
 (q) King V. Smith, 2 Hare, 239. 
 
 (r) Christopher v. Sparke, 2 J. & W. 223 ; 3 & 4 Wm. 4, 
 c. 27, ss. 2, 3 ; 7 Wm. 4 & 1 Vict. c. 28 ; 3 & 4 Wm. 4, c. 42, 
 s. 3. 
 
 * The general rule is, that there may be redemption within 
 twenty years ; but upon equitable circumstances it may be allowed 
 after a much longer time. Ross v. Norvell, 1 Wash. Va. 19. 
 The possession to bar the equity of redemption must, be actual, 
 quiet, and uninterrupted possession for twenty years, or a period of 
 time sufficient to toll the right of entry at law. Moore v. Cable, 1 
 Johns. Ch. R. 385; Demarest v. Wynkoop, 3 Id. 129; Slee v. 
 Manhattan Co., 1 Paige, 48 ; Fenwick v. Macey, 1 Dana, 279. 
 
 In some of the states, fifteen years' possession, where no statute 
 disabilities or special circumstances equivalent thereto esist, will 
 bar an equity of redemption. Skinner v. Smith, 1 Day, 124; 
 Crittenden v. Brainurd, 2 Root, 485. 
 
PERFECT AND IMPERFECT MORTGAGES. 265 
 
 ownership, necessarily involves the conclusion, that 
 the mortgagee's legal estate is e converso a mere pledge 
 for repayment. 
 
 In some sense, therefore, the mortgagee is treated 
 as a trustee for the mortgagor, or rather, he is liable 
 to be made a trustee by payment of his claim. But 
 nothing short of payment can affect his right. He 
 is not bound to re-convey on a deposit of the money 
 in Court, however inconvenient his refusal may 
 prove ; nor is he even bound to allow an inspection 
 of the title deeds until the money is actually in his 
 hands, (s) And so long as the mortgage remains 
 undischarged, he is entitled to settle and deal with it 
 as his own, and if his so doing renders the redemption 
 more expensive, the mortgagor must, nevertheless, 
 defray the expense, (t) 
 
 The parties to whom the mortgagee may transfer 
 his interest, or who may otherwise make title to his 
 estate, are of course bound by the same equity as 
 himself; but if his estate has escheated, and redemp- 
 tion is asked against the lord, there appears to be 
 some question whether the equity is binding. It 
 has been contended that there is a difference in this 
 respect between a trust and an equity of redemption, 
 and that although the lord is not bound by a trust, 
 unless he is party or privy to it, yet that he shall 
 be bound by an equity of redemption, whether he 
 
 (s) Brown v. Lockhart, 10 Sim. 421 ; Kichards v. Platel, Cr. & 
 P. 79 ; Postlethwaite v. Blythe, 2 Sw. 256. 
 
 (0 "Wetherell v. Collins, 3 Madd. 255 ; Bartle v. Wilkins, 8 Sim. 
 238 ; Barry v. Wrey, 3 Russ. 465 ; Re Marrow, Cr. & P. 142 ; Re 
 Townsend, 2 Ph. 348. 
 
266 Adams's doctrine of equity. 
 
 were privy or not.{u) The distinction, however, 
 would probably be diflBcult to sustain. 
 
 *The statutory remedy against escheat in 
 ^ J the case of a trustee, has already been con- 
 sidered under the subject of trusts. And we had, 
 at the same time, occasion to notice the analogous 
 remedies provided by another statute, in the event 
 of the lunacy or infancy of a trustee, and in the 
 events of a trustee being out of the jurisdiction, of 
 doubts as to survivorship or heirship, and of a refu- 
 sal to convey when properly required. (^;) The pro- 
 visions, with respect to lunacy and infancy, are 
 expressly made applicable to mortgages also. The 
 applicability of the other provisions has been a sub- 
 ject of some discussion. But the doubts are now 
 cleared up by a later statute, which after reciting 
 the two former acts, provides for the case of a mort- 
 gagee who has died without having been in posses- 
 sion, and to whose executor or administrator the 
 mortgage money has been . paid, and expressly con- 
 fines the operation of the former acts to that particu- 
 lar case, (w) The enactments of the statute referred 
 to are that, " where any person seised of land by 
 way of mortgage shall have departed this life with- 
 out having been in possession of such land, or in the 
 receipt of the rents and profits thereof, and the 
 money due in respect of such mortgage shall have 
 been or shall be paid to his executor or administra- 
 tor, and the devisee or heir or other real representa- 
 
 (u) Burgess v. Wheate, 1 Eden, 177 ; Attorney-General v. 
 Duke of Leeds, 2 M. & K. 343. 
 
 (v) 3 & 4 Wm. 4, e. 23 ; 11 Geo. 4 & 1 Wm. 4, 6. 60, supra, 
 (ic) 1 & 2 Vict. c. 69. 
 
PERFECT AND IMPERFECT MORTGAGES. 267 
 
 tive, or any of the devisees or heirs, or real represen- 
 tatives of such mortgagee shall be out of the jurisdic- 
 tion, or not amenable to the process of the Court of 
 Chancery, or it shall be uncertain, where there were 
 several devisees or representatives who were joint 
 tenants, which of them was the survivor, or it shall 
 be uncertain whether any such devisee or heir or 
 representative be living or dead, or if known to be 
 dead, it shall not be known who was his heir, or 
 where such mortgagee or any such devisee or heir or 
 representative shall have died without an heir, or if 
 any such devisee or heir or representative shall 
 neglect or refuse to convey such land for the space 
 of twenty-eight *days next after a proper deed 
 for making such conveyance shall have been L -• 
 tendered for his execution by, or by an agent duly 
 authorized by, any person entitled to require the 
 same, then and in every such case it shall be lawful 
 for the Court of Chancery to direct any person, whom 
 such Court may think proper to appoint for that 
 purpose, in the place of the devisee, heir, or repre- 
 sentative (whether such devisee, heir, or representa- 
 tive shall or shall not have a beneficial interest in 
 the money paid to the executor or administrator as 
 aforesaid), to convey such land in like manner as by 
 the said first recited act, the said Court is empowered 
 to appoint a person to convey in the cases therein 
 mentioned in the place of a trustee or the heir of a 
 trustee, and every such conveyance shall be as effec- 
 tual as if such devisee or heir, or representative, had 
 executed the same." And it is further enacted, that 
 the provisions of this act shall embrace the same 
 objects as they would have done if they had formed 
 
268 Adams's doctrine of equity. 
 
 part of the said recited acts, and should not extend 
 to the case of any person dying seised of any land 
 by way of mortgage other than such as are in such 
 act expressly provided for. (x) 
 
 If the mortgagee is dissatisfied with the security 
 for his debt, he may enforce payment by an action 
 at law, or may take possession of the mortgaged 
 estate; or he may, if he choose, pursue both these 
 remedies at the same time, and any other which his 
 contract confers. For the right to do so is part of 
 his security, and if the mortgagor is inconvenienced 
 by its exercise, his proper remedy is payment of the 
 deht {yy 
 
 If the mortgagee takes possession of the estate, he 
 is treated in equity as holding in respect of his secu- 
 rity, and must deal with the estate in conformity 
 with that character. He is bound therefore to keep 
 the premises in necessary *repair, but is not 
 L -J bound to spend more than is strictly necessary. 
 He must account for all the moneys which he in 
 fact has received, or which without wilful default he 
 might have received, but is not bound to take the 
 trouble of making the most of the property. He is 
 entitled to receive any incidental benefit, provided 
 it be of a pecuniary kind, and therefore applicable in 
 liquidation of his debt ; but if it be not of that cha- 
 
 (x) Ee Goddard, 1 M. & K. 25 ; Prendergast v. Eyre, LI. & 
 G. 11 ; Ex parte Whitton, 1 K. 279 ; Green v. Holden, 1 Bea. 
 207. 
 
 (j/) Sohoole V. Sail, 1 Sch. & L. 176; Drummond v. Pigou, 2 
 M. & K. 168 ; Lockhart v. Hardy, 9 Bea. 349. 
 
 ' Hughes V. Edwards, 9 Wheaton, 489 ; Dunkley v. Van Buren, 
 3 John. Ch. R. 330 ; Cullum v. Emanuel, 1 Ala. 23. 
 
PERFECT AND IMPERFECT MORTGAGES. 269 
 
 racter, as, for example, if it be the presentation to a 
 vacant living, the mortgagor must have it as the 
 real owner, (z)^ 
 
 In taking the account of a mortgagee in possession, 
 where the rents have exceeded the interest on his 
 mortgage, a question occurs, whether he shall be 
 charged with interest on the surplus rents. If he is 
 not to be charged with such interest, the account is 
 taken by ascertaining on the one hand the aggregate 
 amount of principal and interest down to the period 
 of redemption, and on the other hand the aggregate 
 amount of rent, down to the same period, and strik- 
 ing a balance of the two amounts. If he is to be 
 charged with interest, the account is taken by 
 making rests from time to time, and striking a 
 
 (z) Mackenzie v. Kobinson, 3 Atk. 559. 
 
 ' A mortgagee in possession is accountable for tbe profits really 
 made, and no further, except in case of gross negligence. Bain- 
 bridge V. Owen, 2 J. J. Marsh, 465 ; Van Buren v. Olmstead, 5 
 Paige, 9 ; Bell v. The Mayor, &o., of New York, 10 Paige, 49 ; and 
 is not chargeable with interest on rents ; Breckenridge v. Brooks, 
 2 A. K. Marsh, 339. In Saunders v. Frost, 5 Pickering, 260 it 
 was decided that rents received by a mortgagee should be applied 
 to keep down the interest. But a mortgagee is not entitled to 
 compensation for his trouble in managing the estate, whether the 
 parties have agreed to make such allowance or not. Brecken- 
 ridge V. Brooks, 2 A. K. Marsh, 339. The only repairs made 
 by the mortgagee without the mortgagor's consent, which will be 
 allowed to the mortgagor, are strictly necessary repairs. Benefi- 
 cial expenditures if unnecessary will not be allowed. Quinn v. 
 Brittain, 1 Hoff. C. K. 353 ; Hagthorp v. Hook, 1 Gill. & J. 270; 
 Lowndes v. Chisolm, 2 M'Cord Ch. 455. With a few exceptions, 
 it is a general rule in Chancery, that a mortgagor in possession is 
 not entitled to any allowance for new improvements erected on the 
 premises; Dougherty v. M'Colgan, 6 Gill. & J. 275. 
 
270 Adams's doctrine of equitt, 
 
 balance at each rest, so as to apply the surplus rents 
 in gradual reduction of the principal debt, and in 
 consequent diminution of the subsequent interest. 
 The effect of this course is equivalent to allowing 
 interest throughout on the entire principal, and 
 charging interest on the surplus rents. 
 
 In order to authorize the rests, an express direc- 
 tion of the Court is necessary, (a) and the prima 
 facie presumption is against allowing them. For 
 the mortgagee is not bound to take payment by 
 instalments, and his possession is in consequence of 
 the mortgagor's default. If, however, he take posses- 
 sion when no interest is in arrear, he is not compelled 
 to do so by the mortgagor's default, and rests will be 
 decreed against him. It is otherwise if interest is 
 r*l 1 Qi ^^ *arrear at the time ; and he will not in 
 '- -' that case become liable to account with rests 
 until both principal and interest have been dis- 
 charged. If he continue in possession after that 
 time, annual rests will be decreed for the subsequent 
 period, (b) 
 
 The liability of a mortgagee in possession to 
 account is confined to a period of twenty years, 
 unless continued by his own acknowledgment. 
 The rule formerly was, that if a mortgagee were in 
 possession for twenty years, without keeping ac- 
 counts or otherwise dealing with the property as 
 mortgagee, a presumption arose that the equity was 
 released. And by the present law it is expressly 
 
 (a) Webber v. Hunt, 1 Mad. 13. 
 
 (6) Quarrell v. Beckford, 1 Mad. 269 ; Wilson v. Metoalf, 1 
 Russ. 530 ; Wilson v. Cluer, 8 Bea. 136 ; Horlock v. Smith, 1 
 
 Coll. 287. 
 
PERFECT AND IMPERFECT MORTGAGES. 271 
 
 declared that a mortgagor out of possession shall not 
 be entitled to redeem, except within twenty years 
 after the mortgagee took possession, or after a writ- 
 ten acknowledgment of his right, signed by the mort- 
 gagee, has been given to him or his agent, (c) 
 
 The remedy of the mortgagee by taking possession 
 is practically very inconvenient. Yet if the forfei- 
 ture by non-payment had been taken away, and not 
 replaced by any substitute, it would have been the 
 only one attainable under his security. In order to 
 remedy this objection, the mortgagee is allowed after 
 forfeiture to file a bill praying foreclosure of the 
 equity to redeem. A new day for payment is then 
 fixed by decree, and if default be made, the mortga- 
 gor's right is destroyed. The foreclosure, however, 
 may be opened and the right of redemption revived, 
 if the decree appear to have been unfairly obtained, 
 or if the mortgagee treat the loan as still continuing; 
 as, for example, if he proceed against the mortgagor 
 on bond or other collateral security. If he sell the 
 estate, and thus render it impossible to reopen the 
 foreclosure, he will be restrained from suing on the 
 collateral securities, although the sale *may 
 have been bona fide made for less than the '- -^ 
 amount due.{d) 
 
 The effect of foreclosure is also produced by the 
 dismissal of a redemption bill on default in payment, 
 for the Court will not again interfere, but will leave 
 the parties to their rights at law. 
 
 (c) Hodle V. Healey, 6 Mad. 181 ; Cholmondeley v. Clinton, 4 
 Bl. 0. S. 1 ; 3 & 4 Wm. 4, c. 27, s. 28, supra. 
 
 (d) Tooke v. Hartley, 2 B. C. C. 125; Perry v. Barker, 8 Ves. 
 527 ; 13 Ves. 198 ; Lockhart v. Hardy, 9 Bea. 849. 
 
272 Adams's doctrine of equity. 
 
 It must be observed, that the right of the mort- 
 gagee on such a bill is a right merely to foreclose 
 the equity, and does not extend to warrant a sale. 
 For although a sale would be often more convenient 
 than a foreclosure, yet it is not stipulated for by the 
 contract, and the Court has no more authority to 
 sell the mortgaged estate for payment of the debt, 
 than to sell the mortgagor's other estates for the same 
 purpose. If, however, the property mortgaged be a 
 right of presentation to a church, (e) or a dry rever- 
 sion, incapable of producing present profit, (/) the 
 mortgagee is entitled to a sale, in respect of the 
 special character of the mortgaged property, and its 
 incapacity of constituting, except by a sale, a prac- 
 tical security for the debt. And in cases where 
 stock has been transferred by way of mortgage, the 
 mortgagee is entitled by the custom of business to 
 sell immediately on default, without the necessity of 
 obtaining a decree, (g^) In those cases also where 
 there is a special supervening jurisdiction, and where 
 the Court does not act in respect of the mortgage 
 alone, a decree for sale may be obtained. If, for 
 example, the mortgagor be dead, there is an inde- 
 pendent jurisdiction to administer his assets, and 
 therefore if the personalty be insufficient, the mort- 
 gaged estate may be sold by consent of the mortgagee, 
 and the produce applied, first in discharge of the 
 mortgage, and then in payment of the other debts, (7t) 
 
 (e) Mackenzie v. Robinson, 3 Atk. 559. 
 (/) Howe V. Vigues, 15 Viner's Abr. 475. 
 Ig) Tucker v. Wilson, 1 P. W. 261. 
 (h) Daniel v. Skipwith, 2 B. C. C. 155. 
 
PERFECT AND IMPERFECT MORTGAGES. 273 
 
 or if the estate lias *been vested in an infant, 
 a sale may be directed as indispensable for his L -■ 
 benefit, lest the estate should be foreclosed and lost. (^) 
 In Ireland and some of the American courts, a diffe- 
 rent rule prevails, and the mortgagee may in all 
 cases require a sale, (k) ^ If an express power of sale 
 is given by the mortgage, such a power forms an 
 additional remedy for the mortgagee, and does not 
 interfere with his right to foreclose.^ 
 
 (i) Mondey v. Mondey, 1 Ves. & B. 223 ; Brookfield v. Brad- 
 ley, Jae. 634 ; Davis v. Dowding, 2 K. 245. 
 (k) 2 Story on Eq. Jur. s. 1025. 
 
 ' Brinckerhoff v. Thallhimer, 2 John. Ch. E. 486 ; Mills v. 
 Dennis, 3 John. Ch. K. 369. 
 
 In many of the States the ancient practice of procuring a strict 
 foreclosure is not adopted. Nelson v. Carrington, 4 Munf. 332 j 
 Kodgers v. Jones, 1 M'Cord's Ch. 221 ; Downing v. Palmateer, 1 
 Monr. 66 ; Pannell v. Farmers' Bk. 7 Har. & J. 202 ; Humes v. 
 Shelly, 1 Ten. Rep. 79 ; Hurd t. James, Id. 201 ; David v. Gra- 
 hame, 2 Har. & Gr. 94 ; See Henderson v. Lowry, 5 Yerg. B. 
 248 ; Smith v. Bailey, 1 Shaw, Yerm. R. 163 ; N. S. Id. 267 ; 
 Lockwood V. Lockwood, 1 Day, 295 ; Baylies v. Bussen, 5 Green- 
 leaf, 153 ; Gilman v. Heddin, 5 N. H. 31 ; Erskine v. Townsend, 
 2 Mass. Hep. '493 ; 5 Ham. 554 ; as to the time in which the 
 mortgagor may redeem, see ante, n. a, to p. 114-115. 
 
 The practice in the New England States seems to be similar to 
 that of the English Courts. Mix v. Hotchkiss, 14 Conn. R. 32 j 
 but see Gibson v. Bailey, 9 N. H. 168 ; and in North Carolina, 
 see Spiller v. Spiller, 1 Hayw. 482. Time to redeem in case of 
 strict foreclosure will be allowed according to circumstances, Fe- 
 rine V. Dunn, 4 John. Ch. R. 140. In Pennsylvania, a mortgage 
 may be foreclosed by scire facias, and in Missouri, by petition and 
 summons. 
 
 " A power to mortgage includes a power to execute a mortgage 
 containing a power to the mortgagee to sell the premises in default 
 of payment, it being one of the usual and lawful remedies given tp a 
 
 18 
 
274 Adams's doctrine of equity. 
 
 If the mortgagor become bankrupt, the position of 
 the mortgagee as to foreclosure is changed. He loses 
 the right, which he previously had, of enforcing pay- 
 ment as a general creditor, and retaining in the 
 mean time his power to foreclose. For the principle 
 of the Bankrupt Law, which aims at distributing a 
 debtor's property among all his creditors, will not 
 permit a creditor to keep back part of that property, 
 and at the same time to share in the distribution of 
 the rest. The mortgagee therefore must elect be- 
 tween two courses. He must either relinquish his 
 security and prove for the whole debt ; or he must 
 realize his security, and afterwards prove for so much 
 of the debt as the produce is insufficient to discharge. 
 And in order to effectuate this latter course, it is 
 directed that the Commissioner acting under the fiat, 
 on being satisfied of the creditor's title as mortgagee, 
 shall take an account of the moneys due ; shall cause 
 the mortgaged premises to be sold, and the produce 
 to be applied, first in payment of the expenses, and 
 then in satisfaction of the claim ; and if the moneys 
 produced shall be insufficient to satisfy it, shall 
 admit the mortgagee as a creditor for the deficiency, 
 and to receive dividends thereon. (Z) 
 
 In addition to regular or perfect mortgages, which 
 
 (l) General Order in Bankruptcy of 8th March, 1794 ; 1 Mont. 
 & Ayrton's Bankruptcy, 243 ; Greenwood v. Taylor, 1 R. & M. 
 185 ; Mason t. Bogg, 2 M. & C. 443 ; Davis v. Dowding, 2 K. 
 245. 
 
 mortgagee, known to the law and regulated by statute. Wilson v. 
 Troup, 7 John. Ch.R. 25; 2 Cowen,195. S. C; and a power to sell 
 in a mortgage deed, on default of payment, is a power coupled with 
 an interest, and does not die with the mortgagor. Bergen v. Ben- 
 nett, 1 Cai. Ca. E. 1. 
 
PERFECT AND IMPERFECT MORTGAGES. 275 
 
 *convey tlie legal estate to the mortgagee, r^., „„-, 
 and specify a day of forfeiture at law, there 
 are other securities of an analogous character, but 
 defective in one or both of these respects. 
 
 These imperfect securities are seven in number ; 
 viz., 1. Mortgages of a trust or equity of redemption, 
 and equitable mortgages by imperfect conveyance, 
 or by contract to convey ; 2. Equitable mortgages by 
 deposit of title deeds unaccompanied by a written 
 contract; 3. Welsh mortgages; 4. Trust deeds in 
 the nature of mortgage ; 5. The equitable lien of a 
 vendor or purchaser of real estate ; 6. Equitable fi. 
 fa. and elegit; and 7. Judgment charges under 1 and 
 2 Vict. c. 110, s. 13 and 14. 
 
 The first class of imperfect mortgages are, mort- 
 gages of a trust or equity of redemption. In a 
 mortgage of this kind the legal estate is ex concessis 
 outstanding in the trustee or prior incumbrancer, and 
 cannot be transferred to the mortgagee. He is there- 
 fore disabled from obtaining possession at law, and 
 is entitled in consequence of that disability, to have 
 a receiver appointed in equity, by whom the rents of 
 the estate may be received, and applied in sajtisfac- 
 tion of his mortgage. A receiver, however will not 
 be appointed, if a prior legal incumbrancer is in pos- 
 session, unless the applicant will pay oflf his demand. 
 If the prior incumbrancer be not in possession, the 
 appointment may be made, without prejudice to his 
 right of applying for the possession. A legal mort- 
 gagee cannot have a receiver, but must take posses- 
 sion under his legal title, (m) 
 
 (m) Berney v. Sewell, 1 Jac. & W. 647; Brookes v. Greathed, 
 1 Jac. & W. 176. 
 
276 Adams's doctrine of equity. 
 
 It should be observed that where an equity of re- 
 demption is the subject of mortgage, the mortgagor 
 is bound to disclose the prior mortgage ; and that if 
 he conceals it and represents the land as unincum- 
 bered, he is liable by statute to forfeit his equity, 
 and to be ipso facto foreclosed in favour of the second 
 r*-|oq-] mortgagee, (n) By the same act, it is *en- 
 acted that if a person, bound by judgment, 
 statute, or recognisance, borrow money on mortgage, 
 without giving notice thereof in writing, he must 
 discharge the judgment, statute, or recognisance, 
 within six months after requisition by the mortgagee, 
 and that in default of so doing, he shall be ipso facto 
 foreclosed. 
 
 Mortgages of the kind just considered may be 
 properly called "mortgages of an equity j" there are 
 also other imperfect mortgages, which may be termed 
 "equitable mortgages," consisting of mortgages by 
 imperfect conveyances, or by an uncompleted con- 
 tract to convey. Mortgages of this latter class entitle 
 the mortgagee to claim specific performance and the 
 execution of a legal mortgage. In the mean time, 
 they stand on the same footing as mortgages of an 
 equity, and entitle the mortgagee to a receiver of the 
 rents.' 
 
 The second class of imperfect mortgages are equita- 
 
 (n) 4 & 5 Wm. 3; c. 16 ; Stafford v. Selby, 2 Vern. 589. 
 
 * A Court of Equity will often pronounce that to be an equita- 
 ble mortgage, wbich at law would be considered a conditional sale, 
 and if a conveyance resolves itself into a security for the perform- 
 ance or non-performance of any act, it is a mortgage, whatever be 
 its form. Plagg v. Mann, 2 Sum. 486. 
 
PERFKOT AND IMPERFECT MORTGAGES. 277 
 
 ble mortgages by deposit of title deeds, unaccom- 
 panied by a written contract.^ 
 
 The prima facie effect of such a deposit is, that 
 until payment the debtor cannot get back his title 
 deeds, and therefore cannot conveniently deal with 
 the estate ; and if the right conferred on the creditor 
 had stopped here, it would not have been in the na- 
 ture of a mortgage at all, but would have been very 
 similar to a solicitor's lien, viz., a right to hold the 
 deeds so as to enforce payment by embarrassing the 
 debtor, but unaccompanied by any charge on the 
 estate. The attempt to carry the security beyond 
 this limit, and to make such deposits a charge on the 
 estate was seriously impeded by the enactment of 
 the Statute of Frauds, that no interest in land shall 
 be created otherwise than by writing; but it has 
 been held that the fact of the deeds being delivered 
 to the creditor, raises an implication of law, not only 
 that they were to operate as a security for the debt, 
 but that such security was to be effectuated by a 
 mortgage, (o) *The conclusion, however, on p-, 24^-1 
 this latter point seems unsatisfactory; for 
 although there may be a sufficient ground to presume 
 that a security was meant, yet the deposit might 
 effectuate that object by em.barrassing the debtor 
 
 (o) Russell V. Russell, 1 B. C. C. 269 ; Ex parte Whitbread, 
 19 Ves. 209 ; Ex parte Hooper, 1 Meriv. 7 ; Parker v. Housefield, 
 2 M. & K. 419. 
 
 ' Rockwell V. Hobby, 2 Sandf. 9 ; Williams v. Stratton, 10 
 Smed. & M. 418. In Pennsylvania, it has been decided that an 
 equitable mortgage by delivery of title deeds is not valid; Shitz 
 V. Dieffenbach, 3 Barr, 2-33. See also Vanmeter v. McFaddin, 8 
 B. Monr. 435. 
 
278 Adams's doctrine of equitt. 
 
 without necessarily charging the land. The doctrine 
 was several times commented on by Lord Eldon, 
 who admitted that it was established by precedent, 
 but said that it ought never to have been so es- 
 tablished. 
 
 In conformity with this doctrine a mere delivery 
 of deeds, by way of security, unaccompanied by any 
 written contract, will constitute in equity a charge 
 on the land. And by parity of reasoning the se- 
 curity may be extended to future advances, if they 
 are made under a parol agreement to that effect, 
 although in the case of an ordinary mortgage, or of 
 a contract for conveyance as distinct from deposit, a 
 writing would be necessary under the Statute of 
 Frauds, {p) 
 
 Mortgages of this kind are not unusual, especially 
 in the case of persons in trade where loans are re- 
 quired for a short period, and the parties are desirous 
 of saving time and expense. 
 
 Their essentials are, as we have already seen, that 
 the deeds be delivered to the creditor, and that the 
 delivery be by way of pledge, and not diverso intuitu. 
 A delivery to a third person on behalf of the creditor 
 would probably be sufficient if the intention were 
 proved. But if the deeds are retained by the mort- 
 gagor a parol agreement to deposit them is ineffec- 
 tual, [q) If a portion only of the deeds be delivered 
 it appears to be sufficient, provided the delivery be 
 with the intention to create a security. 
 
 (p) Ex parte Whitbread, 19 Ves. 209 ; Ex parte Hooper, 1 
 Meriv. 7. ' 
 
 (j) Ex parte Coming, 9 Ves. 115; Ex parte Whitbread, 19 
 Vcs. 209 ; Ex parte Combe, 4 Madd. 249. 
 
PERFECT AND IMPERFECT MORTGAGES. 279 
 
 But if part be delivered to one creditor, and part 
 to another, there may be much dijfficulty in consider- 
 ing either of them as an equitable mortgagee, or as 
 entitled to more than his right of detainer, (r) If 
 the delivery is not strictly by way of *pledge, r*i or-i 
 but in order to the preparation of a regular - 
 mortgage, there seems to be additional difl&culty in 
 sustaining it as an equitable mortgage. For the im- 
 plication arising out of the mere deposit, that such 
 deposit itself was meant as a charge, is expressly 
 negatived by the proved intent. And if that intent 
 is specifically enforced by directing a mortgage to be 
 made, the direction will be based, not on an implica- 
 tion of law, but on express parol evidence, admitted 
 in contravention of the Statute of Frauds. The 
 authorities, however, are in favour of the mortgagee's 
 claim, (s) 
 
 The effect of a mortgage by deposit is that the 
 mortgagee has an equitable charge on the land. He 
 is not invested with the legal ownership ; and for 
 this reason he is entitled, like the mortgagee of an 
 equity, to have a receiver appointed of the rents. 
 His mortgage specifies no day of payment, and a 
 doubt therefore has existed whether his proper 
 remedy is by foreclosure or by a decree for sale. 
 The decisions on this point are not uniform, but 
 their result appears to be that the implied contract 
 is one for a legal mortgage, and therefore carries 
 
 (r) Ex parte Wetherell, 11 Ves. 401 ; Ex parte Pearse, Buck. 
 525 ; Ex parte Chippindale, 2 M. & A. 299. 
 
 (s) Norris v. Wilkinson, 12 Ves. 192 ; Ex parte Bruce, 1 Eosc, 
 374; Hockley v. Bantock, 1 Kuss. 141; Keys v. Williams, 3 
 Y. & C. 55. 
 
280 Adams's doctrine of equity. 
 
 with it all the rights which a legal mortgage would 
 confer, including the right of foreclosure. Whether 
 he is bound to abide by that right, or may claim in 
 the alternative a sale of the estate, seems to be still 
 in doubt, (i!) 
 
 The third and fourth classes of imperfect mort- 
 gages are "Welch mortgages, and trust deeds in the 
 nature of mortgages. 
 
 A "Welch mortgage is a conveyance of an estate, 
 redeemable at any time on payment of principal and 
 interest, and its chief imperfection is the want of a 
 specified day of forfeiture. The consequence of this 
 want is that the mortgagee's remedy is confined to 
 p.^ perception of the rents, and *that he is not 
 L -• entitled to foreclosure or sale, nor will his lia- 
 bility to account be determined by the lapse of time, 
 unless he has continued in possession for twenty 
 years after the debt was fully paid and satisfied, (w) 
 
 Trust deeds in the nature of mortgage are mere 
 conveyances to the creditor, on trust for the debtor 
 until default ; and after default, on trust to sell and 
 to retain the debt out of the proceeds. The imper- 
 fection of these securities, like that of "Welch mort- 
 gages, consists in the want of any day of forfeiture, 
 and in the consequent absence of a right to fore- 
 closure. The estate never vests absolutely in the 
 
 (0 Paia V. Smith, 2 M. & K. 417 ; Parker v. Housefield, 2 M. 
 & K. 419 ; Brocklehurst v. Jessop, 7 Sim. 438 ; Moores v. Choat, 
 8 Sim. 508, 515, 523 ; Price v. Carver, 3 M. & C. 157, 161 ; 
 Lister V. Turner, 5 Hare, 281. 
 
 (u) Yates v. Hambley, 2 Atk. 360 ; Fenwick v. Reed, 1 Meriv. 
 114 ; Teulon v. Curtis, Younge, 610 ; Balfe v. Lord, 1 Conn. & 
 L. 519. 
 
PERFECT AND IMPERFECT MORTGAGES. 281 
 
 creditor, and he is placed rather in the position of a 
 trustee, though to some extent for his own benefit, 
 than in that of an independent mortgagee, [v) 
 
 The inconvenience resulting from the want of 
 ability to foreclose, both in the case of Welch mort- 
 gages and in that of trust deeds, is very great ; and 
 such securities are of comparatively unfrequent oc- 
 currence. 
 
 The fifth class of imperfect mortgages is the equi- 
 table lien of a vendor or purchaser of real estate. 
 
 The term lien, when accurately used, signifies a 
 right to retain a personal chattel, until a debt due 
 to the person retaining is satisfied ; and it exists at 
 common law, independently of liens by agreement 
 or usage, in three cases, viz., 1. Where the person 
 claiming the lien has, by his labour or expense, im- 
 proved or altered the chattel; 2. Where he is bound 
 by law to receive the chattel or to perform the ser- 
 vice, in respect of which the lien is claimed ; and, 
 3. Where his claim is for salvage, as on a rescue of 
 goods from perils of the sea, or from capture by an 
 enemy. 
 
 The foundation of this right is the actual posses- 
 sion, and, therefore, if the possession be abandoned, 
 the lien is gone ; and, if there be any agreement to 
 postpone the time of payment, *the same p^-, ny-i 
 efiect follows ; for it cannot be supposed that 
 the creditor was intended to detain the chattel 
 during the whole period of postponement, (w) There 
 is also a right at law in the nature of lien, entitling the 
 
 (v) Ex parte Pettit, 2 Gl. & J. 47. Sampson v. Pattison, 1 
 Hare, 533. 
 
 (w) Smith V. Merc. Law, 510, 518 ; Jarm. Byth. 3-13. 
 
282 Adams's doctrine of equity. 
 
 vendor of a chattel, who has not sold on credit, and 
 has not actually or constructively delivered it to a 
 purchaser, to retain it in his possession until the 
 whole price is paid, notwithstanding that by pay- 
 ment of a portion, the right of property may have 
 passed to the purchaser. The right, however, seems 
 to be merely a right of detention, and not a right to 
 rescind the contract, .or to make up the deficiency by 
 a resale ; and when the chattel has been delivered, 
 the right is at an end. [x] 
 
 The equitable lien on a sale of realty is very 
 different from a lien at law ; for it operates after the 
 possession has been changed, and is available by way 
 of charge, instead of detainer. 
 
 The distinction may, perhaps, be traced to the 
 same principle which prevails in regard to specific 
 performance; viz., that where the possession of a 
 chattel has been parted with, the Courts of common 
 law cannot compel its restoration, but can only give 
 damages for its detention, which could be equally 
 well obtained in an action for its price. A right of 
 lien, therefore, when the possession has been parted 
 with, would be a nullity at law; and as damages 
 are sufficient remedy for detention of chattels, there 
 is no ground for equitable interference. But, on the 
 other hand, where real estate is concerned, a specific 
 decree is required, and will be made. 
 
 Whatever be the origin of the distinction, its 
 existence is clear. And it is an established principle 
 of Equity, that where a conveyance is made prema- 
 turely before payment of the price, the money is a 
 
 (x) Ibid. 436-9, 457-63, 500-9. 
 
PERFECT AND IMPERFECT MORTGAGES. 283 
 
 charge on the estate in the hands of the vendee ; 
 and where the money is paid prematurely 
 *before conveyance, it is, in like manner, a L J 
 charge on the estate in the hands of the vendor. (?/)> 
 The lien thus attaching on the estate is obviously 
 useless by way of- detainer, and can only be avail- 
 able by way of charge. It is treated, therefore, as a 
 
 (y) Mackreth v. Symmons, 15 Ves. 329. 
 
 ' In many of the States, the English doctrine seems to be recog- 
 nised; see Stafford v. Van Rensselaer, 9 Cow. 316; Deibler v. 
 Barwick, 4 Blackf. 339 ; Cox v. Fenwick, 3 Bibb. 183 ; Williams 
 V. Eoberts et al., 6 Ohio, 35; Stewart et al. v. Ives et al., 1 
 Smedes & M., 197; Marsh v. Turner, 4 Miss. 253; Thornton v. 
 Knox's Exr's, 6 B. Monr. 74; Tompkins v. Mitchell, 2 Rand. 
 428 ; Dyer v. Martin, 4 Scam. 148 ; Van Doren v. Todd, 2 Green 
 Ch. 397 (see 3 Green Ch. 251); Morton v. Harrison, 1 Bland, 
 491 ; Eskridge v. M'Clure, 2 Yerg. 84 ; Bayley v. Greenleaf, 7 
 Wheat. 256; Hall's Exr's v. Click et al., 5 Ala. 363; in Pennsyl- 
 vania, the doctrine is exploded, for in Hepburn v. Snyder, 3 Barr, 
 72, 73, the Court say, " Liens upon land are not favoured or to 
 be implied ; and they are consequently to be created by plain 
 terms." (See Zentmyer v. Mittower, 5 Barr, 403.) So in North 
 and South Carolina; Wamble v. Battle, 3 Ired. Eq. 182; Hen- 
 derson V. Burton, 3 Id. 259; Wragg's Rep. v. Comp. Gen., 2 
 Desau, 509 ; in other States, the question seems yet to be unde- 
 cided; Watson V. Wells, 5 Conn. 468 (see Dean v. Dean, 6 Conn. 
 285) ; Atwood v. Vincent,. 17 Conn. 576 ; Budd v. Busti, 1 Har. 
 69; Hutchins v. Olcutt, 4 Verm. 549; in Massachusetts, the 
 vendor never has a lien on the land for the unpaid purchase-money; 
 Gilman v. Brown, 1 Mason, 191 ; as against creditors, the existence 
 of this lien is a point upon which the decisions are contradictory 
 and conflicting; see Bayley v. Greenleaf, 7 Wheat. 46; Moore 
 V. Holcombe, 3 Leigh. 597; Harper v. Williams, 1 Dev. & Bat. 
 379 ; Roberts v. Rose et al., 2, Humph. 145 ; Brown v. Vanlier 
 et al., 7 Humph. 239; Repp et al. v. Repp, 12 Gill & J. 341; 
 Duval V. Bibb, 4 Hen. & M. 113 ; Clark v. Hunt, 3 J. J. Marsh. 
 553 ; Eubank v. Poston, 5 Monr. 285. 
 
284 Adams's doctrine of equity. 
 
 security in the nature of mortgage ; and the remedy 
 under it is by suing in Equity to have the estate 
 resold, and the deficiency, if any, made good by the 
 defendant; or else to have the contract rescinded, 
 retaining the deposit as forfeited, which is practically 
 equivalent to a foreclosure of the charge, (z) 
 
 The character of this lien as an enforceable charge, 
 protects it from being lost by postponing the day of 
 payment. For such postponement, though inconsis- 
 tent with a right of detainer, is not inconsistent with 
 a right of charge. Nor will it be lost by taking a bill, 
 note, or bond, as a security for the consideration, 
 although such security be payable at a future day. {ay 
 It is considered if the security be itself the considera- 
 tion, as, for example, if the conveyance profess to be 
 in consideration of a covenant to pay, and not in 
 consideration of actual payment. (&) If, however, the 
 security is inconsistent with a continuance of the 
 charge, the lien is at an end ; as, for example, if a 
 mortgage be made on the same estate for part of the 
 price, or on part of the estate for the whole price ; 
 for either of these securities contradicts the notion 
 
 (2) 1 Sug. V. & P. 427. (a) Winter v. Anson, 3 Euss. 488. 
 (6) Clarke v. Eoyle, 3 Sim. 499 ; Parrott v. Sweetland, 3 M. 
 & K. 655; Buckland v. Pooknell, 13 Sim. 406. 
 
 ' It is incumbent upon the party contesting the vendor's lien to 
 show that it has been relinquished, and the acceptance of personal 
 security is no evidence of such relinquishment. Garson v. Green, 
 1 John. Ch. R. 308 ; Thompkins v. Mitchell, 2 Eand. 428 ; Camp- 
 bell V. Baldwin, 2 Hump. 248 ; Gilman v. Brown, 1 Mason, 192 ; 
 Tierman v. Beam, 2 Ham. 383; see also Evans v. Goodlet, 1 
 Blackf. 246; Cox v. Fenwick, 3 Bibb, 183; White v. Williams, 
 1 Paige, 502 ; Thornton v. Knox's Ex'rs, 6 B. Monr. 74 ; Boss v. 
 Whitson, 6 Yerg. 50; Mims v. Macon, 3 Kelly, 333. 
 
PERFECT AND IMPERFECT MORTGAGES. 285 
 
 that the whole price is to be a charge on the whole 
 estate, (c) The question whether in each particular 
 case the lien is relinquished, can only be determined 
 by the special circumstances. If the nature of the 
 thing bought, and of the consideration for it exclude 
 the supposition that the lien was relied on, that cir- 
 cumstance will have weight in the decision ; or if a 
 security be taken of *a character and value, 
 which show that credit was exclusively given '- -^ 
 to that security, that fact also will have its weight. 
 But the question is always one of intention, to be col- 
 lected from circumstances which have taken place, (d) ' 
 
 The sixth and seventh classes of imperfect mort- 
 gages, are those of equitable fieri facias and elegit, 
 and judgment charges under 1 & 2 Vict. c. 110, ss. 
 13, 14. 
 
 The writs of fieri facias and elegit are writs of 
 execution after judgment, respectively requiring 
 the sheriff to levy the debt out of the debtor's per- 
 sonal or real estate. And being writs issued out of 
 the common law Courts, are confined in their opera- 
 tion to legal interests. If the debtor be entitled to a 
 trust or equity of redemption, his interest is exempt 
 
 (c) Capper v. Spottiswoode, Taml. 21 ; Bond v. Kent, 2 Vera. 
 281. 
 
 (d) Nairn v. Prowse, 6 Ves. 752 ; Mackreth v. Symmons, 15 
 Ves. 329; Winter v. Anson, 3 Euss. 488; 3 Sug. V. &. P., c. 
 xviii. 
 
 ^ The lien may be waived by conduct showing that intention ; •• 
 see Clark v. Hunt, 3 J. J. Marsh, 553. In some of the States, 
 the lien may be enforced without a judgment. High and wife v. 
 Batte, 10 Yerg. 186 ; Galloway v. Hamilton's heirs, 1 Dana, 576 ; 
 Eichardson v. Baker, 5 J. J. Marsh, 323. 
 
286 ADAMS'S DOCTRINE OF EQUITY. 
 
 from execution at law, and must be attached, if at all, 
 by suit in equity. A partial exception to this rule 
 was introduced by the Statute of Frauds, giving 
 legal execution against the real estate of which any 
 person was seised in trust for the debtor at the time 
 of execution sued out. But the enactment did not 
 extend to chattels real, to trusts under which the 
 debtor had not the whole interest, to equities of 
 redemption, or to any equitable interest which had 
 been parted with before execution sued out. (e) 
 
 The remedy afforded to the creditor in equity, 
 when either of these writs has been issued, is termed 
 an equitable fieri facias, or elegit, according as it is 
 sought against personal or real estate. 
 
 Its modus o])erandi is of a threefold character, first, 
 by injunction against setting up an outstanding 
 estate in bar of execution at law; secondly, by 
 appointment of a receiver ; and, thirdly, in the case 
 of an equity of redemption, by permitting the judg- 
 ment creditor to redeem. But it is strictly confined 
 to its legitimate object, viz., the imposing *on 
 L -' the equitable interest the liability which 
 would attach at law on a corresponding legal inte- 
 rest. In accordance with this principle, no relief 
 can be obtained in equity until the title is perfected 
 at law by suing out the writ ; but it is not necessary 
 that the writ should be returned. There is an 
 apparent exception to this rule where the judgment 
 creditor is seeking to redeem a mortgage, or where 
 ■ the debtor is dead, and administration of his assets 
 is wanted. In the former case the Court, finding 
 
 («) 29 Car. 2, o. 2, b. 10; Forth v. Duke of Norfolk, 4 Mad. 
 503. 
 
PERFECT AND IMPERFECT MORTGAGES. 287 
 
 the creditor in a condition to acquire a power over 
 the estate by suing out the writ, acts, as it does in 
 all similar cases, and enables him to redeem other 
 incumbrances; in the latter, if under any circum- 
 stances the estate is to be sold, it pays off the judg- 
 ment, because it will not sell subject to the debt, and 
 it cannot otherwise make a title to the estate. In 
 accordance with the same principle, a sale will not 
 be decreed on an equitable elegit, unless a special 
 jurisdiction supervenes, e. g. in a suit to administer 
 the debtor's assets ; but the relief is confined to per- 
 ception of rents. Nor will a decree be made for 
 charging property by way of equitable fieri facias or 
 eligit, if the property be of a kind exempt from exe- 
 cution at law, e. g. stock or shares ; nor for charging 
 (independently of the late statute), more than the 
 moiety of a trust in land; but it is otherwise with 
 respect to an equity of redemption, for the judgment 
 creditor is obliged to redeem the entirety, and can- 
 not be afterwards deprived of it without payment of 
 his demand. (/) 
 
 The rights of a judgment creditor, except as 
 against purchasers and mortgagees without notice, 
 are much increased by a late statute. The operation 
 of the fieri facias and elegit at law is extended, and 
 a new right is introduced by way of equitable charge, 
 enforceable in like manner with a charge by con- 
 tract. It is enacted by the same statute, that de- 
 crees and orders of Courts of equity, and all rules 
 
 (/) Mitf. 126 ; Neate v. Duke of Marlborough, 3 M. & C. 407; 
 Stileman v. Ashdown, 2 Atk. 608 ; Rider v. Kidder, 10 Ves. 360, 
 368 ; Skeeles v. Shearly, 3 M. & C. 112. 
 
288 Adams's doctrine op equity. 
 
 P^^„-^ *of Courts of law and orders in bankruptcy 
 '- -I and lunacy for payment of money, shall have 
 the effect of judgments. And that judgments, rules, 
 and orders of certain inferior Courts, may be removed 
 into a superior Court, and acted on as a judgment 
 thereof; but not so as to operate against purchasers 
 or creditors until delivery of the writ, {g) 
 
 The operation of the elegit at law is extended, so 
 as to bind the entiret}'^, instead of a moiety of the 
 debtor's land, to include lands of copyhold and cus- 
 tomary tenure, lands over which the debtor has a 
 sole disposing power exercisable for his own benefit, 
 and lands of which the debtor, or any person in trust 
 for him, is seised or possessed at the time of entering 
 the judgment. It appears, therefore, to include 
 leaseholds and trust estates, belonging to the debtor 
 at the date of the judgment, and to render his aliena- 
 tion of the one before delivery of the writ, or of the 
 other before execution sued out, no longer mate- 
 rial. (7i) 
 
 The operation of the fieri facias at law is extended 
 by authorizing the sheriff to seize money, bank notes, 
 bills of exchange, and other securities, to pay the 
 money or notes to the creditor, and to sue on the 
 bills or securities in his own name, paying over the 
 money to be recovered to the creditor, (i) 
 
 The remedies by equitable fieri facias and elegit 
 will of course be extended in a corresponding degree ; 
 but they are still far from satisfactory remedies. 
 
 (^) 1 & 2 Vict. c. 110, s. 9-22 ; 2 Vict. c. 11, s. 5. 
 (A) 1 & 2 Viet. c. 110, s. 11 ; 2 Sug. V. & P. 401 ; 5 Jarm. 
 Byth. 48; 1 Jarm. Byth. 107; Prideaux on Judgments, 58. 
 (t) 1 & 2 Vict. c. 110, s. 12. 
 
PERFECT AND IMPERFECT MORTGAGES. 289 
 
 The elegit is imperfect, because it can only operate 
 by perception of profits, and does not authorize 
 acceleration of payment by a sale : the fi. fa. is 
 imperfect, because it cannot operate on stock or 
 shares. 
 
 In order to obviate these difficulties the judgment 
 charge has been introduced. 
 
 *The right to an elegit or fieri facias, whe- r-^-. „„-, 
 ther legal or equitable, is left untouched, and 
 in the case of personal estate, other than stock or 
 shares, no alteration has been made. But with re- 
 spect to real estate, whether legal or equitable, and 
 whether liable to execution or not, and with respect 
 to interests in stock or shares, whether legal or 
 equitable the operation of the judgment is still fur- 
 ther extended, and it is constituted, under certain 
 restrictions, an actual charge in equity ; but the oper- 
 ation of such charge, as well as the extended execu- 
 tion under the preceding clauses, is declared of no 
 effect as against purchasers or mortgagees without 
 notice. (Jc) 
 
 The judgment charge on real estate is created by 
 an enactment, that a judgment properly registered 
 shall operate as a charge in equity on all lands and 
 hereditaments, including copyholds and customary 
 holds to which the debtor may, at or after the time 
 of entering the judgment, be entitled for any estate 
 or interest at law or in equity, whether in possession, 
 reversion, or remainder, or expectancy, or over which 
 he may at either of such times have a sole disposing 
 power exercisable for his own benefit, and shall be 
 
 (Jc) 2 & 3 Vict. c. 11, s. 5. 
 
 19 
 
290 Adams's docteine of equity. 
 
 binding against himself and all persons claiming 
 under him, and also against his issue and persons 
 whom, without assent of any other person, he might 
 bar with the like remedies in equity for its enforce- 
 ment, as if he had by writing under his hand agreed 
 to charge them with the debt and interest. But it 
 is enacted, that no judgment creditor shall be enti- 
 tled to proceed in equity to obtain the benefit of such 
 charge, until after the expiration of one year from 
 .the time of entering up the judgment; and that no 
 such charge shall operate to give any preference in 
 bankruptcy, unless such judgment shall have been 
 entered up one year at least before the bank- 
 ruptcy. (I) 
 
 r*1 RRl *The judgment charge on stock and shares 
 is created by enactments, that if a judgment 
 debtor have an estate or interest in stock or shares, 
 or in the dividends or interest of stock or shares 
 standing in his name in his own right, or in the name 
 of any other person in trust for him, or in the name 
 of the Accountant-General, a Judge's order may be 
 obtained, to be made in the first instance ex parte, 
 and afterwards made absolute on notice, charging 
 such stock or shares, or any part thereof, or the di- 
 vidends or interest thereon, with payment of the 
 judgment debt and interest ; and that such order 
 shall entitle the judgment creditor to the same re- 
 medies as if the charge had been made by the 
 ■debtor himself; provided that no proceedings shall be 
 taken to have the benefit of such charge until after 
 
 (0 1 & 2 Vict. c. 110, s. 13 ; Smith v. Hurst, 1 Coll. 705 ; 
 €lare v. Wood, 4 Hare, 81; Harris v. Davison, 15 Sim. 128. 
 
PERFECT AND IMPERFECT MORTGAGES. 291 
 
 the expiration of six calendar months from the date 
 of the order, (m) 
 
 Under these clauses the right of the judgment 
 creditor is no longer restricted to property which is 
 capable of seizure, nor to the inconvenient remedy 
 by perception of profits ; but is extended to all pro- 
 perty, both legal and equitable, and may be made 
 available by sale. 
 
 A clause is contained in the act for the purpose 
 of precluding a creditor from enforcing his remedies 
 under it against the debtor's property, and at the 
 same time taking the debtor's person in execution. 
 The common law rule on this subject is, that if part 
 only of the debt be levied on a fi. fa., or on execution 
 had of goods under an elegit, the plaintiflFmay have 
 a capias ad satisfaciendum for the residue ; but that 
 if lands be seized under an elegit, the execution is of 
 so high a nature that after it the body of the defen- 
 dant cannot be taken. (?i) The statutory enactment 
 is that, if a judgment creditor who under the powers 
 of the act shall have obtained a charge, or be entitled 
 
 to the benefit *of a security, shall afterwards, 
 
 r*134T 
 and before the property so charged or secured '- ^ 
 
 shall have been realized, and the produce applied 
 
 towards payment of the debt, cause the person of the 
 
 debtor to be taken in execution, he shall be deemed 
 
 to have relinquished such charge or security, (o) 
 
 (m) 1 & 2 Vict. c. 110, ss. 14 & 15; 3 & 4 Vict. c. 82, s. 1 ; 
 Bristed v. Wilkins, 3 Hare, 235. 
 
 (n) 8 Steph. Bl. 650, 652. 
 
 (o) 1 & 2 Vict. c. 110, s. 16 ; Houlditoh v. Collins, 5 Bea. 
 497. 
 
292 Adams's doctrine of equity. 
 
 [*135] *CHAPTER IV. 
 
 OF CONVEKSION. — PRIORITIES. — NOTICE. — TACKING. 
 
 In immediate connexion with the subjects just 
 considered of trusts, contract, and mortgage, we have 
 to consider the doctrines of equitable conversion, and 
 of priority among conflicting equities ; doctrines 
 which, though applicable to all subjects of equitable 
 jurisdiction, are more especially important in regard 
 to these. 
 
 The doctrine of Equitable Conversion is embodied 
 in the maxim that " What ought to be done is con- 
 sidered in equity as done ;" and its meaning is, that 
 whenever the holder of property is subject to an 
 equity in respect of it, the Court will, as between 
 the parties to the equity, treat the subject-matter 
 as if the equity had been worked out, and as im- 
 pressed with the character which it would then have 
 borne. 
 
 The simplest operation of this maxim is found in 
 the rule already noticed, that trusts and equities of 
 redemption are treated as estates ; but its effect is 
 most obvious in the constructive change of property 
 from real to personal estate, and vice versa, so as to 
 introduce new laws of devolution and transfer. 
 
 Let us first consider the doctrine in its operation 
 under a trust. 
 
OF CONVERSION, ETC. 293 
 
 The rule in respect to trusts is, that if an impera- 
 tive trust is created, either for employing money in 
 the purchase of land, or for selling land and turning 
 it into *money or land of which a conversion r-^-. q^-, 
 is directed, will be dealt with in equity during 
 the continuance of the trust, and for objects within 
 the scope of the trust, as if the purchase or sale had 
 been actually made. (a)' 
 
 (a) Fletcher v. Ashburner, 1 B. 0. C. 497. 
 
 ' The rule is well settled that " What is legally agreed to be 
 done is considered as done ;" as where land is directed to be sold 
 and turned into money, or money is directed to be employed in 
 the purchase of lands. Craig v. Leslie, 3 Wheaton, 564 ; Peters 
 V. Beverly, IQ Pet. K. 533 ; Taylor v. Benham, 5 How. R. 233 ; 
 Hawley v. James, 5 Paige, 320 ; Smith v. McCrary, 3 Ired. Bq. 
 204 ; Grott V. Cook, 7 Paige, 534 ; Commonwealth v. Blartin's 
 Es'rs, 5 Munf. 117; Kane v. Gott, 24 Wend. 660; Pratt v. 
 Taliaferro, 3 Leigh, 419 ; Rutherford v. Green, 2 Ired. Eq. 122 ; 
 Siter V. MoClanachan,' 2 Grattan, 280 ; Reading v. Blackwell, I 
 Bald. 166 ; Hurtt v. Fisher, 1 Har. & G. 88 ; Leadenham v. 
 Nicholson, Id. 267 ; Morrow v. Brenizer, 2 Rawle, 185 ; Burr v. 
 Sim, 1 Whart. R. 265; Smith v. Starr, 3 Id. 65; Rice v. 
 Bixler, 1 Watts & Serg. 445 ; Willing v. Peters, 7 Barr. 287 ; 
 Lorillard v. Coster, 5 Paige, 172 ; Drake v. Pell, 3 Edw. Ch. 251. 
 A collection of the English authorities on this subject will be 
 found in Fonblanque's Eq., Vol. 1, book 1, Ch. 6, Sec. ix., notes 
 s and t. Where one by will directed real estate to be sold, and 
 the proceeds divided among residuary legatees, and one of them, a 
 feme covert, died before the time of payment, it was held that the 
 land must be considered as money ; and there being no election by 
 the feme covert to take the legacy as land, the devise passed to 
 the husband and his representatives as personalty. Rinehart v. 
 Harrison, Baldw. 177. And where a will directs executors to sell 
 the real estate, and distribute the proceeds in a manner specified, 
 the land will be treated as personal property, and upon the death 
 of one of the distributees before the time appointed for the sale, 
 
294 ADAMS'S DOCTRINE OF EQUITY. 
 
 The points which require notice under this rule 
 are the requirement that the converting trust shall 
 be imperative, and the limitation of the continuance 
 and purposes of the conversion so as to coincide with 
 the continuance and purposes of the trust. 
 
 First, the conversion must be directed by an im- 
 perative trust; for if the trustees are entitled to 
 exercise a discretion, there is no duty imposed on 
 them to make the change, and no reason to deal with 
 the property as if they had done so. If, for example, 
 the trustee is authorized to " sell or not sell," as he 
 may think best, or if he is directed to purchase 
 "freeholds or leaseholds," or to invest "on land or 
 good security," there is no positive expression of in- 
 tention to convert, and the Court in dubio will not 
 interfere; but the use of such expressions, or of 
 others which in terms imply an option, will not de- 
 
 his share will descend as personal estate ; Marsh v. Wheeler, 2 
 Edw. Ch. 156; Pratt v. Taliaferro, 3 Leigh, 419 ; Reading v. 
 Blaokwell, Baldw. 166. 
 
 Though land directed to be sold is to be considered as money, 
 yet an election may be made by tho^e having a right to elect, to 
 take it as land ; Tazewell v. Smith, 1 Eand. 313 ; Craig v. Leslie, 
 3 "Wheat. 578 ; Burr v. Sim, 1 Whart. E.. 252 ; but this election 
 must be by some unequivocal act, and all interested must join, or 
 the act is nugatory ; Willing v. Peters, 7 Barr, 290 ; Pratt v. 
 Taliaferro, 3 Leigh, 428. 
 
 As to the power of an infant or guardian to make an election, 
 see Burr v. Sim, ubi. supra ; Pratt v. Taliaferro, ubi. supra. 
 
 Where land is not converted out and out, and at all events into 
 personal property, but on the contrary its conversion depends upon 
 a condition, it will not be considered in equity as personal estate ; 
 Evans v. Kingsberry, 2 Rand. 120. So if it depend upon a con- 
 tingency; Naglee v. Ingersoll, 7 Barr, 197. 
 
OF CONVERSION, ETC. 295 
 
 prive tte trust of an imperative character, if other 
 portions of the instrument show a contrary intent. 
 A mere declaration that the property shall be con- 
 sidered as converted is immaterial ; for it is not the 
 declaration, but the duty to convert, which creates 
 the equitable change. (6) 
 
 Secondly, the duration of the converted character 
 is coincident with that of the trust. For the con- 
 version originates in the duty of the trustee ; and if 
 the trust be countermanded either by the exercise of 
 a revoking power in the donor, or by the act of those 
 in whom the absolute dominion has vested, the duty 
 is at an end ; and the constructive conversion is de- 
 termined with it. 
 
 Where the trust is countermanded by the subse- 
 quent *owners, their act is denominated a r-^-, qrr-i 
 reconversion. And such act must be equally 
 unequivocal with the original trust. It need not, 
 however, be evidenced by an express declaration of 
 change. It is sufficient if the conduct of the parties 
 distinctly shows an intention to deal with the pro- 
 perty in its original, instead of its converted charac- 
 ter; as for example, by entering on and demising 
 land which is directed to be sold,(c) or by receiving 
 or reinvesting money which is directed to be laid 
 out in land.(d!) But if an estate is directed to be 
 sold, and the proceeds to be divided among several 
 
 (6) Thornton v. Hawley, 10 Ves. 129 ; Polley v. Seymour, 2 
 Y. & C. 708 ; Cookson v. Cookson, 12 CI. & F. 121 ; Attorney 
 General v. Mangles, 5 Mee. & W. 128. 
 
 (c) Crabtree v. Bramble, 3 Atk. 680. 
 
 (d) Lingen v. Touray, 1 P. W. 172 ; Cookson v. Cookson, 12 
 CI. & E. 121. 
 
296 ADAMS'S DOCTRIJSTE OF EQUITY. 
 
 persons, a reconversion cannot be effected until all 
 are competent and willing to join ; for the duty im- 
 posed on the trustee, is to convert the entire estate 
 for the benefit of all, and that duty continues until 
 countermanded by all.(e) 
 
 The receipt by the cestui que trust of money con- 
 vertible into land operates, as we have seen, as a re- 
 conversion. And the same result follows where a 
 covenant has been entered into for purchasing land 
 on trust, and the covenantee has become the only 
 cestui que trust. In this case the money is said to be 
 " at home" in his hands ; and the union of the double 
 character in himself operates as a constructive receipt 
 and determines the trust. (/) 
 
 It has been contended that the right to counter- 
 mand the converting trust renders a gift of the pro- 
 ceeds of conversion equivalent to a gift of the uncon- 
 verted property; and, consequently, that a gift of 
 land to a trustee, on trust to sell and pay the pro- 
 ceeds to an alien, is invalid as against the policy of 
 law. But it is decided otherwise ; for the trust is 
 in truth a compliance with the law by directing that 
 r*l ^81 ^^^ ^^"^^ shall be sold to persons who may 
 ^legally hold it, in order to raise the money 
 which the alien may legally hold. And, although 
 the alien would be entitled to elect against the con- 
 version, there is no reason to force that election on 
 him, or to inflict a forfeiture of money, which he can 
 
 (e) Fletcher v. Astbumer, 1 B. C. C. 497, 500; Deethv. Hale, 
 2 Moll. 317 ; Seeley v. Jago, 1 P. W. 389. 
 
 (/) Pulteney v. Darlington, 1 B. C. C. 223, 238 ; 7 B. P. C. 
 by Toml. 530 ; "Wheldale v. Partridge, 8 Ves. 227, 235. 
 
OF CONVERSION, ETC. 297 
 
 enjoy, because lie might have elected to take land, 
 which he cannot, (g^)^ 
 
 Thirdly, the conversion will operate for those pur- 
 poses only which fall within the scope of the trust. 
 
 The principal doubts on this point have arisen in 
 regard to resulting trusts ; viz., where conversion is 
 directed for a particular purpose, which fails to ex- 
 haust the entire interest. The question then arises, 
 whether the owner under the resulting trust shall be 
 determined according to the original, or according to 
 the converted, nature of the property. 
 
 The law on this subject has been, to some extent, 
 stated under the head of resulting trust ; but it will 
 be convenient to restate it here. 
 
 The general principle is, that the conversion is 
 limited to the purpose of the donor, and that, there- 
 fore, in the event of failure, the property will de- 
 volve according to its original character. If, for 
 example, land be devised for sale with a direction to 
 apply the produce for purposes altogether illegal, or 
 which altogether fail, the heir-at-law is entitled. If 
 the purposes are partially illegal, or partially fail, or 
 if they require the application of a part only of the 
 land devised, he is entitled to so much of the land 
 or of its produce as was destined for the ineffective 
 purpose, or so much as is not required for the pur- 
 poses of the will. And e converso, if a purchase of 
 land be directed for purposes which are altogether or 
 
 (g) Fourdrin v. Gowdey, 3 M. & K. 383 ; Du Hourmelin v. 
 Sheldon, 1 Bea. 79 ; 4 M. & C. 525. 
 
 * Craig V. Leslie, 3 Wheat. 564 j Commonwealth v. Martin, 5 
 Munf. 117. 
 
298 Adams's doctrine of equity. 
 
 partially illegal, or which altogether or partially fail, 
 the next of kin are entitled to the money, or to so 
 much of it, as cannot or need not be applied to the 
 purposes of the will. (7i) In like manner, a convey- 
 r*l SQ1 ^^^^ °^ *real estate in the owner's lifetime, 
 on trust to convert it into money and to pay 
 the proceeds to him or his executors, will not, if the 
 estate is unsold at his death, work an equitable con- 
 version in favour of the crown, so as to subject it to 
 probate duty.(i) 
 
 To this extent the general rule is clear. But 
 where real estate is devised for sale, and its produce 
 either alone, or in union with the personal estate, is 
 constituted a fund for particular payments, a con- 
 tention sometimes arises as to the purpose really in 
 view ; viz., whether it was confined to those parti- 
 cular payments, or extended to a total change of 
 character, so that the surplus may be liable as per- 
 sonal assets to creditors, may pass to a legatee of the 
 personal residue, and may have the benefit of aug- 
 mentation by lapse, independently of the enactment 
 of 1 Vict. c. 26. The prima facie construction is in 
 
 (K) Cogan v. Stephens, Lewin on Trustees, App. vii. ; Hereford 
 V. Ravenhill, 1 Bea. 481 ; Eyre v. Marsden, 2 K. 564, 574 ; 
 Ackroyd v. Smithson, 1 B. C. C. 503. 
 
 (i) Matson v. Swift, 8 Bea. 368; Tayler v. Haygarth, 14 Sim. 8. 
 
 ' Where money is given by a will to be invested in real estate, 
 it will upon a failure of the bequest go to the heirs-at-law ; Thorn 
 V. Coles, 3 Edw. Ch. 330. And where the purposes for which 
 real property is directed by a will to be turned into personal estate 
 fail, such property will not be considered as equitably converted, 
 but will belong to those entitled to the real estate ; Hawley v. 
 James, 7 Paige, 213. See also Henderson v. Wilson, 1 Dev. Ch. 
 309. 
 
OF CONVERSION, ETC. 299 
 
 favour of the more limited view ; but if the will 
 shows an intention to convert quoad the ulterior 
 object, there is no reason to confine its effect. The 
 question, however, is one of construction only, and 
 it is sufficient here to notice that it exists, (/c)' 
 
 The circumstance that the convfersion has been 
 de facto made, is immaterial in determining who is 
 entitled to the surplus. But the necessity of such 
 conversion for the other purposes of the gift, may be 
 material in determining in what character the party 
 takes. The former question depends on the original 
 character of the property ; the latter on the character 
 which at the time of his taking it has been impressed 
 on it by the creator of the trust. The test, there- 
 
 (li) 1 Jarm. on "Wills, o. six., ss. 4 and 5 ; Amphlett v. Parke, 
 1 Sim. 275 ; 4 Russ. 75 ; 2 R. & M. 221. 
 
 } The heir-at-law has a resulting trust in land directed to be 
 sold after debts and legacies are paid, and may come into equity 
 and restrain the trustee from selling more than is necessary to pay 
 the debts and legacies ; or may offer to pay them himself, and 
 pray to have a conveyance of a part of the land not sold in the 
 first case, and the whole in the latter, which property will in either 
 case be land and not money ; but if the intent of the testator ap- 
 pears to be to stamp upon the proceeds of lands the quality of per- 
 sonalty, not only for the particular purposes of the will but to all 
 intent, the claim of the heir-at-law to a resulting trust is defeated, 
 and the estate is considered to be personal. Craig v. Leslie, 3 
 Wheat. 582, 583. See also Burr v. Sim, 1 Wharton, 252 ; Pratt 
 V. Taliaferro, 3 Leigh, 419 ) Wright v. Trustees of Methodist Epis. 
 Church, Hoffman, 205 ; Morrow v. Brenzier, 2 Rawle, 185. 
 
 Equity will extend the same privilege to the residuary legatees 
 which is allowed to the heir, viz., to pay debts and legacies, and call 
 for a conveyance of the real estate, or to restrain the trustee from 
 selling more than is necessary to pay debts and legacies ; Craig v. 
 Leslie, ubi. supra. 
 
300 ADAMS'S DOCTRINE OF EQUITY. 
 
 fore, by which the question should be tried, is the in- 
 quiry whether the effective trusts do or do not require 
 the conversion to be made. If they do require it, the 
 undisposed-of interest will be held by him in its 
 converted character ; if they do not, in its original 
 one. Let us, for example, assume that land is de- 
 vised on trust *to sell, and to divide the pro- 
 ■- -I ceeds between A. and B. A. dies in the tes- 
 tator's lifetime ; B. survives him. In this case, 
 there is a resulting trust of A.'s moiety for the heir ; 
 but a sale for convenience of division is just as ne- 
 cessary between B. and the heir, as it was between A. 
 and B. The execution of the trust therefore requires 
 a sale, although its purposes do not exhaust the pro- 
 ceeds ; and, accordingly, the heir will take his share 
 as money ; and if he die without altering its destina- 
 tion, it will go to his executor, and not to his heir. 
 If, on the contrary, both A. and B. die in the testa- 
 tor's lifetime, there is a resulting trust of the entirety 
 for the heir. A sale, therefore, is no longer wanted ; 
 the heir will take the estate as land ; and on his death 
 it will devolve on his heir, (l) 
 
 We will next consider the doctrine of conversion 
 in its operation under contracts. 
 
 The rule in respect to contracts is, that if a binding 
 contract be made for the sale of land enforceable in 
 equity, such contract, though in fact unexecuted, is 
 considered as performed ; so that the land becomes 
 in equity the property of the vendee, and the pur- 
 chase-money that of the vendor. The vendee, there- 
 
 (J) Smith Y. Claxton, 4 Madd. 484 ; Jessop v. Watson, 1 M. & 
 K. 665 ; Hereford v. Ravenhill, 5 Bea. 51. 
 
OF CONVERSION, ETC. 301 
 
 fore, is entitled to the rents from the day named for 
 completion, or if, a good title be not then shown, from 
 the day when such title was first shown; and he must 
 bear any loss, and will be entitled to any benefit 
 occuring between the contract and the conveyance. 
 And, vice versa, the vendor is entitled to interest 
 from the same time, if the purchase-money be not 
 paid, unless such non-payment originate in his own 
 fault, (m) On the same principle, if either party die 
 before completion, the equitable right to the land or 
 purchase-money will devolve as real or personal es- 
 tate. On the death of the vendee it will pass to the 
 devisee or heir ; who will be entitled to have the 
 price paid out of the personalty, or, if the contract 
 be rescinded after the death, will be entitled 
 to the purchase-money instead, (n) On the ■- J 
 death of the vendor it will pass to his executor for 
 whom the devisee or heir will be a trustee, (o) 
 
 In the case of contracts, as in that of trusts, 
 it is essential that the contract be a binding one, 
 and that the object of the conversion be within its 
 scope.^ 
 
 The first essential is that the contract be binding 
 and such as the Court will sj)ecifically execute. 
 
 If, therefore, the vendee die before completion of 
 
 (m) 1 Sug. V. & P., c. iv., s. 1 ; c. vi., s. 2 ; 3 Sug. V. & P., c. 
 xvit, s. 1. 
 
 (n) Broome v. Monck, 10 Ves. 597. 
 
 (o) Knollys v. Shepherd, cited IJ & W. 499 ; 1 Jarm. on Wills, 
 147; 1 Sug. V. & P. 291 ; Lumsden v. Fraser, 12 Sim. 263. 
 
 ' See ante, note to p. 136, upon the subject of equitable conver- 
 sion generally, and also Story's Eq. Jurisprudence, § 790 to § 793, 
 and § 1212 to § 1214. 
 
302 Adams's doctrine of equity. 
 
 the contract, and the contract be one which, either 
 from defect in the title or for any other reason, was 
 not obligatory on him at his decease, the heir or 
 general devisee of realty cannot require that the 
 executor shall complete the purchase. If, however, 
 it were binding on the deceased contractor, it is 
 immaterial that it was optional with the other party. 
 When there is an option, if it be declared against 
 the contract, the property will go according to its 
 original character, and so long as the option is unde- 
 clared the intermediate interest will follow the same 
 course ; but when the option is made in favour of 
 enforcing the contract, the conversion will take effect 
 from the date of its being declared, (jp) 
 
 The second essential is that the object for which 
 conversion is assumed be within the scope of the 
 contract. 
 
 There is no equity for assuming a conversion in 
 favour of or against any person who is not a party 
 to the contract. 
 
 It was at one time supposed that when an equitable 
 interest had been acquired in leasehold property by 
 a deposit of the lease for securing a debt, or by any 
 other contract in the nature of an assignment, the 
 contract was not only binding as between the im- 
 mediate parties, but that the landlord had a right to 
 treat it as executed, and to proceed in equity against 
 r*14.9T ^^^ assignee. A case might certainly *occur 
 in which the person having the equitable 
 right might so conduct himself as to raise an equity 
 
 (p) Broome v. Monck, 10 Ves. 597 ; Rose v. Cunynghame, 11 
 Ves. 550 ; Townley v. Bedwell, 14 Ves. 591 ; 1 Jarm. on Wills, 
 49. 
 
OF CONYEESION, ETC. 303 
 
 in favour of the landlord, but it is decided that the 
 mere existence of the contract cannot confer on the 
 landlord any equity to interfere, {g) It has also been 
 contended that a husband's assignment of his wife's 
 choses in action should exclude the wife's right by 
 survivorship, on the ground that such an assignment 
 implies a contract to reduce the chose into possession, 
 and is equivalent in equity to such reduction. This 
 proposition was first overruled in respect to bank- 
 ruptcy, and it was decided that whatever might be 
 the rights of purchasers for value, the assignees in 
 bankruptcy were entitled to no such equity. It 
 was next overruled with respect to all assignments, 
 although for valuable consideration, if the chose 
 were reversionary, and therefore incapable of present 
 possession ; leaving the question still open, whether, 
 if it were capable of immediate possession or become 
 so during the coverture, the wife should be excluded. 
 The principle is now extended to all cases ; and it 
 is held that, although the husband's contract for 
 value may, as between himself and the assignee, be 
 equivalent to a reduction into possession, yet as 
 against the wife, who is no party to the contract, it 
 cannot have that effect, (r) 
 
 On an analogous principle to that of conversion, it 
 is held that where property subject to a trust has 
 been unduly changed, the substituted property is 
 bound by the incidents of that which it represents. 
 If, therefore, the guardian or trustee of an infant 
 
 (g) Moores v. Choat, 8 Sim. 508 ; Close v. Wilberforce, 1 Bea. 
 112 ; Kobinson v. Kosher, 1 You. & Col., N. C. C. 7. 
 
 (r) Ashby v. Ashby, 1 Coll. 553; Kees v. Keith, 11 Sim. 388; 
 Ellison V. Blwin, 13 Sim. 309 ; Burnham v. Bennett, 2 Coll. 254. 
 
304 Adams's dooteine of equity. 
 
 invest his personal estate in land without authority 
 for so doing, the land will be afiected in equity as 
 personal estate, and will pass to the administrator on 
 the infant's death. Or again, if timber be cut by a 
 guardian or trustee on the estate of an infant tenant 
 in fee, the proceeds will be realty, and will go to the 
 r*14.m *^6ir; it is otherwise if the infant be tenant 
 in tail, for the conversion into personalty is 
 then palpably for his benefit, and the act ceases to 
 be a breach of trust. If the timber is blown down 
 by accident, or is cut down by a stranger tortiously, 
 or if the act of the guardian or trustee is authorized 
 by the Court, there is no breach of trust, and there- 
 fore no equity. (s)i 
 
 In like manner, if an estate or fund has been 
 changed by breach of trust, the cestui que trust may, 
 at his option, waive its restoration, and may attach 
 and follow it in its altered form, e. g., if a trustee or 
 executor purchase an estate with his trust money or 
 assets, and the fact of his having done so be ad- 
 mitted or distinctly proved, the parties interested in 
 the money may claim the estate, or if the purchase 
 be made, partly out of the trust fund and partly out 
 of the trustee's own property, they may claim a lien 
 for the amount misapplied. It is essential, however, 
 that the one property shall have been produced by 
 the other ; and therefore the doctrine wiU not apply 
 if the estate be purchased with borrowed money, and 
 
 (s) Tullit V. Tullit, Amb. 370; "Witter v. Witter, 3 P. W. 99. 
 Pierson v. Shore, 1 Atk. 480 ; Ex parte Bromfield, 1 Ves. J. 453 ; 
 3 B. C. C. 510 ; Oxenden v. Lord Compton, 2 Ves. J. 69. 
 
 ' See PhiUips v. Crammond, 2 W. C. C. E. 441. 
 
OF CONVERSION, ETC. 305 
 
 a trust fund misapplied in payment of the debt. 
 The principle of this doctrine is identical with that 
 which originates a resulting trust, that when one 
 man pays for an estate and has it conveyed to an- 
 other, the grantee, who has the legal estate, is a 
 trustee by operation of law for the purchaser. If a 
 trust fund be applied in paying for the estate, and 
 the cestui que trust afl&rms the purchase, it becomes 
 a purchase with his money, and entitles him to the 
 estate. It is therefore unnecessary that the trust 
 should be evidenced in writing, notwithstanding that 
 the claim may be for real estate. But the applica- 
 tion of the trust fund must be admitted by the 
 answer or proved by convincing evidence. And 
 unless there be corroborating circumstances, such as 
 a written account by the trustee showing how the 
 *money was used, or a clear inability in him r-^-, .,-. 
 to make the purchase with other funds, mere 
 parol evidence of declarations supposed to be made 
 by him will be received with great caution. (<)' 
 
 The same rule has been applied where a contract 
 had been rescinded upon the ground of fraud, and 
 the purchase-money had been traced to a subsequent 
 investment. It was held that where a contract is 
 avoided on the ground of fraud, no property de- 
 livered under it passes from the owner; that the 
 money, therefore, which had been paid still belonged 
 
 (t) Lane v. Dighton, Amb. 409 ; Lewis v. Madocks, 8 Ves. 150 ; 
 17 Ves. 48 ; Denton v. Davis, 18 Ves. 499 ; Taylor v. Plumer, 3 
 M. & S. 575; Leneh v. Lench, 10 Ves. 511 ; Wilkins v. Stevens, 
 1 You. & Coll., N. C. C. 431 ; 3 Sug. V. & P., o. xx., s. 3 and 4. 
 
 ' See Murray v. Lylburn, 2 John. C. K. 442. 
 20 
 
306 ADAMS'S DOCTRINE OF EQUITY. 
 
 to the vendee who had paid it; and that inasmuch 
 as the money, thus obtained by fraud, had been laid 
 out in the purchase of stock which was traced and 
 identified, the person on whom the fraud has been 
 practised was entitled to an injunction against its 
 sale or assignment. It does not appear to have 
 been contended, that this principle could be re- 
 sisted in the case of a mere naked fraud, which 
 vitiates a contract both at law and in equity. But 
 it was argued by Sir Edward Sugden on behalf of 
 the defendant, that its application was not justified 
 where the contract was rescinded on the ground of 
 what may be called fraud in equity, rather than for 
 absolute legal nullity. The distinction did not pre- 
 vail with the Court ; but it is still considered by Sir 
 Edward Sugden that, in the event of an appeal, the 
 decree could hardly have been maintained, {u) 
 
 The doctrine of conversion, by changing the 
 character of trusts and contracts, and altering them 
 from mere rights of action into actual though imper- 
 fect titles in equity, gives rise to questions between 
 them and the legal title, and also to questions be- 
 tween conflicting equities, where several have been 
 r*14^1 ^^^^^^^ i^i reference to the same *thing. It 
 therefore becomes necessary to consider the 
 principle which determines the priority between such 
 conflicting claims. 
 
 The rule of priority in regard to transfers and 
 charges of the legal estate, whether made spontane- 
 ously by a conveyance, or compulsorily by a judg- 
 ment at law, is that the order of date prevails. Con- 
 
 (m) Small V. Attwood, Younge, 507; 1 Sug. V. & P. 400. 
 
OF PRIORITIES, ETC. 307 
 
 veyances take effect from the date of the conveyance ; 
 judgments against realty from the date of the judg- 
 ment; and judgments against personalty from the 
 delivery of the writ , nor does the mere absence of 
 valuable consideration affect the priority, except 
 where it is provided otherwise by statute. There are, 
 however, several statutes which have this effect; viz., 
 the statute of 27 Eliz. c. 4, by which certain grants of 
 real estate are avoided as against subsequent pur- 
 chasers; that of 13 Eliz. c. 5, by which certain 
 grants either of real or personal estate are avoided 
 as against creditors ; and the Statutes of Bankruptcy 
 and Insolvency, by which certain grants made by a 
 bankrupt or insolvent are avoided as against his 
 assignees. 
 
 By the statute of 27 Eliz. c. 4, it is enacted, that 
 conveyances, grants, &c., of or out of any lands or 
 hereditament had or made of purpose to defraud and • 
 deceive such persons as shall purchase the same 
 lands or hereditaments, or any rent, profit, or com- 
 modity out of the same, shall be deemed and taken, 
 only as against such persons and their representatives 
 as shall so purchase the same for money or other 
 good consideration, to be utterly void. And further, 
 that if any person shall make a conveyance of lands 
 or hereditaments, with a clause of revocation at his 
 pleasure, and shall afterwards sell the same lands or 
 hereditaments for money or other good consideration, 
 without first revoking the prior conveyance, then 
 the prior conveyance shall be void as against the 
 vendee. 
 
 A conveyance may be rendered voidable under 
 this act in three ways : viz. First, if it be designedly 
 
308 ADAMS'S DOCTRINE OF EQUITY. 
 
 fraudulent ; and in this case it may be avoided by a 
 r*i4.A"l subsequent conveyance *from the heir of the 
 grantor, as well as by one from the grantor 
 himself (v) Secondly, if it contain a power of revo- 
 cation, (w) And thirdly, if it be made without valu- 
 able consideration, and followed by a conveyance or 
 contract for value by the grantor. For, it has been 
 held that a voluntary grant, coupled with such sub- 
 sequent conveyance or contract, is sufficient to esta- 
 blish fraud as a conclusion of law. (x) But the grant 
 may cease to be voluntary by matter ex post facto, 
 and be thus made good against a subsequent pur- 
 chaser, e. g., if there be a subsequent conveyance 
 from the volunteer to a purchaser for value, (y) If 
 the grant be voluntary in part, it will be voidable 
 to that extent, e. g., if it be made in consideration of 
 marriage and there be an ultimate remainder to the 
 brothers of the settlor, the marriage will not per se 
 support that remainder, and it may be set aside by 
 a purchaser. (2) The grant when made cannot be 
 recalled by the grantor, but he will not be restrained 
 from defeating it by a sale, (a) When a bona fide 
 sale for value has been made, the purchaser may set 
 aside the prior grant, and his bona fides will not be 
 
 (v) Burrell's case, 6 Rep. 72 ; 3 Sug. V. & P. 282. 
 
 (w) .3 Sug. V. & P. 307. 
 
 (x) Doe V. Manning, 9 East, 59 ; Pulvertoft v. Pulvertoft, 18 
 Ves. 84 ; 3 Sug. V. &. P. 286, et seq. 
 
 (jf) Prodgers v. Langham, 1 Sid. 133 ; G-eorge v. Milbank, 9 
 Ves. 190 ; Brown v. Carter, 5 Ves. 862 ; 3 Sug. V. & P. 297. 
 
 {z) Johnson v. Legard, 6 M. & S. 60; T. & R. 281; Doe v. 
 Rolfe, 8 A. & E. 650; Davenport v. Bishop, 2 N. C. C. 451. 
 
 (a) Petre v. Espinasse, 2 M. & K. 496 ; Pulvertoft v. Pulver- 
 toft, 18 Ves. 84. 
 
OF PRIORITIES, ETC. 300 
 
 affected by notice of it. (6) If he claims under an 
 executed conveyance, the prior grant will be invalid 
 at law; if under an executory contract, he may 
 insist on a specific performance in equity ; but it 
 cannot be enforced against him at the suit of the 
 vendor, (c) 
 
 *By the statute of 13 Eliz. c. 5, it is en- ^., ,„ 
 
 r 1471 
 acted, that all conveyances, grants, &c., of- -^ 
 
 any lands, hereditaments, goods or chattels, had or 
 made of purpose to delay or defraud creditors and 
 others of their actions or debts, shall be taken, only 
 as against such persons and their representatives as 
 shall or might be so delayed or defrauded, to be 
 utterly void ; provided that the act shall not extend 
 to any conveyance or assurance made on good con- 
 sideration and bona fide to a person not having 
 notice of such fraud. 
 
 The provisions of this statute, like those of the 
 statute in favour of purchasers, invalidate all con- 
 veyances and assignments made with a fraudulent 
 design ;((^) but they do not affect mere voluntary 
 gifts, although the donor may afterwards become 
 indebted ; for he may fairly intend to give away his 
 property; and if he were never allowed to do so 
 effectively, it would produce mischiefs equally great 
 with those which the act was intended to prevent. 
 If, however, the party making a voluntary gift is 
 
 (b) Gcoch's case, 5 Kep. 60 a. ; Pulvertoft v. Pulvertoft, 18 
 Ves. 84; Buckle v. Mitchell, 18 Ves. 100. 
 
 (c) Buckle V. Mitchell, 18 Ves. 100 ; Metcalfe v. Pulvertoft, 1 
 Ves. & B. 180 ; Smith v. Garland, 2 Meriv. 123 ; Johnson v. 
 Legard, T. & R. 281 ; 3 Sug. V. & P. 305 ; Willats v. Busby, 
 12 Law Jour. N. S. 105; 3 Sug. V. & P. 300, et seq. 
 
 (d) Twyne's case, 8 Rep. 80. 
 
310 Adams's doctrine of equity. 
 
 deeply indebted at the time, it affords presumptive 
 evidence that it was meant to defeat his creditors. 
 If the amount given constitutes a large proportion of 
 his estate, it increases the probability of such intent; 
 and if he is in a state of actual insolvency, it appears 
 to be conclusive evidence of fraud. The presump- 
 tion, however, does not arise except in favour of 
 persons who were creditors when the gift was made. 
 But if the gift is set aside hy them, the subsequent 
 creditors will be let in to partake of the fund, (e) 
 
 In order to invalidate a gift under this statute, the 
 property must be of a kind to which the creditors 
 can resort for payment ; for otherwise they are not 
 prejudiced by the *gift. Tor this reason, if 
 L -J relief be asked in the lifetime of the debtor, 
 the creditor must obtain judgment for his debt, and 
 the property must be such as can be taken in execu- 
 tion. It was, therefore, formerly held, that during 
 the debtor's lifetime, and so long as " he was not 
 bankrupt or insolvent, an assignment of a chose in 
 action could not be set aside ; but that it was other- 
 wise on his bankruptcy, insolvency, or death, because 
 the creditors might then reach all his personal pro- 
 perty. It may be presumed that the same result 
 will follow from the provisions of 1 & 2 Vict. c. 
 110. (/) 
 
 (c) Cadogan v. Kennett, Cowp. 432 ; Kidney v. Coussmaker, 
 12 Ves. 136 ; Richardson v. Smallwood, Jac. 552 ; Holloway v. 
 Millard, 1 Mad. 414 ; Townsend v. Westacott, 2 Bea. 340 ; Ede 
 V. Knowles, 2 N. C. C. 172, 178 ; Norcutt v. Dodd, Cr. & P. 100 ; 
 1 Story on Eq. Jur., s. 355, et seq. 
 
 (/) Colman v. Croker, 1 Ves. J. 160 ; Dundas v. Dutens, 1 
 Ves. J. 196; Norcutt v. Dodd, 1 Cr. & P. 100; Story on Eq., s. 
 366, et seq. 
 
OF PRIORITIES, ETC. 311 
 
 The effect of bankruptcy, or of a discharge under 
 the insolvent acts, in avoiding prior conveyances by 
 the bankrupt or insolvent, is dependent on peculiar 
 principles and enactments, and is foreign to our pre- 
 sent subject. 
 
 The rule of priority which governs transfers and 
 charges of a legal estate, governs also, in the absence 
 of a special equity, transfers and charges of an equi- 
 table interest. But if legal and equitable titles con- 
 flict, or if, in the absence of a legal title, there is a 
 perfect equitable title by conveyance on the one hand, 
 and an imperfect one by contract on the other, a new 
 principle is introduced, and priority is given to the 
 legal title, or, if there is no legal title, to the perfect 
 equitable one. This doctrine is embodied in the 
 maxim, that " between equal equities the law will 
 prevail." 
 
 In order, however, that this maxim may operate, 
 it is essential that the equities be equal. If they 
 are unequal, the superior equity will prevail ; and 
 such superiority may be acquired under any of the 
 three following rules. 
 
 1. The equity, under a trust or a contract in rem. 
 is superior to that under a voluntary gift, or under a 
 
 ■ lien by judgment. 
 
 2. The equity of a party who has been misled, is 
 superior to his who has wilfully misled him. 
 
 3. A party taking with notice of an equity, takes 
 subject to that equity. 
 
 *The first of these rules is, that the equity r*-|4Q-i 
 under a trust or a contract in rem. is superior 
 to that under a voluntary gift, or under a lien by 
 judgment. 
 
312 Adams's doctrine of equity. 
 
 The principle on which this doctrine rests is, that 
 the claimant under a trust or contract in rem. has 
 acquired an equity to the specific thing which binds 
 the conscience of the original holder, whilst the 
 voluntary donee has no right of his own, but is en- 
 titled only to that which his donor could honestly 
 give; and even the judgment creditor, though he 
 has in some sense given a consideration, has not ad- 
 vanced his money on the specific security, and is 
 entitled to his debtor's real interest alone, viz., his 
 interest, subject to his equities as they exist at the 
 date of the judgment. In accordance with this 
 principle, it has been decided that the rights of a 
 cestui que trust, of a purchaser for value by imperfect 
 conveyance or executory contract, and of a mort- 
 gagee by deposit of deeds, have priority over a judg- 
 ment of a later date against the trustee, vendor, or 
 mortgagor, notwithstanding that by means of an 
 elegit, the judgment may have been clothed with 
 the legal estate, [g] Nor is this doctrine affected by 
 the late statute, transforming a judgment into a 
 charge by contract. For the statute treats the legal 
 estate as separate from the equitable interest, and 
 makes each of them subject to the judgments against 
 their respective owners. When, therefore, it is en- 
 acted that the judgment shall operate as a charge on 
 the estate, it means a charge on the beneficial estate 
 of the debtor. If he has a legal estate, subject to an 
 equity, it will be a charge on the estate subject to 
 
 (g) Newlands v. Paynter, 4 M. & C. 408 ; Lodge v. Lyseley, 4 
 Sim. 70; Langton v. Horton, 1 Hare, 549, 560; WMtworth v. 
 Gaugain, 3 Hare 416 ; 1 Ph. 728. 
 
OF PRIORITIES, ETC, 313 
 
 the same equity. If he has an equitable interest, it 
 will be a charge on that interest, (h) 
 
 The second rule of superior equity is, that " the 
 equity *of a party who has been misled, is r-^-. r^-, 
 superior to his who has wilfully misled him." 
 
 This rule is, in fact, merely a specific application of 
 the general doctrine of law with respect to fraud, 
 where the fraud complained of is a representation, 
 express or implied, false within the knowledge of the 
 party making it. (i) Its effect, however, on the pri- 
 ority of conflicting equities, renders it proper to be 
 noticed here. 
 
 The meaning of the rule is, that if a person inte- 
 rested in an estate knowingly misleads another into 
 dealing with the estate as if he were not interested, 
 he will be postponed to the party misled, and com- 
 pelled to make his representation specifically good. 
 If, therefore, a person, intending to buy an estate or 
 to advance money on it, inquires of another whether 
 he has any incumbrance or claim thereon, stating at 
 the same time his intention to make the purchase 
 or advance, and the person, of whom the inquiry 
 is made untruly deny the fact, equity will relieve 
 against him; and if he has acquired the legal owner- 
 ship, will decree him a trustee for the puisne claimant. 
 And even though he do not expressly deny his own 
 title, yet if he knowingly suffers another to deal with 
 the property as his own, he will not be permitted to 
 assert it against a title created by such other person. {Je) 
 
 (Ji) 1 & 2 Vict. c. 110. Whitworth v. G-augain, 3 Hare, 416 ; 
 1 Ph. 728. 
 
 (i) Infra. Decision of transactions on the ground of fraud. 
 Ik) 3 Sug. V. & P. 429; Nicholson v. Hooper, 4 M. & C. 179. 
 
314 Adams's doctrine of equity. 
 
 The same principle will apply if he lie by and allow 
 another to expend money in improvements, without 
 giving notice of his own claim. But the fact of im- 
 provements having been made in error, where such 
 error was not abetted by himself, creates no equity 
 for reimbursement of their expense. (Z) 
 
 In order to the introduction of this equity, it is 
 essential that there be intentional deceit in the de- 
 P^-| ^1 -| fendant, or at all *events, that degree of gross 
 negligence which amounts to evidence of an 
 intent to deceive. If, therefore, the party standing 
 by be ignorant of his right, or if he has been merely 
 careless or negligent ; e. g., where a mortgagee or 
 trustee, by not taking the title deeds, or by subse- 
 quently parting with them, has enabled the mort- 
 gagor or cestui que trust to commit a fraud, the mere 
 circumstance of his having done so will not warrant 
 relief against him. It may, however, exclude him 
 from equitable aid as against a subsequent purchaser 
 or mortgagee. (???) 
 
 Cases of concealed or undisclosed interest, whether 
 the non-disclosure be fraudulent or accidental, are 
 obviously distinct from those where the interest was 
 in its creation fraudulent and void, and where there- 
 fore its non-disclosure is not treated as a substantial 
 equity, but as mere evidence of a pre-existent fraud. 
 In respect to lands such non-disclosure is not prima 
 facie evidence of fraud ; for the possession of land 
 
 (Z) Pilling V. Armitage, 12 Ves. 78, 84 ; Cawder v. Lewis, 1 
 Y. & C. 427 ; E. I. Company v. Vincent, 2 Atk. 83 ; Williams v. 
 Earl of Jersey, Cr. & P. 91; 3 Sug. V. & P. 437. 
 
 (m) Evans v. Bicknell, 6 Ves. 174 ; Martinez v. Cooper, 2 Russ. 
 198. 
 
OF PRIORITIES, ETC. 315 
 
 does not ordinarily follow the permanent ownership, 
 but may belong to a mere tenant at will. In respect 
 to personalty it is otherwise, for the ordinary proof 
 of ownership is possession of the property ; and there- 
 fore, if such possession be left in an assignor, it is 
 prima facie a badge of fraud in the assignment, 
 though subject to be rebutted by counter proof.(n) 
 
 The third, and most important rule of equity is, 
 that " a party taking with notice of an equity takes 
 subject to that equity.'"^ 
 
 (n) Twyne's case, 3 Kep. 80; Manton v. Moore, 7 T. K. 67; 
 Leonard v. Baker, 1 M. & S. 251 ; Arundell v. Phipps, 10 Ves. 
 139, 145 ; Martindale v. Booth, 3 B. & Ad. 498. 
 
 ' Whatever is sufficient to put a person on inquiry in relation 
 to prior equities, is considered in equity as equivalent to notice of 
 such equities ; Hawley v. Cramer, 4 Cow. 717 ; Pearson v. Daniel, 
 2 Dev. & Bat. Ch. 360; Sigourney v. Munn, 7 Conn. Rep. 324 ; 
 Booth V. Barnum, 9 Id. 286 ; Peters v. Goodrich, 3 Id. 146 ; 
 Lasalle v. Barnett, 1 Blackf. 150 ; Cotton v. Hart, 1 A. K. Marsh. 
 56 ; Pitney v. Leonard, 1 Paige, 461 ; Woodfolk v. Blount, 3 
 Hey. 147 ; Harris v. Carter, 8 Stew. 233 ; Benzein v. Lenoir, 1 
 Dev. Ch. 225. It is not necessary that a purchaser should have 
 actual notice, nor detailed information to charge him ; if he has 
 such information as gives notice of the substance of a transaction, 
 or as leads to actual knowledge, or detailed information, it is suffi- 
 cient ; Harper v. Eeno, 1 Preem. Ch. R. 323 ; see also Green v. 
 Slayter, 4 John. Ch. E. 47; Kerns v. Swope, 2 Watts. 78; Plagg 
 V. Mann, 2 Sum. 486. And possession of land by a vendee under 
 a deed not registered, is such evidence of title as amounts to con- 
 structive notice to creditors and subsequent purchasers ; Walker 
 V. Gilbert, 1 Freem. Ch. R. 85; Harper v. Eeno, Id. 323. How 
 far actual possession is notice, see Chesterman v. Gardner, 5 John. 
 Ch. R. 29 ; Grimstone v. Carter, 3 Paige, 421 ; Hardy v. Sum- 
 mers, 10 Gill. & J. 316 ; Parks v. Jackson, 11 Wend. 442 ; Burt v. 
 Cassity, 12 Ala. 734 ; Macon v. Sheppard, 2 Humph. 335 ; Dixon 
 v. Doe, 1 Smed. & M. 70;' Brice v. Brice, 5 Barb. S. C. 535; 
 
316 Adams's doctrine of equity. 
 
 The meaning of this doctrine is, that if a person 
 acquiring property has, at the time of acquisition, 
 notice of a prior equity binding the owner in respect 
 of that property, he shall be assumed to have con- 
 tracted for that only which the owner could honestly 
 transfer, viz., his interest, subject to the equity as it 
 existed at the date of the notice. 
 r*1 'iTl *^^ accordance with this principle, the 
 purchaser of property from a trustee with 
 notice of the trust, is himself a trustee for the same 
 purposes ; the purchaser of property which the ven- 
 dor has already contracted to sell, with notice of such 
 prior contract, is bound to convey to the claimant 
 under it ; and the purchaser of land which the ven- 
 dor has covenanted to use in a specified manner, 
 having notice of that covenant, is bound by its terms. 
 The exact extent to which this doctrine will be car- 
 ried, where a covenant has been made by the owner 
 of land, the burden of which does not at law run 
 with the land, does not appear to be positively set- 
 tled. If, however, the covenant be one respecting 
 the land, and not purely collateral, there appears to 
 
 Hackwith v. Damron, 1 Monr. 237 ; Miller v. Schackelford, 4 
 Dana, 258 ; Lessee of Billington v. Welsh, 5 Binn. 132 ; see also 
 Krider v. Lafferty, 1 Whart. R. 303, in which case it was held 
 that there might be possession without residence. Though a pur- 
 chaser at public sale be chargeable with notice, yet a bona fide pur- 
 chaser under him is not affected by his notice ; Demarest t. Wyn- 
 koop, 3 John; Ch. E. 147 ; and a derivative purchaser with notice 
 is protected by want of notice in him under whom he claims; 
 Curtis V. Lunn, 6 Blunf. 42 ; Lacy v. Wilson, 6 Id. 313 ; Lindsey 
 V. Rankin, 4 Bibb. 482 ; Bumpus v. Platner, 1 John. Ch. R. 
 213 ; MoNitt v. Logan, Litt. Sel. Ca. 69 ; Hagthrop v. Hook's 
 Adm'r. 1 Gill. & J. 273. 
 
OF PRIORITIES, ETC. 317 
 
 be no reason why the doctrine of notice should not 
 apply, or why the assignee of the land, knowing that 
 the covenant has modified his assignor's ownership, 
 should not be presumed to have contracted for it, 
 subject to that modification, (o) 
 
 It will be observed, that the notice required by 
 this doctrine is notice of an equity, which if clothed 
 with legal completeness would be indefeasible, and 
 not merely notice of a defeasible legal interest, or of 
 an interest, which if legal, would be defeasible. For 
 the principle is, that an interest, which, if legal, 
 would be indefeasible, shall not be defeated by reason 
 of its equitable character, by a party who has notice 
 of it. If, being legal, it may be defeated at law, 
 there is no equity to preserve it. 
 
 Instances of the first class will be found in trusts 
 and contracts, including the lien of a vendor of real 
 estate ; and in judgments against the owners of an 
 equitable interest ; for if the trust or contract were 
 perfected by conveyance, or the legal ownership were 
 vested in the judgment debtor, the right of the cestui 
 que trust or vendee in the one case, or of the judg- 
 ment creditor in the other, could not be subsequently 
 defeated. The case of dower was until *re- r^^-, fo-i 
 cently an exception to this rule. We have 
 already seen, that by an anomalous distinction in 
 the law of trusts, the widow was excluded from 
 dower in a trust estate, although she would have 
 been entitled to it in a legal one of the same charac- 
 ter. The same distinction was continued in respect 
 to notice ; and it was held, that although the mere 
 
 (o) Whatman v. Gribson, 9 Sim. 196 ; Schreiber v. Creed, 10 
 Sim. 9 ; Keppell v. Bailey, 2 M. & K. 517 j 2 Sug. V. & P. 500. 
 
318 Adams's doctrine of equity. 
 
 existence of an outstanding term would not exclude 
 the widow in favour of the husband's heir, yet it 
 would exclude her in favour of her vendee, notwith- 
 standing that the purchase was made with notice of 
 her right. This anomaly, as well as that of her 
 exclusion from a trust estate, has been abolished by 
 the recent act. 
 
 Instances of the second class will be found in judg- 
 ments defeated under the old law by a power of 
 appointment ; in legal titles destroyed by fine ; (p) 
 in contracts which the purchaser had ah initio a right 
 to nullify ; (q) and in voluntary conveyances avoided 
 by subsequent alienation for value ;(r) for in all 
 these cases the legal right of the claimant is legally 
 defeasible, and he has no independent equity to sus- 
 tain it. 
 
 There is an apparent exception to this rule in re- 
 gard to unregistered conveyances and undocketed 
 judgments, which, although mere legal titles, and 
 invalid at law, have been enforced as equities on the 
 ground of notice. 
 
 By several acts of Parliament, all deeds and wills 
 concerning estates within the North, (s) East,(<) or 
 "West(M) Hidings of the county of York, or within 
 the town and county of Kingston-upon-Hull,('?;) or 
 within the county of Middlesex, are directed to be 
 
 (j)) Langley v. Fisher, 9 Bea. 90 ; Story v. Windsor, 2 Atk. 
 630. 
 
 (q) Luffkin Y. Nunn, 11 Yes. 170 ; 3 Sug. V. & P. 441. 
 
 (r) Pulvertoft V. Pulvertoft, 18 Ves. 84 ; Buckle v. Mitchell, 
 18 Ves. 100. 
 
 (s) 8 Geo. 2, c. 6. (t) 6 Ann. c. 35. 
 
 (m) 2 & 8 Ann. c. 4; 5 Ann. c. 18. (y) 6 Ann. c. 35. 
 
OF PRIORITIES, ETC. 319 
 
 registered, (w) ^ And it is enacted, that all such deeds 
 shall be adjudged fraudulent and void against any 
 subsequent purchaser or mortgagee for valuable 
 *consideration, unless a memorial thereof be r-^-. r,-, 
 registered in the manner thereby prescribed, 
 before the registering of the memorial of the deed 
 under which such subsequent purchaser or mortga- 
 gee shall claim. And that all devises by will shall 
 be adjudged fraudulent and void against subsequent 
 purchasers or mortgagees, unless a memorial of such 
 
 (w) 7 Ibid. c. 20. 
 
 * A deed recorded is notice to those only who claim under the 
 grantor by whom the deed was executed ; Stuyvesant v. Hall, 2 
 Barb. Ch. K. 151 ; Lightner v. Mooney, 10 Watts, 412 ; Til- 
 ton V. Hunter, 24 Maine, 29 ; Leiby v. "Wolfe, 10 Ohio, 80. And 
 a mortgage recorded is notice to all subsequent purchasers and 
 mortgagees ; Peters v. Goodrich, 3 Conn. R. 146 ; Levinz v. Mills, 
 1 Dall. 435 ; Evans v. Jones, 1 Yeates, 172 ; but where a prior 
 unregistered conveyance is known to exist, a conveyance recorded 
 will pass no title ; Schutt v. Large, 6 Barb. S. 0. R. 373 ; 
 Solms V. McCulloch, 5 Barr, 473 ; Levinz v. Mills, 1 Dall. 
 435 ; Pike v. Armistead, 1 Dev. Eq. 110 ; Farnsworth v. Childs, 
 4 Mass. 637. A deed is not notice where defectively registered, 
 or not properly executed and acknowledged, or where the registry 
 is not required by statute ; see Lessee of Heistrer v. Fortner, 2 
 Bin. 44 ; Commonwealth v. Bodes, 6 B. Monr. 171 ; Hodgson v. 
 Butts, 3 Cranch, 155 ; Lewis v. Baird, 3 McLean, 56 ; Peebles 
 v. Reading, 8 S. & R. 496 ; Shutts v. Moore, 1 McLean, 521 ; 
 Carter v. Champion, 8 Conn. 548 ; Halstead v. Bank of Kentucky, 
 4 J. J. Marsh. 534; James v. Morey, 2 Cowen, 146; Tillman v. 
 Cowand, 12 Smed. & M. 262. See the American note to Le Neve_ 
 v. Le Neve, by Messrs. Hare and Wallace, of the Philadelphia Bar, 
 in "Leading Cases in Equity," vol. ii., part i., p. 144, for a very 
 able note upon the subject of notice generally, in which all the 
 American cases are reviewed and digested with great learning and 
 accuracy. 
 
320 Adams's doctrine of equity. 
 
 will be registered within the space of six months 
 after the death of the testator, dying within Great 
 Britain ; or within the space of three years after his 
 death, dying upon the sea or in parts beyond the 
 seas. And it is by the same acts further provided, 
 that no statute, judgment, or recognisance (other 
 than such as shall be entered into in the name and 
 upon the proper account of the King, his heirs and 
 successors) , shall bind any such estates as aforesaid, 
 but only from the time that a memorial thereof shall 
 be duly entered, (x) 
 
 The question which has arisen under these acts 
 is, whether a person buying an estate with notice of 
 a prior incumbrance, not registered, shall be bound 
 in equity by such incumbrance, although he has ob- 
 tained a priority at law by registration of his deed. 
 And it has been held that he shall ; but that the 
 notice must be clear and undoubted, amounting in 
 effect to evidence, that knowing the situation of the 
 prior incumbrancers, he registered in order to defraud 
 them. A mere lis pendens is not such notice. 
 
 The doctrine as to notice of unregistered deeds has 
 been a subject of regret, as breaking down the ope- 
 ration of the acts ; and it is perhaps difficult to recon- 
 cile it altogether to principle. For if it be assumed 
 that the unregistered conveyance evidences a mere 
 legal title, invalidated by a mere legal flaw, it is 
 difficult to see how an equity can arise, because an 
 act of Parliament has made it invalid; if it evi- 
 dences an equitable title by contract, which the want 
 of registration has deprived of legal completeness, it 
 
 (x) 3 Sug. V. & P. c. xxi., s. 5. 
 
OF PRIORITIES, ETC. 321 
 
 is difficult to see why the same degree of *no- r-^-, ^-r-. 
 tice, which would bind in other cases, should 
 not bind in this.(y) 
 
 The question with respect to undocketed judg- 
 ments has arisen as follows : It was directed by the 
 old law, that a particular of all judgments entered 
 in the Courts should be made and put in an alpha- 
 betical docket, and that no undocketed judgment 
 should affect any lands or tenements as against pur- 
 chasers or mortgagees. (2) The first decision in favour 
 of the undocketed judgments was, that if the pur- 
 chaser had notice of it, and did not pay the value of 
 the estate, it should be presumed that he agreed to 
 pay it off, and he should be compelled in equity to 
 do so. The question afterwards came before Lord 
 Eldon, on a bill for specific performance, where the 
 purchaser had notice of undocketed judgments. Lord 
 Eldon refused to force the title on him, stating at the 
 same time an opinion, grounded on the decisions 
 under the Registry Acts, that he would be bound by 
 notice. He expressed, however, some doubt whether 
 the doctrine could be perfectly reconciled to princi- 
 ple ; and it is perhaps attended with the more diffi- 
 culty, because the undocketed judgment is only an 
 invalid title by an act of law, and is not, like an un- 
 registered conveyance, evidence of a title by contract 
 in equity, (a) The doctrine itself, however, is now 
 at an end. The system of dockets has been abolished, 
 
 (y) Jolland v. Stainbridge, 3 Ves. 478 ; Wyatt v. Harwell, 19 
 Yes. 435 ; 3 Sug. V. & P. 372-3 ; Tyrrell's Suggestions, 230. 
 (z) 4 & 5 Wm. & Mary, c. 20 ; 7 & 8 Wra. 3, 0. 36. 
 (a) Davis v. Strathmore, 16 Ves. 419 ; 2 Sug. V. & P. 394. 
 
 21 
 
322 Adams's doctrine of eqititt. 
 
 and a new method of registration substituted ; (b) and 
 it is declared that notice shall be immaterial, (c) 
 
 A remarkable illustration of the doctrine of notice 
 is presented by the rule which requires the purchaser 
 under a trust for sale, to see to the application of his 
 purchase-money. This rule assumes that the trustee 
 is expressly or impliedly authorized to sell, and that 
 r*-| Ko.-] he does not, so far as *the purchaser is aware, 
 intend to misapply the price. For if either 
 of these ingredients be wanting, the purchaser having 
 notice of a breach of trust committed or intended, 
 would be obviously responsible for aiding it.(cZ) The 
 rule, however, goes beyond this, and requires the 
 purchaser to ascertain that his purchase-money is in 
 fact rightly applied. If the trust be to pay it over 
 to other persons, he must see that such payments 
 are made ; if it be to invest the amount in the names 
 of the trustees, he must see that the investment is 
 duly made, though he need not interfere with its 
 subsequent application, (e) In order to obviate this 
 inconvenience, it is usual to declare by an express 
 clause, that the trustee's receipt shall be a discharge; 
 and a corresponding authority will arise by implica- 
 tion, if the nature of the trust be inconsistent with 
 the contrary view. If, for instance, the sale be di- 
 rected at a time when the distribution could not pos- 
 sibly be made, it will be assumed that the trustees 
 were meant to give a discharge, for the money cannot 
 
 (6) 1 & 2 Vict. c. 110. 
 
 (c) 3 & 4 Vict. c. 82. 
 
 (d) Watkins v. Cheek, 2 S. & S. 199 ; Eland v. Eland, 4 M. 
 & C. 420, 427. 
 
 (e) 3 Sug. V. & P. 158. 
 
OF PRIORITIES, ETC. 323 
 
 be paid to any other person. (/) The same assump- 
 tion is made on a trust for general payment of debts, 
 or for payment of debts and legacies ; for it is im- 
 possible that the purchaser should ascertain the cre- 
 ditors ; and if he were held liable to see the legacies 
 paid, he would be necessarily involved in the account 
 of debts. If the original trust be for payment of 
 debts and legacies, the power to give a discharge is 
 not affected, although the purchaser may know that 
 the debts have been paid, and that the legacies alone 
 remain as a charge, (g) Where leasehold estates are 
 purchased from an executor, their price is necessarily 
 applicable in a course of administration, which is 
 tantamount to a trust for general payment of debts. 
 And it is therefore settled that such a purchaser is 
 not bound to see to the application of the purchase- 
 money, when he ^purchases bona fide, and p^-. p-^-, 
 without notice that there are no debts, (h) 
 
 The only remaining question as to notice is, what 
 degree of information will amount to notice. It is 
 not essential that the notice be given to the party 
 himself; but notice to his counsel, solicitor, or agent, 
 is sufficient, whether given in the same or in another 
 transaction, provided there be adequate reason to 
 conclude that the facts continued in remembrance. (*) 
 Where, however, a solicitor had obtained for himself 
 an estate from a client, by fraud, and afterwards on 
 his selling it acted as the purchaser's solicitor, it was 
 
 (/) Balfour v. Welland, 16 Ves. 151; Sowarsby v. Lacey, 4 
 Mad. 142. 
 
 (^) Forbes v. Peacock, 1 Ph. 717 ; Sug. V. & P., c. svii., s. 1. 
 (h) 3 Sug. Y. & P., c. xvii., s. 2. 
 ({) Fuller V. Benett, 2 Hare, 394. 
 
324 Adams's doctrine of equity. 
 
 considered by Lord Brougham, in opposition to Sir 
 John Leach, that as the solicitor had in fact defrauded 
 both parties, the purchaser could not, from the mere 
 circumstance of his having employed the same soli- 
 citor, be held to have notice of the fraud, any more 
 than the party on whom it was first committed. (^)' 
 The ordinary instances of notice by actual infor- 
 mation do not require any special remark. But it 
 should be observed, that under this head is included 
 notice by lis 'pendeiis or an interlocutory decree.^ For 
 
 (A) Kennedy v. Green, 3 M. & K. 699. 
 
 ^ Knowledge acquired by an agent, in the course of his agency, 
 is notice to the principal ; Hough v. Eichardson, 3 Story Eep. 660 
 Bowman v. Wathen, 1 How. 195 ; Astor v. Wells, 4 Wheat. 466 
 Westervelt v. Huff, 2 Sandf. 98 ; Watson v. Wells, 5 Conn. 468 
 see Hood v. Fahnestock, 8 Watts. 489. 
 
 ^ The principle of lis pendens is, that the specific property must 
 be so pointed out by the proceedings, as to warn the whole world 
 that they meddle with it at their peril ; Lewis v. Mew, 1 Strobhart's 
 Eq. Rep. 180; see Green v. Slayter, 4 John. C. R. 38 ; but the 
 doctrine of Ute pendente does not apply in a case where the court 
 has no jurisdiction of the thing in controversy; Carrington v. 
 Brents, 1 McLean, 167 ; and it applies only to rights or interests 
 acquired from a party after the institution of a suit, and not to the 
 case of a right previously contingent or conditional becoming per- 
 fect ; Hopkins v. McLaren, 4 Cow. 667 ; Clarkson v. Morgan, 6 
 B. Monr. 441. Lis pendens is notice only in relation to the pro- 
 perty which is the immediate subject of the suit ; Edmonds v. 
 Crenshaw, 1 McC. Ch. 252 ; and can only affect a purchaser from 
 the party to the suit of the subject of controversy; French v. The 
 Loyal Company, 5 Leigh, 627. Notice to a purchaser, arising 
 from a bill filed, is notice of what the bill contains, and nothing 
 more ; Griffith v. Griffith, 1 Hoff. C. R. 153 ; and a suit not pro- 
 secuted to decree or judgment, is not constructive notice to a per- 
 son who is not a pendente lite purchaser ; Alexander v. Pendleton, 
 8 Cranch, 462 ; but the pendency of a suit duly prosecuted, is 
 
OF PRIORITIES, ETC. 325 
 
 it is presumed that legal proceedings during their con- 
 tinuance, are publicly known throughout the realm. 
 But no Us pendens, of which a purchaser has not 
 express notice, will now bind him, unless it be duly 
 registered. (?) On the other hand, a final decree or 
 judgment is not notice ;(m) nor a fiat in bankrupt- 
 cy ; («) nor the Court EoUs of a manor ; (o) nor the 
 registration of a deed ; nor the docketing or registra- 
 tion of a judgment. But if it appear that a search 
 was actually made, it will be presumed that the 
 entry was found, and the purchaser will be affected 
 with notice of its contents. *In the absence p., (.„-, 
 of any actual information of the equity, the '- -■ 
 party may also be affected with notice by information 
 of any fact or instrument relating to the subject- 
 matter of his contract, which if properly inquired 
 into would have led to its ascertainment. If, for 
 instance, he purchases land which he knows to be 
 in the occupation of another than the vendor, he is 
 bound by all the equities of the party in occupation. 
 If he knows that the title deeds are in another man's 
 possession, he may be held to have notice of their 
 
 (I) 3 Sug. V. & P. 458 ; Shalcross v. Dixon, 5 Jarm. on Con- 
 veyancing, 493 ; 2 Vict. c. 11, s. 7. 
 (m) 2 Sug. V. & P. 461. 
 (n) Hithcox V. Sedgwick, 3 V. & P. 467. 
 (o) 3 V. & P. 478. 
 
 notice to a purchaser of the subject of a suit so as to bind his 
 interest; and the pendency of a suit commenced from the service 
 of the subpoena, after the bill is filed ; Murray v. Ballou, 1 John. 
 Ch. E. 566; notice, however, lis pendens, cannot continue after a 
 final decree or judgment; Blake v. Hey ward, 1 Bailey's Eq. 208; 
 Turner v. Crebill, 1 Ohio, 304. 
 
326 Adams's doctrine or equity. 
 
 possessor's claim on the estate. If he knows of any 
 instrument, forming directly or presumptively a link 
 in the title, he will be presumed to have examined 
 it, and therefore to have notice of all other instru- 
 ments or facts to which an examination of the first 
 could have led him. But he cannot be presumed to 
 have examined instruments which are not directly 
 or presumptively connected with the title, merely 
 because he knows that they exist, and that they 
 may by possibility affect it, for that may be predica- 
 ted of almost any instrument ; e. g. if he be informed 
 that the vendor made a settlement on his marriage, 
 but is informed at the same time that it does not 
 relate to the property, he is not bound by notice of 
 its contents. The mere want of caution is not notice. 
 If indeed there be a wilful abstinence from inquiry, 
 or any other act of gross negligence, it may be treated 
 by the Court as evidence of fraud ; but, though evi- 
 dence of fraud, it is not the same thing as fraud. 
 The party may have acted bona fide, and if he has 
 done so there is no equity against him. The neglect, 
 therefore, of a purchaser to inquire for the title deeds 
 is not equivalent to notice that they are deposited 
 with a mortgagee. For though he may have acted 
 incautiously in taking a conveyance without them, 
 yet the other party has been equally imprudent in 
 taking the deeds without a conveyance, and each, in 
 the absence of fraud, is at liberty to make the best 
 use he can of his imperfect title. In conformity 
 with the same principle, it seems that the mere 
 notice of a fact, which may or may not, according 
 to circumstances, be held *in a Court of equity 
 L -I to amount to fraud, will not affect a purchaser 
 
OF PRIORITIES, ETC. 327 
 
 for value denying actual notice of the fraud. But 
 where a lease was granted to a trustee and agent at 
 a rent palpably below the value, it was held that 
 the fact of its being granted at such undervalue, 
 coupled with a recital that it was for faithful services, 
 was a sufiicient notice to the purchaser of such lease 
 to put him on his guard, (p) 
 
 We have now considered the three rules of supe- 
 rior equity originating in contracts in ■rem., wilful 
 misrepresentation, and purchases without notice. 
 If no superior equity exists, the common course of 
 law is not interfered with. The equities are equal, 
 and the law, or the analogy of law, will prevail. 
 
 If there be a legal right in either party, the Court 
 of Chancery remains neutral ; as, for example, if the 
 purchaser of property without notice of a prior 
 equity has procured a conveyance of the legal estate, 
 either to himself or to an express trustee for him, 
 this legal estate will secure him at law, and his 
 priority therefore will be absolute over all claimants. 
 A similar result will follow if he can procure the as- 
 signment of an outstanding term, or of an estate by 
 elegit. In the one case he has priority during the 
 continuance of the term; in the other until the 
 elegit is determined at law, i. e., until the judgment 
 has been satisfied at the extended value, which is 
 always much below the real. It has been enacted 
 by the late statute that the duration of an elegit 
 shall in future be ascertained at law by a computa- 
 tion at the real, and not at the extended value ; but 
 
 (jp) Jones V. Smith, 1 Hare, 43; 1 Ph. 244; West v. Keid, 2 
 Hare, 249 ; Borell v. Dann, 2 Hare, 440 ; Kerr v. Lord Dun- 
 gannon, 1 Conn. & L. 335; 3 Sug. V. & P. 468-480. 
 
328 Adams's doctrine of equity. 
 
 this enactment, as well as the other statutory 
 changes in respect to judgment, is subject to an ex- 
 ception in favour of purchasers without notice. (g^) 
 
 The recent enactment as to the cesser of outstand- 
 ing terms, when they become attendant on the in- 
 r-^^ ^rv-i heritance, has *been already explained, (r) 
 If a purchaser without notice of a prior equity, 
 fails in obtaining the legal estate, he may still pro- 
 tect himself to some extent by getting possession of 
 the title deeds, whether of the fee or of an outstand- 
 ing term; for the possession of the deeds, though 
 not equivalent to ownership, is so far available at 
 law, that if he can otherwise get possession of the 
 estate, it may serve him as a shield to protect his 
 holding, or, at all events, may so far inconvenience 
 his opponent as to compel the satisfaction of his 
 claim, (s) If he cannot obtain either a conveyance 
 or the deeds, he may take his chance of defects in 
 his opponent's evidence, and will not be compelled 
 to answer a bill of discovery, (t) 
 
 If there be no legal right in either party, the 
 Court of Chancery cannot be neutral ; for it is the 
 only tribunal competent to take cognizance of the 
 dispute. In this case, therefore, it acts on the 
 analogy of law, and gives priority to that title which 
 most nearly approximates to a legal one ; viz., to an 
 executed and perfect title in equity, rather than to 
 one which is executory and imperfect. 
 
 (2) 1 & 2 Vict. c. 110 ; 2 & 3 Viot. 0. 11, s. 5. 
 (r) 8 & 9 Vict. c. 112, supra. Attendant Terms, 
 (s) Head v. Egerton, 3 P. "Wms. 280, cited 2 Ves. & B. 83 ; 
 Wallwyn v. Lee, 9 Ves. 24; Bernard v. Drought, 1 Moll. 88. 
 (0 3 Sug. V. & P., c. xxiv. 
 
OF PRIORITIES, ETC. 329 
 
 The methods by which a title may be perfected in 
 equity differ according to the subject-matter of con- 
 veyance. Where an equity of redemption, whether 
 in real or personal estate, is the subject, the convey- 
 ance will be perfected by the joinder of the mort- 
 gagor, and by his declaration that the purchaser 
 shall be entitled to redeem, (u) Where a trust estate 
 in realty is the subject, the conveyance will be per- 
 fected if the trustee acknowledge a trust for the pur- 
 chaser, either by executing a declaration to that ef- 
 fect, or by joining in the conveyance of his ceshd que 
 trust, though without purporting to pass his own 
 estate, [v) Where a trust *estate in perso- p^-. ^-, -, 
 nalty, or a cliose in action is the subject, the 
 assignment is perfected by notice to the trustee or 
 debtor, which operates as a constructive transfer of 
 possession. (z<j) If, in any of these cases, the party 
 acquiring an equitable interest neglects to perfect it 
 in the manner pointed out, he incurs the risk of some 
 subsequent purchaser without notice, being more 
 diligent, and thus acquiring a priority over him. 
 
 It has been contended, that on the conveyance of 
 a trust estate in realty, notice of such conveyance 
 may be given to the trustee, and that the title will 
 be thereby perfected, so as to exclude a subsequent 
 
 (m) 3 Sug. V. & P. 422. 
 
 (y) Maundrell v. Maundrell, 10 Ves. 246, 270 ; "Wilmot v. Pyke, 
 5 Hare, 14, 22. 
 
 (w) Dearie v. Hall, 3 Kuss. 1 ; Foster v. Cockerill, 3 CI. & F. 
 456; Timson v. Eamsbottom, 2 K. 85; Meus v. Bell, 1 Hare, 73; 
 Etty V. Bridges, 2 N. C. C. 486 ; Holt v. Dewell, 4 Hare, 446 ; 
 Gardner v. Lachlan, 4 M. & C. 129 ; Ex parte Arkwright, 3 M., 
 D. & D. 129, 141. 
 
330 Adams's doctrine of equity. 
 
 purchaser from obtaining priority. The probability 
 is, that a notice so given would practically prevent 
 a priority being gained, because few persons would 
 purchase without inquiring of the trustee, and few 
 trustees would convey the legal estate after such a 
 notice had come to their hands. But assuming that 
 the purchase were made without inquiry, and that 
 the trustees were afterwards induced to convey the 
 estate, the notice seems immaterial ; for it is merely 
 a constructive taking possession of the estate, and 
 therefore can have no greater effect in equity than 
 possession without conveyance would have had at 
 law. (cc) 
 
 It has been already stated, that in order to avoid 
 the postponement of the latter equity, freedom from 
 notice is indispensable. The notice, however, here 
 referred to, is a notice existing at the acquirement 
 of the equity, not a notice at the completion of the 
 right. The latter purchaser or incumbrancer, on 
 payment of his money, becomes an honest claimant 
 in equity, and is entitled, if he can, to protect his 
 claim. But he is not bound to look for protection 
 *until he has ascertained that danger exists; 
 '- -I and his right to obtain it will continue, not- 
 withstanding the institution of a suit to settle the 
 priorities of the conflicting claimants. A decree, 
 however, to settle priorities, is a bar to any pro- 
 tection being afterwards gained ; for it is in effect a 
 
 (a:) Peacock v. Burt, Coote on Mortgages, 693 ; Jones v. Jones, 
 8 Sim. 633 ; Wilmot v. Pyke, 5 Hare, 14 ; Wiltshire v. Rabbits, 
 14 Sim. 76; Ex parte Knott, 11 Ves. 609, 612 ; 3 Sug. V. & P. 
 83. 
 
OF PRIORITIES, ETC. 331 
 
 judgment for all the claimants, according to the 
 order in which they then stand, (y) 
 
 If there be no legal right, or, in respect of equitable 
 subject-matter, no perfect equitable right in any of 
 the claimants, as, for example, if the estate be still out- 
 standing in the original owner, or in some third person 
 not constituted a trustee for any claimant individu- 
 ally, the claims will be satisfied in order of date, (z) 
 
 The same rule seems applicable to cases where, 
 in respect of legal subject-matter, both the titles are 
 legal, and the jurisdiction of Chancery is not to 
 enforce an equity, but to give the same relief as at 
 law by more convenient means. On this principle, 
 a plea of purchase without notice has been held 
 inapplicable to a bill for assignment of dower, or for 
 an account of tithes, although the soundness of the 
 decision has been questioned, (a) And it would seem 
 also that a bill to perpetuate testimony may be sus- 
 tained, notwithstanding that the defendant is a pur- 
 chaser without notice ; for such a bill asks no relief 
 or discovery from the defendant, but merely prays 
 to secure the testimony, which might be had at the 
 time if the circumstances called for it. (b) 
 
 The maxim of non-interference between equal 
 equities is the foundation of the doctrine of Tacking 
 
 (y) Brace v. Duchess of Marlborough, 2 P. Wms. 491 ; Wortley 
 V. Birkhead, 2 Ves. 571 ; Belchier v. Butler, 1 Eden, 523 ; Ex 
 parte Knott, 11 Ves. 609, 619. 
 
 (z) Brace v. Duchess of Marlborough, 2 P. Wms. 491 ; Frere v. 
 Moore, 8 Price, 475 ; commented on, 3 Sug. Y. & P. 81, 422 ; 
 Jones V. Jones, 8 Sim. 633. 
 
 (a) Collins V. Archer, 1 R. & M. 284 ; 3 Sug. V. & P. 495 ; 
 Hare on Discovery, 98. 
 
 (6) Seaborne v. Clifford, cited 6 Ves. 263 ; 3 Sug. V. & P. 438. 
 
332 Adams's doctrine of equity. 
 
 in Equity.' The *cases to which this doctrine 
 L -■ applies are those where several incumbrances 
 have been created on an estate, and two or more of 
 them, not immediately successive to each other, have 
 become vested in a single claimant. 
 
 Under these circumstances the question arises, 
 whether an intermediate claimant may redeem one 
 of such incumbrances, and postpone the other to his 
 own charge, or whether the party holding the two 
 may tack or consolidate them, so that the earlier in 
 date cannot be separately redeemed. The doctrine 
 on this subject is, that if the double incumbrancer is 
 clothed with a legal or superior equitable right, he 
 may, as against the mesne claimants, tack to his 
 original claim a claim for any further amount due 
 to him in the same character, which was advanced 
 expressly or presumptively on credit of the estate 
 without notice of the mesne equity. If, for example, 
 a third mortgagee, having advanced his money with- 
 out notice of a second mortgage, should afterwards 
 get a conveyance of the legal estate from the first 
 mortgagee, the second mortgagee would not be per- 
 mitted to redeem the first mortgage, after forfeiture 
 at law, without redeeming the third also. 
 
 It is essential to the existence of this equity that 
 there shall be legal right in the party claiming to 
 tack, or such a superior equitable right as gives him 
 
 * The English doctrine of tacking mortgages does not generally 
 apply in the United States ; Bridgen v. Carhartt, Hopkins, 234 ; 
 Grant v. U. S. Bank, 1 Cai. Ca. E. 112 ; Siter & Co. v. M'Cana- 
 chan, 2 Grat. Va. K. 280 ; Brazee and others v. Lancaster Bank, 
 14 Ohio, 318 ; Osborn v. Carr, 12 Conn. 196 ; the system of re- 
 gistration being adopted throughout the Union. 
 
OF PRIORITIES, ETC. 333 
 
 a preferable claim to the legal estate ; (c) that both 
 the claims shall be vested in him in the same cha- 
 racter, and not the one in his own right, and the 
 other as executor or trustee ; (d) and that the advance, 
 in respect of which the equity is claimed, shall have 
 been made expressly or presumptively on the credit 
 of the estate, without notice of the mesne equity. It 
 seems doubtful what would be the effect of such 
 notice, where a mortgage has been made for a 
 specific sum, with a clause extending the security 
 to future advances, and such future advances had 
 
 been made after notice of an intermediate ^,, „ ,^ 
 
 r 1641 
 *charge.(e) It may, however, be observed, ■- -■ 
 
 that in such a case the priority of the future advances 
 if sustained would not be based on the equity of 
 tacking, but on the construction of the security itself, 
 as incorporating such advances with the original 
 loan. 
 
 The requirement that the moneys shall have been 
 advanced on the credit of the estate, is ob^dously 
 complied with in the instance already given, where 
 the second advance is made on mortgage. But it is 
 not confined to mortgages : it extends also to ad- 
 vances on judgment or statute, where the creditor 
 was previously a mortgagee ; for it is presumed in 
 such a case that the prospect of tacking was in his 
 contemplation at the time. It does not, on the other 
 
 (c) Willoughby v. "Willougliby, 1 Term Rep. 763 ; 3 Sug. V. & 
 P. 83. 
 
 (d) Barnett v. Weston, 12 Ves. 130 ; Morrett v. Paske, 2 Atk. 
 52. 
 
 (e) Gordon v. Graham, 7 Vin. Abr. 52, E., pi. 8 ; Blunden v. 
 Desart, 2 Conn. & L. Ill, 131. 
 
334 Adams's dootrike of equitt. 
 
 hand, include advances on judgment or statute, 
 where the creditor was not previously a mortgagee, 
 unless the judgment has been matured under the 
 statute into a charge by contract, for a creditor by 
 judgment or statute does not lend his money on 
 contemplation of the land; and cannot, therefore, 
 by getting in a prior mortgage, convert a personal 
 loan into a real incumbrance. (/) It is otherwise if 
 redemption is asked by the debtor himself; for then 
 the equity of tacking is in the nature of an equitable 
 elegit, and is the proper method of enforcing the 
 creditor's claim. (^) For the same reason a bond- 
 debt may be tacked as against the heir or devisee, 
 unless other creditors would be thereby prejudiced; 
 for the equity of redemption is assets in his hands. 
 And if a chattel real be mortgaged, a simple contract 
 debt may be tacked as against the personal repre- 
 sentative. The same right would, perhaps, be now 
 allowed under 3 & 4 Wm. 4, c. 104, as against the 
 heir or devisee, when there is not a devise for pay- 
 P^-|^r-| ment of debts. *If the heir or devisee has 
 aliened the equity of redemption, it is not 
 assets in the hands of the alienee, and the mortgage 
 may be redeemed alone. (A) 
 
 It is also held, that an equity in the nature of 
 tacking accrues when two mortgages of different 
 estates are made to one person, or being originally 
 
 (/) Brace v. Duchess of Marlborough, 2 P. "Wms. 491 ; Baker 
 V. Hains, 16 Ves. 397 ; Ex parte Knott, 11 Ves. 609, 617. 
 
 {g) Supra. Equitable fieri facias and elegit. 
 
 (A) Coleman v. Winch, 1 P. Wms. 775 ; Morett v. Paske, 2 Atk. 
 52; Adams v. Claxton, 6 Ves. 226; Coote on Mortgage, 492. 
 
OF PRIOEITIES, ETC. 335 
 
 made to two, become vested in one, whilst the 
 equities of redemption remain united in a single 
 hand. In such a case, neither the mortgagor, nor 
 any person making title under him, can after forfei- 
 ture redeem one without redeeming both.('i) 
 
 (i) Mergrave v. Le Hooke, 2 Vern, 207 ; Pope v. Onslow, 2 
 Vern. 286 ; Jones v. Smith, 2 Ves. J. 372, 376 ; Ireson v. Denn, 
 2 Cox, 425 ; White v. Hillacre, 8 Y. & C. 597 ; Grugeon v. Ger- 
 rard, 4 Y. & C. 119; Coote on Mortgages, 483-491. 
 
336 ADAMS'S DOCTEINE OF EQUITY. 
 
 [*166] *CH AFTER V. 
 
 CANCELLATION. 
 
 The subjects hitherto considered in the present 
 Book are the equities of trust contract and mort- 
 gage, and the incidental doctrines of conversion and 
 priority. In considering these subjects we have as- 
 sumed, that the original transaction and its evidence 
 are unimpeached and clear, and that the relief asked 
 is merely the enforcement of a consequent equity. 
 If the instrument evidencing a transaction is de- 
 stroyed or lost, if through mistake or accident it has 
 been incorrectly framed, or if the transaction is 
 vitiated by illegality or fraud, or as having been 
 carried on in ignorance or mistake of facts material 
 to its operation, a new equity arises to have the in- 
 strument re-executed, the error corrected, or the 
 vicious transaction rescinded and set aside. The 
 equities for such re-execution, correction, and rescis- 
 sion, like the equity for performance in specie, are 
 incapable of enforcement at common law, and fall, 
 therefore, within the province of the Court of Chan- 
 cery. 
 
 The jurisdiction for re-execution and other similar 
 relief arises, not only on a destruction or conceal- 
 
OF RE-EXECUTION, ETC. 337 
 
 ment by the defendant, but also on an accidental 
 destruction or loss, where the missing instrument is 
 such, that its non-production would perpetuate a 
 defect of title, or would preclude the plaintiff from 
 recovering at law. If, for instance, a conveyance to 
 a purchaser has been accidentally burned, so r*-|c7-i 
 *that the purchaser is unable to show a title 
 to the estate, the vendor may be compelled to re- 
 convey, (a) ' 
 
 The most ordinary instances in which this juris- 
 diction is exercised, are those of lost bonds and 
 negotiable securities, the non-production of which 
 would defeat an action. And in these cases the de- 
 cree is not confined to re-execution, but, to avoid 
 circuity of action, extends to payment. In order, 
 however, that the jurisdiction may attach, it is es- 
 sential that an affidavit be annexed to the bill, aver- 
 ring that the instrument is destroyed or lost, or that 
 
 (a) Bennett v. Ingoldsby, Finch, 262 ; 2 Sug. V. & P. 98. 
 
 • Equity has jurisdiction wherever a lost instrument is to be set 
 up, notwithstanding that courts of law now exercise jurisdiction in 
 the same cases ; Shields v. Commonwealth, 4 Kand. 541 ; and the 
 loss of an article of agreement containing mutual covenants, is 
 sufficient to confer jurisdiction on a Court of Chancery in favour of 
 the injured party; Bolware v. Bolware, 1 Litt. 124. 
 
 The loss of a negotiable note furnishes sufficient ground for re- 
 sorting to Chancery to recover the amount from the endorser; 
 but if the note has not been negotiated at bank, it is necessary to 
 allege in the bill all the. facts legally necessary to be shown, to 
 manifest due diligence to obtain the money from the assignor; 
 West V. Patton, Litt. Sel. Cas. 405. 
 
 The finding of a lost note after a suit in Chancery is instituted 
 for its recovery does not, it seems, oust the Chancellor of his juris- 
 diction ; Crawford v. Summers, 3 J. J. Marsh, 300. 
 
 22 
 
338 Adams's doctrine of equity. 
 
 it is not in the plaintiff's custody or power, and that 
 he knows not where it is, unless it is in the hands of 
 the defendant.' The same facts must be also ad- 
 mitted or proved at the hearing ; for the instrument, 
 if in existence, would be cognizable at law, and the 
 alleged loss or destruction is the only ground for 
 shifting the jurisdiction into Chancery. If the relief 
 sought extends merely to the delivery of the instru- 
 ment, or is otherwise such as can only be given in a 
 Court of equity, the affidavit is not required. (&) 
 We have already seen, that a similar affidavit is - 
 requisite where a bill is filed for an examination de 
 hene esse, as auxiliary to an action at law. (c) 
 
 The jurisdiction in the case of lost bonds ori- 
 ginates in the doctrine of profert at law. It was 
 anciently a rule of pleading in the common law 
 Courts, that they could give no remedy for a debt 
 secured by bond, unless the creditor offered to pro- 
 duce his bond in Court. This was called making 
 profert of the bond. If the bond were lost, profert 
 was impossible ; and the remedy at law was gone. 
 But the Court of Chancery, on proof that the bond 
 was really lost, entertained jurisdiction to compel its 
 re-execution and payment of the money secured. 
 The rule requiring profert is now dispensed with at 
 
 (V) Mitf. 124. (c) Supra. Examination dejbene esse. 
 
 ' In a suit in Chancery praying relief for a lost writing, though 
 strictly the party should make affidavit'of loss, yet, if the proof of 
 the loss is clear, the affidavit of the loss may be dispensed with ; 
 Graham v. Hackwith, 1 A. K. Marsh, 424; Parson's Admr. v. 
 Wilson, 2 Ten. R. 260; Webb v. Bowman's Ex'rs, 3 J. J. 
 Marsh, 73. 
 
OF CORRECTION. 339 
 
 law in the event of loss ; but the *change of |-^, ^q-, 
 practice at common law does not annul the 
 jurisdiction in equity, (rf) 
 
 The jurisdiction in the case of negotiable securi- 
 ties originates in a different way. These securities 
 not being under seal, are so far different from a bond, 
 that in an action brought on them at common law, 
 it has never been requisite to make profert. An 
 action may be commenced on a bill or note, a plea 
 called for, and the cause brought on for trial, with- 
 out production being offered or made. And, there- 
 fore, up to this point, there is no ground for equitable 
 interference. If, however, the bill or note be nego- 
 tiable, it follows, that a plaintiff alleging it to have 
 been lost, may, in fact, have assigned it to a third 
 party, against whose claim the Court of law cannot 
 indemnify the debtor. For this reason it is held at 
 law, that a plaintiff suing on a negotiable instrument 
 shall not recover the amount, unless he delivers up 
 the security. And therefore a Court of equity, which 
 can enforce a proper indemnity from the plaintiff, 
 will entertain jurisdiction to compel payment on such 
 indemnity being given. If the security be not nego- 
 tiable, its loss will not prevent the creditor from re- 
 covering at law, and will not therefore create a juris- 
 diction in equity, (e) 
 
 The jurisdiction to correct written instruments 
 
 (d) Ex parte Greenway, 6 Ves. 812 ; East India Company v. 
 Boddam, 9 Ves. 464. 
 
 (e) Hansard v. Robinson, 7 B. & C. 90 ; Macartney v. Graham, 2 
 Sim. 285; Walmsley v. Child, 1 Ves. 341; Glyn v. Bank of Eng- 
 land, 2 Ves. 38 ; Mossop v. Eadon, 16 Ves. 430. 
 
340 Adams's doctrine of equity. 
 
 which have been erroneously framed is obviously ap- 
 propriate to equity alone. A Court of law may con- 
 strue and enforce the instrument as it stands, or may 
 set it aside altogether if there be adequate cause. 
 But it cannot compel any alteration to be made ; and 
 an avoidance of the entire instrument would, in the 
 case which we are now considering, be a nullifica- 
 tion, and not an affirmance, of what was really 
 meant. 
 
 r*1 fiQI *The most obvious and easy exercise of this 
 jurisdiction is where an instrument has been 
 executed in order to the performance of a pre-existing 
 trust, or where it purports to have been executed in 
 pursuance of an agreement which it recites. 
 
 In the former case the parties bound by the trust 
 have no authority to vary it, or to execute any in- 
 strument inconsistent with its terms ; and if they do 
 so, whether intentionally or not, there is a manifest 
 equity to correct their error. For example, if a con- 
 veyance is improperly made in supposed pursuance 
 of an executory trust by following its precise lan- 
 guage, instead of working out by a set of formal limi- 
 
 ' The Court of Chancery in the exercise of its moral jurisdiction 
 will, upon the proof of fraud, mistake, or surprise, raise an equity 
 by which the written agreement of the party shall be rectified. 
 Wesley v. Thomas, 6 Har. & J. 23 ; see Tilton v. Tilton, 9 N. H. 
 385. So equity will correct a mistake in an instrument against 
 sureties as well as others. Butler v. Durham, 3 Ired. Ch. 589. 
 And Courts of equity will interfere to correct mistakes not only 
 between the original parties but also those claiming under them in 
 privity, as heirs, legatees, devisees, assignees, voluntary grantees, 
 judgment creditors, or purchasers from them with notice of the 
 facts ; Simmons v. North, 3 S. & M. 67. 
 
OF CORRECTION. 341 
 
 tations what it was intended to effect, the error will 
 be rectified by decree. (/) 
 
 In the second case where the instrument purports 
 to carry into execution an agreement which it recites, 
 and exceeds or falls short of that agreement, there 
 is no difficulty in rectifying the mistake ; for then 
 there is clear evidence in the instrument itself that 
 it operates beyond its real intent. If, however, there 
 is no recital of any agreement, but a mistake is al- 
 leged, and extrinsic evidence tendered in proof that 
 it was made, the limits of the equity for correction 
 are more difficult to define. The prima facie pre- 
 sumption of law is, that the written contract shows 
 the ultimate intention, and that all previous propo- 
 sals and arrangements, so far as they may be consis- 
 tent with that contract, have been deliberately aban- 
 doned. It seems, however, that the instrument may 
 be corrected, if it is admitted or proved to have been 
 made in pursuance of a prior agreement, by the terms 
 of which both parties meant to abide, but with which 
 it is in fact inconsistent; or if it is admitted or 
 proved that an instrument intended by both parties 
 to be prepared in one form, has, by reason of some 
 undesigned insertion or omission, been prepared and 
 executed in another. If, for instance, a contract were 
 made *for the purchase of certain heredita- p, htq-, 
 ments, and the conveyance were to omit a 
 portion, or were to pass more than was intended, 
 there would be an equity to correct the deficiency or 
 excess. So again where a solicitor, being instructed 
 to prepare a settlement of a particular sum, inserted 
 
 (/) Supra, Executory Trusts. 
 
342 ADAMS'S DOCTRINE OF EQUITY. 
 
 by mistake double the amount, and the settlement was 
 executed without discovery of the mistake, a bill 
 was sustained to rectify it ; and the same course was 
 pursued where the solicitor, being directed to strike 
 out a particular clause, had by mistake extended his 
 erasure to the one which followed it. {g) But it is not 
 sufficient that there is a mistake as to the legal con- 
 sequences of the instrument ; for to admit correction 
 on this ground would be indirectly to construe by 
 extrinsic evidence, and the proper question is not 
 what the document was intended to mean, or how it 
 was intended to operate, but what it was intended to 
 be.' For example, where an annuity had been sold 
 by the plaintiff, and was intended to be redeemable, 
 but it was agreed that a clause of redemption should 
 not be inserted in the grant, because both parties er- 
 roneously supposed that its insertion would make 
 the transaction usurious ; it was held that the omis- 
 
 (gr) Beamnont v. Bramley, T. & R. 41 ; Breadalbane v. Chandos, 
 2 M. & C. 711 ; Young v. Young, 1 Dick. 295 ; Eogers v. Earl, 1 
 Dick. 294 ; Wilson v. Wilson, 14 Sim. 405 ; 1 Sug. V. & P., c. 
 iii., s. 11 ; Okill v. Whittaker, 2 Ph. 338. 
 
 ' It has been held in anumher of cases that a mistake of law merely 
 is not sufficient ground on which to claim the aid of a court of equity. 
 Shotwell V. Murray, 1 John. C. E. 512 ; Wintermute v. Snyder, 2 
 Green, Ch. 489 ; Good v. Herr, 7 Watts & Serg. 253. But see 
 contra, Lowndes v. Chisholm, 2 M'C. Ch. 455 ; Hopkins' Ex'rs v. 
 Mazynk, 1 Hill's Ch. 251 ; Drew v. Clark, Cook, 374 ; Fitzgerald v. 
 Peck, 4 Litt. 125 ; Champlain v. Laytin, 1 Edws. 467. Though it 
 has been said, that whatever exceptions there may be to the rule first 
 stated, they will be found few in number, to haye something pe- 
 culia,r in their character and to involve other elements of decision. 
 Hunt V. Rousmaniere, 1 Pet. 115 ; Bank of United States v. 
 Daniel, 12 Pet. 32. There are, however, many conflicting deci- 
 sions on the subject in the United States. 
 
OF CORRECTION. 343 
 
 sion could not be supplied in equity ; for the Court 
 was not asked to make the deed what the parties 
 intended, but to make it that which they did not 
 intend, but which they would have intended, if they 
 had been better informed. So also it has been deci- 
 ded, that where a party making a voluntary deed 
 supposes that he will have a power of subsequent 
 revocation, though no such power is reserved, the 
 deed cannot afterwards be altered to give him the 
 power, for the evidence is not that its insertion was 
 prevented by mistake, but that it was never intended 
 to be made. (A) 
 
 *In order to sustain a bill for relief under this p , , -, -■ 
 equity, it is essential that the error be on both L -^ 
 sides, and that it be admitted by the defendant or dis- 
 tinctly proved. It must be a mistake on both sides, 
 for if it be by one party only, the altered instrument 
 is still not the real agreement of both. A mistake on 
 one side may be a ground for rescinding a contract, 
 or for refusing to enforce its specific performance ; 
 but it cannot be a ground for altering its terms. And 
 the mistake must be admitted or distinctly proved. 
 In determining whether such proof has been given 
 great weight will be allowed to what is reasonably 
 and properly sworn by the defendant ; but his oath 
 is not conclusive, and may be counterbalanced by 
 evidence. It has been suggested that in all cases 
 where the Court has reformed a settlement, there 
 has been something beyond mere parol evidence; 
 such, for instance, as the instructions for preparing 
 the conveyance, or a note by the attorney, and the 
 
 (K) Irnham v. Child, 1 B. C. C. 92 ; Townsend v. Stangroom, 6 
 Ves. 328, 332 ; Worrall v. Jacob, 3 Meriv. 256, 271. 
 
344 Adams's doctrine of equity. 
 
 mistake properly accounted for. But it does not 
 seem that evidence would be absolutely inadmissible 
 even though there were nothing in writing to which 
 it might attach. It would, however, be difficult to 
 support the allegation of mistake, if the defendant 
 positively denied it, and there were nothing to depend 
 on but the recollection of witnesses. (**) 
 
 Where land is the subject of the erroneous instru- 
 ment, the reformation of an executed conveyance on 
 parol evidence is not precluded by the Statute of 
 Frauds, for otherwise it would be impossible to give 
 relief And where a mistake in an executory agree- 
 ment relating to land is alleged, parol evidence may 
 be admitted in opposition to the equity for specific 
 performance.^ But it does not appear, that where 
 the defendant has insisted on the benefit of the sta- 
 tute, the Court has ever reformed such an executory 
 agreement on parol evidence, and specifically enforced 
 •r*l 721 *^^ ^^^^ *^^ variation. (^)^ A will cannot be 
 corrected by evidence of mistake, so as to 
 supply a clause or word inadvertently omitted by 
 
 (i) Townsend v. Stangroom, 6 Ves. 328 ; Beaumont v. Bram- 
 ley, T. & K. 41 ; Alexander v. Crosbie, L. & G. 145; Mortimer v. 
 Shortall, 1 Conn. & L. 417. 
 
 (k) Attorney-General v. Sitwell, 1 Y. & C. 559 ; Townsend v. 
 Stangroom, 6 Ves. 328 ; Higginson v. Clowes, 15 Ves. 516 ; 1 V. 
 & B. 524 ; Okill v. Whittaker, 2 Ph. 338. 
 
 ^ In the ahsenee of statutory enactment, it is well settled that 
 parol evidence is admissible to reform a deed or contract, on ac- 
 count of fraud or mistake ; Shipp v. Swan, 2 Bibb, 82 ; Clark v. 
 Partridge, 2 Barr, 13 ; 4 Id. 166 ; Bellows v. Stone, 14 N. H. 
 175 ; Wooden v. Hairland, 18 Conn. 101 ; Wesley y. Thomas, 6 
 Har. & I. 24 ; Newson v. Bufferlow, 1 Dev. Eq. 379 ; see, also, 
 Gillespie v. Moon, 2 John. C. K. 585. 
 
 « See Osborn v. Phelps, 19 Conn. 63. 
 
OF CORRECTION. 345 
 
 the drawer or copyer; for there can be no will with- 
 out the statutory forms, and the disappointed inten- 
 tion has not those forms. But it seems that if a 
 clause be inadvertently introduced, there may be an 
 issue to try whether it is part of the testator's 
 will.(Z) 
 
 In addition to the cases of correction on direct evi- 
 dence of mistake, there are others where it has been 
 decreed on a presumption of equity ; as, for example, 
 where bonds given for payment of a joint and seve- 
 ral debt, but drawn up as merely joint, have been 
 reformed in equity and made joint and several, so as 
 to charge the estate of a deceased obligor. The prin- 
 ciple on which this presumption depends is, that if 
 the debt itself were joint and several, and a bond 
 were given to secure that debt, it must be supposed 
 that the liability on the bond was to be co-extensive 
 with the liability for the debt. On the same princi- 
 ple it is held, that where a loan has been made to 
 several persons jointly, it must be presumed that 
 every debtor was to be permanently liable, until the 
 money should be paid ; and that therefore a debt so 
 arising, though at law it is the joint debt of all the 
 co-debtors, shall be treated in equity as the several 
 debt of each, (ot) If, however, there be no indepen- 
 dent liability, as, for example, if the bond be of in- 
 demnity or of suretyship, there is no presumption 
 that the instrument is erroneous, and no jurisdiction 
 
 (0 8 Vin. Abr. 188, G. a, pi. 1 ; Newburgh v. Newburgh, 5 
 Madd. 364; 1 Jarm. on Wills, 353; Wigram on Wills, s. 121. 
 
 (m) Simpson v. Vaughan, 2 Atk. 31 ; Bishop v. Church, 2 Ves. 
 100; Thorpe v. Jackson, 2 Y. & C. 553; Clarke v. Bicker, 14 
 Sim. 689. 
 
346 Adams's doctrine of equity. 
 
 to vary its effect. If, therefore, it be a joint obligar 
 tion in form, it can have only the effect of a joint 
 obligation. For its construction is the same in equity 
 and at law ; and unless there be evidence, direct or 
 r*17S"l ^P'^fisumptive, that its form is contrary to 
 what was meant, it cannot be altered on mere 
 conjecture, (fi) 
 
 An important instance of the equity in respect to 
 co-debtors occurs in the case of debts owing by a 
 partnership. On the death of a partner, the liability 
 survives at law, and the debt is chargeable on the 
 surviving partners alone. But the deceased partner's 
 assets remain liable in equity ; and the liabilities may 
 be enforced either by the creditor or by the surviving 
 partners. The duration of the liability is sometimes 
 doubtful ; and so also is the duration of a partner's 
 liability who has retired from the firm, and is after- 
 wards sued by an anterior creditor. The doubt, how- 
 ever, is not of law, but of fact. The principle of 
 decision is clear ; viz., that the deceased or retiring 
 partner's estate must remain liable until the debts 
 which affected him are discharged. But the dis- 
 charge may take place in various ways; e. g., by 
 actual payment on account of such debts ; by the 
 regular application of unappropriated payments to 
 their reduction, as the earliest items on the account ; 
 by the express or implied agreement of the creditor 
 to substitute the continuing partners as his debtors ; 
 or by the effect of the Statute of Limitations in bar- 
 ring the claim; and the question in each case is, 
 
 (n) Sumner v. Powell, 2 Meriv. 30 ; Underbill y. Horwood, 10 
 Ves. 209, 227; Kawstone v. Parr, 3 Kuss. 539. 
 
OF RESCISSION AND CANCELLATION. 347 
 
 whether, as against the particular partner, the debt 
 has been in fact discharged, (o) 
 
 The equity for correction on presumptive evidence 
 is applied also to mortgages by husband and wife, of 
 the wife's estate, which have limited the equity of 
 redemption to the husband. If the instrument does 
 not recite an intention to do more than make a mort- 
 gage, the presumption is that nothing more was in- 
 tended ; and the instrument will be *reformed r-^-, ^.-, 
 by restoring the equity of redemption to the 
 wife. And in like manner it is held, that if A lease 
 be made by tenant for life, under a power created by 
 a settlement, and a rent reserved to the lessor and 
 his heirs, these words shall be interpreted by the 
 prior title, and applied to the remainderman under 
 the settlement, and not to the heir of the lessor.(z;) 
 
 The jurisdiction for Kescission and Cancellation 
 arises where a transaction is vitiated by illegality or 
 fraud, or by reason of its having been carried on in 
 ignorance, or mistake of facts material to its opera- 
 tion.' And it is exercised for a double purpose ; first, 
 
 (o) Wilkinson v. Henderson, 1 M. & K. 582 ; Winter v. Innes, 
 4 M. & C. 101; Brown v. Weatherby, 12 Sim. 6; Tatam v. Wil- 
 liams, 3 Hare, 347 ; Way v. Bassett, 5 Hare, 55 ; Thompson v. 
 Percival, 5 B. & Ad. 925 ; Hart v. Alexander, 2 Mee. & W. 484; 
 Blair y. Br&mley, 5 Hare, 542, 555 ; Smith, Merc. Law, 55. 
 
 (z) Innes V. Jackson, 1 Bl. 0. S. 104, 114; Clark v. Burgh, 2 
 Coll. 221. 
 
 * To justify the rescission of an executed contract, there must 
 be some objection affecting the substance of the contract; and a 
 contract can never be rescinded, except in case of fraud or palpa- 
 ble mistake; Thompson v. Jackson, 3 Rand. 504. 
 
 A court of chancery may refuse to rescind a contract, where it 
 would refuse to enforce a specific performance of it, at the suit of 
 
348 Adams's doctruste of equity. 
 
 for cancelling executory contracts, where such con- 
 tracts are invalid, but their invalidity is not apparent 
 on the instrument itself, so that the defence may be 
 nullified by delaying to sue until the evidence is 
 lost ; (a) and secondly, for setting aside executed con- 
 veyances or other impeachable transactions, where it 
 is necessary to replace the parties in statu quo. And 
 in such cases, though pecuniary damages might be 
 in some sense a remedy, yet, if fraud be complained 
 of, there is jurisdiction in the Court of Chancery. (6) 
 The mode of relief under this equity may be by can- 
 cellation of the instrument, or reconveyance of the 
 property which has been unduly obtained, or by an 
 injunction against suing at law on a vitiated con- 
 tract, or against taking other steps to complete an 
 incipient wrong, (c) 
 
 We will first consider the case of Rescission and 
 Cancellation for illegality. 
 
 It is a maxim of law, that " ex turpi causd ')ion 
 oritur actio ;" and, therefore, if a contract of such a 
 
 (a) Peake v. Highfield, 1 Kuss. 559 ; Jones v. Lane, 3 Y. & C. 
 281, 294 ; Simpson v. Lord Howden, 3 M. & C. 97. 
 
 (6) Evans v. Bioknell, 6 Ves. 174 ; Blair v. Bromley, 2 Ph. 354. 
 (c) Infra. Injunction. 
 
 the other party; Beck v. Simmons, 7 Ala. 71; Watkins v. Col- 
 lins, 11 Ohio, 31. 
 
 Application for a rescission must usually be made as soon as the 
 cause for rescission is discovered ; Ayres v. Mitchell, 3 S. & M. 
 683 ; and the court will not rescind a contract, unless it can put 
 the parties in statu quo ; Pintard v. Martin, 1 S. & M. Ch. 126; 
 see, also, Skinner v. White, 17 John. E. 357 ; Clay v. Turner, 3 
 Bibb, 52. Equity will also, upon a proper case being made, re- 
 scind contracts in relation to personal as well as real estate ; Brad- 
 berry V. Keas, 5 J. J. Marsh. 446. 
 
OF EESCISSION AND CANCELLATION. 349 
 
 character be made, its invalidity will be a defence at 
 law, whilst it ^remains unexecuted; and pari p^-. -r-, 
 rations, if its illegal character be not appar -^ 
 
 rent on the face of it, will be a ground for cancella- 
 tion in equity. Such, for instance, are contracts 
 entered into for the purposes of gaming or smuggling, 
 for inducing or aiding prostitution, for compromising 
 a criminal prosecution, for giving usurious interest 
 on a loan ; or even for purposes which, though not 
 strictly illegal, are against the policy of the law, e. g., 
 for an unreasonable restraint of trade. 
 
 If the contract be already executed, it cannot be 
 set aside as illegal or immoral ; for it is a maxim 
 that " in pari delicto melior est conditio defendentis." 
 But it is otherwise where a law is made to prevent 
 oppression, and the oppressed party is asking relief, 
 e. g., on a breach of the statutes against usury ; for in 
 such a case, although the complainant has joined in 
 violating the law, he is not considered in pari delicto, 
 but may defeat the contract after completion.^ 
 
 So long as the contract continues executory, the 
 maxim of " in pari delicto" does not apply ; for the 
 nature of the contract would be a defence at law, 
 and the decree of cancellation is only an equitable 
 mode of rendering that defence effectual. The 
 prayer, however, must be confined to cancellation of 
 the contract, and must not couple relief in afl&rm- 
 ance of it, such as specific performance or reforma- 
 tion of error, (d) 
 
 (d) Batty v. Chester, 5 Bea. 103. 
 
 ' A judgment on a note for money won at gaming may be en- 
 joined, but if the money is paid it cannot be recovered back j Gill 
 V. "Webb, 4 Monr. 299. 
 
350 Adams's doctrine of equity. 
 
 Next, of Rescission and Cancellation by reason of 
 fraud. 
 
 The avoidance of transactions on the ground of 
 fraud is a copious source of jurisdiction in equity. 
 With respect to fraud used in obtaining a will, this 
 jurisdiction does not exist. If the will be of real 
 estate, it is exclusively cognizable at law ; if of per- 
 sonal estate, in the Ecclesiastical Court, (e) In other 
 cases of fraud, the Court of Chancery has concurrent 
 r*l 7fil j^i^isdiction with the Courts of law; and *this 
 jurisdiction will be exercised against any one 
 who has abetted or profited by the fraud, and after 
 any length of time. The infancy of the defrauding 
 party will not exonerate him, for though the law 
 protects him from binding himself by contract, it 
 gives him no authority to cheat others. (/) The 
 absence of personal benefit is no excuse ; for if a man 
 has aided or abetted a fraud he may be justly made 
 responsible for its result, and even if no other relief 
 be asked against him, may be compelled to pay the 
 costs of suit, (g) The lapse of time is no bar to re- 
 lief, for so long as the fraud remains unknown, it is 
 a daily aggravation of the original wrong; (A) 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 
 
 (e) Infra. Establishment of Wills. 
 
 (/) Overton v. Banister, 3 Hare, 503 ; Stikeman v. Dawson, 1 
 D. G. & S. 90. 
 
 (ff) Supra. Priority of Equity on the ground of Fraud. Beadle 
 V. Burch, 10 Sim. 382; Attwood v. Small, 6 CI. & F. 232. 
 
 (K) Alden v. G-regory, 2 Eden, 280 ; South Sea Company v. 
 Wymondsell, 3 P. Wms. 143; Hovenden v. Lord Annesley, 2 
 Sch. & L. 607, 639. 
 
OF EESCISSION AND CANCELLATION. 351 
 
 duty of restitution.(i) On the other hand, all un- 
 founded allegations of fraud are discouraged by the 
 Court ; and if such allegations are made, and not es- 
 tablished, the plaintiff will not in general be allowed 
 to resort to any secondary ground of relief {k) 
 
 With respect to what will constitute fraud, it is 
 impossible to lay down a specific rule ; but the most 
 ordinary instances of its occurrence, and those to 
 which our attention will be now directed, are the 
 procuring contracts to be made or acts to be done by 
 means of wilful misrepresentation, either express or 
 implied, and the procuring them to be made or done 
 by persons under duress or incapacity. 
 
 In order to constitute a fraud of the first class, 
 there must be a representation, express or impHed, 
 false within the knowledge of the party making 
 it, reasonably relied on by the other party, and 
 constituting a material inducement *to his r^-inn-i 
 contract or act.' If the fact concerning 
 
 (i) Huguenin v. Baseley, 14 Ves. 273, 289. 
 (k) Glascott V. Lang, 2 Ph. 310. 
 
 * Fraudulent misrepresentation and concealment by a vendor of 
 land, as to the nature, quality, and quantity thereof, affecting the 
 whole subject-matter of the contract, entitle the vendee to a re- 
 scission of the contract, and he will not be put to his remedy at 
 law for compensation in damages ; Walker v. Dunlop, 5 Hey. 271 ; 
 Stephenson v. Taylor, 1 A. K. Marsh, 535 ; Pitts v. Cottingham, 9 
 Porter, 675 ; ~and a misrepresentation by a vendor, to be ground 
 for a rescission of the contract, must be in reference to some mate- 
 rial thing unknown to the vendee, either from not having examined, 
 or for want of opportunity to be informed, or from entire confi- 
 dence reposed in the vendor, and his remedy must be pursued in 
 good time after the injury is discovered j Hall v. Thompson, 1 S. 
 & M. 448. 
 
 False reasoning upon facts truly stated is no ground for relief in 
 
352 ADAMS's DOCTRINE OF EQUITY. 
 
 which the representation is made is not a material 
 inducement to the contract or. act, there is no reason 
 why a misstatement of it should vitiate what has 
 been done ; (I) and if the misstatement has not been 
 relied on, or not reasonably relied on, by the com- 
 plaining party, the same reasoning will apply. Such, 
 for example, will be the case, if the party to whom 
 the representation is made resorts to the proper 
 means of verification, so as to show that he in fact 
 relied on his own inquiries ; or if the means of inves- 
 tigation and verification are at hand, and his atten- 
 tion is drawn to them ; or if the representation re- 
 gards a mere matter of opinion or inference, with 
 respect to which both parties have equal means of 
 forming a judgment. But it would be different if he 
 were prevented by any artifice of the other party 
 from making such full inquiry as he would otherwise 
 have made.(m) For this reason a contract is not 
 vitiated by a mere false assertion of value on the 
 ^art of the seller ; nor by vague and indefinite terms 
 of commendation ; (to) nor by a mere misstatement 
 
 (0 Attwood T. Small, 6 01. & F. 232, 502; Phillips v. Duke of 
 Buckingham, 1 Vern. 227; Fellowes v. Lord Gwyder, 1 K. & 
 M. 83 ; Orosbie v. Tooke, 1 M. & K. 431 ; Nelthorpe v. Holgate, 
 1 Coll. 203; 1 Sug. V. & P. 348-351. 
 
 (m) Clapham v. Shillito, 7 Bea. 146 ; Atwood v. Small, 6 01. 
 & F. 232, 503. 
 
 (n) 1 Sug. V. & P. 3, 4. White V. Cuddon, 8 01. & F. 766. 
 
 equity; Bowman v. Bates, 2 Bibb, 47; so, also, if a vendor falsely 
 assert that he paid a much greater price than he actually paid for 
 the land ; Best v. Blackburns, 6 Litt. 51 ; but the assertions of the 
 vendor as to the value and prospective profits of the property, 
 where there is no misrepresentation of facts, afford no ground for 
 setting aside the contract; Hutchinson v. Brown, 1 Clark, 408. 
 
OF RESCISSION AND CANCELLATION. 353 
 
 by the buyer of his motive in purchasing or in limit- 
 ing the amount of his offer ; for these are not repre- 
 sentations on which a man can reasonably rely.(o) 
 Nor will the mere employment of one person to bid 
 at an auction on the owner's behalf, though not noti- 
 fied, be a fraud in equity, provided he be bona fide 
 employed to prevent a sale at an under value. But 
 it is otherwise if the intention is to take advantage 
 of the eagerness of bidders in screwing up the price, 
 or if there is an announcement that the sale is with- 
 out reserve, which implies that such a course will 
 not be taken, (p) 
 
 *The requirement that the representation p^^ „r,-, 
 shall be not only false, but false within the 
 knowledge of the party making it, distinguishes a 
 fraudulent representation inducing to a contract from 
 an erroneous affirmation embodied in it by way of 
 warranty or covenant.^ Affirmations of this 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 true by the 
 party making it, though not true in fact, does not 
 amount to fraud, (q) 
 
 (o) Vernon v. Keys, 12 East, 63. 
 
 (p) Smith V. Clarke, 12 Ves. 477 ; Woodward v. Millar, 2 Coll. 
 279 ; Thornett v. Haines, 15 Mee. & W. 367 ; 15 Law J., Exoh. 
 230 ; 1 Sug. V. & P., c. i., s. 2. 
 
 (q) Pasley v. Freeman, 3 T. K. 51 ; Freeman v. Baker, 5 B. & 
 Ad. 797; Ormond V. Huth, 14 Mee. & W. 651; 14 Law J., 
 Exch. 366. 
 
 * See Spence v. Duren, 3 Ala. 251. 
 23 
 
354 ADAMS'S DOCTRINE OF EQUITY. 
 
 Where no statement has been expressly made, a 
 misrepresentation may nevertheless be implied from 
 conduct. But mere non-disclosure is generally not 
 equivalent to fraud. The ordinary maxim of law is 
 " caveat emptor " and this maxim authorizes a con- 
 tracting party to remain silent, and to avail himself 
 so far as he can of his superior knowledge. If, for 
 example, I treat for the purchase of an estate, know- 
 ing that there is a mine under it, and the other party 
 makes no inquiry, I am not bound by law to inform 
 him of the mine, (r) 
 
 There are, however, cases of a different character, 
 where the contract is necessarily based on the as- 
 sumption of a full disclosure, and where, for that 
 reason, any degree of reticence on a material point is 
 fraud. Such, for instance, is the case where the 
 seller of a real estate, knowing a fact material to the 
 vaUdity of his title, delivers an abstract which does 
 not disclose it ; for the knowledge of his title is con- 
 fined to himself; and the purchaser contracts on the 
 assumption that the real title will be shown, (s) It 
 has been further decided at law that, even though 
 r*l 701 ^^ article be sold *with all faults, so as ex- 
 pressly to free the seller from responsibility, 
 yet if he falsely represent that a particular defect 
 does not exist, or if he use any artifice to disguise a 
 defect or to prevent its discovery, the contract may 
 be set aside. (<)' 
 
 (r) Turner v. Harvey, Jac. 169, 178 ; Dykes v. Blake, 4 B. N. 
 C. 463 ; Gibson v. D'Bste, 2 N. C. C. 542. 
 
 (s) Edwards v. M'Leay, Coop. 308 ; 2 Swanst. 287. 
 
 (t) Baglehole v. Walters, 3 Camp. 154 ; Schneider v. Heath, 3 
 Camp. 506 ; 1 Sug. V. & P. 545-552. 
 
 ' It is an ancient and well-settled principle, that whenever sup- 
 
OF RESCISSION AND CANCELLATION. 355 
 
 The principle which treats non-disclosure as 
 equivalent to fraud, when the circumstances impose 
 a duty that the disclosure should be made, is espe- 
 cially material in respect to contracts of insurance 
 and suretyship. For the risk which the insurer un- 
 dertakes and the contract which the surety guaran- 
 tees, can only be learnt from the representation of 
 the party insured or guaranteed. If, therefore, the 
 insured does not state to the insurer truly and fully 
 all the facts within his private knowledge, which 
 would vary materially the object of the policy and 
 change the risk understood to be run, the policy is 
 void. Nor is it an excuse that the concealment was 
 attributable to the fraud or neglect of an agent, or 
 that the account concealed was false, or in no way 
 
 pressio veri or suggestio falsi occurs, and more especially both 
 together, they afford sufficient ground to set aside any release or 
 conveyance ; Smith v. Richards, 13 Pet. 26 ; Torrey t. Buck, 1 
 Green Ch. 366 ; White v. Cox, 8 Hey. 79. Where, however, 
 facts lie equally open to the vendor and vendee, with equal oppor- 
 tunity for examination, and the vendee undertake to examine for 
 himself without relying upon the vendor's statements, it is no 
 evidence of fraud, that the vendor knew facts not known to the 
 vendee, and does not disclose them to him ; Hall v. Thompson, 1 
 S. & M. 443. And where also, it does not appear that a party 
 knew a fact alleged to have been concealed, or had had better op- 
 portunity to know it than the other, equity will not interfere j 
 Perkins v. McGravock, Cooke, 415. 
 
 Where an incumbrance is concealed by the vendor from the 
 vendee, but is removed by the vendor before decree in a bill for 
 rescission filed by the vendee, the court refused to rescind the 
 contract; 5 How. Miss. 673. But where an incumbrance is not 
 removed, although it be recorded at the time the contract was 
 entered into, equity will rescind the contract ; Campbell v. Whit- 
 tingham, 5 J. J. Marsh. 96 ; Napier v. Elam, 6 Yerg. 108. 
 
356 ADAMS'S DOCTRIJSTE OF EQUITY. 
 
 referred to the subsequent cause of loss, or was not 
 believed by the insurer to be material, or was not 
 concealed with a fraudulent design. («) And in like 
 manner if a contract is guaranteed by a surety, and 
 a fact materially affecting the nature of that contract 
 is misrepresented to him, or concealed from him, 
 with the knowledge or consent of the party accepting 
 the guarantee, the surety ceases to be liable, (v) 
 
 Another case of the same character occurs in com- 
 positions by a debtor with his creditors, where a 
 secret bargain has been made with particular credi- 
 tors. The very circumstance that some creditors 
 r-^-, oQ-i have already executed, is an inducement *to 
 the rest to follow their example. The reason 
 why they have so executed can only be known by 
 the other creditors from the representations of the 
 debtor ; and if the real reason is the result of any 
 secret arrangement, the influence of their example is 
 a fraud on the rest. All such secret arrangements, 
 therefore, are utterly void ; they cannot be enforced 
 even against the debtor himself, and money paid 
 under them may be recovered back, as having been 
 obtained against the clear principles of pubhc poli- 
 cy, (w) 
 
 In like manner a secret agreement on marriage, 
 in fraud of the relations or friends of one of the par- 
 
 (u) Carter v. Boehm, 3 Burr. 1906 ; Smith Merc. Law, 358- 
 363, 374 ; De Costa v. Scandret, 2 P. Wms. 170 ; Whittinghem 
 V. Thornburgli, 2 Vern. 206; Fenn v. Craig, 3 Y. & C. 216; 
 Kemp V. Pryor, 7 Ves. 237, 249 ; Jervis v. White, 7 Ves. 413. 
 
 (y) Pidoock v. Bishop, 3 B. & C. 605 ; Stone v. Compton, 513, 
 N. C. 142 ; Hamiltou v. Watson, 12 CI. & F. 109. 
 
 (w) Jackman v. Mitchell, 13 Ves. 581 ; Ex parte Sadler v. 
 Jackson, 15 Ves. 52 ; Smith Merc. Law, 702. 
 
OF EESCISSION AND CANCELLATION. 357 
 
 ties, will be relieved against in equity; e. g., an 
 agreement under which a fortune paid is in part 
 privately received back, or a bond of indemnity given 
 for the amount ; for it is a deception practised on 
 the other parties to induce a larger settlement than 
 they would otherwise have made.(cc) And a bond 
 given for assisting a clandestine marriage has been 
 set aside, though given voluntarily after the mar- 
 riage, and without any previous arrangement, [y) 
 
 Another class of transactions which have been 
 held void, as amounting to a fraud on the marriage 
 contract, are conveyances by an unmarried woman 
 of her property, pending a treaty of marriage, with- 
 out the knowledge of her intended husband.' 
 
 If a woman entitled to property enters into a 
 treaty for marriage, and during the treaty represents 
 to her intended husband that she is so entitled, that 
 upon the marriage he will become entitled jure 
 mariti ; and if, during the same treaty, she clandes- 
 tinely conveys away the property, either for the 
 benefit of a third person, or to 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 practised on the husband. If both the 
 property and the mode of its conveyance, pending 
 
 (x) Palmer v. Neave, 11 Ves. 165; Turton v. Benson, 1 P. 
 Wms. 496 ; Thompson v. Harrison, 1 Cox, 344. 
 (jf) 'Williamson v. Gihon, 2 Sch. & L. 357. 
 
 ' See Linker v. Smith, 4 Wash. C. C. 224. In Petty v. Petty, 
 4 B. Monr. 215, the same rule was applied to the case of a hus- 
 band who conveyed his property in fraud of the rights of his second 
 wife. 
 
358 ADAMS'S DOCTRINE OF EQUITY. 
 
 r*l8l1 ^^^ marriage *treaty, Avere concealed frora 
 the intended husband, there still is, or may 
 be, a fraud practised on him. It is true that the 
 non-acquisition of the property is no disappointment, 
 but still his legal right is defeated ; and the convey- 
 ing of the property for the benefit of a third person, 
 or the vesting and continuance of separate property 
 in his wife, is a surprise upon him, and might, if pre- 
 viously known, have induced him to abstain from 
 the marriage. The mere fact, however, of conceal- 
 ment from the husband, or rather the non-existence 
 of communication to him, is not necessarily, and 
 under all circumstances, equivalent to fraud. In the 
 absence of any representation as to specific property, 
 there is no implied contract on the part of the lady 
 that her property shall not be in any way diminished 
 before the marriage ; but it is for the Court to de- 
 termine in each case whether, having regard to the 
 condition of the parties, and the other attendant cir- 
 cumstances, a transaction complained of by the hus- 
 band should be treated as fraudulent. Several cir- 
 cumstances appear to have been thought material as 
 negativing the imputed fraud; such, for instance, as 
 the poverty of the husband — the fact that he has 
 made no settlement upon the wife — the fulfilment of 
 a moral or legal obligation, as in the case of a settle- 
 ment upon the children of a former marriage, or of 
 a bond given to secure a debt contracted for a valua- 
 ble consideration, — and the ignorance of the husband 
 that his wife possessed the property. There can be 
 no doubt that any of these facts would be a good 
 ground for insisting that the husband should make 
 a settlement, and for determining the marriage con- 
 
OF RESCISSION AND CANCELLATION. 359 
 
 tract if he should refuse to do so ; but it is not so 
 easy to understand why they should constitute 
 reasons for practising concealment on him, or for 
 treating such concealment as immaterial. Where, 
 however, in addition to these circumstances, there 
 was this further fact in extenuation of the conceal- 
 ment, that the husband had brought the intended 
 wife to his house, and had induced her to cohabit 
 with him before the marriage, it was held conclusive 
 against relief. For, it was said by the Court, p^-. j^n-, 
 *that by the husband's conduct towards her, 
 retirement from the marriage on her part was made 
 impossible. She must have submitted to a marriage 
 with her seducer, even though he should have in- 
 sisted on receiving and spending the whole of her 
 fortune ; and the only method of protection left her 
 was to make a settlement without his knowledge.(z) 
 
 Besides that kind of fraud, which consists in mis- 
 representation, express or implied, there is another, 
 not less odious, which vitiates contracts made by 
 persons, who, at the time of making such nominal 
 contracts, are under duress or incapacity. 
 
 If an act be done under actual duress, it may be 
 afterwards avoided even at law ; e. g., if a man is 
 induced to execute a deed through fear of death or 
 mayhem, or by an illegal restraint of his liberty. 
 And in such case, though its execution be accompar 
 nied by all requisite solemnities, yet he may allege 
 the duress and avoid the extorted deed. But if a 
 man be lawfully imprisoned, and either to procure 
 his discharge, or on any other fair account, seals a 
 
 (z) Groddard v. Snow, 1 Kuss. 485 ; England v. Downs, 2 Bea. 
 522 ; Taylor v. Pugh, 1 Hare, 608. 
 
360 Adams's doctrhste of equity. 
 
 deed, this is not by duress of imprisonment, and he 
 is not at liberty to avoid it.(a)^ 
 
 The conveyances and contracts of idiots and 
 lunatics (except during a lucid interval) are also, 
 generally speaking, void at law. But the feoffment 
 of an insane person is held not to be absolutely void, 
 but voidable only, owing to the solemnity of livery 
 with which it is accompanied ; and for this reason it 
 is held that he cannot himself set it aside at law 
 after his recovery ; although it may be avoided by 
 the committee, during his lunacy, or by the heir 
 after his death. (&) 
 
 The principle on which a deed is held fraudulent, 
 pioQ-i on the ground of lunacy, is that it has been 
 obtained from *a person who at the time of 
 execution was not capable of apprehending its effect; 
 but the mere fact that the party was in a state of 
 lunacy, or even that he was under confinement, will 
 not per se induce the Court to interfere, if it be dis- 
 tinctly shown that the act was beneficial to him, 
 that no coercion or imposition was used, and that 
 he knew clearly what he was doing, (c)^ 
 
 (a) 2 Steph. Bl. 131, 137. 
 
 lb) 1 Steph. Bl, 440; 2 Sug. on Pow. 179 ; 1 Story on Eq. s. 
 223-229. 
 
 (c) Selby V. Jackson, 6 Bea. 192 ; 13 Law J. 249. 
 
 » MoDaniel v. Moormann, 1 Harp. Ch. 108 ; Underwood v. 
 Broekman, 4 Dana, 319. 
 
 ^ A present interest passes by the deed of a lunatic, which is 
 not void but voidable ; Breckenridge v. Ormsby, 1 J. J. Marsh, 
 245. 
 
 As to the parties who may avoid the deed of a lunatic, see 
 
OF EESCISSION AND CANCELLATION. 361 
 
 It has been held also that, independently of that 
 utter imbecility which will render a man legally non 
 compos, a conveyance may be impeached for mere 
 weakness of intellect, provided it be coupled with 
 other circumstances to show that the weakness, such 
 as it was, has been taken advantage of by the other 
 party. But the mere fact that a person is of weak 
 understanding, if there be no fraud or surprise, is 
 not an adequate cause for relief. {dy 
 
 A person drunk to the extent of complete intoxi- 
 cation, so as to be no longer under the guidance of 
 reason, appears to be absolutely incapable of making 
 a contract, so that his deed is void at law. If the 
 degree of intoxication fall short of this, a Court of 
 equity will generally not assist the other party in 
 enforcing his claim. But it seems that it will con- 
 fine itself to standing neuter, and will not relieve 
 
 (d) Blackford v. Christian, 1 Knapp, 73 ; Ball v. Mannin, 3 
 Bligh. N. S. 1 ; 1 Story on Eq., s. 234-237. 
 
 Breckenridge v. Ormsby, ubi. supra 248-250,254; Gates v. Wood- 
 son, 2 Dana, 454. 
 
 A deed made by the grantor while a lunatic, would require a 
 re-execution when he was of sound mind, to give it validity. 
 Jones, et al. v. Evans, 7 Dana, 96. 
 
 ^ Whipple V. McClure, 2 Boot. 216; Whitehorn v. Hines, 1 
 Munf. 557 ; Buffalow v. Buffalow, 2 Dev. & Bat. Ch. 241 ; Ruth- 
 erford V. Ruff, 4 Desau. 350; Deatly v. Murphy, 3 A. K. Marsh. 
 472 ; McCormick v. Malin, 5 Blackf. 509 ; Whelan v. Whelan, 3 
 Cow. 537 ; Hunt v. Moore, 2 Barr, 105. But a contract will not 
 be set aside on the ground of greater superiority of intellect in one 
 of the parties, if the other party was of legal capacity to contract. 
 Thomas v. Sheppard, 2 McC. Ch. 36. And the mere fact that an 
 agreement is improvident, is no ground for setting it aside. Green 
 V. Thompson, 2 Ired. Ch. 365. 
 
362 ADAMS'S DOCTEINE OF EQUITY. 
 
 against the instrument, unless the contracting party 
 was drawn in to drink by the contrivance of the 
 other, (e)^ 
 
 The same principle which vitiates a contract with 
 an incapacitated person is extended in equity to 
 avoid b^enefits obtained by trustees from their cestuis 
 que trustent, or by other persons sustaining a fidu- 
 ciary character from those in regard to whom that 
 character exists. 
 
 The most obvious instance of this doctrine is in 
 the case of actual trustees. If a trustee be appointed 
 for the sale or purchase of property, he cannot sell 
 |-^^ to or purchase from *himself, however honest, 
 '- -"in the particular case, the transaction may 
 be. For if he were permitted to buy or sell in an 
 honest case, he might do so in one having that 
 appearance, but which, from the infirmity of human 
 testimony, might be grossly otherwise. It is not, 
 therefore, necessary to show that an improper ad- 
 vantage has been made ; but the cestui que trust, if 
 he has not confirmed the transaction with full know- 
 ledge of the facts, may, at his option, set it aside. 
 The rule, however, which imposes this absolute in- 
 capacity, applies to those cases only where a trustee 
 attempts to purchase from or sell to himself. There 
 is no positive rule that he cannot deal with his cestui 
 que trust ; but, in order to do so, he must fully divest 
 himself of all advantage which his character as 
 trustee might confer, and must prove, if the trans- 
 
 (c) 2 Sug. on Pow. 178 ; Cooke v. Clayworth, 18 Ves. 12 ; 
 Lightfoot vr. Heron, 3 Y. & C. 586; 1 Story on Eq., s. 230-233. 
 
 ^ See note 1, page 184. 
 
OF RESCISSION AND CANCELLATION. 363 
 
 action be afterwards impugned, that it was in all 
 respects fair and honest. (/) In like manner an 
 agent, who is employed to sell, cannot himself be- 
 come secretly the purchaser ; nor can an agent, who 
 is employed to buy, buy from himself or from his 
 own trustee, or for his own benefit, (g^) And where 
 even any person stands in a relation of special con- 
 fidence towards another, so as to acquire an habitual 
 influence over him, he cannot accept from him a 
 personal benefit without exposing himself to the 
 risk, in a degree proportioned to the nature of their 
 connexion, of having it set aside as unduly obtained.^ 
 An attorney, therefore, purchasing or taking a 
 benefit from his client, whilst the relationship of 
 attorney and client exists, and in respect of that 
 matter wherein it exists, must show that he took no 
 advantage of his influence or knowledge, but gave 
 his client all that reasonable advice against himself 
 which it was his duty to have given him against a 
 third person. (A) A guardian, taking from his ward, 
 is bound by the same rule ; a minister of religion, 
 *takingfrom those under his spiritual charge, p^-,gp-, 
 may be bound by it with even greater strin- ^ J 
 gency. (i) The same general principle applies to all 
 the variety of relations in which dominion may be 
 exercised by one person over another ; but in pro- 
 
 (/) Supra. Prohibition of personal benefit to a trustee. 
 
 (ff) Gillett T. Peppercorne, 3 Bea. 78 ; Taylor v. Salmon, 4 M. 
 & C. 134. 
 
 (Ji) Edwards v. Meyrick, 2 Hare, 60. 
 
 (i) Huguenin v. Baseley, 14 Ves. 273 ; Thompson v. Heffernan, 
 4 Dru. & W. 285. 
 
 ' See notes to pages 57 and 61, ante. 
 
364 Adams's doctrine of equity. 
 
 portion as the relationship is less known and definite, 
 the presumption of fraud is less strong. Where the 
 known and definite relationship exists of trustees and 
 cestui que trust, attorney and client, or guardian and 
 ward, the conduct of the party benefitted must be 
 such as to sever the connexion, and to place him in 
 the same circumstances in which a mere stranger 
 would have stood, giving him no advantage beyond 
 the kindly feeling which the connexion may have 
 caused. Where the only relation is that of friendly 
 habits and habitual reliance on advice and assis- 
 tance, accompanied by partial employment in busi- 
 ness, care must be taken that no undue advantage 
 shall be made. But no rigorous definition can be 
 laid down, so as to distinguish precisely between 
 the effects of natural and often unavoidable kind- 
 ness, and those of undue influence or undue advan- 
 tage. (Jc 
 
 Another instance of fraud where there is a fidu- 
 ciary relation is when a person having a power of 
 appointment for the benefit of others, uses it by con- 
 trivance for his own benefit. Thus, if a parent has 
 a power to appoint to such of his children as he may 
 choose, he cannot appoint it to one of the children 
 upon a bargain beforehand for his own benefit. {I) 
 It was also formerly held, that illusory appointments 
 under a power, were void in equity ; i. e., appoint- 
 ments of a nominal, instead of a substantial share to 
 one of the members of a class, where power was 
 
 (/■;) Hunter v. Atkins, 3 M. & K. 113 ; Dent v. Bennet, 4 M. & 
 C. 269. 
 
 (J) Daubeney v. Cookburn, 1 Meriv. 626 ; 2 Sug. on Powers, c. 
 xi., s. 2. 
 
OF RESCISSION AND CANCELLATION. 365 
 
 given to appoint amongst them all. An appoint- 
 ment of this kind was clearly valid at law ; and it 
 would perhaps be difficult *to reconcile with 
 principle its avoidance in equity. The doc- L ■'^ J 
 trine is now abolished by statute, (m) 
 
 On the same principle it is held, that where a 
 marriage is required to be by consent of trustees, 
 and the trustees withhold consent from a corrupt 
 motive, the Court of Chancery may interfere. And 
 it has been contended, that if the person whose con- 
 sent is required is interested in refusing it, he must 
 show a reason for his dissent. If, however, the 
 creator of a trust chooses to require the consent of 
 a person, whom he knows at the time to have an 
 interest in refusing it, it is difficult to conceive an 
 equity for interfering with his choice. And at all 
 events no equity will arise if the trustee has meant 
 to act honestly, though his decision may not be the 
 same at which the Court would have arrived, (n) 
 
 The acts which have been hitherto the subject 
 of inquiry are either directly fraudulent at law, or 
 are held fraudulent in equity by analogy to law. 
 There is another class of equitable fraud in which 
 the legal analogy is less perceptible. The fraudu- 
 lent transactions here referred to are bargains made 
 with expectant heirs or remaindermen, during the 
 lifetime and without the knowledge of the parent or 
 other ancestor.^ Bargains of this kind are not neces- 
 
 (m) Butcher v. Butcher, 9 Ves. 382 ; 1 Sug. on Powers, c. vii., 
 s. 6;11 Geo.4&l Wm.4, c. 46. 
 (?i) Clarke v. Parker, 19 Ves. 1. 
 
 • See Jenkins et al., v. Pye et al., 12 Peters, 241 ; and also 
 Varick y. Edwards, 1 Hoff. Ch. E. 383, where it was held that 
 
366 ADAMS'S DOCTEINE OF EQUITY. 
 
 sarily and absolutely void. Thej may be sustained 
 ah initio, if they are proved free of unfairness or in- 
 adequacy ; or they may be made good afterwards 
 by the bargainer, either by express confirmation or 
 by continued acquiescence, after the original pressure 
 of his necessities has ceased, (o) But, unless they 
 can be sustained on one of these grounds, they may 
 be set aside at the suit of the bargainer, partly as 
 having been made under the pressure of necessity, 
 but principally as being a fraud on the parent or 
 P1871 ^'^^^^to^j '^^0 is misled into leaving his *es- 
 tate, not to his heir or family, but to a set of 
 artful persons, who have divided the spoil before- 
 hand. The decree in such a case will be that the 
 conveyance shall be set aside as an absolute sale, 
 but shall stand as a security for the principal and 
 interest of the money advanced, and generally, though 
 not necessarily, for the costs of suit as on a common 
 decree to redeem, (p) The soundness of this equity, 
 when applied to reversioners, even assuming it to be 
 well founded with regard to expectant heirs, seems 
 open to much doubt. For a reversioner deals with 
 property which is already his own, although its enjoy- 
 
 (o) King V. Hamlet, 2 M. & K. 456 ; 3 CI. & F. 218 ; Ko- 
 berts V. Tunstall, 4 Hare, 257. 
 
 {p) Earl of Chesterfield v. Janssen, 1 Atk. 301 ; 2 Ves. 125 ; 
 Peacock v. Evans, 16 Ves. 512 ; King v. Hamlet, 2 M. & K. 456 ; 
 3 CI. & F. 218 ; Newton v. Hunt, 5 Sim. 511; Edwards v. Brown, 
 2 Coll. 100; 1 Sug. V. & P. 444-464; 1 Story on Eqiuty, s. 
 334-348. 
 
 the sale of the expectation of an heir of an inheritance, in real as 
 well as personal estate, will be supported if made bona fide and 
 for a valuable consideration. 
 
OF RESCISSION AND CANCELLATION. 367 
 
 nient is postponed. There is, therefore, no fraud on 
 any third party ; and an equity to set aside the sale, in 
 the absence of fraud or trust as between the immediate 
 parties, can rest on little more than mere improvi- 
 dence in the bargain, [q) It may be doubted too, 
 whether the rule has been productive of much good, 
 even to the parties whom it was meant to protect, 
 and whether it has not prevented them from selling 
 their interests at the fair value, and compelled them 
 to accept less favourable terms on account of the at- 
 tendant risk. 
 
 On the same principle a bond by a young woman 
 secretly given to a man, conditioned to pay him a 
 sum of money if she did not n\arry him on her 
 father's death, he giving a bond to the same effect, 
 has been set aside ; and chiefly on the ground that 
 it was a fraud on the parent, who disapproved of the 
 marriage, and who would be misled into making a 
 provision for his daughter, which, had he known of 
 the bond, he might not have done, or might have 
 done in such a manner as would have prevented the 
 marriage, (r) 
 
 *The third ground on which a transaction p^-jgn-i 
 may be rescinded, though not vitiated by ille- ^ -' 
 gality or fraud, is that it has been carried on in 
 ignorance or mistake of facts material to its operation. 
 
 The most direct illustration of this principle occurs 
 in the doctrine of the common law, that money paid 
 voluntarily under a mistake of fact may be recovered 
 
 (q) "Wood V. Abrey, 3 Mad. 417; Davis v. Duke of Marlborough, 
 2 Sw. 140, note. 
 
 (r) Woodhouse v. Shepley, 2 Atk. 535 ; Cock v. Eichards, 10 
 Ves. 429. 
 
368 Adams's doctrine op equity. 
 
 back as money had and received.^ On the same 
 principle, acts which have be'en done voluntarily 
 under a like mistake may be recalled or annulled by 
 suit in equity ; as, for example, where a deed of cove- 
 nant, stipulating that any moneys which might be 
 received by the defendant under certain circum- 
 stances should be held for the use of the plaintiffs, 
 had been delivered up under a mistaken belief that 
 no such moneys had been received, (s) In accordance 
 with the same doctrine a contract may be set aside 
 if made for a consideration which is really nonexis- 
 tent, but which both parties mistakenly supposed to 
 exist. Such, for example, would be the case where 
 the subject of sale is a remainder after an estate tail ; 
 and the estate tail, without the knowledge of either 
 party, has been previously barred, (t) 
 
 The most ordinary applications for this class of 
 relief occur where releases or compromises have been 
 made affecting rights, of which the existence was 
 unknown or the character mistaken by the party 
 executing the release or compromise ; and there are 
 three forms in which such ignorance or mistake may 
 
 (s) East India Company v. Donald, 9 Ves. 275. 
 (0 Hitchooek y. Gidding, 4 Price, 135; 1 V. &P. 389 ; Colyer 
 V. Clay, 7 Bea. 188. 
 
 ' The Court will open settlements made by mistake, although 
 receipts in full have passed. M'Craev. Hollis, 4 Desau. 122; and 
 money paid by mistake, and on an usurious agreement above the 
 legal interest, was recovered back by English bill. Ashbrook v. 
 Watkins, 3 Monr. 82. Where there is error in a settlement, and 
 notes are given in consequence of such error or mistake, equity 
 will relieve. Barnett v. Barnett, 6 J. J. Marsh, 499. But see 
 Clark V. Butcher, 9 Cow. 674. 
 
OF RESCISSION AND CANCELLATION. 369 
 
 exist, viz., 1. "Where the release or compromise 
 refers to other matters, and the facts originating the 
 particular right are unknown to the parties, or are 
 mistaken by them ; 2. Where the uncertainty either 
 of the facts or of the law is present to the parties' 
 minds, and they intend to compromise their rights ; 
 and 3. Where the facts are known, but the law is 
 mistaken. 
 
 In the first class of cases, where the instrument is 
 executed, not by way of releasing or compromising 
 a *particular right, but in ignorance or mis- p^-. qq-. 
 take as to the facts which originate that right, 
 suph instrument would be set aside in equity, (m)^ 
 There appears, however, to be an exception in the 
 case of family arrangements, which are governed by 
 a special equity of their own, and may be enforced, 
 if honestly made, although they have not been 
 meant as a compromise of doubts, but have proceeded 
 on an error of all parties, originating in mistake or 
 ignorance of facts as to what their rights actually 
 are. {v) 
 
 In the second class of cases, where the uncertainty 
 either of the facts or of the law is present to the 
 parties' minds, and they intend to compromise their 
 rights, whatever they may be, i. e. knowing the facts, 
 to compromise the law, or being doubtful of the 
 facts, to compromise both fact and law, there is no 
 
 (m) Farewell v. Coker, cited 2 Meriv. 353 ; Naylor v. Winch, 1 
 S. & S. 555, 562 ; Pritt v. Clay, 6 Bea. 508. 
 
 (v) Stockley v. Stockley, 1 Ves. &. B. 23, 30 ; Dunnage v. 
 "White, 1 Swanst. 187; Neale v. Neale, 1 K. 672; "Westby v. 
 Westby, 1 Conn. & L. 537 ; Gordon v. Gordon, 3 Swanst. 400. 
 
 » See note to p. 168, 169. 
 24 
 
370 Adams's doctrine of equity. 
 
 reason to set aside the transaction ; for it is based on 
 the existence of a doubt; there is no mistake in 
 what is done, and the mere fact that one of the par- 
 ties was in error as to the amount of benefit which 
 he relinquished, cannot create an equity, (w?)^ 
 
 The third class of cases, where the facts are known 
 but the law is mistaken, have been to some extent 
 the subject of conflicting authorities. The rule at 
 law is clear, that "money paid by a man with full 
 knowledge of all the circumstances, or with the 
 means of such knowledge in his hands, cannot be 
 recovered back again on account of such payment 
 having been made in ignorance of the law."(a;)^ The 
 principle ought to be the same in equity. The 
 authorities which appear most opposed to it are those 
 of Bingham v. Bingham, [y) and Lansdown v. Lans- 
 down. (2) In the *first case the defendant 
 L J had sold to the plaintiff an estate, which in 
 fact belonged to him already, but which both parties 
 believed, under a mistake of law, to belong to the 
 defendant. The Master of the Rolls decreed repay- 
 ment of the purchase-money, saying there was a 
 plain mistake. It has been said by Lord Cottenham, 
 that if it were necessary to consider the principle of 
 that decree it might not be easy to distinguish the 
 
 (w) Attwood V. , 1 Kuss. 353 ; 5 Euss, 147 ; Leonard v. 
 
 Leonard, 2 Ball & B. 171 ; Stewart v. Stewart, 6 CI. & F. 911. 
 (x) Bilbie v. Lumley, 2 East, 469. {y) 1 Ves. 8, 126. 
 
 \z) Moseley, 364; 2 Jac. & "W. 205. 
 
 ' See Ray & Thornton v. Bk. of Kentucky, 3 B. Monr. 510. 
 
 ^ See note to p. 170. See also the case of Underwood v. 
 Brockman, 4 Dana, 809 ; and Vol. 23 of the- American Jurist, 
 pages 143-371, where the authorities are collected and compared 
 upon this point. 
 
OF RESCISSION AND CANCELLATION. 371 
 
 case from any other purchase in which the vendor 
 turns out to have no title. In both there is a mis- 
 take, and the effect in both is that the vendor 
 receives, and the purchaser pays money without the 
 intended equivalent, (a) In the second case one of 
 four brothers died, his next brother and the son of 
 his elder brother had a controversy which was heir, 
 and were advised by the village schoolmaster that 
 the former had the right, because lands could not 
 ascend. He recommended, them, however, to take 
 further advice, but the nephew afterwards told him 
 that he would agree to share the land with his uncle, 
 let it be whose right it would, and thereby prevent 
 all disputes and lawsuits. The land was accordingly 
 divided, and a conveyance made. But the arrange- 
 ment was afterwards set aside at the nephew's suit, 
 the Court saying that the maxim "ignorantia juris 
 neminem excusat" meant only that ignorance cannot 
 be pleaded in excuse of crimes, and did not hold in 
 civil cases. Lord Cottenham has observed of this 
 case that it was a very strong one of setting aside a 
 compromise, but that it is impossible to ascertain 
 the real facts, and that the restriction of the maxim 
 to criminal cases is not recognised by modern deci- 
 sions, (a) It is said, too, that if a party acting in 
 ignorance of a plain and settled principle of law is 
 induced to give up a portion of his undisputable pro- 
 perty to another, under the name of a compromise, 
 he shall be relieved from the effect of his mistake, (b) 
 
 (a) 6 CI. & F. 968. 
 
 (6) Naylor v. Winch, 1 S. & S. 555, 564; See also Stockley v. 
 Stockley, 1 Ves. & B. 31 ; Saunders v. Lord Annesley, 2 Sch. & 
 -L. 73, 101. 
 
372 Adams's doctrine of equity. 
 
 Subject, however, to any exception which may exist 
 on this ground, it seems now to be clearly established 
 that in *equity as well as at law, a mere mis- 
 •- -I take ©f law, where there is no fraud or trust, 
 and no mistake of fact, is immaterial, (c?) 
 
 The remedy which the Court affords on a void 
 transaction is the replacement of the parties in statu 
 quo. If, for example, a bill be filed by the obligor 
 of an usurious bond to be relieved against it, the 
 Court, in a proper case, will cancel the bond, but 
 only on his refunding the money advanced. The 
 equity is to have the entire transaction rescinded ; 
 and if the obligor will have equity, he must also do 
 equity. The Court will remit both parties to their 
 original positions, and will not relieve the obligor 
 from his liability, leaving him the fruits of the trans- 
 action of which he complains, (e) If, again, a decree 
 be asked for the cancellation of an invalid annuity 
 deed, it must be on the terms of having an account 
 taken of all receipts and payments on either side, 
 and payment made of the balance. (/) It has been 
 already stated, in accordance with the same jtrin- 
 ciple, that a purchase from an expectant heir or 
 reversioner will not be set aside absolutely, but will 
 be ordered to stand as a security for the amount 
 paid. And therefore, if the party complaining has 
 done any act, when relieved from his necessities, by 
 which the rights of the other are affected, so that he 
 
 (d) Cholmondeley v. Clinton, 2 Bleriv. 171, 233, 328 ; Stewart 
 V. Stewart, 6 CI. & F. 911 ; Denys v. Struckburgh, 4 Y. & C. 42 ; 
 1 Story on Equity, s. 116-132. 
 
 (e) Hanson v. Keating, 4 Hare, 1-6. 
 (/) Byne v. Vivian, 5 Ves. 604. 
 
OF RESCISSION AND CANCELLATION. 373 
 
 cannot be replaced in statu quo, he cannot afterwards 
 repudiate the contract, (g') 
 
 In addition to the jurisdiction for setting aside 
 contracts on the ground of a mistake by the parties, 
 there is a jurisdiction to set aside awards on the 
 ground of miscarriage in the arbitrators, where the 
 fact of such miscarriage does not appear on the 
 award, and cannot, therefore, be made a ground for 
 impeaching it at law. 
 
 A dispute may be referred to arbitration in three 
 ways :' 1. The reference may be by mere agreement 
 of the parties, unaided by the direction *ofp^-|Qp-i 
 any Court ; 2. It may be by a rule of Court, 
 made by consent in action actually depending ; and 
 3. It may be by agreement to refer existing disputes, 
 which might be the subject of a personal action or 
 suit in equity, but with respect to which no pro- 
 ceedings are actually depending. In those cases, 
 where the submission is by mere agreement, it is 
 revocable by either party until the award is made, 
 at the peril of an action for breach of contract ; but 
 when the agreement has been made a rule of Court, 
 under the provisions of 9 and 10 "Wm. 3, c. 15, it is 
 now by statute declared irrevocable, unless by leave 
 of the court or of one of its judges. (A) 
 
 After the award has been made, the power of 
 revocation is at an end f and the award may be en- 
 forced by either party, either by action on the 
 
 (g) King V. Hamlet, 2 M. & K. 456 ; 3 CI. & F. 218. 
 (A) 3 & 4 Wm. 4, c. 42, s. 39. 
 
 ' The subject of arbitration is regulated in most of the States, as 
 in Pennsylvania, by special statute. 
 
 => See Tobey v. County of Bristol, 3 Story, 800. 
 
374 Adams's doctrine of equity. 
 
 award or on the contract to refer, (*) or in a proper 
 case by suit in equity for specific performance, ijc) or, 
 if it has been made a rule of Court, by an attach- 
 ment for contempt. 
 
 In order to resist the enforcement of the award, it 
 is necessary that its validity be impeached. It is 
 not sufficient for this purpose to contend, or even to 
 prove, that it is unreasonable or unjust ; for the rea- 
 son and justice of the case are the very points re- 
 ferred to the arbitrators, and on which their decision 
 must be conclusive. But if any fraud or partiality 
 be shown, it will palpably vitiate the award.^ And, 
 
 (i) 'Warburton v. Storr, 4 B. & C. 103. 
 
 Qi) Hall V. Hardy, 3 P. Wms. 187; "Wood v. Griffith, 1 Sw. 
 43-54. 
 
 ' See Schenck's Admr. v. Cattrell, 1 Green Ch. 297 ; Herrick v. 
 Blair, 1 JohB. C. E. 101; Shermer v. Beale, 1 Wasb. 11; 
 Pleasants et al. v. Ross, 1 Wash. 156; Van Cortland v. Under- 
 bill, 17 Jobn. 405; Head v. Muir, 3 Rand. 122; Hardeman v. 
 Burge, 10 Yerg. 202. 
 
 A mistake in law must be a plain one, and upon a material 
 point affecting tbe case, Schenck's Admr. v. Cattrell, ubi. supra. 
 So an award will be set aside, when it is not final and is indefinite ; 
 Hattier v. Etinaud, 2 Desau. 570 ; and also where it exceeds the 
 submission, the excess will either be set aside, or the award in 
 toto; Taylor's Admr. v. Nicholson, 1 Hen. & Munf. 66; McDaniel 
 V. Bell, 3 Heywood, 264; Gibson et al. v. Broadfoot, 3 Desau. 11. 
 
 A mere mistake of judgment in arbitrators, is not sufficient evi- 
 dence of improper conduct on their part, to justify the setting 
 aside of their award in a court of chancery; Campbell v. Western, 
 3 Paige Ch. 124. When, however, tbe arbitrators heard evidence, 
 without giving the opposite party an opportunity to cross-examine 
 or of being heard, the award was set aside; Sbinnie v. Coil, 1 
 McC. Ch. 478. So, also, when they refused to hear evidence 
 pertinent and material to the controversy ; Van Cortland v. Un- 
 derbill, 17 John. Rep. 405. 
 
OF RESCISSION AND CANCELLATION. 375 
 
 even in the absence of actual misconduct, the same 
 result may follow, if the arbitrators have failed in 
 performance of their duty ; e. g., if they have not de- 
 clared their decision with certainty ; if their award 
 be not final on all points referred ; if it exceed the 
 authority given ; if they have acted on a mistake of 
 law, when the law itself is not referred, but the 
 reference was to decide on facts according to law ; (?) 
 or if they have acted on a mistake as to a material 
 fact, admitted by themselves to have been made and 
 to have influenced their judgment. But un- p^,Qgn 
 less *they voluntarily make the admission, ■- -I 
 they cannot be compelled to disclose the grounds of 
 their judgment, (m) 
 
 If any of these objections appear on the face of 
 the award, they invalidate it, and preclude its en- 
 forcement at law ; and if there be actual fraud, it 
 may be pleaded in avoidance at law. If there be 
 mere miscarriage, not apparent on the face of the 
 award, it cannot be pleaded in avoidance at law, but 
 must be made available by an independent applica- 
 tion to set aside the award, (^z) And where the sub- 
 mission rests on mere agreement, and is not a rule of 
 any Court, the jurisdiction for this purpose is exclu- 
 sive in equity, (o) If the submission is by rule at 
 nisi prius, the jurisdiction is concurrent in law and 
 equity. For the Court of law which directed the 
 
 Q) Young V. Walker, 9 Ves. 364 ; Steffe v. Andrews, 2 
 Mad. 6. 
 
 (m) Knox v. Symmonds, 1 Ves. J. 369 ; Anon. 8 Atk. 644. 
 
 (n) Braddick v. Thompson, 8 East, 344; Pedley v. Goddard, 7 
 T. K. 73. 
 
 (o) Goodman v. Sayers, 2 J. & W. 249. 
 
376 ADAMS'S" DOOTEINE OF EQUITY. 
 
 reference retains a superintending power, and the 
 Court of Chancery has its ancient jurisdiction over 
 the parties to the action, of which the reference is 
 merely a modified continuance, (p) In the third 
 class, where a submission by agreement, not made 
 in any cause, has been made a rule of Court under 
 the statute, the jurisdiction is exclusive in the Court 
 of which the submission has been made a rule. For 
 it is expressly enacted, that the Court of which it is 
 made a rule may set aside the award, if procured by 
 corruption or any undue means (which has been 
 held to include mistake), if complaint be made before 
 the last day of the next term after its publication, 
 and that no other Court, either of law or of equity, 
 shall interfere. 
 
 (ji) NicHols V. Chalie, 14 Ves. 265. 
 
OF INJUNCTIOK, ETC. 377 
 
 *CHAPTER VI. [*194] 
 
 OF INJUNCTION AGAINST PROCEEDINGS AT LAW. — BILLS OP 
 PEACE. — INTEEPLBADBR. — INJUNCTION AGAINST TORT. 
 
 It has been already observed, in treating of the 
 equity for rescission, that it is effectuated, not only 
 by cancellation of an instrument or by reconveyance 
 of property, but by injunction against suing at law 
 on a vitiated contract, or against taking other steps 
 to complete an incipient wrong. The right to in- 
 junctive relief is not confined to the equity for re- 
 scission, but extends to all cases where civil pro- 
 ceedings have been commenced before the ordinary 
 tribunals in respect of a dispute which involves an 
 equitable element, or where any act is commenced 
 or threatened, by which an equity would be in- 
 fringed. The restraint may be imposed either by a 
 final decree, forbidding the act in perpetuum, on es- 
 tablishment of the adverse right, or by interlocutory 
 writ, forbidding it pro tempore whilst the right is in 
 litigation. 
 
 The injunction against proceedings in another 
 Court is an auxiliary decree or writ, made or issued 
 to restrain parties from litigation before the ordinary 
 tribunals, where equitable elements are involved in 
 the dispute; as, for example, to restrain an ejectment 
 by a trustee against his cestui que trust, or by a 
 
378 Adams's doctrine or eqititt. 
 
 vendor, bound to specific performance, against the 
 purchaser.' The ground for imposing this restraint 
 is, that the ordinary tribunals cannot adjudicate on 
 an equity; and they would decide, therefore, on a 
 part only, and not on the whole, of the dispute. The 
 P^IQK-] *existence, however, of such an equitable 
 element, or the pendency of a suit respecting 
 it, is not recognised by those tribunals as a bar to 
 their own procedure ; but the bar must be made ef- 
 fectual by an injunction out of Chancery, which 
 does not operate as a prohibition to the ordinary 
 Court, but restrains the plaintiff personally from 
 further steps, (a) 
 
 The proceedings to which this injunction most 
 commonly applies are those before the common law 
 Courts. The interlocutory writ is obtainable as of 
 course within a very limited period after the com- 
 mencement of a suit, so as to restrain proceedings at 
 
 (a) Sheffield v. Duchess of Buckinghamshire, 1 Atk. 628 ; Lord 
 Portarlington v. Soulby, 3 M. & K. 104, 107. 
 
 ' In further illustration of the cases in which the writ will be 
 granted to restrain proceedings at law before judgment, see Hine 
 V. Hay, 1 Johns. C. E. 6; Dale v. Eoosevelt, 5 Johns. C. R. 174 j 
 Matter of Merritt, 5 Paige, 125; Miller t. M'Can, 7 Paige, 
 457; Delafield v. State of Illinois, 26 "Wend. 192; Beaty 
 V. Beaty, 2 Johns. C. R. 430 ; Denton v. Graves, Hopkins' R. 
 306 ; Bulows v. Committee of O'Neal, 4 Desau. 394. 
 
 For instances of the Court's refusal, on the other hand, to grant 
 an injunction to restrain proceedings before judgment, see Peck 
 V. Woodbridge, 3 Day, 508; Mitchell v. Oakley, 7 Paige, 
 68 ; Perrine v. Stryker, 7 Paige, 598 ; Tone v. Brace, 8 Paige, 
 597; Glenn v. Fowler, 8 Gill. & J. 340; Caldwell v. Williams, 
 1 Bailey C. R. 175 ; Maetier v. Lawrence, 7 Johns. C. R. 206. 
 
OF INJUNCTION, ETC. 379 
 
 law, until the defendant in equity has answered the 
 bill, and has thus enabled the' Court to judge of 
 their propriety. In order to prevent its issue, he 
 must appear within four days after the subpoena has 
 been served, and answer within eight days after his 
 appearance. This writ is termed the common in- 
 junction.^ The extent of its operation depends on 
 the stage which the proceedings at law have reached. 
 If it be obtained before a declaration is delivered it 
 stays all the proceedings at law. If afterwards, it 
 only restrains execution and leaves the plaintiff at 
 liberty to proceed to judgment. But if the plaintiff 
 in equity make affidavit that he believes the answer 
 will afford discovery material to his defence at law, 
 he may obtain by another motion an order extending 
 it to stay trial. If the defendant is diligent enough 
 to prevent the common injunction from issuing, by 
 filing a sufficient answer within the time allowed, the 
 only way to obtain the injunction is by moving spe- 
 cially on the admissions in the answer. If the pro- 
 ceedings at law have been commenced under such 
 circumstances that the plaintiff in equity has no op- 
 portunity of obtaining the common injunction, a 
 special injunction may sometimes be obtained on 
 affidavit under very special circumstances before 
 answer, (b) 
 
 (b) Drummond v. Pigou, 2 M. & K. 168 ; Baily v. Weston, 7 
 Sim. 666. 
 
 ' In this country, the distinction between the common and 
 special injunction, in one sense', does not exist ; inasmuch as no 
 injunctions issue of course, but all are granted on the merits, and 
 specially allowed by the Court, or an oflScer to whom the power of 
 the Court, for that purpose, is delegated; see Buckley v. Corse, 
 Saxton, 504 ; Hoffman's Ch. Prao. 78. 
 
380 Adams's doctrine of equity. 
 
 r*1 Qfil *'^^ ^'^^^ ^^ *^® defendant has put in a full 
 answer he may move to dissolve the injunc- 
 tion. And it is then a question for the discretion 
 
 * It is an almost universal practice to dissolve the injunction, 
 ■where the answer fully denies all the circumstances upon which 
 the equity of the bill is founded ; and likewise to refuse the writ, 
 if application is made after the coming in of such answer ; Hoffman 
 V. Livingston, 1 Johns. C. E. 211; M'Farland v. M'Dowell, 1 Car. 
 Law Kep. 110; Cowles v. Carter, 4 Ired. Eq. R. 105; Livingston 
 V. Livingston, 4 Paige C. R. Ill ; Gibson v. Tilton, 1 Bland C. 
 R. 355; Perkins v. Hollowell, 5 Ired. Eq. 24; Williams v. 
 Berry, 3 Stew. & Port. R. 284; Green v. Phillips, 6 Ired. Eq. 
 223; Wakeman v. Gillespy, 5 Paige, 112; Stoutenburg v. 
 Peck, 8 Green Ch. 446; Hollister v. Barkley, 9 N. H. 230; 
 Eldred v. Camp, Harring. C. R. 162. But there is no in- 
 flexible rule to this effect; the granting and continuing an injunc- 
 tion must always rest in the sound discretion of the Court, to be 
 governed by the nature of the case ; Roberts v. Anderson, 2 Johns. 
 C. R. 204 ; Poor V. Carleton, 3 Sumner. 70 ; Bank of Monroe v. 
 Schermerhorn, 1 Clarke, 303. 
 
 Where the defendant in his answer admits, or does not deny 
 the equity of the bill, but sets up new matter of defence, on which 
 he relies, the injunction will be continued to the hearing; Minturn 
 V. Seymour, 4 Johns. C. R. 497 ; Lindsay v. Etheridge, 1 Dev. & 
 Batt. Eq. 38 ; Hntohins v. Hope, 12 Gill. & J. 244 ; Lyrely 
 v. Wheeler, 3 Ired. Eq. 170 ; Nelson v. Owen, id. 175. 
 
 It is a general rule, that an injunction will not be dissolved, on 
 answer, until the answers of all the defendants are put in ; but 
 there are many exceptions : e. g., it will be considered unnecessary, 
 if those who have not answered are merely formal parties; Higgins 
 V. Woodward, Hopkins' C. R. 342. So it may be dissolved upon 
 the answer of one or more defendants within whose knowledge the 
 facts charged especially or exclusively lie, although other defen- 
 dants have not answered ; Dunlap v. Clements, 7 Ala. R. 539 ; 
 Coleman v. Gage, 1 Clarke R. 295 ; Ashe v. Hale, 5 Ired. Eq. 
 55. So also where that defendant against whom the gravamen of 
 the charge rests, has fully answered ; Depeyster v. Graves, 2 
 Johns. C. R. 148; Noble v. Wilson, 1 Paige, 164; Stouten- 
 
OF INJUNCTION, ETC. 381 
 
 of the Court, whether on the facts disclosed by the 
 answer, or, as it is technically termed, on the equity 
 confessed, the injunction shall be at once dissolved, 
 or whether it shall be continued to the hearing. The 
 general principle of decision is, that if the answer 
 shows the existence of an equitable question, such 
 question shall be preserved intact until the hearing. 
 But the particular mode of doing this is matter of 
 discretion. 
 
 If the plaintiff is willing to admit the demand at 
 
 burg V. Peck, 3 Grreen Ch. 446; Vliet v. Lowmason, 1 Green 
 Oh. 404; Price v. Clevenger, 2 Green Ch. 207. See also 
 Goodwin V. State Bank, 4 Desau. R. 289. And this, too, where 
 all the defendants are implicated in the same charge, and the 
 answer of all can and ought to come in, but the plaintiff has not 
 taken the requisite steps, with reasonable diligence, to expedite 
 his cause; Depeyster v. Graves, ubi. supra. See also Bond v. Hend- 
 ricks, 1 A. K. Marsh. 594. The injunction cannot be dis- 
 solved, if the answer be evasive and apparently deficient in frank- 
 ness, candour, or precision ; Little v. Marsh, 2 Ired. Eq. 18 ; 
 Williams v. Hall, 1 Bland C. R. 195. Nor if it be contradictory ; 
 Long v. Oliver, id. 199. Nor if there be extreme improbability 
 in its allegations; Moore v. Hylton, 1 Dev. Eq. 429. Nor if 
 it be merely upon information and belief; Ward v. Van Bokke- 
 len, 1 Paige, 100 ; Apthorpe v. Comstock, Hopkins' R. 143 ; 
 Poor V. Carleton, 3 Sumner, 70. And, moreover, where the 
 equity of an injunction is not charged to be in the knowledge of 
 the defendant, and the defendant merely denies all knowledge and 
 belief of the facts alleged therein, the injunction will not be dis- 
 solved, on the bill and answer alone ; Rodgers v. Rodgers, 1 Paige, 
 426; Quackenbush v. Van Riper, Saxton R. 476; Everly v. 
 Rice, 3 Green Ch. 553. 
 
 Upon an application to dissolve an injunction on bill and answer, 
 the defendant's answer is entitled to the same credit as the com- 
 plainant's bill. It, therefore, makes no difference on such an 
 application that the bill is supported by the oaths of several com- 
 plainants ; Manchester v. Dey, 6 Paige, 295. 
 
382 ADAMS'S DOCTRINE OF EQUITY. 
 
 law, and to give judgment in the action, but is unwill- 
 ing to pay money to the defendant, which, if once 
 paid, it might be diflficult to recover, he may have 
 the injunction continued on payment of the money 
 into Court. If he is desirous to try his liability at 
 law, the injunction will be dissolved with liberty to 
 apply again for a verdict ; but unless the defendant's 
 right at law be admitted, he will not be restrained 
 from trying it, except where it is obvious from his 
 own answer that the relief sought must ultimately 
 be decreed. Where the question has been already 
 tried at law, and judgment obtained by the plaintiff 
 there, he will be restrained from issuing execution, 
 if it appear that there is an equitable question (c) to 
 be decided before the matter can be safely disposed 
 of If at the hearing the decision is with the plaintiff 
 in equity, the injunction is made perpetual. 
 
 The right to grant this injunction after judgment, 
 was at one time the subject of a violent contest. It 
 was alleged by the common law judges, that after 
 judgment there was no power in Chancery to enjoin 
 against execution. And it was said, that if after 
 judgment, the Chancellor grant an injunction and 
 commit the plaintiff at law to the Fleet, the Court 
 of King's Bench will discharge him by habeas corpus. 
 In the reign of Henry 8, the assertion of this juris- 
 r*iQ7-] diction *was one of the articles of impeach- 
 ment against Cardinal Wolsey. The same 
 opposition was continued against Wolsey's successor, 
 Sir Thomas More. And in the reign of James 1, 
 
 (c) Playfair v. Thames Junction Railway Company, 9 Law 
 Jour. N. S. 253; 1 Railway Cases, 640; Barnard v. Wallis, 
 Cr. & P. 85; Bentick v. Willink, 2 Hare, 1. 
 
OF INJUNCTION, ETC. 383 
 
 under the Chancellorship of Lord Ellesmere, a vehe- 
 ment discussion took place on the subject, in which 
 Lord Coke came forward as the chief opponent of the 
 jurisdiction. The question at last was brought before 
 the King, and was decided by him in favour of the 
 jurisdiction. ((?) The exercise of the jurisdiction is 
 not frequent, for it is seldom that a plaintiff in equity 
 delays his application until judgment has been ob- 
 tained at law ; and where such delay takes place, it 
 is itself a ground for refusing aid, unless the reasons 
 for requiring it were not, and could not by reasona- 
 ble diligence have been discovered before the trial. 
 The rule on this subject appears to be as follows : 
 First; that if, after judgment, additional circum- 
 stances are discovered or cognizable at law, but con- 
 verting the controversy into matter of equitable 
 jurisdiction, the Court of Chancery will interpose. 
 Secondly; that even though the circumstances so 
 discovered would have been cognizable at law, if 
 known in time, yet if their non-discovery has been 
 caused by fraudulent concealment, the fraud will 
 warrant an injunction. But, thirdly, that if the 
 newly discovered facts would have been cognizable 
 at law, and there has been no fraudulent conceal- 
 ment, the mere fact of their late discovery will not 
 of itself create an equity ; although if a bill of dis- 
 covery has been filed in due time, the proceedings at 
 law might have been stayed until the discovery was 
 obtained. And still less can any equity arise, if the 
 facts were known at the time of the trial, and the 
 grievance complained of has been caused either by a 
 
 (d) Note on Crowley's case, 2 Sw. 22, n. 
 
384 ADAMS'S DOCTRINE OF EQUITY. 
 
 mistake in pleading or other mismanagement, or by 
 a supposed error in the judgment of the Court, (e)^ 
 
 The jurisdiction to enjoin against proceeding in 
 r*-i QC1 other Courts is not limited *to proceedings in 
 the Courts of law, although it is more usually 
 exerted with reference to them. But it is equallj^ 
 applicable to proceedings in the Ecclesiastical and 
 Admiralty Courts, in the. Colonial Court, and even 
 in the Courts of foreign and independent countries, 
 
 (e) Bateman v. Willoe, 1 Sch. & L. 201 ; Harrison v. Nettle- 
 ship, 2 M. & K. 423; Taylor v. Shephard, 1 Y. & C. 271. 
 
 * Any fact which clearly proves it to be against conscience to 
 execute a judgment at law, and of which the injured party could 
 not have availed himself in a court of law ; or of which he might 
 have availed himself, but was prevented by fraud or accident, un- 
 mixed with any fault or negligence in himself or his agents, will 
 authorize a court of equity to interfere by injunction ; Marine Ins. 
 Co. V. Hodgson, 7 Cranoh, 332. Especially in case of fraud, 
 Lee V. Baird, 4 Hen. & Munf. 453 ; Weirich v. De Zoya, 2 
 Grilman, 385 ; Powers v. Butler, 3 Green Ch. 465 ; Emerson v. 
 Udall, 13 Verm. 477. But not where there has been negli- 
 gence on the part of the complainant, in availing himself of a de- 
 fence at law, or other neglect ; see Truly v. Wanzer, 5 How. U. 
 S. R. 141 ; Essex v. Berry, 2 Verm. 161 ; Williams v. Lock- 
 wood, 1 Clark. R. 172 ; Southgate v. Montgomery, 1 Paige, C. R. 
 41 ; Stanard v. Rogers, 4 Hen. & Munf. 438 ; Farmers' Bank 
 V. Vanmeter, 4 Rand. R. 553; Brickellv. Jones, 2 Hay. R. 357; 
 Pentriss v. Robins, N. C. Term R. 177 ; Cullum v. Casey, 1 Ala. 
 N. S. 351 ; Haughy v. Strang, 2 Port. R. 177 ; Mock v. Cundiff, 
 6 Porter R. 24 ; Lucas v. Bank of Darien, 2 Stew. 280 ; Tho- 
 mas v. Phillips, 4 S.&M. Ch. 358. Nor where the only ground 
 is discovery, which might have been sought and obtained before 
 the judgment; Lansing v. Eddy, 1 John. Ch. R. 49; Brown v. 
 Swann, 10 Pet. 497; Thompson v. Berry, 3 Johns. C. R. 395; 
 Bartholomew v. Yaw, 9 Paige, 165; M'Grew v. Tombeckbee 
 Bank, 5 Porter, 547. 
 
OF INJUNCTION, ETC. 385 
 
 where the parties are personally within the jurisdic- 
 tion, and are attempting to proceed elsewhere in re- 
 spect of part of a transaction, the whole of which can 
 be investigated by the Court of Chancery alone. (/)' 
 The injunction, however, in these cases, is not ob- 
 tained as of course on the defendant's default, but 
 must be the subject of a special application to the 
 Court, (g') Injunctions have also been granted on 
 special equities, to restrain parties from filing affida- 
 vits of debt, with the intent of issuing a fraudulent 
 fiat of bankruptcy. (A) And it has been argued, that 
 there is an equity to restrain assignees from making 
 a dividend, during the pendency of a suit for an 
 equitable claim. But it is decided that no such 
 equity exists, and that the administration of a bank- 
 rupt's property, when once it is determined what the 
 property is, falls wholly within the province of the 
 Court of Bankruptcy . (i) 
 
 If the Court in which the proceedings complained 
 of have been taken, is itself a Court of equitable 
 jurisdiction, and competent to adjudicate on the 
 whole matter, an injunction cannot be obtained, un- 
 
 (/) Duncan v. M'Calmont, 3 Bea. 409 ; Glascott v. Lang, 3 M. 
 & C. 451 ; Bunbury v. Bunbury, 1 Bea. 318. 
 
 {g) Anon. 1 P. Wms. 301 ; Macnamara v. Maonamara, 1 Dick. 
 223. 
 
 Qi) Attwood V. Banks, 2 Bea. 192 ; Perry v. Walker, 1 N. C. 
 C. 672. 
 
 (i) Halford v. Gillow, 13 Sim. 44 ; Thompson v. Derham, 1 
 Hare, 358. 
 
 ' A court of chancery will not, by injunction, restrain a suit or 
 proceeding previously commenced in a court of a sister State, or 
 in any of the federal courts ; Mead v. Peck, 2 Paige, 402 ; Bur- 
 gess V. Smith, 2 Barb. C. R. 276. 
 
 25 
 
386 ADAMS'S DOCTRINE OF EQUITY. 
 
 less the suitor, against whom it is asked, has been 
 previously bound by a decree of the Court of Chan- 
 cery, or has voluntarily submitted to the jurisdiction 
 of that Court. (/<;) 
 
 In addition to the injunctive jurisdiction in regu- 
 lar suits, there is a similar authority exercised in a 
 summary way, where proceedings have been taken 
 in another Court, against or by officers of the Court 
 r*i QQl ^^ *Chancery, in respect of claims arising out 
 of their official acts. In this, as well as the 
 former cases, the principle on which the Court pro- 
 ceeds is that of giving efficacy to its own authority 
 by rejecting foreign interference. If its processes are 
 improperly or irregularly issued, that is a matter to 
 be dealt with by itself alone ; and if redress be sought 
 elsewhere, an injunction will lie. If, in acting under 
 a regular authority, its officers misconduct them- 
 selves, that is a matter which may, at the discretion 
 of the Court, be either left to the ordinary tribunals, 
 or examined by itself. But the latter course is gene- 
 rally adopted, and the parties are enjoined from 
 having recourse to law. (Z) The officers of the Court 
 may, e converso, be restrained at law in respect of 
 claims arising to them in their official capacity, (m) 
 
 The relief by injunction against proceedings at law 
 
 (/c) Jackson v. Leaf, 1 J. & W. 229 ; Harrison v. Gurney, 2 J. 
 & W. 563 ; Boulter v. Boulter, 2 Bea. 196, n. ; Infra, Adminis- 
 tration. 
 
 (?) Frowd V. Lawrence, IJ. & W. 655 ; Philips v. Worth, 2 R. 
 & M. 638 ; Aston v. Heron, 2 M. & K. 390; Charlie v. Picker- 
 ing, 1 K. 749 ; Empringham v. Short, 3 Hare, 461 ; Evelyn v. 
 Lewis, 3 Hare, 472 ; Barley v. Nicholson, 1 Conn. & L. 207. 
 
 (m) Re Weaver, 2 M. & C. 441 ; Blundell v. Gladstone, 9 Sim. 
 455; Ambrose v. Dunmow Union, 8 Bea. 43. 
 
OF BILLS OF PEACE. 387 
 
 is also applied under a distinct equity on bills of peace 
 and bills of interpleader. 
 
 A bill of peace is a bill filed for securing an esta- 
 blished legal title against the vexatious recurrence of 
 litigation, whether by a numerous class insisting on 
 the same right, or by an individual reiterating an 
 unsuccessful claim. The equity is, that if the right 
 be established at law, it is entitled to adequate pro- 
 tection. 
 
 Bills of peace of the first class are those where the 
 same right is claimed by or against a numerous body ; 
 as, for example, where a parson claims tithes against 
 his parishioners, or the parishioners allege a modus 
 against the parson ; where the lord of a manor claims 
 a right against the tenants or the tenants claim a com- 
 mon right against the lord ; or where the owner of an 
 ancient mill claims service to his mill from all the 
 tenants of a *particular district. In all these r*oAA-i 
 cases, the only form of procedure at common 
 law would be that of a separate action by or against 
 each parishioner or tenant, which would only be bind- 
 ing as between the immediate parties, and would leave 
 the general right still open to litigation. In order to 
 remedy this evil, a suit may be sustained in the Court 
 of Chancery in which all parties may be joined, 
 either individually or as represented by an adequate 
 number. If any question of right be really in dis- 
 pute, it will be referred to the decision of a court of 
 law ; and when the general right has been fairly as- 
 certained, an injunction will be granted against fur- 
 ther litigation, (re) If particular individuals have 
 
 (n) Mitf. 145, 146 ; How v. Bromsgrove, 1 Vern. 22 ; Ten- 
 hem V. Herbert, 2 Atk. 483. 
 
388 Adams's doctrine of equity. 
 
 special grounds of claim, those claims will be left 
 untouched. 
 
 In order to originate this jurisdiction, it is essen- 
 tial that there be a single claim of right in all, 
 arising out of some privity or relationship with the 
 plaintiff. 
 
 A bill of peace, therefore, will not lie against inde- 
 pendent trespassers, having no common claim and 
 no appearance of a common claim, to distinguish 
 them from the rest of the community; as, for example, 
 against several booksellers who have infringed a copy- 
 right, or against several persons who, at different 
 times, have obstructed a ferry. For if a bill of peace 
 could be sustained in such a case, the injunction would 
 be against all the people of the kingdom, (o)' 
 
 There are two cases which constitute apparent 
 exceptions to this rule, which are known respectively 
 as the " Case of the Duties," and the " Case of the 
 Fisheries." (p) 
 
 In the first of these cases the claim was for a duty 
 on all imported cheese. And the case has been 
 
 (o) Mitf. 147, 148 ; DiUy t. Doig, 2 Ves. J. 486. 
 
 (p) City of London v. Perkins, 3 B. P. C. by Toml., 60:2 ; 
 Mayor of York v. Pilkington, 1 Atk. 282 ; Story on Pleading, s. 
 124, 125. 
 
 ' Where a bill is filed for the purpose of preventing a multipli- 
 city of suits at law, and to have the title to land finally settled in 
 one suit, under the direction of the Chancellor, it seems that the 
 bill will be sustained, though there has been but one trial at law. 
 Trustees of Huntington v. Nicoll, 3 Johns. 566. 
 
 Injunctions are granted to prevent trespasses where the mischief 
 would be irreparable, and to prevent a multiplicity of suits. Li- 
 vingston V. Livingston, 6 John Ch. E. 497. 
 
OF BILLS OF PEACE. 389 
 
 sometimes treated as if the City of London had filed 
 a bill, in the nature of a bill of peace, against several 
 importers, claiming to have *the duties per- p^j-nrv-i-i 
 manently established. From the report, 
 however, that does not appear to have been the case. 
 It appears that the corporation filed distinct bills 
 against several importers ; first against A., then 
 against B., and then the bill in question against C. 
 Decrees being obtained against A. and B., they 
 claimed a right not to enforce those decrees against 
 C, but to give in evidence the depositions on which 
 they had been founded ; alleging, however, at the same 
 time, that, even without those depositions, they had, 
 in the suit against C. himself, given other proof suf- 
 ficient to establish their right. The decree decides, 
 that the right was established against C. ; but the 
 reasons for the decision are not reported ; and it does 
 not appear whether any weight was in fact given to 
 the previous suits. The case, therefore, appears to 
 be no authority for the doctrine, that a number of 
 defendants, who were severally liable to the duties, 
 might have been united in a bill of peace. 
 
 In the second case, the plaintiff" claimed a fishery 
 in the river Ouse ; and filed a bill of peace against 
 several trespassers. Lord Hardwicke's first impres- 
 sion was against the bill ; but he ultimately allowed 
 it ; partly on the authority of the City of London v. 
 Perkins, and partly because the defendants were in 
 fact distinguished from the community at large, as 
 being owners of adjacent grounds, and as claiming 
 fisheries in that character. The first of these grounds, 
 as I have already suggested, is hardly warranted by 
 the report of that case. The second ground appears 
 
390 Adams's dooteine of equity. 
 
 to be that on which Lord Hardwicke mainly relied, 
 and is consistent with the terms in which the case 
 was spoken of by Lord Eldon.(g') 
 
 Bills of peace of the second class are those where 
 a right claimed by an individual is indefinitely liti- 
 gated by him without success. The necessity for 
 bills of this class originates *in the nature of 
 L "' -1 the action of ejectment, which is based on a 
 fictitious dispute between fictitious parties, so that 
 the rights of the real litigants are only indirectly 
 tried. The consequence of this is, that the result 
 of the action is not conclusive, but that fresh actions 
 may be repeatedly brought, and the successful party 
 harassed by indefinite litigation. In order to remedy 
 this oppression, a jurisdiction has been assumed by 
 the Court of Chancery; and a bill will lie, after 
 repeated trials at law and satisfactory verdicts, to 
 have an injunction against further litigation. The 
 right to this jurisdiction was formerly much ques- 
 tioned. Lord Cowper, in a celebrated case, where 
 the title to land had been five times tried in eject- 
 ment, and five uniform verdicts given, refused to 
 exercise it ; but his decision was overruled by the 
 House of Lords, (r) 
 
 A bill of interpleader 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 
 
 (q) City of London v. Perkins, 3 B. P. C. 602 ; Mayor of York 
 V. Pilkington, 1 Atk. 282 ; Weale v. "West Middlesex Waterworks, 
 IJ. & W. 356, 369. 
 
 (r) Earl of Bath v. Sherwin, Preo. Ch. 261 ; S. C. 4 B. P. C. 
 by Toml. 373 ; Mitf. 143, 144. 
 
OP BILLS OF INTERPLEADER. 391 
 
 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 in- 
 volving the stakeholder in their dispute.^ 
 
 The principle on which the jurisdiction is based, 
 — that of protecting a mere stakeholder between con- 
 flicting claimants, — was always recognised at com- 
 mon law, and was applied where a chattel had come 
 to a man's possession by accident, or by bailment from 
 both claimants jointly, or from those under whom 
 both made title. 
 
 The technical forms of pleading at law excluded 
 the application of this principle, except where the 
 possession had arisen from bailment or accident ; but 
 the principle itself was acknowledged ; and in equity, 
 where those forms did not exist, its operation was 
 extended to all cases where *the same thing, p^„„„-, 
 debt, or duty was the subject of both claims, (s) <- -■ 
 The equity originates in the double claim made on the 
 complainant and the inadequate protection afforded 
 him at law. The fact, therefore, that both the 
 claims are legal, does not preclude the party sued from 
 resorting to equity ; as, for example, when the as- 
 
 (s) Mitf. 141 ; Crawshay v. Thornton, 2 M. & C. 1, 21. 
 
 ' A bill of interpleader, strictly so called, is where the complain- 
 ant claims no relief against either of the defendants, but only 
 asks for leave to pay the money, or deliver the property, to the one 
 to whom it of right belongs, and that he may thereafter be pro- 
 tected from the claims of both. Bedell v. Hoffman, 2 Paige C. R. 
 199. 
 
392 Adams's doctrine of equity. 
 
 signees of a bankrupt and the bankrupt himself, being 
 unable to agree on the validity of the fiat, threaten 
 separate actions against a debtor, (i) The necessity, 
 however, for bills of interpleader, where both the 
 claims are legal, is much diminished, although the 
 jurisdiction is unaffected, by a late statute^ enacting 
 that on the application of a defendant in any action 
 of assumpsit, debt, detinue, or trover, showing that 
 he claims no interest, and that the right is claimed 
 by, or supposed to belong to, some third party, who 
 has sued or is expected to sue, and that the defen- 
 dant does not collude with such third party, but is 
 ready to bring into Court or otherwise dispose of the 
 subject-matter as the Court shall direct, such third 
 party may be ruled to appear, the proceedings in the 
 action may be stayed, and directions may be given 
 for trying the right between the real claimants, (m) 
 
 If one of the claims be equitable, the statute does 
 not apply, and the jurisdiction is in equity alone, (v)' 
 
 It is apparent from the definition already given 
 that, in order to originate the equity of interpleader 
 three things are essential; viz., 1. That the same 
 
 (t) Lowndes v. Cornford, 18 Yes. 299. 
 
 (u) 1 & 2 Wm. 4, c. 58. 
 
 (v) Langton v. Horton, 3 Bea. 464. 
 
 ' A bill of interpleader may be filed, although the claim of one 
 of the claimants is actionable at law, and that of the other in 
 equity. Lozier's Ex'rs v. Van Saun's Adm'rs, 2 Green's Ch. 
 325 ; Yates v. Tisdale, 3 Edw. Ch. 71. 
 
 And where a person is in danger of being doubly vexed by ad- 
 verse claimants, whether by suit commenced, or only threatened, 
 he may file a bill of interpleader. Gibson v. Goldthwaite, 7 Ala. 
 281; Yates v. Tisdale, supra; Richards v. Salter, 6 Johns. C. 
 R. 445. 
 
OP BILLS OF INTERPLEADER. 393 
 
 thing, debt, or duty be claimed by both the parties 
 against whom reHef is asked; 2. That the party 
 seeking relief have incurred no independent liability 
 to either claimant; and 3. That he claim no interest 
 in the matter. 
 
 1. The same thing, debt, or duty must be claimed 
 by both.' 
 
 *If the subject in dispute has a bodily exis- rHconil 
 tence, as in the original cases of interpleader 
 at law, no difficulty can arise on the ground of iden- 
 tity ; but where it is a chose in action, it becomes 
 necessary to determine what constitutes identity. 
 And this is a question attended occasionally with 
 much difficulty, and which, in each case, must be 
 determined by the original nature and constitution 
 of the debt. Where, for example, an auctioneer, by 
 direction of the owner, had sold to two persons suc- 
 cessively, and had received a deposit from each, it 
 was held that the auctioneer could not support a bill 
 of interpleader against the owner and the two pur- 
 chasers ; because, although there was one question 
 in common between the purchasers, viz., which was 
 to be the purchaser of the estate, their claims as 
 against the auctioneer were for two different things, 
 viz., by each for his own deposit. The bill, there- 
 fore, was dismissed as against the second purchaser 
 with costs, and it was decreed that the seller and 
 the first purchaser should interplead as to the first 
 deposit. And again at law where a purchaser of tea 
 was sued by the seller for the price, and was also 
 
 ' See City Bank v. Bangs, 2 Paige C. K. 570 ; Hayes v. John- 
 son, 4 Ala. 267. 
 
394 Adams's doctrine of equity. 
 
 sued in trover by a person who alleged himself to be 
 the real owner, it was held not to be a case of inter- 
 pleader ; for the parties were not seeking the same 
 thing. The one was endeavouring to obtain the 
 price of the goods, the other damages for their con- 
 version, (w) 
 
 2. The party seeking relief must have incurred no 
 independent liability to either claimant. 
 
 In the case, therefore, of a tenant sued by his 
 landlord, or an agent by his principal, a claim ad- 
 verse to the landlord or principal will not warrant a 
 bill of interpleader, unless it originate in his own 
 act, done after the commencement of the tenancy or 
 agency, and creating a doubt who is the true land- 
 lord or principal, to whom the tenancy or agency 
 refers.' In like manner a bill of interpleader will 
 not lie, if the party seeking relief has acknowledged 
 
 r*90'^'l ^ ^^^^® *^^ ^^® of the claimants, and has thus 
 incurred an independent liability to him. If 
 
 (w) Glyn T. Duesbury, 11 Sim. 139 ; Hoggart v. Cutts, Cr. & 
 P. 197 ; Slaney v. Sidney, 14 Mee. & W. 800 ; 15 Law J. Exch. 
 
 72. 
 
 ' A strict bill of interpleader cannot be maintained by a bailee 
 or agent, to settle the conflicting claims of bailor or principal, and 
 a stranger who claims the property by a distinct and independent 
 title. Neither can an attorney maintain such a bill to settle the 
 claim for money which he has collected for his client. Marvin v. 
 Ellwood, 11 Paige 0. R. 365. But, it seems, a bill of interpleader 
 as between principal and agent is admissible, where the claim is 
 under a derivative and not under an adverse title. And, hence, an 
 attorney who has collected money, may file a bill of interpleader 
 in respect of the same, against defendants who set up a derivative 
 claim from the person for whom the attorney undertook the collec- 
 tion ; and this, although he may be entitled to retain a part of it to 
 compensate his services. Gibson v. Goldthwaite, 7 Ala. 281. 
 
OF BILLS OF INTERPLEADER. 395 
 
 misrepresentation was used to obtain that acknow- 
 ledgment, it may create an equity to be released 
 from the liability ; but the right of the party de- 
 ceived to insist on such release is not matter of in- 
 terpleader between the real and apparent owners, (x) 
 
 3. He must claim no interest.' 
 
 It has been held, therefore, that if a deposit is 
 made by a purchaser at an auction, and the auc- 
 tioneer is afterwards sued for the deposit by the 
 purchaser and vendor, he cannot sustain a bill of 
 interpleader against them, if he claims to deduct 
 from his deposit his commission and the duty. (3/) 
 
 If the circumstances be such as to sustain the 
 jurisdiction, the party against whom the double 
 claim is made may, for his own protection, file a bill 
 praying that the claimants may interplead together, 
 and that he may be indemnified ; and on payment 
 into Court of the amount due may obtain an injunc- 
 tion against any proceeding commenced or threatened 
 at law or in equity. The injunction may be obtained 
 ex parte immediately on the bill being filed, and 
 
 (x) Crawshay v. Thornton, 2 M. & C. 1 ; Stuart v. Welch, 4 
 M. & C. 305; Jew v. Wood, Cr. & P. 185. 
 
 (y) Mitchell v. Hayne, 2 S. & S. 63 ; Moore v. Usher, 7 Sim. 
 884 ; Bignold v. Audland, 11 Sim. 24. 
 
 * Anderson v. Wilkinson, 10 Sm. & Mar. 601. Yet it is no ob- 
 jection to a bill of interpleader, that the complainant has an in- 
 terest 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 interpleader, so as to increase his own chance of success, in 
 respect of such other property. This is only an interest in the ques- 
 tion, not in the particular suit. Oppenheim v. Leo Wolf, 3 Sandf. 
 Ch. K. 571; see, also, Gibson v. G-oldthwaite, 7 Ala. 281. 
 
396 ADAMS'S DOCTRINK OF EQUITY. 
 
 stays proceedings both at law and in equity, but it 
 stays them until further order only, and not, like 
 the common injunction, till answer and further 
 order, (z) It is granted only on the terms of pay- 
 ment into Court, in order that it may not be abused 
 to delay payment of a debt under a pretence of 
 doubting to whom it is due. And the order must 
 be so drawn up as to make the payment a condition 
 precedent. But the mere absence of an offer to that 
 effect in the bill is not a ground of demurrer, (a) ' 
 When an answer has been put in by the enjoined 
 r*9nfi1 <J^fe^dant, he may move to dissolve *the in- 
 junction, on notice to the plaintiff and his co- 
 defendant; and if such co-defendant has also an- 
 swered, an order may be made for inquiry" as to the 
 respective titles. But such inquiry cannot be directed 
 whilst either answer is outstanding, because the 
 Court cannot know what claim such answer will 
 make. (&) If the cause is carried to a hearing, a like 
 inquiry or an action will be directed by the decree ; 
 but the more usual practice is to obtain the direction 
 at an earlier stage, (c) The decree, when made, may 
 terminate the suit as to the plaintiff, though the liti- 
 
 (z) Crawford v. Fisher, 10 Sim. 479 ; Moore v. Usher, 7 Sim. 
 383. 
 
 (a) Sieveking v. Behrens, 2 M. & C. 581 ; Pauli v. Von Melk, 
 8 Sim. 327 ; Meux v. Bell, 6 Sim. 175. 
 
 (6) Masterman v. Lewin, 2 Ph. 182. 
 
 (c) Townley v. Dean, 3 Bea. 213, 216 ; Crawford v. Fisher, 1 
 Hare, 436, 441. 
 
 ' Nash V. Smith, 6 Conn. E. 421. And yet the plaintiff ought 
 to offer to bring the money into Court; and an injunction will be 
 allowed only upon compliance with such offer. Shaw v. Chester, 
 2 Edw. C. R. 405 ; see, also, Biggs v. Kouns, 7 Dana, 411. 
 
OP BILLS or INTERPLEADER. 397 
 
 gation may continue between the co-defendants ; and 
 in that case it may proceed without revivor, notwith- 
 standing the plaintiff's death. (cZ) 
 
 The only equity on which the jurisdiction of in- 
 terpleader rests, is the danger of injury to the plain- 
 tiff from the doubtful titles of the defendants. He 
 is required, therefore, to satisfy the Court that this 
 equity exists by annexing to his bill an affidavit 
 that he does not collude with either claimant ; and 
 the want of that affidavit is a ground of demurrer, (e) ' 
 For the same reason he should so conduct his pro- 
 ceedings as not to cause hardship and expense to the 
 litigant parties, beyond what his own protection may 
 require. (/) But he will be entitled to have his 
 costs properly incurred out of the fund in dispute, 
 and the Court will adjudicate on their ultimate pay- 
 ment, as between the co-defendants. (^)^ 
 
 There is also another class of cases, somewhat 
 similar to those of interpleader, originating in the 
 
 (d) Mitf. 60. 
 
 (e) Mitf. 49, 143 ; Bignold v. Audland, 11 Sim. 23. 
 
 (/) Sieveking v. Behrens, 2 M. & C. 581 ; Crawford v. Fisher, 
 1 Hare, 436. 
 
 (g) Cowtan v. Williams, 9 Ves. 107 ; Campbell v. Solomons, 1 
 S. & S. 462 ; Jones v. Gilham, Cowp. 49 ; Fenn v. Edmonds, 5 
 Hare, 314. 
 
 ' Gibson v. Goldthwaite, 7 Ala. E. 281 ; Atkinson v. Mauks, 1 
 Cowen's R. 691 ; Shaw v. Coster, 8 Paige C. R. 339. See also 
 Marvin v. Elwood, 11 Paige C. R. 365. 
 
 " The stakeholder is entitled to costs out of the funds ; Can- 
 field V. Morgan, 1 Hopkins R. 224 ; Aymer v. Gault, 2 Paige 
 C. R. 284. The costs are to be paid, in the first instance, out of 
 the fund, but eventually by the losing party ; Thompson v. Ebbets, 
 1 Hopkins R. 272. 
 
398 ADAMS'S DOCTRINE OF EQUITY. 
 
 provisions of 53 Geo. 3, c. 169, by which the re- 
 sponsibility of ship-owners for any damage done 
 without their fault to any other vessel or her cargo, 
 is limited to the value of their *ship, and 
 '- ^ the freight she is earning at the time of the 
 accident. By the provisions of that act, if several 
 persons suffer such damage, and the value of the 
 ship and freight is not sufficient to pay them all, 
 any of the owners may file a bill in equity against 
 the claimants to ascertain such value, and to obtain 
 a rateable distribution thereof, annexing to the bill 
 an affidavit that there is no collusion, that all claim- 
 ants are made parties, that the value does not ex- 
 ceed an amount specified in the affidavit, and that 
 the claims exceed such value. And on such bill 
 and affidavit being filed, and payment made into 
 Court of the specified amount, he may obtain an 
 injunction against proceedings at law.(7j) 
 
 The injunction against an act commenced or 
 threatened, by which an equity would be infringed, 
 like that against suing in the Courts of law, is often 
 used as an auxiliary process in respect of ordinary 
 equities ; e. g., where a trustee is enjoined from com- 
 mitting a breach of trust, a covenanter from infring- 
 ing his covenant, or a fraudulent holder of a negoti- 
 able security from endorsing it to a stranger. But 
 there is one class of cases in which the necessity for 
 injunction relief constitutes per se an independent 
 equity ; viz., that of torts, as a class of civil wrongs 
 distinct from cases of trust, of contract, and of fraud. 
 
 (h) 53 Geo. 3, c. 159 ; Walker v. Fletcher, 12 Sim. 420 ; 1 Ph. 
 115. 
 
or INJUNCTION AGAINST TORT. 399 
 
 The principle of injunction relief against a tort is, 
 that whenever damage is caused or threatened to 
 property, admitted or legally adjudged to be the 
 plaintiflf's, by an act of the defendant, admitted or 
 legally adjudged to be a civil wrong, and such 
 damage is not adequately remediable at law, the in- 
 adequacy of the remedy at law is a sufficient equity, 
 and will warrant an injunction against the commis- 
 sion or continuance of the wrong. And though 
 damages cannot be given in equity for the plaintiff's 
 loss, yet if the defendant has made a profit, he will 
 be decreed to account.' 
 
 The equity is not confined in principle to any par- 
 ticular acts, but those in respect of which it is most 
 commonly *enforced, are five in number; viz., r*or)Q-i 
 waste, destructive trespass, nuisance, infringe- 
 ment of patent right, and infringement of copyright. 
 And, therefore, the first point which requires notice 
 is the nature of these wrongs, and the remedy given 
 at law to the party injured. 
 
 Waste is substantial damage to the reversion, done 
 by one having an estate of freehold or for years, 
 during the continuance of the estate. The principal 
 acts of waste are cutting timber, opening new mines, 
 converting arable land into pasture, or pasture into 
 arable, and removing articles affixed to the freehold.^ 
 
 ' See Duvall v. Waters, 1 Bland, 576. 
 
 ° Everything is waste which occasions a permanent injury to 
 the inheritance; but the situation of this country requires an 
 application of the rule different from that which might be proper 
 in England; Keeler v. Eastman, 11 Verm. 293. Where a 
 tenant for life cuts down more timber than is necessary for the 
 enjoyment of his estate, and has injured the remainder, he is 
 
400 Adams's doctrine of equity. 
 
 With respect, however, to waste of this latter kind, 
 there is a special exception in favour of a tenant 
 who has put up ornamental fixtures, or erections for 
 the purposes of his trade, (i) ^ 
 
 The essential character of waste is, that the party 
 
 (i) 2 Steph. Bl. 261; 3 Ditto; 503; 1 Cruise, Tit. iii., c. 2. 
 
 guilty of waste, and will be restrained from a continuance ; see 
 Johnson v. Jolinson, 2 Hill C. R. 277 ; Livingston v. Reynolds, 
 26 Wend. 115; Smith v. Poyas, 2 Desau. 65. Not so, if 
 it does not produce a lasting injury to the inheritance; Shine v. 
 Wilcox, 1 Dev. & Batt. Eq. 631. Or if the clearing is not 
 unreasonable, according to the usage of the country ; Crawley v. 
 Timberlake, 2 Ired. Eq. 460. And, although it amounts to a 
 considerable change of woodland into arable ; Alexander v. Fisher, 
 7 Ala. 514. Firewood for the houses of the tenant and ser- 
 vants may be taken; Gardiner v. Dering, 1 Paige, 573. 
 
 Where a farm is occupied and used for mining purposes, any 
 proper use of it in mining operations is not waste ; Capner v. 
 Flemington Mining Co., 2 Green Ch. 467 ; Findlay v. Smith, 6 
 Munf. 134; Crouch v. Puryear, 1 Rand. 258. A tenant 
 for life has no right to take clay or wood from the premises, for 
 the manufacture of bricks ; and such acts are waste ; Livingston 
 V. Reynolds, 2 Hill's R. 157. An injunction will issue to pre- 
 vent the commission of waste by one who has but a limited inte- 
 rest in, or possession of the property, when the acts about to be 
 done will work a lasting injury to the inheritance ; Jones v. White- 
 head, 1 Parson's Sel. Eq. Cas. 304. 
 
 ' An injunction will be granted to prevent the lessee from 
 making material alterations in a dwelling-house, by changing it 
 into a warehouse, or store, which would produce permanent injury 
 to the building ; Douglass v. Wiggins, 1 Johns. C. R. 435. But 
 it is not waste by the tenant to make erections upon the demised 
 premises, which may be removed, leaving the property in the 
 state in which it was at the commencement of the tenancy, and 
 the materials of which, if left on the premises, would more than 
 compensate the lessor for the expense of their removal ; Winship 
 Y. Pitts, 3 Paige C. R. 259. 
 
OF INJUNCTION AGAINST TORT. 401 
 
 committing it is in rightful possession. And, there- 
 fore, the remedy at law is by trespass on the case 
 for the injury done to the reversion. Under the 
 old law, the place wasted might also have been re- 
 covered in the now abolished action of waste. There 
 are, however, no means at law of stopping the waste 
 itself whilst the tenancy continues; and for that pur- 
 pose, if the reversioner's title be admitted or proved 
 at law, the prohibitive jurisdiction of equity has 
 been always exercised.^ 
 
 ' In order to the injunction, there must be no dispute as to the 
 title. In Nevitt v. Gillespie, 1 How. Miss. E. 108, it was held, 
 that an injunction should never he granted to stay waste, where it 
 appears that the defendant to the bill is in possession, claiming 
 and holding adversely. See also Storm v. Mann, 4 Johns. C. R. 
 21. But pending an action to try the title to land, an injunction 
 will sometimes be granted to restrain the defendant from waste, 
 especially where it appears that he will not be able to respond in 
 damages, in case of a recovery by the plaintiff; Kinsler v. Clarke, 
 2 Hill C. R. 617 ; Shubrick v. Guerard, 2 Desau. 616 ; Duvall 
 V. Waters, 1 Bland. 569. For other instances of the grant- 
 ing of the writ pending a suit at law, see Hawley v. Clowes, 2 
 Johns. C. R. 122; Camp v. Bates, 11 Conn. 51. 
 
 The injunction will not be granted, where there is an adequate 
 remedy at law ; Cutting v. Carter, 4 Hen. & Munf. 424 ; Poin- 
 dexter v. Henderson, Walker R. 176. Yet in some cases it may 
 be granted, notwithstanding a statute giving a remedy at law ; 
 Harris v. Thomas, 1 Hen. & Munf. 18. 
 
 The writ will not be granted, unless the injury will probably be 
 irreparable, or not capable of compensation by damages in a suit 
 at law ; Atkins v. Chilson, 7 Met. 398 ; Poindexter v. Hender- 
 son, supra; Spooner v. McCornnell, 1 McLean's R. 338. 
 
 The Court will not, unless under very special circumstances, 
 grant an injunction to prevent the removal of timber already cut, 
 but only to prevent future waste ; Watson v. Hunter, 5 John. C. 
 R. 169. Yet a threat to commit waste is sufficient ; Loudon v. 
 
 26 
 
402 ADAMS'S DOCTRINE OF EQUITY. 
 
 In addition to waste, strictly so called, and cogni- 
 zable as such in the Courts of law, there is also a 
 kind of waste cognizable in equity alone, and called 
 equitable waste, where the owner of a particular 
 estate, made unimpeachable of waste at law, is com- 
 mitting waste mala fide, or in a manner not contem- 
 plated by the donor. 
 
 Where an estate for life is comprised among the 
 limitations of a settlement, it is not unusual to make 
 it " unimpeachable of waste," and the object of this 
 is, that the owner may be enabled to cut timber, 
 open mines, and avail himself of other modes of 
 r*or)Q-i profit which are derived out *of the corpus of 
 the estate, and not from the annual produce, 
 and are therefore, in law, considered waste. So long 
 as he is bona fide acting on this authority, and 
 endeavouring to make a profit by its exercise, the 
 Court of Chancery cannot interfere with his discre- 
 tion. If, however, he is not acting bona fide, but is 
 maliciously attempting to destroy the property, his 
 conduct is a fraud on the power, and will be re- 
 strained by injunction, (/c) The same restriction 
 will be imposed if he is attempting to cut down tim- 
 ber which was planted for ornament, or which is 
 
 (Jc) Vane v. Barnard, 2 Vern. 738. 
 
 Warfield, 5 J. J. Marsh. 196 ; Livingston v. Keynolds, 26 
 Wend. 115, 123. 
 
 The appropriate remedy for a mortgagee against a mortgagor iu 
 possession, who is impairing the security by committing waste, is 
 by bill in chancery for an injunction ; Cooper v. Davis, 15 Conn. 
 556; Brady V. Waldron, 2 Johns. C. R. 148; Salmon v. Clag- 
 gett, 3 Bland, 125; Capner v. Flemington Mining Co., 2 
 Green C. K. 467. See on the general subject, Sarles v. Sarles, 3 
 Sandf. C. R. 601 ; Brashear v. Macey, 3 J. J. Marsh. 93. 
 
or INJUNCTION AGAINST TORT. 403 
 
 evidently unfit to be cut, and which was, therefore, 
 not meant to be included in his authority. (I) 
 
 Destructive trespass is damage, amounting to the 
 destruction of the estate, done by a stranger, whose 
 possession or entry is unlawful. In this case the 
 remedy at law, if the trespass amount to an actual 
 ouster, is by ejectment to recover the land ; or if it 
 fall short of ouster, by trespass quare clausum /regit, 
 to recover satisfaction in damages for the wrong. 
 
 The equitable jurisdiction over this class of in- 
 juries, where the damage is by a mere wrong-doer 
 without colour of right, and not by a person having 
 a limited interest, was at first doubtful. The point 
 arose in a case before Lord Thurlow, where a man 
 having a parcel of land on lease began to get coal 
 there, and then proceeded to get more coal out of the 
 adjoining parcel, which belonged to a different per- 
 son. It was held that the former act, being waste, 
 would be restrained ; but that the latter, being a 
 bare trespass, could not be interfered with by the 
 Court of Chancery. It was said, however, by Lord 
 Eldon, that Lord Thurlow had afterwards changed 
 his mind ; and it is now settled, that an injunction 
 will lie for protection of a title, admitted or proved 
 at law, whenever the act complained of is not a 
 mere ouster or temporary trespass, but is attended 
 *with permanent results, destrojdng or mate- p^n-i a-i 
 rially altering the estate ; as, for example, if 
 a man be pulling down his neighbour's house, felling 
 
 (T) Marquis of Downshire v. Sandys, 6 Ves. 107 ; Day v. Merry, 
 16Ves. 375; Wellesley v. Wellesley, 6 Sim. 497; Bridges v. 
 Stephens, 6 Mad. 279 ; Leeds v. Amherst, 2 Ph. 117. 
 
404 Adams's doctrine of equity. 
 
 his timber, working his quarries, or the like.' If it 
 be a mere ouster or temporary trespass, the recovery 
 of the land by an action of ejectment, or of pecu- 
 niary damages by an action of trespass, are sufficient 
 remedies, and an injunction will not lie. (m) 
 
 Nuisances are of two kinds : Public and Private. 
 A public nuisance consists in the doing anything to 
 the annoyance of all the King's subjects, e. g., the 
 obstructing a highway or public river, or the carry- 
 ing on of offensive or dangerous trades, or the 
 neglecting to do anything which the common good 
 requires, e. g., the omission to repair a highway or 
 
 (m) Thomas v. Oakley, 18 Ves. 184; Goulson v. "White, 3 Atk. 
 21 ; Ridgeway v. Roberts, 4 Hare, 106, 116. 
 
 ' There must he something particular in the case, so as to bring 
 the injunction under the head of quieting possession, or preventing 
 irreparable injury ; Livingston v. Livingston, 6 Johns. C. E.. 497. 
 The injury threatened or begun must not be susceptible of com- 
 pensation in damages at law ; Smith v. Pettingill, 15 Verm. 
 82; Hart v. The Mayor of Albany, 9 Wend. 571; Jerome v. 
 Ross, 7 Johns. 0. R. 315 ; Scudder v. The Trenton Delaware 
 Falls Co., Saxton, 694. The writ will not be allowed to pre- 
 vent a trespass upon land, the plaintiff being in possession ; 
 Stevens v. Beekman, 1 Johns. C. R. 318. Where the alleged 
 trespass was committed more than a year before the application 
 for an injunction, and there was no allegation of a threatened 
 renewal of the trespass, held, the injunction could not be granted ; 
 Southard v. Morris Canal, Saxton, 518. See also Duvall v. 
 Waters, 1 Bland, 569 ; Amelung v. Seekamp, 9 Grill & J. 468. 
 
 Equity will not restrain, by injunction, the working of a mine, 
 or other trespass, until the title, if disputed, has been settled at 
 law, except in extreme cases; Irwin v. Davidson, 3 Ired. Eq. 
 311 ; Lining v. Geddes, 1 McCord, C. R. 304 ; Powers v. Heery, 
 Charl. R. M. 523 ; West v. Walker, 2 Green Ch. 279 ; Shreve 
 V. Black, 3 Green Ch. 177. 
 
OF INJUNCTION AGAINST TORT. 405 
 
 public bridge. A private nuisance is an act done 
 unaccompanied by an act of trespass, which causes a 
 substantial prejudice of the hereditaments, corporeal 
 or incorporeal, of another ; e. g., diverting a water- 
 course, so as to interrupt the right of another person, 
 that it should run undisturbed to his meadow or 
 mill ; obstructing ancient windows, so that the owner 
 cannot enjoy the light so freely as before ; or dis- 
 turbing a franchise, by setting up, without license 
 from the Crown, a fair, market, or ferry so near to 
 a more ancient one, as to diminish its custom. And 
 a public nuisance may also be a private one, if there 
 be special damage to an individual ; as where, by 
 reason of an obstruction to the highway, he meets 
 with an accident, or is compelled to travel by a 
 longer or more difficult way ; or where an oflfensive 
 or dangerous trade is carried on so near his premises 
 as to do them special prejudice. («) 
 
 The remedy at law for nuisance is by indictment 
 in respect of public nuisances, and by action in re- 
 spect of private nuisances or of the private injuries 
 resulting from public ones. And the party aggrieved 
 may also abate or remove the nuisance by his own 
 act, so as he commit no riot in doing it, nor occasion, 
 in the case of *a private nuisance, any un- po-i-i-i 
 necessary damage, (o) The remedies, how- 
 ever, at law can at the utmost only abate, or afford 
 compensation for, an existing nuisance, but are in- 
 effectual to restrain or prevent such as are threatened 
 or in progress ; and for this reason there is a juris- 
 diction in equity to enjoin, if the fact of nuisance be 
 
 (n) 2 Steph. Bl. 10-16 ; 3 Ditto, 499-502 ; 4 Ditto, 295. 
 (o) 3 Steph. Bl. 361, 503. 
 
406 ADAMS'S DOCTRINE OP EQUITY. 
 
 admitted or established at law, whenever the nature 
 of the injury is such that it cannot be adequately 
 compensated by damages, or will occasion a con- 
 stantly recurring grievance, (p) ^ 
 
 {p) Mitf. 144; Attorney-General v. Nichol, 16 Ves. 338 ; At- 
 torney-General V. Cleaver^ 18 Ves. 211 ; Attorney-General v. 
 Forbes, 2 M. & C. 123 ; Crowder v. Tinkler, 19 Ves. 617 ; Earl 
 of Eipon V. Hobart, 3 M. & K. 169 ; Hudson v. Maddison, 12 
 Sim. 416 ; Blakemore v. Glamorgan Canal, 1 M. & K. 154, 181. 
 
 ^ The right of the complainant ought to be admitted or establish- 
 ed at law, before the granting of an injunction ; White v. Booth, 7 
 Verm. 131; Shields v. Arndt, 3 Green Ch. 234; Caldwell 
 V. Knott, 10 Yerg. 209 ; Hart v. Mayor of Albany, 3 Paige, 
 213 ; Eeid v. GifFord, 6 Johns. C. R. 19 ; Biddle v. Ash, 2 
 Ashmead, 211; Porter v. Witham, 5 Maine, 292. Yet he 
 will not be first required to establish his right at law, unless it is 
 doubtful and in dispute ; White v. Forbes, Walk. C. E,. 112. In 
 the case of great injury to a prescriptive right, the injunction may 
 be granted without first sending the plaintiff to law to establish 
 his title; Gardner v. Newburgh, 2 Johns. C. R. 162; Eobesonv. 
 Pittenger, 1 Green Ch. 57. 
 
 The fact of nuisance ought to be clear, for the court will not 
 interfere, by injunction, to restrain an erection not in itself noxious, 
 though it may, according to circumstances, prove so, until a trial of 
 the right at law ; except where an action could not be framed to 
 meet the question, when the court may direct an issue. But if the 
 injury apprehended is great, and the danger imminent, an injunc- 
 tion will not be refused on the ground that there is a possibility that 
 the injury anticipated may not result from the erection complained 
 of; Mohawk Bridge Co. v. Utica and Schenectady Eail-Eoad Co., 
 6 Paige C. R. 554. On the other hand, the mere tendency of an 
 erection to produce the result complained of, has never been con- 
 sidered suiEcient to warrant the restraining process of a Court of 
 Equity ; Gwin v. Melmoth, 1 Freem. Ch. 505. 
 
 To authorize the court's interference by injunction, there should 
 appear imminent danger of great and irreparable damage, and not 
 
OF INJUNCTION AGAINST TORT. 407 
 
 Injunctions for the restraint of trespass and nui- 
 sance are often issued against railway companies, 
 and other bodies of a similar nature, where the act 
 complained of is done in alleged pursuance of a Par- 
 liamentary power. In these cases, if the company 
 are acting bona fide within their authority, there is 
 no equity to interfere, although the Court may think 
 that the power was unadvisedly conferred, or that 
 the company are not exercising a wise discretion. 
 If, however, their conduct is not bona fide, there is 
 jurisdiction to enjoin; as, for example, if, having 
 authority to take land for a particular purpose, they 
 
 of that for whieli an action at law would furnish full indemnity ; 
 Wingfield v. Crenshaw, 4 Hen. & Munf. 474 ; City of Rochester 
 V. Curtiss, 1 Clark's R. 336; Bradsher v. Lea, 3 Irod. Eq. 
 301; Spooner v. McConnell, 1 McLean, 837; Webb v. Port- 
 land Manufac. Co., 3 Sumner, 189 ; Croton Turnpike y. Ryder; 
 1 Johns. C. R. 611 ; Wall v. Cloud, 3 Humph. 181 ; Vaughan 
 V. Law, 1 Humph. 123 ; Bemis v. Upham, 13 Pick. 169 ; 
 Vanwinkle v. Curtis, 2 Green's Ch. 422. 
 
 An injunction may be granted to restrain a public nuisance at 
 the suit of a private person, who suffers a special injury thereby ; 
 Corning v. Lowerre, 6 John. C. R. 439 ; see to this point, Rosser 
 V. Randolph, 7 Porter, 238 ; Mayor of Georgetown v. Alexan- 
 dria Canal Co., 12 Peters, 91 ; Bigelow v. Hartford Bridge Co., 
 14 Conn. 565; Attorney-General v. Utica Ins. Co., 3 Johns. 
 C. R. 379, 380 ; Delaware and Blaryland R. R. Co. v. Stump, 8 
 Gill. & J. 479 ; Biddle v. Ash, 2 Ashmead, 211 ; Rowe v. Granite 
 Bridge Co., 21 Pick. 344. 
 
 In Catlin v. Valentine, 9 Paige, 575, and Brady v. Weeks, 
 3 Barb. S. C. R. 157, it was held that to constitute a nuisance, 
 it is not necessary that a trade or business complained of, should 
 endanger the health of the neighbourhood. It is sufficient if it 
 produces that which is offensive to the senses, and which renders 
 the enjoyment of life and property uncomfortable. 
 
408 Adams's doctrine op equity. 
 
 pretend to take it for that purpose, but want it for 
 another, [q) And if they are acting beyond their 
 authority, there is the same jurisdiction as in or- 
 dinary cases ; as, for example, if having authority to 
 do a certain thing, upon certain terms, and in a cer- 
 tain manner, they are attempting to do some other 
 thing, or to do it on some other terms, or in some 
 other manner. Such, for instance, would be the 
 case, if their authority were to cross a man's land 
 coming to it in a particular direction, and they 
 claimed to alter the direction, and, nevertheless, to 
 take the land. And perhaps the same result would 
 follow, if they were to make an important alteration 
 in the termini of their line, or if the sum which 
 r*21 2T **'^^y ^^^ power to raise were palpably in- 
 sufficient to complete their works ; for, in 
 both these cases, they would not be using their 
 powers for the purpose for which they were con- 
 ferred, (r) 
 
 The same principles are equally applicable to all 
 other persons who have been authorized by the 
 Legislature to do specified acts, which without such 
 authority they would be incompetent to do. So long 
 as they are acting within their prescribed limits, the 
 Court of Chancery has no control ; but if they exceed 
 those limits, if they are assuming to do that which 
 the Legislature has not said they may do, then, in 
 so far as the excess is concerned, they have no au- 
 
 (g) Webb v. Manchester and Leeds Kailway, 4 M. & C. 116. 
 
 (r) Agar v. Regent's Canal Company, Coop. 77; Salmon v. 
 Randall, 3 M. & C. 439 ; Blakemore v. Glamorgan Canal, 1 M. 
 & K. 154; Lee v. Milner, 2 Y. & C. 611. 
 
OF INJUNCTION AGAINST TORT. 409 
 
 thority ; and, if their acts be of a nature to warrant 
 an injunction, it will be granted against them, (s) 
 
 Patent right is the exclusive liberty conferred by 
 letters-patent from the Crown on an inventor, or his 
 alienee, of making articles according to his inven- 
 tion. (<) 
 
 The powers of the Crown to grant such letters 
 patent, both as regards the parties to whom they 
 may be granted, and the periods to which they must 
 be limited, are regulated by statute ;(m) and the 
 qualities essential to sustain a patent are foreign to 
 this Treatise. But the patent right of an inventor 
 is personal property, and assignable by writing under 
 hand and seal ; and if it be infringed, the inventor 
 or his alienee has a remedy at law by an action for 
 damages. And in consideration of the inefScacy of 
 that remedy, he may also, if the validity of his - 
 patent and the fact of infringement are admitted or 
 established at law, have a remedy in equity by in- 
 junction and account. The right originates in the 
 character of the patent as private *property, p^^,, q-. 
 and not in the mere exclusive privilege. 
 And therefore, a patent to keep a theatre, which is 
 a mere privilege granted to the party, will give no 
 right to enjoin other parties, who are infringing the 
 law by keeping theatres without license. («) 
 
 (s) Attorney-General v. Forbes, 2 M. & C. 123 ; Frewin v. 
 Lewis, 4 M. & C. 249 ; Burley v. Charlton, 3 Bea. 499 ; Dawson 
 V. Paver, 5 Hare, 415. 
 
 (0 2 Staph. Bl. 86 ; 5 Jarm. Byth., tit. " Patent." Godson on 
 Patent and Copyright, bk. ii. 
 
 (u) 21 Ja. 1, c. 3, s. 1 ; 5 & 6 Wm. 4, c. 83 ; 2 & 3 Vict. c. 67. 
 
 (v) Calcrafl v. West, 2 Jones & Lat. 128. 
 
410 ADAMS'S DOCTRINE OF EQUITY. 
 
 The validity of the patent itself, and the fact of 
 infringement, are matters which, if doubtful, must 
 be determined at law. 
 
 Copyright is the exclusive liberty conferred, either 
 by common law or by statute, on an author or his 
 alienee, of printing or otherwise multiplying the 
 copies of his work, (to) 
 
 The property of an author in his work before pub- 
 lication is absolute and perpetual ; (x) nor is it lost 
 by sending the manuscript as a letter to a corre- 
 spondent ; (y) nor by reading it orally as a public lec- 
 ture. But where the lecture has not been first com- 
 mitted to writing, it has been doubted whether there 
 can be property in the sentiments and language; 
 although a pupil may be restrained, on the basis of 
 an implied contract, from publishing it for profit, (z) 
 Lectures are now protected by 5 & 6 Wni. 4, c. 65, 
 giving to the author and his alienee the sole right of 
 first printing and publishing, and, after publication, 
 the ordinary term of copyright. But this statute 
 gives no exclusive right of oral delivery ; it requires 
 that notice of the intended lectures shall have been 
 given to two justices before delivery : it does not ex- 
 tend to lectures delivered in a university, public 
 school, or college, or under any gift, endowment, or 
 foundation ; and it contains a saving of the common 
 
 (w) 2 Steph. Bl. 94 ; 5 Jarm. Bjth., tit. " Copyright." God- 
 son on Patent and Copyright, bk. iii. 
 
 (x) Millar v. Taylor, 4 Burr. 2303 ; Donaldson v. Beckett, 2 
 B. P. C. 129 ; Tonson v. Walker, 3 Sw. 672, 680. 
 
 (y) Gee V. Pritchard, 2 Sw. 402 ; Palin v. Gathercole, 1 Coll. 
 565. 
 
 (z) Abernethy v. Hutchinson, 3 Law J., 0. S. Ch. 209 ; Millar 
 V. Taylor, 4 Burr. 2303 ; Donaldson v. Beckett, 2 B. P. C. 129. 
 
OF INJUNCTION AGAINST TOKT. 411 
 
 law in respect to all lectures which it does not in- 
 clude. 
 
 *The property of an author in his work 
 after publication is also regulated by sta- L -• 
 tute;(a) and of late years the rights of authors 
 have been considerably amended, improved, and ex- 
 tended. (&) Protection is also not only afforded to 
 printed books, but also to engravings, (c) sculp- 
 tures, (cZ) dramatic compositions, (e) and registered 
 designs, (/) and also, under certain limitations, to 
 works published abroad, (g^) 
 
 In addition to the copyright conferred by statute, 
 there is also a prerogative copyright in the Crown of 
 printing at the royal press all Acts of Parliament, 
 Proclamations, and Orders in Council, and Liturgies 
 and Service-books of the Church, and the authorized 
 translation of the Bible. The same privileges ex- 
 tend to the grantees of the Crown, viz., to the 
 Queen's printer, and to the Universities of Oxford 
 and Cambridge. A similar privilege of printing 
 almanacs was formerly claimed, but was adjudged 
 to be void. The Universities of Oxford and Cam- 
 bridge, and the Colleges of Eaton, Westminster, and 
 Winchester, also enjoy, by act of Parliament, a per- 
 petual copyright in all books given or bequeathed to 
 them, so long as such books shall be published at 
 their own presses and for their own benefit, {h) 
 
 (a) 54 Geo. 3, c. 156. (6) 5 & 6 Vict. c. 45. 
 
 (c) 8 Geo. 2, c. 13 ; 7 Geo. 3, c. 38, 57 ; 6 & 7 Wm. 4, c. 59. 
 
 Id) 38 Geo. 3, c. 71; 54 Geo. 3, c. 56. 
 
 (e) 3 & 4 Wm. 4, e. 15 ; 5 & 6 Vict. o. 45. 
 
 (/) 5 & 6 Vict. c.lOO ; 6 & 7 Vict. c. 65. 
 
 (^) 7 & 8 Vict. c. 12. (A) 2 Steph. Bl., p. 98. 
 
412 Adams's doctrine of equity. 
 
 The question as to what will constitute an in- 
 fringement of copyright is sometimes attended with 
 considerable doubt. It is declared by the late sta- 
 tute that it is equally piracy, either to print the 
 copyright work within the British dominions for sale 
 or exportation, or to import for sale or hire copies so 
 printed or copies printed abroad, or to sell or publish, 
 or expose or possess for sale or hire, copies known to 
 have been so printed or imported, or to cause any 
 r*91 'il ^^^^ *printing, importation, sale, publication, 
 or exposure for sale or hire, (i) But in the 
 case of partial imitation or copying, and of piracy 
 from compilations of pre-existing matter, it is some- 
 times difficult to determine whether the later work 
 is, or is not, a copy of its predecessor. The doc- 
 trine on these points appears to be: 1. That in re- 
 gard to original works, it is no piracy to extract pas- 
 sages for the purpose of bona fide criticism or quota- 
 tion, or for that of combining them with new matter 
 so as to constitute a new original work, or even to 
 make a fair abridgement of the work itself. But it 
 is otherwise if the criticism, &c., be merely colour- 
 able. (A;) 2. That in regard to compilations of pre- 
 existing matter, such as maps and road-books, the 
 true subject of copyright is the selection and arrange- 
 ment. The materials for the work are open to all ; 
 any man may avail himself of them, and may com- 
 pile a work, which will probably be similar to the 
 
 (i) 5 & 6 Vict. 0. 45, ss. 15 and 17. 
 
 (/<:) Campbell v. Scott, 11 Sim. 31 ; Bell v. "Whitehead, 8 L. J. 
 Ch. 141 ; Wilkins v. Arkin, 17 Ves. 422 ; Saunders v. Smith, 3 
 M. & C. 711 ; Bramwell v. Halcomh, 8 M. & C. 737 ; D'Almaine 
 V. Boosey, 1 Y. & C. 288. 
 
OF INJUNCTION AGAINST TORT. 413 
 
 first, and may perhaps be identical with it. But he 
 must create the work by his own labour and skill, 
 and must not copy the result of his predecessor's. 
 And if, on comparison of the two works, he appears 
 to have done so, his own work will be declared a 
 piracy.(?) 
 
 The copyright of an author, like the patent right 
 of an inventor, is personal property, and transferable 
 by assignment. Such assignment may be made, in 
 cases falling within the Copyright Amendment Act, 
 by entry in the registry at Stationers' Hall ; but if 
 not so made, it must be by an instrument in writing, 
 though not necessarily under seal, (m) 
 
 If the right be infringed, the remedy of the author 
 or his alienee at law is by an action of trespass on 
 the case for damages ; and by an action of detinue 
 or trover for the *pirated copies, or their p^p-, o-i 
 value.(n) He may also sue in equity for an 
 injunction and account, if the right and infringement 
 are admitted or established at law. It will be ob- 
 served, that the jurisdiction to enjoin in equity is 
 expressly for the protection of copyright as property, 
 and not for the prevention of improper publications. 
 There is, therefore, no jurisdiction to enjoin against 
 a wicked or libellous work, merely on the ground of 
 its mischievous character; and, on the other hand, if 
 a work alleged to be copyright be tainted by immora- 
 lity, libel, or fraud, it is not acknowledged as pro- 
 
 (Z) Longman v. Winchester, 16 Ves. 269; Lewisv. Pullarton, 
 2 Bea. 6. 
 
 (ni) Power v. "Walker, 3 M. & S. 7 ; Rundell v. Murray, Jac. 
 311,315; 5&6 Vict. c. 45, s. 13. 
 
 (n) 5 & 6 Vict. c. 45, s. 23. 
 
414 Adams's doctrine of equity. 
 
 perty at law ; and in that case, or even if it be of a 
 doubtful tendency, the Court of Chancery will not 
 interfere, (o) 
 
 The existence of the right itself, and the fact of 
 the infringement, are matters which, if doubtful, 
 must be determined at law. 
 
 The jurisdiction to restrain infringement of patent 
 and copyright is based on the exclusive property 
 which the complainant has. There is also a juris- 
 diction, of a not very dissimilar character, to enjoin 
 against the use of a secret of trade which haf3 been 
 fraudulently obtained, and to enjoin against damaging 
 the plaintiff's business by representing a spurious 
 article to be his. 
 
 If a person, having made a discovery, does not 
 choose to protect it by a patent, and thus to limit his 
 enjoyment of it within the statutory period, he has 
 no exclusive right to the invention ; and if another 
 person can discover the secret, there is no equity to 
 restrain him from using it. It must, however, be dis- 
 covered by legitimate means ; and therefore if the 
 party acquiring it has resorted to a breach of trust 
 or a fraud, he will be restrained from avaihng himself 
 of what he has learnt, (p) 
 
 r*2171 *^^' again, a person has adopted a particu- 
 lar device, with a view to denoting a parti- 
 cular article or manufacture as his own, he does not 
 
 (o) Gee V. Pritchard, 2 Sw. 402 ; Dubost v. Beresford, 2 Camp. 
 N. P. 0. 511 ; "Wright V. Tallis, 1 Mann., Gr. & Sc. 893 ; 4 Law 
 J., 0. P. 283 ; Southey v. Sherwood, 2 Meriv. 438 ; Lawrence v. 
 Smith, Jao. 471. 
 
 (p) Williams v. Williams, 3 Meriv. 157 ; Yovatt v. Winyard, 
 IJ. & W. 394. 
 
OF INJUNCTION AGAINST TORT. 415 
 
 necessarily acquire a copyright in such device, and 
 cannot restrain, on that ground, its user by another 
 man. But he is entitled, on the ordinary principles 
 of law, to insist that no other person shall injure his 
 business by representing a spurious article to be his, 
 although the genuine article may be one to which 
 he has no exclusive right. And therefore, if such a 
 representation be made, either by direct misstate- 
 ment or by imitation of his device, he may recover 
 damages at law for the injury to his business, and 
 pari ratione may have an injunction in equity, (g) 
 
 Having now examined the chief objects of the 
 injunctive equity, we must, in conclusion, notice the 
 chief incidents of the equity itself. These incidents 
 are three in number. The equity attaches only on 
 an admitted or legally adjudged right in the plain- 
 tiff, admitted or legally adjudged to be infringed by 
 the defendant ; it prohibits continuance as well as 
 commission of a wrong; and it extends to an account 
 of the defendant's profit. 
 
 First, it attaches only on an admitted or legally 
 adjudged right in the plaintiff, admitted or legally 
 adjudged to be infringed by the defendant. The 
 existence of the right, and the fact of its infringe- 
 ment, must be tried, if disputed, in a Court of law. 
 And therefore, if the plaintiff resorts to equity in 
 the first instance, he should forthwith move for an 
 interlocutory injunction to protect his alleged right 
 until decree, and thus give an opportunity of direct- 
 ed) Sykes v. Sykes, 3 B. & C. 541 ; Blofield v. Payne, 4 B. & 
 Ad. 410 ; Cruttwell v. Lye, 17 Ves. 336 ; Motley v. Downman, 
 3 M. & C. 1 ; Millington v. Fox, 3 M. & C. 338 ; Perry v. True- 
 fitt, 6 Bea. 66 ; Croft v. Day, 7 Bea. 84 ; Spottiswoode v. Clarke, 
 2 Ph. 154 ; Clarke v. Freeman, 17 Law J., Ch. 142. 
 
416 Adams's doctrine of equity. 
 
 ing a trial at law, so that when the cause comes on 
 for hearing it may be ready for immediate adjudica- 
 tion. When the motion for an interlocutory injunc- 
 tion is made, the Court, having regard to the extent 
 r*21 R1 *^^ pr™a facie title shown, the probability *of 
 mischief to the property, and the balance of 
 inconvenience on either side, will either grant the 
 injunction, accompanied by a provision for putting 
 the legal right into an immediate course of trial ; or 
 will send the parties to law, directing the defendant 
 to keep an account ; or will merely retain the bill, 
 with liberty for the plaintiff to proceed at law. (r) 
 
 Secondly, the equity extends to prohibit continu- 
 ance, as well as commission. Where an interlocu- 
 tory injunction is granted against the continuance 
 of a nuisance, the abatement of which cannot be 
 ordered on motion in direct terms, it becomes what 
 is called a mandatory injunction, *. e., an injunction 
 so framed that it restrains the defendant from per- 
 mitting his previous act to operate, and, therefore, 
 virtually compels him to undo it. Injunctions of 
 this class have been granted in various instances ; 
 e. g., against continuing the removal of the stop-gate 
 of a canal; against permitting stables to remain 
 which had been improperly built in an ornamental 
 garden, and against permitting a railway tunnel to 
 continue, which had the effect of completely destroy- 
 ing the road, (s) 
 
 (r) Hill V. Thompson, 3 Meriv. 622 ; Kay v. Marshall, 1 M. & 
 C. 373 ; Ansdell v. Ansdell, 4 M. & C. 449 ; Bacon v. Jones, 1 
 Bea. 882 ; 4 M. & C. 433 ; Collard v. Allison, 4 M. & C. 487; 
 Hilton V. Granville, Cr. & P. 282 ; Harman v. Jones, Cr. & P. 
 299; Stevens v. Keating, 2 Ph. 333. 
 
 (s) Eobinson v. Byron, 1 B. C. C. 588 ; Lane v. Newdigate, 10 
 
OF INJUNCTION AGAINST TORT. 417 
 
 Thirdly, the equity extends to an account of the 
 defendant's profit. The grant of an injunction 
 necessarily pre-supposes that the plaintifi" has sus- 
 tained a loss by the defendant's act, and that the 
 defendant has probably derived a profit, which may 
 or may not, according to circumstances, be co-exten- 
 sive with the plaintifi"s loss. The strict right of 
 the plaintiff, so far as the past wrong is concerned, 
 is to *a recompense in damages for his own 
 loss, irrespectively of the defendant's profit. ^ J 
 A claim, however, for such damages would involve 
 the necessity of proceeding in two Courts at once — 
 in equity for an injunction, and at law for damages ; 
 and therefore the Court of Chancery, having juris- 
 diction for the purpose of the injunction, will pre- 
 vent that circuity and expense; and although it 
 cannot decree damages for the plaintifi''s loss, will 
 substitute an account of the defendant's profits.(<) 
 The equity for the account is strictly incident to the 
 injunction, and therefore, if an injunction is refused, 
 an account cannot be given ; but the plaintifi" must 
 resort to a Court of law. (u) 
 
 Yes. 194 ; Blakemore v. G-lamorgan Canal, 1 M. & K. 154, 183 ; 
 Rankin v. Huskisson, 4 Sim. 13 ; Spencer v. Birmingham Rail- 
 way, 8 Sim. 193, 198 ; 1 Railway Ca. 159 ; Attorney-G-eneral v. 
 Manchester and Leeds Railway, 1 Railw. Ca. 486 ; Hooper v. 
 Brodrick, 11 Sim. 48 ; Earl of Mexborough v. Bower, 7 Bea. 127, 
 133 ; Great North of England Junction Railway v. Clarence 
 Railway, 1 Coll. 507. 
 
 (t) Crossley v. Derby Gas Company, 8 M. & C. 428 ; Bacon v. 
 Spottiswoode, 1 Bea. 382, 385 ; Colburn v. Simms, 2 Hare, 543, 
 560. 
 
 (u) Bailey v. Taylor, 1 R. & M. 78. 
 
 27 
 
418 ADAMS'S DOCTRINE OF EQUITY. 
 
 [*220] BOOK III. 
 
 OF THE JURISDICTION OF THE COURTS OF EQUITY, IN CASES 
 IN WHICH THE COURTS OF ORDINARY JURISDICTION CANNOT 
 ADMINISTER A RIGHT. 
 
 CHAPTER I. 
 
 OF ACCOUNT. 
 
 The equities under the second head of our divi- 
 sion, viz., where the Courts of ordinary jurisdiction 
 cannot administer a right, are those for investigation 
 of accounts, for severance of co-tenancies, and other 
 analogous relief, for winding up partnerships and 
 administering testamentary assets, for adjusting lia- 
 bilities under a common charge, and for protection 
 of the persons and estates of infants and lunatics.^ 
 
 * In matters of account, Courts of Equity possess a concurrent 
 jurisdiction in most, if not in all cases, with Courts of law; see 
 Mitchell V. Manufacturing Co., 2 Story, 648 ; Post v. Kimherly, 
 9 John. R. 470 ; Jones v. Bullock, 2 Dev. Ch. 368 ; Nelson v 
 Harris, 1 Yerg. 360 ; Bruce v. Burdet, 1 J. J. Marsh, 80. In 
 all cases in which an action of account would be a proper remedy 
 at law, Fowle v. Lawrason, 5 Peters, 494. And in some oases 
 in which assumpsit, or other action at law, would lie, Hickman v. 
 Stout, 2 Leigh. 6; Hay v. Marshall, 3 Humph. 623. Espe- 
 
OF ACCOUNT. 419 
 
 One important instance of the jurisdiction over 
 accounts occurs in the case of trustee and cestui que 
 trust, where the cestui que trust demands an account 
 of moneys received under the trust. The equity of 
 this particular case is included under the general 
 equity for enforcement of trusts, (a) but a corre- 
 sponding one exists as against an agent or steward, 
 or a person employed in any similar character, who 
 is bound by his oiEce to render regular accounts. If 
 this duty is performed, and the accounts are regu- 
 larly rendered, his employer can recover the balance 
 at law on the evidence of the accounts themselves, 
 and a suit *in equity is not required. If it poo-i -i 
 is neglected, he can recover damages at law 
 
 (a) Supra, Trusts. 
 
 cially where Equity has acquired cognizance of a suit for the pur- 
 pose of discovery, Handley v. Fitzhugh, 1 A. K. Marshall, 24 ; 
 see, also. Pearl v. Nashville, 10 Yerger, 179. And a bill for 
 discovery and account will sometimes lie upon a purely legal claim, 
 as, e. g., against an executor for discovery and account of assets ; 
 see Pleasants v. Glasscock, 1 Sm. and Mar. Ch. 23. So, also, 
 where a multiplicity of suits will be avoided, or the remedy at law 
 is not full and adequate, or fraud, accident, or mistake is connected 
 with the subject; M'Laren v. Steapp, 1 Kelly, 376; Cum- 
 mins V. White, 4 Blackf. 356. And between partners and the 
 assignees of assignees of their co-partners ; Pendleton v. Wam- 
 bersie, 4 Cranch, 73 ; Collins v. Dickinson, 1 Haywood, 240. 
 In Ludlow V. Simond, 2 C. C. E. 1, it was held that Chancery has 
 jurisdiction of all matters of account, though no discovery is re- 
 quired, and a bill for account against principal and surety may be 
 sustained, although the account has been stated as to the principal; 
 see, in addition, on this subject, Randolph v. Kinney, 3 Eand. 
 394; Skipp v. Jameson, 6 Litt. 190; Sturtevant v. G-oode, 5 
 Leigh, 83 ; M'Kim v. Odom, 3 Fairfield, 94 ; Reybold v. Dod, 
 1 Barring. 402 ; Dunwidie v. Kerley, 6 J. J. Marsh, 501. 
 
420 ADAMS'S DOCTRINE OF EQUITY. 
 
 for the neglect, (&) and will also have an equity, 
 arising out of the agent's failure in duty, to have the 
 accounts taken in the Court of Chancery, where the 
 evidence may be supplied by discovery on oath, (c) 
 It will be observed, that this equity does not origi- 
 nate in the mere want of discovery, which will not, 
 as we have already seen, confer a jurisdiction for 
 relief ;(£?) but in the additional ingredient that such 
 want has been caused by the defendant's fault. It 
 is otherwise in the case of a mere stranger. He is 
 compellable to answer on oath to the best of his in- 
 formation, but there is no original duty to possess 
 information, and, therefore, no equity, on the ground 
 of its absence, to withdraw his rights from the Courts 
 of ordinary jurisdiction. It obviously follows from 
 this doctrine, that a bill for an account by an agent 
 against his principal will not generally lie ; for it is 
 the agent's duty, and not the principal's, to keep the 
 account. But this rule is subject to a special excep- 
 tion in favour of a steward, the nature of whose em- 
 ployment is such, that money is often paid in confi- 
 dence without vouchers, embracing a variety of 
 accounts with the tenants, so that it would be 
 impossible to do him justice without an account in 
 equity, (e)^ 
 
 (h) Smith Mere. Law, 96. 
 
 (c) Mackenzie v. Johnston, 4 Mad. 373 ; Massie v. Banner, 4 
 Mad. 413; Anon, 2 Hare, 289, n. ; Bowles v. Orr, 1 Y. & C. 464. 
 
 (d) Supra, DiscoTery. 
 
 (e) Dinwiddie v. Bailey, 6 Ves. 136; Allison v. Herring, 9 Sim. 
 583. 
 
 ' An agent or factor may file a bill against his principal for an 
 account ; Ludlow v. Simond, 2 C. C. E. 1, 39, 53 ; Kerr v. Steam- 
 
OF ACCOUNT. 421 
 
 In taking the account against an agent, he will be 
 charged with the moneys of his principal which he 
 has actually received, and, if a special case of negli- 
 gence be made out, with such moneys also as but for 
 his wilful default he might have received In the 
 absence of a special case an inquiry as to wilful de- 
 fault will not be granted against a trustee or agent, al- 
 though it is otherwise in the case of a mortgagee. (/) 
 But if the agent neglect to account, he will be 
 charged with interest on moneys improperly rs:ooo-i 
 *retained ; if he has unduly used his princi- 
 pal's moneys for the purpose of profit to himself, he 
 will be charged with the profits which he has made ; 
 and if, by his neglect, his own property has become 
 mixed up with that of his principal, so that they 
 cannot readily be distinguished, the burden of sepa- 
 
 (/) Pelham v. Hilder, 1 N. C. C. 3. 
 
 boat Co., 1 Cheve, 2d part, 189. Where an agent is intrusted 
 with money to be disbursed, his principal may sustain a bill against 
 him for an account of his agency, and in some instances although 
 no discovery is sought; see Kerr v. Steamboat Co., ut supra; 
 Hale V. Hale, 4 Humph. 183 ; Halsted v. Eabb, 8 Porter, 63 ; 
 Mason v. Man, 3 Desau. 116. If an agent does not, within a 
 reasonable time, apply money to the purposes for which it is sent 
 to him, he will be chargeable with interest; Harrison v. Long, 4 
 Desau. 110. But an agent, having no authority to invest, is not 
 liable for interest, until a demand made by his principal ; Rowland 
 V. Martindale, Bailey Eq. 226; Lever v. Lever, 2 Hill Ch. 
 158. So an agent will be charged with moneys which, but for his 
 default, he might have received ; Short v. Skipwith, 1 Brook. R. 
 103 ; see, also. Prentice v. Buxton, 3 B. Monr. 35. If au 
 agent mixes the property of his principal with his own, he will be 
 obliged to show clearly which part of the property belongs to him- 
 self; and so far as he is unable to do this, it is treated as the pro- 
 perty of his principal ; Kelly v. Greenleaf, 3 Story, 105, 106. 
 
422 Adams's doctrine of equity. 
 
 ration will be thrown on him, and the whole will be 
 treated as belonging to the principal, until the agent 
 shows clearly what portion is his own. (g) 
 
 Another instance of the jurisdiction is in the case 
 of mutual accounts, where items exist on both sides, 
 not constituting mere matters of set-off, but forming 
 a connected transaction, and requiring an account to 
 ascertain the balance, more complicated than can 
 practically be taken at law. (7i) The mere fact that 
 such complicated mutual accounts exist is a sufficient 
 equity to sustain a bill. But it is otherwise with 
 respect to mere matters of set-off; for right of set-off 
 can be effectually tried at law, and can only be 
 transferred to Chancery by some special equity.' 
 
 The right of set-off is that right which exists be- 
 tween two pei'sons, each of whom, under an inde- 
 
 (g) Pearse v. Green, 1 J. & W. 135; Lupton v. White, 15 Ves. 
 432,441. 
 
 (h) Kennington v. Houghton, 2 N. C. C. 620 ; Kanger v. Great 
 Western Kailway, 1 Railway Ca. 1 ; Taff Vale Company v. Nixon, 
 
 1 House of Lords' Reports, 111. 
 
 ' In matters of account which are mutual and complicated, Courts 
 of Equity have complete jurisdiction ; Hay v. Marshall, 3 Humph. 
 623; The Governor v. M'Ewen, 5 Humph. 241; Power v. 
 Reeder, 9 Dana, 6 ; Hickman v. Stout, 2 Leigh, 6 ; Long v. 
 Majestre, 1 John. C. R. 305; Hunter's Ex'rs. v. Spotswood, 1 
 Wash. R. 146; Cummings v. White, 4 Blackf. 356; Dubourg 
 de St. Colombe's Heirs v. The United States, 7 Peters, 625 ; 
 Kirkman v. Vaulier, 7 Ala. 217. But to sustain a bill for an 
 account, there must be mutual demands, not merely payments by 
 way of set-off; there must be a series of transactions on one side, 
 and of payments on the other. Porter v. Spencer, 2 John. C. R. 
 169 ; Pearl v. Nashville, 10 Yerger, 179 ; M'Lin v. M'Namara, 
 
 2 Dev. & Batt. 83. 
 
OF ACCOUNT. 423 
 
 pendent contract, owes an ascertained amount to the 
 other, to set off their respective debts by way of 
 mutual deduction, so that in any action brought for 
 the larger debt, the residue only after such deduction 
 shall be recovered. At the common law there was 
 no such right; but if the party suing for a debt were 
 himself indebted to the defendant, he would never- 
 theless recover in his action, and the defendant was 
 driven to a cross action for his own claim. To ob- 
 viate this inconvenience it was enacted " that where 
 there are mutual debts between the plaintiff and de- 
 fendant, or, (if either party sue or be sued as 
 executor or administrator,) where there are mutual 
 debts between the testator or intestate and either 
 party, one may be set against the other." (*) And 
 *in the event of bankruptcy a still wider ^^nnoi 
 remedy is given, and the right of set-off is ^ J 
 extended to cases where mutual credit has been 
 given by the bankrupt and any other person, al- 
 though, strictly speaking, there may not be actual 
 debts on both sides. (Jc) If the cross demands are of 
 legal cognizance, the right of set-off is also legal ; and 
 unless one of the demands involves an equitable 
 element, their existence creates no equity for resorts 
 ing to the Chancery. If one or both be matter of 
 equitable cognizance, as, for example, if there be a 
 question of trust or fraud, the set-off may be enforced 
 in the Court of Chancery. {I) There are also some 
 
 (i) 2 Geo. 2, c. 22 5 8 Geo. 2, c. 24. 
 
 (/c) 6 Geo. 4, c. 16, s. 50; Smith's Merc. Law, 608; Gibson v. 
 Bell, 1 B. N. C. 748. 
 
 (0 Villiamy v. Noble, 3 Meriv. 593, 618 ; Eawson v. Samuel, 
 Cr. & P. 161 ; Dodd v. Lydall, 1 Hare, 333. 
 
424 Adams's doctrine of equity. 
 
 cases occasionally spoken of as depending on an 
 equitable set-oflf, but which would be more correctly 
 termed retainers in the nature of set-off. As, for 
 example, where a legatee is indebted to his testator's 
 estate, and the executor, instead of paying the legacy, 
 is entitled to balance it against the debt. In such a 
 case as this there are not, in strictness, any mutual 
 demands to which the term set-off can be applied ; 
 and the right of the executor is rather a right to 
 retain the debt out of the legacy as a fund in hand, 
 than to set it off against the amount, (m) 
 
 The right of account is essentially different from 
 this. It is not a right to amalgamate independent 
 cross demands, for the purpose of enabling one action 
 or suit to suffice; but it assumes that the several 
 demands have no independent existence, but have 
 been so connected by the original contract or course 
 of dealing, that the only thing which either party 
 can claim is the ultimate balance. The only right, 
 therefore, is that of taking the account; and the 
 forms of procedure, both at law and in equity, are 
 framed for that purpose. An account of this kind 
 is not confined to mere receipts and payments of 
 r*2241 ™°^^yj although *it ordinarily occurs in that 
 form. But it is applicable to any dealings 
 which have been treated as equivalent to receipts 
 and payments. An account, for instance, will lie 
 in respect of reciprocal deliveries of goods, provided 
 that, in the course of dealing between the parties, 
 such deliveries have been treated as items, in an 
 
 (m) Cherry v. Boultbee, 4 M. & C. 442 ; Courtney v. Williams, 
 3 Hare, 539 ; Jones v. Mossop, 3 Hare, 568 ; Macmahon v. Bur- 
 chell, 2 Ph. 127. 
 
OF ACCOTJNT. 425 
 
 account, and not as creating mere cross demands; or 
 it will lie in respect of a claim for work done and 
 partially paid for by advances from time to time, so 
 that a balance only of the price is ultimately 
 due.(w)' 
 
 The remedy at law on a mutual account is in or- 
 dinary cases by assumpsit for the balance, and, in 
 the case of accounts between merchants, by the ac- 
 tion of account. 
 
 The inefficiency of the common action of assumpsit 
 is too evident to require explanation ; for in such an 
 action the jury must investigate the account item 
 by item, so as to return the verdict for the ultimate 
 balance. And the practical impossibility of their so 
 doing generally results in a reference to arbitration. 
 
 The action of account is less unsuitable than that 
 of assumpsit, but it is far from meeting the exigen- 
 cies of the case. In this action the investigation of 
 items is not entrusted to a jury at nisi prius, but is 
 referred, under a judgment "that the defendant do 
 account," to auditors assigned by the Court. After 
 the auditors have made their report, a final judgment 
 is given that the plaintifi" " do recover against the 
 defendant" so much as the latter is found to be in 
 
 (n) "Wells V. Cooper, cited 6 Ves. 139, and 9 Ves. 473 ; O'Con- 
 ner v. Spaight, 1 Sch. &_L. 305 ; Cottam v. Partridge, 4 Man. & 
 Gr. 271; Kanger v. Great Western Eailway, 1 Kailw. Ca. 1. 
 
 ' Where a contractor to build a house has performed his part of 
 the contract, on account of which partial payments have been made, 
 this is not such matter of account as will sustain a bill to recover 
 the balance; Smith v. Marks, 2 Eand. 449; City Council v. 
 Page, Speer's Ch. R. 159 ; sed vide Sturtevant v. Goode, 5 Leigh, 
 83. 
 
426 Adams's doctrine of equity. 
 
 arrear. The tribunal, however, to which the ac- 
 count is subjected, though superior to a jury, is at- 
 tended with much delay and expense. The auditors 
 have no power of deciding on controverted items, so 
 as to carry on a continuous inquiry, but must from 
 time to time, as any question occurs, interrupt their 
 proceedings by referring it to the Court or to a jury, 
 P^ „ as a distinct issue of *law or fact, and must 
 '- -I resume them again when a decision has been 
 obtained. And even in respect to items not contro- 
 verted they had not, until 3 & 4 Anne, c. 16, any 
 general power to give effect to their inquiry by ad- 
 ministering an oath, or by examining the parties. 
 There is also an inconvenience in taking the account 
 at law, by reason of the incapacity of the legal pro- 
 cedure to operate beyond the immediate plaintiff and 
 defendant, or to include rights or claims which may 
 be collaterally involved, (o) 
 
 In addition to these objections, the remedy itself 
 is of very partial operation. It was originally appli- 
 cable to one class of accounts only, those of bailiffs, 
 receivers, and guardians in socage, in respect of the 
 trust or privity of contract existing therein, and, by 
 special extension for the benefit of trade, to accounts 
 between merchants. And so strictly was this privity 
 of contract construed, that the action did not lie by 
 or against executors or administrators. The statute 
 of 13 Edw. 1, st. 1, c. 23, gave it to the executors of 
 a merchant; the statute of 25 Edw. 3, st. 5, c. 5, 
 gave it to the executors of executors ; and the statute 
 of 31 Edw. 3, st. 1, c. 11, to administrators. But it 
 
 (o) 1 Selw. N. P. 1 ; 1 Story on Equity, s. 446-449. 
 
OF ACCOUNT. 427 
 
 was not until the statute of 3 & 4 Anne, c. 16, that 
 it lay against executors and administrators of guar- 
 dians, bailiffs, and receivers. 
 
 The difficulties thus existing at law are effectually 
 obviated by the procedure in equity. A foundation 
 is first laid for all necessary inquiries by the disco- 
 very elicited from the defendant's answer. The ac- 
 count is then referred to a Master, who is armed 
 with power not only to examine witnesses, but also 
 to examine the parties themselves, and to compel 
 production of books and documents. It is not liable 
 to interruption by controversies on particular items, 
 but is carried on continuously to its close. The Mas- 
 ter reports the final result to the Court. The report 
 may be *excepted to on any points which are r^onp-i 
 thought objectionable, and all such points are 
 simultaneously re-examined by the Court, and either 
 at once determined, or, if necessary, referred back to 
 him for review. As soon as the report is finally 
 settled and confirmed, a decree is made for payment 
 of the ultimate balance. If the interests of other 
 persons are entangled in the account, the Court may 
 require that they be made parties to the suit, or may 
 direct, if necessary, the institution of cross suits ; and 
 thus, having all their interests before it, may so 
 modify a single decree, as effectually to embrace and 
 arrange them all. 
 
 If the account is one which might be readily in- 
 vestigated by a jury, the necessity for equitable in- 
 terference does not exist, and it seems that in that 
 case no equity will arise. And if the facts stated in 
 the bill show no practical difficulty in proceeding at 
 
428 Adams's doctrine or equity. 
 
 law, a mere indefinite allegation that the accounts 
 are intricate will not prevent a demurrer, (p)^ 
 
 The same result will follow if the parties them- 
 selves have disposed of the matter and have struck 
 a balance of their account, for there is then no diffi- 
 culty in proceeding at law. 
 
 If, therefore, there has been an account stated be- 
 tween the parties, it may be pleaded as a bar to both 
 discovery and relief, or may be set up by answer as 
 a bar to relief And in this latter case, if the allega- 
 tion in the answer be not proved, it is usual on re- 
 ferring the account to the Master to direct that, if 
 he find any account stated, he shall not disturb 
 it. {qY The account, however, may be opened on 
 the ground of fraud, or if important errors are spe- 
 cified and proved ; but a general allegation that it is 
 erroneous will not suffice, (r) In some cases, where 
 r*9971 ^ *stated account is impeached, the Court 
 will re-open the whole and direct it to be 
 taken de novo. In others, when it is faulty in a less 
 degree, it will allow it to stand, with liberty to sur- 
 charge and falsify. This leaves it in full force as a 
 
 (p) Foley V. Hill, 1 Ph. 399 ; Darthez v. Clemens, 6 Bea. 165. 
 (j) Seton on Decrees, 47 ; Connop v. Hay ward, 1 N. C. C. 35. 
 (r) Taylor v. Haylin, 2 B. C. C. 310 ; Johnson v. Curtis, 3 B. 
 C. C. 266 ; Mr. Belt's notes. 
 
 * Courts of Equity will not entertain jurisdiction when there is 
 no difficulty in the remedy at law ; Monk v. Harper, 3 Ed. C. R. 
 109; Turnpike Co. v. Allen, 2 Dev. & Batt. 115; Butler v. 
 Ardis, 2 McCord C. K. 60, 71. 
 
 " An account stated may be set up by way of plea, as a bar to 
 all discovery and relief; Weed v. Smull, 7 Paige, 573 ; Bullock 
 V. Boyd, 2 Ed. C. R. 293 ; Deal's Bx'rs v. Rogers, 4 Desau, 
 175. 
 
OF ACCOUNT. 429 
 
 stated account, except so far as it can be impugned 
 by the opposing party. If he shows the omission of 
 a credit, that is a surcharge ; if he shows the inser- 
 tion of an improper charge, that is a falsification, (s) 
 The question of what will constitute a stated account 
 is in some measure dependent on the circumstances 
 of the case. The mere delivery of an account, with- 
 out evidence of contemporaneous or subsequent con- 
 duct, will not prove it to be a stated account ; but 
 an acceptance, implied from circumstances, will suf- 
 fice. Between merchants at home an account which 
 has been presented, and which has not been objected 
 to after the lapse of several posts, is treated under 
 ordinary circumstances as a stated account. Between 
 merchants in different countries a similar rule pre- 
 vails ; and if an account is transmitted from one to 
 another, showing a balance due to himself, and the 
 other keeps it two years without objection, the rule 
 is to consider it as allowed. (iS)^ 
 
 (s) Pitt V. Cholmondeley, 2 Ves. 565 ; Seton on Decrees, 48 ; 
 Miller v. Craig, 6 Bea. 433. 
 
 (t) Irvine v. Young, 1 S. & S. 833 ; Willis v. Jernegan, 2 Atk. 
 251 ; Sherman v. Sherman, 2 Vern. 276 ; Tickel v. Short, 2 Ves. 
 239 ; 1 Dan. C. P. 632. 
 
 The Court may direct a stated account to be opened and taken 
 de novo upon a bill brought for the purpose, or where a sufficient 
 foundation has been laid in the answer; but only for fraud or 
 errors specified, and which are palpable or clearly proved ; Slee v. 
 Bloom, 20 Johns. K. 669 ; S. C. 5 Johns. C. R. 366 ; Lee's 
 Admr. v. Reed, 4 Dana, 112 ; Botifeur v. Weyman et al., 1 
 McCord's C. R. 156 ; Barrow v. Rhinelander, 1 Johns. C. R. 550 ; 
 Johnson's Ex'rs v. Ketchnm, 3 Green Ch. 364 j Bloodgood v. 
 Zeily, 2 C. C. E. 124 ; Gray v. Washington, Cooke, 321. And 
 although in England the Court has gone the length of holding, 
 
430 ADAMS'S DOCTRINE OF EQUITT. 
 
 It is also material to the equity for an account 
 that it be claimed within the proper time. Where 
 the account is sought under a legal title, or under an 
 equitable title of like nature with a legal one, that 
 limit of time will be adopted in equity which is pre- 
 
 that where an account has been surcharged or falsified in one or 
 more items, the complainants may then have liberty before a mas- 
 ter to surcharge and falsify it at large ; yet, in this country, the 
 Court will not allow the inquiry to be opened beyond the special 
 matter charged ; the account can only be corrected in the items 
 which the bill points out as erroneous or alleges should be sup- 
 plied; Consequa v. Fanning, 3 Johns. C. R. 587; Troup v. 
 Haight, Hopk. 239 ; Chappedelaine v. Dechenaux, 4 Cranch, 
 806; Eedman v. Green, 3 Ired. Eq. 54; Bullock v. Boyd, 
 1 Hoff. Ch. 294; Nourse v. Prime, 7 Johns. C. R. 69; Phillips 
 V. Belden, 2 Ed. C. R. 1 ; Grover v. Hall, 8 Har. & J. 43 ; Free- 
 land V. Cocke, 8 Munf 352; Compton t. Greer, 2 Dev. Ch. 
 93 ; Miller v. "Womack's Adm'rs, Freeman's Miss. Ch. 486. 
 
 A suit to impeach an account ought to be brought within a 
 reasonable time, at farthest, within the statutory period for com- 
 mencing an action at law upon matters of account ; Lupton v. 
 Janney, 13 Peter's, 881. And where the bar of the statute is 
 inapplicable, as e. g., where the demand is purely equitable, the 
 Court is loth to interfere after a considerable lapse of time ; par- 
 ticularly after the death of parties whose transactions are involyed 
 in the inquiry ; Baker v. Biddle, Baldwin C. G. R. 418 ; Ellison 
 V. Moffat, 1 John. C. E. 46 ; Ray v. Bogart, 2 Johns. Gas. 482 ; 
 Raynor v. Pearsall, 8 Johns. C. R. 578, 586 ; Mooers v. White, 
 6 Johns. C. R. 360, 370; Boiling v. Boiling, 5 Munf. 334; 
 Randolph v. Randolph, 2 Call. 537; Dexter v. Arnold, 2 Sum- 
 ner, 108 ; Wilde v. Jenkins, 4 Paige, 481 ; Dakin v. Demming, 
 6 Paige, 95; Bloodgood v. Zeily, 2 C. C. E. 124; Gregory's 
 Ex'r V. Forrester, 1 McCord C. R. 818, 832 ; Ex'rs 6i Radcliffe 
 V. Wightman, Ibid. 408. 
 
 Where there has been fraud, however, the Court will open and 
 examine accounts after any length of time, even though the person 
 who committed the fraud be dead ; Botifeur v. Weyman, 1 
 McCord C. R. 156. 
 
OF ACCOUNT. 431 
 
 scribed by the Statute of Limitations at law. When 
 the bar of the statute is inapplicable, there may 
 nevertheless be a bar in equity, originating in long 
 acquiescence by the party, and in the consequent 
 presumption that he has either been satisfied r*ooo-| 
 *his demand, or that he intended to relin- 
 quish it. [u) And in a case where the account was 
 carried back into remote transactions, of which ac- 
 counts had been regularly kept by a deceased party 
 at the time, it was ordered that they should be re- 
 ceived as prima facie evidence, so as to throw on the 
 other side the onus of impeaching them.('i;)^ 
 
 (u) Smith V. Clay, 3 B. C. C. 639, n. ; Stackhouse v. Barnston, 
 10 Ves. 453, 466; Bond v. Hopkins, 1 Sch. & L. 413, 428; 
 Hovenden v. Lord Annesley, 2 Sch. & L. 607, 629 ; 3 & 4 Wm. 
 4, c. 27, s. 24-27. 
 
 («) Chalmer v. Bradley, IJ. & W. 51-65. 
 
 ' As to when an account ought to be claimed, and what consti- 
 tutes a stated account, see Langdon v. Roane's Adm'r, 6 Ala. 
 518 ; Murray v. Toland, 3 John. C. R. 575 ; Burden v. MoEl- 
 moyle, 1 Bailey Eq. 375 ; Sherwood v. Sutton, 5 Mason, 143 ; 
 Freeland v. Heron et al., 7 Cranch, 147 ; Phillips v. Belden, 2 
 Ed. C. R. 1. 
 
432 Adams's doctrine of equity. 
 
 [*229] *CH AFTER II. 
 
 OF PARTITION. — OF ASSIGNMENT OF DOWEE. — SUBTRACTION 
 OF TITHES. — ASCERTAINMENT OF BOUNDARY. — PAYMENT 
 OF RENTS. 
 
 The equity for the severance of co-tenancy and 
 other analogous relief originates in the fact, that the 
 co-tenants have a rightful unity of possession, and 
 that its severance cannot be adequately effected at 
 law.(a)^ It is most frequently applied in effecting 
 partition between co-owners, but its principle extends 
 to suits for assignment of dower and for relief against 
 subtraction or non-payment of tithe. There is also 
 
 (a) Pulteney v. Warren, 6 Ves. 73, 89. 
 
 * In Pennsylvania, the action of Partition at law has been ren- 
 dered as speedy and efficient as the proceeding by bill in equity. 
 New parties may be added ; amendments may be made at almost 
 any stage of the proceeding ; the property may be divided into 
 fewer parts than there are parties ; or a sum of money may be 
 allotted by way of owelty to those taking smaller shares ; one 
 party may elect to take the whole property, and pay to the others 
 their shares of its value ; the whole may be sold by the sheriff, 
 and the proceeds distributed ; infants may be made parties ; those 
 in possession, remainder, or reversion, and even parties not in e^se 
 may be bound. Miller on Partition, by Writ, p. 27. And one 
 having only an equitable interest in land may maintain the action ; 
 Willing V. Brown, 7 Ser. & Rawle, 467. 
 
OF PARTITION. 433 
 
 an equity for ascertainment of boundary between the 
 estates of independent proprietors, where the con- 
 fusion has arisen from the defendant's act, and for 
 compelling payment of rents, where by confusion of 
 boundary, or other cause, the remedy by distress is 
 gone without the plaintiff's default. 
 
 The manner of enforcing a partition at law, until 
 abolished by a late statute, -was by a writ of parti- 
 tion, issued to the sheriff, requiring him to make 
 partition by the verdict of a jury, and to assign to 
 each co-owner his part in severalty. In the case of 
 coparceners, who acquire their united estate by act 
 of law, this writ always lay as of common right. It 
 did not originally lie in favour of a joint tenant or 
 tenant in common, whose united estate is conferred 
 by gift or contract, but it was afterwards extended 
 to them by statute, (h) The partition of copyholds 
 *was effected by a plaint in the lord's Court posm 
 in the nature of a writ of partition. The 
 writ and the plaint are now abolished, (c) 
 
 The inconvenience of the remedy by writ of par- 
 tition originated a concurrent jurisdiction in equity, 
 the exercise of which may be demanded as matter 
 of right, notwithstanding the difficulties by which a 
 division may be embarrassed, or the mischief which 
 it may entail on the property. ((Z)' The jurisdiction 
 
 (b) 31 Hen. 8, c. 1 ; 32 lb. c. 32. 
 
 (c) 3 & 4'Wm. 4, c. 27, s. 36. 
 
 (J) Agar V. Fairfax, 17 Ves. 533 ; Warner v. Baynes, Amb. 
 589 j Turner v. Morgan, 8 Ves. 143. 
 
 ' Partition between tenants in common of real property is a 
 matter of right where both the parties cannot, or either of them 
 will not, consent to hold and use such property in common. But 
 
 28 
 
434 Adams's doctrine of equity. 
 
 was originally confined to land of freehold tenure, 
 but has been extended to copyholds by statute, (e) 
 
 The principal inconveniences attending partition 
 at law were, that the writ could only be issued by 
 and against the tenants in possession, so that an 
 estate in remainder or contingency could not be 
 
 (e) Horncastle v. Charlesworth, 11 Sim. 315 ; Jope v. Mors- 
 head, 6 Bea. 213 ; 4 & 5 Viot. c. 35, s. 85. 
 
 the title of the complainant must be undisputed, otherwise the 
 bill will be dismissed, or else retained until the title has been 
 settled at law; Castleman v. Veitch, 3 Band. 598 ; Straughan v. 
 Wright, 4 Band. 493; Smith v. Smith, 10 Paige, 470 ; Steedman 
 V. Weeks, 2 Strob. Eq. B. 145; Pell v. Ball, 1 Eich. Eq. B. 361; 
 Collins V. Dickinson, 1 Hay. 240 ; Davis v. Davis, 2 Ired. Ch. B. 
 607 ; Wilkin v. Wilkin, 1 John C. E. Ill ; Manners v. Manners, 
 1 Green Ch. 384; Wisely v. Findlay, 3 Band. 361; Stuart v. 
 Coulter, 4 Band. 74; Garritt v. White, 8 Ired. Ch. B. 131; 
 Brurton v. Butland, 3 Humph. 435 ; Hosford v. Mervin, 5 Barb. 
 S. C. E. 51; Burhaus v. Burhaus, 2 Barb. Ch. E. 398; Traynor 
 V. Brooks, 4 Hey. 295. Partition can be had of a mere equitable 
 estate ; Hitchcock v. Skinner, 1 Hoff. C. B. 21. 
 
 If land sought to be parted is subject to a mortgage, the equity 
 of redemption only can be divided ; Wotten v. Copeland, 7 John. 
 C. B. 140. 
 
 In a partition among heirs or devisees, notice must be given to 
 all the parties interested, or they will not be bound by the acts of 
 the Court; Vick v. The Mayor of Vicksburg, 1 How. Miss. 379. 
 
 The wife of a tenant in common is not a necessary party to a 
 suit for partition ; Matthews v. Matthews, 1 Ed. C. E. 565. Tet 
 see Gray don v. Gray don, 1 McMullan Eq. 63. 
 
 Judgment creditors and mortgagees of tenants in common, are 
 not proper parties ; Sebring v. Mersereau, 9 Cow. 344 ; Harwood 
 V. Kirby, 1 Paige, 469. Nor a widow entitled to her " living" 
 upon a tract of land, the heirs of the fee seeking a partition; 
 McClintock v. Manns, 4 Munf. 328. Nor a railroad corporation, 
 which has laid out its road over lands held by tenants in common ; 
 Weston v. Foster, 7 Mete. 297. 
 
OF PARTITION. 435 
 
 bound ; that the judgment was for partition accord- 
 ing to the titles proved, so that the plaintiff must 
 prove the defendant's title as well as his own ; and 
 that the partition being made, not by mutual con- 
 veyances, but by the sheriff's actual division and 
 the subsequent judgment of the Court, was often 
 incapable of being conveniently modelled. In the 
 Court of Chancery these difficulties do not exist. 
 Parties having limited interests, as, for example, 
 tenants for life or years, may, if they please, have a 
 partition in equity, as well as at law, in respect of 
 their own interests only. (/) But if a complete par- 
 tition be desired, all parties interested may be brought 
 before the Court, and all estates, whether in posses- 
 sion or expectancy, including those of infants and of 
 persons not in esse, may be bound by the decree, (g) 
 The defendant's titles need not be proved by the 
 plaintiff, but *may be ascertained by a refe- r^nq-i-i 
 rence to the Master ; (7i) and the partition 
 itself, being effectual by mutual conveyances, may 
 be made in a more convenient form. Its general, 
 principle is of course the same as that of a partition 
 at law, viz., a division of the estate ; but if the estate 
 is not susceptible of an exact division, an allotment 
 may be mg^de in unequal shares, with compensation 
 for the inequality by creation of a rent or charge. 
 A partition, however, must be bona fide made, and 
 
 (/) Baring v. Nash, 1 Ves. & B. 551. 
 
 (^) Brooke v. Lord Hertford, 2 P. Wms. 518; Gaskell v. Gas- 
 kell, 6 Sim. 643 ; Wills v, Slade, 6 Ves. 498 ; Seton on Decrees, 
 275. 
 
 (h) Jope V. Morshead, 6 Bea. 213 ; Agar v. Fairfax, 17 Ves. 
 533, 542. 
 
436 Adams's doctrine of equity. 
 
 the pecuniary charge confined to corrections of ine- 
 quaUty. There cannot, under the name of such 
 correction, be substituted a mere sale to one co- 
 tenant ; and therefore, if the estate consist of a single 
 house, the entire house must be divided, however 
 inconvenient such division may he.{iy 
 
 The mode in which a partition is effected in equitj^ 
 is that after the interests of all parties have been 
 ascertained, either by evidence in the cause, or by 
 
 (t) Clarendon v. Hornbyj 1 P. Wms. 446 ; Turner v. Morgan, 
 8 Ves. 143 ; Story v. Johnson, 2 T. & C. 586, 611 ; Horncastle 
 V. Charlesworth, 11 Sim. 315; Mole v. Mansfield, 15 Sim, 41; 
 Vin. Abr. Partition Z., pi. 2. 
 
 ' In case the estate cannot he exactly divided, the Court will 
 ^ decree a pecuniary compensation to one or more of the parties for 
 owelty or equality of partition, or charge part of the land with a 
 rent, servitude, or easement, for their benefit ; see Smith v. Smith, 
 10 Paige, 470; Graydon v. Graydon, 1 McMuUan Eq. 63; 
 Haywood v. Judson, 4 Barb. S. C. R. 228 ; Warfield v. War- 
 field, 5 Har. &. J. 459 ; Wynne v. Tunstall, 1 Dev. C. R. 23 ; 
 Phelps V. Green, 3 John. C. R. 302 ; Larkin v. Mann, 2 Paige, 
 '27 ; Norwood v. Norwood, 4 Har. & J. 112. 
 
 In most of the States, chancery has power to order a sale of the 
 premises in a suit for partition. See Pell v. Ball, 1 Rich. C. R. 
 361 ; Thompson v. Hardman, 6 John. C. R. 486 ; Steedman v. 
 Weeks, 2 Strob. Eq. 145 ; Dunham v. Minard, 4 Paige, 441 ; 
 Reynolds v. Reynolds, 5 Ibid. 161 ; Calwell v. Boyer, 8 Gill. & 
 J. 136; Matter of Skinner, 2 Dev. & Batt. 63; Smith v. 
 Brittain, 3 Ired. C. R. 347. But see, on the other hand, Delony 
 V. Walker, 9 Porter, 497 ; Norment v. Wilson, 5 Humph. 310. 
 
 In case of a sale, the shares of infant defendants ought not to 
 be paid to their guardians ad litem, but should be brought into 
 Court, and invested for the benefit of such infants ; Carpenter v. 
 Schermerhorn, 2 Barb. C. R. 314. So, if such infant is a wife, 
 her share should not be paid to the husband ; Sears v. Hyer, 1 
 Paige, 483. 
 
OF PARTITION". 437 
 
 the Master's report, a commission is issued to per- 
 sons nominated by tb.e parties, or if necessary by the 
 Court, directing them to enter on and survey the 
 estate, to make a fair partition thereof, to allot their 
 respective shares to the several parties, and to make 
 a return of their having done so to the Court. The 
 commissioners in making their division are guarded 
 by the principles already explained. After making 
 it they allot to the several parties their respective 
 shares ; and in doing this they ought to look to 
 their respective circumstances, and to assign to each 
 that part of the property which will best accommo- 
 date him.(7t;) 
 
 The return of the commissioners, when made, is 
 confirmed by the Court. The confirmation, how- 
 ever, does not, like the judgment on a writ of par- 
 tition, operate on the actual ownership of the land, 
 so as to divest the parties of their undivided shares, 
 and re-invest them with corresponding *es- r.^oon-i 
 tates in their respective allotments, but it 
 requires to be perfected by mutual conveyances ; and 
 the next step, therefore, after confirmation of the 
 return, is a decree that the plaintiffs and defendants 
 do respectively convey to each other their respective 
 shares, and deliver up the deeds relating thereto, 
 and that in the mean time the allotted portions shall 
 respectively be held in severalty. If any of the co- 
 owners have settled or mortgaged their shares, direc- 
 tions will be given for framing the conveyance so 
 that all parties shall have the same interests in the 
 divided shares, which they before had in the undi- 
 
 (k) Story V. Johnson, 1 Y. & C. 538 ; 2 Y. & C. 586. 
 
438 ADAMS'S DOCTRINE OF EQUITY. 
 
 vided share. (?) If the infancy of the parties or 
 other circumstances prevent the immediate execu- 
 tion of conveyances, the decree can only extend to 
 make partition, give possession, and order enjoyment 
 accordingly until effectual conveyances can be made. 
 If the defect arises from infancy, the infant must 
 have a day after attaining twenty-one years to show 
 cause against the decree, (m)' 
 
 In addition to the decree for a partition, the Court 
 may also, if either of the co-owners has been in the 
 exclusive perception of the rents, decree an account 
 of his receipts. But the mere fact of his having 
 occupied the property will not of itself make him 
 liable for an occupation rent ; for the effect of such a 
 rule would be that one tenant in common, by keep- 
 ing out of the actual occupation of the premises, 
 might convert the other into his bailiff, and prevent 
 him from occupying them, except upon the terms of 
 paying rent, (n) The period over which the account 
 will extend was originally unlimited in the case of 
 
 (Z) Horncastle v. Charlesworth, 11 Sim. 315, 317; Story v. 
 Johnson, 2 Y. & C. 586. 
 
 (m) Brook v. Lord Hertford, 2 P. "Wms. 518 ; Seton on De- 
 crees, 275. 
 
 (») Lorimer v. Lorimer, 5 Mad. 363; Macmahon v. Burchell, 
 2 Ph. 127; Henderson v. Eason, 2 Ph. 308. 
 
 ' Where some of the owners are infants, the return of the com- 
 missioners for a partition will not be confirmed until the infants 
 have been brought before the Court by bill ; House v. Falconer, 4 
 Desau. 86. Independently of statutes, the Court has power 
 to decree a conveyance by an infant party in a suit for partition 
 to be binding on him, unless he shows cause within six months 
 after becoming of age; Jackson v. Edwards, 7 Paige, 386, 405. 
 
OF PARTITION. 439 
 
 joint tenants and coparceners, on the ground that a 
 mutual trust existed between them. In the case of 
 tenants in common, it was confined to six years, by 
 analogy to the statute which gave *them an 
 account at law. It is now confined in all ■- -■ 
 cases to six years, (o) '■ 
 
 When a ship is the subject of tenancy in common, 
 it is obviously impossible to make partition, and a 
 decree for sale is beyond the jurisdiction of the 
 Court.^ The co-ownership, therefore, is incapable of 
 compulsory severance, and if it were governed during 
 its continuance by the ordinary rule of law, exempt- 
 ing each of the co-owners from any control by the 
 rest, would enable any one of them, by resisting the 
 employment of the ship, to render it valueless to all. 
 In order to obviate this inconvenience, there is a 
 jurisdiction in the Court of Admiralty to entertain 
 the application of a majority in value or interest, for 
 liberty to employ the ship in a particular adventure, 
 
 (o) Prince v. Heylin, 1 Atk. 493 ; 4 Ann. c. 16, s. 27; 3 & 4 
 Wm. 4, c. 27. 
 
 * A tenant in common in sole possession, is chargeable upon 
 partition, with an occupation rent; Hitchcock v. Skinner, 1 Hoff. 
 C. E. 21; Backler v. Farrow, 2 Hill. C. E. 111. And sometimes 
 interest on the rents from the time of bill filed ; Carter v. Carter 
 5 Munf. 108. But he will be allowed for substantial improve' 
 ments made by himself or his ancestors ; Eespass v. Breckenridge. 
 2 A. K. Marsh. 581; Louvalle v. Menard, 1 Gilman, 39 
 Conklin v. Conklin, 3 Sandf. C. E. 64; Hitchcock v. Skinner, 
 supra. Or, as is most usual, his share shall include the improve 
 ments; St. Felix v. Eankin, 3 Ed. C. E. 323 ; Brookfield v. Wil 
 liams, 1 Green Ch. 341 ; Sneed v. Atherton, 6 Dana, 276 
 Borah V. Archer, 7 Dana, 176. 
 
 » See Cropster v. Griflath, 2 Bland. E. 5. 
 
440 Adams's doctrine of equity. 
 
 giving security to their co-owners, either to bring 
 her back or to pay the value of their shares. When 
 this is done the dissentient owners bear no portion 
 of the expenses, and have no share in the profits. 
 It is considered that the same right exists where the 
 owners are equally divided, but its extension to a 
 minority is more doubtful. (^) 
 
 The equity for assignment of dower originates, in 
 like manner with that for partition, out of the unity 
 of possession of the widow^ and heir.^ 
 
 (jj) Story on Partnership, s. 427-439 ; Smith's Merc. Law, 174 ; 
 Davis V. Johnston, 4 Sim. 539. 
 
 ' Courts of Chancery have a concurrent jurisdiction with Courts 
 of law, in assigning dower. Herbert v. Wren, 7 Cranch, 370. 
 To entitle the wife to dower, the husband must have been seized of 
 a present freehold, as well as of an estate of inheritance. Dunham 
 V. Osborn, 1 Paige, 634. 
 
 She is, in most of the States, endowable of an equitable interest 
 held by her husband in land, provided he continues to hold it 
 to the time of his death ; Hawley v. James, 5 Paige, 318 ; 
 Lawson v. Mason, 6 Dana, 471 ; Hamilton v. Hughes, 6 J. J. 
 Marsh, 581 ; Gillespie v. Somerville, 3 Stew. & Port. 447 ; Winn 
 V. Elliott, Hardin, R. 482 ; Lewis v. Moorman, 7 Porter, 522 ; 
 Shoemaker v. Walker, 2 Ser. & Rawle, 554 ; Stevens v. Smith, 4 
 J. J. Marsh. 64; Eowton v. Rowton, 1 Hen. & Munf. 92; 
 Baily v. Duncan's Rep., 4 Monr. 262 ; Eleeson v. Nicholson, 
 Walker's Miss. 247. See, on the other hand, Kirby v. Dalton, 1 
 Dev. C. R. 195 ; Milledge v. Lamar, 4 Desau. R. 638. 
 
 She is endowable of an equity of redemption. Smith v. Jack- 
 son, 2 Ed. C. R. 28 ; Titus v. Neilson, 5 John. C. R. 452 ; Keith 
 V. Trapier, 1 Bailey C. R. 63 ; Bell v. Mayor of N. Y. 10 Paige, 
 49; Evertson v. Tappan, 5 John. C. R. 497; Russell v. 
 Austin, 1 Paige, 192; Reed v. Morrison, 12 Ser. & Rawle, 
 18 ; Kettle v. Vandyck, 1 Sandf. C. R. 76 ; Hartshorne v. Harts- 
 home, 1 Green Ch. 349; Heth v. Cocke, 1 Rand. 344; 
 Wheatley v. Calhoun, 12 Leigh, 264. Of a rent; Herbert v. 
 
OF ASSIGNMENT OF DOWER. 441 
 
 By the old law the widow's right of dower was a 
 right to have assigned to her, on the death of her 
 
 Wren, 7 Cranci, 370 ; Williams v. Cox, 3 Ed. Ch. 178. Of 
 land bought with partnership funds, if it is not properly the part- 
 nership property; Wheatley v. Calhoun, 12 Leigh, 264. Of 
 a fee simple, determinable by executory devise, on her husband 
 dying without issue living at the time of his death ; Evans v. 
 Evans, 9 Penna. St. R. 190 ; Milledge v. Lamar, 4 Desau. 
 637. And even of railroad shares, although a part of the amount 
 due on the stock, has been paid since the death of the holder ; 
 Price v. Price, 6 Dana, 107. 
 
 But where there is but a momentary seisin of the husband, 
 dower does not attach; Mayburry v. Brien, 15 Peters, 21 ; Ballard 
 V. Bowers, 10 N. H. Eep. 500. The widow is not endowed of land 
 given., and of land received in exchange. See Stevens v. Smith, 
 4 J. J. Marsh. 64. Nor of a reversion; Blow v. Maynard, 2 Leigh, 
 30. Nor of a vested remainder, where the husband dies or aliens 
 during the continance of the particular estate ; Dunham v. Osborn, 
 1 Paige, 634 ; Cooke v. Phillips, 12 Leigh. 248. Nor of an estate 
 of which her husband was merely trustee ; Powell v. Manufactu- 
 ring Co., 3 Mason, 347 ; Eobinson v. Codman, 1 Sumner, 121 ; 
 Derush v. Brown, 8 Ham. 412 ; Bartlett v. Gouge, 5 B. Monr. 
 152 ; Cowman v. Hall, 3 Gill & J. 398 ; Thompson v. Mur- 
 ray, 2 Hill C. R. 204, 213 ; Dean v. Mitchell, 4 J. J. Marsh, 
 451. Nor of partnership property as against creditors of the firm 
 Greene v. Greene, 1 Ham. 535. See also Sumner v. Hampson, 
 8 Ham. 828; Richardson v. Wyatt, 2 Desau. 471; Pierce v. 
 Trigg, 10 Leigh, 406 ; sed vide Smith v. Jackson, 2 Ed. Ch. 
 R. 28 ; wherein the doctrine of Greene v. Greene supra is ques- 
 tioned. Nor of the land of a husband, found, before marriage, to 
 be of unsound mind, and who continued so until death ; Jenkins 
 V. Jenkins, 2 Dana, 102. Nor of the estate of a joint tenant, 
 Mayburry v. Brien, 15 Pet. 21. Nor shall the widow entitled 
 to dower in land sold by her husband, take any advantage from 
 the improvements made by the purchaser, but may from the 
 increased value of the land ; Thompson v. Morrow, 5 Ser. &. 
 Eawle, 290; Braxton v. Coleman, 5 Call R. 433; Hazen v. 
 Thurber et al. 4 Johns C. R. 604; Dashiel v. Collier, 4 J. 
 
442 ADAMS'S DOCTEINE OF EQUITY. 
 
 husband, a third part of the lands and tenements of 
 which he was seised during the marriage in fee sim- 
 ple or fee tail, and which her issue (if any) might by 
 possibility have inherited. If the thing of which she 
 was endowed were divisible, her dower must have 
 been set out by metes and bounds ; if it were indi- 
 visible she must have been endowed specially, as of 
 the third presentation to a church; the third toll 
 dish of a mill; the third part of the profits of an 
 
 f-.r.^.-, office, and the like. Upon *the death of the 
 
 r*2341 . 
 
 L -J husband her right to dower became perfect, 
 
 but unless her precise portion of land had been 
 
 already specified she could not enter till dower was 
 
 assigned. It was, therefore, the duty of the heir, or 
 
 his guardian, to assign dower within forty days after 
 
 the husband's death. If he did not assign it, or 
 
 assigned it unfairly, the widow had her remedy at 
 
 law by writ of dower, or of dower unde nihil Jiabet, 
 
 and the sheriff was appointed to assign it. The 
 
 recent Statute of Limitations, which abolished other 
 
 real actions, has retained these writs, (g) 
 
 The inconveniences attending assignment at law, 
 
 coupled with the difficulties to which the dowress 
 
 (2) 1 Stepb. Blaekst. 249-254 ; 3 Steph. Bl. 657-661 ; 3 & 4 
 Wm. 4, c. 27, s. 36. 
 
 J. Marsh, 603; [Beavers v. Smith, 11 Ala. 20; Mosher v. 
 Mosher, 3 Maine, 371 ; Powell v. Manufacturing Co., 3 Mason, 
 347 ; Dunseth v. Bank U. S., 6 Ohio Eep. 77. Yet see, as to 
 her advantage from the land's rise in value, Tod v. Baylor, 4 Leigh, 
 498 ; Hale v. James, 6 Johns. C. E,. 258 ; Humphrey v. Phin- 
 ney, 2 Johns. R. 484. A widow who was not a citizen of the 
 United States, at the time of her husband's death, cannot be 
 endowed ; Alsberry v. Hawkins, 9 Dana, 177. 
 
OF ASSIGNMENT OF DOWER. 443 
 
 was exposed, by reason of her evidence being in pos- 
 session of the heir, gave rise to a concurrent jurisdic- 
 tion in equity for issuing a commission to set out her 
 dower, or making a reference to the Master for the 
 same purpose, (r) 
 
 At the same time with the decree for assigning 
 dower, an account might, before the late statute, 3 & 
 4 "Wm. 4, c. 27, s. 40, have been directed of the 
 rents and profits received since the husband's decease, 
 and payment of one-third to the widow. At com- 
 mon law the demandant in a Writ of dower, as in 
 any other real action, was not entitled to damages 
 in respect of bygone rents ; but by the Statute of 
 Merton a special relief was given, and it was enacted 
 that "if a widow were deforced of her dower, and 
 should subsequently recover the same by plea, she 
 should recover damages to the amount of the value 
 of the dower from the death of the husband to the 
 day of her recovering seisin." In accordance with 
 this rule of law, a dowress was entitled in equity to 
 an account of rents and profits from the death of her 
 husband ; and although at law her right to damages 
 would be lost by the death of the heir, yet such 
 death, if occurring pendente lite, was not allowed in 
 equity to *prejudice her claim, (s) It is now r^nocn 
 enacted by 3 & 4 Wm. 4, c. 27, s. 40, that no 1^ ^^^^ 
 arrears of dower, nor any damages on account of such 
 arrears, shall be recovered by action or suit for a 
 
 (r) Curtis v. Curtis, 2 B. C. C. 620; Mundy v. Muudy, 2 Ves. 
 J. 122 ; Pulteney v. Warren, 6 Ves. 73, 89 ; Agar v. Fairfax, 17 
 Ves. 533, 552 ; Seton, 261. 
 
 (s) 20 Hen. 3, c. 1 ; Curtis v. Curtis, 2 B. C. C. 620 ; Olive 
 V. Richardson, 9 Ves. 222. 
 
444 ADAMS'S DOCTRINE OF EQUITY. 
 
 longer period than six years next before the com- 
 mencement of such action or suit.' 
 
 The right of the widow, under certain modifica- 
 tions, still exists ; but by the recent Dower Act it 
 has been reduced, as to all women married after 1st 
 January, 1834, to a right of a very precarious descrip- 
 tion, which the husband may defeat by conveyance 
 or devise, or by a simple declaration that his estate 
 shall be exempt, (i) 
 
 The equity for relief against subtraction or non- 
 payment of tithe originates in the fact that the tithes, 
 with the remaining produce, continue rightfully in 
 possession of the tithe-payer, who is bound to set 
 them apart and to account for them to the tithe-own- 
 er; and it is accordingly an equity against the tithe- 
 payer alone, and not against any third person who 
 may have received the tithes under an adverse 
 claim. In this latter case an ejectment is the proper 
 remedy, {u) 
 
 The right to tithe is a right capable of enforce- 
 
 (0 3 & 4 Wm. 4, c. 105. 
 
 (m) Pulteney v. Warren, 6 Ves. 73, 90 ; St. Asaph t. Williams, 
 Jac. 349. 
 
 ' A widow is entitled in equity, to an account of the rents and 
 profits until her dower is assigned, independently of the statute of 
 Morton ; Keith v. Trapier, 1 Bailey Eq. 63. In Sellman v. 
 Bowen, 8 Gill & J. 50, and Steiger v. Hillen, 5 Gill & J. 
 121, it was held that she is entitled to damages from her husband's 
 alienee from" the time of demand made by her. In Tod v. Baylor, 
 4 Leigh, 498, it was held that she was entitled to an account of 
 the profits only, from the date of the subpoena. And in Garton v. 
 Bates, 4 B. Monr. 366 ; Golden v. Maupin, 2 J. J. Marsh E. 
 240 ; and Kendall v. Honey, 5 Monroe, 283, that she was not 
 entitled to profits even from the commencement of the suit. 
 
OF ASSIGNMENT OF DO"n"ER. 445 
 
 ment at the common law, and also to some extent 
 in the Ecclesiastical Courts. The exact nature of 
 the right, and of the remedies in the common law 
 and Ecclesiastical Courts, are not material to be here 
 considered. It is suflBcient to observe that the tithe- 
 owner, suing in those Courts, is in some case enabled 
 by statute to recover the treble value of the tithe, 
 and that, inasmuch as the treble liability is in the 
 nature of a forfeiture, he is required to waive it if he 
 sues in equity, (v) 
 
 The relief prayed by a bill for tithes may be 
 resisted in two ways : the defendant may either deny 
 the plaintiff's title ab origine, alleging an adverse 
 right in some third *person, and establishing r-^^nr'-, 
 it by proof of an actual grant, or by presump- •- ^ 
 tion arising from long enjoyment ;(■?«) or he may 
 admit a primary title in the plaintiff, and insist on 
 an absolute or partial discharge, either by a prescrip- 
 tion de non decimando, which is when lands are 
 absolutely discharged from tithe, on the ground that 
 from time immemorial they have not been liable ; or 
 by a prescription de modo dedmandi, commonly called 
 a modus, which is where, by immemorial usage, a 
 particular mode of tithing has been allowed, different 
 from the payment of a tenth in kind ; or by a com- 
 position real, which is an agreement made between 
 the owner of lands and the parson or vicar, with the 
 consent of the ordinary and patron, that such lands 
 shall be discharged from tithe by reason of land, or 
 other real recompense, given to the parson in their 
 stead, (a;) If the primary title is disputed, it must 
 
 («) 3 Steph. Bl. 123-125, 708. (w) 3 Steph. Bl. 125-i27. 
 («) Ibid. 127-133. 
 
446 ADAMS'S DOCTRINE OF EQUITY. 
 
 be established in a regular action at law, before the 
 equity for an account can arise ; but if that right is 
 admitted, and met by a specific ground of exemption 
 e. g., a modus or prescription de non decimando, the 
 Court may either decide the question itself, or may 
 refer it to a jury on a feigned issue. (?/) 
 
 There is also a cross equity for establishing a 
 modus against the tithe-owner, where the tithe- 
 payer has been disturbed by proceedings, either in 
 equity or elsewhere, to enforce payment in kind. 
 But if the rector insists on trying the existence of 
 the modus at law, he is entitled to demand an issue 
 for that purpose, (z) 
 
 The equitable jurisdiction over tithes and moduses 
 was originally vested in the Court of Exchequer. 
 That of the Court of Chancery over the same subject 
 is of much later origin, or at least was a matter of 
 controversy to a much later period, and was not 
 
 ,-.^„»-, firnaly established until after the *Restora- 
 
 r 2371 • • 
 
 •- "" -I tion. Since that period the Court of Chan- 
 cery has always been held to have a concurrent 
 authority with the Exchequer ; and when the equit- 
 able jurisdiction of that Court was abolished, it ob- 
 tained the sole jurisdiction on the subject. 
 
 The jurisdiction was originally exercised without 
 reference to the value of the tithe. But by a recent 
 statute it is confined to cases where the yearly value 
 is upwards of lOZ., or where the actual title to the 
 tithe, composition, or modus, or the actual liability 
 
 (y) Knight v. Waterford, 11 01. & F. 657 ; Raine v. Cairns, 4 
 Hare, 327, 333 ; 12 CI. & F. 833. 
 
 (z) Gordon v. Simpkinson, 11 Ves. 509 ; 2 Dan. C. P. 1056 ; 
 1 Madd. C. P. 334. 
 
ASCEETAINMENT OF BOUNDARY. 447 
 
 or exemption of the property sought to be charged, 
 is bona fide in question, (a) And by the gradual 
 operation of the Tithe Commutation Acts, for con- 
 verting all tithes into fixed rent-charges, recoverable 
 by distress and entry, it is becoming practically ex- 
 tinct, (b) 
 
 The equity for ascertainment of boundary arises 
 when lands are held in severalty by independent 
 proprietors, but the boundaries have been confused 
 by the misconduct of the defendant, or of those 
 under whom he claims. The mere confusion of 
 boundary will not create it, for the fact that a man 
 cannot ascertain his property does not constitute an 
 equity against another person. But it must be 
 shown that the confusion has been caused by the 
 defendant's misconduct, or by the misconduct of 
 those under whom he claims. As, for example, 
 where a tenant has confounded the boundaries to 
 prevent a distress ; or a copyholder has confounded 
 the copyholds with his own freehold. In this case 
 the Court will issue a commission to ascertain the 
 boundaries, or will set out an equivalent portion of 
 the lands in the defendant's possession. It will, at 
 the same time^ if necessary, decree an account of 
 rents and profits, (c) 
 
 The equity for payment of rent arises where, by 
 
 (a) 6 & 6 Wm. 4, c. 74: 4 & 5 Viet. c. 36; 3 Steph. Bl. 709. 
 
 (6) 6 & 7 Wm. 4, c. 71- 1 Vict. c. 69; 1 & 2 Vict. c. 64; 2 
 & 3 Vict. c. 62; 3 & 4 Vict. c. 15; 5 & 6 Vict. c. 54; 3 Steph. 
 Bl. 138, 137. 
 
 (c) Wake v. Gonyers, 1 Eden, 331 ; Speer v. Crawter, 2 Meriv. 
 410 ; Miller v. Warmington, IJ. & W. 484. 
 
448 
 
 ADAMS S DOCTRINE OF EQUITY. 
 
 pj-noo-. <^onfusion of boundaries, by fraudulent re- 
 -• moval of goods, or by the incorporeal nature 
 of the hereditaments charged, the remedy at law by 
 distress is gone, without default in the owner of the 
 rent. A bill seeking this relief may be supported 
 merely by proof of long-continued payment, and is 
 then termed a bill founded on the solet. The same 
 remedy has been given where the days on which 
 the rent was payable were uncertain, and even where 
 the nature of the rent (of which there are many 
 kinds at law) was unknown. ((^)' 
 
 QI) Duke of Bridgewater v. Edwards, 6 B. P. C, by Toml, 
 368 ; Holder v. Chamburyj 3 P. Wms. 256 ; Benson v. Baldwyn. 
 1 Atk. 598; Bouverie v. Prentice, 1 B. C. C. 200; Duke of 
 Leeds v. New Kadnor, 2 B. C. C. 338; Attorney-General v. 
 Jackson, 11 Ves. 365. 
 
 * Although a Court of Chancery will not ordinarily take juris- 
 diction of a case of rent, yet when the time of payment, or the 
 amount to be paid is uncertain, or when the distress is evaded or 
 obstructed by fraud, the Court will take jurisdiction, and give 
 relief; Dawson v. Williams, 1 Freem. C. E. 99. So where the 
 lease has been lost; Lawrence v. Hammett, 3 J. J. Marsh, 
 287. 
 
OF PARTNERSHIP. 449 
 
 *CHAPTER III. [*239] 
 
 OF PAETNEKSHIP. 
 
 The equity for winding up the business of a part- 
 nership originates in the peculiar character of that 
 relationship, as involving not merely a community 
 of interest, but the employment of a common stock, 
 whether consisting of property or of mere labour and 
 skill, in some common undertaking, with a view to 
 a common profit, (af In order that such common 
 profit may be obtained, it is essential that there be 
 a capacity to contract partnership debts, and to 
 acquire partnership assets, independent of the debts 
 and assets of the individual partners, the ultimate 
 
 (a) 2 Steph. Bl. 150 ; Coope v. Eyre, 1 H. Blacks. 37. 
 
 * To constitute a partnership as between the parties themselves, 
 there must be a joint ownership of the partnership funds, and an 
 agreement express or implied to share profits and losses ; Chase 
 V. Barrett, 4 Paige, 148. But sharing only in the profits of 
 a concern constitutes a partnership between the parties, as to 
 third persons; Motley v. Jones, 3 Ired. Ch. K. 144; Turner v. 
 Bissell. 14 Pick. 194 ; Simpson v. Feltz, 1 M'Cord C. K. 218 ; Pur- 
 viance v. M'Clintee, 6 Ser. & Eawle, 259 ; Dob v. Halsey, 16 Johns. 
 34; Brown v. Higginbotham, 5 Leigh, 583. See also the remarks 
 of Jarman in his elaborate work on Conveyancing, vol. vii., p. 11, 
 in notis, wherein the distinction made by Mr. Justice Story (Part- 
 nership, p. 51) between participation in the gross, and in the nett 
 profits, as a criterion of partnership, is commented upon as unsound. 
 
 29 
 
450 Adams's doctrine of equity. 
 
 balance of which is the profit or loss of the firm. 
 And, therefore, before the interest of an individual 
 partner can be known, an account must be taken of 
 the business, the assets, and the liabilities, so that the 
 divisible surplus may be ascertained. 
 
 The common law Courts cannot take this account. 
 The mere existence of a partnership does not neces- 
 sarily exclude this jurisdiction ; for it may happen 
 that litigation exists between the partners, witi 
 which they are fully competent to deal. Such, for 
 example, is the case where the transaction in re- 
 spect of which relief is sought is wholly independent 
 of the partnership ; or is merely preliminary to it ; 
 or consists in the breach of a covenant or of an un- 
 r*9im ^^^^^ki'^S *^^ perform some specific act, so 
 L J that the decision is unconnected Avith the 
 partnership account ; or where a dissolution has 
 already taken place, and the balance of account has 
 been struck, so that further investigation is not re- 
 quisite. But if it be necessary to investigate the 
 account, it cannot be done at law, unless by the 
 adoption of the action of account, the inconveniences 
 of which have been already explained. (6)^ 
 
 (6) 3 Steph. Bl. 532 ; Smith's Merc. Law, 38 ; Foster v. Allan- 
 son, 2 T. R. 479 ; Jackson v. Stopherd, 4 Tyrw. 330 ; Elgie v. 
 "Webster, 5 M. & W. 518 ; Brown v. Tapscott, 6 M. & W. 
 119. 
 
 '■ Partners may sue each other at law for a breach of any distinct 
 engagement in the partnership agreement, and generally adequate 
 relief can in such case be obtained : where this can be done, equity 
 will not interfere. Kinloch v. Hamlin, 2 Hill C. R. 19 ; Duncan 
 V. Lyon, 3 John. C. R. 360; Hunt v. Gookin, 6 Verm. R. 462. 
 But in matters of difficulty or controversy between partners it is 
 now most usual to resort to a Court of equity for their final adjudica- 
 
OF PARTNEESHIP. 451 
 
 If a dissolution, as well as an account, be sought, 
 the common law j urisdiction is altogether excluded. 
 
 The incapacity thus existing in the Courts of law 
 confers a jurisdiction on the Court of Chancery; and 
 accordingly, if the partnership has been already dis- 
 solved, or if there be misconduct or incompetency in 
 either partner sufficient to warrant its dissolution, a 
 bill will lie to have the assets converted into money, 
 the debts discharged out of their produce, and the 
 surplus distributed among the partners, or the defi- 
 ciency made good by contribution, (c) 
 
 There may of course be grounds for relief, under 
 general equities, at the suit of one partner against 
 another, independently of this special equity for 
 taking the account,^ e. g., for performance of cove- 
 
 (c) Ex parte Euffin, 6 Ves. 119; Ex parte Williams, llVes. 3. 
 
 tion and settlement ; Bracken v. Kennedy, 3 Soam. R 558. It 
 will entertain jurisdiction, although Account or other action would 
 lie between the parties ; Gillett v. Hall, 13 Conn. R. 426 ; Cun- 
 ningham V. Littlefield, 1 Ed. C. R. 104. And although one part- 
 ner cannot hind the firm by deed; Donaldson v. Kendall, 2 G-eo. 
 Decis. 227; Napier v. Catron, 2 Humph, 534; Dickinson v. 
 Legare, 1 Desau. 537 ; Skinner v. Dayton, 19 Johns. R. 513 ; 
 Fisher v. Tucker, 1 McCord's C. R. 170 ; Williamson v. Hodgson, 
 2 Har. & Johns. 474 ; yet, in some cases, a Court of Equity will 
 regard a debt secured by the specialty of one partner as a simple 
 contract debt, and hold all the partners bound for it. See 
 Gait V. Calland, 7 Leigh R. 594 ; McNaughten v. Partridge, 11 
 Ohio, 223; Christian v. Ellis, 1 Gratt. 396; Anderson v. Tomp- 
 kins, 1 Brock, 456; Kyle v. Roberts, 6 Leigh, 495; James v. 
 Bostwiek, Wright, 142. 
 
 * A Court of Equity may compel specific execution of a partner- 
 ship contract, and may restrain one partner from persisting in a 
 course jeopardizing the rights of another, or depriving him of his 
 due share in the direction of the business ; see Gillett v. Hall, 13 
 Conn. R. 426 ; Pirtle v. Penn, 3 Dana, 248. 
 
452 Adams's doctrine of equity. 
 
 nants in the partnership deed, for recovery of assets 
 fraudulently withdrawn, for an injunction against 
 threatened misapplication of assets, and the like; 
 and if the misconduct of a partner has been know- 
 ingly abetted by a stranger, the abettor may be also 
 sued in equity, for the injured partners cannot sue 
 him at law, because the fraudulent co-partner must 
 be joined as a plaintiff in the action.' The subject, 
 however, of these general equities is not now under 
 consideration. Our present subject is, the special 
 equity for winding up a partnership on the ground 
 that the account cannot be taken at law. And the 
 r*94.11 ^ss^^ti^^ characteristic of this *equity is, that 
 it contemplates the winding up of the part- 
 nership, and not its continuance. A bill will not lie 
 for an account and distribution of the profits, which 
 contemplates at the same time a continuance of the 
 business ; for if a decree could be obtained for such 
 an account, the result would fluctuate in each suc- 
 cessive year, and would only be settled when the 
 partnership was at an end.^ The ordinary course is 
 
 ' Where the same person is a member of two distinct firms, one 
 of those firms cannot sue the other at law, even on an account 
 stated, because one cannot sue himself; the remedy is in Equity ; 
 Calvit V. Markham, 3 How. Miss. R. 343. In Pennsylvania, such 
 suit lies at law by statute ; with this restriction, that no act or de- 
 claration of one party shall be given in evidence in his own favour 
 to the prejudice of others; Purdon's Digest, tit. Partnership. 
 See, also, for the construction of it, Hepburn v. Curts, 7 Watts R. 
 300 ; Pennock v. Swayne, 6 Watts & Ser. 241 ; Tassey v. Church, 
 Ibid. 465. 
 
 " It has often been held that there can be no division of partner- 
 ship property until all the accounts of the partnership have been 
 taken, and the clear interest of each partner ascertained ; that the 
 
OF PARTNERSHIP. 453 
 
 to pray that the partnership may be dissolved, and 
 the surplus assets distributed ; but this practice has 
 been relaxed in favour of joint stock companies, and 
 of other numerous partnerships, and bills have been 
 sustained which asked more limited relief, viz., that 
 the assets of an abandoned or insolvent partnership 
 might be collected and applied in discharge of the 
 debts, leaving questions of distribution and contri- 
 bution as between the partners entirely open for 
 future settlement. (cZ) 
 
 The first topic which occurs in examining this 
 equity is, as to the circumstances which will cause 
 or warrant a dissolution. 
 
 A dissolution may be caused in various ways ; first, 
 by mere effluxion of the time, or completion or ex- 
 tinction of the business for which the partnership 
 was created ; secondly, by mutual agreement of all 
 the partners, or, if no specific term of duration has 
 been fixed, by the declaration of any one partner 
 
 (d) Goodman v. Whitcomb, 1 J. & W. 572 ; Marshall v. Col- 
 man, 2 J. & W. 266 ; Glassington v. Thwaites, 1 S. & S. 124 ; 
 Loscombe v. Eussell, 4 Sim. 8 ; Wallwortb v. Holt, 4 M. & C. 
 619 ; Eichardson v. Hastings, 7 Bea. 301, 323 ; Apperly v. Page, 
 1 Ph. 779; Fairthorne v. Weston, 3 Hare, 887; infra, Pleading 
 Parties. 
 
 Chancellor may, in a proper case, dissolve the partnership, but 
 cannot aid in carrying it on. Baird v. Baird, 1 Dev. & Batfc. 
 524; M'Kae v. M'Kenzie, 2 Dev. & Batt. 232; Camblat v. 
 Tupery, 2 La. Ann. Eep. 10 ; Kennedy v. Kennedy, 3 Dana, 
 240. But, in Pennsylvania, it has been decided that a Court of 
 Equity will entertain a bill for an account by one partner against 
 the other, although the bill does not contemplate a dissolution of 
 the partnership. Hudson v. Barrett, 1 Parson's Sel. Eq. Cas. 
 p. 414. 
 
454 ADAMS'S DOCTRINE OP EQUITY. 
 
 that the connexion is dissolved ; (e) ' and thirdly, by 
 the death or bankruptcy of a partner, or by an execu- 
 tion against him, followed by seizure and sale of his 
 share.^ And when a dissolution is thus eflfected, the 
 executor or administrator of the partner, the assignee 
 under his fiat, or the sheriff's vendee, becomes en- 
 
 («) Peacock v. Peacock, 16 Ves. 49 ; Crawshay v. Maule, 1 Sw. 
 495, 508 ; Featherstonhaugli v. Fenwick, 17 Ves. 298. 
 
 ' Even where a partnersliip is formed for a definite period, it is 
 said, it may lie dissolved at the pleasure of one of the partners ; 
 Skinner v. Dayton, 19 Johns. E. 538 ; Mason v. Connell, 1 Whart. 
 R. 381 ; sed vide Bishop v. Breckles, 1 Hoff. C. R. 534. 
 
 One partner may sell the whole of the partnership property, if 
 the sale be free from fraud on the part of the purchaser, and such 
 sale dissolves the partnership, although the term has not expired; 
 Whitton V. Smith, 1 Freem. C. R. 231 ; Deckard v. Case, 5 Watts, 
 22 ; the latter case differing as to the effect of such sale ; sed vide 
 Hewitt V. Sturdevant, 4 Monr. 453. 
 
 As to his power to make an assignment for the benefit of the 
 firm creditors, see M'Cullough v. Somerville, 8 Leigh, 415 ; Har- 
 rison v. Sterry, 5 Cranch, 289; Egberts v. Wood, 3 Paige, 517; 
 Robinson v. Crowder, 4 M'Cord L. R. 519; Havens v. Hussey, 5 
 Paige, 30; Hitchcock v. St. John, 1 Hoff. C. R. 511; Mill v. 
 Argall, 6 Paige, 577; Pierpont v. Graham, 4 W. C. C. R. 232. 
 
 ' By the general rule of law, every partnership is dissolved by 
 the death of one of the partners, and the dissolution is so effectual, 
 that want of notice of it does not have the effect of making the 
 estate of the deceased partner liable to debts contracted by the sur- 
 viving partners, or for their misconduct ; Caldwell v. Stileman, 1 
 Rawle, 212, 216; Williamson v. Wilson, 1 Bland, 418. But 
 a partner may, by will, provide that the partnership shall con- 
 tinue after his death, and if it be assented to by the surviving 
 partner, it becomes obligatory ; Burwell v. Mandeville, 2 Howard 
 U. S. 560. 
 
OF PARTNERSHIP. 455 
 
 titled to *his interest in the partnership r^.c,At^-, 
 assets, as it shall appear on adjustment of the 
 partnership account. (/)' 
 
 A partnership may also be in some sense dissolved 
 b}^ sale of a partner's share, if such sale be authorized 
 by the deed of partnership.^ The ordinary rule is 
 that no partner can sell or dispose of his share with- 
 out the concurrence of the rest. He may alien his 
 interest in the surplus to be ascertained by taking 
 the partnership account, but he cannot substitute his 
 alienee to the position of a partner, nor give him any 
 right to interfere in the business. A right, however, 
 to alien the share itself may be, and in the case of 
 
 (/) Taylor v. Field, 4 Ves. 396 ; Young v. Keighly, 15 Ves. 
 557 ; Dutton v. Mornson, 17 Ves. 193 ; Ee Wait, 1 J. & W. 605 ; 
 Habershon v. Blurton, 1 D. G. &. S. 1'21. 
 
 • As to dissolution by the seizure and sale of one partner's 
 sbare, see Moody v. Payne, 2 Jobns. C. R. 548 ; Place v. Sweetzer, 
 
 16 Ohio R. 142 ; Brewster v. Hammet, 4 Conn. 540 ; Sitler v. 
 Walker, 1 Freem. C. R. 77 ; Doner v. StoiuflFer, 1 Penna. R. 198 ; 
 Phillips V. Cook, 24 Wend. R. 389. 
 
 ^ A voluntary assignment, by one partner, of all his interest in 
 the concern, dissolves the partnership, although the articles pro- 
 vide that the partnership is to continue until tvf o of the contracting 
 parties shall demand a dissolution ; Marquand v. N. Y. Man. Co., 
 
 17 Johns. R. 5'25; AVhitton v. Smith, 1 Freem. C. R. 231; see, 
 also, Mason v. Connell, 1 Whart. 381 ; Conwell v. Sandidge, 5 
 Dana, 213. A partner may, however, assign his interest to 
 another, who, being substituted, may, after the expiration or dis- 
 solution of the partnership, maintain a bill for his share of the 
 profits ; Matthcwson v. Clarke, 6 Howard U. S. 122. So a part- 
 nership may be dissolved by the act of God, by the act of the 
 government, as, by a war between the countries of the partners, or 
 by some of the members becoming a body politic. The Cape 
 Sable Co.'s Case, 8 Bland, 674. 
 
456 ADAMS'S DOCTRINE OF EQUITY. 
 
 very large partnerships often is, conferred. And the 
 effect of such alienation, when properly made, is to 
 determine the relation of partnership as between the 
 alienor and the other members of the firm, and to 
 substitute a similar relation with the alienee, (g^) 
 This power of alienation is usually confined to joint 
 stock companies, and regulated by the provisions of 
 express statutes. (/;) 
 
 A decree for dissolution will be warranted if it is 
 impossible that the partnership should be beneficially 
 continued, e. g., if the principles on which the 
 scheme is based are found on examination to be 
 erroneous and impracticable ; {i) if one partner ex- 
 cludes, or claims to exclude the other from his pro- 
 per share of conti;ol in the business, or if, though not 
 in terms excluding him, he is so conducting himself 
 as to render it impossible that the business should be 
 P^„ ,„-, conducted *on the stipulated terms; (A;)' if he 
 is dealing fraudulently with the business or as- 
 
 (gr) Young V. Keighly, 15 Ves. 557 ; Duvergier v. Fellowes, 5 
 Bing. 248 ; Blundell v. Winser, 8 Sim. 601 ; Harrison v. Heathorn, 
 
 6 Scott N. R. 735 ; 12 Law J., C. P. 282 ; Pinkett v. Wright, 2 
 Hare, 120, 130. 
 
 (A) Joint Stock Companies' Acts, 7 Wm. 4, and 1 Yict. c. 73; 
 
 7 & 8 Vict. c. 110 and 111 ; Companies' Clauses Consolidation 
 Act, 8 & 9 Vict. c. 16; 3 Stepli. Bl. 182; Joint Stock Banks, 
 Acts, 7 Geo. 4, c. 46, and 1 & 2 Vict. c. 96; 5 and 6 Vict. c. 85; 
 7 & 8 Vict. c. 113 ; 3 Steph. Bl. 340. 
 
 (i) Beaumont v. Meredith, 3 Ves. & B. 180; Clough t. Ead- 
 cliffe, 1 D. G. & S. 164. 
 
 (/c) Goodman t. Whitcomb, 1 J. & W. 589 ; Hale v. Hale, 4 
 Bea. 369 ; Smith v. Jeyes, 4 Bea. 503 ; Waters v. Taylor, 15 Ves. 
 10 ; 2 Ves. & B. 299, 304. 
 
 ' Where a partnership is formed for a definite term, neither 
 
OF PARTNERSHIP. 457 
 
 sets of the partnership ; (I) or if he is incapacitated by 
 incurable lunacy from performing his own part in the 
 partnership business. The lunacy of a partner does 
 not pel- se amount to a dissolution ; but if it be not a 
 mere temporary malady, but a confirmed state of in- 
 sanity, without a fair prospect of speedy recovery, it 
 will warrant a decree for the purpose ; and the part- 
 nership will be dissolved as from the date of the 
 decree, (m) 
 
 Assuming a dissolution to be proved or decreed, 
 the next topic for consideration is the mode of wind- 
 ing up the concern. 
 
 The first step is, that the partnership debts should 
 be ascertained, and the assets applied in their dis- 
 charge.^ If the parties cannot agree on the inter- 
 
 (0 Marshall v. Colman, 2 J. & W. 266. 
 
 (m) Waters v. Taylor, 2 Ves. & B. 299, 303 ; Jones v. Noy, 2 
 M. & K. 125; Besch v. Frolich, 1 Ph. 172. 
 
 partner can, during the term, file a bill for a dissolution merely on 
 the ground that he is dissatisfied, or that the partners quarrel ; 
 Henn v. "Walsh, 2 Ed. C. R. 129. But only little more is needed, 
 and dissolution will be granted, where dissension prevents all 
 hope of advantage ; Bishop v. Breckles, 1 Hoff. 0. R. 534 ; espe- 
 cially where one partner assumes the exclusive control of the 
 business, and is guilty of breaches of faith ; see Kennedy v. Ken- 
 nedy, 3 Dana, 239; Howell v. Harvey, 5 Ark. R. 270; Gowan 
 V. Jefiries, 2 Ashmead, 296; Maude v. Rodes, 4 Dana, 144; 
 Moon V. Story, 8 Ibid. 226; S. C. 3 Ibid. 331; Garretson v. "Wea- 
 ver, 3 Ed. C. R. 385. 
 
 ' The rule, that co-partnership funds are to be applied in the 
 first place to payment of the debts of the firm, and the separate 
 funds of the partners to the payment of their individual debts, 
 before paying joint debts out of the same, is very generally ad- 
 ministered in this country ; see M'Culloh v. Dashiel, 1 Har. & Gill 
 R. 96 ; Lucas v. Atwood, 2 Stewart, 378 ; White v. Dougherty, 1 
 
458 Adams's doctrine op equity. 
 
 mediate management, whilst the process of dissolu- 
 tion is going on, a receiver may be appointed to 
 conduct it. But the court cannot permanently carry 
 on the business, and will not, therefore, appoint a 
 receiver, except with a view to getting in the effects 
 
 Mart. & Yerg. 309 ; Hubble v. Perrin, 3 Ham. Oh. R. 287 ; 
 Topliff V. Vail, Harring. Ch. 340; Tunno v. Trezevant, 2 Desau. 
 270; Woddrop v. Price, 3 Desau. 203; Deveau v. Fowler, 
 
 2 Paige, 400; Innes v. Lansing, 7 Paige, 583; Payne v. Mat- 
 thews, 5 Paige, 19; Rodriguez v. Hefferman, 5 Johns. C. R. 
 417; Simmons v. Tongue, 3 Bland, 356; Kirby v. Schoonmaker, 
 
 3 Barb. C. R. 46 ; Brewster v. Hammet, 4 Conn. 540 ; Witter v. 
 Richards, 10 Conn. 37; Wilder v. Keeler, 3 Paige, 167; Murray 
 V. Murray, 5 Johns. C. R. 60; Gilmore v. N. A. Land Co., 1 Pet. 
 C. C. R. 460 ; Doner v. Stauffer, 1 Penna. R. 198. 
 
 Partnership property cannot be subjected to the separate debts 
 of partners, until all partnership debts are paid, including debts 
 due from the firm to the partners individually ; Christian v. Ellis, 
 1 Gratt. 396 ; Buchan v. Sumner, 2 Barb. C. R. 165 ; Conwell 
 V. Sandidge, 8 Dana, 279 ; Pierce v. Tiernan, 10 Gill. & J. 
 252. But the rule does not apply in the case of a silent partner; 
 in such case the partnership property may be taken for the private 
 debts of the ostensible partner, although there be partnership debts 
 unpaid; Cammack v. Johnson, 1 Green's Ch. 163. The part- 
 nership creditors, as such, have no lien on the joint effects for their 
 debts; their right is wholly dependent on the lien which the indivi- 
 dual partners have upon the joint funds for indemnity against joint 
 debts and for their several proportions of the surplus, including 
 moneys advanced by either of them beyond their share for the use 
 of the partnership. Hence this preference of the joint creditors 
 does not exist when the partnership is such that the partners, as 
 between themselves, can enforce no such right; Rice v. Barnard, 
 20 Vt. R. 479 ; or it may be terminated at any time by the acts of 
 the parties, as, l-. g., by a sale of the stock in trade- by one partner 
 to another; Parish v. Lewis, 1 Preem. C. R. 299; Robb v. 
 Stevens, 1 Clarke C. R. 191 ; see, also, Kirby v. Schoonmaker, 3 
 Barb. C. R. 46; Hoxie v. Carr, 1 Sum. 173; Story v. Moon, 
 3 Dana, 334; Black v. Bush, 7 B. Monr. 210. 
 
OF PARTNERSHIP. 459 
 
 and finally winding up the concern.(w)' If, after 
 applying the assets, there are still outstanding lia- 
 bilities, the partners must contribute in proportion to 
 their shai-es; if, on the other hand, a surplus re- 
 mains, it will be distributed among them in like 
 proportion. 
 
 The proportions in which the partners are respec- 
 tively entitled or liable are determined by the ori- 
 ginal terms of their contract ; or, in the absence of 
 any express declaration on the point, by a reasonable 
 presumption from the circumstances of the case.(o)^ 
 If, subsequently to the *commencement ofp^o..-, 
 the business, advances had been made to the 
 firm, or moneys drawn out, by any partner, beyond 
 his due proportion, their shares in the distribution 
 will be modified accordingly. If such sums have 
 
 (») Waters v. Taylor, 15 Ves. 10, 2 Ves. & B. 299 ; Goodman 
 V. Whitcomb, 1 J. & W. 589 ; Const v. Harris, T. & E. 496 ; 
 Hare v. Hale, 4 Bea. 369 ; Smith v. Jeyes, 4 Bea. 503 ; infra, 
 Receiver. 
 
 (o) Thompson v. Williamson, 7 Bli. 432. 
 
 * The Court, generally, will not appoint a receiver, unless it 
 satisfactorily appears that the plaintiff is entitled to have the part- 
 nership dissolved, and its affairs closed up ; Garretson v. Weaver, 
 3 Ed. C. E. 385 ; Law v. Ford, 2 Paige, 310 ; Marten v. Van 
 Schaick, 4 Paige, 479; Smith v. Lowe, 1 Ed. C. R. 33. Nor 
 without notice to those interested; but there are exceptions, as 
 where irreparable injury would arise from delay ; Williamson v. 
 Wilson, 1 Bland C. E. 418; Gowan v. Jeffries, 2 Ashm. 296; 
 Holden v. McMakin, 1 Pars. Sel. Eq. Cas. 284. 
 
 ' In the absence of any stipulation as to the division of the 
 profits of a partnership, the law divides them equally ; Jones v. 
 Jones, 1 Ired. Eq. 382 ; see also Honore v. Colmcsnil, 1 J. J. 
 3Iarsh. 506; Towner v. Lane, 9 Leigh, 262. 
 
460 Adams's doctrine of equity. 
 
 been advanced or received by way of increase or 
 diminution of capital, they will introduce a new ele- 
 ment in the division of profits ; if by way of loan to 
 or from the partnership, they will not affect the di- 
 vision of profits, but will be dealt with on the foot- 
 ing of loans in the final settlement of the account. 
 The distinction, however, is confined to the account 
 as between the partners themselves, and does not 
 affect the creditors. The creditors are entitled to 
 assume that a partner, dealing with the firm, has 
 dealt with it in his character as a member, so that 
 his advance shall be treated as an increase of the 
 partnership fund, and not as an independent debt. 
 The consequence of this doctrine is, that no partner 
 can, either by making advances to the firm or by 
 any other course of dealing, entitle himself to a lien 
 on the partnership assets, or on the shares of his co- 
 partners therein, except in subordination to the 
 partnership creditors. And e converso money drawn 
 out by a partner without fraud, for his separate use, 
 will not be considered a mere advance by the firm, 
 recoverable as such in the character of a debt, but 
 as having been entirely separated from the joint 
 stock, and become the private property of the indi- 
 vidual. If it has been fraudulently abstracted, the 
 case is different, and the other partners, or, in the 
 event of bankruptcy, the joint creditors may reclaim 
 it for the partnership, (j?)' 
 
 (p) Eichardson v. Bank of England, 4 M. & C. 165 j Pickett 
 V. "Wright, 2 Hare, 129 ; Ex parte Ruffin, 6 Ves. 119 ; Ex parte 
 Yonge, 3 Ves. & B. 31. 
 
 ' A copartner having taken money out of the hands of the part- 
 nership and carried it into a new concern, which became bankrupt, 
 
OF PARTNERSHIP. 461 
 
 In order to effectuate the realization of assets, the 
 payment of debts, and the distribution of surplus, 
 the Court has an authority over partnership estate, 
 which does not exist in other cases of common 
 ownership, — that of directing its sale and conversion 
 into money/ And this jurisdiction may be exer- 
 cised either by the same decree which directs a dis- 
 solution, or, if dissolution has already taken place, 
 by *an interlocutory order, (g) The effect of r^t^A e-i 
 the equity to insist on such a sale, where 
 real estate is held by the partnership, and a dissolu- 
 tion has been caused by death, is to raise a question 
 of equitable conversion between the real and per- 
 sonal representatives of the deceased partner. The 
 legal ownership will of course devolve according to 
 the limitations in the conveyance ; but the equitable 
 interest of the deceased partner in the surplus, so 
 far as it is referrible to the real portion of the assets, 
 will deiTolve on his heir or his executor, according 
 as the equity for sale is confined to satisfaction of 
 the liabilities, or extends to distribution among the 
 partners. The doctrines on this point appear to be 
 
 (q) Crawshay v. Maule, 1 Sw. 495, 523; Featherstonhaugh v. 
 Fenwick, 17 Ves. 298 ; Cook v. Collingridge, Jac. 607 ; Simmons 
 V. Leonard, 3 Hare, 581. 
 
 — — 1 
 
 it was held, that the fund could not be followed specifically, so as 
 to give the former copartnership a priority over the other creditors 
 of the bankrupt house; McCauly v. McFarlane, 2 Desau. 239. 
 
 ' In winding up the concerns of a partnership, after a dissolu- 
 tion, one partner cannot take the partnership stock at a valuation, 
 but its value must be ascertained by the conversion of it into 
 money; Sigourney v. Munn, 7 Conn. E. 11. See also to this 
 point, Evans v. Evans, 9 Paige, 178 ; Dougherty v. Van Nos- 
 trand, 1 Hoff. C. E. 68 ; Conwell v. Sandidge, 8 Dana, 278. 
 
462 Adams's doctrine of equity. 
 
 as follow : first, that if there be any express contract 
 or declaration by the partners, the question will be 
 determined by it ; (r) secondly, that if real estate be 
 purchased with partnership funds for partnership 
 purposes, the conversion into personal estate is 
 absolute ;(s) thirdly, that if it be not purchased with 
 partnership funds, but, being the property of one or 
 more partners, be devoted, either partially or entirely,- 
 to the partnership business, the extent of conversion 
 depends on the intention. And it must be deter- 
 mined from the circumstances of the particular case 
 whether that intention was to convert it in toto, 
 both as to the liability for debts, and also as to the 
 destination of the surplus, or to confine it to subser- 
 vience to the business during its continuance, and to 
 a liability for the debts after dissolution ; (<) fourthly, 
 that if, though purchased out of the partnership 
 fund, it has not been purchased for partnership pur- 
 poses, but has been intended as an investment of 
 surplus profits, it is in fact taken out of the business, 
 r*24-fil *^^^ belongs to the individual partners as 
 their separate property, according to its un- 
 converted character ; {u) and lastly, that the conver- 
 sion, when it operates at all, operates in favour of 
 the personal representative alone, and does not 
 create a liability to probate duty in favour of the 
 
 (r) Ripley v. Waterworth, 7 Ves. 425. 
 
 (s) Phillips V. Phillips, 1 M. & K. 649 ; Broom v. Broom, 3 
 M. & K. 443 ; Bligh v. Brent, 2 Y. & C. 268 ; Houghton v. 
 Houghton, 11 Sim. 491. 
 
 (t) Balmain v. Shore, 9 Ves. 500 ; Randall v. Randall, 7 Sim. 
 271; Cookson v. Cookson, 8 Sim. 529. 
 
 (m) Bell V. Phyn, 7 Ves. 453. 
 
OF PARTNERSHIP. 463 
 
 Crown, which is a stranger to the converting 
 equity, {vy 
 
 If after a partnership has been dissolved by death 
 
 (v) Custanee v. Bradshaw, 4 Hare, 315. 
 
 ^ The American decisions in respect to real estate purchased 
 with partnership funds, or for the use of the firm, establish two 
 principles : 1st. That such real estate is in Equity chargeable with 
 tTie debts of the copartnership, and with any balance due from 
 one partner to another, upon the winding up of the affairs of the 
 firm. 2d. That as between the personal representatives and the 
 heirs at law of a deceased partner, his share of the surplus of the 
 real estate which remains after paying the debts of the partner- 
 ship, and adjusting the claims of the different members of the 
 firm, as between themselves, is to be considered and treated as 
 real estate; Buchan v. Sumner, 2 Barb. C. E,. 165 ; Sigourney v. 
 Munn, 7 Conn. 11 ; Winslow v. Chiffelle, 1 Harp. Eq. E. 25; Thayer 
 V. Lane,"Walker's Eq. E. 200 ; Dyer v. Clark, 5 Mete. 562 ; Greene 
 V. Greene, 1 Ham. Oh. E. 535 ; Marvin v. Trumbull, 1 Wright, 
 386 ; Burnside v. Merrick, 4 Mete. 541 ; Sumner v. Hamp- 
 son, 8 Ohio, 364 ; Eice v. Barnard, 20 Vt. 479 ; Smith v. Tarl- 
 ton, 2 Barb. C. E. 336; Baird v. Baird, 1 Dev. and Batt. 
 524; Hoxie v. Carr, 1 Sum. 173; Overholt's Appeal, 12 Penna. 
 St. E. 222 ; Smith v. Jones, 3 Fairf 337 ; Baldwin v. Johnson, 
 Saxton, 441; Eichardson v. Wyatt, 2 Desau. 471; Woolridge v. 
 Wilkin, 3 How. Miss. E. 360. And if the title to the real estate 
 is in one partner only, and he dies, his heirs will be considered as 
 trustees for the survivor; Pugh v. Currie, 5 Ala. 446. See 
 also Smith v. Eamsay, 1 Gilm. 373. And a sale thereof, in a 
 suit to settle the partnership affairs, binds the heirs of a deceased 
 partner, though not parties to the suit; Waugh v. Mitchell, 1 
 Dev. & Batt. 510. See, on the other hand, Yestman v. 
 Woods, 6 Yerg. 20; Delony v. Hutchinson, 2 Band. 183; 
 Smith v. Jackson, 2 Ed. G. R. 28 ; Hart v. Hawkins, 3 Bibb, 
 502. When partners intend to bring real estate into the partner- 
 ship stock, the intention ought to be manifested by deed or writ- 
 ing, placed on record, that purchasers and creditors may not be 
 deceived; Hale v. Henrie, 2 Watts, 143 ; Forde v. Heron, 4 
 Munf. 316. 
 
464: ADAMS'S DOCTRINE OF EQUITY. 
 
 or bankruptcy, the assets are used by the surviving 
 or solvent partner for the purposes of profit, he is in 
 the same position as any other fiduciary holder of 
 property using it for his own benefit, and is liable at 
 the option of the executors or assignees to account 
 for the profit which he has made.' It does not, 
 however, follow, that in taking the subsequent ac- 
 count, the division of the profits is to be the same as' 
 if the partner had not died or become bankrupt, or 
 is to be determined by any other specific rule; but 
 the decision will be guided by the circumstances of 
 the business, to be ascertained by inquiry under the 
 direction of the Court, such, for instance, as the 
 source from which the profits are derived, whether 
 originating in mere profitable traflSc or in the perso- 
 nal skill and activity of individual partners, (if?) 
 There is a doubt as to the liability of a surviving 
 partner with respect to the mere good will of a com- 
 mercial partnership, where such good will is uncon- 
 nected with any particular premises, and consists 
 only in the probability that the customers of the 
 old firm will continue their connexion with any new 
 firm professedly carried on in continuance of the 
 
 (w) Crawshay v. Collins, 15 Ves. 218 ; Brown v. De Tastet, 
 Jac. 284 ; Cook v. Collingridge, Jac. 607 ; Wedderburn v. "Wed- 
 derburn, 2 K. 722 j 4 M. & 0. 41; Willet v. Blandford, 1 Hare, 
 253. 
 
 ' If a partnership business after its termination by death or 
 otherwise, is continued by any portion of the associates with the 
 capital or appliances of the firm, all profits derived from such con- 
 tinued business are part of the joint estate, and are to be accounted 
 for to the other partners or their representatives ; Waring v. Cram, 
 1 Parson's Sel. Eq. Cas. p. 516. And see Washburn v. Goodman, 
 17 Pick. 519. 
 
OF PARTNERSHIP. 465 
 
 old. It has been considered on the one hand that 
 such good will belongs exclusively to the survivor, 
 and on the other, that it must be treated as a por- 
 tion of the partnership assets, so as to entitle the 
 executors of a deceased partner to a share of pro- 
 fits, (a;) ^ 
 
 *In addition to the general jurisdiction 
 over partnership, there is also a jurisdiction '- -■ 
 over mines and collieries held by several persons as 
 co-owners, on the ground of what may be termed a 
 quasi partnership. It often happens that such co- 
 owners have, by an agreement expressly made or 
 deduced by implication from their acts, formed them- 
 selves into a trading partnership, holding the mines 
 as a portion of its assets. When this is the case the 
 ordinary jurisdiction over partnership will be inci- 
 dental to their agreement. But it may also happen 
 that no partnership has been formed, and that the 
 parties have merely concurred in working their mine 
 as tenants in common. In this case the jurisdiction 
 over partnerships will not attach ; and if it were an 
 
 (x) Crawshay v. Collins, 15 Ves. 218, 227 ; Cruttwell v. Lye, 
 17 Ves. 336 ; Farr v. Pearce, 3 Mad. 74 ; Lewis v. Langdon, 7 
 Sim. 421; Willet v. Blandford, 1 Hare, 253, 271. 
 
 ' The good-will of a business built up by a copartnership, is an 
 important and valuable interest, which the law recognises and will 
 protect J Williams v. Wilson, 4 Sandf. C. R. 379. And upon a 
 dissolution it must be sold : it does not survive : Dougherty v. Van 
 Nostrand, 1 Hoff. C. E. 68. The good-will (consisting of the 
 subscription list, &c.) of a newspaper is partnership property, and 
 when one of the partners dies, it does not survive to the surviving 
 partner, but is to be sold, with the presses, types, and mechanical 
 appliances of the establishment ; case of The Saturday Courier, 
 Holden's Admr. v. McMakin, 1 Parson's Sel. Eq. Gas. p. 270. 
 
 30 
 
466 ADAMS'S DOCTRINE OF EQUITY. 
 
 ordinary instance of tenancy in common, there would 
 be no jurisdiction to interfere with any one of the 
 co-owners with respect to his own share, whatever 
 ground there might be to restrain him from excluding 
 the rest. The rule, however, is different with re- 
 spect to mines ; for the working of them has always 
 been considered as a species of trade ; and if each 
 owner were to deal separately with his separate share, 
 and to have a separate set of miners going down the 
 shaft, it would be practically impossible to work the 
 mine at all. For this reason it is held upon general 
 principles, without reference to the particular circum- 
 stances of any case, that where tenants in common of 
 a mine or colliery cannot agree in its management, the 
 Court will appoint a receiver over the whole, not- 
 withstanding some of the co-owners may dissent. In 
 accordance with the same view the Court grants an 
 injunction against trespass, and allows suits for the 
 mesne profits of a mine or colliery, if it appears from 
 the peculiar character of the property, coupled with 
 the general circumstances of the case, that the remedy 
 would be impracticable at law. y) 
 
 Q/) Crawshay v. Maule, 1 Sw.495, 518, 523 ; JeflFerys v. Smith, 
 IJ. & W. 298 ; Fereday v. Wightwick, 1 R. & M. 45 ; Bentley 
 V. Bates, 4 Y. & C. 182 ; Vice v. Thomas, 4 Y. & C. 538. 
 
OF TESTAMENTARY ASSETS. 467 
 
 *C HAP TEE IV. [*248] 
 
 OF ADMINISTRATION OF TESTAMENTARY ASSETS. 
 
 The equity for administering the assets of a tes- 
 tator or intestate does not authorize the Court of 
 Chancery to try the validity of a will. The juris- 
 diction for that purpose in regard to wills of personal 
 estate belongs to the Ecclesiastical Courts, and in 
 regard to wills of real estate to the Courts of common 
 law. 
 
 The validity of a will of personal estate is triable 
 only by the Ecclesiastical Courts ; and a probate copy 
 under their seal, unless lost or destroyed, is the only 
 admissible evidence of such validity, and of the con- 
 sequent title of the executor. In like manner if 
 
 * In cases of fraud, equity has a concurrent jurisdiction with a 
 court of law, except in the case of a will charged to have been 
 obtained through fraud. If it be a devise of real estate it is re- 
 ferred to a court of law to decide, upon an issue of devisavit vel 
 noil ; if a testament of personal property, to the Court of the pro- 
 bate. Tet even in this instance, the bill may be retained, to abide 
 the decision in the proper court, and relief be decreed according 
 to the event. Gaines et ux. v. Chew et al., 2 Howard U. S. Kep. 
 619, 645; see also Colton v. Koss, 2 Paige, 396; Hamber- 
 lin V. Terry, 7 How. Miss. R. 143 ; Cowden v. Cowden, 2 Ibid. 
 806 ; Blue v. Patterson, 1 Dev. & Batt. C. R. 457 ; Lyne v. 
 G-uardian, 1 Miss. E. 290, 410 ; Van Alst v. Hunter, 5 Johns. C. 
 R. 148. 
 
468 ADAMS'S DOCTRINE OF EQITITT. 
 
 there be no executor an administrator can only be 
 appointed by the Ecclesiastical Court. And even 
 fraud, if practised on a testator in obtaining a will, 
 is insuflicient to create a jurisdiction in equity. If 
 indeed the fraud be not practised on the testator 
 himself, but on an intended legatee ; e. g., if the 
 drawer of a will were to substitute his own name 
 for that of the legatee, or were to promise the testator 
 to stand as trustee for another, so that the question 
 raised does not affect either the validity of the will 
 or the propriety of the grant of probate, equity may 
 decree a trust. Or if it be practised, not in reference 
 to the will itself, but to its subsequent establishment 
 by the Ecclesiastical Court, e. g., by fraudulently 
 obtaining the consent of the next of kin, the execu- 
 .-,^>^-, tor *may be decreed to consent to a revoca- 
 •- -■ tion of the probate. But if the fraud were 
 practised on the testator in obtaining the will, so 
 that the contest really is whether the will ought to 
 be proved, the proper course is to oppose the grant of 
 probate, and there appears to be no jurisdiction in 
 equity to relieve, (a) 
 
 The validity of a will of real estate, and of the 
 consequent title of the devisee, is triable only by the 
 Courts of common law. If the devisee being out of 
 possession seeks to enforce the will, or if the heir being 
 out of possession seeks to set it aside, their respective 
 modes of doing so are by ejectment at law. If there 
 be outstanding terms or otherlegal impediment, they 
 may respectively come into equity to have them re- 
 moved. If either party being in possession fears that 
 
 (a) Gingell v. Home, 9 Sim. 539 ; Walsh v. Gladstone, 1 Ph. 
 294 ; Allen v. Maopherson, 1 Ph. 133 ; 1 House of Lord's Cases, 
 191. ' 
 
OF TESTAMENTARY ASSETS. 469 
 
 his possession may be subsequently disturbed, he may 
 perpetuate the testimony on a proper bill ; or if after 
 a satisfactory verdict and judgment, he is harassed 
 by repeated ejectments, he may have an injunction 
 to restrain them on a bill of peace. But neither 
 party can resort to the Court of Chancery as a tri- 
 bunal for the trial of the will. If, however, there be 
 a trust to perform or assets to administer, so that the 
 will is drawn within the cognizance of equity, there 
 is an incidental jurisdiction to declare the will is 
 established, after first directing an issue devisavit 
 vel non, to try its validity at law. By the old 
 practice it was necessary to establish a will against 
 the heir, whenever the Court was called upon to 
 execute its trusts, but the rule is now abolished. 
 The issue devisavit vel non, when a declaration of 
 establishment is asked, is demandable as of right by 
 the heir ; for he can be disinherited only by the 
 verdict of a jury. But he may waive this right by 
 his conduct. He is also entitled to demand, that on 
 trial of the issue, the devisee shall not confine the 
 proof of execution to a single witness, but shall 
 give all possible information *as to the vali- p^,f,f.„-| 
 dity of the will by examining every attesting L J 
 witness who is capable of being produced. (6) 
 
 Assuming the right of a personal or real repre- 
 sentative to be established, whether that of an exe- 
 cutor or devisee, or that of an administrator or heir, 
 there is an equity for administering the assets of the 
 
 (b) Kerrich v. Bransby, 7 B. P. C. 437 ; Pemberton v. Pem- 
 berton, 13 Ves. 290, 297 ; Bootle v. Blundell, 19 Ves. 494 ; 31 
 Order of Aug. 1841 ; Tatham v. Wright, 2 R. & M. 1 ; Man v. 
 Eicketts, 7 Bea. 98. 
 
470 ADAMS S DOCTRINE OF EQUITY. 
 
 testator or intestate, originating in the inefficacy of 
 the ordinary tribunals. 
 
 The first difficulty which calls for equitable aid is 
 that of compelling the executor or administrator to 
 get in the assets. With respect to any assets which 
 he has actually received, there are means, though 
 not efiectual ones, for making him account. But if 
 he neglects or refuses to get in the assets, the Court 
 of Chancery alone can enforce collection, (c) 
 
 With respect to assets actually received, the exe- 
 cutor or administrator may be sued by any creditor 
 in a Court of law ; and if he does not by his plea 
 deny the receipt, or if the plaintiff is able to falsify 
 his denial, judgment will be obtained against him. 
 But there are no means at law for obtaining discovery 
 of the assets on oath, nor for distributing them rate- 
 ably among all the creditors. The remedy of a 
 legatee at law is still more limited; for a general 
 legacy, whether pecuniary or residuary, cannot be 
 there recovered ; and even a specific legacy, which 
 is more favourably treated, cannot be recovered, un- 
 less the executor has assented to the bequest.((i)' 
 
 In the Ecclesiastical Court any creditor or legatee, 
 or other person having an interest, may compel the 
 
 (c) Pearse v. Hewitt, 7 Sim. 471. 
 
 (d) Deeks v. Strutt, 5 T. K. 690 ; Jones v. Tanner, 7 B. & C. 
 542. 
 
 ' A legacy cannot be legally reduced into possession by the lega- 
 tee, without the consent of the executor ; but that need not be 
 expressly proved ; it may be inferred from circumstances, though 
 the legatee is himself the executor ; Chester v. Greer, 5 Humph. 
 26. Where the estate of a testator is not indebted, the execu- 
 tor is bound to assent to a specific legacy ; see Price v. Nesbit, 1 
 Hill. C. R. 445. 
 
OF TESTAMENTARY ASSETS. 471 
 
 executor or administrator to deliver an inventory on 
 oath. A creditor, however, has no power in that 
 Court to dispute the truth of the inventory, or to 
 enforce the payment of his *debt, but is re- r:i:9c-i-i 
 mitted for that purpose to the Courts of law. 
 A legatee or next of kin may disprove or object to 
 the inventory, and may also, after assent, recover 
 his legacy or distributive share; but there are no 
 means by which assent can be compelled, or the clear 
 residue ascertained. 
 
 It has been sometimes said that an executor holds 
 the assets in the character of a trustee, and that the 
 jurisdiction attaches on the existence of a trust. 
 This, however, does not seem to be strictly accurate. 
 It is true that in one sense an executor may be 
 called a trustee, as any man may be so called who 
 is bound to apply property for the benefit of others ; 
 but he is not a trustee in the technical sense. 
 It is his duty to pay the creditors and legatees 
 out of the assets, and he is personally liable if he 
 neglect to do so. But there is no trust affecting 
 the assets themselves. He may dispose of them to 
 a purchaser in the absence of actual fraud, without 
 affecting him with a trust by notice ; he may sustain 
 or defend a suit in equity without joining the credi- 
 tors or legatees as parties ; if he neglect to invest a 
 legacy he will not, like an ordinary trustee, be liable 
 for loss occasioned by the delay, or for any increased 
 value, which if sooner invested, the legacy would 
 have borne. And it is not until the debts and lega- 
 cies are paid, and the residue ascertained and appro- 
 priated, or until some legacy has been set apart from 
 the general fund, that his representative character 
 ceases, and he becomes a trustee of such residue or 
 
472 Adams's docteine of equity. 
 
 appropriated legacy, and is subject, in respect of it, 
 to the ordinary rules respecting trust property, (e) 
 The position of the heir or devisee is very similar to 
 that of the executor or administrator. He is not 
 technically a trustee for creditors, but is bound to 
 pay them so far as the assets ^will go. He is account- 
 able in equity on the same principle, and if he re- 
 
 r*2^2T ^^^^® ^^ §^^ ^^ ^^^ outstanding *estate the 
 creditors may enforce its collection in the 
 same way.(/) 
 
 In exercising the jurisdiction to administer assets, 
 all such assets as would be recognised at law are 
 termed legal assets, and are administered in con- 
 formity with legal rules, by giving priority to debts 
 in order of degree ;^ so that debts of a higher degree 
 are discharged before those of a lower ; and debts of 
 equal degree are discharged pari passu, subject to 
 the executor's right of retaining any debt due to 
 himself in preference to other creditors of the same 
 degree. The priority of debts is according to the 
 following order, viz. : 1. Debts due to the Crown by 
 record or specialty, which have priority over all other 
 
 (e) Byrchall v. Bradford, 6 Mad. 13, 235 ; PhiUipo v. Mun- 
 nings, 2 M. & C. 309 ; Wilmott v. Jenkins, 1 Bea. 401 ; Say v. 
 Creed, 3 Hare, 455. 
 
 (/) Burroughs v. Elton, 11 Ves. 29. 
 
 * When the assets are legal, chancery follows the rules of law, 
 in order to prevent confusion in the administration of the estate ; 
 Moses V. Murgatroyd, 1 Johns. C. R. 119. Especially will priori- 
 ties of liens be regarded; judgment-creditors are entitled, in 
 equity, to their legal priority in payment out of the legal assets ; 
 see Purdy v. Doyle, 1 Paige, C. R. 558 ; Pascalis v. Canfield, 1 
 Ed. C. R. 201 ; also Brown v. Thompson, 4 John. G. R. 619 ; 
 Averill V. Louoks, 6 Barb. S. C. R. 470. 
 
OF TESTAMENTARY ASSETS. 473 
 
 debts, as well of a prior as of a subsequent date ; 2. 
 Certain specific debts which are by particular statutes 
 to be preferred ;(5r) 3. Debts by judgment or decree, 
 and immediately after them debts by recognisance 
 or statute; 4. Debts by specialty^ as on bonds, cove- 
 nants, and other instruments under seal ; but if the 
 bond or covenant be merely voluntary it will have 
 priority over legacies only, and will be postponed to 
 simple contract debts, bona fide owing for valuable 
 consideration ; (7i) 5. Debts on simple contract, as on 
 bills or notes and agreements not under seal, on ver- 
 bal promises, and on promises implied by law. 
 
 There are also other assets, recognised in equity 
 alone, which are termed Equitable Assets, and are 
 distributed among the creditors pari passu, without 
 regard to the quality of their debts. 
 
 Legal assets may be defined as "those portions of 
 the property of a deceased person of which his exe- 
 cutor or heir may gain possession, and in respect 
 whereof he may be made chargeable, by the process 
 of the ordinary tribunals, and without the necessity 
 of equitable interference." They consist first of the 
 personal estate, to which the executor *or r*2Pi»1 
 administrator is entitled by virtue of his 
 office; and secondly, of the real estate descended or 
 devised, except where the devise is for payment of 
 debts; a devise of this latter kind rendering the 
 estate, as we shall hereafter see, equitable instead of 
 legal assets. 
 
 The common law rule as to the liability of real 
 
 {g) 2 Wms. on Exors. 723. 
 
 (A) Lady Cox's Case, 3 P. Wms. 339. 
 
474 Adams's doctrine of equity. 
 
 estate restricted such liability within a narrow com- 
 pass. The leasehold estates of the debtor were 
 included in his personalty, and were of course liable 
 for all the debts. But his freeholds were only liable 
 for debts by specialty, expressly naming the heirs ; 
 and if the descent were broken by a devise, or if the 
 heir aliened before action brought, there was no pro- 
 ceeding at law or in equity by which that realty 
 could be affected. In 1691 it was enacted, that 
 "devises, unless for payment of debts, should be 
 treated as fraudulent and void as against specialty 
 creditors ; that the devisee should be liable jointly 
 with the heir on a specialty recoverable by action of 
 debt, and that if descended real estate were aliened 
 by the heir, he should be liable to the extent of its 
 value." (i) In 1807 a bill was introduced and carried 
 by Sir Samuel Eomilly, making the real estate of 
 persons who at the time of their decease were sub- 
 ject to the Bankrupt Laws liable to all their debts, 
 but reserving to creditors by specialty their privilege 
 of precedence. (^) The provisions of the acts of 1691 
 and 1807 were at a later period consolidated and 
 enlarged, and powers were conferred on the Court of 
 Chancery to render effectual any sales or mortgages 
 which might be required for satisfaction of debts, 
 notwithstanding the infancy or other • incapacity of 
 the heir or devisee. (Z) By the last statute on the 
 
 (i) 3 & 4 Wm. & Mary, c. 14, made perpetual by 6 & 7 Wm. 
 3, c. 14. 
 
 (k) 47 Geo. 8, c. 74. 
 
 (Z) 11 Geo. 4, & 1 "Wm. 4, c. 47 ; 2 & 3 Vict. c. 60 ; Price v. 
 Carver, 8 M. & C. 157 ; Soholefield v. Heafield, 7 Sim. 669 ; S. 
 C. 8 Sim. 470. 
 
OF TESTAMENTARY ASSETS. 475 
 
 subject, the injustice which so long existed has been 
 abolished; and the land of every debtor, whether 
 trader or not, and as well copyhold as freehold, which 
 he shall not by will have ^charged with or 
 devised, subject to the payment of his debts, L ^"^^J 
 is made assets, to be administered in equity, for pay- 
 ment of both simple contract and specialty debts, 
 reserving, however, to creditors by specialty in which 
 the heirs are bound, the same priority which they 
 originally possessed, (m) The case of a charge for 
 payment of debts, or of a devise subject to such pay- 
 ment, is expressly excepted from the operation of the 
 act, and retains its original effect of exempting the 
 property as legal assets, and converting it into equi- 
 table assets. 
 
 In addition to the two kinds of legal assets, the 
 personal and the real, which have been already 
 mentioned, there is also a third kind, ,which though 
 not obtainable without the intervention of equity, 
 and therefore not in strictness legal assets, is yet, 
 when obtained, to be administered as such, viz., pro- 
 perty held by a trustee for the testator. For although 
 the benefit of the trust, if resisted, cannot be enforced 
 without equitable aid, yet the analogy of law will 
 regulate the application of the fund. In one instance, 
 that of a fee simple estate held on trust for the tes- 
 tator, the trust is made legal assets by the Statute 
 of Frauds, so as to charge the heir in a Court of 
 law. (n) 
 
 (to) 3 & 4 Wm. 4, 0. 104. 
 
 In) 29 Car. 2, c. 3, s. 10 ; Case of Cox's Creditors, 3 P. Wms. 
 341. 
 
476 Adams's doctrine of equity. 
 
 Equitable assets may be defined as tbose portions 
 of the property which by the ordinary rules of law, 
 are exempt from debts, but which the testator has 
 voluntarily charged as assets, or which, being non- 
 existent at law, have been created in equity.' 
 
 Equitable assets of the first class consist of real 
 estate devised for or charged with the payment of 
 debts. We have already seen that under the old 
 law, if the descent were broken by a devise, the 
 liability as assets was destroyed ; and that the sta- 
 tutes for the abolition of that law contain an exemp- 
 tion of devises for payment of debts. With respect 
 therefore to such devises, the old rule continues ; and 
 if a testator devises land for payment of his debts, or 
 subject to *a charge for such payment, the 
 ■- -I devise operates to destroy the original liability, 
 and to subject the land to a new liability by way of 
 
 ' In most of the States of the Union, the doctrine of equitahle 
 assets has been rendered of very limited application, by legisla- 
 tive enactments, on the one hand destroying preferences among 
 the creditors of a decedent, and on the other, subjecting every 
 species of property of the decedent, equally, to liability for his 
 debts. Where no such enactments have existed, it has prevailed 
 in full effect. Thus, formerly in New York it was decided, that 
 the devise of an estate, in trust to pay debts, and distribute the 
 residue, made the proceeds of the estate equitable assets, out of 
 which creditors were to be T^aidi pari passu ; Benson v. Le Roy, 4 
 Johns. C. R. 651. So in Virginia, moneys arising from the sale 
 of real property are equitable assets, and to be applied equally to 
 all the creditors, in proportion to their claims ; Backhouse v. Pat- 
 ton, 5 Peters, 160; Black v. Scott, 2 Brock. 325. So in 
 Kentucky ; refer to Hilar v. Darby's Adm'r, 3 Dana, 18 ; Clou- 
 das's Ex'r v. Adams, 4 Dana, 603 ; Speed's Ex'r v. Nelson's 
 Ex'r, 8 B. Monr. 499. See also on the doctrine, Henderson v. 
 Burton, 3 Ired. C. R. 259. 
 
OF TESTAMENTAEY ASSETS. 477 
 
 trust, (o) The same rule does not apply to a bequest 
 of personalty, for such a bequest is a mere nullity as 
 against creditors, and does not affect the common law 
 liability, (p) Assets of this kind may be created in 
 three ways : viz., 1. By a devise to trustees, either 
 in fee or for a term, accompanied by a trust to sell 
 or mortgage, or by a general direction to raise money 
 out of the profits ; 2. By a devise that the estate shall 
 be sold, which, if the person to sell be specified, will 
 confer on him a power of sale ; if no person be speci- 
 fied, but the produce is distributable by the executors, 
 will confer on them by implication a similar power, [q) 
 or, if no person be pointed out, either expressly or 
 by implication, will create a charge on the estate ; 
 and, 3. By a direction that the estate shall be charged, 
 which will authorize a sale by the person on whom 
 the legal estate has devolved, (r) 
 
 Equitable assets of the second class consist of 
 interests either in personal or real estate which, being 
 non-existent at law, have been created in equity; 
 and the principal assets of this class are equities of 
 redemption. So long as the right of redemption 
 exists at law, it is not divested of the character of 
 legal assets. And therefore, if the heir or executor 
 redeem, he is chargeable at law with the surplus 
 value ; and the administration will be conducted on 
 the legal principle, (s) If, after forfeiture, a rever- 
 sion remains, to which the equity of redemption is 
 
 (o) Shiphard v. Lutwidge, 8 Ves. 26. 
 
 (p) Scott V. Jones 4 CI. & F. 382 ; Lyon v. Colville, 1 Coll. 449. 
 (q) 1 Sug. on Powers. 134 ; Gosling v. Carter, 1 Coll. 644. 
 (r) Shaw V. Borrer, 1 Keen, 559 ; Ball v. Harris, 8 Sim. 485 ; 
 4 M. & C. 264. 
 
 (s) Hawkins v. Lawse, 1. Leon. 155 ; 2 Wms. on Exors. 1179. 
 
478 Adams's doctrine of equity. 
 
 incident, such equity will follow the character of the 
 reversion, and will still constitute legal assets ; e. g., 
 where a fee simple is mortgaged for a term, or a 
 |.^ „ *leasehold is mortgaged by underlease.(<) If, 
 L -^ after forfeiture, there is no reversion, as, for 
 example, when a fee simple is mortgaged in fee, or 
 a leasehold by assignment of the term, a different 
 rule prevails ; for there is nothing left in the mortga- 
 gor which can be assets at law, and the new interest 
 is a mere creation of equity.' It has therefore been 
 determined, notwithstanding some doubts on the 
 point, that such interest shall be equitable assets. 
 The rule however of distribution pari passu, which 
 has been noticed as incidental to equitable assets, is 
 modified in its application to equities of redemption, 
 in respect both to judgment debts and to debts by 
 specialty. It is modified in favour of judgment 
 debts by permitting them to retain their priority 
 over other claims, because, if such priority were not 
 allowed, the judgment creditor might acquire it by 
 redeeming the mortgage. And it is modified in 
 favour of the debts, by specialty, where the mortgage 
 is of a freehold estate, by permitting them to retain 
 their priority over simple contract debts; because 
 the claim of simple contract creditors on the free- 
 hold estate originates in the statute alone, and is 
 
 (0 Plunkett V. Penson, 2 Atk. 290. 
 
 * In this country, generally, an equity of redemption of mort- 
 gaged real estate, can fee sold on execution upon a judgment at 
 law. Until foreclosure, the mortgagor remains seized of the free- 
 hold, and the mortgagee has in effect but a chattel interest. See 
 Clark V. Beach, 6 Conn. R. 142, 159, 160, and cases there cited. 
 See also Kent's Com., Vol. iv. p. 160. 
 
OF TESTAMENTARY ASSETS. 479 
 
 postponed by the same statute to the right of credi- 
 tors by specialty. But so far as those debts are 
 concerned, to which, independently of the statute, 
 the property can be applied, the distribution is pari 
 passu. In the case of leaseholds, which are chattel 
 interests, the modification does not apply, (m) 
 
 The distinction made between legal and equitable 
 assets, by applying the former in payment according 
 to priority, and the latter in payment pari passu, 
 appears to be founded on sound principles. So far 
 as legal assets are concerned, there is no interference 
 with the legal priorities. The creditors have ad- 
 vanced their funds in reliance on those assets, and in 
 reliance on their being applied in the order settled 
 by law. And whether the law be just or r*oK7-| 
 *unjust, the Court of Chancery cannot alter 
 it. But it was no part of their original contract that 
 other funds, if available for their debt at all, should 
 be available in the same order; and therefore if 
 other assets are brought in, either by the voluntary 
 gift of the testator, or by the special interposition of 
 equity, they may be fairly applied on the principle, 
 that equality is equity and that all honest debts are 
 equally entitled to be paid. 
 
 Where an estate consists of both legal and equitable 
 assets, the rule is, that if any creditor has obtained 
 part payment out of the legal assets by insisting on 
 his preference, he shall receive no payment out of the 
 equitable assets, until the creditors, not entitled to 
 
 (u) Case of Cox's Creditors, 3 P. Wms. 341 ; Harfcwell v. Chit- 
 ters, Amb. 308 ; Sharpe v. Scarborough, 4 Ves. 538 ; Clay v. 
 Willis, 1 B. & C. 364, 272 ; 1 Wms. on Bxors. 1197 ; Coote on 
 Mortgages, 60. 
 
480 Adams's doctrine of equity. 
 
 such preference, have first received an equal propor- 
 tion of their debts. 
 
 The manner of administration in equity is on a 
 bill filed either by creditors or by legatees, praying 
 to have the accounts taken and the property ad- 
 ministered ; or if no creditor or legatee is willing to 
 sue, then by the executor himself, who can only ob- 
 tain complete exoneration by having his accounts 
 passed in Chancery, and is therefore entitled to insist 
 on its being done.('w)^ The most usual practice how- 
 ever is, that the bill should not be filed by the exe- 
 cutor, but by one or more of the creditors or legatees. 
 
 A single creditor may, if he pleases, file such a 
 bill, praying payment of his own debt, and a dis- 
 covery and account of assets for that purpose only. 
 The decree on such a bill is not for a general account 
 of debts, but for an account of the personal estate 
 and of the particular debt claimed, and for payment 
 out of the personal estate in a course of administra- 
 tion. But no decree can be made against the real 
 estate, unless the account is asked on behalf of all 
 the creditors, {w) 
 
 The more usual course is that of a bill by one or 
 more creditors on behalf *of aW The decree r*ocQ-i 
 on such a bill is for a general account of the 
 
 (y) Knatchbull v. Fearnliead, 3 M. & C. 122 ; Low v. Carter, 
 1 Bea. 426. 
 
 (w) Johnson v. Compton, 4 Sim. 47. 
 
 ' If an executor or administrator finds the affairs of the estate 
 so complicated as to render the administration difficult and unsafe, 
 he may institute proceedings in equity against all the creditors, to 
 have their claims adjusted "by the Court, and to obtain its judg- 
 ment for his guide; Brown v. McDonald, 1 Hill C. E,. 300, 301. 
 
 ^ A creditor can sue an executor or administrator in chancery 
 
OF TESTAMENTARY ASSETS. 481 
 
 debts and for an account and application of the per- 
 sonal assets. If the personal estate should prove 
 insuflBcient, a decree will be made against the realty. 
 By this means inconvenient preference of creditors 
 is avoided, as well as the burden which separate ac- 
 tions or suits would bring on the fund. The bill is 
 treated as a demand on behalf of all the creditors 
 who may come in and prove their debts under it, so 
 as to prevent the Statute of Limitations from run- 
 ning against them ; but in other respects it continues, 
 until decree, to be the suit of the actual plaintiff 
 alone. He has a right either to dismiss or compro- 
 mise it ; he may, if assets are admitted and his debt 
 proved at the hearing, demand an immediate decree 
 for payment ; or, if the executor offers payment, may 
 be compelled to accept it. When a decree has been 
 made, the case is different. The fund has been taken 
 into the hands of the Court ; the original plaintiff, 
 though he has still the conduct of the suit, ceases to 
 have the absolute control ; the general body of credi- 
 tors, for whose benefit the decree is made, become 
 
 for an account and discovery of assets, on the ground of a trust in 
 the executor or administrator ; McKay v. Green, 3 Johns. G. K. 
 56. And he may come into this Court, not only for discovery, but 
 for distribution of assets ; Thompson v. Brown, 4 John. C. K. 
 619, 631. 
 
 A decree to account, whether in a suit by a single creditor for 
 himself, or for himself and all the creditors, being deemed for the 
 benefit of all, all the creditors should have notice to come in and 
 prove their debts before the Master; Ibid. The account cannot be 
 taken for his benefit alone, but for all the creditors who choose to 
 come in ; Hazen v. Durling, 1 Green's Ch. R. 133 ; see also Mar- 
 tin V. Densford, 3 Blackf. 295; Judah v. Brandon, 5 Blackf 
 506 ; Cram v. Green, 6 Ham. Oh. R. 429. 
 
 31 
 
482 ADAMSES DOCTRINE OF EQUITY, 
 
 entitled to intervene ; and as a necessary result from 
 this right of intervention, the proof of the plaintiff's 
 debt, given at the hearing, though good against the 
 executor, is not good against them, but must be again 
 proved in the Master's office, (cc) 
 
 A legatee may file a bill for his single legacy, or 
 on behalf of all the legatees for payment of all. But 
 he cannot in either case have a preference over the 
 rest; and therefore, even in a suit for his single 
 legacy, the decree will not be for payment of that 
 legacy alone, unless the executor has admitted assets, 
 and thus subjected himself to a personal decree, but 
 vrill be for a general account of legacies, and rateable 
 pajonent of all. (3/)' 
 
 (x) Sterndale v. Haukinson, 1 Sim. .393 ; Owens v. Dickenson, 
 Cr. & P. 48, 56; Woodgate v. Field, 2 Hare, 211 ; Whitaker v. 
 Wright, 2 Hare, 310, 314 ; Tatam v. "Williams, 3 Hare, 347. 
 
 {y) Mitf. 168. 
 
 ' As a general rule, a legatee may sue the executor for his own 
 particular legacy, without making the residuary legatees parties to 
 the suit. Aliter, where one of the residuary legatees sues for his 
 share of the residue ; an account of the estate being necessary in 
 that case ; Cromer v. Pinckney, 8 Barb. C. R. 466 ; Pritchard v. 
 Hicks, 1 Paige C. R. 270. And see Brown v. Ricketts, 3 John. 
 C. R. 553. But it has been held that one residuary legatee may 
 file a bill in behalf of himself, and all others standing in the same 
 situation, and it is not necessary to make them all parties to the 
 suit. Where a bill is for the payment of a particular legacy, if 
 the defendant admits a sufficiency of assets, a decree for the pay- 
 ment may be made without any general account of the estate. 
 But if it appears by the answer that there is a deficiency of assets, 
 the decree must be for a general account and distribution among 
 all who may come in, and establish their claims under the decree. 
 Hallett V. Hallett, 2 Paige C. R. 15. And see Marsh v. Hague, 
 1 Ed. 0. R. 174. 
 
OF TESTAMENTARY ASSETS. 483 
 
 *Immediately on the executor's answer 
 being obtained, the balance which he admits •- ^ 
 to be in his hands is secured by payment into Court. 
 A receiver of the outstanding personalty, and of the 
 rents and profits of the real estate, is appointed if 
 the circumstances render it necessary. And so soon 
 as the cause can be brought to a hearing, a decree is 
 made for taking the accounts. 
 
 After the decree has been made, the assets will be 
 protected from foreign interference. It has been 
 already stated, that until decree, the plaintiff has an 
 absolute control over the suit, and may at his pleasure 
 dismiss or compromise it. There is, therefore, no 
 ground for restraining other creditors from proceed- 
 ing to enforce their claims. And it is not unfrequent 
 that up to the decree several actions and suits should 
 subsist together, which on a decree being made, will 
 be stopped or consolidated. After a decree the case 
 is different. The decree is not confined to the pay- 
 ment of the plaintiff, but directs a general account 
 and administration, under which all creditors and 
 legatees may claim. And, therefore, if separate pro- 
 ceedings be afterwards carried on, the assets will be 
 protected by the Court from that needless expense. 
 In order to obtain this protection, it is the duty of 
 the executor to put in his answer as speedily as pos- 
 sible, with a view to an immediate decree, and on 
 the decree being made to apply for the necessary in- 
 terference. The answer must contain a correct ac- 
 count, in order that the balance may be paid into 
 Court, and that the executor may be under no temp- 
 tation to create delay. If the answer does not state 
 what the assets are, or if the executor be plaintiff, 
 
484 Adams's doctrine of equity. 
 
 so that he cannot put in an answer, the application 
 should be accompanied by an affidavit, stating the 
 balance in his hands, (z) If the executor neglects 
 to apply, the protection will be granted on the 
 application of any other party interested, (a) ^ 
 
 If the separate proceedings be at law, the protec- 
 tion will *be given by injunction. By the old 
 L J practice this could only be done on a bill 
 filed against the particular creditor, but such a bill 
 is now unnecessary ; and, on motion in the adminis- 
 tration suit after decree, an order will be made re- 
 straining any creditor who is seeking, but has not 
 yet obtained, satisfaction at law, from proceeding 
 further in his action. If a judgment has been ob- 
 tained before decree, there may be special grounds 
 to prohibit him from taking out execution ; but such 
 is not the ordinary rule. If the executor, by mis- 
 conduct, or by a slip in his defence at law, has ren- 
 
 (z) Paxton V. Douglas, 8 Ves. 520 ; Grilpin v. Southampton, 18 
 Ves. 469. 
 
 (ct) Clarke v. Earl of Ormonde, Jac. 108, 122. 
 
 * After a final decree has been made for the administration of a 
 fund in the hands of executors, &c., for the benefit of all creditors 
 ■who have a claim, the Court may restrain the creditor from pro- 
 ceeding at law. In re Receiver of the City Bank of Buffalo, 10 
 Paige C. R. 378. But an injunction will not be granted to re- 
 strain creditors from proceedings at law, until after an account is 
 decreed. Mactier v. Lawrence, 7 Johns. C. R. 206. 
 
 And a creditor cannot, in a bill against an executor for his own 
 benefit, make another creditor a party defendant, and compel him 
 to desist from prosecuting his suit at law against the executor. 
 Simmons v. Whitaker, 2 Ired. Eq. R. 129 ; and see Benson v. 
 Le Roy, 4 Johns. C. R. 651 ; Helm v. Darby, 3 Dana, R. 
 186. 
 
OF TESTAMENTARY ASSETS. 485 
 
 dered himself personally liable for the debt, it seems 
 doubtful whether any equity exists for relieving him, 
 and whether the injunction will not be limited to 
 protect the assets alone, (b) 
 
 If the separate proceedings are in equity, and in 
 the same Court as the original suit, the protection is 
 obtained by an order to stay the proceedings in the 
 second suit, and that the plaintiff may go before the 
 Master in the first. But if additional relief be asked 
 in the second suit, or a specific right be contested in 
 it, the second suit will go into a hearing, and a pro- 
 perly modified decree will be made. If the second 
 bill be filed in a different Court of equity, there ap- 
 pears to be no jurisdiction in the Court of Chancery 
 to restrain it, unless the person filing it has already 
 proved his debt under the existing decree. But the 
 Court in which he is unnecessarily suing, on being 
 satisfied of the efficacy of the prior decree, will itself 
 stay his proceedings, (c) 
 
 When the assets have been secured and their ad- 
 ministration has been undertaken by the Court, the 
 next step is their distribution. 
 
 The method adopted for this purpose is, to refer it 
 to *the Master to take an account of the per- r-^^^-. -, 
 sonal estate not specifically bequeathed, ^ -• 
 either got in by the executor or still outstanding, 
 and of the funeral and testamentary expenses, debts 
 
 (b) Lee v. Park, 1 Keen, 714 ; Buries v. Popplewell, 10 Sim. 
 383 ; Kirby v. Barton, 8 Bea. 45 ; Vernon v. Thellusson, 1 Ph. 
 466 ; Eankin v. Harwood, 5 Hare, 215 ; 2 Ph. 22. 
 
 (c) Pott V. Gallini, 1 S. & S. 206; Jackson v. Leaf, 1 J. & W. 
 229, 232; Beauchampv. Marquis of Huntley, Jac. 546; Moore v. 
 Prior, 2 Y. & C. 375. 
 
486 ADAMS's DOCTRINE OF EQUITY. 
 
 and legacies ; and to direct payment of the expenses 
 and debts in a course of administration, and after- 
 wards of the legacies. Under the head of testa- 
 mentary expenses are included the executor's costs 
 of suit, and those of the plaintiff in a creditor's suit, 
 as being necessarily incurred in administering the 
 estate. (d) If any further directions are required, 
 either for administering the real estate, or for ar- 
 ranging the order in which the assets shall be ap- 
 plied, they will be given by a subsequent decijee. 
 The account of debts will be insisted on by the Court 
 before proceeding to distribute a residue, even 
 though the parties to the suit may be willing to waive 
 it. For it is essential that it should be ascertained 
 whether creditors exist, before the fund in which 
 they have a claim is disposed of by the Court, (e) A 
 legacy, however, may be paid on an admission of 
 assets, although the accounts of the estate have not 
 been taken ; for the decree is personal against the 
 executor, and the creditors, if there are any, are left 
 untouched.^ 
 
 If a debt is secured by mortgage, the mortgagee may, 
 nevertheless, claim payment out of the general 
 assets, retaining his mortgage to make good a defi- 
 ciency f or he may consent to have the mortgaged 
 
 (d) Larkins v., Paxton, 2 M. & K, 320; Barker v. Wardle, 2 M. 
 & K. 818 ; Tipping v. Power, 1 Hare, 405. 
 
 (e) Say v. Creed, 3 Hare, 455 ; Penny v. Watts, 2 Ph. 
 149. 
 
 ' See note, p. 258, supra. 
 
 " The personal estate of a decedent is the " natural" fund for 
 the payment of debts and legacies, and, as a general rule, is first to 
 be exhausted, even to the payment of debts with which the real 
 
OF TESTAMENTARY ASSETS. 487 
 
 estate sold, the produce applied in payment of his 
 debt and costs, and the surplus administered by the 
 Court. If he refuse to give his consent, the Court 
 must either sell the estate subject to his charge, or 
 must pay him off and deal with the redeemed estate 
 as assets. (/) If a debt is due on judgment, the judg- 
 ment creditor will be paid off, for the Court will not 
 *sell subject to the judgment, and it cannotp^^ftOT 
 otherwise make a title to the estate, (g) 
 
 In order to ascertain who the creditors are, a di- 
 rection is given for publishing advertisements in 
 those quarters where they are most likely to be 
 found. The same course is pursued where a distri- 
 bution is to be made among next of kin, or where a 
 
 (/) Mason V. Bogg, 2 M. & C. 443 j Hepworth v. Heslop, 3 
 Hare, 485. 
 
 (g) Neate v. Duke of Marlborough, 3 M. & C. 407, 416. 
 
 estate is charged by mortgage, the mortgage being considered but a 
 collateral security for the personal obligation. If, however, a mort- 
 gage debt was not contracted by the decedent, but by another, as e. g. 
 a prior owner, the land is considered as the debtor. Cumberland v. 
 Codrington, 3 Johns. C. E,. 257, Case of Keyzey, 9 Ser. & Rawle, 
 73 ; Garnett v. Macon, 6 Call's R. 308 ; Dandridge v. Minge, 4 Rand. 
 397 j Stevens v. Gregg, 10 Gill. & J. 143 ; Kelsey v. Western, 2 
 Comstock R. 500 ; Gibson v. M'Cormick, 10 Gill. & J. 65 ; Bank 
 of U. S. V. Beverly, 1 How. U. S. 134 ; Hoye v. Brewer, 3 Gill. 
 & J. 153 ; "Wyse v. Smith, 4 Gill. & J. 296 ; Matter of Hemiup, 3 
 Paige C. R. 305; Stuart v. Carson, 1 Desau. 500 ; M'Donald v. 
 Lawless, 6 Monr. 141 ; Haleyburton v. Kershaw, 3 Desau. 105, 
 115; Dunlap v. Dunlap, 4 Ibid. 305; Hoes v. Vanhosen, 1 Com- 
 stock, 120 ; Walker's estate, 3 Rawle, 229. 
 
 In New York, by statute, the mortgage debt has been made to 
 fall primarily on the real estate ; see Rogers v. Rogers, 1 Paige C. 
 R. 188 ; Cogswell v. Cogswell, 2 Ed. C. R. 231 ; and see also Kent 
 Com. vol. iv. p. 422. 
 
488 ADAMS'S DOCTRINE OF EQUITY. 
 
 legacy is given to a class of persons, so that it is ne- 
 cessary to ascertain of whom the class consists. A 
 time is fixed by these advertisements, within which 
 the parties are to make their claims. After the 
 expiration of that time the Master reports the claims 
 which have been established ; and the Court, by its 
 decree on further directions, authorizes a distribution 
 of the fund among them, and protects the personal 
 representative against any future claim. If, however, 
 a claimant should subsequently appear, who was 
 bona fide ignorant of the proceedings, he will not be 
 barred of his right, but may be let in to partake, so 
 long as the fund remains undistributed, or after dis- 
 tribution may file a bill against the other distributees 
 and compel them to refund his share. (7i) If the 
 legatees are named in the will, no advertisement is 
 requisite. But if any of them neglect to claim, an 
 adequate portion of the assets will be set apart to pay 
 them, (i) 
 
 The order in which the assets will be successively 
 applied is the only question which remains for 
 notice. 
 
 The prima facie order of application is as follows : 
 1. Personal estate not specifically bequeathed; 2. 
 Real estate devised for payment of debts; 3. Real 
 estate descended ; (/<;) 4. Personal and real estate 
 specifically bequeathed or devised, subject to a charge 
 
 (K) David v. Prowd, 1 M. & K. 200 ; Gillespie v. Alexander, 3 
 Russ. 130 ; Sawyer v. Birchmore, 2 M. & C. 611 ; Brown v. Lake, 
 1 D. G. & S. 144. 
 
 (i) Seton on Decrees, 65. 
 
 (Jc) Biederman v. Seymour, 3 Bea. 368. 
 
OF TESTAMENTAET ASSETS. 489 
 
 of debts by will;(Z) 5. Personal and real estate sub- 
 ject to a charge of debts by *mortgage, to the r^ocq-i 
 extent of such mortgage ; 6. Personal and 
 real estate specifically given, and not charged with 
 debts. If the personalty and the corpus of the real 
 estate are inadequate, the heir or devisee may be 
 charged with bygone rents, (m)' 
 
 (Z) Harmood v. Oglander, 8 Ves. 106, 125. 
 (m) Curtis v. Curtis, 2 B. C. C. 620, 628, 633 ; Seton on 
 Decrees, 86; Clarendon v. Barham, 1 N. C. C. 688, 704. 
 
 ' The order of application was, in Hoover v. Hoover, 5 Penna. 
 State R. 351, said to be : 1st. The general personal estate not 
 expressly or by implication exempted. 2d. Lands expressly 
 devised to pay debts. 3d. Estates descended to the heir. 4th. 
 Devised lands charged with the payment of debts generally, whe- 
 ther devised in terms general or specific (every devise of land 
 being in its nature specific). 5th. General pecuniary legacies, 
 pro rata. 6th. Specific legacies, pro rata. 7th. Ileal estate 
 devised, whether in terms general or specific : wherein it will be 
 noticed that general pecuniary legacies are ranked with specific 
 legacies as subordinate in their liability to lands descended. 
 
 In Hays v. Jackson, 6 Mass. R. 149, the order was held to be : 
 1st. The personal estate, excepting specific bequests, or such of it 
 as is exempted from the payment of debts. 2d. The real estate, 
 appropriated in the will as a fund for the payment. 3d. The 
 descended estate, whether the testator was seised of it when the 
 will was made, or it was afterwards acquired. 4th. The rents and 
 profits of it received by the heir after the testator's death. 5th. 
 The lands specifically devised, although generally charged with 
 debts, yet not specially appropriated for that purpose. 
 
 In Livingston v. Newkirk, 3 Johns. C. R. 312, the order was 
 held to be : 1st. The general personal estate. 2d. Estates devised 
 expressly for the payment of debts, and for that purpose only. 3d. 
 Estates descended. 4th. Estates specifically devised, though 
 charged generally with the payment of debts. 
 
 So, in agreement with this, is McCampbell v. McCampbell, 5 
 Littell R. 95, wherein it was held that the assets were to yield in 
 
490 Adams's doctrine of equity. 
 
 In order that this arrangement may be clearly 
 understood, it is requisite that certain points should 
 be more fully explained. 
 
 1. It has been stated that the fund first liable is 
 the personal estate not specifically bequeathed. The 
 proposition would perhaps be more accurately worded 
 by confining it to the general residue after deduction 
 of all particular legacies. For although pecuniary 
 legacies cannot conveniently be set apart in the out- 
 set, and the decree, therefore, exempts the specific 
 legacies alone, yet if the efiect of discharging the 
 debts is to exhaust the personalty, the pecuniary 
 legacies will be made good out of the other assets. 
 
 2. The primary liability of the personal estate 
 may be transferred to any portion of it specified by 
 the testator, as between the several objects of his 
 bounty, though not as against the creditors' right 
 over the whole. Or it may be to the same extent 
 transferred from the personal to the real estate, if 
 the intention to exonerate the personal estate be ex- 
 pressed in the will, or be manifestly implied therein. 
 But the presumption is against the intention to exo- 
 nerate, and in favour of considering the real estate 
 as an auxiliary fund, (n) 
 
 (n) 2 Jam. on Wills, 564-600; Collis v. Kobins, 1 D. G. & S. 
 131. 
 
 the following order : 1st. The general personal estate. 2d. The 
 estate especially/ and exjiressli/ devised to be sold. 3d. The estate 
 descended. 4th. Estate specifically devised, though charged gene- 
 rally with the payment of debts : but that the second and third 
 exchange places, where the estate set apart for the payment of 
 debts is charged generally and not specially. See also Hall v. 
 Hall, 2 McCord's C. R. 302; Stuart v. Exr. of Carson, 1 Desau. 
 500, 513. 
 
OF TESTAMENTARY ASSETS. 491 
 
 3. A doubt has arisen whether assets of the third 
 class are confined to lands descended to the heir, or 
 whether the late act, declaring that the lands, of 
 which a debtor shall die seised, shall be assets for 
 payment of his debts, has the eflfect of including 
 lands escheated to the lord ; and a further doubt 
 whether, if the escheated lands are liable, r^noA-i 
 *their liability is prior or subsequent to that 
 
 of lands specifically devised. The first of these 
 points has been determined against the lord; the 
 second appears to be undecided, (wn) 
 
 4. The liability of assets of the fifth class, viz., 
 mortgaged property, has been the subject of much 
 •discussion. But the rule, as here stated, appears to 
 be consistent with all the decisions, and to be founded 
 on a correct principle ; viz., that mortgaged estates, 
 whether devised or descended, shall be liable for 
 payment of the mortgage debts as assets which the 
 testator has expressly charged, but that their lia- 
 bility shall be subordinate to that of assets charged 
 by will ; because the fact of such a charge being 
 made by the testator denotes his intention to exone- 
 rate the estate. They are accordingly liable in the 
 hands of a devisee as a fund for payment of the par- 
 ticular debt, immediately after property charged 
 with debts and specifically given subject to the 
 charge. Nor will the order of their liability be 
 altered although the devise be in terms " subject to 
 the mortgage ;" for these words mean no more than 
 a gift of the estate would imply. On the other 
 hand, the liability is prior to that of property given 
 
 (nn) 3 & 4 Wm. 4, c. 104 ; Evans v. Brown, 5 Bea. 114; 11 
 Law J. 349. 
 
492 Adams's doctrine of equity. 
 
 without a charge, including general pecuniary lega- 
 cies, but exclusive of a mere residuary gift ; because 
 a residuary gift denotes no intention of bounty, 
 except as subject to all legal charges. If a mort- 
 gaged estate descend to the heir, it will be liable as 
 assets by descent after lands devised for payment of 
 debts, (o) 
 
 In order, however, to charge any other assets in 
 priority to the mortgaged estate, it is essential that 
 the mortgage debt be originally a personal one, and 
 that it be so in reference to the testator himself, so 
 that the land is merely liable as a collateral security. 
 If the land were originally the primary fund, e. g., 
 if a jointure or portion be charged on land, with a 
 collateral covenant to make it good; or if it 
 L J *has become the primary fund in reference to 
 the testator, e. g., if he acquired it subject to the 
 charge, and has not assumed the charge as his per- 
 sonal debt, the devisee or heir is clearly liable, (j)) ' 
 
 The doctrine respecting mortgaged estates applies 
 
 (o) Halliwell v. Tanner, 1 R. & M. 633 ; "Wythe v. Henniker, 
 2 M. & K. 635; Johnson v. Child, 4 Hare, 87; Lockhart v. 
 Hardy, 9 Bea. 379. 
 
 (p) Scott V. Beecher, 5 Mad. 96 ; Oxford v. Rodney, 14 Ves. 
 417 ; Evelyn v. Evelyn, 2 P. "Wms. 664 ; Cox's note ; Ancaster 
 V. Mayer, 1 B. C. C. 453 ; Ibbetson v. Ibbetson, 12 Sim. 206. 
 
 ' This distinction has been generally recognised ; see Cumberland 
 V. Codrington, 3 John. C. R. 229, wherein it was held, that if a 
 person purchases an estate subject to a mortgage, and dies, his 
 personal estate, as against his personal representatives, shall not 
 be applied to exonerate the land, unless there be strong and 
 decided proof, that in taking the encumbered estate, he meant to 
 make the mortgage debt a personal debt of his own. See also 
 cases, note 2, p. 261, supra. 
 
OF TESTAMENTARY ASSETS. 493 
 
 also to legacies of chattels pledged by the testator, or 
 which at the time of his death were subject to a 
 charge; and has been held to include the future 
 calls on railway shares, where the testator was an 
 original subscriber to the undertaking, (q) 
 
 5. In regard to assets of the fourth and sixth 
 classes, where both personal and real estate are in- 
 cluded, a question has arisen, whether the personal 
 and real estate should contribute pro rata, or whe- 
 ther the personalty is first liable. It has been deter- 
 mined that in both cases there is a liability pro rata, 
 and that accordingly if land be devised, and the 
 testator die indebted by bond, a specific legatee may 
 compel the devisee to contribute. (/■) A question 
 may also arise under the present law as to the pos- 
 sible right of a specific legatee of personalty to be 
 exonerated by a general or residuary devise of land. 
 Under the old law every devise of real estate was 
 held specific, because the testator could only devise 
 the lands which he had at the date of his will. By 
 the recent Wills Act this rule is altered, and a gene- 
 ral or residuary devise is made to extend to all the 
 real estate belonging to the testator at the time of 
 his death. A gift, therefore, of land in general 
 terms has now ceased to be a specific devise, (s) 
 
 The order of liability which has been above ex- 
 plained, *subject to any variations directed r-^e.„n-, 
 by the will, is that in accordance with which L -^ 
 
 (q) Knigtt V. Davis, 3 M. & K. 358 ; Blount v. Hipkins, 7 
 Sim. 51 ; Jacques v. Chambers, 2 Coll. 435. 
 
 (r) Roberts v. Walker, 1 R. & M. 752 ; Attorney-General v. 
 Southgate, 12 Sim. 77; Boughton t. James, 1 Coll. 26; Tombs 
 V. Roch, 2 Coll. 490 ; Gervis v. Gervis, 16 L. J. 422. 
 
 (s) 1 Vict. c. 26; 2 Jarm. on Wills, 547, n. 
 
494 ADAMS'S DOCTRINE OF EQUITY. 
 
 the several portions of the assets will be successively 
 applied. It may, however, occur, that in the course 
 of administration, some portion of the estate has paid 
 more than its share, or that claims, for which several 
 funds were liable, have been so paid as to exhaust a 
 fund, which alone was applicable for another claim. 
 If irregularities of this kind occur, they will be recti- 
 fied by the equities next considered, of contribution, 
 of exoneration, and marshalling. 
 
CONTRIBUTION AND EXONEEATION. 495 
 
 ^CHAPTER V. [*267] 
 
 OF CONTRIBUTION, EXONERATION, AND MARSHALLING. 
 
 The equity for adjusting liabilities und.er a com- 
 mon charge arises where a charge or claim, aflfecting 
 several persons, is or may be enforced in a manner, 
 not unjust in the person enforcing it, but unjust or 
 irregular with regard to their liabilities inter se. 
 And it is exercised under the three forms of contri- 
 bution, exoneration, and marshalling. 
 
 The equities of contribution and exoneration arise 
 where several persons are bound by a common charge, 
 not arising ex delicto, and their order of liability has 
 been accidentally deranged. If the liabilities be 
 joint, he wlio has paid mpre 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. 
 
 In order that either of these equities may arise, it 
 is essential that the charge be binding, and that it 
 do not arise ex delicto. 
 
 ^ The doctriDe of contribution is not so mucli founded on con- 
 tract, as on the principle of equity and justice, that where the 
 interest is common, the burden also shall be common. Qui seniit 
 commodum, sentire debet et onus. Campbell v. Messier, 4 Johns. 
 C. R. 334; S. C. Johns. C. K. 21. 
 
496 Adams's doctrine of equity. 
 
 The voluntary act of one party, in expending 
 money for the benefit of all, will not create a right 
 to contribution. A co-owner of land, for instance, 
 though bound to pay a mortgage on the estate, is not 
 bound to make repairs or meliorations, and, there- 
 fore, cannot be compelled to contribute to their costs, 
 unless they have been done by his consent, or under 
 a special custom. But there is an exception in fa- 
 vour of houses and mills, and of the necessary 
 L -I *repairs which they require. (a)' A similar 
 exception has, by many foreign jurists, been thought 
 applicable to ships, on general grounds of maritime 
 policy ; but the rule of the common law is different ; 
 and, in the absence of any express or implied agree- 
 ment, throws the costs of any repairs on the party 
 directing them. (6) 
 
 If the liability arise ex delicto there is no right to 
 contribution ; for there is no equity between wrong- 
 doers.^ But it is otherwise with respect to mere 
 
 (a) Co. Litt. 200 b. 
 
 (5) Story on Partnership, s. 421-6; Smith's Mer?. Law, 175. 
 
 ' A tenant in common is entitled to charge his co-tenant with a 
 just proportion of the expenses incurred for the benefit of the com- 
 mon property; Peyton v. Smith, 2 Dev. & Batt. C. R. 325, 349; 
 see, also, Volentine v. Johnson, 1 Hill C. R. 46 ; Hancock v. Day, 
 1 M'Mullan Eq. R. 69 ; Thompson v. Bostick, Id. 75 ; Ibid. 475. 
 E converso, where land belonging to tenants in common or joint 
 tenants yields no profit, and one of the owners enters and renders 
 the estate productive, the others cannot claim a share of the profits; 
 Nelson v. Clay, 7 J. J. Marsh R. 138. Where co-tenants make 
 partition of land subject to a mortgage, the share of the premises 
 set off to each is primarily chargeable with half of the mortgage 
 debt ; Rathbone v. Clark, 9 Paige, 648. 
 
 " Contribution will not be enforced in Equity between wrong- 
 
CONTRIBUTION AND EXONERATION. 497 
 
 breaches of trust, not involving any actual fraud. In 
 such cases each defaulting trustee is severally liable 
 to the cestui que trust for the whole loss ; but contri- 
 bution may be enforced as between the trustees them- 
 selves ; and if any third person has knowingly reaped 
 the benefit of the breach of trust, the loss may be 
 eventually cast on him.(c) 
 
 The rights now under consideration are acknow- 
 ledged both at law and in equity, and so far as the 
 machinery of the common law will allow, may be 
 enforced in an action. But the means of enforce- 
 ment at law are very limited ; for, in addition to the 
 impossibihty, common to all classes of account, of 
 obtaining discovery on oath or satisfactorily investi- 
 gating the items, there are other special difficulties, 
 originating in the necessity of suing each party 
 liable in a separate action, which renders it difiicult 
 to insure verdicts for the true rateable shares, and 
 disables the Court, where one of several contributors 
 proves insolvent, from distributing the consequent 
 loss rateably among the rest, (d) 
 
 The two equities of contribution and exoneration 
 
 (c) Merryweather v. Nixan, 8 T. E.. 186 ; Lingard v. Bromley, 
 1 Ves. & B. 114; Seddon v. Connell, 10 Sim. 79, 86; Attorney- 
 G-eneral v. Wilson, Cr. & P. 1. 
 
 (d) Cowell V. Edwards, 2 Bos. & P. 268 ; Deering v. Earl of 
 Winchelsea, 2 Bos. & P. 270 ; Browne v. Lee, 6 B. & C. 689. 
 
 doers ; especially when the party who seeks it does not stand in 
 cequali jure with the other; Peck v. Ellis, 2 John. C. E.. 131. 
 Courts of justice will not lend their aid to equalize burdens in such 
 cases, but will leave the parties where they find them ; Bartle v. 
 Nutt, 4 Peters's R. 184 ; see, also. Miller v. Fenton, 11 Paige, 
 18 ; Dupuy v. Johnson, 1 Bibb, 562. 
 
 82 
 
498 ADAMS'S DOCTRINE OP EQUITY. 
 
 are both exemplified in the case of suretyship : the 
 one by the rights of sureties as between themselves ; 
 the other by their rights as against the principal.^ 
 r*9fiQ1 *The right of contribution arises between 
 sureties where one has been called on to make 
 good the principal's default, and has paid more than 
 his share of the entire liability, (e)^ If all the sure- 
 
 (e) Smith's Merc. Law, 427-8 ; Davies v. Humphreys, 6 M. & 
 W. 153, 169. 
 
 ^ 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. See Hayes v. Ward, 
 4 John. C. R. 123 ; Abercrombie v. Knox, 3 Ala. 728 ; sed vide 
 West V. Belches, 5 Munf. 187. 
 
 But the same end is eifected by what has become well settled, 
 that although mere forbearance, however prejudicial to the surety, 
 will not discharge him, yet if the surety requests the creditor to 
 proceed against the principal, and the creditor refuses or delays to 
 sue until the principal becomes insolvent, the surety is discharged; 
 King V. Baldwin, 17 Johns. R. 384; Valentine v. Farrington, 2 
 Ed. C. R. 53 ; Rutledge v. Greenwood, 2 Desau. 889 ; Pain v. 
 Packard, 13 Johns. R. 174; Bruce v. Edwards, 1 Stew. R. 11; 
 see, also, Matter of Babcock, 3 Story R. 393 ; Spotswood v. Dand- 
 ridge, 4 Munf. 289. So in Pennsylvania, if the creditor be re- 
 quested in pais, by the surety, to sue the debtor, and neglect or 
 refuse so to do, the surety will be discharged; provided such re- 
 quest be positive, and accompanied with a declaration that unless 
 it be complied with, the surety will consider himself discharged ; 
 Cope V. Smith, 8 Ser. & Rawle, 112 ; G-reenawalt v. Krider, 3 
 Penna. State R. 264. 
 
 But a surety cannot compel a creditor to resort to a collateral 
 security/, in the first instance, unless such security be as available 
 in all respects as a proceeding against the security ; Gary v. Can- 
 non, 3 Ired. C. R. 64. 
 
 " First. It is a- general principle that a surety who has paid the 
 debt, may compel his co-surety to make contribution ; Waters v. 
 Riley, 2 Har. & G. 305; Pinkston v. Taliaferro, 9 Ala. 547; 
 
CONTRIBUTION AND EXONERATION. 499 
 
 ties have joined in a single bond, the general rule, in 
 the absence of any express or implied contract, is 
 
 Mitchell V. Sproul, 5 J. J. Marsh. 264 ; Robertson v. Maxcey, 
 6 Dana, 103. But this doctrine is founded on the maxim; 
 " Equality is equity," and hence where one of two sureties, without 
 the knowledge of his co-surety, and hy previous arrangement with 
 the principal debtor, received a share of the sum borrowed, he was 
 held not entitled to contribution from such co-surety, when obliged 
 to pay the debt; M'Pherson v. Talbott, 10 Gill. & J. 499; see, 
 also. Kerns v. Chambers, 3 Ired. C. R. 576. And the rule is, that 
 where one of several co-sureties is indemnified, or receives a fund 
 to be applied towards the debt, he will be considered as holding 
 for the benefit of all the sureties ; Agnew v. Bell, 4 Watts, 31 ; 
 Moore v. Moore, 4 Hawks. 358; Gregory v. Murrell, 2 Ired. 
 Eq. R. 233; Hinsdill v. Murray, 6 Vt. R. 136; M'Mahon v. 
 Fawcetts, 2 Rand. 514. One surety has, however, an unques- 
 tionable right to stipulate for a separate indemnity, and in the ab- 
 sence oi fraud or deceit, to apply it in extinguishment of his portion 
 of the liability ; Thompson v. Adams, 1 Freem. 0. R. 225 ; Moore 
 V. Moore, ubi. supra ; see, also, Moore v. Isley, 2 Dev. & Bat. C. 
 R. 872; Himes v. Keller, 3 Watts & Ser. 401; Bowditeh v. 
 Green, 3 Mete. 360 ; Coml. Bk. v. Western B., 11 Ohio R. 444. 
 
 One of two sureties is entitled to take out execution on a joint 
 judgment against them, to compel contribution by his co-surety; 
 Cuyler v. Enssvorth, 6 Paige C. R. 32 ; Croft v. Moore, 9 Watts, 
 451 ; yet see Bank v. Adger, 2 Hill C. R. 262. 
 
 Second. Equity will distinguish between principal and surety, 
 though the nature of the security be such as to make them all 
 principals in a Court of law; Davis v. Mikell, 1 Freem. C. R. 548; 
 M'Dowell v. Bank, 1 Harrington R. 369. 
 
 Third. If one becomes surety merely at the request of a co-surety, 
 he is not liable to the latter for contribution ; see Byers v. M'Clana- 
 han, 6 Gill. & J. 250; Taylor v. Savage, 12 Mass. 98, 102. 
 
 Fourth. A surety who has paid the whole debt must show the 
 insolvency of the principal, to entitle him to contribution against 
 his co-surety; Pearson v. Duckham, 3 Litt. 385; Daniel v. 
 Ballard, 2 Dana, 296; Allen v. Wood, 3 Ired. C. R. 386; Bur- 
 rows V. M'Whann, 1 Desau. 409. Or show that he has used 
 
500 Adams's doctrine of equity. 
 
 that of equality ; if their liabilities have been created 
 by distinct bonds, the contribution is in proportion 
 to the respective penalties. But in either case the 
 principle is the same ; and provided the transaction 
 to which the suretyship applies, be single, the mode 
 in which the parties are bound, whether by the same 
 or by different instruments, is, with respect to the 
 right of contribution, immaterial. (/)^ The equity 
 for contribution between sureties is also applicable 
 to underwriters or insurers, where the owner of pro- 
 perty has made two or more insurances on the same 
 risk and the same interest. In this case the law 
 will not allow him to receive a double satisfaction for 
 a loss; but if he recover the entire loss from one set 
 of underwriters, they may have a rateable contribu- 
 tion from the rest, (g) 
 
 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. (7i) And he may also sue the creditor 
 
 (/) Deering v. Earl of Winclielsea, 2 Bos. & P. 270 ; Coope v. 
 Twynam, T. & R. 426 ; Craythorne v. Swinburne, 14 Ves. 160. 
 
 (g) Newby v. Reed, 1 W. Bl. 416. 
 
 (K) Toussaint v. Martinnant, 2 T. R. 100 ; Pownal v. Ferrand, 
 6 B. & C. 439. 
 
 due diligence, without effect, to obtain reimbursement; M'Cormack 
 V. Obannon, 3 Munf. 484. 
 
 Fifth. Hence, to a bill by a surety for contribution, the princi- 
 pal debtor ought to be made a party ; Rainey v. Yarborough, 2 
 Ired. C. R. 249. 
 
 ^ The right to contribution between co-sureties is not affected by 
 the fact that their liabilities arise on separate instruments. Bell 
 V. Jasper, 2 Ired. G. R. 597. 
 
CONTRIBUTION AND EXONERATION. 501 
 
 in equity for an assignment of any mortgage or col- 
 lateral security for the debt, so that he may, as far 
 as possible, be substituted in his place. But he can- 
 not have an assignment of the debt itself, for that is 
 determined by his own payment, and a new debt is 
 due from his principal to himself (^)■ The same 
 equity *which enables a surety, after pay- r^oirn-i 
 ment 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 
 
 (t) Copis V. Middleton, T. & E. 224 ; Caulfield v. Maguire, 2 
 Jones & Lat. 141, 164; Hodgson v. Shaw, 3 M. & K. 183. 
 
 * In support of the doctrine that a surety, on paying the debt, 
 is entitled to stand in the place of the creditor, and to be subrogated 
 to all his rights against the principal debtor, see Clason v. Morris, 
 10 John. K. 524 ; Erb's Appeal, 2 Penna. R. 296; M'Dowell v. 
 Bank, 1 Barring. E. 367; Tatum v. Tatum, 1 Ired. C. E. 113; 
 Lownds V. Chisholm, 2 M'Cord's C. E. 455; Perkins v. Kershaw, 
 
 1 Hill C. E. 344 ; Foster t. Trustees, 3 Ala. 302 ; Eodes v. 
 Crockett, 2 Yerg. 346 ; "Wade v. Green, 3 Humph. 547 ; Neim- 
 cewicz V. Gahn, 3 Paige, 614; Salmon v. Claggett, 3 Bland. C. 
 R. 173; Hampton v. Levy, 1 M'Cord C. E. 116; Burk v. 
 Chrisman, 3 B. Monr. 50. If he is surety in a bond, he is to 
 be considered a bond creditor of the obligor ; Eppes v. Randolph, 
 
 2 Call. 103. And, moreover, in many of the States, it is settled, 
 in liberal advance of the doctrine stated in the text, that the surety, 
 on paying the bond or judgment debt of the principal, may even 
 become entitled to an assignment and use of the instrument or 
 judgment for his own exoneration ; the payment being regarded as 
 a purchase, and not as an extinguishment; see Burns v. Hunting- 
 don Bk., 1 Penna. R. 395; Henning v. Beaver, 2 Rawle, 132; 
 Perkins v. Kershaw, 1 Hill C. R. 344 ; Matthews v. Aiken, 1 
 Comst. R. 595 ; Creager v. Bengle, 5 Har. & J. 234 ; Gadsden 
 V. Lord, 1 Desau. 214 ; Cuyler v. Ensworth, 6 Paige, 32 ; Lath- 
 rop's Appeal, 1 Penn. State R. 512 ; yet see Elwood v. Diefen- 
 dorf, 5 Barb. S. C. E. 398. 
 
502 Adams's doctrine of equity. 
 
 under liability by the debt falling due, though he 
 may not have been actually sued. (/<;)' 
 
 Another instance of contribution occurs where 
 mortgages, renewed fines, or other incumbrances, 
 require discharge, and the property bound by them 
 is not absolutely vested in a single person; e. g., 
 where different parcels of land are included in the 
 same mortgage, and are afterwards sold to different 
 owners, or where a mortgaged estate, or a renewable 
 leasehold, is held for life or in tail, with remainders 
 over, or has devolved upon a dowress and the heir. 
 In these cases the burthen is to be borne by the 
 parties interested according to the value of their 
 respective interests, and the benefit which they 
 actually derive from its discharge. (JY And although 
 
 (k) Mitf. 148 j Antrobus v. Davidson, 3 Meriv. 569, 578. 
 
 White V. White, 9 Ves. 554; Bulwer v. Astley, 1 Ph. 422; 
 Jones V. Jones, 5 Hare, 440 ; Averall v. Wade, LI. & Gr. 252 ; 3 
 Sug. V. & P. 435-6. 
 
 " Where the principal debtor is insolvent, his surety may pro- 
 ceed, before paying the debt, against the principal for indemnity 
 or to subject particular assets to the payment of the debt ; Polk v- 
 Gallant, 2 Dev. & Batt. C. R. 395; Pride v. Boyce, Eioe Eq. R. 
 275; Washington v. Tait, 3 Humph. R. 543^ Stump v. Rogers, 1 
 Ham. Oh. 533 ; Ross v. Clore, 3 Dana, 193 ; Bishop v. Day, 
 13 Vt. 81 ; Hatcher v. Hatcher, 1 Rand. 53 ; Daniel v. Joy- 
 ner, 3 Ired. Eq. 513 ; Taylor v. Heriot, 4 Desau. 227 ; Williams 
 V. Helme, 1 Dev. C. R. 151 ; Tankersley v. Anderson, 4 Desau. 
 R. 44 ; M'Connell v. Scott, 15 Ohio, 401 ; Laughlin v. Ferguson, 
 6 Dana, 111. 
 
 " See Thomas v. Hearn, 2 Porter, 262; Chamberlayne v. 
 Temple, 2 Rand. 384; Hays v. Wood, 4 Rand. 272; Dupuy 
 V. Johnson, 1 Bibb, 562; Poston v. Eubank, 3 J. J. Marsh. 
 44; Morrison v. Beckworth, 4 Monr. 76; Williams v. Craig, 
 2 Ed. C. R. 297. But where there are several purchasers 
 
CONTRIBUTION AND EXONERATION. 503 
 
 the creditor himself is not bound by this -equity, but 
 may proceed against whom he will, yet, if he wil- 
 
 in succession, at different times:, of parcels of a lot bound by 
 a judgment or mortgage, there is no equality, and no case for 
 contribution between tbe purchasers. " If, for instance, there be 
 a judgment against a person owning, at the time, three acres of 
 land, and he sells one acre to A., the remaining two acres are first 
 chargeable in equity with the payment of the judgment debt; and 
 that, too, whether the land be in the hands of the debtor himself, 
 or his heirs. If he sells another acre to B., the remaining acre 
 is then chargeable, in the first instance, with the debt, as against 
 B., as well as against A. ; and, if it should prove insufiicient, then 
 the acre sold to B. ought to supply the deficiency in preference to 
 the acre sold to A." Chancellor Kent, in Clowes v. Dickinson, 
 5 Johns. C. R. 235. In that case A. purchased a lot of land, 
 which, with several others, was subject to a judgment. B. after- 
 wards purchased the residue of the lots so incumbered, and having 
 purchased the prior judgment in the name of another, caused A.'s 
 lot to be sold, and became the purchaser. It was held that A. 
 was entitled to have the judgment satisfied out of the lots sold to 
 B. ; and that, on application to the Court, the sale under the 
 judgment would have been stayed. But the plaintiff's application 
 being made as much as four years after the sale, the title was not 
 disturbed, but B. was compelled to pay to A. the amount for 
 which A.'s lot was sold. The same equity holds not only as 
 between several purchasers, but applies where the owner of the 
 land thus bound gives thereon several mortgages of different date. 
 Schryner v. Teller, 9 Paige, 173. The doctrine here stated 
 has been approved and maintained by a train of decisions in 
 the several States. James v. Hubbard, 1 Paige, 228 ; Gover- 
 neur v. Lynch, 2 Paige, 300; Patty v. Pease, 8 Paige, 
 277; Gill V. Lyon et al. 1 Johns. C. R. 447; Rathbone v. 
 Clark, 9 Paige, 648 ; Shannon v. Marselis, Saxton, 413 ; 
 Britton V. Updike, 2 Green C. R. 125 ; Wikoff v. Davis, 3 Green 
 C. R. 224; Stanley v. Stocks, 1 Dev. C. R. 314, and note to 
 p. 317 ; Stoney v. Shultz, 1 Hill C. R. 464, 500 ; Thomp- 
 son V. Murray, 2 Hill C. R. 204 ; Conrad v. Harrison, 
 3 Leigh, 532 ; McClung v. Beirne, 10 Leigh R. 394 ; 
 Nailer v. Stanley, 10 Ser. & Rawle, 450; Zeigler v. Long, 2 
 
504 ADAMS'S DOCTRINE OF EQT7ITT. 
 
 fullj render its enforcement impossible, as by dis- 
 charging one of several coparceners, he cannot pro- 
 ceed for the whole debt against the others, but at 
 the most can only require from them their respective 
 shares, (m)^ If the bvirthen has been already dis- 
 charged by one of the parties liable, he will be en- 
 
 (m) Stirling v. Forrester, 3 Bligh. 0. S. 575, 590. 
 
 Watts, 205; Fallen v. Bank, 1 Freem. C. K. 419; Agric. Bk. 
 V. Fallen, 8 Sm. & Mar. 357; Coml. Bank v. Western R. 
 Bank, 11 Ohio, 444; Gary v. Folsom, 14 Ohio, 365; Holden 
 V. Fike, 11 Maine, 427; Gushing v. Ayer, 25 Maine, 383; 
 Gowden's Estate, 1 Fenna. State E. 267. This doctrine seems 
 to have originated with the New York cases above cited, it not 
 having previously been acted upon in cases susceptible of its ap- 
 plication. See Stevens v. Gooper, 1 Johns. G. R. 425; Gheese- 
 borough V. Millard, 1 Johns. C. E,. 409. Nor formerly in Vir- 
 ginia; Beverly v. Brooke, 2 Leigh, 425. And in one or two 
 States the rule is repudiated. See Jobe v. O'Brien, 2 Humph. R. 
 34; Dickey V. Thompson, 8 B. Monr. 312. And see Farkman 
 V. Welch, 19 Pick. 231, 238 ; Green v. Ramage, 18 Ohio, 428. 
 
 Justice Story, in his Corns. Eq. Jurisp. sect. 1233, A., refers to 
 English authorities in support of the position, that even in the 
 case of successive purchasers or incumbrancers, the original incum- 
 brance ought to be apportioned rateably among them. But see 
 the error of his reference pointed out by the late Judge Kennedy 
 in Gowden's Estate, ubi. supra. 
 
 > When a judgment or mortgage is a lien on several lots of 
 land owned by diiferent persons, and the judgment creditor or 
 mortgagee releases one of the lots, his lien upon the remaining 
 lots will be diminished by the value of the lot released. Stevens 
 V. Cooper, 1 John. G. R. 425; James v. Hubbard, 1 Faige, 
 228 ; Paxton v. Harrier, 11 Penna. State R. 312 ; Guion v. 
 Knapp, 6 Paige, 35. As between the original parties, this 
 is, of course, not the case : any part of the mortgaged premises is 
 bound for the payment of the whole debt ; Goutant v. Servoss, 3 
 Barb. S. C. R. 128. See Patty v. Pease, 8 Paige, 277. 
 
CONTRIBUTION AND EXONERATION. 505 
 
 titled to contribution from the rest, unless he has 
 shown an intention to exonerate the estate. But if 
 his interest is that of tenant in tail in possession, 
 and consequently convertible at his option into an 
 absolute estate, a presumption arises that he so in- 
 tended, (n) 
 
 The doctrine of general average is another illus- 
 tration of the equity for contribution, and is the last 
 which will be here noticed. The circumstances 
 under which this equity *arises are where a r-^^^^-.-. 
 ship and cargo are in imminent peril, and a L ^ 
 portion is intentionally sacrificed for the security of 
 the rest, e. g., where goods are thrown overboard, or 
 a portion of the ship's rigging cut away, to lighten 
 and save the ship, or the ship herself is intentionally 
 stranded to save her cargo from a tempest or an 
 enemy, or a part of the "cargo is delivered up by way 
 of ransom, or is sold for the necessities of the ship. 
 In all these cases the impending danger is common 
 to all, and the means by which it is averted ought 
 to be a common burden. If, therefore, the ship and 
 the residue of the cargo are preserved by the sacri- 
 fice, the parties interested in the ship, her freight, 
 and the merchandise on board, must make good 
 rateable shares of the loss, proportioned to the value 
 which their own goods and the goods sacrificed would 
 have borne, after deducting freight, had they safely 
 reached the port of discharge. If, on the contrary, 
 the sacrifice is not intentionally made, but is damage 
 incurred by violence or stress of weather, or if it 
 
 (n) WigSell V. Wigsell, 2 S. & S. 364 ; Burrell v. Egremont, 7 
 Bea. 205; Faulkner v. Daniel, 3 Hare, 199, 217. 
 
506 Adams's doctrine of equity. 
 
 prove unavailing, or be made, not to save the cargo, 
 but to save the lives and liberty of the crew, the 
 principle of contribution does not apply, and the 
 loss must remain where it originally falls. The 
 rates of contribution are generally settled by arbi- 
 tration, but the parties are not compellable to refer, 
 and may have recourse to an action at law or a suit 
 in equity, (o) 
 
 The equity of marshalling arises where the owner 
 of property, subject to a charge, has subjected it, 
 together with another estate, to a paramount charge, 
 and the estate thus doubly charged is inadequate to 
 satisfy both the claims. In this case, if the para- 
 mount charge be by way of mortgage, the only re- 
 source for the puisne mortgagee is to redeem it, and 
 then to tack it to his own debt ; but if it is only a 
 charge payable out of the produce of the estate, and 
 not conferring on the paramount creditor a right to 
 *foreclose, an equity arises for marshalling 
 L J the security so that both creditors may, if 
 possible, be paid in full.(j))^ The equity is a per- 
 
 (o) Birkley v. Presgrave, 1 East. 220 ; Plummer v. Wildman, 
 3 M. & S. 482 ; Power v. "Whitmore, 4 M. & S. 141 ; Simonds v. 
 White, 2 B. & C. 805; Hallett v. Bousfield, 18 Ves. 187; 2 
 Steph. Bl. 179 ; Smith's Mere. Law, 292. 
 
 (p) Aldrich v. Cooper, 8 Ves. 382 ; Titley v. Davies, 2 B. C. C. 
 393, 399. 
 
 ' The rule of equity, that where one has a lien upon two funds, 
 and another a posterior lien upon only one of them, the former 
 will be compelled first to exhaust the subject of his exclusive lien, 
 and will be permitted to resort to the other only for the de- 
 ficiency, is well established in this country. Piatt v. St. Clair, 6 
 Ham. Oh. K. 233 ; Russell v. Howard, 2 McLean, 489 ; Findlay's 
 Exr. V. U. S. Bk., 2 McLean, 44; N. Y. Steamboat Co. v. N. 
 
OF MARSHALLING. 507 
 
 sonal one against the debtor, and does not bind the 
 paramount creditor, nor the debtor's alienee for 
 value. 
 
 The equity is not binding on the paramount cre- 
 ditor, for no equity can be created against him by 
 the fact that some one else has taken an imperfect 
 security. But it is an equity against the debtor 
 himself, that the accidental resort of the paramount 
 creditor to the doubly-charged estate, and the conse- 
 quent exhaustion of that security, shall not enable 
 him to get back the second estate, discharged of 
 both debts. If, therefore, the paramount creditor 
 resorts to the doubly-charged estate, the puisne cre- 
 ditor will be substituted to his rights, and will be 
 satisfied out of the other fund, to the extent to 
 which his own may be exhausted.^ And it seems 
 
 Jersey Co. 1 Hopkins, 460; Evertson v. Booth, 19 Johns. E. 
 486 j Fallen v. Agric. Bk. 1 Freem. C. E. 419, 424; Kendall v. 
 The N. England Co., 13 Conn. 394-5; Lodwick v. Johnson, 
 Wright's Oh. E. 498; Thompson y. Murray, 2 Hill C. E. 210; 
 Miami Co. v. U. S. Bank, Wright's Oh. E. 249 ; Williams v. 
 Washington, 1 Dev. C. E. 137; Dorr v. Shaw, 4 John. C. E. 17; 
 Trowbridge v. Harleston, Walk. Ch. E. 185. But it ought to 
 appear that the fund which is not affected by the junior lien is 
 fully adequate to satisfy the prior lien, and the remedy for realiz- 
 ing it is prompt and efficient. Briggs v. The Planters' Bank, 
 Freem. C. E. 574; Dorr v. Shaw, 4 John. C. E. 17. See also 
 cases cited, note 2, p. 270, supra, the distinction there illustrated 
 being but a corollary of this doctrine. 
 
 * Bank of Kentucky v. Vance, 4 Litt. 168. See also Eddy 
 V. Traver, 6 Paige, 621; Hawley v. Mancius, 7 John. C. E. 
 174 ; Hunt v. Townsend, 4 Sandf. C. E. 510 ; Eamsay's Appeal, 
 2 Watts, 228; Cheeseborough v. Millard, 1 John. C. E. 409; 
 Hastings' Case, 10 Watts, 303; Averill v. Loncks, 6 Barb. S. 
 C. E. 470 ; Besley y. Lawrence, 11 Paige, 581. 
 
508 ADAMS'S DOCTRINE OF EQUITY. 
 
 that he may, on proposing just terms, require the 
 paramount creditor to proceed against the estate on 
 which he has himself no claim. His right, however, 
 to do this is not an independent equity against the 
 creditor, but a mere incident of his equity against 
 their common debtor; and, therefore, if the para- 
 mount claim is not chargeable on two funds, both 
 belonging to the same debtor, but is merely due 
 from two persons, one of whom is also indebted to 
 separate creditors, there is no equity to compel a 
 resort to one rather than to the other, or to alter 
 the consequences of the election which may be 
 made.(g')^ 
 
 The principle which refuses interference as against 
 the creditor was strongly tested in a case arising out 
 of the rebellion of the American colonies. Subse- 
 quently to the declaration of Independence, an act 
 was passed by the legislature of Georgia, confiscating 
 the estates of all who had retained their allegiance, 
 but providing that debts owing by them to persons 
 r*9'7C'i ^^^ ^^^ favoured the rebellion *should be 
 L -' paid out of the confiscated estates ; so that 
 any creditor coming within the favour of the act had 
 two sources of payment to which he might resort, 
 viz., first, the American estates; and second, the 
 personal liability of his debtor. A bill was filed by 
 the executors of a banished loyalist, praying that 
 certain of his creditors might be compelled to seek 
 satisfaction in the first instance out of the confiscated 
 
 (q) Greenwood v. Taylor, 1 K. & M. 185 ; Mason v. Bogg, 2 
 M. & C. 443; Ex parte Kendal, 17 Ves. 514; Ex parte Field, 3 
 M. D. & D. 95. 
 
 * See Ayres v. Husted, 15 Conn. E. 504. 
 
OF MARSHALLING. 509 
 
 property. And it is obvious that if any equity could 
 exist for controlling the creditor, it might have been 
 well exercised in a case where under such circum- 
 stances as these he had acquired a claim on an in- 
 dependent fund, from which, if rejected by him, his 
 debtor could reap no advantage. The claim was 
 disallowed, on the ground that it was not proved 
 that the particular creditor could avail himself of 
 the fund ; but Lord Eldon, in reviewing the cases, 
 expressed considerable doubt whether, even if that 
 difficulty had not occurred, the supposed equity as 
 between the debtor and the creditor could exist, (r) 
 The equity is apparently not binding on the debt- 
 or's alienee for value, notwithstanding that he m.ay 
 have taken with notice of the facts, unless his interest 
 were acquired after the institution of a suit. For 
 although the ordinary rule is, that an alienee with 
 notice is bound by all the equities which bound his 
 alienor, yet there is a distinction in regard to this 
 particular equity ; because the omission of the credi- 
 tor to take an express collateral charge raises a pre- 
 sumption that he meant to leave the equity defeasi- 
 ble, and to continue the owner's power of dealing 
 with the second estate for value, unfettered by his 
 claim. It is otherwise if the debtor, on creating the 
 single claim, covenants to satisfy the paramount 
 charge out of the other estate, or fraudulently con- 
 ceals its existence. For then a purchaser taking 
 with notice of the covenant or concealment will be 
 bound by the same equity as the debtor himself (s) 
 
 (r) Wright v. Simpson, 6 Ves. 714. 
 
 (s) Averall v. Wade, LI. & a. 252 ; Hamilton v. Koyse, 2 Soh. 
 & L. 315, commented on in LI. & G. 263 j Barnes v. Eaoster, 1 
 N. C. C. 401 ; Bugden v. Bignold, 2 N. C. C. 377. 
 
510 Adams's doctrine of equity. 
 
 r*974-T *Tlie equities of contribution, exoneration, 
 and marshalling, are applied, as already no- 
 ticed, in the administration of assets, to rectify dis- 
 orders which, may incidentally occur. 
 
 The two former equities are applied when debts 
 or legacies are charged on several kinds of assets, 
 either pari passu or successively ; as, for example, 
 where estates subject to a charge descend to several 
 heirs in different lines of descent, or are given to seve- 
 ral devisees, all the heirs in the one case, and all the 
 devisees in the other, must contribute to the charge ;^ 
 but, if there be both heirs and devisees, the heirs can 
 have no contribution from the devisees, because their 
 own estate is first liable.^ If, on the other hand, a 
 charge is levied on a fund out of its regular order, 
 
 ' When lands held by several devisees in the same will, are 
 charged in Equity to satisfy a bond debt of the devisor, the decree 
 should be against the lands of all the devisees, or the money re- 
 ceived or claimed in lieu thereof, in rateable proportions, and not 
 against the land of one only, with liberty to that one to sue the 
 others for contribution; Foster v. Crenshaw's Ex'rs, 3 Munf. 
 514. See also Livingston v. Livingston, 3 John. C. R. 148. As 
 to contribution among co-heirs, see Schermerhorn v. Barhydt, 9 
 Paige, 28. 
 
 " See, in agreement with the text, Livingston v. Newkirk, 3 
 Johns. C. R. 312, 320 ; Stires v. Stires, 1 Halsted's R. 224 ; 
 Adams v. Braokett, 5 Mete. 280. But the right of the devisee 
 as against the heir is different when the fund for payment of debts 
 is by the will blended of real and personal property. Thus, when 
 a testator devised his estate real and personal, to be divided among 
 his next of kin " as soon as his debts and legacies are paid, and 
 not until then ;" it charges the estate with payment of the debts 
 and legacies ; and after-acquired real estate, as to which the tes- 
 tator died intestate, is exonerated until the other is exhausted ; 
 Hall V. Hall, 2 McCord's C. R. 269, 302. See also Hassanclever 
 V. Tucker, 2 Binn. R. 525. 
 
OF MARSHALLING. 511 
 
 as, for instance, on a devised instead of a descended 
 estate, or on a descended estate instead of the general 
 personalty, the devisee in the one case, or the heir 
 in the other, may claim exoneration. The necessity, 
 however, for such a claim can only exist where the 
 regular order of liability has been infringed ; and in 
 ordinary administration suits it is not likely to occur, 
 except in the particular instance of a mortgaged 
 estate. In this case the mortgage, like any other 
 specialty debt, will, if claimed by the creditor, be 
 discharged out of the personalty, and the question 
 will subsequently arise, whether as between the re- 
 spective owners of the several funds, the devisee or 
 heir can claim the benefit of its discharge, or whether 
 he must restore its amount to the personalty (<)' 
 
 The equity of marshalling is applied in administra- 
 tion suits, where debts or legacies are charged, some 
 on several kinds of assets, and some on one kind 
 only, and the doubly charged assets have been applied 
 in discharge of the doubly secured claims. 
 
 Under the old law this equity was often exercised 
 in *favour of simple contract creditors, where r:i;07c-| 
 the personalty, which then constituted the 
 only fund, had been wholly or partially exhausted by 
 
 (t) Supra, Administration of Assets. 
 
 ' The devisee or heir of a mortgaged estate, has, as a general 
 rule, the right to throw the burden of the mortgage upon the per- 
 sonal estate, except as against specific and pecuniary legatees ; see 
 Torr's Estate, 2 Eawle R. 250, 254 ; Mansell's Estate, 1 Parson's 
 Sel. Eq. Cas. 367. See also cases cited, note p. 261, supra. 
 But not so, where the incumbrance was not the primary personal 
 debt of the decedent ; then the land is first chargeable, and the 
 heir or devisee cannot claim exoneration ; Cumberland v. Codring- 
 ton, 3 Johns. C. R. 229. See also note, p. 264-5, supra. 
 
512 Adams's doctrine of equitt. 
 
 superior creditors, who might have resorted to the 
 real estate; viz., by specialty creditors, by mort- 
 gagees, or by vendors claiming a lien for unpaid 
 purchase-money, (m)' But the necessity for this 
 course has ceased under the late statute, making real 
 estate, whether freehold or copyhold, directly liable 
 as assets for simple contract debts. (??) The equity, 
 however, is still applicable in favour of devisees or 
 legatees, though it is seldom required by devisees or 
 by specific legatees, because their funds are seldom 
 applied before their turn. The case of general pe- 
 cuniary legacies is different; for they are not gifts 
 of any specific thing, which may be set apart until 
 its turn arrives, but they are gifts of money out of 
 the general personalty after satisfaction of the debts ; 
 and, therefore, if they have not been protected by a 
 charge on the realty, the fund may be exhausted be- 
 fore their turn arrives. This exhaustion is remedied 
 by marshalling ; but subject to the restriction that 
 it must not operate against any one, who is equally 
 an object of the testator's bounty, and whose interest 
 is by law not liable in priority to the legatee's. 
 
 In accordance with this rule, an entire or partial 
 exhaustion of the personal estate will warrant mar- 
 shalling, in favour of legatees ; but such marshalling 
 can only be directed against real assets descended, 
 land devised for or charged with payment of debts, 
 
 (w) Aldrich v. Cooper, 8 Ves. 382, 389 ; Selby v. Selby, i 
 Kuss. 336. 
 
 (v) 3 & 4 Wm. 4, 0. 104. 
 
 ' See Alston v. Munford, 1st Brock. R. 266 ; Haydon v. Goode, 
 4 Hen. & Munf. 460. 
 
OF MARSHALLING. 513 
 
 and land devised subject to a mortgage.^ It cannot 
 be directed as against other land devised or as against 
 specific legatees. («j)^ The manner in which the ex- 
 haustion is caused is generally by payment r*97f.-i 
 *of creditors, but it may be also caused by 
 payment of legacies, where some legacies are charged 
 on both real and personal estate, and others on the 
 personal estate alone. It will not, however, arise 
 unless the legacy which requires its aid was originally 
 chargeable on the personalty alone. If it originally 
 affected both real and personal estate, but has failed 
 
 (w) Wythe v. Henniker, 2 M. & K. 635 ; Mireiouse v. Scaife, 
 
 2 M. & C. 695 ; Sproule v. Prior, 8 Sim. 189 ; Strickland v. 
 Strickland, 10 Sim. 374; 8 Sug. V. & P., c. xviii., s. 2. 
 
 ' Real assets descended will not be marshalled in aid of either a 
 general or residuary legacy; Walker's Estate, 3 Eawle, 229. 
 See also Hayes v. Jackson, 6 Mass. 149. Alitcr, if the legacy 
 is pecuniary or specific ; Mollan v. Griffith, 3 Paige, 402. 
 But in some cases, lands taken by descent seem to have been 
 charged even before what are, properly, general legacies. See 
 Robards v. Wortham, 2 Dev. Eq. R. 173, wherein it was said that 
 " descended lands must pay all debts for which the real estate is 
 liable, in exoneration of all but renduary legacies, or of other 
 land devised for the payment of debts." To the same effect are 
 Brown v. James, 8 Strob. Eq. R. 24, 26 ; and Warley v. Warley, 
 1 Bailey Eq. R. 397. 
 
 ^ Livingston v. Livingston, 3 John. C. R. 148, 158 ; McCamp- 
 bell V. McCampbell, 5 Litt. R. 92 ; Hoover v. Hoover, 5 Penna. 
 St. Rep. 351. Respecting the relative rights of specific legatees 
 and devisees, there is a diversity of decision. The English rule, 
 that if specific legacies have been applied to pay specialty debts, 
 the specific legatees are entitled to contribution against the de- 
 visees of the realty, was upheld in Chase v. Lockerman, 11 Gill. & 
 J. 185. But other decisions exempt the devisees altogether, 
 and render the specific legatees first liable ; see Miller v. Harwell, 
 
 3 Murphey's R, 194 ; Warley v. Warley, 1 Bailey Eq. R. 397. 
 
514 Adams's doctrine of equity. 
 
 as a charge on the realty by an event subsequent to 
 the testator's death, e. g., by the death of the legatee 
 before the time of payment, there is no case for 
 marshalling, (cc) 
 
 If the exhaustion be caused by payment of simple 
 contract creditors under the statute, it may be ques- 
 tioned whether the legatees can insist on marshalling. 
 For the statute merely declares the land assets to be 
 administered in equity, and does not, therefore, give 
 the creditors an election between the funds, but com- 
 pels them to exhaust the personalty, before they can 
 have recourse to the ]and.(?/)^ 
 
 An attempt has been made to apply the equity of 
 marshalling to remedy the avoidance of charitable 
 bequests, where such bequests have been made pay- 
 able out of the general assets, instead of being exclu- 
 sively charged on the pure personalty, such as 
 money or stock. A charitable legacy, thus given, 
 is void by law so far as it is payable out of the 
 mixed personalty, such, for example, as mortgages 
 and leaseholds ; and attempts have therefore been 
 made to throw the other legacies on that portion of 
 the estate, in order that the charitable legacy may 
 be paid in full out of the rest. The principle, how- 
 ever, of marshalling does not here apply ; for the 
 reason of the failure is not that some prior claimant 
 has appropriated the legitimate fund, but that the 
 fund given is in part illegal. The Court, therefore, 
 
 (x) Hanby v. Roberts, Amb. 127 ; Prowse v. Abingdon, 1 Atk. 
 482 ; Pearce v. Loman, 3 Ves. 135 ; 2 Jarm. on "Wills, 607. 
 (y) 3 & 4 Wm. 4, c. 104. 
 
 * The correctness of this view is questioned. See White and 
 Tudor's Leading Cas. Eq. toI. ii., part 1, p. 68. 
 
OF MAESHALLING. 515 
 
 will not, either directly or indirectly, aid the gift, 
 but *will appropriate the estate as if no legal 
 objection existed, by charging the legacy on L 'J 
 both funds in proportion to their values ; and will 
 declare so much of the charitable legacy to fail, as 
 would in that way be payable out of the prohibited 
 fund.(z;)' 
 
 (z) Hobson V. Blackburn, 1 K. 273 ; Philanthropic Society v. 
 Kemp, 4 Bea. 581 ; Sturge v. Dimsdale, 6 Bea. 462. 
 
 ^ See, on this subject, Wright v. Trustees of the M. E. Church, 
 1 Hoff. C. K. 202. 
 
516 ADAMS'S DOCTRINE OF EQUITY. 
 
 [*278] *CH AFTER VI. 
 
 OF INFANCY, IDIOCY, AND LUNACY. 
 
 The last equity wlaich remains for notice is the 
 equity for administering the estates and protecting 
 the persons of infants, idiots, and lunatics. 
 
 The protection of an infant's person and estate is 
 to some extent provided for in the ordinary course 
 of law ; viz., by the right of guardianship, extending 
 sometimes to the person alone, and sometimes to 
 both the person and estate ; and the superintendence 
 of this right is effected by writ of habeas corpus in 
 respect of the person, and by writ of account at law 
 or bill for account in equity in respect of the estate. 
 The estate is also in many instances protected by 
 being vested in trustees with express powers of 
 management and application; in which case their 
 conduct will be regulated under the ordinary juris- 
 diction over trusts. And if property be vested in a 
 trustee, the right of the guardian to the general cus- 
 tody of the estate does not extend to the property so 
 vested, so as to exonerate the trustee from seeing to 
 its safety. 
 
 The guardianship of the person during the father's 
 lifetime resides in him; and he is entitled in his 
 parental right to the custody and education of the 
 infant, but not to the custody of his estate. 
 
OF INFANCY. 517 
 
 The guardianship of the estate during the father's 
 lifetime, and of both person and estate after his 
 death, *belonged at common law to the guar- ri^.iirjQ-i 
 dian in socage, where such a guardian existed; 
 and, in default of a statutory guardian, still belongs 
 to him. But guardianship of this class exists only 
 as an incident of tenure, and is confined to cases 
 where the legal estate in hereditaments of socage 
 tenure descends on the infant. It is vested in the 
 nearest of kin, whether the father or a more remote 
 relation, who cannot by descent have the socage 
 estate; and determines at the age of fourteen, or, 
 according to another opinion, so soon after that age 
 as there is another guardian, either by election of 
 the infant or otherwise, prepared to succeed. With 
 respect to the property of the ward, the right of 
 guardian in socage extends to all descended heredi- 
 taments, whether lying in tenure or not ; and he is 
 said to have, not barely an authority, but an actual 
 estate, enabling him to demise for the duration of 
 his guardianship, or to occupy personally for the 
 ward's benefit. The extent of his authority over 
 the personal estate is doubtful; but Mr. Hargrave 
 thinks that the custody of the person must draw 
 after it the custody of every species of property for 
 which the law has not otherwise provided.' 
 
 1 " The guardianship in socage may be considered as gone into 
 disuse ; and it can hardly be said to exist in this country, for the 
 guardian must be some relation by blood, who cannot possibly 
 inherit, and such a case can rarely exist." Kent's Com. vol. ii. 
 p. 223. "And as all the children, male and female, equally 
 inherit, with us ; the guardianship by nature, would seem to 
 extend to all the children, and guardianship by nurture, is 
 
518 ADAMS'S DOCTRINE OF EQUITY. 
 
 The guardianship in socage is the most important 
 of the common law guardianships ; but not the only 
 one. There are five other guardianships of more 
 limited operation; viz., 1. By nature; which, like 
 that in socage, is an incident of tenure. This guar- 
 dianship is of an heir apparent only, and is vested 
 in the ancestor whose heir the infant is. It con- 
 tinues till twenty-one, and is confined to the person. 
 
 2. For nurture ; which is of all the children, and 
 not only of the heir apparent. It belongs exclu- 
 sively to the father, or at his decease to the mother ; 
 continues till fourteen, and is confined to the person. 
 
 3. By the custom of London; which is where a 
 parent, free of the City, leaves an unmarried orphan. 
 This guardianship is vested in the mayor and alder- 
 men ; continues till twenty-one as to males, and till 
 eighteen or marriage as to females ; and was origi- 
 nally of the person only, but subsequently extended 
 
 by Eichard 2 *to the lands and goods. 4. By 
 L -I custom of other boroughs and manors. 5. By 
 election of the infant ; which is on the termination 
 of guardianship in socage by the infant's attaining 
 fourteen, and confers on the guardian by election 
 the same office and employment which was pre- 
 viously in the guardian in socage. And it is said by 
 Lord Coke, that in certain cases the same thing may 
 be done by an infant under fourteen. 
 
 The guardianship by statute, which is now the 
 most important of all the guardianships, originates 
 in the statute for abolishing tenures in capite.[a) 
 
 (a) 12 Car. 2, c. 24, s. 8. 
 
 merged in the more durable title of guardian by nature." Ibid, 
 pp. 220, 221. 
 
OF INFANCY. 519 
 
 Before that statute a father, tenant in socage, could 
 not have disposed of the custody of his heir, for it 
 belonged to the legal guardian. But by the 8th 
 section of that statute, the father of an unmarried 
 infant is enabled (without prejudice, however, to the 
 custom of London) to appoint a guardian by deed or 
 will, whose appointment will be good against all per- 
 sons claiming as guardians in socage or otherwise.' 
 The authority of the statute guardian continues till 
 twenty-one, and he is entitled to the custody of the 
 person and of the real and personal estate, including 
 hereditaments acquired by purchase, with the same 
 authorities and remedies as guardian in socage. (6) 
 
 The superintendence of the guardianship in re- 
 spect of the person, so as to discharge from illegal 
 custody, or to protect from cruelty or ill-usage by 
 the legal guardian, is exercised by the Court of 
 Queen's Bench on writ of habeas corpus. The same 
 writ is issuable out of the Court of Chancery ; -but 
 
 (6) See generally as to Guardianship, Hargr. on Co. Litt. 87 h. 
 n. 59 to 73 3 2 Staph. Bl. 331-345; Chambers on Infancy, 54- 
 74, 509-522. 
 
 '■ The Statute 12 Car. 2, c. 24, has been very generally adopted, 
 or re-enacted, in the United States. See Elmer's N. Jersey Digest, 
 title "Wills; Act of Virginia, 1798, V. K. C. vol. i. 240 ; Purdon's 
 Penna. Dig., title Wills; Chase's Stat. Ohio, vol. iii. 1788. A 
 father onli/, can appoint a testamentary guardian of his children. 
 The power does not extend to a grandfather; Hoyt v. Hilton, 2 
 Ed. C. R. 202. When a testamentary guardian is appointed by 
 the father, the natural right of the mother must yield to the will 
 of the father ; Vanhouten's case, 2 Green, C. R. 220. But the 
 father's intention to appoint ought to be very manifest ; Ibid. ; and 
 see Peyton v. Smith, 2 Dev. & Batt. C. R. 325 ; Gaines v. Spann, 
 2 Brock R. 81. 
 
520 Adams's doctrine of equity. 
 
 the jurisdiction under it is the same as at common 
 law, and the Court can attend to nothing except 
 illegal custody, cruelty, and ill-usage. (c)' 
 
 The superintendence of the guardianship in re- 
 spect of the estate, so as to secure a due accounting 
 r*281 1 ^y *^^ person *in possession, is by action of 
 ■ account at law, or suit for account in equity. 
 As against the guardian in socage or the statute 
 guardian, either of these remedies may be pursued ; 
 and also as against any person who, not being guar- 
 dian, has occupied or taken the profits of the land of 
 an infant tenant in socage.^ If the infant be not 
 tenant in socage, the intruder is not liable to ac- 
 count at law, but will be compelled to account in 
 equity, (d) 
 
 (c) E. V. Greenhill, 4 A. & E. 624 ; Lyons v. Blenkin, Jac. 245, 
 254. 
 
 (d) Chamb. 518, 521 ; Blomfield v. Eyre, 8 Bea. 280. 
 
 ' When an infant is brought up on a habeas corpus, the Chan- 
 cellor will not, in such a summary proceeding, try the question of 
 guardianship, or deliver the infant into the custody of another ; 
 he will only deliver the infant from illegal restraint, and if compe- 
 tent to form and declare an election, will allow it to make such 
 election. Matter of Woolstoneeraft, 4 Johns. C. R. 82 ; Foster v. 
 Alston, 6 How. Miss. 406 ; see also. The People v. Mercein, 8 
 Paige, 47, 55 ; U. S. v. Green, 3 Mason, 482, 485. 
 
 ° Any stranger or wrong-doer, who interferes with the property 
 of a minor, and receives the rents and profits thereof, may be con- 
 sidered by the minor as his guardian, and held accountable as such 
 to him for the property so received. Goodhue v. Barnwell, 1 Rice 
 Eq. 198 ; Davis v. Harkness, 1 Gilman, 173 ; Hanna v. Spotts, 5 B. 
 Monr. 362 ; Drury v. Conner, 1 Harris & Gill. 220. But an exe- 
 cutor, having rightful possession of the property of the infant, 
 cannot be treated as a guardian without his consent. Bibb v. 
 M'Kinley, 9 Porter, 636. 
 
OP INFANCY. 521 
 
 The means of protection already enumerated, al- 
 though available for the prevention of positive mis- 
 conduct, are inadequate to secure a proper education 
 of the infant, or a prudent management of his estate. 
 And for these purposes there is a prerogative in the 
 Crown, as paresis patrice, to be exercised by the Court 
 of Chancery, for protection of any infant residing 
 either temporarily or permanently within its juris- 
 diction.' The possession of property is not essen- 
 tial to the existence of this authority, though the 
 want of it may create a practical difficulty in its 
 exercise, by incapacitating the Court from providing 
 for the infant's maintenance, (e) 
 
 (e) De Manneville v. De Manneville, 10 Ves. 52-63 ; Welles- 
 ley V. Wellesley, 2 Bl. N. S. 124 ; Johnston v. Beattie, 10 Gl. & 
 F. 42 ; Ke Spence, 2 Ph. 247. 
 
 ' The several kinds of guardian have, in this country, become 
 essentially superseded in practice by the Chancery guardians, and 
 guardians appointed by the Surrogates, Ordinary, or Orphan's 
 Courts, Courts of probate, or other Courts of similar character, 
 having jurisdiction of testamentary matters, in the various States. 
 And still, when there exists a Court of Chancery, the general juris- 
 diction over every guardian resides there. A testamentary or 
 statute guardian is as much under the superintendence of the 
 Court of Chancery, as the guardian in socage. Matter of Andrews, 
 1 Johns. C. R. 99 ; Ex parte Crumb, 2 John. C. R. 439 ; and see 
 Matter of Nicoll, 1 John. C. R. 25. Such Court has a general 
 supervisory power over the persons and estates of infants; and when 
 any part of an infant's estate is in litigation there, it is under the 
 immediate guardianship and protection of the Court. Westbrook 
 V. Comstock, Walk. C. B. 314. Where an infant under twelve 
 years of age was married, and immediately thereafter declared her 
 dissent to the marriage, upon application to Chancery by her next 
 friend, she was declared a ward of the Court, and all conversation, 
 intercourse, or correspondence between her and the defendant to 
 whom she had been married, was forbidden under pain of contempt. 
 Aymar v. Roiaf, 3 John. C. R. 49. 
 
522 ADAMS'S DOCTRINE OF EQUITY. 
 
 The mode of calling the jurisdiction into operation 
 is by filing a bill, to which the infant is , a party. 
 This constitutes him a ward of Court ; and, after he 
 is once a ward, any subsequent matter may be de- 
 termined on petition or motion. If the infant is in 
 illegal custody, an order for his delivery to the pro- 
 per guardian may be made on petition without bill ; (/) 
 and if the father is dead, the appointment of a 
 guardian and an allowance for maintenance may be 
 obtained in the same way. But if a receiver of the 
 estate is wanted, or a compulsory order on trus- 
 tees, or if there be complicated accounts, a bill is 
 nece ssary . {g) 
 
 The principal incidents of wardship are three in 
 number; *viz. The ward must be educated 
 ■- -I under the Court's superintendence ; his estate 
 must be managed and applied under the like super- 
 intendence; and his marriage must be with the 
 sanction of the Court. 
 
 1. The ward must be educated under the super- 
 intendence of the Court. 
 
 The right of superintendence exists in every case 
 of wardship ; and therefore, when an infant has been 
 made a ward, he cannot be taken out of the jurisdic- 
 tion of the Court without its leave. But leave will 
 not be refused, if shown to be for his benefit, pro- 
 vided due security be given for his return and for, 
 acquainting the Court with his situation and pro- 
 gress, (h) 
 
 (/) Ke Spence, 2 Ph. 247. 
 Ig) 2 Dan. C. P., ch. 39. 
 
 (h) Campbell v. Maokay, 2 M. & C. 31 ; Johnstone v. Beattie, 10 
 CI. & F. 42 ; Stephens v. James, 1 M. & K. 627. 
 
OF INFANCY. 523 
 
 ■The manner in which the superintendence is ex- 
 ercised differs according as there is or is not a sub- 
 sisting guardian. 
 
 If the father is dead, and there is no legal or sta- 
 tutory guardian, or none who is able or willing to 
 act, a guardian will be appointed, and a scheme of 
 education settled by the Court. In settling such 
 scheme the Court will regard, as far as possible, the 
 wishes of the deceased father. And it will more es- 
 pecially do so in regard to religion, by bringing up 
 the infant in the creed of his family, if not contrary 
 to law, and if he has not been already educated in 
 another, (i) ^ If the guardian is resident beyond the 
 jurisdiction, he will not for that reason be displaced 
 from his office ; but it will be an inducement to join 
 some other person in the guardianship, who may be 
 responsible to the Court. (A;) 
 
 If there is a father or legal guardian within the 
 jurisdiction able and willing to act, the matter will 
 be left to his discretion, subject to the general con- 
 trol of the Court. But if there be a difference of 
 opinion among several guardians, a scheme will be 
 directed. (I) 
 
 *If the father or legal guardian has volun- r*oQq-i 
 tarily relinquished his right, or has forfeited 
 
 (t) Talbot V. Shrewsbury, 4M. & C. 673; Witty v. Marshall, 1 
 N. C. C. 68. 
 
 (k) Johnstone v. Beattie, 10 CI. & F. 42 ; Wellesley v. Beaufort, 
 2 Buss. 1, 18. 
 
 (Z) Campbell v. Mackay, 2 M. & C. 31, 36. 
 
 ' In the appointment of a guardian for an infant, the Court will 
 regard the expressed desire of the deceased parents in reference to 
 the religious education of the infant; Underbill v. Dennis, 9 
 Paige, 202 ; Graham's Appeal, 1 Dall. 136. 
 
524 ADAMS'S DOCTRINE OF EQUITY. 
 
 it by misconduct tending to the infant's corruption, 
 the Court will restrain him from interfering, and 
 will appoint some other person to act as guardian in 
 his place.^ Instances of voluntary relinquishment 
 occur where a third party has given a benefit to the 
 infant, on condition of being allowed to appoint a 
 guardian, and the father or legal guardian has ex- 
 pressly or impliedly assented to that condition, either 
 by originally conforming to its terms, so as to alter 
 the infant's condition in life, or by accepting a be- 
 nefit under it. Bat there is no power in third parties, 
 independently of such assent, to deprive the parent 
 or guardian of his right, by making a gift to the 
 infant on condition of its relinquishment. If, how- 
 ever, a gift is de facto made which will ultimately 
 change the infant's condition in life, the necessity 
 of educating him suitably to his expectations may 
 induce some degree of interference by the Court. (?n) 
 Instances of forfeiture by misconduct occur where 
 the father or guardian inculcates vicious and irre- 
 ligious principles, or conduct, inconsistent with the 
 well-being of society; or where he manifests such 
 principles in his own conduct, and brings the infant 
 so in contact with them, that corruption is likely to 
 ensue, (w)^ 
 
 (to) Lyons v. Blenkin, Jao. 24.5, 255 ; Hill v. Gomme, 1 Bea. 
 540; 5 M. & C. 250; De Manneville v. De Manneville, 10 Ves. 
 52, 64. 
 
 («.) Shelley v. Westbrooke, Jac. 266, n. ; Wellesley v. Beaufort, 
 
 » The Court will not discharge a guardian from his trust, on his 
 petition, unless for good reasons shown ; Ex parte Crumb, 2 Johns. 
 C- E.. 439. See also Ex parte de Graffenreid, 1 Harp. Eq. R. 
 . 107. 
 
 ^ Fixed habits of intemperance constitute a sufficient reason for 
 
OF INFANCY. 525 
 
 It is enacted by a late statute, entitled " An Act 
 to amend the Law relating to the Custody of In- 
 fants," that the Court of Chancery, upon the petition 
 of the mother of any infant, may make order for the 
 access of the petitioner to her infant children at 
 such times and under such regulations as the Court 
 shall deem convenient and just ; and if such children 
 shall be within the age of seven years, may order 
 them to be delivered into the custody of the peti- 
 tioner until such age. But no mother against whom 
 adultery *has been established, by a judg- 
 ment in an action for criminal conversation ■- -• 
 at a suit of her husband, or by the sentence of an 
 Ecclesiastical Court, is entitled to the benefit of the 
 act. (o) It is also enacted by another statute, entitled 
 " An Act for the care and education of Infants who 
 may be convicted of Felony," that the Court of 
 Chancery, on the application of any person who may 
 be willing to take charge of an infant so convicted, 
 and to provide for his maintenance and education, 
 may assign the custody of such infant during 
 
 2 Kuss. 1; 2 Bl. N. S. 124; Ball v. Ball, 2 Sim. 35 ; Re Spence, 
 2 Ph. 247. 
 
 (o) 2 & 3 Vict. c. 54; Re Taylor, 10 Sim. 291; 11 Sim. 178. 
 
 the removal of a guardian ; Kettletas v. Gardiner, 1 Paige, 
 488. So, speculation by the guardian with the husband of his 
 female ward, in relation to her estate, or even the insolvency of 
 the guardian and one of his sureties, may be sufficient cause ; In re 
 Cooper, 2 Paige, 34. On the other hand, it is no ground 
 for the removal of a guardian, that he has retained the funds of 
 his ward, instead of investing them, admitting his liability for 
 interest; Sweet v. Sweet, Speer's Ch. R. 309. See also on the 
 subject, Disbrow v. Henshaw, 8 Cow. 349 ; In re Kennedy, ^ 
 Paige, 244. 
 
526 Adams's doctrine of equity. 
 
 minority, or during any part thereof, to the applicant, 
 on such terms and subject to such regulations as the 
 Court may prescribe. And an order for that pur- 
 pose, so long as it shall remain in force, is to be 
 binding on the father, and on every testamentary 
 guardian. But it is in every case to be one of the 
 terms imposed, that the infant shall not be sent 
 beyond the seas, or out of the jurisdiction of the 
 Court, (p) 
 
 2. The ward's estate must be managed and applied 
 under the superintendence of the Court. 
 
 The manner of management, like that of educa- 
 tion, differs according to the circumstances of the 
 case. If there are no trustees within the jurisdic- 
 tion able and willing to act, the Court will appoint a 
 receiver. If there are such trustees, they will not 
 be superseded, except for misconduct ; but a guardian 
 is in this respect different from a trustee, and his 
 power of management will not exclude a receiver, (g) 
 
 In cases where a trust exists, the degree of autho- 
 rity, as well as the manner of its exercise, will 
 depend on the terms of the instrument creating it. 
 In other cases the Court is thrown on its inherent 
 jurisdiction; and has authority to manage the estate 
 during minority and to apply its proceeds for the 
 infant's benefit ; but there is no inherent power to 
 dispose of or alter the estate itself, except in cases of 
 election or partition, where the disposition is de- 
 P^QQK-i mandable *as of right by other parties, (r) 
 and of the devolution on an infant of a mort- 
 
 (p) 3 & 4 Vict. e. 90. 
 
 (g') Gardner v. Blanc, 1 Hare, 381. 
 
 (?•) Grimstone v. Gaunt, 1 Coll. 577 ; note to Gretton v. Ha- 
 
OF INFANCY. 527 
 
 gaged estate, where a sale is the only protection 
 against foreclosure, (s) If it be for an infant's bene- 
 fit to invest money in land, and thus to change per- 
 sonal into real estate, the order authorizing the in- 
 vestment will be coupled with a declaration that the 
 land should be considered, during the minority, as 
 constructively personal, (i!) ^ 
 
 The statutory powers of directing conveyances 
 where estates, held on trust or mortgage, or subject 
 to an equity for specific performance, or liable as 
 assets for payment of debts, have devolved on an 
 infant, have been already noticed, (m) There are 
 other statutory powers which apply to the beneficial 
 property of infants, and which are conferred by a 
 statute, not confined to infancy alone, but providing 
 for other cases of incapacity, and entitled " An Act 
 for amending the Laws relating to property belong- 
 ing to Infants, Femes Covert, Lunatics, and Persons 
 of Unsound Mind."(v) 
 
 ward, 1 Sw. 413; Simson v. Jones, 2 E. & M. 365, 374; Calvert 
 V. Godfrey, 6 Bea. 97, 109 ; Supra, Partition. 
 
 (s) Mondey v. Mondey, 1 Ves. & B. 223 ; Brookfield v. Brad- 
 ley, Jac. 634; Davis v. Dowding, 2 K. 245. 
 
 (f) Ashburton v. Ashburton, 6 Ves. 6 ; Ware v. Polhill, 11 
 Ves. 257, 278; Webb v. Lord Shaftesbury, 6 Madd. 100; Ex 
 parte Phillips, 19 Ves. 118, 122. 
 
 (ii) Supra, Trust ; Specific Performance ; Mortgage ; Admini- 
 stration of Assets. 
 
 (y) 11 Geo. 4 & 1 Wm. 4, c. 65 ; 1 & 2 Vict. c. 62. 
 
 ' See, to this point, Huger v. Huger, 3 Desau. 18 ; Stapleton v. 
 Langstaff, Ibid. 22 ; Dorsey v. ftilbert, 11 Gill. & J. 87. See also 
 Hedges v. Kiker, 5 Johns. C. R. 163 ; Mills v. Dennis, 3 John. 
 C. R. 370 ; Davison v. De Freest, 3 Sandf. C. E. 456 ; Snowhill 
 V. Snowhill, 2 Green's Ch. 20 ; see vide Roberts v. Jackson, 3 
 Yerger, 77. 
 
528 Adams's doctrine of equity. 
 
 By the early clauses of this statute, provision is 
 made for the admittance of infants, femes covert, and 
 lunatics, to copyhold property, and for raising the 
 fines payable on such admittance, without requiring 
 the sanction of a judicial order. The powers con- 
 ferred by the subsequent clauses in the case of in- 
 fants and femes covert, are to be exercised under the 
 sanction of the Court of Chancery ; and those which 
 are conferred in the case of lunatics are to be exer- 
 cised, as we shall hereafter see, by the Lord Chan- 
 cellor, intrusted under the sign manual with the 
 custody of lunatics. The acts which the Court of 
 r*98fi1 Chancery is thus *empowered to correct, are 
 the surrender of renewable leases belonging 
 to an infant or /eme covert, and the acceptance of 
 renewed ones in their stead ; the renewal of leases 
 which the infant or feme covert, if not under disa- 
 bility, might be compelled to renew ; the leasing of 
 property belonging to an infant in fee or in tail, or 
 for an absolute leasehold interest ; the entering into 
 agreements on behalf of an infant under the Act for 
 augmenting the Maintenance of the Poor Clergy ; (w) 
 and the application, for an infant's maintenance, of 
 the dividends on his stock, under which name is in- 
 cluded every fund, annuity, or security transferable 
 in the books of any company. The clauses which 
 relate to lunatics will be hereafter considered, (cc) 
 
 In exercising its superintendence over a ward's 
 estate, the Court will make a reasonable allowance 
 for maintenance, provided the ward be entitled abso- 
 lutely to a present income, and the allowance be for 
 
 [yi) 1 Geo. 1, c. 10. (x) Infra, Lunatics. 
 
OF INFANCY. 529 
 
 his benefit. The expenditure for this purpose is 
 generally confined to income ; and is rarely per- 
 mitted to break in upon capital. But the capital 
 may be applied for the advancement of the child in 
 life, e. g., for binding him apprentice, or purchasing 
 him a commission in the army. (3/)^ 
 
 The authority of the Court to allow maintenance 
 
 (jf) Walker v. Wetherell, 6 Ves. 473. 
 
 ' In general, a guardian must keep his expenses on account of his 
 ward, within the income of his ward's estate, and he cannot encroach 
 upon the principal for this purpose, except upon the order of the 
 Court, in such case, upon his application ; Davis v. Harkness, 1 
 Gilm. 173 ; Davis v. Koberts, 1 Sm. & Marsh. C. E. 543 ; Anderson 
 V. Thompson, 11 Leigh. 439 ; Prince v. Logan, Speer's C. E. 29 ; 
 McDowell v. Caldwell, 2 McCord C. E. 43 ; Myers v. Wade, 6 Eand. 
 444; Villard v. Chovin, 2 Strob. Eq. 40 ; Holmes v. Logan, 8 Strob. 
 Eq. 31. It seems that increase in the value of the property of 
 the infant may be deemed income, and be appropriated by the 
 guardian to his support ; Long v. Norcom, 2 Ired. C. E. 354. So 
 a guardian will be allowed for disbursements, although they 
 exceed the income of the ward's estate in Ms hands, if they do not 
 exceed the income of the whole of the ward's estate ; Foreman v. 
 Murray, 7 Leigh, 412. And where the health, or schooling, or 
 other circumstances, render an increased expenditure necessary, 
 the guardian will be allowed such expenses out of the principal 
 of the ward's estate ; see Hooper v. Savage, 1 Munf. 119 j Long 
 V. Norcom, supra. Even the principal of a vested legacy will be 
 broken into for the purpose of educating an infant legatee ; New- 
 port V. Cook, 2 Ashmead, 332. And the rule does not operate 
 to prevent an allowance for permanent improvements of the real 
 estate of the ward by the guardian, out of the principal of the 
 personal estate; Jackson v. Jackson, 1 Gratt. 143. 
 
 Moreover, although a guardian has no right to expend the prin- 
 cipal, yet if he purchases goods on account of the ward, the person 
 of whom he purchases is not bound to see that they are paid for 
 out of the profits of the estate ; Broadus v. Rosson, 3 Leigh, 12. 
 
 34 
 
530 Adams's doctrine of equity. 
 
 is distinct from its authority where maintenance is 
 already given, whether the gift be made as an 
 express benefit to the child's parent, or as a benefit 
 to thS child out of a stranger's estate, or as one of 
 the trusts under a contract or settlement. In these 
 cases the authority of the Court is to effectuate the 
 gift, and to allow maintenance, if directed, because 
 it is given by the donor. In the cases which we 
 are now considering, it is an authority to allow 
 maintenance out of the income, merely because it 
 belongs to the infant, and because such an applicar 
 tion is for his benefit ; and it will accordingly be 
 r*287T ^^^^^^"1 though no maintenance *or a less 
 maintenance be directed by the gift, or even 
 though there be an express direction to accumu- 
 late, (z) 
 
 In order to obtain an allowance for maintenance, 
 it must be shown that there is a present income be- 
 longing absolutely to the infant, and that the allow- 
 ance will be for his benefit. 
 
 There must be a present income belonging abso- 
 lutely to the infant. It is not however essential to 
 a compliance with this rule that the income should 
 belong absolutely to the individual infant. It is 
 sufficient if it belongs absolutely to a class, all of 
 whom can be collected before the Court, and may be 
 equally benefitted by the application. But if per- 
 sons, not in esse, may become entitled, it is not sufii- 
 cient that the parties before the Court are presump- 
 tively entitled at the time ; for none of them may be 
 eventually entitled ; and the effect, therefore, of an 
 order for maintenance out of the fund, may be to 
 
 (is) Stretch v. Watkins, 1 Mad. 253. 
 
OF INFANCY. 531 
 
 maintain one person out of the property of an- 
 other, (a) 
 
 The allowance must be for the infant's benefit. 
 If, therefore, there be two funds, out of either of 
 which maintenance might be given, it will be directed 
 out of the one which is most beneficial to him. (6) 
 And on the same principle, where the infant is living 
 with his father, or, after the father's decease, with 
 the mother, remaining unmarried, maintenance will 
 not be allowed, if such father or mother be of ability 
 to maintain him, e. g., to maintain him suitably to 
 his expectations, and according to the parent's con- 
 dition in life, without injury to his other children, (c)' 
 
 (a) Ex parte Kebble, 11 Ves. 606 ; Turner v. Turner, 4 Sim. 
 430; Cannings v. Flower, 7 Sim. 523; Marshall v. Holloway, 2 
 Sw. 432, 436. 
 
 (V) Bruin v. Knott, 1 Ph. 572. 
 
 (c) Andrews v. Partington, 3 B. C. C. 60 ; Hoste v. Pratt, 3 
 Ves. 730 ; Buckworth v. Buckworth, 1 Cox, 80 ; Jervoise v. Silk, 
 Coop. 52 ; Stocken v. Stooken, 4 M. & C. 95 ; Thompson v. Griffin, 
 Cr. & P. 317. 
 
 ' For a recognition and support of the English doctrine in respect 
 of a father-guardian's exclusive personal liability for maintenance, 
 see Walker v. Crowder, 2 Ired. C. R. 478 ; Borth v. Sineath, 2 
 Strob. Eq. 31 ; Chapline v. Moore, 7 Monr. 173 ; Myers v. Myers, 
 2 M'Cord's C. R. 255 ; EUerle v. The Heirs and Legatees of 
 Ellerbe, 1 Speer's C. R. 328 ; Dupomt v. Johnson, 1 Bailey's Eq. 
 279 ; Van Valkinburgh v. Watson, 13 Johns. R. 480 ; Addison 
 V. Bowie, 2 Bland. C. R. 606; Jones v. Stockett, Ibid. 409, 431 : 
 Cruger v. Hay ward, 2 Desau. 94 ; Harland's Accounts, 5 Rawle, 
 323. For cases of a mother's obligation, see Matter of Bostwick, 
 4 Johns. C. R. 100; Wilkes v. Rogers, 6 Johns. C. R. 566; Hay- 
 ward V. Cuthbert, 4 Desau. R. 445 ; Thompson v. Brown, 4 Johns. 
 C. R. 645. Indeed, it would seem that the obligation to maintain 
 does not extend to the mother, when the children have an ample 
 
532 Adams's doctrine of equity. 
 
 The manner of maintenance is by allowing a gross 
 annual sum proportioned to the age and rank, and 
 r*28S1*^ the fortune *of the infant, without in- 
 quiring, unless on special grounds, into the 
 details of expenditure. And in making such allow- 
 ance, the principle of looking to the infant's benefit 
 may authorize an extension beyond what is necessary 
 for his personal maintenance ; e. g., if he be an eldest 
 child, and have brothers or sisters unprovided for, 
 because it is more for his benefit that they should be 
 brought up respectably, than that money should be 
 accumulated for himself, {d) 
 
 If moneys have been already expended on his 
 maintenance by a stranger, an allowance may be 
 made for such past maintenance proportioned to the 
 amount expended, and commencing from the period 
 when the property first vested. But an allowance 
 for past maintenance will not be made to the father, 
 unless special grounds be shown, (e)^ 
 
 3. The ward's marriage must be with the sanction 
 of the Court. 
 
 In order to obtain such sanction, the Court must 
 be satisfied that the marriage is a proper one; and, 
 
 {d) Wellesley v. Beaufort, 2 Euss. 1, 28. 
 
 (e) Re Mary England, 1 R. & M. 499 ; Ex parte Bond, 2 M. 
 & K. 439 ; Chaplin v. Chaplin, 3 P. Wms. 368 ; Bruin v. Knott, 
 1 Ph. 572. 
 
 estate; see Hughes v. Hughes, 1 Brown's (Eng.) E. 387; Whipple 
 V. Dow, 2 Mass. 415 ; Dawes v. Howard, 4 Mass. 97. And the 
 rule is being relaxed in this country as to the father ; see Newport 
 V. Cook, 2 Ashmead, 332 ; Matter of Kane, 2 Barb. Ch. R. 375. 
 
 ^ As to allowance for past maintenance, see Matter of Kane, 2 
 Barb. Ch. E. 375. 
 
OF INFANCY. 583 
 
 if the ward be a female, that a proper settlement is 
 made.(/)' The marriage of an infant ward, with- 
 out permission of the Court, is a criminal contempt 
 in all parties except the infant, and is punishable by 
 commitment during pleasure. If the infant be a 
 female the husband will be compelled, by imprison- 
 ment, to make a proper settlement of her property ; 
 and will be excluded, either wholly or in proportion 
 to his criminality, from deriving any persohal benefit 
 out of his wife's fortune, so far as can be done with- 
 out injury to h.er.{g) If the ward has attained 
 twenty-one, the marriage is not a contempt ; but so 
 long as her property continues under the control of 
 the Court, she will retain an *equity for a r*9oq-T 
 settlement, dischargeable only by her perso- 
 nal consent in Court, (gg) 
 
 The jurisdiction to settle the estate of a female 
 infant is not an infringement of the rule against 
 disposing of an infant's property ; for it is confined 
 
 (/) Halsey v. Halsey, 9 Ves. 471 ; Long v. Long, 2 S. & S. 
 119. 
 
 (g) Ball V. Coutts, 1 Ves. & B. 292 ; Re Walker, LI. & G. 299 ; 
 Hodgens v. Hodgens, 4 CI. & F. 323 ; Birkett y. Hibbert, 3 M. 
 & K. 227; Kent t. Burgess, 11 Sim. 361. 
 
 (ffg) Ball V. Coutts, 1 Ves. & B. 292, 300 ; Long v. Long, 2 S. 
 & S. 119 ; Austen v. Hasley, 2 S. & S. 123 n. ; Hobson v. Ferraby, 
 2 Coll. 721. 
 
 ' It is, perhaps, the duty of a guardian to apply to the Court to 
 authorize the marriage of his female ward, if she be " a ward of 
 the Court;" Shutt v. Carloss, 1 Ired. C. R. 232, 241. In Tabb 
 V. Archer, 3 Hen. & Munf. 399, it was held, that the marriage of 
 infants or wards is intrusted by law to the father or guardian ; and, 
 consequently, settlements made by infants through the father or 
 guardian are binding. 
 
534 ADAMS'S DOCTRINE OF EQUITY. 
 
 to her personal estate in possession, which if no 
 settlement were made, would belong absolutely to 
 the husband ; and, therefore, the settlement made is 
 in truth his settlement, and not her own. There is 
 no jurisdiction to settle her real estate, or personal 
 estate to which she is entitled for her separate use. (A) 
 In addition to the general jurisdiction over the 
 marriage of wards, the Court of Chancery has a 
 special authority under the Marriage Act to appoint 
 a guardian to give consent to an infant's marriage, 
 when the father is dead, and there is no guardian 
 and no mother unmarried ; and also an authority to 
 give such consent, when the father is non compos, or 
 the guardian or mother is non compos or beyond seas, 
 or unreasonably or from undue motives withholds 
 consent, {i) And by the same act it is enacted, that 
 where the marriage of an infant by license has been 
 procured by a party to the marriage by a wilfully 
 false oath, or the like marriage by banns has been 
 procured by such party, knowing that it was without 
 consent of the parent or guardian, and having know- 
 ingly procured the undue publication of banns, the 
 Court of Chancery, on information of the Attorney- 
 General, at the relation of the parent or guardian, 
 may declare a forfeiture of any interest which the 
 offending party has obtained by the marriage, and 
 may secure such interest for the innocent party, and 
 the issue of the marriage; or if both parties are 
 guilty may secure it for the issue, with a discre- 
 
 (h) Milner v. Harewood, 18 Ves. 259 ; Simson v. Jones, 2 E. 
 & M. 365 ; Saville v. Saville, 2 Coll. 721. 
 
 (i) 4 Geo. 4, c. 76, s. 16 and 17 ; Ex parte J. C, 3 M. & C. 
 471. 
 
OF IDIOCY AND LUNACY. 535 
 
 tionary provision for *the offending parties, r*9QA-| 
 having regard to the benefit of the issue of 
 that, or of any future marriage. (A;) 
 
 The jurisdiction to protect persons under mental 
 incapacity is of an analogous origin with that for 
 protection of infants ; (I) and extends in like manner 
 to all persons, whether subjects of the Crown or not, 
 whose persons or property are within the local limits 
 of the jurisdiction, (m)* The persons for whose bene- 
 fit it exists are divided into two classes ; viz., idiots 
 who have had no glimmering of reason from their 
 birth, and are, therefore, by law presumed never 
 likely to attain any f and lunatics, or persons of un- 
 sound mind, who have had understanding but have 
 lost the use of it, either with or without occasional 
 
 (k) 4 Geo. 4, c. 76, s. 23, 24, 25 ; Attorney-General v. Mullay, 
 4 Russ. 329 ; S. C. 7 Bea. 351 ; Attorney-General v. Severne, 1 
 Coll. 313. 
 
 (Z) Sherwood v. Sanderson, 19 Ves. 280 ; Nelson v. Buncombe, 
 9 Bea. 211. 
 
 (m) Re Bariatinski, 1 Ph. 375. 
 
 ' The care and custody of the persons and estates of lunatics are 
 provided for in many of the States by local statutes. And the 
 decisions cited in the subsequent notes upon this branch must be 
 taken, in part, as subject to this remark, and introduced merely as 
 instances of analogy to the doctrines of the text. See, on the sub- 
 ject of Chancery jurisdiction under this head, Lamoureux v. 
 Crosby, 2 Paige, 422 ; Matter of Wendell, 1 Johns. C. R. 600 ; 
 Gorham v. Gorham, 3 Barb. C. R. 24 ; Naylor v. Naylor, 4 Dana, 
 343 ; Coleman's Case, 4 Hen. & Munf 506. 
 
 ' A person deaf and dumb from his birth, is not, on that account, 
 to be deemed non compos; though such, perhaps, maybe the legal 
 presumption, until his mental capacity is proved on examination 
 for that purpose ; Brower v. Fisher, 4 John. C. R. 441 ; see, also, 
 Christmas v. Mitchell, 3 Ired. C. R. 535. 
 
536 ADAMS'S DOCTRINE OF EQUITY. 
 
 lucid intervals, and bj reason of its loss have become 
 incapable of managing their affairs, (w)^ The juris- 
 diction in idiocy is of little practical importance, as 
 it rarely happens that any one is found to be an 
 idiot a nativitate. But the jurisdiction in lunacy is 
 in constant exercise. 
 
 The similarity of principle between the jurisdic- 
 tions in infancy and lunacy, would lead us to antici- 
 pate their exercise through the same channel and in 
 the same form of procedure ; viz., through the Court 
 of Chancery in a regular suit. In this respect, how- 
 ever, a material distinction exists. The jurisdiction 
 in lunacy is exercised not by the Court of Chancery 
 in a regular suit, but by the Lord Chancellor per- 
 sonally on petition ; and the appeal, if his order be 
 erroneous, is to the King in council, and not to the 
 House of Lords. The origin of this distinction seems 
 referable to the fact that the Crown in the event of 
 idiocy or lunacy has not a mere authority to protect, 
 but an actual interest in the land of the idiot or 
 lunatic, determinable on his *recovery or 
 L -I death. If the owner is an idiot, the profits 
 
 (?0 2 Steph. Bl. 529-531. 
 
 ' It is not every case of mental weakness whieli will authorize the 
 Court of Chancery to exercise the power of appointing a committee 
 of the person and estate. To justify its exercise, the mind of the 
 individual must be so far impaired as to be reduced to a state, 
 which, as an original incapacity, would have constituted a case of 
 idiocy; Matter of Morgan, 7 Paige, 236. Upon an inquest of 
 lunacy, the finding of the jury that the party " is incapable of 
 managing his affairs, or of governing himself, in consequence of 
 mental imbecility or weakness," is not sufficient. They should 
 find him to be of unsound mind; Ibid. ; see, also. Matter of Mason, 
 3 Edw. C. R. 380 ; Matter of Arnhout, 1 Paige, 497. 
 
OF IDIOCY AND LUNACY. 537 
 
 are applied as a branch of the revenue, subject merely 
 to his requisite maintenance ; if he is a lunatic, they 
 are applied on trust for his support, and the surplus 
 is to be accounted for to himself or his representa- 
 tives, (o) In either case there is an interest vested 
 in the Crown, and requiring for its administration a 
 special grant. The duty of such administration is 
 committed by special warrant to an officer of the 
 Crown, who is usually, though not necessarily, the 
 person holding the Great Seal. By virtue of this 
 warrant the custody of the estate and person is 
 afterwards granted to committees, whose conduct is 
 superintended by the Chancellor. But it is said 
 that the subsequent superintendence depends on the 
 authority of the Great Seal, and not on the special 
 warrant, and that if the warrant were to any other 
 officer, his authority would cease with the appoint- 
 ment of committees, {p) 
 
 The existence of a vested interest in the Crown, 
 introduces also the additional distinction that the 
 mere lunacy does not originate the jurisdiction; but 
 that it must be first inquired of by a jury, and found 
 of record, in accordance with the rule of law wherever 
 a right of entry is alleged in the Crown. 
 
 In cases where the estate has been very small, 
 and the lunatic has been subject to the jurisdiction 
 as party to a suit, directions have been given for the 
 management of his property and for a fit allowance 
 
 (o) 2 Steph. Bl. 529-531. 
 
 (jp) 2 Story on Eq., s. 1336, and notes ; Ibid. s. 1362-1365 
 Oxenden v. Lord Compton, 2 Ves. J. 69, 71; 4 B. C. C. 231 
 Ex parte Grimstone, Amb. 706 ; Re Fitzgerald, 2 Sch. & L. 431 
 Johnstone v. Beattie, 10 CI. & F. 42, 120. 
 
538 Adams's docteine of equity. 
 
 for his maintenance without requiring an inquisi- 
 tion. (§■)' And by a recent statute it is enacted, that 
 where any person not found lunatic by inquisition 
 has been detained under the provisions of the 
 r*9Q9T *^^^^^y -^cts, the Lord Chancellor may 
 '■ -' direct an inquiry into his case, and on a report 
 that he is a lunatic may appoint guardians of his per- 
 son and estate, and direct an application of the 
 income, (r) The regular course, however, is to issue 
 a commission under the Great Seal in the nature of 
 a writ de lunatico inquirendo, to ascertain whether 
 the party is of unsound mind. The granting of such 
 commission is discretionary with the Chancellor, 
 who in exercising his discretion will look solely to 
 the lunatic's benefit ; and will not on the one hand 
 grant a commission merely because lunacy is shown 
 to exist, nor refuse it on the other because the mo- 
 tives of the applicant are suspicious, (s) 
 
 The proceedings under the commission are regu- 
 lated by statute, (t) ^ Their general outline is, that 
 
 (q) Gilbee v. Grilbee, 1 Ph. 121 ; Nelson v. Buncombe, 9 Bea. 
 211; Sherwood v. Sanderson, 19 Ves. 280. 
 
 (»•) 8 & 9 Vict. c. 100, s. 95-98; Orders of Dec. 1845. 
 
 (s) Ex parte Tomlinson, 1 Ves. & B. 57 ; Re J. B. 1 M. & C. 
 538; Re Whittaker, 4 M. & C. 441; Re Webb, 2 Ph. 10; Re 
 Nesbitt, 2 Ph. 245. 
 
 (0 3 & 4 Wm. 4, c. 36; 5 & 6 Vict. c. 84, and 8 and 9 Vict. c. 
 100, s. 2. 
 
 * So the Court may always, in a proper case, extend its protec- 
 tion to the property of the lunatic, he/ore inquest ; Owings's Case, 
 1 Bland. 0. R. 370, 373 ; Post v. Mackall, 3 Bland. C. R. 486; 
 Matter of Wendell, 1 Johns. C. R. 600. 
 
 " In New York, the Court of Chancery has the entire jurisdic- 
 tion over cases of idiocy and lunacy, and the manner in which the 
 question of lunacy shall be tried is discretionary with the Court. 
 
OF IDIOCY AND LUNACY. 539 
 
 a jury is empannelled and sworn ; the witnesses and 
 the supposed lunatic, if he thinks fit to be present, 
 are examined -^ and the inquisition is engrossed, and 
 after signature by the commissioners and jury is 
 returned into Chancery. If there be misbehaviour 
 in executing the inquisition, or if the return be in- 
 sufl&cient at law, the inquisition may be quashed 
 and a new commission issued. If the return untruly 
 finds the party lunatic, it may be traversed by him- 
 self or by any one claiming under a contract with 
 him ; if it untruly finds him of sound mind, a writ of 
 meliios inquirendum may be issued by the Crown, (u) 
 If the lunatic subsequently recover, the commission 
 may be superseded ; but for this purpose the lunatic 
 must in general be personally examined, and his 
 sanity fully established, (■w)^ 
 
 (u) Ex parte Kbberts, 3 Atk. 6 ; Ex parte Hall, 7 Ves. 261 ; 
 Ke Holmes, 4 Kuss. 182 ; Re Surges, 1 M. & C. 278. 
 
 (y) Ex parte Holyland, 11 Ves. 10 ; Re Gordon, 2 Ph. 242. 
 
 The most satisfactory mode, is said to be by issue made up and 
 prepared for trial under the direction of that Court ; Matter of 
 Wendell, 1 Johns. C. R. 600. 
 
 - It is the privilege of a party against whom a commission of 
 lunacy is issued to be present at, and to have notice of its execu- 
 tion ; Matter of Tracy, 1 Paige, C. R. 580 ; Matter of Whitenack, 
 2 Green, C. R. 252 ; Case of Covenhoven, Saxton, 19. But see 
 Medlock v. Cogburn, 1 Rich. C. R. 477. 
 
 " On proof that the lunatic had recovered his senses, a commis- 
 sion of lunacy was superseded, Ux parte Drayton, 1 Desau. 144. 
 On petition by a lunatic, to supersede the commission, the Court 
 will direct an inquiry, and report by a master, as to the recovery, 
 or direct the lunatic to be brought into Court, to be examined by 
 the Chancellor. Matter of Hanks, 3 Johns. C. R. 567. Or he 
 may traverse the inquisition, or have the question tried on a feigned 
 issue. Matter of McClean, 6 Johns. C. R. 440. And where the 
 
540 Adams's doctrine or equity. 
 
 The right of traversing the inquisition is conferred 
 
 P2931 ^-^ *^*^*"t6- (^) By the common law, where 
 -^ a direct title of freehold appeared in the 
 Crown by matter of record, the subject was put to 
 his petition of right, and could not interplead with 
 the King, either by traversing the King's title, or by 
 setting up in avoidance a title of his own ; but he is 
 now enabled to traverse the inquisition and return, 
 on obtaining leave by petition to the Great Seal.(a;) 
 The proviso requiring leave from the Great Seal, 
 has occasioned doubts whether such leave is not dis- 
 cretionary with the Court. But it is determined 
 that, if the applicant show a sufficient interest, the 
 traverse is matter of right, and may be claimed as 
 such either by the alleged lunatic himself, if capable 
 of volition and attending personally to express his 
 wish, or by any one interested under a contract with 
 him. If there be a reasonable ground of traverse, 
 the Court may in its discretion allow funds out of 
 the estate for trying it, and may in the mean time 
 suspend any further interference. (^) 
 
 On a return of non compos being made, and either 
 submitted to, or estabhshed on trial of a traverse, 
 
 (w) 34 Edw. 3; 36 Edw. 3, c. 13; 8 Hen. 6, c. 16; 18 Hen. 
 6, c. 6 ; 1 Hen. 8, c. 8 ; 2 & 3 Edw. 6, c. 8 ; 6 Geo. 4, c. 53. 
 
 (x) 2 Madd. C. P. 854; Ex parte Lord Gwydir, 4 Mad. 281. 
 
 Q/) Ex parte Hall, 7 Ves. 261; Sherwood v. Sanderson, 19 Ves. 
 280 ; Ee Bridge, Cr. & P. 338 ; Re Watts, 1 Ph. 512. 
 
 Chancellor is satisfied that one found to be a lunatic has so far 
 recovered his reason, as to be capable to dispose of his estate by 
 will, he has power to suspend proceedings against him partially, 
 so as to enable him to make a will. Matter of Burr, 2 Barb. C. 
 R. 208. 
 
OF IDIOCY AND LUNACY. 541 
 
 the custody of the estate and person is granted to 
 committees with a proper allowance for mainte- 
 nance.^ And even though a traverse be pending, 
 the Chancellor may at his discretion take the same 
 course. (2) If no one is willing to become committee 
 of the estate, a receiver may be appointed, with the 
 usual allowance; and under special circumstances 
 remuneration may be given to a committee. But 
 the general rule is, that a committee, like any other 
 trustee, is not entitled to remuneration, but to re- 
 imbursement alone, (a) ^ The duty of the committee 
 or receiver of the estate is to manage the lunatic's 
 property with care, *to bring in and pass his r*oQ4.-i 
 accounts, and to pay and invest the balances 
 at such times as the superintending oflScer (called 
 the Master in Lunacy) shall direct. And he is re- 
 quired to give security by a bond with sureties, and 
 to satisfy the Master, on each occasion of passing his 
 accounts, that his sureties are living, and not bank- 
 rupt or insolvent. (&) 
 
 In cases requiring the exercise of discretion, it is 
 not usual to act without previous investigation by 
 
 (z) Ee Bridge, Cr. & P. 338. 
 
 (a) Ex parte Kadcliffe, 1 J. & W. 639 ; Ex parte Fermor, Jac. 
 404. 
 
 (V) Orders of April, 1844. 
 
 ' Where the lunatic has lands or other property in the State of 
 his sojourn, although he is domiciled abroad, a commission must 
 be issued in such State to authorize control over the property ; 
 Matter of Pettit, 2 Paige, 174 ; Matter of Perkins, 2 Johns. C. 
 R. 124 ; Matter of Gause, 9 Paige, 416 ; Matter of Fowler, 2 
 Barb. C. R. 305. 
 
 » See Matter of Roberts, 3 Johns. C. R. 43 ; Matter of Living- 
 ston, 9 Paige, 440. 
 
542 Adams's doctrine of equity. 
 
 the Court. The mode of investigation was, until re- 
 cently, by referring the matter for inquiry to a Mas- 
 ter in Chancery. But by the recent statutes and 
 orders, all such inquiries, except in cases under the 
 Lunatic Trustee Act,(c) or when the Lord Chancel- 
 lor shall specially direct otherwise, are transferred 
 to the Commissioners, now termed the Masters, in 
 Lunacy. By the same orders the necessity of a pre- 
 vious reference is in many instances dispensed with, 
 and an application to the Chancellor is only requisite 
 to confirm the report, (d) The inquiries which may 
 be thus made without a previous reference, are in- 
 quiries as to the presumptive heir and next of -kin ; 
 as to the situation of the lunatic, and the nature of 
 his lunacy ; and as to his committees, his fortune, 
 and his maintenance. There is a similar authority 
 to inquire and report as to provisional management 
 and maintenance, until the appointment of commit- 
 tees; to enlarge the time within which the commit- 
 tee of the estate must complete his security ; to re- 
 ceive proposals or conduct inquiries as to managing, 
 setting, or letting the estate, or otherwise respecting 
 the person and property ; to take from time to time 
 the committee's account ; and to determine whether 
 any and which of the presumptive heirs or next of 
 kin shall attend at the cost of the estate on any pro- 
 ceedings in the lunacy, (e) The principle on which 
 r*9Q^1 *^^ attendance of the heir and next of *kin 
 is allowed, is not that they have any recog- 
 
 (c) 11 Geo. 4 & 1 Wm. 4, c. 60. 
 
 (d) 5 & 6 Vict. c. 84 ; 8 & 9 Vict. c. 100, s. 2 ; Orders of Oc- 
 tober, 1842. 
 
 (e) Orders of October, 1842, 10 to 15. 
 
OF IDIOCY AND LITKACT. 543 
 
 nised interest in the lunatic's property, but that they 
 are most likely to possess information respecting it, 
 and to assist in its proper administration. (/) 
 
 The power of the committee to deal with the 
 estate was at common law very limited ; for the in- 
 terest of the Crown was determinable on recovery or 
 death; and any lease or other disposition by the 
 committee was necessarily subject to the same con- 
 tingency, (g) The statutory powers applying to the 
 beneficial interests of a lunatic are conferred by the 
 statute, which has been already noticed, " for amend- 
 ing the laws relating to property belonging to in- 
 fants, femes covert, lunatics, and persons of unsound 
 
 mind."(^) 
 
 By the early clauses of this statute provision is 
 made, as already noticed, for admittance of lunatics 
 as well as of infants and femes covert to copyhold 
 property, and for raising the fine payable on admit- 
 tance, without requiring the sanction of a judicial 
 order. The powers conferred by the subsequent 
 clauses in the case of infants and femes covert have 
 been already stated. (^) The powers conferred in the 
 case of lunatics are to be exercised under the sanc- 
 tion of the Lord Chancellor, intrusted under the sign 
 manual with the custody of lunatics. The acts 
 which the Lord Chancellor is thus empowered to 
 direct, are the surrender of renewable leaseholds be- 
 longing to a lunatic, and the acceptance of renewed 
 
 (/) Ex parte Whitbread, 2 Meriv. 99 ; Re Pearson, 1 Coop. 
 Ch. Ca. 314. 
 
 (g) Supra, Trust ; Mortgage. 
 Ih) 11 Geo. 4 & 1 "Wm. 4, o. 65. 
 (i) Supra, Infants. 
 
544 Adams's docteine of equity. 
 
 ones in their stead ; the renewal of leases which the 
 lunatic, if not under disability, might be compelled 
 to renew, or which it shall be for his benefit to re- 
 new; the exercise of leasing powers vested in a 
 lunatic over property in which he has a limited 
 estate ; the leasing of property belonging to a lunatic 
 in fee or in tail, or for an absolute leasehold interest; 
 the entering into agreements on behalf of a lunatic 
 r*2961 '^^^^''' *^® -^^^ fo^ augmenting *the Mainte- 
 nance of the Poor Clergy ;(^) the making 
 conveyances under a decree for specific performance, 
 where the contracting party has become lunatic after 
 his contract was made; the selling or charging a 
 lunatic's estate for the purpose of raising money to 
 pay debts, incumbrances, and costs ; the transfer and 
 payment of a lunatic's stock and dividends, under 
 which name is included every fund, annuity, or se- 
 curity transferable in the books of any company ; 
 and the like transfer of stock vested in any person 
 residing out of England, when such person has been 
 declared lunatic, and his personal estate has been 
 vested in a curator according to the law of his place 
 of residence. The same act provides, that transcripts 
 of inquisitions on commissions under the Great Seal 
 of Great Britain may be entered of record in Ireland, 
 and acted on there ; and vice versa with respect to 
 commissions under the Great Seal of Ireland. 
 
 The principle on which the lunatic's estate is 
 managed is that of looking to the lunatic's interest 
 alone, and acting as an owner of competent under- 
 standing would do, without regard to his eventual 
 
 (k) 1 aeo. 1, c. 10. 
 
OP IDIOCY AND LUNACY. 545 
 
 successors. The effect of such management may, in 
 some instances, be to alter the property from real to 
 personal, or vice versa; e. g., by cutting timber on 
 the real estate, or by paying out of the personalty 
 for repairs or improvements.' And if such alteration 
 be made, the property will devolve, on the lunatic's 
 death, in accordance with its altered character, and 
 not in accordance with that which it previously bore. 
 It is otherwise, as we have seen, in the case of an 
 infant ; for an infant has different powers over real 
 and personal estate; and is entitled, for his own 
 sake, independently of any supposed equity between 
 his real and personal representatives, to be protected 
 from any conversion of the one into the other. The 
 Court, therefore, in ordering the conversion to be 
 made, will add a declaration that, while *the rH;oq7-| 
 minority last, the converted property shall 
 retain in equity its original character. A lunatic 
 stands on a different footing ; for at the instant of a 
 lucid interval he has precisely the same power of 
 disposition over either species of estate ; and there- 
 fore, if in the ordinary course of management it is 
 for his benefit to make the change, there is no equity 
 to interfere with its result. But the rule must be 
 understood with this guard, that nothing extra- 
 
 ' Accordingly, in the Matter of Salisbury, 3 Johns. C. E,. 347, 
 it was held that in the management of a lunatic's estate the in- 
 terest of the lunatic is more regarded than the contingent interest 
 of those who may be entitled to the succession ; and the court, if 
 it be for the interest of the lunatic, may direct real estate to be 
 converted into personal, or personal into real. Thus it may direct 
 timber standing to be sold. As to its power to order an exchange 
 of any portion of the estate, see Matter of Heller, 3 Paige, 199 ; 
 In Ke Livingston, 9 Paige, 440 ; Matter of Drayton, 1 Desau. 136. 
 
 35 
 
546 Adams's doctrine of equity. 
 
 ordinary is to be attempted; e. g., estates to be 
 bought, or interests disposed of. Alteration of pro- 
 perty is to be avoided, so far as is consistent with 
 the proprietor's interest. (Z) 
 
 The same principle of looking to the lunatic's ad- 
 vantage alone is pursued in fixing the amount of the 
 maintenance ; and provision therefore may be made 
 for modes of expenditure which are substantially for 
 the lunatic's benefit, though they may not be such 
 as he is legally bound to incur ; e. g., if the father of 
 a family be lunatic, the Court will not consider the 
 mere legal right of his wife and children, but will 
 make an allowance suitable to their station in life. 
 And so if property descend on a lunatic, and his 
 brothers and sisters are slenderly provided for, his 
 allowance may be increased to give assistance to 
 them.(m)^ 
 
 If after due allowance for the lunatic's mainte- 
 nance, there is still a disposable surplus of his estate, 
 such surplus may be applied in payment of his debts ; 
 and on a petition by a creditor, a reference will be 
 made to inquire what debts there are, and how they 
 
 (l) Oxenden v. Lord Compton, 2 Ves. J. 69 ; Ex parte Phillips, 
 19 Ves. 118. Ex parte Digby, IJ. & W. 640 ; Ee Badcock, 4 
 M. & C. 440. 
 
 (m) Ex parte Whitbread, 2 Mer. 99 ; Ee Blair, 1 M. & C. 300 ; 
 Ee Drummond, 1 M. & C. 627; Ee Carysfoot, Cr. & P. 76; Ed- 
 wards T. Abrey, 2 Ph. 37; Re Thomas, 2 Ph. 169; Ee Clarke, 2 
 Ph. 282. 
 
 ' The Court 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, 
 as e. g., persons whom he had adopted as children ; Matter of 
 Heeney, 2 Barb. C. R. 326. 
 
OF IDIOCY AND LUNACY. 547 
 
 should be discharged ; but there is no instance of 
 paying the debts without reserving a sufficient main- 
 tenance, although the creditors cannot be restrained 
 from proceeding at law.(n)^ 
 
 *0n the death of the lunatic, the power of r^oqsi 
 administration is at an end, except as to 
 orders which have been already made, or which are 
 consequential on reports or petitions already made 
 or presented, (o) But the committee continues under 
 the control of the Court, and will be ordered on the 
 application of the lunatic's heir to deliver up posses- 
 sion of the estate. In the case of an idiot, where 
 the Crown has a beneficial interest, an ouster le main 
 must be sued ; and it has been doubted, whether on 
 the death or recovery of a lunatic, the same course 
 should not in strictness be followed. The practice, 
 however, is to restore possession by an order of the 
 Court, (p) 
 
 (n) Ex parte Dikes, 8 Ves. 79 ; Ex parte Hastings, 14 Ves. 
 182. 
 
 (o) Ex parte M'Dougal, 12 Ves. 384 ; Eock v. Cooke, 1 Coll. 
 477. 
 
 (jj) Ex parte Fitzgerald, 2 Sch. & L. 439 ; Ke Pearson, 1 Coop. 
 Ch. Ca. 314. 
 
 ' In New York,'the real estate of a lunatic may be sold for the 
 payment of his debts on a creditor's bill or on petition ; Brasher 
 V. Van Cortlandt, 2 Johns. C. R. 242, 400. But not till the per- 
 sonal estate is exhausted; In re Pettit, 2 Paige, 596. 
 
 In Kentucky, it would seem, the Chancellor has no right to 
 decree a sale of a lunatic's estate for the payment of his debts ; 
 Berry v. Rogers, 2 B. Monr. 308. Moreover, in New York, 
 a suit at law cannot be brought against a lunatic, under the 
 care of a committee, without permission of the Court first ob- 
 tained ; Matter of Hopper, 5 Paige, 489. 
 
548 Adams's doctrine op equity. 
 
 [*299] *BOOK IV. 
 
 OF THE FORMS OP PLEADING AND PROCEDURE BY WHICH 
 THE JURISDICTION OP THE COURTS OP EQUITY IS EXER- 
 CISED. 
 
 CHAPTEK I. 
 
 OF THE BILL. 
 
 We have now exhausted the consideration of the 
 prerogative jurisdiction of the Court of Chancery. 
 But an inquiry still remains as to the forms of 
 pleading and procedure, in accordance with which 
 that jurisdiction is exercised. 
 
 It is obvious that in every Court some forms must 
 exist ; but the character of those forms is different 
 at law and in equity, in conformity with the different 
 objects which the two tribunals respectively contem- 
 plate. 
 
 The object of the common law Courts in their 
 original structure was to reduce the litigation to a 
 single issue, and to obtain from the appropriate 
 tribunal a decision on that issue ; from the Court on 
 an issue of law, from a jury on an issue of fact. By 
 statutory enactments several distinct issues, both of 
 law and fact, may now indeed be raised in the same 
 
OF THE BILL. 549 
 
 action, but each issue must be kept separate, and 
 cannot be prayed in aid of the others. In accordance 
 with this principle the pleadings are framed, first, 
 for the production of single or separate issues ; 
 secondly, for keeping separate the law and the fact. 
 
 *The pleadings begin with the declaration p^„„„-, 
 or statement by the plaintiff of his cause of L -^ 
 action. This is followed by the defence, either by 
 demurrer, if the declaration be insufficient in law, 
 or by one or more pleas, if it be untrue or incomplete 
 in fact. If the declaration be untrue, the form of 
 pleading is by denial, disputing some material aver- 
 ment. If it be incomplete, by confession and avoid- 
 ance, admitting the declaration to be correct, but 
 averring some new fact to avoid or vitiate the 
 cause of action. On demurrers, or pleas in denial, 
 issues of law or fact are necessarily raised ; on pleas 
 in confession and avoidance the litigation is made 
 dependent on the new averments. These new aver- 
 ments, therefore, must in turn be replied to by the 
 plaintiff, and the pleadings are continued in the 
 same principle, each in turn superseding the rest, 
 until all matter of confession and avoidance is ex- 
 hausted, and direct issues are arrived at. 
 
 If the issues thus arrived at are issues of law, they 
 are determined by the Court on argument. If they 
 be issues of fact, a jury is empannelled to try them. 
 The manner of trial by jury is that the evidence is 
 given viva voce and publicly, subject to cross-exami- 
 nation by the opposite party; it is then summed up 
 and the law explained by the Judge, and a separate 
 verdict is given upon each separate issue, and the 
 verdict, when given, is without appeal. There is. 
 
550 ADAMS'S DOCTRINE OF EQUITY. 
 
 however, a discretionary power in the Court, if the 
 Judge has misstated the law, or if the verdict given 
 is contrary to the evidence, or there has been a sur- 
 prise upon the party failing, or for other sufficient 
 cause, to direct a new trial by another jury. 
 
 After the issues have been decided and the judg- 
 ment entered, it is still open to the unsuccessful 
 party by motion to show that the case, as made on 
 the record, is not such as to warrant such judgment, 
 and to have the same arrested ; otherwise execution 
 follows, as of course, upon the judgment, and a writ 
 issues to the sheriff, directing him to levy the 
 amount recovered out of the property of the unsuc- 
 cessful party, or to take his body in execution. 
 r*9n|-] If there be error, and that error be appar 
 rent on the face *of the record, there is an 
 appeal by writ of error from the decision of the Court 
 below to the Exchequer Chamber or the flouse of 
 Lords, as the case may be ; but if the error is not an 
 error of law on the record, but a wrong verdict on 
 matter of fact, there is, as we have seen, no right of 
 appeal, but a mere discretion in the Court to grant 
 a new trial. 
 
 In the Court of Chancery the system is different. 
 The object there aimed at is a complete decree on 
 the general merits, and not that the litigation should 
 be reduced to a single issue; and as all issues, 
 whether of law or fact, are decided, or adjusted for 
 decision, by the Court, it is not essential to keep 
 them strictly distinct. The rules, therefore, of plead- 
 ing are less stringent than at law; but they are 
 equally regulated by principle ; and in order to secure 
 adherence to such principle, every pleading, except 
 
OF THE BILL. 551 
 
 the formal replication, must be sanctioned by the 
 signature of counsel. 
 
 The commencement of a suit in equity on behalf 
 of a subject is by preferring a bill, in nature of a 
 petition, to the Lord Chancellor or other holder of 
 the Great Seal, or if the Seal be in the King's hands, 
 or the holder of it be a party, to the King himself in 
 his Court of Chancery. This is termed an original 
 bill, to distinguish it from other bills, filed in the 
 course of a suit to remedy defects and errors. If the 
 party injured be an infant, or a married woman 
 suing separately from her husband (unless the hus- 
 band be banished or has abjured the realm), it is 
 preferred by a person styled the next friend, and 
 named in the record as such. If he be a lunatic or 
 an idiot, it is by the committee of his estate, or some- 
 times by the Attorney-General on behalf of the 
 Crown as the general protector of lunatics, (a) 
 
 If the suit be on behalf of the Crown, of those who 
 partake of its prerogative, or of those whose rights 
 are under its particular protection, as, for example, 
 the objects of a public charity, the complaint is pre- 
 ferred by the Attorney or Solicitor General, and the 
 bill is not one of petition or ^complaint, but porjo-i 
 of information to the Court of the wrong com- 
 mitted. If the suit does not immediately concern 
 the rights of the Crown, its officers generally depend 
 on the relation of some person, termed the relator, 
 who is named on the record as such, and is answer- 
 able for the costs ; and if such relator has a personal 
 ground of complaint, it is incorporated with the in- 
 
 (a) Mitf. on Plead., 24-30 ; 1 Dan. C. P. 72-132. 
 
552 Adams's doctrine of equity. 
 
 formation, and they form together an information 
 and bill. An information differs from a bill in little 
 more than name and form, and will therefore be 
 considered under the general head of bills, (aq) 
 
 An original bill or information consists of five 
 principal parts; viz., 1. The statement; 2. The 
 charges; 3. The interrogatories; 4. The prayer of 
 relief; and, 5. The prayer of process. 
 
 The statement of a bill is prefaced by the heading, 
 addressing it to the holder of the Great Seal, the 
 terms of which are from time to time prescribed by 
 the Court. (&) It then commences with the words, 
 " Humbly complaining showeth unto your Lordship, 
 your orator," &c., giving the name, description, and 
 place of abode of the plaintiff,' and, if necessary, of 
 the next friend, committee, or relator, (c) and then 
 narrating the case for relief Its object is to show 
 the right to relief; it must state a consistent case on 
 behalf of all the plaintiffs, and must state it in 
 direct terms, and with reasonable certainty. 
 
 It must state a consistent case on behalf of all the 
 plaintiffs ; for if their claims are inconsistent, or any 
 of them have no claim, the misjoinder will be fatal 
 
 (aa) Mitf. on Pleading, 21-24. (6) 1 Dan. 339. 
 
 (c) Ibid. 340. 
 
 * The residence of the complainant should be stated in his bill ; 
 and if it is not stated therein, the defendant may apply to the 
 Court and obtain an order that the complainant give security for 
 costs; Howe v. Harvey, 8 Paige, 73. Whether the defendant can 
 demur for this cause — quaere ? Ibid. In all bills in Equity in 
 Courts of the United States, the citizenship should appear on the 
 face of the bill, to entitle the Court to take jurisdiction ; Dodge v. 
 Perkins, 4 Mason, 435. 
 
OF THE BILL. 553 
 
 to the suit; or, at all events, the Court will only 
 make such a decree as will leave their claims in 
 respect to each other wholly undecided. (cZ)' 
 
 *It must state the case in direct terms (e) r^qAo-i 
 and with reasonable certainty; not neces- 
 sarily with the same technical precision as at law, 
 but with sufficient precision to show that there is a 
 definite equity.^ And if the equity depends on a 
 
 (d) Cholmondeley v. Clinton, T. & K. 117; 2 J. & "W. 134; 
 King of Spain v. Machado, 4 Buss. 225 ; Bill v. Cureton, 2 M. & 
 K. 503 ; Lambert v. Hutchinson, 1 Bea. 277 ; Jacob v. Lucas, 
 1 Bea. 436; Davies v. Quarterman, 4 Y. & C. 257; Anderson v. 
 Wallis, 1 Ph. 202 ; 1 Dan. C. P. 290-292. 
 
 (e) Stansbury v. Arkwright, 6 Sim. 481 ; Hammond v. Mes- 
 senger, 9 Sim. 327, 335. 
 
 '■ See Richardson v. M'Kinson, Litt. Sel. Gas. 320; Terrill v. 
 Craig, Halst. Dig. 168 ; Thurmon v. Shelton, 10 Yerger, 383 ; 
 Mix V. Hotchkiss, 14 Conn. 32. But where plaintiffs properly 
 join in a bill for relief to which all are entitled, a claim by one of 
 them for further relief, peculiar to himself, is not ground for de- 
 murrer to the whole bill ; Clarkson v. De Peyster, 3 Paige, 320. 
 And unconnected parties, having a common interest centring in 
 the point in issue in the cause, may unite in the same bill. Thus, 
 where two non-residents, having distinct claims against another 
 non-resident, filed their bill in Mississippi, to subject funds of the 
 non-resident defendant in the hands of a resident of that State, 
 who was also made defendant, it was held, on demurrer, that the 
 bill was sustainable; Comsto'ck v. Rayford, 1 Sm. & M. 423; see, 
 also, Armstrong v. Athens Co., 10 Ohio, 235; Ohio v. Ellis, 10 
 Ohio, 456 ; Dawson v. Lawrence, 13 Ohio, 543 ; Tilford v. Emer- 
 son, 1 A. K. Marsh, 483 ; Scrimeger v. Buckhannon, 3 A. K. 
 Marsh, 219 ; Tilman v. Searcy, 5 Humph. 487 ; Morris v. Dillard, 
 4 Sm. & M. 636; Wood v. Barringer, 1 Dev. Eq. 67. 
 
 ^ A rigid and technical construction of bills is exploded ; Roane, J. 
 in Mayo v. Murchie, 8 Munf. 384. But every material allegation 
 should be put in issue by the pleadings, so that the parties may be 
 
554 Adams's doctrine of equity. 
 
 title to property in the plaintiff, the statement must 
 show a suflBcient title in point of law; e. g., the 
 
 duly apprised of the essential inquiry, and be enabled to collect 
 testimony to meet it; Kent, J., in James v. M'Kernon, 6 Johns. 
 E. 564. Every averment, therefore, necessary to entitle a plain- 
 tiff in Equity to the relief prayed for, must be contained in the 
 stating part of the bill ; and if every necessary fact be not dis- 
 tinctly and expressly averred in that part, the defect cannot be 
 supplied by inference, or by reference to averments in other parts ; 
 Wright V. Dame, 22 Pick. 55. Nor can the plaintiff rely upon the 
 interrogatories to supply defects in the stating part of his bill ; 
 Cowles V. Buchanan, 3 Ired. Eq. R. 374. The allegations must 
 be positive and not by way of recital ; M'Intyre v. Trustees of 
 Union College, 6 Paige, 239, 251. The best test of what are 
 proper averments of facts in a bill or answer, is whether they are 
 such matters as a witness may be called upon to prove, or the truth 
 of which must be established by evidence, to enable a court to act ; 
 if they are not, then such averments are mere principles of equity, 
 or some of those public facts of which the Court is bound to take 
 judicial notice without proof; Canal Co. v. Railroad Co., 4 Grill. & 
 J. 1 ; see, also, Shepard v. Shepard, 6 Conn. 87 ; Lingan v. 
 Henderson, 1 Bland. 249, 255 ; Russ v. Hawes, 5 Ired. Eq. 18 ; 
 Caton V. Willis, 5 Ired. Eq. 335; Salmon v. Claggett, 3 Bland. 
 134 ; Townshend v. Duncan, 2 Bland. 45 ; Fowler v. Saunders, 4 
 Call, 361 ; Yancy v. Fenwick, 4 Hen. & Munf 423 ; Crugar v. 
 Halliday, 11 Paige, 314; Hobart v. Prisbie, 5 Conn. 592; Davis 
 v. Harrison, 4 Litt. 262 ; Harding v. Handy, 11 Wheat. 103 ; 
 Knox v. Smith, 4 How. U. S. 298 ; Spence v. Duren, 3 Ala. 251. 
 Allegations that a complainant is informed and believes, that ma- 
 terial facts exist, not sufficient; M'Dowell v. Graham, 3 Dana, 73. 
 But if the facts essential to the determination of the plaintiff's 
 cause, are charged in the bill to rest on the knowledge of the de- 
 fendant only, or must of necessity be within his knowledge only, 
 the precise allegation is not required ; Aiken v. Ballard, 1 Rice 
 Eq. 13 ; as e. g., a bill in equity by a partner against his co-part- 
 ner for an account, &c., wherein it is averred that the defendant 
 has all the partnership books and papers in his possession, or under 
 his control, and refuses to permit the plaintiff to examine them. 
 
OF THE BILL. 555 
 
 statement of a devise must allege a will in writing,' 
 the statement of a grant must allege a deed/ the 
 statement of a title by heirship must show the man- 
 ner of descent. But if the title, as stated, would 
 have been valid at common law, and regulations 
 have been superadded by statute, it is not essential, 
 though usual to state compliance with them.(/) 
 
 It is not, however, requisite to state matters of 
 which the Court takes judicial notice, such as public 
 acts of Parliament, the general customs of the realm, 
 and so forth ; although for the sake of convenience 
 they are often introduced. 
 
 (/) Wormald v. De Lisle, 3 Bea. 18 ; Edwards v. Edwards, 
 Jac. 335; Seddon v. Connell, 10 Sim. 79; Williams v. Earl of 
 Jersey, C. & P. 91 ; 1 Dan. C. P. 303-310, 346-9 ; Staph, on 
 Pleading, 341, 364, 383-6, 411 ; Walburn v. Ingilby, 1 M. & 
 K. 61. 
 
 need not contain such certainty and particularity of statement as 
 would be held necessary if the plaintiff had access to those books 
 and papers ; Towle v. Pierce, 12 Met. 329 ; see, also, Many v. 
 Beekman Iron Co., 9 Paige, 188. So, in a bill for dower, the 
 widow is not presumed to know the precise nature of the husband's 
 title, and defective allegations in regard thereto may be aided by 
 the answer ; Garton's Heirs v. Bates, 4 B. Monroe, 366 ; Wall et 
 al. Y. Hill, 7 Dana, 172. It need not be stated in the bill that 
 there is not an adequate remedy at law ; it is sufficient if it appear 
 from the facts disclosed in the bill that such remedy does not exist ; 
 Botsford V. Beers et al., 11 Conn. 869 ; see, also, Boston Co. v. 
 Worcester K. K. Corp., 16 Pick. 512. 
 
 1 Where a bill is filed by persons in the character of legatees, 
 and it neither sets out in its body the contents of the will, nor has 
 a copy of it annexed, a demurrer by the defendants will be sus- 
 tained, for the Court cannot see that the plaintiff's are legatees; 
 Martin v. M'Bryde, 3 Ired. Eq. 531 ; see, also, Belloat v. Morse, 
 2 Haywood, 157; Van Cortlandt v. Beekman, 6 Paige, 492. 
 
 » See King t. Trice, 8 Ired. Eq. 568. 
 
556 Adams's doctrine of equity. 
 
 The charges of a bill ought not to include, and 
 generally do not include, any narrative of the case 
 for rehef, but are generally used for collateral objects ; 
 e. g., for meeting the defence by matter in avoidance, 
 or by inquiries to sift its truth ; for giving notice of 
 evidence which might otherwise operate as a sur- 
 prise ; and for obtaining discovery as to matters of 
 detail which could not be conveniently introduced in 
 the statement. 
 
 1. For meeting the defence by matter in avoid- 
 ance.^ 
 
 The form adopted for this purpose is that of pre- 
 tence and charge ; viz., an allegation that the defen- 
 dant pretends, &c., stating the defence, and then 
 proceeding thus : " whereas your orator charges the 
 contrary to be truej and your orator charges that 
 even if the said- pretence be true, yet that, &c.," 
 stating the new inatter in avoidance. By this means 
 v*^(\Ar\ ^^ ^plaintiff is enabled to state the avoidance 
 L -'on the record, without admitting the truth of 
 the defence. Charges of this class are sometimes 
 made in anticipation of an expected defence, but 
 they are also introduced by amendment to meet a 
 defence set up by the answer ; and the latter is gene- 
 
 * As. a general rule, it seems a bill in Equity should combine 
 the qualities of a declaration and replication, by anticipating the 
 defence, and charging the matter relied upon in avoidance ; McCrea 
 V. Purmort, 16 Wend. 460. The complainant should state, in 
 the charging part, the anticipated defence as a pretence of the de- 
 fendant, and then charge the real facts to lay a foundation for the 
 discovery which is sought ; Stafford v. Brown, 4 Paige, 88. And 
 in a sworn bill, it is equally perjury for the complainant know- 
 ingly to make a false charge in the charging part, as to make a 
 false statement in the stating part ; Smith v. Clark, 4 Paige, 368. 
 
OF THE BILL. 557 
 
 rally the safer course; because by attempting to 
 anticipate the defence, a risk is incurred of misun- 
 derstanding its purport, and sometimes of suggesting 
 an objection, which the defendant would otherwise 
 have overlooked. 
 
 2. For sifting the truth of the defence. 
 Charges of this class are similar in principle to 
 
 those of the preceding one, and only differ from it in 
 so far, that instead of charging new matter in avoid- 
 ance, they charge merely that the pretended facts 
 are untrue, and that so it would appear if the de- 
 fendant would set forth the time, place, and other 
 circumstances, under which he alleges them to have 
 happened. 
 
 3. For giving notice of evidence which might 
 otherwise operate as a surprise. 
 
 It is not requisite as matter of pleading that the 
 e^adence should be set out in detail, for the facts 
 proved, and not the evidence, constitute the case 
 for relief.! The system, however, of taking evidence 
 secretly, the grounds of which will be hereafter con- 
 sidered, would render it possible to prove facts under 
 a general statement, which though strictly admissi- 
 ble as evidence of its truth, would be practically a 
 
 • To this point see Kuss v. Hawes, 5 Ired. Eq. 18 ; Dilly v. 
 Heckrott, 8 Gill. & J 171 ; Jackson's Assignees v. Culright, 5 
 Munf. 314 ; Boone v. Chiles, 10 Peters, 177 ; White v. Yaw, 7 
 Verm. 357; Crocker v. Higgins, 7 Conn. 342 ; Skinner v. Bailey, 
 7 Conn. 496 ; Hayward v. Carroll, 4 Har. & J. 518 ; Parker v. 
 Carter, 4 Munf. 273 ; Miller v. Purse, 1 Bailey Eq. 187 ; Lingan 
 V. Henderson, 1 Bland. 236 ; Townshend v. Duncan, 2 Bland. 
 45 ; Anthony v. Leftwich, 3 Rand. 263 ; Morrison v. Hart, 2 
 Bibb. E. 4 ; Lemaster v. Burkhart, Ibid. 26 ; Bank U. S. v. 
 Schultz, 3 Hamm. R. 62. 
 
558 Adams's doctrine of equity. 
 
 surprise on the opposite party. And the Court, 
 therefore, will generally refuse to act on such evi- 
 dence,^ and will refer the subject to a Master for re- 
 investigation. In order to prevent this result, it is 
 frequently advisable to give an outline of the evi- 
 dence ; and if the case is one in which the introduc- 
 tion of such an outline would cause an inconvenient 
 complexity of narration, the statement may be con- 
 fined io a bare allegation of the equity, and may be 
 followed by a charge of the specific details. If the 
 evidence be not of the fact, but of an admission by 
 the defendant, and especially if it be of a mere verbal 
 admission, it is still more important to charge it in 
 
 P305] *^^ ^^^^- ^^^ *^^ ™^^® ^^^^ *hat the *ad- 
 mission has not been specifically stated or 
 charged, does not render it inadmissible as evi- 
 dence.(/)^ 
 
 4. For obtaining discovery as to matter of detail, 
 which could not be conveniently introduced in the 
 statement. 
 
 Charges of this class, like those of the preceding 
 one, originate in the plaintiff"s right to confine his 
 statement to the fact constituting the equity, and to 
 omit the evidence by which it is proved ; e. g., to 
 allege that the defendant had notice of his title, or 
 encouraged him in his conduct, without stating the 
 
 (/) Earle v. Pickin, 1 K. & M. 547; Macmahon v. Burchell, 2 
 Ph. 127, 142. 
 
 ' Where a fact is put in issue in a bill, evidence of confessions, 
 conversations, or admissions of the defendant, is receivable to prove ' 
 the fact, although such confessions are not expressly charged in 
 the bill as evidence of the fact ; Smith v. Burnham, 2 Sumner, 
 612; Jenkins v. Eldridge, 3 Story, 183. 
 
or THE BILL. 559 
 
 manner of notice, or of encouragement. And it 
 may, as already observed, be in some cases conve- 
 nient so to frame the statement. 
 
 A statement, however, of this general kind, al- 
 though it would let in evidence in its support, and 
 would warrant an interrogatory in general terms, 
 e. g., whether the defendant had not notice, or whe- 
 ther he did not encourage the plaintiff, would not 
 warrant minuter interrogatories tending to prove 
 the fact, e. g., whether he had not seen a particular 
 deed, or had not employed a particular person. In 
 order to render such interrogatories admissible, the 
 plaintiff must insert specific allegations by which 
 their relevancy may be shown, and their propriety 
 tested.' And it is not unusual to make such allega- 
 tion by way of charge, so as to avoid incumbering 
 the statement. 
 
 In bills where a discovery by the defendant is of 
 importance, it is also usual to conclude by a charge 
 that the defendant has or formerly had documents 
 in his possession, which, if produced, would show the 
 truth of the plaintiff's case, and that he ought to 
 give a schedule of them, and to produce them for 
 inspection and proof. 
 
 From what has been said on the charges of a bill, 
 it will be obvious that they are in reality supple- 
 
 ^ A defect in the charging part of a bill cannot be supplied by 
 a subsequent interrogatory ; and the interrogatories are to be con- 
 strued by the charging part of the bill ; Mechanics' Bank v. Levy, 
 3 Paige, 606; Parker v. Carter, 4 Munf. 273; James v. M'Ker- 
 ' non, 6 Johns. E. 543 ; Woodcock v. Bennet, 1 Cowen. 734. It 
 is sufficient, however, if the interrogatory is founded upon a 
 statement in the bill which-is inserted therein as evidence merely, 
 in support of the main charges ; Mechanics' Bank v. Levy, supra. 
 
560 Adams's doctrine of equity. 
 
 mental to the statement, and might have been in- 
 cluded in the statement itself, but that for conve- 
 nience sake they are subsequently *intro- 
 L J duced, and are distinguished by a peculiar 
 form of commencement. In fact, in many bills, 
 where the circumstances of the case present no dan- 
 ger of intricacy, the whole of the allegations are 
 comprised in the statement, and the charges are 
 omitted. 
 
 The statement and charges of a bill include all 
 its allegations, and no allegations ought in strictness 
 to be inserted ' in them which are not material for 
 some of the purposes pointed out, viz., either as esta- 
 blishing the plaintiff's case, rebutting that of the 
 defendant, or obtaining discovery for one of those 
 purposes. If any matter be alleged which is not 
 material, whether as irrelevant in toto or as being 
 matter of which the Court will take judicial notice, 
 it is in strictness impertinent, and may be struck 
 out of the bill on application to the Court. And if 
 it be criminatory of the defendant or of any other 
 person, it is also objectionable on the ground of 
 scandal. But, provided it be material, however 
 harsh the charge may be, it cannot be treated as 
 scandalous. It should also be observed that, even if 
 the statement be material, yet excessive prolixity 
 will be impertinent ; as for instance, if instead of 
 giving the effect of a document, a plaintiff, without 
 any sufficient motive, were to copy it at length. 
 But if he has a sufficient motive, as, if the precise 
 language of the document be a matter of dispute, or 
 if it be desirable to elicit from the defendant an 
 
OF THE BILL. 561 
 
 admission of its contents, the objection will not 
 
 apply- (9')' 
 
 In many of the older precedents, we find an allega- 
 tion intervening between the statements and the 
 charges, called the charge of confederacy. This is 
 an allegation that the defendants are confederating 
 with certain unknown parties to refuse justice to the 
 plaintiff. And we find also another allegation fol- 
 lowing the charging part, called the averment of 
 jurisdiction, which alleges that the plaintifi" can only 
 obtain his remedy in the Court of Chancery. The 
 probability is *that these forms originated in r* on 7-1 
 the once doubtful state of the jurisdiction; 
 at the present time they are unnecessary, and are 
 fast falling into disuse. (A) 
 
 (g) Byde v. Masterman, 1 Cr. & Ph. 272 ; 1 Dan. C. P. 331- 
 838 ; Orders of 1845, 38-42. 
 (K) Mitf. on Plead. 40-41. 
 
 " In determining whether an allegation or statement in a bill is 
 relevant or pertinent, the bill must not only be regarded as a 
 pleading to bring before the Court and put in issue the material 
 allegations and charges upon which the complainant's right to 
 relief rests, but also as an examination of the defendant for the 
 purpose of obtaining evidence to establish the complainant's case, 
 or to counter-prove or destroy the defence, which the defendant 
 may attempt to set up ; Hawley v. Wolverton, 5 Paige, 522. A 
 few unnecessary words in a bill do not render the pleading imper- 
 tinent. And the Master should not allow an exception on account 
 of a few unnecessary words, except where they will lead to the 
 introduction of improper evidence, by putting in issue matters 
 which are foreign to the cause ; Ibid. The bill should not set 
 forth deeds or other documents in hsec verba, but only so much 
 thereof as is material to the point in question ; and matter of infe- 
 rence or argument is impertinent ; Hood v. Inman, 4 Johns. C. 
 K. 437. See also Woods v. Morell, 1 Johns. C. K. 103. 
 
 36 
 
562 Adams's doctrine op equity. 
 
 The interrogatories are a series of questions in- 
 tended to obtain discovery in aid of the plaintiff's 
 case, and must be directed to facts previously stated 
 or charged. They are prefaced by a prayer that the 
 defendants may, if they can, show why the plaintiff 
 should not be relieved, and may answer on oath such 
 of the interrogatories afterwards numbered and set 
 forth, as by a note at the end of the bill they are 
 respectively required to answer. The numbered in- 
 terrogatories follow, and at the foot of the bill a note 
 is added, informing each defendant which of them 
 he must answer. 
 
 The old bills in Chancery contained no special in- 
 terrogatories, but merely required that the defendant 
 should answer the bill, and he was bound without 
 further questioning to answer the whole. The in- 
 terrogatories were afterwards added to prevent mis- 
 apprehension or evasion, by inquiring not only as to 
 the facts speci6cally alleged, but as to circumstances 
 of possible variation, e. g., not only whether the de- 
 fendant had received a specified sum, which might 
 perhaps be evaded by a bare denial, but " whether 
 he or any, and what person by his order or for his 
 use had received that sum, or any and what part 
 thereof, or any and what sum." They were there- 
 fore at first merely supplemental, framed to prevent 
 an evasive answer, but not exempting the defendant 
 from answering the bill itself, and they were accord- 
 ingly prefaced by the words " that the said defendant 
 may answer the bill, and more especially that he 
 may answer the interrogatories." This, however, 
 was inconvenient in two respects ; first, because it 
 compelled trustees, and other persons who were af- 
 
OF THE BILL. 563 
 
 fected by a portion of the bill only to put in a long 
 and expensive answer to the whole, or to select the 
 material parts on their own responsibility; and 
 secondly, because when special interrogatories had 
 become *universal, defendants frequently did r*oAo-| 
 not look beyond them, and occasionally got 
 into difficulty by leaving unanswered some statement 
 or charge to which, either accidentally or inten- 
 tionally, the plaintiff had omitted to interrogate. 
 
 These objections are remedied by the present 
 regulation, which exempts a defendant from answer- 
 ing any statement or charge unless specially interro- 
 gated thereto, (i)^ 
 
 (i) "WoodroflFe v. Daniel, 10 Sim. 243 ; 1 Dan. C. P. 357-360. 
 
 ■■ Where a defendant submits to answer at all, he is bound to 
 admit or deny all the facts stated in the bill, with all material cir- 
 cumstances, though not specially interrogated for that purpose; 
 the general interrogatory in the bill "that the defendant may full 
 answer make/' &c., being sufficient; Methodist Church v. Jacques, 
 1 Johns. C. E. 65; Neale v. Hagthrop, 3 Bland, 551; Hagthorp 
 V. Hook, 1 Crill. & J. 270. He is bound to answer as to his 
 knowledge, or, if he has no knowledge of the facts, then as to his 
 information and belief; Bailey v. Wilson, 1 Dev. & Batt. Oh. 182, 
 187; Devereaux V. Cooper, 11 Verm. 103. But a defendant is 
 not bound to answer an interrogatory not warranted by some mat- 
 ter contained in a former part of the bill ; Mechanics' Bank v. 
 Lynn, 1 Peters, 376; see also on this subject McDonald v. 
 McDonald, 16 Verm. 630; Morris v. Parker, 8 Johns. C.E,. 297; 
 Smith V. Lasher, 5 Johns. C. R. 247 ; Pettit v. Candler, 3 Wend. 
 618 ; Phillips v. Prevost, 4 Johns. C. R. 205 ; Cuyler v. Bogert, 
 3 Paige, 186 ; Utica Insurance Co. v. Lynch, 3 Paige, 210; Davis 
 V. Mapes, 2 Paige, 105. Where suspicious circumstances, fraud, 
 and collusion are charged in a bill, the defendant must expose not 
 only his motives, but his secret designs, his " unuttered thoughts." 
 Mechanics' Bank v. Levy, 1 Edwards C. E. 316. 
 
•564 Adams's doctrine of equity. 
 
 The fourth part of the bill is the prayer for relief, 
 or as it would be more correctly termed, the state- 
 ment of relief required. The only portion of a bill 
 which can be accurately called a prayer, is the con- 
 cluding part or prayer of process, calling on the Court 
 to issue the subpoena. After the statements and 
 charges are completed, the bill does not go on to say, 
 "your orator therefore prays that he may have such 
 and such relief," but it says, "to the end therefore 
 that the defendant may answer the interrogatories, 
 and that your orator may have the specified relief, 
 may it please your lordship to grant a writ of sub- 
 poena, requiring the defendant to appear by a certain 
 day, and to answer the bill, and abide the decree of 
 the Court." The only thing which the Court is 
 asked to do, or which can be called a prayer is, " to 
 grant the writ." The obtaining an answer and sub- 
 sequent relief are the reasons why the writ is asked, 
 but are not themselves the thing asked for ; and this 
 view exactly coincides with the statement made in 
 the outset of the present treatise, that the writ of 
 subpoena was that which from the first gave efl&ciency 
 to the Court, and which, in all the opposing peti- 
 tions, was the uniform subject of complaint. When 
 the writ of subpoena has issued, the defendant is 
 obliged to answer the interrogatories and to abide by 
 any decree which the Court may make ; and the 
 statement in the bill as to the particular relief re- 
 quired is a mere guide in framing the decree. 
 
 The old bills in Chancery did not contain any 
 special statement of relief, but only what is called 
 the prayer for general relief, viz., " that 
 
 [*309] 
 
 your orator may have such relief in the pre- 
 
OF THE BILL. 565 
 
 mises as the nature of the case may require, and to 
 your lordship shall seem fit." It is said that such a 
 prayer would still be sufficient: but tl^ uniform 
 practice is to insert a special prayer, and to conclude 
 with the prayer for general relief. 
 
 This latter prayer can never be safely omitted, 
 because if the plaintiff should in his special prayer 
 mistake the due relief, it may be given under the 
 general prayer, if consistent with that which is ac- 
 tually prayed.^ If it be inconsistent it cannot be 
 obtained;^ and, therefore, if the plaintiff doubt as to 
 
 ^ See Colton v. Boss, 2 Paige, 396 ; Wilkin v. Wilkin, 1 Johns. 
 C. R. Ill ; Allen v. Coffman, 1 Bibb. 469 ; Brown v. McDonald, 
 1 Hill's C. R. 302. But the relief to be given under a general 
 prayer in a bill must be agreeable to the case made by the bill, 
 and not different from, or inconsistent with it; Chalmers v. Cham- 
 bers, 6 Har. & J. 29 ; Wilkin v. Wilkin, sup. ; Franklin v. Os- 
 good, 14 Johns. R. 527; English v. Foxall, 2 Peters, 595; 
 McCosker v. Brady, 1 Barb. C. R. 329 ; Smith v. Trenton Falls 
 Co., 3 G-reen C. B. 505. And under the general prayer, any re- 
 lief warranted by the case as set forth in the bill may be granted, 
 though not orally asked for; Lingan v. Henderson, 1 Bland, 251. 
 
 ° No relief can be granted under the general prayer, entirely 
 distinct from and independent of the special relief prayed; Thoma- 
 son V. Smithson, 7 Porter, 144 ; Foster v. Cook, 1 Hawks. 509 ; 
 Chalmers v. Chambers, 6 Har. & J. 29 ; Shepherd v. Starke, 3 
 Munf. 29 ; Butler v. Durham, 2 Kelly, 414 ; Sed vide Bailey v. 
 Burton, 8 Wend. 339; wherein it is held that under the general 
 prayer, the complainant is entitled to any relief consistent with 
 the case made, though inconsistent with the specific relief prayed 
 for. 
 
 In bills of equity seeking relief, if any part of the relief sought 
 be of an equitable nature, the Court will retain the bill for com- 
 plete relief; Traip v. Gould, 3 Maine, 82. 
 
 If a bill contains no prayer, either for specific or general relief, 
 it is considered as a bill of discovery merely, although the word 
 
566 Adams's doctrine of equity. 
 
 the proper relief, he may frame his prayer in the 
 alternative, to have either one relief or the other, as 
 the Court shall decide.' In the case of charities and 
 infants the proper directions will be given, without 
 regarding the language of the prayer, (k) 
 
 The principal rules as to this portion of the bill 
 are that it should point out with reasonable clear- 
 ness what relief is asked, that it should not combine 
 distinct claims against the same' defendant, and that 
 it should not unite in the same suit several defen- 
 dants, some of whom are unconnected with a great 
 portion of the case. If the prayer is objectionable 
 
 (/<;) Mitf. on Pleading, 38, 39 ; 1 Dan. C. P. 360-366 ; Cruik- 
 shank v. Mc Vicar, 8 Bea. 106, 110. 
 
 " decree" is erroneously inserted in the prayer for process of sub- 
 poena ; but if tbe bill prays any relief whatever against a defen- 
 dant, who is made a party for the purpose of discovery only, such 
 prayer makes it a bill for relief as well as discovery, as to such 
 defendant, and authorizes him to put in an answer containing a 
 full defence ; Mclntyre v. Union College, 6 Paige, 239 ; See 
 Smith V. Smith, 4 Kandolph, 95. 
 
 ' Upon the subject of bills framed with a double aspect, where 
 the complainant is in doubt whether he is legally entitled to one 
 kind of relief or another, upon the facts of the case as stated in 
 the bill, see Strange v. Watson, 11 Ala. 324; Colton v. Eoss, 2 
 Paige, 896 ; Foster v. Cook, 1 Hawks, 509 ; Lingan v. Hender- 
 son, 1 Bland C. E. 252 ; McConnell v. McConnell, 11 Verm. 290. 
 So also where the complainant is entitled to relief of some kind 
 against the defendants, upon the facts stated in his bill, if the 
 nature or kind of relief to which he is entitled depends upon the 
 existence of a fact, of which he is ignorant, he may allege his 
 ignorance of such fact, and may frame his prayer for relief in the 
 alternative, so as to obtain the appropriate relief, according as the 
 fact shall appear at the hearing of the cause; Lloyd v. Brewster, 
 4 Paige, 537 ; McCosker v. Brady, 1 Barb. C. R. 329. 
 
OF THE BILL. 567 
 
 on either of the two latter grounds, the bill is termed 
 multifarious. (Z) 
 
 Multifariousness of the first kind, sometimes called 
 a misjoinder of claim, is where the plaintiff has 
 several distinct claims against the same defendant, 
 and prays relief in a single suit in respect of all,' e. g., 
 if a corporation were to hold one estate for public 
 purposes, and another for private charity, and a bill 
 
 (T) 1 Dan. C. P. 320-331. 
 
 * A bill is multifarious, as the term is generally understood, 
 where there is a misjoinder of distinct and independent causes of 
 action ; Gardiner J. Brady v. McCosker, 1 Comstock R. 221 ; 
 Carmichael v. Browder, 3 How. Miss. R. 252. Unconnected de- 
 mands against different estates cannot be united in the same bill, 
 though defendant is the executor in both ; Daniel et al. v. Morri- 
 son's Ex'r, 6 Dana's R. 186. So a bill combining individual claims 
 with claims in a representative capacity ; Carter v. Treadwell, 3 
 Story's R. 25 ; Bryan v. Blythe et al., 4 Blackf. R. 249 ; Davoue 
 V. Fanning, 4 Johns. C. R. 199. 
 
 Where, in addition to the charge of adultery, a bill charges the 
 hvisband with cruel treatment, which renders it unsafe for the 
 complainant, the wife, to cohabit with him, and the bill is so 
 framed as to entitle her to a decree of separation, if she fails to 
 establish the adultery charged in the bill, such bill is multifarious ; 
 Rose V. Rose, 11 Paige, 166; Johnson v. Johnson, 6 Johns. C. 
 R. 163 ; Mulook v. Mulock, 1 Edw. C. R. 14 ; Pomeroy v. Pome- 
 roy, 1 Johns. C. R. 606. But where a wife files a bill for divorce 
 against her husband, on the ground of adultery, containing a 
 prayer for relief, which is adapted only to a charge of adultery, the 
 bill is not rendered multifarious by the insertion therein of charges 
 of unkind treatment or cruel usage j Beach v. Beach, 11 Paige, 
 161. 
 
 A bill is not multifarious where it sets up one substantial 
 ground of relief, and also another on which no relief can be had ; 
 Pleasants v. Glasscock, 1 Sm. & Mar. Ch. 17; Varick v. Smith, 5 
 Paige, 137. 
 
568 Adams's doctrine of equity. 
 
 were filed on account of both. In this case the ob- 
 jection is that the defendant would be compellable 
 to unitg unconnected matters in his answer and de- 
 fence, and thus the proofs applicable to each would 
 be liable to confusion ; delays might be occasioned by 
 r*3101 "^^^^^"8 *f<3^ the one when the other was ripe 
 for hearing, and different decrees and pro- 
 ceedings might ultimately be required. The Court, 
 therefore, on the ground of convenience, will not 
 permit such a joinder. But the rule, being one of 
 convenience only, is not absolutely binding, and may 
 be dispensed with if the claims be so far connected 
 that a single suit is more convenient, (m) ' A con- 
 verse principle restrains the plaintiiF from unduly 
 splitting up a cause of suit, e. g., by filing a bill for 
 part of an account without seeking to have the whole 
 taken, or to have the present profits of a partnership 
 ascertained and distributed whilst contemplating the 
 continuance of the partnership business, {n) 
 
 Multifariousness of the second kind is where a 
 plaintiff, having a valid claim against one defendant, 
 joins another person as defendant in the same suit, 
 
 (m) Shackell v. Macaulay, 2 S. & S. 79 ; Attorney-G-eneral v. 
 Goldsmiths' Company, 5 Sim. 670 ; Attorney-Greneral v. Merchant 
 Tailors' Company, 1 M. & K. 189 ; Campbell v. Mackay, 1 M. 
 & C. 603, 618 ; 1 Dan. C. P. 326-329. 
 
 (n) Mitf. on Pleading, 183 ; 1 Dan. 0. P. 316-319. 
 
 ' See Hinton v. Cole, 3 Humph. 656 ; Whitney v. Whitney, 5 
 Dana, 327; Lynch v. Johnson, 2 Litt. 98; Halbert v. Grant, 4 
 Monr. 580; Hart v. M'Keen, Walk. Ch. E. 417; A bill framed 
 with a twofold aspect, either for a specific delivery of the property, 
 or an enforcement of a supposed lien, is not multifarious ; Murphy 
 V. Clark, 1 S. & M..R. 221 ; Baines v. M'Gee, Ibid. 208. 
 
OF THE BILL. 569 
 
 with a large part of which he is unconnected/ e. g., 
 if a bill were to be brought by one tenant in common 
 against another for a partition, and also against a 
 third person to set aside a lease from the plaintiff. 
 It is obvious that the second tenant in common is 
 only concerned with the partition, and ought not to 
 be involved in litigation about the lease; and he 
 might object to the two matters being united, as 
 putting him to unnecessary expense. But in this 
 case, as in the preceding one, if the nature of the 
 transactions make a single suit convenient, the objec- 
 tion will not be sustained, (o)^ 
 
 (o) Whalley v. Dawson, 2 Sch. & L. 367; Salvidge v. Hyde 
 
 ' There is no general rule by which to determine whether a bill 
 is, in this second sense, multifarious or not ; but it must be left 
 to the discretion of the Court under the circumstances of the case ; 
 Oliver v. Piatt, 3 How. U. S. 333, 411 ; Gaines v. Chew, 2 How. 
 U. S. 619. 
 
 Multifariousness, properly speaking, is where different matters, 
 having no connexion with each other, are joined in a bill against 
 several defendants, a part of whom have no interest in, or connex- 
 ion with, some of the distinct matters for which the suit is brought j 
 so that such defendants are put to the unnecessary trouble and 
 expense of answering and litigating matters stated in the bill, in 
 which they are not interested, and with which they have no con- 
 nexion ; Newland v. Kogers, 3 Barb. C. K. 432. 
 
 See, in illustration of this statement, Stuart's Heirs v. Coalter, 
 4 Rand. 74 j Coe v. Turner, 5 Conn. 86; Boyd v. Hoyt, 5 Paige, 
 65 ; Swift V. Eckford, 6 Paige, 22 ; Jackson v. Forrest, 2 Barb. 
 C. K. 576 ; Silcox v. Nelson, 1 Geo. Decis. 24 ; Johnson v. Brown, 
 2 Humph. 327 ; Bruton v. Rutland, 3 Humph. 435 ; Hickman v. 
 Cooke, 3 Humph. 640 ; Clamorgan v. Guisse, 1 Miss. 141 ; Inger- 
 soll V. Kirby, Walk. Ch. R. 65 ; and also Hammond v. Michigan 
 State Bank, Walk. Ch. R. 214. 
 
 " Where the interests of different parties are so complicated in 
 
570 Adams's doctrine of equity. 
 
 The fifth and last part of a bill is the prayer of 
 process, which asks that a writ of subpoena may 
 
 Jac. 151 ; Attorney-General v. Merchant Tailors' Company, 1 M. 
 & K. 189; Campbell v. Mackay, 1 M. & C. 603, 620; Sheehy v. 
 Muskerry, 7C1. &F. 1; Mitf. 181; Attorney-G-eneral v. Cradock, 
 3 M. & 0. 85 ; Attorney-G-eneral v. Corporation of Poole, 4 M. & 
 C. 17-31; Parr-v. Attorney-General, 8 CI. & E. 409; 1 Dan. C. 
 P. 320-326. 
 
 different transactions, tliat entire justice could not be conveniently 
 done without uniting the whole, the bill is not multifarious ; Oliver 
 V. Piatt, 3 How. U. S. 411. The objection of multifariousness is 
 confined to cases where the cause of each defendant is entirely 
 distinct and separate in its subject-matter from that of his co- 
 defendants ; Kennedy v. Kennedy, 2 Ala. 571. A bill against the 
 executors of an estate, and all those who purchased from them, is 
 not upon that account alone multifarious ; Gaines v. Chew, 2 
 How. U. S. 619 ; Patterson v. Gaines, 6 How U. S. 582. So a 
 bill against the personal representatives and heirs of a party to a 
 contract, for an account by the former under it, and specific exe- 
 cution of it by the latter, is not demurrable ; Cocke v. Evans, 9 
 Yerg. 287. A bill is not multifarious, where one general right is 
 claimed by the plaintiff, although the defendants may have sepa- 
 rate and distinct rights; Dimmock v. Bixby, 20 Pick. 368, Bug- 
 bee V. Sargent, 23 Maine, 269 ; Curtis v. Tyler, 9 Paige, 432. 
 To render a bill multifarious, it must contain, not only separate 
 and distinct matters, but such that each entitles the complainant 
 to separate equitable relief. It is not so, if it be single as to the 
 subject-matter and object thereof, and the relief sought, if all the 
 defendants are connected, though differently, with the whole sub- 
 ject of dispute; Watson v. Cox, 1 Ired. Eq. 389; Wheeler v. 
 Clinton Co. Bank, Harring Ch. K. 449; Cornwell v. Lee, 14 
 Conn. 524; Kobertson v. Stephens, 1 Ired. Eq. 247; Parish v. 
 Sloan, 3 Ired. Eq. 607 ; Wilcox v. Mills, 1 S. & M. Ch. 85 ; 
 Donelson's Adm'rs v. Posey, 13 Ala. 752 ; Heirs of Holman v. 
 Bank of Norfolk, 12 Ala. 369. 
 
 Praying relief against some of the defendants in a suit, as to 
 whom the complainant is not entitled to relief, but to a discovery 
 merely, does not render a bill multifarious ; Many v. Beekman Iron 
 
OF THE BILL. 571 
 
 issue, directed to the parties named as defendants, 
 and requiring them to appear and answer the 
 bill, and to abide by the decree when made. L '^ J 
 If a writ be wanted besides the subpoena, e. g., a writ 
 of injunction or ne exeat regno, such additional writ 
 is asked in prayer of process. In bills for discovery, 
 or to perpetuate testimony, the words " to abide by 
 the decree" are omitted, as well as the prayer for 
 relief; but if the bill be for discovery in aid of a 
 defence at law, it asks an injunction against pro- 
 ceeding at law until the discovery shall be made. 
 If a peer or lord of Parliament is a defendant, it is 
 customary, as a mark of courtesy, that instead of a 
 subpoena being issued, he should be informed of the 
 bill by a letter missive from the Lord Chancellor, 
 and should be requested to appear and answer. The 
 same courtesy is extended to a peeress, and to a 
 Scotch or Irish Peer, though not a lord of Parlia- 
 ment. And it is therefore usual, in the prayer of 
 process, to ask a letter missive, and on neglect 
 
 Co. ; 9 Paige, 188. Where a bill is filed against tlie representa- 
 tives of a deceased partner, to obtain satisfaction of a copartner- 
 ship debt out of the estate of the decedent, the joining of the 
 surviving partner, who is insolvent, with them, as a defendant, 
 does not render the bill multifarious ; Butts v. Genung, 5 Paige, 
 254 ; see also Wells v. Strange, 5 Geo. 22. 
 
 The proper form in which to object to a bill for multifariousness 
 is by demurrer j the filing an answer and going into the testimony 
 as to the merits, is a waiver of the objection, and it cannot be made 
 on appeal, after a decree pro confesso below; Gibbs v. Claggett, 2 
 Gill. & J. 14; Graves V. Fresh, 9 Gill. & J. 280 ; Bryan v. Blythe 
 et al. 4 Blackf. 249 ; Avery v. Kellogg, 11 Conn. 562 ; Well- 
 born V. Tiller, 10 Ala. 305 ; Luckett v. White, 10 Gill. & J. 480 ; 
 Abraham v. Plestoro, 3 Wend. 538, 547 ; Thurman v. Shelton, 10 
 Yerg. 383 ; Buffalow v. BufFalow, 2 Ired. Eq. 113. 
 
572 Adams's doctrine of equity. 
 
 thereof, a writ of subpoena. If the Attorney-Gene- 
 ral is a defendant in his official capacity, the bill 
 prays no subpoena, but simply that he being attended 
 with a copy may appear and answer, (p) In certain 
 cases also, Avhere parties are joined as nominal de- 
 fendants, against whom no direct relief is prayed, so 
 that their appearance in the suit would be a needless 
 expense, the prayer of process may be modified by 
 omitting to sue a writ against them, and by asking 
 instead, that they, being served with a copy of the 
 bill, may be bound by the proceeding in the cause, (q) 
 The prayer of process is generally expressed in drafts 
 by the words, " May it please," &c., and a direction 
 is added, in the margin, as to the parties to be inclu- 
 ded in it. The prayer itself is added in engrossing 
 the bill ; and it is followed by a note, specifying the 
 interrogatories which each defendant is respectively 
 required to answer. 
 
 (p) 1 Dan. 0. P. 368-371. 
 (q) Ibid. 405-408. 
 
OF PARTIES. 573 
 
 ^CHAPTER II. [*312] 
 
 OF PARTIES. 
 
 The persons against whom process is asked are 
 the defendants to the bill, and should consist of all 
 persons interested in the relief sought, who are not 
 already joined as plaintiffs.^ If no relief be sought, 
 viz., if the bill be for discovery alone, it cannot be 
 objected to for want of parties f but if relief be 
 asked, the prayer of process must be so framed as 
 to bring all persons interested in that relief before 
 the Court, either as plaintiffs or as defendants.^ 
 
 ' They only are parties defendant in a bill ia Chancery, against 
 whom process is prayed, or who are specifically named and described 
 as defendants ; Verplanck v. Mere. Ins. Co. of N. Y. 2 Paige, 
 438 ; Elmendorf v. Delancey, Hopkins, 555 ; Lucas v. Bank of 
 Darien, 2 Stew. 280 : Green v. M'Kinney, 6 J. J. Marsh, 193 ; 
 Carey v. Hillhouse, 5 Geo. 251. Praying that the " heirs" may 
 be made defendants, without taking out process against them or 
 naming them in the bill, is not making them defendants ; Huston 
 T. M'Clarty's heirs, 3 Litt. 274 ; Moore v. Anderson, 1 Ired. Eq. 
 411. The process alone, and the return, upon it, govern the ques- 
 tion of who are parties, if there is not a special entry showing the 
 appearance of some one not served with process; De Wolf v. 
 Mallett, 3 Dana, 214. As to making absent parties defendants by 
 publication, see Young v. Pate, 3 Dana, 306 ; Letcher v. Schroe- 
 der, 5 J. J. Marsh, 513. There must be service of process, actual 
 or constructive ; Estill v. Clay, 2 A. K. Marsh, 497. 
 
 " Trescot V. Smyth, 1 M'Cord's C. K. 301, 808. 
 
 ' See, on the general subject, Mechanics' Bank v. Seton, 1 Pet. 
 
574 Adams's doctrine of equity. 
 
 In both these points the rule of equity differs from 
 the rule of law, both in the necessity of joining all 
 interested parties in the suit, and in the option of 
 joining them as plaintiffs or defendants. At law, a 
 disputed issue is alone contested; the immediate 
 disputants alone are bound by the decision ; and they 
 alone are the proper parties to the action. In equity, 
 a( decree is asked, and not a decision only ; and it is 
 therefore requisite that all persons should be before 
 the Court, whose interests may be affected by the 
 proposed decree, or whose concurrence is necessary 
 to a complete arrangement. The same reason which 
 requires that the immediate disputants be the only 
 parties at law, also requires their arrangement as 
 parties plaintiff and defendant, so that all the plain- 
 tiffs shall support one side, and all the defendants 
 the other side of the question in *issue. In 
 '- -I equity, it is only requisite that the interests 
 
 299; Story v. Livingston, 13 Pet. 359; Hussey v. Dole, 24 
 Maine, 20; M'Connell v. M'Connell, 11 Verm. 290; Noyes v. 
 Sawyer, 3 Verm. 160; Crocker v. Higgins, 7 Conn. 342; New 
 London Bk. v. Lee, 11 Conn. 112 ; Hawley v. Cramer, 4 Cow. 
 717; Oliver v. Palmer, 11 Gill. & J. 426; Clark v. Long, 4 
 Eand. 451 ; Vann v. Hargett, 2 Dev. & Batt. C. R. 31; Frazer 
 V. Legare, 1 Bailey, C. R. 389 ; Lucas v. Bank of Darien, 2 Stew. 
 280; Park v. Ballentine, 6 Blackf. 223 ; Be LaVergne v. Evert- 
 son, 1 Paige, 181; West v. Randall, 2 Mas. 181; Caldwell v. 
 Taggart, 4 Pet. 190 ; Duncan v. Mizner, 4 J. J. Marsh. 447 ; 
 Wendell v. Van Hensselaer, 1 Johns. C. R. 340 ; Wilson y. 
 Hamilton, 9 Johns. R. 442 ; Key v. Lambert, 1 Hen. & Munf. 
 330; Burhans v. Burhans, 2 Barb. C. R. 398 ; Boughton v. Allen, 
 11 Paige, 321. All persons having the same interest should stand 
 on the same side of the suit ; hut if any such refuse to appear as 
 plaintiffs, they may be made defendants, their refusal being stated 
 in the bill; Contee v. Dawson, 2 Bland. 264, 292. 
 
OF PARTIES. 575 
 
 of the plaintiflPs be consistent, and it is immaterial 
 that the defendants are in conflict with each other, 
 or that some of their claims are identical with those 
 of the plaintiffs. It should however be observed, 
 that although a conflict of interests among the defen- 
 dants is no objection to a bill, yet it does not follow 
 that the Court will adjudicate on their conflicting 
 claims. It will do so if the decision be necessary to 
 the plaintiff's right, e. g., if a bill be filed by a second 
 mortgagee against the mortgagor and a prior mort- 
 gagee, praying to redeem the first mortgage, and 
 that the mortgagor may then redeem both or stand 
 foreclosed. In this case it is obvious that, before 
 relief can be given, the validity and amount of the 
 first mortgage must be determined, not only as 
 between the plaintiff and the defendants, but as 
 between the co-defendants themselves. If there be no 
 necessity arising out of the plaintiff's claim, the Court 
 will not adjudicate between co-defendants, (a) 
 
 If the suit be against a married woman, her hus- 
 band must be joined as a party, unless he is an exile 
 or has abjured the realm. ^ If it be against an idiot 
 or lunatic, the committee of his estate must be 
 joined, (b) If the superintendence of a public trust 
 
 (a) Farquharson v. Seton, 5 Kuss. 45 : Cottingham v. Shrews- 
 bury, 3 H. 627; Sandford v. Morrice, 11 CI. & F. 667; Mitf. 81. 
 (5) Mitf. on Plead. 30 ; 1 Dan. C. P. 160-170. 
 
 * And although he is a certified bankrupt, he should be joined 
 as a party ; Hamlin v. Bridge, 11 Maine, 145. So, in a suit by a 
 husband upon an interest in right of the wife, the wife must be a 
 party ; Schuyler v. Hoyle, 5 Johns. C. K. 196 ; Griffith v. Cole- 
 man, 5 J. J. Marsh, 600 ; Kingo v. Warder, 6 B. Monr. 514 ; 
 Booth V. Albertson, 2 Barb. C. R. 813, 
 
576 Adams's doctrine of equity. 
 
 is involved, the Attorney-General must be a party 
 on behalf of the Crown. And it is generally con- 
 sidered that the same course may be pursued where 
 the rights of the Crown are incidentally concerned.' 
 If, however, the Crown is in possession, or if a title 
 is vested in it which the suit seeks to divest or affect, 
 or if its rights are the immediate and sole object of 
 the suit, the application must be to the Crown by 
 petition of right. A Queen consort has the same 
 prerogative. A foreign Sovereign also, whether re- 
 siding within the British dominions or not, is ordi- 
 narily exempt from the jurisdiction. But he is 
 competent to sue as plaintiff; and if he does so, he 
 submits himself to the jurisdiction in respect of the 
 
 r*R14-l *™^^t^^ ^^^^ f*^^j ^^^ must answer on oath 
 to a cross bill.(c) 
 If a bill be filed either by or against uninterested 
 parties, their joinder is sometimes spoken of as a 
 fault in pleading, but it seems more correct to say 
 that, to the extent of such misjoinder, there is a 
 failure on the merits, and the suit will be dismissed 
 accordingly. The only exception to this rule is in 
 suits against a corporation, in which their clerk or 
 other officer may be made a defendant, though un- 
 affected by the relief sought, in order that he may 
 give discovery on oath, which the corporate body 
 
 (c) Mitf. on Plead. 30 ; 1 Dan. C. P. 138-148 ; Duke of Bruns- 
 wick V. King of Hanover, 6 Bea. 1. 
 
 * In a suit to enforce a contract made by the agent of the Au- 
 burn State Prison, for the labour of the convicts, it seems that the 
 Attorney-General should be made a party; Jones v. Lynds, 7 
 Paige, 305 ; see, also, Grarr v. Bright, 1 Barb. C. E. 157, 164. 
 
OF PARTIES. 577 
 
 cannot do.(<^)' If the bill be for discovery alone, in 
 aid of proceedings at law, no person can be made a 
 defendant who is not a party to the record at law. (e) 
 
 "With respect to the nature of the interest which 
 requires a person to be joined in a suit, there is, of 
 course, no diflBculty as to persons against whom 
 relief is expressly asked. But with respect to those 
 who are incidentally connected with the relief asked 
 against others, the line of demarcation is less easy to 
 draw. The interests, however, which require such 
 joinder seem generally referable to one of the three 
 following heads ; first, interests in the subject-matter 
 which the decree may affect, and for the protection 
 of which the owners are joined ; secondly, concurrent 
 claims with the plaintiff, which, if not bound by the 
 decree, may be afterwards litigated; and, thirdly, 
 liability to exonerate the defendant, or to contribute 
 with him to the plaintiff's claim. 
 
 The nature of the interest comprised under each 
 of these definitions will be best explained and illus- 
 trated by examples ; but the question, whether the 
 interest which in each particular case an individual 
 may possess is or is not within the scope of the suit, 
 is one of law rather than of pleading, and cannot 
 properly be here considered. (/) 
 
 (d) Glasscott V. Copperminers' Company, 11 Sim. 305. 
 
 (e) Kerr v. Kew, 5 M. & C. 154. (/) 1 Dan. C. P., oh. 5. 
 
 * The case of officers or agents of a corporation, is an exception 
 to the rule that a person who has no interest in the subject-matter, 
 and who is a mere witness, cannot be made a defendant in a bill 
 in Chancery. But they can only be made parties for discovery, 
 where relief is sought against the corporation, and not where the 
 whole relief claimed is against persons other than the corporation ; 
 Many v. Beekman Iron Co., 9 Paige, 188. 
 
 37 
 
578 Adams's doctrine of equity. 
 
 r*Sl f>1 *^" '^^^ joinder of parties for protection of 
 their own interests may be illustrated by the 
 case of suits for dealing with property, to which 
 several persons are entitled as co-owners/ or as 
 tenants for life and in remainder, or as having 
 charges on the estate. In all these cases, if the 
 object proposed is not confined to any particular in- , 
 terest, but affects the corpus of the estate, all such 
 persons ought to be parties, (g) But if their interests 
 be prior or paramount to the objects of the bill, so 
 that they will not be affected by the decree, such 
 interests will not make their joinder requisite ; e. g., 
 the interest of a mortgagee on a bill respecting the 
 equity of redemption, or the interest of an incum- 
 brancer or other prior and adverse claimant not 
 privy to the contract, on a bill for a specific per- 
 formance. (^)^ 
 
 (g) Brookes v. Burt, 1 Bea. 106. 
 
 (h) Devonshiire v. Newenham, 2 Sch. & L. 199, 210 ; Lewis v. 
 Zouche, 2 Sim. 388 ; Tasker v. Small, 3 M. & C. 63 ; Nelthorpe 
 V. Holgate, 1 Coll. 203. 
 
 " Every party interested iu land belonging to co-tenants is a 
 necessary party to a bill for partition ; Borab v. Archers, 7 Dana, 
 176 ; Newman v. Kendall, 2 A. K. Marsh. 234 ; Pope v. Melone, 
 Ibid. 239. 
 
 To a bill filed by an heir to avoid the deed of the ancestor, all 
 the heirs should be made parties ; Young v. Bilderback, 2 Green 
 Ch. 206. 
 
 ° To a bill for foreclosure and sale of mortgaged premises, all 
 incumbrancers or persons having an interest, existing at the com- 
 mencement of the suit, subsequent as well as prior in date, to the 
 plaintiff's mortgage, must be made parties, otherwise they will not 
 be bound by the decree ; Haine.s v. Beach, 3 Johns. C. R. 459 ; 
 Ensworth v. Lambert, 4 Johns. C. E. 605 ; Porter v. Clements, 3 
 Ark. 364 ; Huggins v. Hall, 10 Ala. 283. Though a junior mort- 
 
OF PARTIES. 579 
 
 The joinder of parties for protection of their own 
 interests is usually brought 'in question where such 
 interests are concurrent with that of the plaintiff, for 
 if they are concurrent with that of the defendant, 
 the necessity of joining their owners is generally 
 made apparent by the introduction of a prayer for 
 direct relief. 
 
 The rule requiring the joinder of all persons whose 
 interests the decree may affect is subject to two 
 modifications, which, at first sight, appear to be ex- 
 ceptions, but which are in reality mere limitations 
 of its effect, originating in the same principles as the 
 rule itself. The first of these modifications is the 
 exclusion of remaindermen after an estate tail ; the 
 second is the exclusion of legatees or next of kin on 
 bills for a debt or legacy against the personal repre- 
 sentative. 
 
 The exclusion of remaindermen after an estate 
 tail originates in the possession by tenant in tail of 
 an absolute *power to destroy the remainders, 
 so that he alone represents the inheritance, '- ^ 
 and the subsequent remaindermen have no interest 
 to protect. If the subsequent estates are indepen- 
 dent of the estate tail, or if that estate should deter- 
 mine during the suit, without their destruction 
 having taken place, the remaindermen must be 
 made parties, (i) 
 
 (i) Mitf. 173-4; Lloyd v. Johnes, 9 Ves. 39-55; Gaskell v. 
 aaskell, 6 Sim. 643. 
 
 gagee may be a necessary party, if known to the senior mortgagee, 
 in his suit for a foreclosure and sale, it does not follow, it is said, 
 that if he be not known, and a decree of foreclosure and sale be 
 made, that an innocent purchaser should be deprived of the benefit 
 of his purchase ; Bank of the U. S. v. Carol!, 4 B. Monr. 40. 
 
580 ADAMS'S DOCTRINE OF EQITITT. 
 
 The exclusion of legatees or next of kin, on a bill 
 for a debt or legacy against the personal represen- 
 tative, originates in the assumption that such lega- 
 tees or next of kin have in reality no interest in the 
 object of the suit.^ For although they are in some 
 sense concerned in it, yet it is only in the same 
 sense in which every creditor is concerned in the 
 management of his debtor's estate ; viz., it is impor- 
 tant to them that the ability to meet their claims 
 should not be diminished ; but the personal repre- 
 sentative is not a trustee for them, nor have they 
 any interest in the estate itself {Jc) If the claimants 
 are not mere legatees payable by the executor, but 
 specific owners of the property itself, the ordinary 
 rule applies; e.g., where they take as appointees 
 under a married woman's will,(Z) or where theiir 
 legacies are charged on real estate. In this latter 
 instance, however, a modification has lately been 
 
 (Ic) Hertford v. De Zichi, 9 Bea. 11 ; Mitf. 168. 
 (Z) Court V. Jefifery, 1 S. & S. 105. 
 
 ^ The personal estate of a testator is represented by the executor, 
 and a residuary legatee is not a necessary party to a bill by a 
 creditor seeking to charge the general assets of the testator; Bur- 
 well V. Cawood, 2 How. U. S. E. 575. Nor are the general cre- 
 ditors proper parties in such a suit; Dias v. Bouchaud, 10 Paige, 
 445. Nor can a creditor filing a bill against an executor make a 
 debtor a party, unless under special circumstances ; Long v. Ma- 
 jestre, 1 Johns. C. E. 805. As to when heirs should be parties 
 to such suit, see Kennedy v. Kennedy, 2 Ala. 571 ; Telfair v. 
 Stead, 2 Cranch, 407 ; Galphin v. M'Kinney, 1 M'Cord's C. K. 
 280. In a suit for final settlement of a partnership, it is not 
 necessary to join those beneficially entitled to the share of a de- 
 ceased partner, their rights being sufficiently protected by the 
 personal representative; Coster v. Clarke, 3 Edw. C. R. 428. 
 
OF PARTIES. 581 
 
 introduced, assimilating to some extent a devisee 
 on trust with a personal representative ; and it is 
 directed that, in all suits concerning real estate 
 which is vested by debase in trustees, who are com- 
 petent to sell and to give discharges for the pur- 
 chase-money and for the rents and profits of the 
 estate, such trustees shall represent the persons 
 beneficially interested in the same manner, and to 
 the same extent, as the executors or administrators 
 in suits concerning personal estate ; and it shall not 
 be necessary to make the persons beneficially inte- 
 rested parties to the suit. But the Court may at 
 *the hearing require them to be joined, if it pg-i 7-1 
 shall think fit. (K) ^ ^ 
 
 2. The joinder of parties who have concurrent 
 claims with the plaintiff", which, if not bound by the 
 decree, might be afterwards litigated, is most directly 
 illustrated by cases in which a plaintiff sues on an 
 equitable title, and the legal title is veste'd in a 
 trustee for him. In these cases the trustee must be 
 made a party, either as a co-plaintiff" or a defendant,' 
 for although the trustee has no interest to protect, 
 yet he has a legal right against the defendant which 
 would not otherwise be bound ; e. g., the heir or de- 
 
 (II) 30th Order of August, 1841. 
 
 ' The holder of the legal title, as well as those from whom the 
 complainant derives his equity, should be made parties ; Johnson 
 V. Rankin, 2 Bibb, 184; Upham t. Brooks, 2 Story, 623. Where 
 it becomes necessary to file a bill in equity to enforce the payment 
 of a bill of exchange, he who holds the naked legal title may sue 
 alone, as at law. though he who is entitled to the proceeds may 
 come in, and be made a party, if he wishes it; Hopkirk v. Page, 2 
 Brock. 20, 42. 
 
582 ADAMS'S DOCTRINE OF EQUITY. 
 
 visee of a deceased mortgagee in fee must be a party 
 to any bill of foreclosure by the executor ; (m) ' the 
 assignor of a debt or other chose in action, not trans- 
 ferable at law, must be a party to any suit by the 
 assignee respecting it.(«)^ 
 
 (m) Scott V. Nioholl, 3 Kuss. 476. 
 
 (n) Cathoart y. Lewis, 1 Ves. J. 463; Walburn v. Ingilby, 1 
 M. & K. 61. 
 
 * It is not necessary to make the personal representatives of the 
 mortgagor a party to a bill to foreclose or sell; but; upon the 
 death of the mortgagee, it is necessary to make both his heirs and 
 personal representatives parties; Worthington v. Lee, 2 Bland, 
 684. 
 
 ^ If there remain any interest, right, or liability, in the as- 
 signor, which can be affected by the decree, a scintilla juris even, 
 the assignor is a necessary party ; Thompson v. McDonald, 2 Dev. 
 & Batt. Eq. 463. The assignor of a bond or note, the payment of 
 which is secured by a mortgage, should be made a party to a suit 
 by the assignee to foreclose the mortgage ; Bell v. Shrock, 2 B. 
 Monr. 29. 
 
 To a bill on a bond by an assignee, the assignor is a necessary 
 party, where the bond is not assignable at law; G-atewood v. 
 Kucker, 1 Monr. 21 ; Forman v. Rodgers, 1 A. K. Marsh. 426. 
 
 To a bill, by the assignee of a debt, to obtain certain securities 
 given by the debtor to the attorney of the assignor, where the 
 attorney had assigned the same, against the attorney and his 
 assignee, the assignor of the complainant is a necessary party; 
 Elderkin v. Shultz, 2 Blackf 345. 
 
 Whether the assignee of the exclusive right to use a patented 
 machine may join his assignor as co-plaintiff in a suit for a viola- 
 tion of the patent — Quaere ? See Woodworth v. Wilson, 4 How. 
 U. S. R. 712. 
 
 In some cases, the heirs of the assignor are necessary parties to 
 a bill by the assignee. See Edwards v. Bohannon, 2 Dana, 98. 
 
 To a bill by the assignee of a judgment, the assignor should be 
 a party; McKinnie v. Rutherford, 1 Dev. & Batt. Eq. 14; Elliott v. 
 Waring, 5 Monr. 338 ; Pemberton v. Riddle, 5 Monr. 401 ; Cooper 
 V. Gunn, 4 B. Monr. 594. See, as to the joinder of the assignor 
 
OF PARTIES. 583 
 
 The same principle of requiring that all concur- 
 rent claims shall be bound, is applicable to many 
 cases which fall under the first head of interest. 
 For where an interest exists which requires protec- 
 tion, it is possible that a claim exists in respect of 
 that interest, and the defendant is entitled to have 
 all such claims settled together, so that the matter 
 may be completely and effectually disposed of (o) 
 Its operation, however, is excluded where a person 
 possessing a partial interest is seeking redress for an 
 injury, or enforcement of a contract, which affects 
 himself and his partial interest alone, although in 
 some sense it relates to the entire subject-matter; 
 e. g.y where an occupier complains of an injury to 
 
 (o) Munch V. Cockerel], 8 Sim. 219, 231. 
 
 in a judgment creditor's bill filed by tbe assignee, Morey v. For- 
 syth, Walk. C. R. 465 ; Beach v. White, Walk. C. E. 495. 
 
 Where the assignment is absolute and unconditional, and leaves 
 no remaining right or liability in the assignor which can be af- 
 fected by the decree, the assignee need not make the assignor a 
 party. Thus, assignors are not necessary parties to suits by as- 
 signees on bonds, where there are statutes authorizing the assign- 
 ment of bonds. See Snelling v. Boyd, 2 Monr. 132. So the 
 assignor of a note in controversy, who has no interest in it, and 
 against whom no relief is prayed, is not a necessary party to the 
 bill; Everett v. Winn, 1 S. & M. Ch. 67. See also on this subject 
 Polk V. Gallant, 2 Dev. & Batt. Eq. 395; Thompson v. McDonald, 
 Ibid. 463; Snelling v. Boyd, 5 Monr. 172; Kennedy v. Davis, 7 
 Monr. 372. 
 
 The assignor of an entry need not be made a party in a suit by 
 the assignee to obtain a title; Oldham v. Rowan, 3 Bibb, 534. 
 And in Bruen v. Crane, 1 Green Ch. 347, it was decided that 
 where a judgment, which is a lien on land mortgaged, is assigned 
 absolutely and unconditionally, the assignor is not a necessary 
 party to a bill for foreclosure. 
 
584 Adams's doctrine of equity. 
 
 his possessory right, without seeking to establish any 
 claim respecting the inheritance, or where a partner 
 or co-owner complains of fraud practised on himself, 
 although other parties have been similarly de- 
 frauded, (jj) *And, in like manner, one of 
 *- ^ several cestuis que trust may proceed sepa- 
 rately for his share of the fund, where the respective 
 shares have been already ascertained. But it is 
 otherwise if an account be necessary to ascertain the 
 shares, if the fund itself has been lost and its replace- 
 ment is required, or if the entirety is in any way to 
 be dealt with. And it is doubtful whether a trustee 
 can ordinarily be compelled to divest himself of any 
 part of his trust, unless all the cestuis que trust are 
 before the Court, so that he can get rid of the 
 whole, {q) 
 
 The operation of the rules requiring that all per- 
 sons should be parties to a suit who had any interest 
 which the decree might affect, or any concurrent 
 claim which it ought to bind, was often productive 
 of serious inconvenience, by compelling the joinder 
 of claimants in small amounts, who would willingly 
 have left their rights in the hands of the Court 
 rather than incur the expense of appearing to liti- 
 gate them. This evil is now remedied by orders of 
 the Court, declaring that where no direct relief is 
 sought against a party, such party, on being served 
 with a copy of the bill, may be bound by the pro- 
 
 (p) Tooth V. Dean of Canterbury, 3 Sim. 61 ; Semple v. Bir- 
 mingham Kailway, 9 Sim. 209 ; Blain v. Agar, 2 Sim. 289; Mare 
 V. Malaohy, 1 M. & C. 559; Turner v. Borlase, 11 Sim. 17; 
 Bridget v. Hames, 1 Coll. 72. 
 
 {q) Munch v. Cockerell, 8 Sim. 219, 231 ; Henley v. Stone, 3 
 Bea. 355; Goodson v. Ellison, 3 Buss. 583. 
 
OF PARTIES. 585 
 
 ceeding without the necessity of appearing to the 
 bill ; subject, however, to the discretion of the plain- 
 tiff as to whether he will compel such an appearance, 
 and to that of the defendant as to whether he will 
 submit to be bound without it. The person possess- 
 ing the interest must still be a party, but by the ope- 
 ration of these orders he may be so without serious 
 expense, (r) 
 
 3. The joinder of parties who are liable to exone- 
 rate the defendant, or to contribute with him to the 
 plaintiff's claim, is in many cases dispensed with 
 under the present practice. The principle was that 
 of requiring a complete decree, and a final ascertain- 
 ment of the amount of liability, *so that any p^„-,^-, 
 one of the parties liable, on satisfying the ^ ^ 
 plaintiff, might obtain contribution from the rest.' 
 
 On this principle it was held, that if several par- 
 ties were co-obligors in a joint and several bond, they 
 were all necessary parties to a suit for payment, 
 with the exception of such as were mere sureties, 
 and, therefore, not liable to contribution, (s)^ So, if 
 several trustees had committed a breach of trust, 
 they must have been all parties to a suit for redress ; 
 
 (r) Supra, Prayer of Process. 
 
 (s) Bland V. Winter, 1 S. & S. 246. 
 
 * See Purcell v. Maddox, 3 Munf. 79. Where a judgment is a 
 lien on different parcels of land, in a suit by one of the several 
 owners against the judgment creditors, he must, in order to a de- 
 cree for contribution, make all the persons interested parties. 
 Avery v. Patten, 7 Johns. C. K. 211. See also Campbell v. 
 Mesier, 6 Johns. C. E. 21 ; Hooper v. Koyster, 1 Munf. 119 ; 
 Venable v. Beauchamp, 3 Dana, 321. 
 
 ^ So all the obligors in a bond should be made parties to a bill 
 brought to obtain relief against it, unless in a special case of col- 
 lusion; Pollard V. Collier, 8 Ham. 43. 
 
586 Adams's doctrine of equity. 
 
 but if the act complained of were an actual fraud, 
 no right of contribution arose, and any one might 
 be sued alone, (ty It was in like manner unneces- 
 sary to join an insolvent in the suit, because, whether 
 liable or not, he was unable to contribute. (?() Of 
 course, if the absent parties were primarily liable, 
 so that the defendant was entitled, not only to a 
 contribution from them, but to an actual indemnity, 
 it was an additional reason for insisting on their 
 presence. Therefore, a bill could not be filed against 
 a surety without the principal, ('w)^ nor against an 
 heir at law for payment of debts, without the exe- 
 cutor ; (w) but an order has now been made, directing 
 that if the plaintiff's demand be several as well as 
 joint, and whether the defendants be liable as prin- 
 cipals or sureties, he may proceed against all or any 
 at his own option. (x) 
 
 It sometimes happens, that compliance with the 
 
 (t) Seddon v. Connell, 10 Sim. 79 ; Attorney-General v. 
 Wilson, 1 Cr. & Ph. 1. 
 
 (u) Seddon v. Connell, 10 Sim. 79. 
 (v) Brooks V. Stuart, 1 Bea. .512. 
 (w) Knight V. Knight, 3 P. Wms. 333. 
 (x) 32d Order of August, 1841. 
 
 ' In White v. Turner, 1 B. Monr. 130, it was held, that all the 
 persons concerned in suppressing a will, by which slaves who were 
 emancipated are thereby retained in slavery, are jointly liable to a 
 decree for damages ; and if one of the parties has died, his repre- 
 sentatives should be made parties to the suit for freedom. 
 
 ^ Koane v. Pickett, 2 English's Ark. 510. So the principal 
 debtor must be a party in a bill by a surety against the creditor 
 for relief; Bronson J. Vilas v. Jones, 1 Comst. R. 284. So also 
 he must be in a bill by a co-surety to make another contribute ; 
 Tresoott v. Smith, 1 McCord's C. R. 301. See, in addition, as to 
 these points, note, page 269, supra. 
 
OF PARTIES. 587 
 
 rule requiring tlie joinder of all interested parties is 
 rendered practically impossible in a particular case, 
 because the persons interested are too indefinite or 
 numerous to be individually joined in the suit. In 
 this case the rule admits of modification, so that one 
 or more members of a class may sue or be sued on 
 behalf of the whole, provided *the interest of 
 every absent member in the claim made or ■- -^ 
 resisted is identical with that of the members who 
 are personally before the Court. 
 
 The most ordinary instances of this dispensation 
 are in suits by creditors or legatees. For as a single 
 creditor or legatee may sue for his demand out of 
 the personal assets, without bringing the others 
 before the Court, it is rather matter of convenience 
 than of indulgence to permit such a suit by a few on 
 behalf of all ; and it tends to prevent several suits 
 by several creditors or legatees, which would be in- 
 convenient in the administration and burdensome 
 on the fund administered. (?/)' The rule, however, is 
 
 Q/) Mitf. 166. 
 
 ' One legatee may fQe a bill in behalf of himself and the other 
 legatees who may choose to come in, against the executors for an 
 account and payment ; but where the bill is for the residue, all the 
 residuary legatees must be made parties ; Brown v. Ricketts, 3 
 Johns. C. E,. 553 ; Davone v. Fanning, 4 Johns. C. R. 199. But 
 see Hallett v. Hallett, 2 Paige C. E. 15, in which it was held 
 that one residuary legatee may file a bill on behalf of himself and 
 all others standing in the same situation, and it is not necessary 
 to make them all parties to the suit. 
 
 In a suit against the personal representatives of a deceased 
 debtor to recover a debt due from his estate, it is only necessary 
 for the complainant to file the bill in behalf of himself and of all 
 other creditors in the same situation, when it appears upon the 
 
588 Adams's doctrine of equity. 
 
 not confined to cases of this class, but has been ex- 
 tended to other cases where several persons have dis- 
 tinct rights on a common fund, as creditors under a 
 trust deed, residuary legatees, or next of kin ; and 
 in such cases, if the parties are very numerous, one 
 has been allowed to sue on behalf of all, although 
 he could not have sued for his separate share with- 
 out bringing the others before the Court. The 
 ground for this indulgence is, that if all were made 
 actual parties the suit would be liable to frequent 
 abatements, and it would be practically impossible 
 to bring it to a hearing. The Court, however, in 
 such cases will not proceed to a decree until it is 
 satisfied that the interest of all is fairly represented, 
 and that there would be a preponderating inconve- 
 nience in bringing them individually before it.(2;) 
 
 The same principle applies where there is a com- 
 mon right against the defendants, e. g., where relief 
 is sought on behalf of a partnership or other nume- 
 rous body against strangers, or on behalf of all the 
 members of such body except the defendants, against 
 members who have committed a wrong. Such a 
 hill has accordingly been sustained on behalf of a 
 
 (z) Mitf. 167 ; Harvey v. Harvey, 4 Bea. 215 ; Hawkins v. 
 Hawkins, 1 Hare, 543. 
 
 face of the bill that there will be a deficiency in the fund, and that 
 there are other creditors entitled to a rateable proportion with the 
 complainants; Bias v. Bouchaud, 10 Paige, 445. 
 
 As to the right of one distributee of an estate to file a bill on 
 behalf of himself and other distributees, and whether to a bill by 
 one distributee, the others must be made parties ; see Messervey 
 V. Barelli, Kiley's Ch. 138 ; Cherry v. Belcher, 5 Stew. & Port. 
 183 ; Turley v. Young, 5 J. J. Marsh, 133 ; Richardson v. Hunt, 
 2 Munf. 148. 
 
OF PARTIES. 589 
 
 company against the directors to redress or 
 *prevent a misapplication of the funds, (a) L J 
 On behalf of the inhabitants of a parish against the 
 commissioners under an act of Parliament to restrain 
 an injury to their common right, (&) and on behalf 
 of a company against third parties to enforce or 
 rescind a contract, or to obtain an injunction against 
 proceedings at law. (c) ' And e converse it has been 
 
 (a) Cbancey v. May, Pr. in Ch. 592 ; Hichens v. Congreve, 4 
 Russ. 562 ; Preston v. Grand Collier Dock Company, 11 Sim. 
 327 ; Mozley v. Alston, 1 Ph. 790. 
 
 (6) Attorney-G-eneral v. Heelis, 2 S. & S. 67 ; Bromley v. 
 Smith, 1 Sim. 8. 
 
 (c) Taylor v. Salmon, 4 M. & C. 134 ; Small v. Attwood, 
 Younge, 407; Fenne v. Craig. 3 Y. & C. 216; Lund v. Blan- 
 shard, 4 Hare, 9 and 290. 
 
 ■■ Where the associates or share-holders of a private association 
 are numerous, a bill may he filed by one of such associates, in 
 behalf of himself and all the others, against the trustees of such 
 association, to compel the execution of the trust, and for^ an 
 account and distribution of the funds and property of the associa- 
 tion among the share-holders. And it is not necessary that all of 
 the associates should unite in a bill for that purpose ; Mann v. 
 Butler, 2 Barb. C. E. 362 ; Beatty v. Kurtz, 2 Peters, 566; The 
 New London Bank v. Lee, 11 Conn. 112. Where a large number 
 of persons are associated for the purpose of trade, the legal title to 
 all their property being in a part of them for the benefit of the 
 whole, it is sufficient if those haying the legal title be made par- 
 ties defendant or complainant in a bill in equity ; Martin v. Dry- 
 den, 1 Gilm. 187. 
 
 But a bill will not lie by a freeholder or inhabitant of a town, 
 in behalf of the town, respecting its common property, without 
 the consent of the town duly declared ; Denton v. Jackson, 2 
 Johns. C. R. 320. Nor can individual stockholders of an incor- 
 porated company file a bill against the agent and treasurer of the 
 company for misconduct and account ; such a bill should emanate 
 
590 Adams's doctrine of equity. 
 
 held that where a person has a right against several 
 individuals who are liable to common obligations, a 
 bill may be filed against some on behalf of all, pro- 
 vided such a number be brought before the Court as 
 will fairly represent their interests.' And on a bill 
 so framed the Court will make a decree binding all, 
 although so far as the absent parties are concerned 
 it cannot make them do any specific act. {d) 
 
 In order, however, that the principle of the excep- 
 tion may apply, it is essential that the parties repre- 
 sented and those who profess to represent them 
 should have strictly identical interests. If that be 
 not the case, but the suit be one which will bring 
 into controversy their mutual rights, they must all 
 be personally before the Court. As, for example, 
 where the real object of a suit is to obtain a decision, 
 whether consistently with the articles of a company 
 there can be a dissolution and division of the funds, 
 or whether an alleged dissolution is fraudulent, or 
 for the purpose of obtaining directions for managing 
 the business, or having the partnership dissolved 
 and the like, a bill would be held objectionable 
 
 (d) Meux V. Maltby, 2 Sw. 277 ; Adair v. New River Com- 
 pany, 11 Ves. 429 ; Lanchester v. Thompson, 5 Mad. 4, 13 ; Att- 
 wood V. Small, 9 Law J., Eq. 132. 
 
 from and be filed in the name of the corporate body. In some 
 cases individual stockholders can file bills, but only where the 
 officers have the control, and are guilty of breach of duty as 
 trustees ; Forbes v. Whitlock, 3 Ed. C. E. 446. 
 
 ' In a bill against an unincorporated banking company, the 
 members of which are numerous, and in part unknown, it is not 
 necessary to bring all the stockholders before the Court, before a 
 decree can be made ; Mandeville v. Riggs, 2 Peters, 482. See 
 also Dana v. Brown, 1 J. J. Marsh. 304. 
 
OF PARTIES. 591 
 
 unless all the partners were parties, because every 
 one of the absent partners would have a separate 
 and substantial interest in the question of right, (e)^ 
 *It appears to have been at one time con- p^„non 
 sidered impossible that any bill for winding •- J 
 up a partnership should be sustained unless a disso- 
 lution were also sought, and every partner were per- 
 sonally joined. In the case of unincorporated joint 
 stock companies, and of other numerous partner- 
 ships, this rule operated practically as a denial of 
 relief, but it has been relaxed, as we have already 
 seen, in their favour, and bills have been sustained 
 which asked more limited relief, viz., that the assets 
 of such partnership, on its abandonment or in- 
 solvency, might be collected and applied in dis- 
 charge of the debts, leaving questions of distribution 
 and contribution as between the partners entirely 
 open for future settlement. A bill of this latter 
 kind does not bring into controversy the rights of 
 individual partners, and may therefore be sustained 
 by a few partners, on behalf of all, against the direc- 
 tors of the company. And it has been suggested 
 that, even on a bill praying a dissolution, the pre- 
 
 (e) Beaumont v. Meredith, 3 V. & B. 180 ; Evans v. Stokes, 1 
 K. 24. Vansandau v. Moore, 1 Kuss. 441 ; Long v. Younge, 2 
 Sim. 369. 
 
 ' If a bill in equity be brought by one of several partners, 
 founded on partnership transactions, and some of the partners are 
 insolvent, still they must be made parties ; and if bankrupts, their 
 assignees should be made parties in their place ; Fuller v. Benja- 
 min, 10 Maine, 255. See also Hoy v. McMurry, 1 Litt. 364; 
 Dozier v. Edwards, 3 Litt. 67 ; Noyes v. Sawyer, 3 Verm. 160. 
 Yet see Townsend v. Auger, 3 Conn. 354. 
 
592 ADAMS'S DOCTRINE OF EQUITY. 
 
 sence of all might, perhaps, be dispensed with, pro- 
 vided there were a strong necessity shown, and suffi- 
 cient parties were before the Court to represent each 
 conflicting interest, and to discuss the questions freely 
 and without restraint. (/) 
 
 In cases where persons interested are out of the 
 jurisdiction of the Court, it is sufficient to state that 
 fact in the bill, and to pray that process may issue 
 on their return ; and if the statement be substantiated 
 by proof at the hearing, their appearance in the suit 
 will be dispensed with.(^)^ The power of the Court 
 to proceed to a decree in their absence will depend 
 on the nature of their interest, and the mode in 
 which it will be affected by the decree. If they are 
 only passive objects of the judgment of the Court, 
 or the rights are incidental to those of parties before 
 the Court, a complete determination may be ob- 
 P^Qoo-i tained. *But if they are to be active in per- 
 forming the decree, or if they have rights 
 wholly distinct from those of the other parties, the 
 Court, in their absence, cannot proceed to a determi- 
 nation against them, (hy The powers conferred by 
 
 (/) Supra, Partnership. Walworth v. Holt, 4 M. & C. 619 ; 
 Richardson v. Larpent, 2 N. C. C. 507 ; Richardson v. Hastings, 
 7 Bea. 301, 323; Clough v. Radcliffe, 1 Dig. & Sm. 164; Apperly 
 V. Page, 1 Ph. 779 ; Wilson v. Stanhope, 2 Coll. 629. 
 
 (g) Burton v. Eggington, 1 Hare, 488 ; Menoz v. De Taster, 1 
 Bea. 109. 
 
 (h) Mitf. on Pleading, 32 ; Fell v. Brown, 2 B. C. 0. 276 ; 
 Brown v. Blount, 2 Russ. & M. 83 ; Willats v. Busby, 5 Bea. 
 193; IDan. C. P. 199-200. 
 
 ' See Spivey v. Jenkins, 1 Ired. Eq. 126; Millegan v. Milledge, 3 
 Cranch, 220 ; Lainhart v. Reilly, 3 Desau. 590. 
 » See Joy t. Wirtz, 1 Wash. G. C. R. 517 ; Mallow v. Hinde, 
 
OF PARTIES. 593 
 
 statute of serving such parties with process abroad, 
 and thus bringing them before the Court, will be 
 presently considered. 
 
 12 Wheat. 193. In a suit to recover a debt against the estate of 
 a deceased partner, the other partners are proper and necessary- 
 parties j and, although when they are out of the jurisdiction of 
 the Court, they may be dispensed with, yet this exception does 
 not apply to cases involving important rights of the absent part- 
 ners, and especially not to cases where the facts are mainly in 
 their knowledge, or where the circumstances occurred in the 
 place where they are ; Vose v. Philbrook, 3 Story, 336. See 
 Burwell v. Cawood, 2 How. U. S. 575 ; Wilson v. City Bank, 3 
 Sumner, 422. 
 
 The Supreme Court of the United States will not make a final 
 decree upon the merits of a case, unless all persons essentially 
 interested are parties, although some of those persons are not 
 within the jurisdiction of the Court ; Russell v. Clark, 7 Cranch, 
 69. 
 
 38 
 
594 Adams's doctrine of equity. 
 
 [*324] *CHAPTER III. 
 
 OF PROCESS AND APPBAKANCB. 
 
 After the bill has been filed it is next requisite 
 that the subpoena should be served ; that the defen- 
 dant should enter his appearance; and that after 
 appearance he should put in his defence. The de- 
 fence may, as we shall hereafter see, be of four kinds, 
 Disclaimer, Demurrer, Plea, and Answer. But the 
 most usual form, and the only one to which compul- 
 sory process applies, is that of answer. 
 
 The ordinary service of subpoena is by delivering 
 a copy to the defendant personally, or leaving one at 
 his place of actual residence. And in special cases, 
 where an absconding or absent defendant has a re- 
 cognised agent in the matter litigated, substituted 
 service on such agent has been allowed, (a) But as 
 a general principle the Court has no inherent au- 
 thority to dispense with service on the defendant 
 himself, or to authorize any service beyond the limits 
 of its own jurisdiction. (6) 
 
 Assuming the subpoena to be duly served, the de- 
 fendant must next appear. If he be contumacious 
 
 (a) Hobhouse v. Courtney, 12 Sim. 140; Murray v. Vipart, 1 
 Ph. 521. 
 
 (6) Whitmore v. Kyan, 4 Hare, 612. 
 
OF PROCESS AND APPEARANCE. 595 
 
 and refuse, his disobedience may be punished as a 
 contempt. 
 
 The processes of contempt were originally five, 
 viz. : — 
 
 1. A writ of attachment directed to the sheriff of 
 the defendant's county, commanding that the de- 
 fendant's person should be attached. To this writ 
 the sheriff might return, 1. That he had the defen- 
 dant in custody; 2. That he had taken him but had 
 accepted bail; 3. That he could not *find r-sHooc-i 
 him within his bailiwick. On the first of 
 
 these returns being made, the defendant was brought 
 up by habeas corpus, on the second by the messenger 
 of the Court, or the serjeant-at-arms, and in either 
 case was committed to the Fleet, now altered to the 
 Queen's Prison. On the third return, that of non est 
 inventus, the next process of contempt issued. 
 
 2. A writ of attachment with proclamations ; on 
 which the same returns might be made, and the same 
 results would follow. 
 
 3. A writ of rebellion directed to commissioners 
 appointed by the Court, and extending into all the 
 counties of England. On this process no bail could 
 be taken, but the commissioners either brought the 
 defendant up in custody, on which he was committed 
 to the rieet ; or made a return of non est inventus, 
 upon which followed, 
 
 4. An order that the serjeant-at-arms, as the im- 
 mediate ofiicer of the Court, should eflfect the arrest. 
 If an arrest were made under this process, it was 
 followed, like other arrests, by committal to the 
 Fleet. But if the return were non est in'oentus there 
 was no further process against the person. 
 
596 Adams's doctrine of equity. 
 
 5. A writ of sequestration, issuable only on the 
 return lum est inventus of the serjeant-at-arms, or on 
 a defendant in custody being committed to the Fleet. 
 This writ was issued, not against the person, but 
 against the property of the defendant, and authorized 
 the sequestrators to take his goods and personal 
 estate, and to enter on his real estate, and to seques- 
 ter the rents and profits. If the sequestration proved 
 ineffectual, there was no further process. And in 
 the reign of Elizabeth, even the right to sequester 
 was disputed, and it was said by the judges that the 
 Court had no authority beyond personal commitment,- 
 and that if a sequestrator were killed in the execu- 
 tion of process, it was not murder, (c) 
 r*^9RT *^^ ^^ ^^^^ ^^ * person having privilege 
 of peerage or Parliament, and exempt, there- 
 fore, from committal for civil contempt, (c?) a seques- 
 tration nisi was substituted for an attachment, which 
 if no cause were shown was afterwards made abso- 
 lute. In the case of a corporation, which cannot be 
 attached, the first process was by distringas, and the 
 second by sequestration. 
 
 Assuming an appearance to be entered, an answer 
 was next required. And if this were refused, the 
 process of contempt was again enforced ; but if re- 
 sisted to a sequestration, the plaintiff was not re- 
 stricted to that remedy, but on issuing the writ, 
 might apply to the Court to take his bill pro confesso, 
 and to decree against the defendant on the assump- 
 tion of its truth. 
 
 If a decree were ultimately made against the de- 
 
 (c) 1 Smith, C. P. 571. 
 
 (rf) Wellesley's case, 2 K. & M. 639. 
 
OF PROCESS AND appearakce. 597 
 
 fendant, its performance was enforced by a like pro- 
 cess of contempt, with the exception that the attach- 
 ment was not bailable. 
 
 In addition to other inconveniences of being in 
 contempt, it has the eflfect of preventing a party 
 from making any application to the Court in the 
 same cause, except for the purpose of clearing such 
 contempt, (e) 
 
 It is obvious, from the nature of the process of 
 contempt, that if a defendant absconded so as to 
 avoid its operation, or if, when arrested under it, he 
 perversely refused to submit, there were no means 
 of compelling obedience. And on the other hand, if 
 a defendant in custody under process were incapable 
 of doing the required act, his committal was practi- 
 cally imprisonment for life. 
 
 Several attempts have been made by the Legisla- 
 ture to remedy these evils. But the earliest of those 
 which need here be noticed is that made by 1 Wm. 
 4, c. 36, afterwards amended by 2 Wm. 4, c. 58, and 
 generally known as Sir Edward Sugden's Act. 
 
 The provisions of this act, besides abridging under 
 certain circumstances the general process of con- 
 tempt, applied *especially to three classes of r* 0071 
 persons; viz., absconding defendants, pfivi- 
 leged defendants, and defendants in custody under 
 process. In respect to the former class, it authorized 
 the Court to make an order for the defendant's ap- 
 pearance, and on due publication of such order to 
 dispense with both service and appearance, and pro- 
 ceed at once to take the bill "pro cmifesso. In respect 
 
 (e) 1 Dan. C. P. 460. 
 
598 ADA.MS'S DOCTRINE OF EQUITY. 
 
 to the other two classes, it authorized an appearance 
 to be entered for them ; shortened the steps for taking 
 the bill pro confesso, and conferred on bills taken pro 
 confesso under it additional efficacy, by directing that 
 they should not only warrant a decree, but should 
 be evidence in any other proceeding as equivalent to 
 an admission by answer. It at the same time pro- 
 vided for the protection of a defendant in custody, 
 by requiring that he should within a limited time, 
 be brought by the plaintiff to the bar of the Court, 
 to be there dealt with as pointed out by the act ; 
 and that within a further limited time, the plaintifif 
 should proceed according to the nature of the con- 
 tempt, to enter an appearance for him, or to have 
 his bill taken pro confesso, and that in default of his 
 so doing, the defendant should be discharged. 
 
 The case of absent defendants, not having ab- 
 sconded to avoid process, was provided for to a limited 
 extent by 2 Wm. 4, c. 33, and 5 Wm. 4, c. 82, au- 
 thorizing service abroad. But those acts applied to 
 such suits only as had reference to hereditaments in 
 England, Wales, or Ireland, or to incumbrances there- 
 on, or to stock or shares, or the dividends thereof. 
 
 The partial remedies afforded by these acts have 
 been extended by the statutes of the present reign, 
 for "facilitating the Administration of Justice in the 
 Court of Chancery," and by the general orders made 
 under them. (/) 
 
 The present process of the Court for enforcing 
 obedience is chiefly regulated by those orders, and 
 
 (/) 3 & 4 Vict. c. 94; 4 & 5 Vict. c. 52 ; 8 & 9 Vict. c. 105. 
 General Orders of August, 1841 ; April, 1842 ; and May, 1845. 
 
OF PEOCESS AND APPEARANCE. 599 
 
 it is therefore *necessary to point out in what r.-::qoo-| 
 respects they have modified the previous 
 system. 
 
 1. They have remedied some of the difficulties 
 respecting service of process, by directing that where 
 a defendant, having been -in this country within two 
 years before the subpoena issued, appears to have ab- 
 sconded to avoid process, an order for his appearance 
 duly published may be substituted for such service ; 
 and that when a defendant in any suit is out of the 
 jurisdiction, an order may be made, on satisfactory 
 evidence of his probable abode, authorizing service 
 abroad, (gf) 
 
 2. They have shortened the process of contempt 
 by abolishing the writ of attachment with procla- 
 mations, and the writ of rebellion in all cases ; and 
 by abolishing the use of the messenger and serjeant- 
 at-arms, in the case of contempts for non-appear- 
 ance, (h) 
 
 3. They have provided for defaults in appearance, 
 by distinct regulations for the several cases of an 
 adult and capable defendant served within the juris- 
 diction, of an absconding defendant on whom an 
 order to appear has been made, of an infant or person 
 of an unsound mind, and of a defendant served out 
 of the jurisdiction ; authorizing in each case under 
 certain restrictions an appearance to be entered for 
 such defendant, (i) And their effect appears to be 
 that on neglect by a defendant to appear, the plain- 
 tifi" may waive all process of contempt and enter an 
 appearance for him; or may, at his option, issue 
 
 (cf) 1845, xxxi., xxxiii. (Ji) 1841, vi., vii. 
 
 (i) 1845, xxix., xxxvi. 
 
600 ADAMS'S DOCTRINE OF EQUITY. 
 
 an attachment. But on the return of this writ, 
 whether it be " in prison," " cepi corpus," or " non est 
 inventus," he can issue no further process, but must 
 proceed to enter an appearance ; for in the first case, 
 he is expressly bound to do so by 1 Wm. 4, c. 36, r. 
 13 ; in the second he cannot have a messenger, and 
 has, therefore, no means of reaching the defendant ; 
 and in *the third he cannot have a serjeant- 
 L -' at-arms, and a sequestration cannot issue on 
 an inferior process. 
 
 4. They have provided for default in answering 
 after an appearance, whether entered by or for the 
 defendant. 
 
 In this case there are three modes of procedure 
 open to the plaintiff, viz., by process of contempt, by 
 taking the bill pro confesso, or by going into evidence 
 without an answer. 
 
 If he adopt the first course, by process of contempt, 
 he may issue an attachment either immediately on de- 
 fault, or if the defendant is likely to abscond, at an 
 earlier period. (A;) If the defendant is not taken on 
 the attachment, the plaintiff, on a return of non est 
 inventus, may dispense with intermediate process, and 
 obtain an immediate sequestration. (Z) If he is taken, 
 the plaintiff must proceed within a further period to 
 bring him to the bar of the Court, to answer his 
 contempt there. 
 
 The second course open to the plaintiff is that of 
 taking his bill pro confesso. And he is entitled 
 under the present practice to adopt this course im- 
 mediately on the execution of an attachment for 
 want of answer, or at any time within three weeks 
 
 (/i;)1845,lxxii. (01841, ix. 
 
OF PEOCESS AND APPEARANCE. 601 
 
 afterwards, or whenever he is unable, with due dili- 
 gence, to procure an attachment or subsequent pro- 
 cess for want of answer to be executed. (m) 
 
 The third course is that of going into evidence 
 without an answer, which, where the plaintiff can 
 rely on the strength of his evidence, is occasionally 
 advisable. For this purpose a power was given by 
 the 11th and 12th rules of Sir E. Sugden's act to file 
 a formal answer in the defendant's name. By the 
 present rules a simpler plan is adopted; and the 
 plaintiff is authorized to file a traversing note, ex- 
 pressing his intention to proceed as if an answer had 
 been filed traversing the bill.(7i) 
 
 *The outline which has been just given of p:i.qqr\-] 
 the process of the Court is sufficient to explain 
 its general character. Its precise details would be 
 foreign to the purpose of the present Treatise, (o) 
 And we will now proceed, on the assumption of a 
 regular appearance and defence, to consider in what 
 manner such defence should be made. 
 
 (m) 1845, Ixxvi., Ixxix. (n) 1845, lii., Iviii. 
 
 (o) 1 Dan., chap. 7, 8, 9, 10, 12. 
 
602 ADAMS'S DOCTRINE OF EQUITY. 
 
 [*331] *CHAPTEE IV. 
 
 OF THE DEFENCE. 
 
 The grounds of defence in equity may be divided 
 into six classes, viz. : — 
 
 1. Want of jurisdiction in the Court, where the 
 equity alleged is exclusively cognizable in some other 
 Court of equity, and not in Chancery ; as if the suit 
 be for land in a county palatine, or the defendant 
 claim the privilege of a university, (a) 
 
 2. Disability in the plaintiff to sue, as if he be an 
 outlaw, or an alien enemy ; or in the defendant to 
 be sued, as if he be an uncertificated bankrupt ; or if 
 an infant, married woman, or lunatic, attempt to sue 
 in his or her own name. (6) 
 
 3. A decision already made, or still pending, on 
 the same matter in the Court itself, or in some other 
 Court of competent jurisdiction. 
 
 4. Want of equity, where no case is established 
 on the merits. This includes not only cases where 
 there is no right in the plaintiff, but also those where 
 his right, though in fact existing, is not alleged with 
 sufficient certainty in his bill, or where it is a right 
 at law and not in equity ; and also cases of lost deeds, 
 interpleader, &c., where the affidavit required for 
 
 (a) 1 Dan. C. P. 509, 595. (6) 1 Dan., chap. 3. 
 
OF THE DEFENCE. 603 
 
 transferring tlie jurisdiction into equity, has not been 
 annexed to the bill. 
 
 5. Multifariousness and unduly splitting up a 
 cause of suit. 
 
 6. Want of parties. 
 
 *The doctrines which affect the validity p^„„g-, 
 of each of these defences are not material to L J 
 be here considered. Our present inquiry assumes a 
 defence to exist, and is directed to the form in which 
 it should be made. 
 
 The forms of defence are four in number, viz., 
 Disclaimer, Demurrer, Plea, and Answer. A dis- 
 claimer denies that the defendant has any interest 
 in the matter. A demurrer submits that on the 
 plaintiff's own showing his claim is bad. A plea 
 avers some one matter of avoidance, or denies some 
 one allegation in the bill, and rests the defence on 
 that issue. An answer puts on the record the whole 
 case of the defendant, whether by way of demurrer, 
 of avoidance, or of denial, and whether raising one 
 or more issues. 
 
 A defendant, however, is not necessarily confined 
 to one of these forms of defence, but may use two or 
 more of them against the same bill, provided he 
 applies them to different parts, and distinctly points 
 out the application of each. Such, for example, 
 would be the case if the bill prayed a conveyance of 
 land, as to part of which the defendant was a pur- 
 chaser for value without notice, and as to the residue 
 was affected by notice. In this case the bill would 
 in effect be combining two claims to be met by the 
 defendant in different ways; and accordingly he 
 might put in as to one part of the land a plea " that 
 
604 Adams's doctrine of equity. 
 
 he had purchased for value without notice," and as 
 to the other part a disclaimer of all interest, (c) A 
 class of cases also exists, in which the claim made 
 by the bill is strictly single, and cannot therefore be 
 met by several defences, in the sense in which the 
 expression has just been used, but in which the bill 
 itself is so constructed as to give rise to a peculiar 
 defence, compounded of plea and answer, and tech- 
 nically termed " a plea supported by an answer." 
 The nature of this defence will be considered under 
 the head of Pleas. 
 
 We will now direct our attention separately to 
 each of the four forms of defence. 
 
 1. A disclaimer. If the plaintiff, demanding cer- 
 tain *property, untruly state that the defen- 
 L -I dant has an interest therein, the defendant 
 may put in a disclaimer of any right in the matter. 
 If this be done, all controversy between himself and 
 the plaintiff is at an end, and he may be either dis- 
 missed from the suit, or a decree made against him, 
 according as the nature of the disclaimed interest 
 and the plaintiff's security require. It seldom, how- 
 ever, happens that a disclaimer can be put in alone ; 
 for as it is possible that the defendant may have 
 had an interest which he has parted with, or may 
 have set up an unfounded claim, which may make 
 him liable for costs, the plaintiff is entitled to an 
 answer on those points.' Of course, if the plaintiff 
 
 (c) Mitf. 106, 319; Wigr. on Discovery, s. 12. 
 
 ' A disclaimer must be full and explicit in all respects, and be 
 accompanied by an answer, denying the facts deemed necessary to 
 be denied; Wortbington v. Lee, 2 Bland, 678. The defendant 
 
OF THE DEFENCE. 605 
 
 is not merely seeking property which ' he believes 
 the defendant to claim, but is actually charging the 
 defendant as accountable for a wrong committed, a 
 disclaimer cannot apply. (cZ) 
 
 2. The principle of a defence by demurrer is that, 
 on the plaintiff's own showing, his claim is bad. It 
 is applicable to any defence which can be made out 
 from the allegations in the bill, but the most ordinary 
 grounds of demurrer are, want of jurisdiction, want 
 of equity, multifariousness, and want of parties. 
 The frame of a demurrer is very simple, and, after 
 the formal commencement, runs thus : " This defen- 
 dant doth demur in law to the said bill, and for cause 
 of demurrer showeth that it appears by the said bill 
 that, &c.," stating in the regular form on what class 
 of objection the defendant relies, or if there be more 
 than one ground of objection, stating each ground 
 successively with the prefatory words, " and for fur- 
 ther cause of demurrer, this defendant showeth, &c.," 
 and concluding with the words, "wherefore and for 
 divers other good causes of demurrer appearing in 
 the said bill, this defendant doth demur to the said 
 bill, and prays the judgment of this honourable Court 
 whether he shall be compelled to make any other 
 
 (d) Mitf. on Pleading, 318 ; Perkin v. Stafford, 10 Sim. 562 ; 
 Graham v. Coape, 3 M. & C. 638 ; Grlassington v. Thwaites, 2 
 Euss. 458. 
 
 must renounce all claim to the subject of the demand made by the 
 plaintiff's bill, in any capacity, and to any extent ; Bentley v. 
 Cowman, 6 Gill. & J. 152. A defendant cannot, by a disclaimer, 
 deprive the plaintiff of the right to require a full answer from him, 
 unless it is evident that the defendant should not, after the dis- 
 claimer, be continued a party to the suit ; Ellsworth v. Curtis, 10 
 Paige, 105; see also Spofford v. Manning, 2 Ed. C. R. 358. 
 
606 Adams's doctrine of equity. 
 
 answer thereto ; and he humbly prays to be hence 
 dismissed, with his reasonable costs in this behalf 
 sustained." The formal *statement, however, 
 L -J of the causes of demurrer, though usual, is 
 not absolute necessary ;' nor does the statement of 
 one cause, preclude the defendant from relying in 
 argument on any others extending to the same part 
 of the bill ; for the • assertion of a demurrer is, that 
 the plaintiff has not, on his own showing, made out 
 a case, and if that position can be established on any 
 ground, the demurrer is good. In such a case, how- 
 ever, the defendant will not be entitled to his costs, (e) 
 The form of demurrer just given is that of a de- 
 murrer to the whole bill. But although a demurrer 
 may be to the whole bill, it is not necessarily of that 
 extent ; nor, if less extensively framed, is it confined 
 to any particular portion of the bill. It may be to 
 the relief sought, it may be to the discovery, or it 
 may be to both or to only a part of one or of both.^ 
 If it be to the whole relief, it will necessarily extend 
 to the discovery, and should be framed accordingly ; 
 for, if the relief cannot be given, it would be idle to 
 
 (e) Mitf. 217 ; Wellesley v. Wellesley, 4 M. & C. 554 ; 1 Dan. 
 C. P. 539-545. ' 
 
 ' See Nash v. Smith, 6 Conn. 421. 
 
 ^ Where the demurrer does not go to the whole bill, it must 
 clearly express the particular part which it is designed to cover, 
 so that upon a reference of the answer to the residue of the bill 
 upon exceptions for insufficiency, the Master may be able to ascer- 
 tain precisely how far the demurrer goes, and how much of the 
 bill remains to be answered; Jarvis t. Palmer, 11 Paige, 650; 
 Clancy v. Craine, 2 Dev. Eq. 363. 
 
 A defendant cannot answer the bill and demur to the interro- 
 gatories; Kisor V. Stancifer, Wright, 328. 
 
OF THE DEFENCE. 607 
 
 require a discovery ; and if the discovery be required 
 for any other purpose, it should be sought by a 
 separate and independent bill. (/)' If the demurrer 
 be to a part only of the relief it will not necessarily 
 extend to the discovery, because discovery may be 
 necessary for obtaining the rest of the prayer. It 
 may also happen that the demurrer will leave the 
 relief untouched, and will extend only to the dis- 
 covery, or part of the discovery, on the special 
 ground that the subject-matter is one in which the 
 defendant is not obliged to answer, e. g., where it 
 would expose him to a penalty or forfeiture, or 
 would be a disclosure of professional confidence.^ 
 
 (/) Morris v. Morgan, 10 Sim. 341. 
 
 • See Souza v. Belcher, 3 Edw. C. R. 117; Miller v. Ford, 
 Saxton, 358 ; Welles v. River Raisin R. R. Co., Walk. Ch. R. 
 85 ; Pool V. Lloyd, 5 Met. 525. 
 
 ^ Livingston v. Harris, 3 Paige, 528 ; Brownell v. Curtis et al., 
 10 Paige, 210. 
 
 But in such case the demurrer should be confined to such parts 
 of the bill as tend to implicate him in the supposed crime ; Burpee 
 V. Smith, Walk. 327. 
 
 To a bill for a discovery against a surviving partner, and for an 
 account, a demurrer to the discovery, alleging that it might sub- 
 ject him to penalties under the laws of the United States, is bad; 
 it should state why and wherefore a forfeiture would be the con- 
 sequence of discovery ; Sharp v. Sharp, 3 Johns. C. R. 407. A 
 demurrer to a bill because it prayed a discovery of that which 
 would subject the defendants to the penalties of the act against 
 buying pretended titles, cannot be supported, if the answer need 
 not necessarily show a scienter of the vendor's being out of posses- 
 sion, and a subsisting adverse possession ; Leroy v. Servis, Cai. 
 Cas. E. 3, S. C. 1 Johns. Cas. 417. See also on the point, Pat- 
 terson V. Patterson, 1 Hayw. 167; Wolf v. Wolf, 2 Har. & Gill. 
 382; Livingston v. Tompkins, 4 Johns. C. R. 415; Northrop v. 
 
608 Adams's doctrine of equitt. 
 
 But, unless such special ground exist, the general 
 rule is that a defendant cannot admit the right to 
 rehef, and at the same time demur to the discovery 
 by which the relief is to be obtained, (g) In all 
 r*9qKn cases alike the rule *prevails, that the extent 
 to which the demurrer is meant to be a de- 
 fence should be distinctly pointed out. And if the 
 protection claimed be too extensive, the defence will 
 fail. For a demurrer cannot be good in part and 
 bad in part ; but if it be general to the whole bill, 
 and there be any part, either as to relief or discovery, 
 to which an answer is requisite, the demurrer being 
 entire, must be overruled, (^g^)^ 
 
 A demurrer might also have been overruled under 
 
 (ff) 1 Dan. C. P. 502. (gg) 1-Dan. C. P. 538-540. 
 
 Hatch, 6 Day, 361. See, in addition, supra, Book I., chap, i., on 
 Discovery. 
 
 * Livingston v. Story, 9 Pet. 632 ; Brockway v. Copp, 3 Paige, 
 539 ; Le Eoy v. Veeder, 1 Johns. Cases, 417 ; Laight v. Morgan, 
 Ibid. 429 ; Verplank v. Gaines, Ibid. 57 ; Le Fort v. Delafield, 3 
 Ed. C. R. 32 ; Thompson v. Newlin, 3 Ired. Eq. 338 ; Eussell v. 
 Lanier, 4 Hey. 289 ; Kimberly v. Sells, 3 Johns. C. E. 467 ; 
 Livingston v. Livingston, 4 Johns. C. R. 294 ; Higinbotham v. 
 Burnet, 5 Johns. C. R. 184; Parsons v. Browne, 7 Paige, 354; 
 Castleman v. Veitch, 3 Rand. 598 ; Griggs v. Thompson, 1 Geo. 
 Decis. 146 ; Hollsclaw v. Johnson, 2 Geo. Deois. 146 ; Blount v. 
 Garen, 3 Hey. 88 ; Pancher v. Ingraham, 6 Blackf. 139 ; Carter 
 V. Longworth, 4 Ham. 384 ; Western Ins. Co. v. Eagle Fire Ins. 
 Co., 1 Paige, 284 ; Parish v. Sloan, 3 Ired. Eq. 607; Harden v. 
 Miller, Dudley, 120; "Williams v. Hubbard, Walk. Ch. R. 28; 
 Thayer v. Lane, Harring. C. R. 247 ; Shed v. Garfield, 5 Verm. 
 39 ; Clark v. Davis, Harring. C. R. 227. But the demurrer will 
 not be overruled if the bill is multifarious. See Dimmock v. 
 Bixby, 20 Pick. 368. 
 
OF THE DEFENCE. 609 
 
 the old practice, on the ground that it did not cover 
 so much of the bill as it might by law have extended 
 to, or that it was coupled with an answer extending 
 to some part of the matter which was covered by 
 the demurrer; but a different rule now prevails. (7i)' 
 The principle on which a demurrer in equity is 
 decided is the same which applies to a demurrer at 
 law, viz., that, assuming the plaintiff's allegation to 
 be true, he has not made out a sufficient case. And 
 as it is therefore an invariable rule that on argu- 
 ment of a demurrer, all allegations of fact contained 
 in the bill, except as to matters of which the Court 
 takes judicial notice, must for the purposes of the 
 argument be deemed conclusive, a demurrer intro- 
 ducing contrary or additional averments, is termed 
 a speaking demurrer, and cannot be sustained.^ 
 But(i) if the allegations are inconsistent or uncer- 
 tain, or if any material allegation be omitted, the 
 construction on demurrer will be against the bill. 
 
 Qi) Orders of 1841, xxxvi., xxxvii. 
 
 (i) Mortimer v. Fraser, 1 Dan. C. P. 500 ; Taylor v. Barclay, 
 2 Sim. 213 ; Edsell v. Buchannan, 4 B. C. C. 254 ; Campbell v. 
 Maekay, 1 M. & C. 603 ; Eoss v. Harbottle, 2 Hare, 461, 503. 
 
 ' See Spofford v. Manning, 6 Paige, 383 ; Kuypers v. Eeformed 
 Dutch Church, Ibid. 570 ; Clark v. Phelps, 6 John. C. K. 214; 
 Chase's Case, 1 Bland C. R. 206 ; MoDermott v. Blois, Charl. R. 
 M. 281 ; Robertson v. Bingley, 1 McCord's C. R. 352 ; Jarvis v. 
 Palmer, 11 Paige, 650. 
 
 ' A demurrer can be objected to as a speaking demurrer, only 
 when it introduces some new fact or averment which is necessary 
 to support the demurrer, and which does not distinctly appear on 
 the face of the bill; Brooks v. Gibbons, 4 Paige, 374. See also 
 on the subject, Tallmadge v. Lovett, 3 Ed. C. R. 563 ; Saxon v. 
 Barksdale, 4 Desau. 522 ; Redd v. Wood, 2 Geo. Decis. 174. 
 
 39 
 
610 ADAMS'S DOCTRINE OF EQUITY. 
 
 The course of procedure on demurrer depends 
 upon the plaintiff's opinion of its validity. If he 
 thinks that as the bill stands the objection is good, 
 but that he can remove it by restating his case, he 
 may submit to the demurrer, and amend his bill. 
 If he thinks the demurrer bad, he may set it down 
 for argument. If the demurrer is allowed on argu- 
 ment, the suit is at an end, unless the demurrer is 
 p„o^-| confined to a part of the bill, *or the Court 
 give permission to the plaintiff to amend. 
 If it is overruled the defendant must make a fresh 
 defence by answer, unless he obtain permission to 
 avail himself of a plea, (k) 
 
 It is not compulsory on a defendant to demur. 
 The principal motives for so doing are, to avoid a 
 prejudicial discovery, and to prevent unnecessary 
 expense. And where the only matter in dispute is 
 a point of law, this latter object may often be 
 attained by a bill intentionally so framed, as to be 
 open to demurrer upon that point. If these motives 
 do not exist, it is generally an inexpedient and 
 often an objectionable course as involving a prema- 
 ture discussion of the case, of which the plaintiff will 
 probably take advantage. If fraud or misconduct 
 be alleged in the bill, it affords an additional reason 
 against demurring, as it may expose the defendant 
 to unfavourable comments.^ And even when he 
 
 (k) 1 Dan. C. P. 545-560 ; Orders of 1845, xliv.-xlvii. 
 
 " If a bill contain an allegation of fraud, it is a general rule that 
 such allegation must be answered, and a general demurrer cannot be 
 allowed ; Stovall v. N. Bank of Miss., 5 Smedes & M. 17 ; Ander- 
 son V. Lewis, Freem. 206 ; Rambo v. Rambo, 4 Desau. 251 ; Niles 
 V. Anderson, 5 How. Miss. 365 ; Carter v. Longworth, 4 Ham. 384. 
 
OF THE DEI^ENOE. 611 
 
 wishes to avoid discovery he may now, to some 
 extent, if the bill be demurrable, protect himself by 
 answer, (l) 
 
 3. The principle of a defence by plea is, that the 
 defendant avers some one matter of avoidance, or 
 denies some one allegation of the bill, and contends 
 that, assuming the truth of all the allegations in the 
 bill, or of all except that which is the subject of 
 denial, there is sufficient to defeat the plaintiff's 
 claim. It is applicable, like a demurrer, to any 
 class of objections ; but the most usual grounds of 
 plea are, 1. Want of jurisdiction ; 2. Personal' disa- 
 bility in the plaintiff; 3. A decision already made 
 by the Court of Chancery, or by some other Court 
 of competent jurisdiction, or a suit already pending 
 in a Court of equity respecting the same subject. 
 But the suit must be pending in a Court of equity. 
 If there be a pending action at law, the proper 
 course is to put the plaintiff to his election by motion, 
 which Court he will proceed in.(m) 5. "Want of 
 equity, where the equity depends on a single point. 
 
 *Pleas of the first class, or those in which r* 097-1 
 new matter is alleged in avoidance, are 
 termed affirmative. They do not require any spe- 
 cial comment, and it will be sufficient to mention a 
 few of the most ordinary occurrence, viz., the Statute 
 of Limitations, the Statute of Frauds, a release under 
 seal, an account settled or stated account, an award 
 
 (0 Mitf. 108 ; Wigr. on Discovery, 2d edit., p. 95; 38th Order 
 of August, 1841. 
 
 (m) Orders of May, 1845, 16, 20, 21, 15; 1 Dan. C. P. 599, 
 604, 791, 795. 
 
612 ADAMS'S DOCTEINE OF EQUITT. 
 
 and a purchase for valuable consideration without 
 notice, (n) 
 
 Pleas of the second class, or those in which an 
 allegation of the bill is denied, are termed Negative 
 Pleas, and are applicable when the plaintiff, by false 
 allegation on one point, has created an apparent 
 equity, and asks discovery as consequent thereon, 
 e. g., where he alleges himself to be a partner or 
 heir-at-law, and asks for an account of the business, 
 or particulars of the estate. In this case a denial by 
 answer would exclude the relief, but it would not 
 protect the defendant from giving the required dis- 
 covery, because on a principle which has been already 
 explained, a defendant who answers at all must 
 answer fully, (o) In order, therefore, to avoid such 
 discovery, he must resort to a negative plea, deny- 
 ing the allegation of partnership or heirship ; and 
 until the validity of his plea is determined, he will 
 
 (n) 1 Dan. C. P. 606-648. (o) Supra, Discovery. 
 
 ' A plea of the Statute of Limitations is bad, unless accompanied 
 by an answer supporting it, by a particular and precise denial of all 
 tlie facts and circumstances charged in the bill, and which in equity 
 may avoid the statute; Goodrich v. Pendleton, 3 Johns. C. R. 384 ; 
 Bloodgood V. Kane, 8 Cow. 360. But it is not necessary to refer, in 
 terms, to the statute which creates the bar ; Van Hook v. Whitlock, 
 7 Paige, 373 ; see Stearns v. Page, 1 Story, 204. 
 
 A plea of stated account must aver that the accounts settled all 
 dealings between the parties, and were just, and fair, and due ; and 
 these averments must be supported by an answer to the same effect ; 
 Schwarzv. Wendell, Harring. 0. E. 395. If the complainant does 
 not, in his bill, allege that there has been any statement of accounts 
 between the parties, the defendant may plead an account stated, 
 without annexing a copy of the account to his plea ; "Weed v. Smull, 
 7 Paige, 583 ; see Danels v. Taggart, 1 Grill and J. 311. 
 
or THE DEFENCE. 618 
 
 be protected from giving discovery consequent on the 
 allegation.^ 
 
 It is, however, very seldom that a pure negative 
 plea can be made available. For although it pro- 
 tects against discovery consequent on the alleged 
 equity, it does not protect against discovery required 
 to prove it. If, therefore, there be any statements 
 in the bill tending to prove the disputed allegation, 
 distinct from such allegation itself, the discovery 
 asked on those points must be excepted from the 
 plea, and must be given by an answer in support. 
 Thus, if the equity alleged were that a testator was 
 indebted to the plaintiff, and the bill asked discovery 
 consequent on the debt, e. g., payment of interest, a 
 plea of " no debt" would cover *all the dis- r^ooo-i 
 covery and relief sought, including the 
 allegation of debt, but excepting the discovery in 
 evidence of the debt.(p)^ 
 
 The same principle has been held applicable where 
 the plea was negative in substance though not in 
 terms ; e. g., where the bill alleged that a deceased 
 person had left no heirs ex parte paterna, and that 
 the plaintiff was heir ex parte materna, and alleged 
 further, that the defendants by correspondence had 
 admitted the plaintiff's title, a plea that a specified 
 person was heir ex parte paterna was overruled, be- 
 
 (p) Thring v. Edgar, 2 S. & 8. 274; Denys v. Loooek, 3 M. & 
 C. 205. 
 
 * A plea, simply denying a fact alleged in the bill, as e. g., a 
 partnership, is bad ; Innes v. Evans, 3 Ed. 0. K. 454 ; Bailey v. 
 Le Koy, 2 Ed. 0. K. 514. 
 
 ^ See Everitt v. Watts, 3 Edw. 0. E. 486. 
 
614 Adams's doctrine of equity. 
 
 cause it was not coupled with an answer as to the 
 alleged correspondence, {q) 
 
 There is a third class of plea, which may be termed 
 the anomalous plea, which is applicable when the 
 plaintiff has anticipated a legitimate plea, and has 
 charged an equity in avoidance of it; e. g., when 
 having stated his original equity, he states that a 
 subsequent release was given, or is pretended by the 
 defendant to have been given, and charges fraud in 
 obtaining such release. In this case the release or 
 other original defence may be pleaded with aver- 
 ments denying the fraud, or other equity charged in 
 avoidance. The term anomalous is applicable to 
 such plea, because it does not tender an independent 
 issue, but sets up anew the impeached defence, with 
 averments in denial of the impeaching equity. 
 
 It is obvious from the nature of the anomalous 
 plea, that it is only good against the original equity, 
 and is ineffectual against the equity charged in 
 avoidance ; and, therefore, the allegations which con- 
 stitute that equity must not only be denied by aver- 
 ments in the plea, in order to render the defence 
 complete, but must in respect of the plaintiff's right 
 of discovery be the subject of a full answer in sup- 
 port, (r)'^ 
 
 (2) Wig. on Disc. s. 115, 120 ; Harland v. Emerson, 3 Sim. 
 490 ; 8 Bli. 62 ; Clayton v. Winohelsea, 3 Y. & C. 426. 
 (r) Foley v. Hill, 3 M. & C. 475. 
 
 ' A defendant is bound to support his plea by an answer, as to 
 those circumstances stated in the bill, which, if admitted to be 
 true, would be evidence to counter-prove the plea; Bogardus y. 
 Trinity Church, 4 Paige, 178. And the averments are as neces- 
 sary as the answer j for where a bill charged misrepresentation, 
 
OF THE DEFENCE. 615 
 
 Where an answer in support is not required, a 
 plea to all *tlie relief is a bar to all the dis- r^qqqT 
 covery; for the discovery is only material 
 in order to obtain the relief (s) It has been doubted 
 whether this rule applies, where the relief is at law, 
 i. e., whether the defendant to a bill seeking dis- 
 covery in aid of an action at law, can plead his legal 
 defence in bar to the discovery, so as to preclude the 
 plaintiff from proving thereby his case at law, and 
 to transfer the trial of the legal defence into a Court 
 of equity. There may, perhaps, be inconvenience in 
 this course, but the principle on which the rule is 
 based seems to include both cases alike, and to ren- 
 der the plea a protection against all discovery, except 
 such as would disprove or avoid it.{ty 
 
 If an answer in support is requisite, the part to 
 which the plea applies must be distinctly shown, for 
 the answer is necessary in determining the validity 
 of the plea." If, therefore, the plea cover too much, 
 
 (s) Sutton V. Scarborough, 9 Ves. 71. 
 
 (t) Hindman v. Taylor, 2 B. 0. C. 7 ; Wigr. on Discovery, s. 
 66 ; Hare on Discovery, p. 47-62. 
 
 coercion, and fraud, in procuring a release of a debt, and the de- 
 fendant put in a plea and answer ; and in his plea insisted on the 
 release in bar, without noticing the allegation of fraud, though in 
 the answer it was fully met and denied, the plea was held bad ; 
 Allen V. Kandolph, 4 Johns. C. R. 693. See also on this point. 
 Pish V. Miller, 5 Paige, 26 : Bolton v. Gardner, 3 Paige, 273 ; 
 Bellows V. Stone, 8 N. H. 280 ; French v. Shotwell, 5 Johns. C. 
 R. 55.5 ; Ferguson v. O'Hara, 1 Pet. C. C. R. 493. 
 
 ^ See Lane v. Stebbins, 3 Edw. C. R. 482 ; 9 Paige, 622 ; in 
 which it was decided, that a defendant in a suit at law can be com- 
 pelled, through a discovery bill, to answer, even though the dis- 
 covery may be fatal to the defence he sets up. 
 
 " See Jarvis v. Palmer, 11 Paige, 650. 
 
616 Adams's dooteine of equity. 
 
 and so prevent an answer on any material point, or 
 if the answer, though in terms applying to all the 
 requisite discovery, be substantially insufficient, the 
 plea will be disallowed, (m) For on argument of the 
 plea, every fact stated in the bill which ought to be, 
 but is not denied by the answer, will be taken to be 
 true as against the plea. And by the old practice, 
 if the plea covered too little, e. g., if it did not cover 
 so much of the bill as it might by law have extended 
 to ; or if the answer covered too much, and extended 
 to some part overruled by the plea, in both cases the 
 plea was bad.' If an answer is not required in sup- 
 port, the plea is not vitiated by applying it to too 
 large a portion of the bill, but may be allowed as to 
 that part only to which it would properly extend. 
 And in this respect it differs from a demurrer, which 
 cannot, as we have already seen, be good in part and 
 bad in part.(?;)^ 
 
 (m) 1 Dan. C. P. 591 ; Foley v. Hill, 3 M. & C. 475 ; Harris 
 V. Harris, 3 Hare, 450. 
 {y) Mitf. 295. 
 
 ' An answer can overrule a plea only when it relates to matters 
 which the defendant by his plea declines to answer ; Bogardus v. 
 Trinity Church, 4 Paige, 178 ; Souyer v. De Meyer, 2 Paige, 574 ; 
 Ferguson v. O'Harra, 1 Pet. C. C. 493. 
 
 A general answer, and not merely in support of the plea, over- 
 rules the plea ; Taylor v. Luther, 2 Sumner, 228 ; Clark v. Sagi- 
 naw Bank, Harring. C. K. 240. So, an answer containing more 
 than is strictly applicable to the support of the plea; Stearns v. 
 Page, 1 Story, 204. 
 
 If an answer commences as an answer to the whole bill, it over- 
 rules a plea or demurrer to any particular part of the bill, although 
 such part is not in fact answered ; Leacraft v. Demprey, 4 Paige, 
 124. 
 
 ^ A plea may be good in part and bad in part ; French v. Shot- 
 
OF THE DEFENCE. 617 
 
 *The form of a pure plea, whether affirma- r^o^^n-i 
 tive or negative, is that " This defendant 
 doth plead to the said bill, and for plea saith," &c., 
 stating the matter of avoidance or denial on which 
 he relies ; and then concluding, " All which this de- 
 fendant doth aver to be the truth, and pleads the 
 same to the said bill." 
 
 The form of a plea supported by an answer, 
 whether negative or anomalous, is that " This de- 
 fendant as to all the discovery and relief, other than 
 and except so much of the bill as seeks a discovery, 
 whether," &c. (setting out at length the excepted 
 interrogatories), "doth plead thereto, and for plea 
 saith, &c., all which this defendant doth aver to be 
 the truth, and doth plead the same to the said bill, 
 except such parts thereof as aforesaid ; and this de- 
 fendant not waiving his said plea, but relying there- 
 on, doth for answer to so much of the said com- 
 plainant's said bill as this defendant hath not pleaded 
 
 well, 20 Johns. 668 ; Kirkpatriok v. White, 4 Wash. C. C. K. 
 595. 
 
 Where a plea is overruled, the Court may either order it to 
 stand for an answer, with liberty to the plaintiff to except, or it 
 may be overruled altogether, and the defendant ordered to answer. 
 Groodrich v. Pendleton, 3 Johns. C. R. 394. The Court may per- 
 mit a plea to stand for an answer, if it contains matter, which, if 
 put in the form of an answer, would have constituted a valid de- 
 fence to some material part of the matter to which it is pleaded in 
 bar; Orcutt v. Orms, 3 Paige, 459. By allowing a plea to stand 
 for an answer, the Court decides that it contains matter of defence ; 
 but that it is not a full defence to all which it professes to cover, 
 or that it is informally pleaded ; or that the defence cannot be 
 properly made by way of plea; or that the plea is not properly 
 supported by answer ; lb. See also Souzer v. De Meyer, 2 Paige, 
 574 ; Leaoraft v. Demprey, 4 Paige, 124. 
 
618 Adams's doctrin-e of equity. 
 
 to, answer and say," &c., following the ordinary form 
 of answers, (w) 
 
 The rules of pleading applicable to a plea are, that 
 it must raise a single issue, and that its averments 
 must have the same certainty as those of a plea at 
 law. 
 
 It must be confined to a single issue.^ It is not 
 necessary that it should consist of a single fact ; for 
 the defence offered by way of plea may in equity as 
 at law, consist of many facts, provided they all tend 
 to one point constituting the defence. But it cannot 
 include several defences, or as it is technically 
 termed, a defendant cannot, without special leave, 
 put in a double plea to the whole bill, or to the same 
 part of it. He cannot, for example, plead to a charge 
 of infringing a patent, first, that it is not a new in- 
 vention ; and secondly, that it is not a useful one ; 
 because either of these facts if true, would be a sepa- 
 rate defence, (tc) Of course this rule does not apply 
 where the bill makes a double claim, so as to pro- 
 
 (w) Denys v. Looock, 3 M. & C. 205. 
 
 (x) Whitbread v. Brockhurst, 1 B. C. C. 404 ; Key v. Mar- 
 shall, 1 Keen, 190; Strickland v. Strickland, 12 Sim. 253. 
 
 1 Saltus V. Tobias, 7 Jolins. C. R. 214 ; Van Hook v. Whitlock, 
 8 Paige, 409 ; Goodrich v. Pendleton, 3 Johns. C. R. 386. 
 
 The cases in which the Court allows the defendant to make 
 several defences by pleas to the bill, are those in which the making 
 the defences by answer would render it necessary for the defendant 
 to set out long accounts, or where the discovery sought by the bill 
 would be productive of injury to the defendant in his business, or 
 otherwise; Didier v. Davison, 10 Paige, 515 ; see Moreton v. Har- 
 rison, 1 Bland's C. R. 491 ; Ridgely v. "Warfield, 1 Bland's C. R. 
 494, in notis. 
 
OF THE DEFENCE. 619 
 
 hibit diflferent pleas to the different *parts of 
 such a bill ; for such pleas are not in fact a ^ -1 
 double defence to the same claim, but distinct de- 
 fences to distinct claims. 
 
 Its averments must have the same certainty as 
 those of a plea at law. It has been already stated, 
 that in the bill and answer in equity there is not 
 required the same certainty of averment as at law ; 
 partly because it is not necessary to reduce the liti- 
 gation to a single issue, and partly because all issues, 
 whether of law or fact, are decided or adjusted for 
 decision by the Court. It is not, therefore, essential 
 that they should be kept strictly distinct. On a 
 plea, however, there can be but one issue raised ; and 
 we shall presently see that the issues of law and factj 
 though both decided by the Court, are not decided 
 at the same time, but the law is first settled on the 
 argument, and the fact afterwards at the hearing of 
 the plea. For this reason, the laxity of averment in 
 a bill and answer is not permitted in a plea ; but it 
 is required that every essential fact be expressly 
 averred, so that if the validity of the plea be ques- 
 tioned, it may be clear at the argument whether the 
 alleged facts constitute a defence ; and if its truth be 
 impugned, no doubt may exist as to the specific facts 
 to which the evidence must be directed. 
 
 It is also necessary to the validity of a plea, that 
 it be verified by the defendant's oath. This rule is 
 in accordance with the general principle of equity 
 that no man shall set up a defence which he does 
 not believe to be true. The exceptions to it are 
 where the matter pleaded is provable, not by evi- 
 dence of witnesses, but by matter of record, i. e., by 
 
620 Adams's doctrine of equity. 
 
 the enrolled proceedings of a Court of record. In ' 
 this case the mere inspection of the record is conclu- 
 sive, and no oath is required. (3/) 
 
 The course of procedure on a plea will depend on 
 the view taken by the plaintiff as to the suflSciency 
 in law, or the truth in fact, of the defence. If he 
 thinks the plea *valid, but that he can meet 
 ■- it by amendment, he may do so. If he thinks 
 
 it invalid, he may set it down for argument. If he 
 thinks it untrue, he may file a replication, and go to 
 a hearing on the issue of its truth. If the plea be 
 overruled on argument, the defendant must answer. 
 Or the Court may pursue an intermediate course by 
 reserving the benefit of it till the hearing, or by 
 directing it to stand for an answer, with liberty for 
 the plaintiff to except to its suflficiency.' If it is al- 
 lowed on argument, its validity is established, but 
 the plaintiff may still file a replication, and go to a 
 hearing on the question of its truth. He may some- 
 times, too, obtain permission to amend his bill, but 
 this is not a matter of course after the allowance of 
 a plea, and will only be granted on a special appli- 
 cation. If the plea be replied to, either originally 
 or after its allowance on argument, the cause will be 
 brought to a hearing on the single question of its 
 truth. If it is sustained by the evidence, there will 
 be a decree for the defendant. If it is disproved, 
 he can set up no further defence, but a decree will 
 be made against him. (z) 
 
 Q/) 1 Dan. C. P. 651-656. 
 
 (2) 1 Dan. C. P. 656-668, 1845^8-50. 
 
 ' See cases cited, supra, note, p. 339. 
 
OF THE DEFENCE. 621 
 
 A plea, like a demurrer, is not compulsory on the 
 defendant. And if he has no strong motive for re- 
 sisting discovery, an answer is generally the safer 
 defence. 
 
 4. The defence by answer is the most usual, and 
 generally the most advisable course. It puts on the 
 record the whole case of the defendant, enabling him 
 to use all or any of his grounds of defence, subject 
 only to the necessity of verifying them on oath ; and 
 an objection which might have been made by de- 
 murrer or plea, will, in most cases, be equally a bar 
 to relief when insisted on by answer, although it will 
 not, as we have already seen, excuse the defendant 
 from giving the discovery required by the bill. 
 
 In the case of an objection for want of parties, not 
 taken by demurrer or plea, the rule formerly was 
 that, whether pointed out in the answer or not, such 
 objection *was valid at the hearing, but that j- ■„.„-, 
 the case might stand over for the plaintiff to I- ^ 
 amend, subject, however, if notice had been given by 
 the answer, to payment of the defendant's costs of 
 the day. This rule has been recently modified in 
 two respects; viz., 1. Where an objection for want of 
 parties is suggested in the answer, by enabling the 
 plaintiff to set it down for immediate argument, and 
 if he neglect to do so by debarring him, at the dis- 
 cretion of the Court, from liberty to amend at the 
 hearing ; and, 2. When the objection is not so sug- 
 gested, by enabling the Court to reject it at the 
 hearing, and to make a decree saving the rights of 
 the absent parties, (a) 
 
 The answer sustains a double character. It is first 
 
 (a) 39th and 40th Orders of August, 1841. 
 
622 Adams's docteine of equity. 
 
 a narrative of the defendant's case, and secondly a 
 discovery in aid of the plaintiff. It commences, 
 " This defendant, reserving to himself all benefit of 
 exception to the said complainant's said bill of com- 
 plaint, for answer thereto saith." It then goes on 
 to answer the plaintiff's interrogatories, and to intro- 
 duce such new matter as may be required ; and con- 
 cludes with what is termed the general traverse or 
 denial of all matters in the bill. This is usually 
 expressed in drafts by the words "Without this, 
 that," &c., and is filled up in the engrossment. It is 
 said to have obtained, when the practice was for the 
 defendant to set forth his case, without answering 
 every clause in the bill. And, though now unneces- 
 sary, it is still continued in practice. (6) 
 
 The averments of an answer, so far as it is a nar- 
 rative of the defendant's case, are governed by the 
 same rules as those of a bill ; viz., they must state 
 the defence with reasonable certainty and without 
 scandal or impertinence. 
 
 In so far as the answer consists of discovery, it is 
 regulated by the principles already discussed under 
 that head of jurisdiction ; viz., no defendant need 
 discover matters tending to criminate himself, or to 
 expose him to penalty or forfeiture ; no defendant 
 PS441 ^^^^ discover legal advice *which has been 
 given him by his professional advisers, or 
 statements of facts which have passed between him- 
 self and them in reference to the dispute in litigation, 
 and ofiicial persons must not disclose any matter of 
 state, the publication of which may be prejudicial to 
 the community; but subject to these restrictions, 
 
 (i) Mitf. on Plead. 314. 
 
OF THE DEFENCE. 623 
 
 every competent defendant must answer on oath as 
 to all facts material to the plaintiff's case. He must 
 answer fully, if he answer at all ; i. e., he must either 
 protect himself by demurrer or plea, or must answer 
 every legitimate interrogatory, and he must answer 
 distinctly, completely, without needless prolixity, 
 and to the best of his information and belief, (c) ^ He 
 
 (c) Supra, Discovery. 
 
 ' See Brooks v. Byam, 1 Story, 226; Taylor v. Luther, 2 
 Sumner, 228 ; Bradford v. Geiss, 4 Wash. C. C. R. 513 ; De- 
 vereaux v. Cooper, 11 Verm. 103 ; Woods v. Morell, 1 Johns. 
 C. E. 103 ; Robinson v. Blngley, 1 M'Cord's C. R. 333 ; Hag- 
 thorp V. Hook, 1 Gill. & J. 270; Bailey v. Wiilson, 1 Dev. & 
 Batt. Eq. 182 ; Garneal v. Wilson, 3 Litt. 80. It is a general 
 rule that the defendant cannot, by answer, excuse himself from an- 
 swering ; Bank of Utica v. Messereau, 7 Paige, 517. 
 
 On the other hand, a defendant may answer in part, and by his 
 answer state reasons why he should not be compelled to make fur- 
 ther answer ; Hunt v. Gookin, 6 Verm. 462. 
 
 A defendant need not answer any allegations in the bill, which 
 are not material to be answered ; Utica Insurance Co. v. Lynch, 
 3 Paige, 210; Butler v. Catling, 1 Root, 310. Yet in such case 
 it should appear that an answer would, in no aspect of the com- 
 plainant's case, as made by the bill, be of service to him ; Gilkey 
 V. Paige, Walker's Mich., Ch. R. 520. Where a defendant de- 
 nies all knowledge of a fact charged in the bill, it is not necessary 
 for him to state his belief in relation to it ; Morris v. Parker, 3 
 Johns. C. R. 297. Nor can he be compelled to answer interroga- 
 tories based upon a hypothetical statement in the bill ; Grim v. 
 Wheeler, 3 Edw. C. R. 334. Nor a mere recital in the bill ; 
 Mechanics' Bank v. Levy, 3 Paige, 606. Nor a mere arithmetical 
 proposition; M'Intyre v. Union College, 6 Paige, 239. And 
 where there is a general denial in the defendant's answer, which 
 is clear and distinct, any ambiguity in a particular part will not 
 vitiate or destroy other parts. The whole answer is to be taken 
 together. See Smith v. Fisher, 2 Desau. 275 ; see, in addition, 
 upon the requisites of the answer, note, page 307, ante. 
 
624 Adams's doctrine of equity. 
 
 is not, however, bound to answer as to conclusions 
 of law, nor as to conclusions of fact, when the evi- 
 dence only is within his knowledge, and not the fact 
 which it tends to prove. And in such cases it is 
 generally advisable to detail exactly the facts or evi- 
 dence, and to submit to the Court whether they 
 warrant the plaintiff's conclusion, and then to con- 
 clude with a special traverse in the words of the 
 interrogatory, that " save as aforesaid the defendant 
 cannot state as to his belief or otherwise whe- 
 ther," &c. 
 
 In framing an answer it is seldom possible to keep 
 the narrative and discovery separate, nor is it gene- 
 rally advisable to do so, beyond what may be requi- 
 site for bringing out distinctly the defence itself. 
 Tor by intermingling the two, and embodying in the 
 discovery a running connexion with the defence, it 
 is rendered less available to the plaintiff, who can 
 scarcely read any portion of it in evidence, without 
 at the same time reading the defensive statement. 
 
 The answer is generally, though not always, fol- 
 lowed by schedules, containing accounts, lists of 
 documents, and other matters of a similar kind, 
 which have been asked for by the bill, or which the 
 defendant considers necessary to his defence. And 
 n^o^c-i such schedules are referred to in the *body 
 of the answer, by stating that they are an- 
 nexed thereto, and praying that they may be taken 
 as part thereof. 
 
 After the answer is put in, the next step in pro- 
 cedure regards the question of its suflficiency ; viz., 
 whether the defendant has given all due discovery. 
 If he has not, the plaintiff may except. The excep- 
 
OF THE DEFENCE. 625 
 
 tions are signed by counsel, and are delivered within 
 a limited time to the proper officer. They are 
 headed with the name of the cause, and are entitled 
 " Exceptions taken by the said complainant to the 
 insufficient answer of the said defendant." They 
 then go on successively, " First, for that the said de- 
 fendant has not to the best of his knowledge, re- 
 membrance, information and belief answered and set 
 forth whether," &c., following the words of the inter- 
 rogatory which has been insufficiently answered; 
 "Secondly, for that the said defendant has not in 
 manner aforesaid answered and set forth whether," 
 &c., following the words of the next interrogatory 
 which has been insufficiently answered ; and so on 
 throughout : and they then conclude, '" In all which 
 particulars the said complainant excepts to the an- 
 swer of the said defendant, and humbly prays that 
 the said defendant may be compelled to put in a 
 sufficient answer thereto." If the defendant does 
 not submit to the exceptions, they are referred to 
 one of the Masters for consideration ; and if he re- 
 ports the answer insufficient, a further answer must 
 be filed on the points excepted to. If either party 
 is dissatisfied with the Master's decision, he may 
 bring the question before the Court by exceptions to 
 the report, and it will then be finally decided. If 
 the defendant puts in a second or third insufficient 
 answer, the plaintiff" does not deliver new exceptions, 
 but must refer it for insufficiency on the old ones, 
 pointing out in the order which he obtains the par- 
 ticular exception or exceptions to which he requires 
 a further answer. If a third answer is reported in- 
 sufficient, the defendant is examined personally on 
 
 40 
 
626 Adams's doctrine of equity. 
 
 interrogatories ; and is committed to prison until he 
 shall have perfectly answered them. 
 
 r*S4fi1 * ^^ ^^^^ ®^®P' ^^^^^ *^^ sufficiency of the 
 answer is determined, is the amendment of 
 the plaintiff's bill.' Before the answer is filed, the 
 plaintiff may amend as often as he thinks fit ; but 
 after an answer he is precluded from doing so, until 
 its sufficiency or insufficiency is admitted or deter- 
 mined. If the answer be insufficient, he is remitted 
 to his former right of amending at discretion. If it 
 be sufficient, he is entitled as of course to one order 
 for amendment, but any subsequent order must be 
 obtained on special grounds. The object of amend- 
 ment may be either to vary or add to the case origi- 
 nally made, or to meet the defence by new matter. 
 The old method of doing this was by a special repli- 
 cation, followed up, if necessary, by rejoinder, surre- 
 joinder, &c., according to the forms of pleading at 
 
 ' See, as instances of amendment, Noyes v. Sawyer, 3 Verm. 
 160 ; Arendell v. Blaokwell, 1 Dev. Eq. 354 ; Stephens v. Terrel, 
 3 Monr., 131; Gayle v. Singleton, 1 Stew. 566; Ontario Bank 
 V. Schermerhorn, 10 Paige, 109 ; Ayres v. Valentine, 2 Edw. C. 
 R. 451 ; Buckley v. Corse, Saxton, 504 ; West v. Hall, 3 Har. & 
 J. 221 ; Walker v. Hallett, 1 Ala. N. S. 379 ; Jennings v. 
 Springs, 1 Bailey Eq. E. 181. But an amendment will not be 
 permitted, unless it appears that the plaintiff will be entitled to 
 relief upon the case made by the bill, after the amendment made ; 
 Mitchell V. Lenox, 1 Ed. C. R. 428. Nor where the Court is 
 satisfied that the proposed allegation cannot be substantiated; Pres- 
 cott V. Hubbell, 1 Hill C. R. 210. Nor where the matter of the 
 proposed amendment might, with reasonable diligence, have been 
 inserted in the original bill ; North American Coal Co. v. Dyett, 
 2 Edw. C. R. 115. Nor when, on demurrer, a bill has been dis- 
 missed on the merits of the case as stated, for want of equity ; 
 Lyon V. Tallmadge, 1 Johns. C. R. 184. 
 
OF THE DEFENCE. 627 
 
 law. But the modern practice is to amend the bill. 
 If the amendments make further discovery requisite, 
 the plaintiff may call for a further answer. And if 
 he has successfully excepted to the answer, and the 
 exceptions have not been answered, he may require 
 the amendments to be answered at the same time. 
 If the plaintiff does not require a further answer, the 
 defendant may nevertheless file one if he considers 
 it material to do so.{d) 
 
 The right of thus amending, by introducing altered 
 or additional statements, is not absolutely confined 
 to the plaintiff. The defendant may also under spe- 
 cial circumstances obtain a similar indulgence j^ but 
 as an answer is put in on oath, the Court, for obvi- 
 ous reasons, will not readily suffer alterations to be 
 made. 
 
 Such permission, however, may be obtained on a 
 full and satisfactory affidavit showing the cause of 
 the omission and the new matter intended to be in- 
 troduced, in cases where, at the time of the original 
 answer being put in, the defendant was ignorant of 
 particular facts, and could not by reasonable dili- 
 gence have known them. And the like indulgence 
 has been given, where the defendant had been 
 
 (d) Orders of May, 1845, Ixix., Ixx., Ixxi. ; 1 Dan. C. P. 376, 
 400. 
 
 ' In mere matters of form, or mistakes of dates, or verbal in- 
 accuracies, Courts of Equity are very indulgent in allowing amend- 
 ments of answers ; but reluctant to allow amendments in material 
 facts, or such as essentially change the ground taken in the origi- 
 nal answer ; Smith v. Babcock, 3 Sumner, 588 ; see, also Jack- 
 son V. Cutright, 5 Munf. 308 ; McWilliams v. Herndon, 3 Dana, 
 568 ; Stephens v. Terrel, 3 Monr., 131. 
 
628 Adams's doctrine of equity. 
 
 *mduced to leave out a fact in the original 
 L J answer by the mistaken advice of his solici- 
 tor.^ But the Court is always unwilling to give this 
 permission, where the new matter would be prejudi- 
 cial to the plaintiff, though it will be inclined to 
 yield if it is intended for his benefit.^ If the error 
 to be corrected is a mere matter of form, it may be 
 done by amending and re-swearing the answer. But 
 when the object is to correct a mistaken statement, 
 or to introduce new matter, it must be done by a 
 supplemental answer, leaving the former answer on 
 the record, (e) If the defendant cannot obtain per- 
 mission to file a supplemental answer, he has no 
 other way of correcting his original answer. He 
 cannot do so by filing across bill.(/) 
 
 The final result of the pleadings is that the ulti- 
 mately amended bill, and the answer or successive 
 answers of the defendant, constitute the whole record. 
 
 It then becomes the plaintiff's duty to consider 
 the nature of the allegations in the answer, and 
 their bearing on his own case. If the answer admits 
 his claim, and he is content that it shall be taken as 
 
 (e) Curling v. Townshend, 19 Ves. 628 ; Greenwood v. Atkinson, 
 4 Sim. 54 ; Fulton v. G-ilmore, 1 Ph. 522 ; Bell v. Dunmore, 7 
 Bea. 283 ; 1 Dan. C. P. 752, 757. 
 
 (/) Berkeley v. Eider, 2 Ves. 533, 537. 
 
 ''■ A defendant may, for good cause shown, be permitted to amend 
 his answer, and plead the statutes of frauds and limitations, after 
 the issue joined, and it is sufficient ground that the defendant's 
 counsel advised him, that he could take advantage of such defence 
 without pleading; Jackson v. Outright, 5 Munf. 308. 
 
 a See Western Reserve Bank v. Stryker, 1 Clark's C. R. 380, 
 383, 
 
OF THE DEFENCE. 629 
 
 true throughout, the cause may be heard on bill and 
 answer. If he intends to controvert any part of the 
 answer, or requires additional proof of his case, he 
 must join issue with the defendant, in which case he 
 is required to file a replication, stating the course he 
 intends to pursue ; and it is required to be as nearly 
 as possible in the following form : " The plaintiff in 
 this cause hereby joins issue with the defendant." (g') 
 On the filing of a replication the cause is at issue, 
 and the parties proceed to the proof of their respec- 
 tive cases, (h) If the plaintiff omit to file a replica- 
 tion in time, the defendant may dismiss the bill for 
 want of prosecution, (i) 
 
 (g) Orders of May, 1845, xciii. 
 
 (h) Orders of May, 1845, 16, 37-41, 93 ; 1 Dan. C. P. C. 19. 
 
 (i) Orders of 1845, xciv. ; 1 Dan. C. P. 767, 784. 
 
630 ADAMS'S DOCTRINE OF EQUITY. 
 
 [*348] * CHAPTER V. 
 
 OP INTERLOCUTORY ORDERS. 
 
 The answer of the defendant is the chief founda- 
 tion of interlocutory orders, that is, orders not made 
 at the hearing of the cause, but obtained during its 
 progress for incidental objects. And such orders, 
 therefore, will naturally fall under our notice at this 
 stage of our inquiry. 
 
 The mode of obtaining interlocutory order is either 
 by a viva voce application, called a motion, or by a 
 written one, called a petition. The statements made 
 in the answer have generally a considerable influence 
 on the application, and in some instances they are 
 the only admissible evidence ; where other evidence 
 is admissible it is brought forward, not by the regu- 
 lar examination of witnesses, but by the affidavits of 
 voluntary deponents, (a) 
 
 It is not necessary for the purpose of this Treatise 
 to discuss the practice on motions and petitions. 
 But it will be sufficient to observe that they are 
 divided into two classes, viz. 1. Motions and peti- 
 tions of course, or such as seek an order which by 
 the practice of the Court may be granted on asking, 
 without hearing both sides ; and 2. Special motions 
 or petitions, or those which can only be granted for 
 
 (a) 2 Dan. C. P. C. 30, of Affidavits. 
 
OF INTERLOCUTORY ORDERS. 631 
 
 cause shown. Where the application is of the latter 
 kind, it will not be granted ex parte, except in cases 
 of emergency, but notice of the motion, or a copy of 
 *the petition, must be previously served on all 
 parties interested. (&) L ^^^J 
 
 The procedure by petition is also resorted to for a 
 variety of objects not arising in the progress of a suit, 
 but dealt with under the summary jurisdiction by 
 statute, already noticed as existing in the Court, (c) 
 e. g., for conveyance by incapacitated trustees. And 
 in one class of cases, where the appointment of a 
 guardian and allowance of maintenance for an infant 
 is required, the same course is sanctioned, as already 
 observed, by the inherent authority of the Court, [d] 
 The jurisdiction over solicitors, and in lunacy and 
 bankruptcy, is also exercised by orders on petition. 
 
 The objects of interlocutory orders are numerous. 
 They include, for instance, the issuing of attachments 
 or other process of the Court, the taking of bills pro 
 confesso, the compelling a plaintiff to elect whether 
 he will sue at law or in equity, the dismissal of bills 
 for want of prosecution, and the taking of any other 
 steps to remedy delay or irregularity in the cause. 
 But an inquiry into orders of this class would turn 
 principally on technical rules of practice, and would 
 be unsuited to our present purpose. The only 
 objects of interlocutory orders which seem material 
 to be here noticed are five in number, viz. 1. The 
 production of documents; 2. The payment of money 
 into Court; 3. The appointment of a receiver; 4. 
 
 (6)2 Dan. C. P. C. 31; Interlocutory Application, 
 (c) Supra, Introduction, 2 Dan. C. P., c. 40. 
 \d) Supra, Infants, 2 Dan. C. P. 29. 
 
632 ADAMS'S DOCTRIISrE OP EQUITY. 
 
 The grant of an injunction ; and 5. A writ of tie exeat 
 regno. 
 
 I. The production of documents is ordered for 
 completion of the discovery in the defendant's 
 answer, (e) 
 
 The discovery obtained from the answer itself is 
 not the whole to which the plaintiff is entitled. It 
 gives him a statement by the defendant on oath as 
 to all facts to which he was interrogated, and also a 
 schedule of all documents in the defendant's power 
 relating to the subject-matter of the suit. But the 
 documents still remain to be examined, and 
 L -I *the information which they contain is fre- 
 quently the most important part of the discovery. 
 For the purpose of obtaining such examination, the 
 plaintiff is entitled, either before or after the suffi- 
 ciency of the answer has been determined, and with- 
 out prejudicing any question on that point, or at any 
 subsequent period in the cause, to move that " the 
 defendant may produce, and that the plaintiff may 
 have liberty to inspect, and take copies of all the 
 documents so scheduled, and that the same may be 
 produced, before the examiner and at the hearing of 
 the cause." (/) Upon this application an order will 
 be made that they shall be deposited with the clerk 
 of records and writs, or, if a special reason be shown, 
 e. g., their being in constant use in the defendant's 
 business, then in the defendant's own office, (g) 
 
 The doctrines by which production is regulated 
 have been already discussed in reference to disco- 
 
 (e) 2 Dan. C. P. c. 38. 
 
 (/) Lane v. Paul, 3 Bea. 663 Fencott v. Clarke, 6 Sim. 8. 
 
 (g) Prentiee v. Phillips, 2 Hare, 152. 
 
OF INTERLOCUTORY ORDERS. 633 
 
 very, viz. 1. The right of requiring it is for the 
 purpose of discovery alone, and does not depend on 
 nor will be aided by a title to possess the documents 
 themselves. 2. The existence of the right must be 
 shown from admissions in the answer that the docu- 
 ments are in the defendant's possession or power, 
 and that they are of such a character as to constitute 
 proper matter of discovery within the ordinary rules. 
 3. It is a right belonging to a plaintiff only, although 
 a defendant may occasionally be permitted on special 
 grounds to delay his answer until some document 
 material for making out his defence has been pro- 
 duced by the plaintiff. 
 
 II. Payment of money into Court is directed 
 where the defendant admits money to be in his 
 hands which he does not claim as his own, and in 
 which he admits that the applicant is interested. (^) 
 
 In a case of obvious and gross misconduct, where 
 the plaintiff has made affidavit of the facts, and the 
 defendant *has attempted to explain them 
 by a counter affidavit, this order has been '- -■ 
 made before answer on the admissions in the defen- 
 dant's affidavit, (i) But the general rule is, that it 
 shall not be made until the answer is put in, and 
 that it must be sustained entirely on the admissions 
 made. The reason of this requirement is that the 
 motion is made before witnesses can be regularly 
 examined, and therefore the defendant may fairly 
 claim that either his answer shall be taken as true, 
 or that the adjudication shall be delayed till he has 
 an opportunity of proof (h) The admissions neces- 
 
 (h) 2 DaB. C. P., 0. 36. 
 
 (i) Jervis v. White, 6 Ves. 738. 
 
 (/c) Richardson v. Bank of England, 4 M. & C. 165, 176. 
 
634 Adams's doctrine of equity. 
 
 sary to warrant the order are, first, that the defen- 
 dant has the fund in his hands, or at all events that 
 he once had it, and has not legitimately disposed of 
 it ; secondly, that he does not claim it as his own ; 
 and thirdly, that the applicant is interested in it.(Z) 
 If the admissions in the answer do not warrant the 
 application, it may be made at the hearing on the 
 evidence in the cause, or may be made between the 
 original hearing and the hearing on further direc- 
 tions, either on admissions in the examination of an 
 acting party, or on the Master's report, (m) 
 
 The order thus made is strictly one of precaution. 
 The fund is brought into Court, that it may be pre- 
 served until the decree, and not that an earlier deci- 
 sion of the cause may be made. The Court will 
 not, therefore, indirectly adjudicate on the right, as, 
 for example, by directing payment of interest to one 
 of the litigants, but will retain the fund untouched 
 until the hearing of the cause, [n) 
 
 The principle on which the order is based is that 
 the fund, of which payment into Court is asked, is a 
 fund held by the defendant in trust ; and it therefore 
 does not apply to suits for mere payment of a debt 
 claimed as due from the defendant to the plaintiff. 
 But to this rule there are *two apparent ex- 
 L -I ceptions : the one in the case of an executor 
 who owes money to his testator, the other in that of 
 a purchaser, sued for specific performance, who is in 
 
 (I) Freeman v. Fairlie, 3 Meriv. 29, 39 ; Meyer v. Montriou, 4 
 Bea. 343 ; Dubless v. Flint, 4 M. & C. 502. 
 
 (m) Hatch v. , 19 Ves. 116 ; Creak v. Capel, 6 Mad. 
 
 114. 
 
 (n) Nedby v. Nedby, 4 M. & C. 367. 
 
OF INTERLOCUTORY ORDERS. 635 
 
 possession of the land, and has not paid his purchase- 
 money. The reason of the first exception is that 
 the executor, being himself both debtor and creditor, 
 is presumed in equity to have discharged himself of 
 the debt, and to have retained the money as part of 
 the assets, (o) That of the second is, that though 
 the purchaser may be ultimately entitled, according 
 to the result of the suit, either to the estate or to 
 the purchase-money, yet he cannot be entitled to 
 both ; and therefore his election to keep possession 
 of the estate is in substance an election to be a 
 trustee of the purchase-money, (p) 
 
 The mode of obtaining the order is by a motion 
 made on notice, that the defendant may be ordered 
 on or before a specific day to pay the amount into 
 the name, and with the privity of the Accountant- 
 General, in trust in the cause ; and that the same, 
 when paid in, with all accumulations thereon, may 
 be laid out in the purchase of three per cent, con- 
 sols. 
 
 If the object is to obtain a transfer of stock, the 
 terms of the notice are varied accordingly. 
 
 III. A receiver is appointed where an estate or 
 fund is in existence, but there is no competent person 
 entitled to hold it, or the person so entitled is in the 
 nature of a trustee, and is misusing or misapplying 
 the property, (g') 
 
 The former of these grounds applies where the 
 owner of property is dead, and probate or adminis- 
 
 (o) Eichardson v. Bank of England, 4 M. & C. 165. 
 Qj) Morgan v. Shaw, 2 Meriv. 138 ; Tindal v. Cobham, 2 M. 
 & K. 385 ; Cutler v. Simons, 2 Meriv. 103.-- 
 (q) 2 Dan. C. P., c. 35. 
 
636 ADAMS'S DOCTRINE OF EQUITY. 
 
 tration has not been granted, but is bona fide liti- 
 gated in the Ecclesiastical Courts. In this case a 
 receiver -will be appointed of the personal assets, not 
 on the ground that the contest exists, but because 
 there would otherwise be no proper person to receive 
 them. If, on the contrary, probate or administration 
 has *been granted, there is a proper person, 
 L J and the pendency of litigation to recall the 
 grant will not warrant a receiver, (r) On the same 
 principle a receiver will be appointed of an infant's 
 estate, if it be not vested in a trustee, for he is him- 
 self incompetent to take charge of it. 
 
 The most obvious instance of the second ground 
 of appointment is in the case of actual trustees, who 
 are abusing their trust, and bringing the property 
 into danger. But unless there be misconduct on 
 their part, the Court will not interpose to take the 
 property from them for the mere purpose of confiding 
 it to an officer of its own. (s) 
 
 If, again, the legal owner, though not an actual 
 trustee, holds the property subject to clear equities 
 in other parties, but is using it in a manner incon- 
 sistent with them, a receiver may be obtained against 
 him. On this principle an equitable mortgagee may 
 have a receiver against his mortgagor. If there be 
 a prior mortgagee not in possession, the receiver 
 may be appointed, without prejudice to his taking 
 possession; but, if he be in possession, a receiver 
 
 (r) Atkinson v. Henshaw, 2 Ves. & B. 85 ; Kendall v. Kendall, 
 1 Hare, 152; Keed v. Harris, 7 Sim. 639. 
 
 (s) Middleton v. Dodswell, 13 Ves. 266; Browell v. Keed, 1 
 Hare, 434; Bainbrigge v. Blair, 3 Bea. 421; Skinners' Company 
 V. Irish Society, 1 M. & C. 162. 
 
OF INTERLOOUTOET ORDERS. 637 
 
 cannot be ordered against him unless the apphcant 
 will pay oflf his demand, as he states it himself. A 
 legal mortgagee cannot have a receiver, but must 
 take possession under his legal title. (<) 
 
 If there are several equitable incumbrancers the 
 Court will put the property in the possession of a 
 receiver, to apply the profits for their benefit accord- 
 ing to their respective priorities, permitting legal in- 
 cumbrancers to proceed at law ; and the appointment 
 will not prevent their so doing, though it will make 
 it necessary for them to obtain leave from the 
 Court, (u) 
 
 *A receiver has also been appointed as r^oK^^-i 
 between vendor and purchaser during a suit 
 for specific performance; but the order was made 
 under special circumstances, the purchaser not having 
 been in exclusive possession, but having had a sort 
 of mixed possession with the vendor, (v) 
 
 A receiver may also be appointed in cases of part- 
 nership, where one of the partners, having got the 
 business into his hands, is destroying the partnership 
 property, or is claiming to exclude his co-partners 
 from the concern. In this case, as all the partners 
 have an equal right to the management, and no one 
 of them has an exclusive right, the Court must ex- 
 clude all for the protection of all, and will appoint a 
 receiver to get in the assets. It cannot, however, 
 
 (0 Berney v. Sewell, 1 Jac. & W. 647. 
 
 (u) Davis V. Marlborough, 2 Sw. 138 ; Angel v. Smith, 9 Ves. 
 335 ; Brooks v. Greathead, IJ. & W. 178 ; Smith v. Effingham, 
 2 Bea. 235; Pritchard v. Fleetwood, 1 Meriv. 54. 
 
 (y) Hall V. Jenkinson, 2 Ves. & B. 125; Boehm v. Wood, 2 J 
 & W. 236; Shakel v. Marlborough, 4 Mad. 463. 
 
638 ADAMS'S DOCTEINE OF EQUITY. 
 
 undertake to carry on the trade, and will therefore 
 only interpose with a view to dissolution, (w)^ On 
 the same principle, a receiver may be appointed of a 
 mine or colliery, which is regarded rather as a trade 
 or partnership than as a mere tenancy in common, (a;) 
 In the case of a mere tenancy in common, where the 
 title is legal, it is doubtful whether the Court would 
 interfere. It might compel the tenant in possession 
 to account to his co-tenant, but would probably not 
 act against his legal possession. (?/) 
 
 There is also jurisdiction to make the order, 
 though the defendant does not sustain a fiduciary- 
 character, but insists on a distinct adverse title, 
 which title is contested in the suit. But the Court 
 will be reluctant to interfere, and will only do it if 
 gross fraud or imminent danger be shown, (z) 
 
 The appointment of a receiver, like payment of 
 P^ money *into Court, may be ordered on affi- 
 
 L -J davit before answer, or even before the de- 
 fendant has appeared, if any urgent necessity exist. 
 But the application must generally be made after 
 answer, and must be supported by the admissions of 
 the defendant, (a) 
 
 (to) Waters v.' Taylor, 15 Ves. 10 ; Groodman v. Whitcomb, 1 
 J. & W. 589 ; Hale v. Hale, 4 Bea. 369 ; Const, v. Harris, T. & 
 K. 496; Smith v. Jeyes, 4 Bea. 503. 
 
 (x) JefFreys v. Smith, 1 J. & W. 298. 
 
 (y) Tyson v. Fairclough, 2 S. & S. 142. 
 
 (z) Stilwell V. Wilkins, Jao. 280 ; Hugonin v. Baseley, 13 Ves. 
 105 ; Jones v. Groodrich, 10 Sim. 327 ; Clark v. Dew, 1 R. & M. 
 103 ; Toldervy v. Colt, 1 Y. & C. 621. 
 
 (a) Lloyd v. Passingham, 3 Meriv. 697 ; Ramsbottom v. Free- 
 man, 4 Bea. 145. 
 
 * See note 1, p. 241, supra. 
 
OF INTERLOCTJTORY ORDERS. 639 
 
 The appointment, when made, is for the benefit of 
 all parties interested, and not for that of the appli- 
 cant alone. If there be only one party interested, 
 as where a receiver is appointed of an infant's estate, 
 the possession of the receiver is considered as his 
 possession. If there are adverse claims in difierent 
 parties, the possession of the receiver is treated as 
 the possession of the party who ultimately esta- 
 blishes his right. (6) 
 
 IV. An injunction is granted to restrain a defen- 
 dant, so long as the litigation continues, from doing 
 acts productive of permanent injury, or from pro- 
 ceeding in an action at law, where an equity is 
 alleged against his legal right, (c) 
 
 The principle of injunctive relief by decree has 
 already been considered as an independent sub- 
 ject. (cZ) We are now only concerned with the in- 
 terlocutory writ issued for the protection of the 
 subject-matter until litigation is decided. 
 
 The ordinary mode of obtaining this injunction is 
 by moving after notice to the defendant ; but in par- 
 ticular cases, where giving notice might accelerate 
 the mischief, it will be granted ex parte and without 
 notice ; e. g., in cases of waste, or of negotiaiting a bill 
 of exchange, and, even where that special ground 
 does not exist, yet if the act to be prohibited is such, 
 that delay is productive of serious damage, as in 
 piracies of copyright and patent, an ex parte injunc- 
 tion may be obtained. In order to obtain an in- 
 junction ex parte, the application must be made at 
 
 (6) Bainbrigge v. Blair, 3 Bea. 421 ; Sharp v. Carter, 3 P. 
 Wms. 379. 
 
 (c) 2 Dan. C. P., ch. 32. (d) Supra, Injunction. 
 
640 ADAMS'S DOCTRINE OF EQUITY. 
 
 r*Qf^ft-i th^ *first possible moment, and all the facts 
 must be fully and honestly stated; if any 
 concealment or misrepresentation be detected, the 
 injunction will be dissolved, although the facts, if 
 truly stated, would have been sufficient to sustain 
 
 it.(e) 
 
 If the injunction be applied for before the answer, 
 it must necessarily be sustained on affidavit ; and the 
 defendant may resist it on counter affidavits ; or if it 
 has been obtained ex parte, they may move to dis- 
 solve it on counter affidavits, or may wait until he 
 has filed his answer, and then move to dissolve. 
 
 If the motion, either to grant or dissolve the in- 
 junction, is heard after answer, the admissibility of 
 affidavits is a questionable point. 
 
 If the answer denies the plaintiff's title, affidavits 
 are not admissible to support such title ; or in other 
 words, the title will not be tried before the hear- 
 ing. (/) If, however, documents of title are stated 
 in the bill, and the answer merely professes ignorance 
 respecting them, they may be verified by affidavit ; 
 but this liberty does not extend to matters of fact, [g) 
 If the answer does not deny the title, the question 
 arises, whether affidavits can be read against it in 
 proof of waste, or of acts analogous to waste, e. g., 
 mismanagement and exclusion. On this point the 
 rule is, that if affidavits have been filed before the 
 
 (e) Hilton V. Granville, 4 Bea. 130. 
 
 (/) Manser v. Jennier, 2 H. 103 ; Clapham v. "White, 8 Ves. 
 36. 
 
 (^r) Barrett v. Tickell, Jac. 156 ; Morgan v. Goode, 3 Meriv. 
 10; Ord v. White, 3 Bea. 357; Castellani v. Blumenthal, 12 Sim. 
 47; Edwards v. Jones, 1 Ph. 501. 
 
or INTERLOCUTORY ORDERS. 641 
 
 answer, the Court will read them, and also read any 
 further affidavits filed after the answer, whether the 
 injunction was obtained or not; that is, it will try 
 the question of waste, though not that of title, on 
 affidavit against the answer. But if no affidavit has 
 been filed before the answer so as to give a locus 
 standi for a hearing on affidavit, affidavits filed after 
 the answer cannot be read, (h) ^ 
 
 *The grant of the interlocutory injunction r^o^n-i 
 is discretionary with the Court ; and depends 
 on the circumstances of each case, and on the degree 
 in which the defendant or the plaintiff would re- 
 spectively be prejudiced by the grant or refusal. 
 
 If the mischief done to the plaintiff, assuming him 
 to have a right, by a continued infringement, is a 
 mere matter of profit and loss, and, therefore, sus- 
 ceptible of compensation, the Court will also consider 
 what may be the consequences to the defendant, 
 assuming him to be right, of granting an injunction; 
 and even if the anticipated act would destroy the 
 property, and affords, therefore, prima facie a fair 
 reason to interfere, yet the Court will not act as a 
 mere matter of course, but will consider whether it 
 is not possible that still greater damage would be 
 caused to the defendant by an injunction, (i) If, 
 however, an injunction is for such cause refused, and 
 the subjecf>matter of the suit is one of profit and 
 
 (K) JeflFreys v. Smith, IJ. & W. 300 ; Smythe v. Smythe, 1 
 Sw. 252 ; Lloyd v. Jenkins, 4 Bea. 230 ; Gardner v. M'Cutcheon, 
 4 Bea. 534 ; Manser v. Jenner, 2 Hare, 600. 
 
 (i) Hilton V. Granville, 1 Cr. & P. 282. 
 
 » See Kinsler v. Clark, 2 Hill C. R. 620. 
 41 
 
642 Adams's doctrine of equity. 
 
 loss, an intermediate course is often adopted, and the 
 defendant is directed to keep an account, that so, if 
 the plaintiff should establish his right, he may 
 ascertain at once the compensation due for its in- 
 fringement. (^) 
 
 The injunction, if granted, is for intermediate pro- 
 tection only, and will be cautiously excluded from 
 any further effect. If, therefore, the subject-matter 
 of the suit be not of equitable jurisdiction, the legal 
 right must be tried as speedily as possible ; and the 
 Court is bound, even though not requested by the 
 parties, to accompany its order by a provision to that 
 effect. (Z) 
 
 In the case of stock which may be transferred 
 with great facility, a more speedy protection existed 
 under the old practice, by writ of distringas out of 
 r*^^S1 *^^ Exchequer, and *service of it on the 
 Bank. The distringas was not in strictness 
 binding on the Bank, but the practice was to give 
 notice to the party serving it, if any application were 
 made for transfer, and to delay the transfer for a 
 limited time, during which an injunction might be 
 obtained. On the transfer of the Exchequer juris- 
 diction to the Court of Chancery, a similar remedy 
 was given by distringas issuable out of that Court. 
 And a further remedy was also given by a restrain- 
 ing order of the Court, to be summarily made on 
 petition or motion without bill filed, and to continue 
 in force until discharged, imperatively restraining 
 
 (/>;) Bacon v. Jones, 4 M. & C. 436. 
 
 (0 Harman v. Jones, 1 Cr. & P. 299 ; Ansdell v. Ansdell, 4 
 M. & C. 449 ; Bacon v. Jones, 4 M. & C. 436 ; Few v. Guppy, 1 
 M. & C. 507. 
 
OF INTERLOCUTORY ORDERS. 643 
 
 the Bank, or any public company, from permitting a 
 transfer or paying a dividend, (m) 
 
 The interlocutory writ against proceeding at law, 
 technically termed the common injunction, is ob- 
 tainable by the plaintiff on a motion of course, if the 
 defendant fail to appear within four days after the 
 subpoena has been served, or to answer the bill 
 within eight days after his appearance. 
 
 If the common injunction is obtained before a de- 
 claration is delivered it stays all the proceedings at 
 law. If afterwards, it only restrains execution, and 
 the plaintiff at law is at liberty to proceed to judg- 
 ment. But the plaintiff in equity, on a second mo- 
 tion supported by an affidavit, that he believes the 
 answer will afford discovery material to his defence, 
 may obtain a further order extending it to stay trial. 
 And it would seem, though not free from doubt, that, 
 on the answer coming in, this further order may be 
 discharged independently of the original injunc- 
 tion, (n) 
 
 If the defendant is diligent enough to prevent the 
 common injunction from issuing, by filing a sufficient 
 answer within the time allowed, the plaintiff must 
 move specially on the merits confessed in the answer. 
 If, on the other hand, the proceedings at law are 
 such as to afford no opportunity of *obtain- r*q5Q-| 
 ing the common injunction, a special injunc- 
 tion may be obtained on affidavit before answer ; 
 
 (to) 5 Vict. c. 5, s. 4 and 5 j Orders of November, 1841 ; Ke 
 Hertford, 1 Hare, 584 ; Ph. 129; 1 Ph. 203 ; 2 Dan. C. P., ch. 
 33. 
 
 (n) Earnshaw v. Thornhill, 18 Ves. 485 ; Kawson v. Samuel, 1 
 Cr. & P. 167. 
 
644 Adams's doctrine of equity. 
 
 but, except under very special circumstances, the 
 Court is unwilling to grant it.(o) 
 
 As soon as the defendant has put in a full answer 
 he may move to dissolve the injunction. And it is 
 then a question for the discretion of the Court whe- 
 ther, on the facts disclosed by the answer, or as it is 
 technically termed, on the equity confessed, the in- 
 junction shall be at once dissolved, or whether it 
 shall be continued to the hearing. 
 
 The general principle of decision is, that if the 
 answer shows the existence of an equitable question, 
 such question shall be preserved intact until the 
 hearing. But the particular mode of doing this is 
 discretionary with the Court. 
 
 If the plaintiff is willing to admit the demand at 
 law, and to give judgment in the action, but is un- 
 willing to pay money which it might be difficult to 
 recover back, he may protect himself by paying it 
 into Court, to be there taken care of, until the suit 
 is decided. If he desires to try his liability at law, 
 the injunction will be dissolved with liberty to apply 
 again after verdict. But, unless the defendant's right 
 at law be admitted, he will not be restrained from 
 trying it, except where it is obvious on his own 
 answer that the relief sought will be decreed at the 
 hearing. If he has already tried his right at law, 
 and obtained judgment, he will be restrained from 
 issuing execution, if it appear that there is an equita- 
 ble question to be decided, before the Court can 
 safely allow the matter to be disposed of else- 
 where, (p) 
 
 (o) Drummond v. Pigou, 2 M. & K. 168 ; Bailey v. Weston, 7 
 Sim. 666. 
 
 (jp) Playfair v. Thames Junction Railway Company, 1 R. C. 
 
OF INTERLOCUTORY ORDERS. 645 
 
 If the injunction be against a proceeding before 
 some other tribunal, and not before the Courts of 
 common law, it is not in the first instance obtained 
 as of course, but must be the subject of a special 
 application, (g) 
 
 *V. The writ of ne exeat(r) is a writ to r*q(3f)-| 
 restrain a person from quitting the kingdom 
 without the king's license, or the leave of the Court. 
 It is a high prerogative writ, and was originally 
 applicable to purposes of state only, but is now ex- 
 tended to private transactions, and operates in the 
 nature of equitable bail.' It is gran table wherever 
 a present equitable debt is owing, which if due at 
 law would warrant an arrest, and also to enforce 
 arrears of alimony in aid of the Spiritual Court, in 
 respect of the inability of that Court to require 
 bail.(s)^ It may be granted where there is a con- 
 
 640 ; Barnard v. Wallis, Cr. & P. 85 ; Bentinck v. Willink, 2 
 Hare, 11. 
 
 (2) Anon., 1 P. Wms. 301 ; M'Namara v. M'Namara, 1 Dick. 
 223. 
 
 (r) 2 Dan. C. P., ch. 34. 
 
 (s) Jackson v. Petrie, 10 Ves. 164; Gardner v. , 15 Ves. 
 
 444; Blaydes v. Calvert, 2 Jac. & W. 211; Whitehouse v. Part- 
 ridge, 3 Sw. 365 ; Sealey v. Laird, 3 Sw. 368 ; Pearne v. Lisle, 
 Amb. 75. 
 
 ' See, in accordance, Dunham v. Jackson, 1 Paige, 629 ; Mit- 
 chell V. Bunch, 2 Paige, 606 ; Johnson v. Clendenin, 5 Gill. & J. 
 468. The district judges of the Courts of the United States have 
 no authority to issue writs of 9ie exeat; Gernon v. Boccaline, 2 
 Wash. C. C. K. 130. 
 
 ' A writ of ne exeat cannot be granted, unless, 1st. There is a 
 precise amount of debt due ; 2d. It must be an equitable demand, 
 on which the plaintiff cannot sue at law, except in cases of account, 
 and a few others of concurrent jurisdiction; 3d. The defendant 
 
646 ADAMS'S DOCTRINE OF EQUITY. 
 
 current jurisdiction at law, e. g., on bills for an 
 account, or for specific performance ;' but not where 
 the claim is of legal cognizance alone, {t) 
 
 The writ is issuable if the defendant is within the 
 
 (0 Boehm V. Wood, T. & K. 332 ; Kaynes v. Wyse, 2 Meriv. 
 472 ; Morris v. M'Neil, 2 Kuss. 604; Jenkyns v. Parkinson, 2 M. 
 &K. 5. 
 
 must be about to quit the country, proved by affidavits as positive 
 as those required to hold to bail at law; Ehodes v. Cousins, 6 
 Randolph, 188. In Alabama and New York, a certain sum need 
 not be sworn to; Lucas v. Hickman, 2 Stewart, 111 ; Thome v. 
 Halsey, 7 Johns. C. R. 189. 
 
 If the party against whom a final decree is made, intends to 
 remove beyond the jurisdiction of the Court, before the decree 
 can be enforced by execution, a ne exeat will be granted ; Dunham 
 V. Jackson, 1 Paige, 629. 
 
 Where a wife had filed a bill for alimony against her husband, 
 and it appeared that he had abandoned her, without any support, 
 and threatened to leave the State, the Court, on the petition of the 
 wife, granted a writ of ne exeat repuhlica against the husband ; 
 Denton v. Denton, 1 Johns. C. R. 364. 
 
 A suit in chancery, by a judgment and execution creditor, to 
 reach equitable interests, things in action and efiects, is an equi- 
 table and not a legal demand, and the defendant may be arrested 
 on a ne exeat therein ; Ellingwood v. Stevenson, 4 Sandf. C. R. 
 366; see also Buford v. Francisco, 3 Dana, 68. 
 
 But the demand must be an equitable one, or within one of 
 the exceptional cases of concurrent jurisdiction. The writ can- 
 not be granted for a debt founded on a promissory note not due ; 
 Cox V. Scott, 5 Har. & J. 384. Nor where the defendant is an 
 executor or administrator, and there is no affidavit that assets have 
 come to his hands ; Smedburg v. Mark, 6 Johns. C. R. 138 ; 
 see also Seymour v. Hazard, 1 Johns. C. R. 1 ; Brown v. HaflF, 5 
 Paige, 235; Williams v. Williams, 2 Green's Ch. 130. 
 
 ' See Mitchell v. Bunch, 2 Paige, 606 ; Porter v. Spencer, 2 
 Johns. C. R. 169 ; Brown v. Hafi; 5 Paige, 235. 
 
OF INTEELOCUTORY ORDEES. 647 
 
 jurisdiction, although, his domicile maybe abroad, (zt) 
 but not if the plaintiff be himself resident abroad. («)" 
 In general it can only be granted after a bill is filed, 
 and it is usual, though not indispensable, to ask it 
 by the prayer, (^c) It is applied for ex parte by 
 petition or motion f and the application must be 
 supported by affidavit, stating the amount of the 
 debt, and stating that the defendant intends to go 
 abroad, or his threats or declarations to that effect,^ 
 or facts evincing his intention, and stating also that 
 the debt will be endangered by his so doing, (x) 
 
 The writ is directed to the sheriff, and requires 
 him to take security from the defendant in a spe- 
 cified amount that he will not go beyond seas, or 
 into Scotland, without leave *of the Court, p^p«n 
 and in case he refuse to give such security ^ J 
 
 («) Howden v. Eogers, 1 Ves. & B. 129 ; Flack v. Holm, 1 J. 
 & W. 415. 
 
 («) Smith V. Nethersole, 2 E. & M. 450. 
 
 (w) Collinson v. , 18 Ves. 353 j Earned v. Laing, 18 Sim. 
 
 255. 
 
 (x) Eico V. Gualtier, 3 Atk. 501 ; Hyde v. Whitfield, 19 Ves. 
 
 342 ; Collinson v. , 18 Ves. 353 ; Tomlinson v. Harrison, 
 
 8 Ves. 33 ; Stewart v. Graham, 19 Ves. 313. 
 
 * In New York, it is held that citizens of other states and 
 foreigners are, while sojourning there, liable to a writ of ne 
 exeat. The Court determines the amount in which the defendants 
 shall be held to bail ; and the sheriff must take the bond in the 
 amount directed as the penal sum ; Gribert v. Colt, 1 Hopkins, 
 496. And it may issue on demands arising abroad ; Woodward 
 V. Schatzell, 3 Johns. C. E. 412 ; Mitchell v. Bunch, 2 Paige, 
 606. 
 
 ° It seems that a writ of ne exeat will not be granted on peti- 
 tion and motion only, without a bill previously filed; Mattaoks 
 V. Tremain, 3 Johns. C. E. 75. 
 
648 Adams's doctrine of equity. 
 
 to commit him to safe custody. (3/)' If a capture be 
 made under the writ, the defendant cannot obtain 
 his discharge without giving such security, either by 
 bond with sureties, or by deposit or otherwise as 
 shall satisfy the sheriff. (2) An application to dis- 
 charge the writ, if grounded on an irregularity or 
 impropriety in the grant, may be made on affi- 
 davit, (a) But if it be on the merits, viz., because 
 the defendant is not going out of the jurisdiction, or 
 because the plaintiff has no case, the answer must 
 be first put in. (b)" 
 
 (j/) Bernal v. Donegal, 11 Ves. 43. 
 (2) Boehm v. Wood, T. & K. 340. 
 (a) Grrant v. Grrant, 3 Euss. 598. 
 
 (6) Eussell V. Ashby, 5 Ves. 98 ; Jones v. Alephsin, 16 
 Ves. 470 ; Leo v. Lambert, 3 Kuss. 417. 
 
 • See, on the nature of the security, and the conditions of the 
 defendant's discharge, McNamara v. Dwyer, 7 Paige, 239 ; Mit- 
 chell V. Bunch, 2 Paige, 606 ; Ancrum v. Dawson, McMullan's 
 Eq. 405 ; O'Connor v. Debraine, 8 Edw. C. K. 230 ; Cowdin 
 V. Cram, 3 Edw. C. E. 231. 
 
 ^ See Nixon v. Eichardson, 4 Desau. 108. 
 
OF EVIDENCE. 649 
 
 ^CHAPTER VI. [*362] 
 
 OF EVIDENCE. 
 
 The next regular step after replication is, that 
 the parties should prove their cases by evidence. 
 
 The rules of evidence are the same in equity as 
 at law. Each litigant must prove by legitimate 
 evidence so many of the facts alleged in his plead- 
 ing as are material to the decree asked or resisted, 
 and are not admitted in his suit by his opponent. 
 
 I. They must be facts material to the decree. 
 
 In reference to this doctrine, it is important to 
 observe that the decree asked or resisted, in the 
 sense in which the expression is here used, is not 
 necessarily one for the whole relief sought, but is 
 merely that decree which, according to the practice 
 of the Court, can be made in the first instance, {aa) 
 If, for example, a bill be filed for the administration 
 of assets, or for the specific performance of an agree- 
 ment for sale, the decree in the first case is in the 
 first instance for an account of assets, or for an 
 inquiry as to the parties interested therein; and, 
 in the second case, for an inquiry as to the va- 
 lidity of the vendor's title. The plaintiff is not 
 bound, therefore, before the hearing, to prove 
 every allegation in such bills, but should confine 
 himself in the one case to establish his prima 
 facie right by proof of his debt or relationship, and 
 
 (aa) Infra, decree. 
 
650 Adams's doctrine of equity. 
 
 in the other by proof of the agreement, or of such 
 
 r*SfiS1 ^^^^^ ^*^*^ *^ ^^11 l*y ^ foundation *for the 
 inquiry. (&6) And in like manner, the de- 
 fendant's e-vidence should be confined to disproving 
 those facts. 
 
 II. They must be facts not admitted in the suit 
 by his opponent. 
 
 If any facts are made the subject of express ad- 
 mission in the suit, or are admitted by the pleadings 
 as true, and the party making the admission is com- 
 petent to do so, it is, of course, unnecessary to prove 
 them by evidence. But admissions by an infant, 
 however made, whether by express agreement, or 
 by his bill as plaintiff, or his answer as defendant, 
 or by his omission as plaintiff to reply to an answer, 
 is unavailing, and the facts must be proved by evi- 
 dence. And admissions by husband and wife can- 
 not bind the wife's inheritance, (c) 
 
 The rules with respect to admissions by answer 
 have been already explained under the head of Dis- 
 covery, viz., that the answer of a defendant is evidence 
 against himself, but not against a co-defendant ; that 
 the answer, if replied to, cannot be evidence in favour 
 of the defendant, unless where a positive denial is 
 opposed to the testimony of a single witness, or where 
 the question is as to costs alone ; and that the plain- 
 tiff does not, by reading extracted passages, make 
 other passages evidence, except so far as they are 
 explanatory of the passages read. 
 
 III. The proof must be by legitimate evidence. 
 
 (bh) Law V. Hunter, 1 Russ. 100 ; Tomlin v. Tomlin, 1 Hare, 
 240. 
 
 (c) Evans v. Cogan, 2 P. Wms. 449. 
 
OF EVIDENCE. 651 
 
 The only doctrine under this head which can be 
 considered peculiar to Courts of equity regards the 
 admissibility as witnesses of parties to the suit, (d) 
 By the ordinary rules of evidence, until altered by a 
 late statute, (e) a person interested in the result of 
 the suit was inadmissible as a witness, and it is 
 obvious that this ground of objection applied more 
 forcibly to the immediate parties on the record than 
 to any other person. The general incapacity in 
 respect of interest has been abrogated by that statute, 
 but the case *of the immediate parties to the r^qci-i 
 record is expressly excepted from its effect. 
 
 If, however, the person tendered for examination, 
 though nominally a party on the record, had in 
 truth no interest in the event, he was even at law a 
 competent witness. (/) But it rarely happens that 
 at law any person is joined on the record who is not 
 interested either in the issue or in the costs. 
 
 In equity, on the contrary, it often happens that 
 parties are joined as trustees,' or otherwise without 
 possessing or claiming a beneficial interest, or that, 
 even if they have beneficial interest, it extends only 
 to some of the points at issue. The principle, there- 
 fore, which before the alteration of the law esta- 
 blished the admissibility of such persons as witnesses, 
 was one of frequent operation, and seems to be cor- 
 rectly embodied in the following rule : that where 
 
 (d) 1 Dan. C. P. 845. (e) 6 & 7 Vict. c. 85. 
 
 (/) Phillipps on Evidence, 51; "Worrall v. Jones, 7 Bing. 398. 
 
 * A trustee defendant having a legal interest altogether nominal, 
 is a competent witness as to the merits or design of the trust deed ; 
 Hawkins v. Hawkins, 2 Car. Law. Kep. 627. 
 
652 Adams's docteine of equity. 
 
 any person was made a defendant for form's sake, 
 and no decree could be had which he had any bene- 
 ficial interest in resisting/ or where he had by his 
 answer submitted to a decree, and had therefore 
 ceased to have such interest,^ or where, though 
 having an interest, he had it in respect of a part 
 only of the matters in issue, he might be examined 
 as a witness either generally, or in respect to those 
 matters in which he had no interest/ And liberty 
 
 ^ A defendant made a party pro forma only, or where, in general, 
 no decree could properly be passed against him, may be made a 
 witness for his co-defendant; Kirk v. Hodgson, 2 Johns. C. E. 
 550 ; Kagan v. Echols, 5 Geo. 71 ; Sharp v. Morrow, 6 Monr. 305 ; 
 Warren v. Sproule, 2 A. K. Marsh. 539 ; Wright v. Wright, 2 
 M'Cord C. E. 185; Butler v. Elliott, 15 Conn. 187; see, also, 
 Capeheart v. Huey, 1 Hill C. R. 405 ; Jones v. Bullock, 2 Dev. 
 C. R. 368 ; Bell v. Jasper, 2 Ired. Eq. 597. And he may be a 
 witness against a co-defendant, where he is necessarily a party, but 
 will not be affected by the decree against his co-d-efendant, and 
 does not swear in favour of his own interest ; Williams v. Beard, 
 8 Dana, 158 ; Miller v. M'Can, 7 Paige, 457. A party charged 
 as combining with others in a fraud against which relief is sought, 
 and therefore made a defendant, no particular relief being prayed 
 against him, may be a witness for his co-defendant, though liable 
 for costs; Neilson v. M'Donald, 6 Johns. C. E. 201; 2 Cow. 139. 
 But not so where he is affected by the charge, and may be liable 
 for more than the costs ; Ormsby v. Bakewell, 7 Ham. 98, 1st 
 part; Pope v. Andrews, ^1 S. & M. Ch. 135; see Whipple v. Van 
 Eensselaer, 3 Johns. C. E. 612. 
 
 " A defendant who suffers the bill to be taken as confessed, and 
 thereby enables the complainant to obtain a decree against him in- 
 dividually, is a competent witness for his co-defendant ; Holgate 
 V. Palmer, 8 Paige, 461 ; Post v. Dart, Ibid. 689 ; Lupton v. Lup- 
 ton, 2 Johns. C. E. 625. 
 
 ' The mere fact that a person is made a defendant to a bill in 
 Chancery does not render him an incompetent witness in the suit 
 as to matters in which he has no interest. Before a decree, one 
 
OF EVIDENCE. 653 
 
 SO to examine him might be obtained as of course by 
 either the plaintiff or a co-defendant, saving just ex- 
 ceptions. The application to examine him was ac- 
 companied by a suggestion that he had no interest, (g) 
 If that suggestion were untrue, the deposition was 
 disallowed at the hearing; and if the examination 
 had been by the plaintiff, he could not pray an ad- 
 verse decree against the defendant examined, nor 
 against others who might be secondarily liable, (h) 
 The act above referred to abolished the suggestion of 
 " no interest," and provides that in Courts of equity 
 any defendant may be ^examined as a wit- r*qf>e-i 
 ness, saving just exceptions, and that any 
 interest which he may have shall not be deemed a 
 just exception to his testimony, but shall only be 
 considered as affecting or tending to affect his 
 credit, {ij 
 
 The plaintiff is in all cases incompetent as a wit- 
 ness. If a co-plaintiff be desirous of his evidence, 
 and the defendant will not consent to the examina- 
 tion, he must move for leave to strike out his name 
 as plaintiff on payment of the costs already incurred, 
 
 (g) Murray v. Shadwell, 2 Ves. & B. 401. 
 (K) Massey v. Massey, 1 Beattie, 353 ; Champion v. Champion, 
 15 Sim. 101. 
 (0 6 & 7 Vict. c. 85, s. 1. 
 
 defendant may have an order for the examination of his co-defen- 
 dant as to matters in which the latter is not interested, saving to 
 the plaintiff all just exceptions. And it is not a good exception 
 that he has an interest in any other matters embraced in the cause, 
 unless these matters will be affected by his examination ; Williams 
 V. Maitland, 1 Ired. Eq. 92 ; Sproule v. Samuel, 4 Scammon, 135 ; 
 Dyer v. Martin, Ibid. 146; Allison v. Allison, 7 Dana, 92 j 
 Armsby v. Wood, Hopk. 229. 
 
654 Adams's doctrine of equity. 
 
 and to make him a defendant by amendment.^ If 
 the examination is required on behalf of a defendant, 
 it can only be had by the plaintiff's consent. (A;) 
 
 The manner of taking evidence is different at 
 equity and at law. It is taken at law viva voce, and 
 publicly; in equity it is written and secret. The 
 origin of this distinction is the difference of the ob- 
 jects which the two tribunals have in view. 
 
 The object at law is to enable the jury to give 
 their verdict on the issues joined between the parties. 
 They are not required to decide on the merits of the 
 case generally, or to elicit a legal conclusion from a 
 series of facts, but are to give their verdict on the 
 balance of testimony, affirmative and negative, direct 
 and indirect, submitted to them on the issues joined. 
 In order, therefore, that this object may be best at- 
 tained, it is necessary, not that the evidence should 
 be correctly recorded, but that at the time of its 
 being given it should be thoroughly compared and 
 sifted ; and this is done by an examination vivd voce 
 and in public. The jury are thus aided by the tone 
 and manner of the witness, as well as by his actual 
 assertions. They have, in a comparatively short 
 time, the witnesses on both sides brought under their 
 notice, their inaccuracies or obscurities corrected or 
 
 (A) Fisher v. Fisher, 2 Ph. 236. 
 
 * Leavitt v. Steenbergen, 3 Barb. S. C. R. 155. So, an appli- 
 cation by a defendant having a common interest with the plaintiffs, 
 adverse to that of the other defendants, for leave to examine a 
 plaintiff against the other defendants, is treated as if made by the 
 plaintiffs themselves, and such permission will not be granted; 
 Eckford v. De Kay, 6 Paige, 565 ; see, also, Ross v. Carter, 4 
 Hen. & Munf. 488. 
 
OF EVIDENCE. 665 
 
 explained, and the entire mass of evidence com- 
 mented on by counsel, and summed up by the Judge ; 
 and the danger of mistake or misapprehension in the 
 witnesses, as well as that of a deliberate perjury, is 
 partly remedied by the solemnity *of a public p^.„„„-, 
 trial, and in a still greater degree by the L -■ 
 searching ordeal of cross-examination. The verdict, 
 when given, is added to the record, but there is no 
 judicial record of the evidence. If the verdict is 
 complained of as being against the evidence, the 
 private notes of the Judge, or the admissions of 
 counsel, are the only materials furnished to the 
 Court ; and if the Court in its discretion grants a new 
 trial, such new trial must take place as on a new 
 issue, before a new and independent jury, who will 
 -decide according to the evidence laid before them- 
 selves. If the verdict is undisturbed, but its legal 
 effect on the question in dispute is doubted, that, as 
 a question of law, must be decided by the Court ; 
 but, for the purpose of such decision, as well as of 
 any subsequent appeal, the verdict only, and not the 
 evidence, appears upon the record. 
 
 In a Court of law, therefore, a viva voce examina- 
 tion in public is the regular mode of proof. In 
 equity, the object of the evidence is different, and so 
 also is the mode of taking it. 
 
 The trial and determination of disputed issues are 
 not the principal objects of evidence in equity ; for 
 the nature of the questions there litigated does not 
 generally give rise to such issues ; and those which 
 do occur, if they present any serious difficulty of 
 trial, are generally referred to the verdict of a jury, (l) 
 
 (J) Infra, Issue. 
 
656 Adams's DOOTRiisrE or equity. 
 
 The power, therefore, of sifting and comparing testi- 
 mony, which is the primary requisite at law, becomes 
 comparatively unimportant in equity ; and the prin- 
 cipal objects there contemplated are first, to elicit a 
 sworn detail of facts, on which the Court may 
 adjudge the equities; and secondly to preserve it in 
 an accurate record, for the use, if needed, of the 
 Appellate Court. 
 
 For this reason it is required in equity that all 
 witnesses shall be examined before the hearing, and 
 their answers taken down in writing, so that, when 
 the cause comes on for decision, the Judge may not 
 be distracted by the trial *of separate issues 
 L -"on evidence then brought forward for the first 
 time, but may give his undivided attention to the 
 decree, which the facts admitted or proved will war- 
 rant ; and that, if his decree be appealed from, the 
 Court of Appeal may have, in an authorized record, 
 all the materials on which it is founded. 
 
 The protracted nature of a written examination 
 necessarily involves the risk that defects of evidence 
 might be discovered in the course of taking it, and 
 false testimony procured to remedy them. In order 
 to avoid this risk, the witnesses are examined pri- 
 vately by an officer of the Court ; and it is an impera- 
 tive rule, that until the examination has been com- 
 pleted and the entire depositions given out, which is 
 technically termed passing publication, neither party 
 shall be made acquainted with his adversary's inter- 
 rogatories, nor with any part of the answers on either 
 side; and that, after publication, no further wit- 
 nesses can be examined without special leave. (m) 
 
 (m) 1 Dan. C. P. 948. 
 
OF EVIDENCE. 657 
 
 The secrecy thus observed must to some extent 
 involve the possibility, not only of false evidence 
 being given, but of true evidence being given in an 
 imperfect form, where a party, in the absence of his 
 opponent, so frames his interrogatories as to elicit 
 testimony respecting part only of a transaction. 
 This is an evil which cannot altogether be avoided ; 
 but it is in a great degree remedied by the rule, that, 
 in order to give weight to evidence, the facts, which 
 it is intended to support, must have been previously 
 detailed in the pleadings. Should this security 
 prove insufficient, so that a doubt exists at the hear- 
 ing whether all material facts are before the Court, 
 further inquiries may be directed and the decision 
 in the mean time delayed. 
 
 The mode of examination is by written interroga- 
 tories, which, in the case of witnesses resident within 
 twenty *miles of London, are administered p^o/^oT 
 by an officer called the examiner ; or if they L -^ 
 are resident beyond that distance, and the parties 
 are unwilling to incur the expense of bringing them 
 to town, by commissioners specially appointed for 
 the purpose. (?i) 
 
 The interrogatories, as well as the bill and answer, 
 must be signed by counsel, as a security to the Court 
 that no irrelevant or improper matter is inserted. 
 
 They are framed as a series of questions, directed 
 successively to the several facts in issue, and num- 
 bered. First Interrogatory, Second Interrogatory, and 
 so forth; and a marginal note is usually affixed to 
 
 (n) Mostyn v. Spencer, 6 Bea. 135 ; Orders of 1845, xciv.-cx. ; 
 1 Dan. C. P. 860. 
 
 42 
 
658 Adams's, doctrine of equity. 
 
 each, pointing out the witness for whom it is in- 
 tended. 
 
 In framing interrogatories the same rules must be 
 observed as in putting questions to a witness at law ; 
 viz., they must not be leading or suggestive on mate- 
 rial points ; and they must not be so framed, as to 
 embody material facts admitting of an answer by a 
 simple negative or affirmative, and thus presenting 
 to the Court the evidence, not as it would be stated 
 by the witness himself, but with the colouring 
 prompted by professional skill and a previous know- 
 ledge of the case to be proved. In guarding against 
 the latter of these objections, a risk is necessarily 
 incurred of framing the question in so general a form, 
 that a witness may unawares, or through misappre- 
 hension, omit an important fact ; and, if such omis- 
 sion should occur, the framer of the interrogatories 
 has not, like an examining counsel at nisi prius, the 
 opportunity of adding to and varying his question, 
 so as to suit the apprehension of the witness. Great 
 care is therefore requisite in so framing the interroga- 
 tories, that the witness's mind may be led into the 
 right channel of thought ; and the difficulty of effect- 
 ing this is materially diminished, *if, before 
 L -I the interrogatories are settled, an accurate 
 statement is prepared of each witness's evidence, in 
 the same manner as at nisi prius. Beyond these 
 general principles it is impossible to lay down any 
 uniform system for interrogatories, which must neces- 
 sarily vary in every instance, according to the cir- 
 cumstances of the individual case. 
 
 At the conclusion of each interrogatory the fol- 
 lowing words, denoted in the draft by the words 
 
OF EVIDENCE. 659 
 
 " Declare," &c., are inserted in the engrossment : 
 " Declare the truth of the several matters in this 
 interrogatory inquired after, according to the best of 
 your knowledge, remembrance, and belief, with your 
 reasons fully and at large ;" and at the end of the 
 set the draftsman may, if he please, add what is call- 
 ed the General Concluding Interrogatory, "Do you 
 know or can you set forth any other matter or thing 
 which may be of benefit or advantage to the parties 
 at issue, in this cause, or either of them, or that may 
 be material to the subject of this your examination, 
 or to the matters in question in this cause. If yea, 
 set forth the same," &c. (o) The addition, however, 
 is not compulsory ; , and it is generally more prudent 
 to omit it ; for, if due care ias been taken in pre- 
 paring the evidence, all matters beneficial to the 
 examining party will have been already elicited by 
 the special interrogatories; so that any evidence 
 elicited by the general one is likely to benefit his 
 adversary rather than himself 
 
 Before the witnesses are examined, the examining 
 officer is generally instructed as to the interroga- 
 tories applying to each witness. During the actual 
 examination, the examining ofiicer and the witness 
 are the only persons present, all third persons being 
 strictly excluded. The witness is then examined on 
 each interrogatory in order, his answers being taken 
 down on paper, and is not permitted to read, or hear 
 read, any other interrogatory, until that in hand be 
 fully answered. 
 
 *When all the interrogatories have been poyn-i 
 gone through, the deposition is read over to 
 
 (o) 1 Dan. C. P. 858. 
 
660 Adams's doctrine of equity. 
 
 the witness, who, after correcting any error or omis- 
 sion, signs it. The affixing of his signature completes 
 his examination, and he cannot be again examined 
 on behalf of the same party, {p) 
 
 If any of the interrogatories are such as the wit- 
 ness is not bound to answer, e. g., if they tend to ex- 
 pose him to a penalty or forfeiture, or involve a 
 breach of professional confidence, he may decline to 
 answer them, stating at the same time on oath his 
 reasons for so doing ; a proceeding which is some- 
 what inaccurately called a Demurrer to Interroga- 
 tories. The examiner or commissioner takes down 
 the statement in writing, and the objection is heard 
 and decided by the Court, (g) If the witness himself 
 does not object to the question, and its impropriety 
 depends on general grounds, and not on such as are 
 personal to himself, as where it involves a breach of 
 professional confidence, or where the interrogatories 
 are leading, or the depositions scandalous, or where 
 any serious irregularity has occurred in taking them, 
 the Court, on motion within a reasonable time, will 
 suppress the depositions, (r) 
 
 The witnesses examined in chief by either party 
 may be cross-examined by his opponent; and the 
 interrogatories filed for this purpose, which are 
 termed Cross Interrogatories, are in all respects simi- 
 lar to the interrogatories in chief, except that they 
 
 O) Cockerell v. Cholmely, 3 Sim. 313; Whitaker v. Wright, 
 3 H. 412. 
 
 (2) Parkhurst v. Lowten, 2 Swanst. 206; Langley v. Fisher, 5 
 Bea. 443 ; Carpmael v. Powis, 1 Ph. 687. 
 
 (f) Shaw V. Lindsey, 15 Ves. 381 ; Healey v. Jagger, 8 Sim. 
 494 ; Mostyn v. Spencer, 6 Bea. 135. 
 
OF EYIDENCE. 661 
 
 are not subject to objection on the ground of leading 
 the witness. It is, however, very seldom that any 
 good result is effected by a cross-examination in 
 equity ; for it is conducted in ignorance of the ques- 
 tions in chief, and therefore, as applied to the adver- 
 sary's case, is uncertain and often dangerous ; and it 
 cannot be applied, as at nisi prius, to the proof of an 
 independent *case. If the evidence of the 
 witness is required for that purpose, he may '- -• 
 be examined on original interrogatories; but his 
 cross-examination must be confined to those points 
 on which he has been already examined in chief (s) 
 
 The time for publishing the depositions is fixed by 
 the general orders of the Court, (t) If either party 
 wishes to delay this step, in order to complete the 
 examination of his witnesses, he must apply to the 
 Master to whom the cause stands referred, to enlarge 
 the publication for a further time. And, even after 
 publication has nominally passed, yet if the deposi- 
 tions have continued secret, and, through surprise or 
 accident without blameable negligence, either party 
 has failed to examine his witnesses, a similar indul- 
 gence may be obtained. An order, however, for 
 this latter purpose, although in form for enlarging 
 publication, is in reality for leave to examine, not- 
 withstanding publication passed, and must be ob- 
 tained by application to the Court, {u) 
 
 After the depositions have been published and 
 read, no further evidence is admissible without spe- 
 cial leave, except evidence to discredit a witness, 
 either by impeaching his general credibility, or by 
 
 (s) 1 Dan. C. P. 856. (<) Orders of 1845, cxi., cxiii. 
 
 (u) Carr v. Appleyard, 2 M. & C. 476. 
 
662 Adams's doctrine of equity. 
 
 showing him to have sworn falsely in a part of his 
 evidence not material to the issue in the cause. 
 With respect to the material parts of his evidence, 
 such discretionary evidence is not admissible, lest, 
 under the pretence of impeaching his credibility 
 new evidence should be introduced, (v)' 
 
 The rule excluding evidence after publication 
 passed, is subject to the discretion of the Court. 
 And the infirmity of written testimony taken in the 
 absence of both Judge and counsel, and without any 
 means of rectifying slips while the examination pro- 
 ceeds, renders it sometimes necessary to apply for 
 a relaxation. Permission has accordingly been 
 granted to examine witnesses after publication, 
 *where the interrogatories originally exhi- 
 '- -I bited have failed of effect, either by a sup- 
 pressal of the depositions on the ground of leading, 
 or by reason of the questions being improperly 
 framed, or being misunderstood by the witness, 
 errors which at law, where both Judge and counsel 
 are present, would have been remedied by putting 
 the question in a better form, (w) The same indul- 
 gence has been given where the plaintiff had relied 
 on admissions in the answer, which were held insuf- 
 ficient or ineffectual at the hearing; and where, 
 through the inadvertence of counsel, the plaintiff" 
 had omitted to giv^ evidence on a point which, 
 though material to the relief sought, was not really 
 contested in the cause. But the Court must be 
 
 (y) 1 Dan. C. P. 948. (w) 1 Dan. C. P. 942. 
 
 * See, on this point, Gass v. Stinson, 2 Sumner, 605 ; Troup v. 
 Sherwood, 3 John. C. K. 558 ; Evans v. Boiling, 5 Ala. 550. 
 
OF EVIDENCE. 663 
 
 satisfied by affidavit, or otherwise, that the slip has 
 been wholly accidental, and has not been purposely 
 made in order to have an opportunity of re-examining. 
 And there does not appear to be any instance where 
 liberty has been given to supply evidence on the ac- 
 tual question in dispute, (cc) The regular mode of 
 obtaining permission to examine witnesses after 
 publication is by a distinct motion before the hear- 
 ing; but if the necessity is not sooner discovered, 
 the cause may be directed at the hearing to stand 
 over, with liberty to exhibit interrogatories to supply 
 the defect. Orders have occasionally been made for 
 a reference to the Master where such course has not 
 been resisted, but such a reference is in truth a sub- 
 stitution of the Master for the Court to decide on the 
 evidence in the cause, and the more regular course 
 is by leave to exhibit interrogatories, (y) 
 
 The only exceptions to the system of taking evi- 
 dence on written interrogatories and before publi- 
 cation, are in the case of documents in the custody 
 of a public officer, which are proved by the officer's 
 testimony to that fact, and of *documents, r*QYo-i 
 the authenticity of which is not impeached, 
 and which only require the proof of handwriting, or 
 the evidence of an attesting witness. In these cases 
 interrogatories may be dispensed with, and the evi- 
 dence given by affidavit at the hearing, a method 
 
 (x) Cox V. Allingham, Jac. 337 ; Hood v. Pimm, 4 Sim. 101 ; 
 Stanney v. Walmsley, 1 M. & C. 861 ; Hughes v. Eades, 1 Hare, 
 486 J Woodgate v. Field, 2 Hare, 211 j Attorney-General v. 
 Severne, 1 Coll. 813 ; Cass v. Cass, 4 Hare, 278. 
 
 (y) Hughes v. Eades, 1 Hare, 486 ; Leohmere v. Brasier, 2 
 Jac. & W. 288. 
 
664 Adams's doctrine of equity. 
 
 recently substituted for the former one, of a vivd 
 voce examination of the witness. This exception 
 does not apply where the authenticity of the docu- 
 ment is impeached, or where more than the mere 
 handwriting or execution must be proved, e. g., in 
 proving a will of real estate, where not only the exe- 
 cution but the sanity of the testator must neces- 
 sarily be shown, or in proving the execution of a 
 deed where a particular form of execution is re- 
 quisite. In such cases proof by affidavit is not 
 available, but the evidence must be taken on inter- 
 rogatories with the regular opportunity to cross- 
 examine. (2)' 
 
 After publication has passed, it is the plaintiff's 
 duty to set down the cause for hearing, and to serve 
 a subpoena to hear judgment, {a) If he fails to do. so 
 in proper time, the defendant may move to dismiss 
 the bill for want of prosecution, or he may set the 
 cause down at his own request, and serve a subpoena 
 to hear judgment on the plaintiff. Formerly the 
 plaintiff might, at any time before the decree, dis- 
 miss the bill upon payment of costs, as a matter of 
 
 (z) 43d Order of August, 1841 ; Maber v. Hobbs, 1 Y. & C. 
 585 ; Attorney-Greneral v. Pearson, 7 Sim. 309 ; Brace v. Blick, 
 7 Sim. 619 ; Lak^ v. Skinner, 1 Jao. & W. 9. 
 
 (a) 2 Dan. C. P. 955, 960. 
 
 ' In New York, if a document intended to be produced is a deed 
 requiring proof by a witness, or a certified copy of a record which 
 requires the examination of a witness to prove it genuine, the 
 party must prove it in the usual way before the examiner, or must 
 obtain an order for leave to prove it at the hearing, although it is 
 set out or referred to in the pleadings ; Pardee v. De Gala, 7 
 Paige, 135. 
 
OF EVIDENCE. 665 
 
 course, witliout prejudicing his right to file a new 
 bill for the same matter. But now, if after the cause 
 is set down, the bill is dismissed, either on the plain- 
 tiff's own application or by reason of his default when 
 the cause is called on to be heard in Court, such 
 dismissal is equivalent to a dismissal on the merits, 
 and may be pleaded in bar to another suit for the 
 same matter. (6) 
 
 (6) Ord. May, 1845, cxvii. 
 
666 Adams's doctrine of equity. 
 
 [*374] *CH AFTER VII. 
 
 OF THE HEARING AND DECREE. 
 
 At the hearing of the cause the pleadings and 
 evidence are stated, and the Court makes its decree. 
 If the defendant appears it is an ordinary decree ; if 
 he does not appear at the hearing it is a decree by 
 default; (a) and if he has never appeared in the 
 suit, or if after appearance he has neglected to answer, 
 it is a decree pro confesso. (6) The minutes of the 
 decree are then prepared by the registrar, and de- 
 livered by him to the parties. If it be doubted 
 whether they correctly express the judgment of the 
 Court, they may be discussed either on a motion to 
 vary them, or by obtaining leave to have the cause 
 spoken to on minutes. After the minutes have been 
 finally settled the decree is drawn up, passed, and 
 entered. The only remaining step is the enrolment 
 of the decree, which renders it conclusive in the 
 Court of Chancery, and precludes any subsequent 
 
 (a) With respect to decrees by default, see 44th Order of Au- 
 gust, 1841, and 1 Smith, C. P. 254 ; 2 Dan. C. P. 990. 
 
 (6) With respect to decrees pro confesso, see 11 Geo. 4 & 1 
 Wm. 4, c. 36; 3 & 4 Viet. o. 94; 4 & 5 Vict. c. 52; 9th Order 
 of August, 1841 ; Orders of May, 1845, Ixxvi.-xcii. ; 1 Smith, 
 C. P. 231; 1 Dan. C. P. 479. 
 
OP THE HEARING AND DECREE. 667 
 
 variation in its terms except by an appeal to the 
 House of Lords, (c) 
 
 The practical details of procedure in preparing a 
 decree are not the subjects of our present considera- 
 tion, which will be devoted rather to the nature of 
 decrees themselves. 
 
 *Decrees, considered in this light, will be r^o^r-. 
 divided into Preliminary and Final. The 
 preliminary decree provides for the investigation of 
 questions which are material either in determining 
 on subsequent steps, or in deciding the issue between 
 the parties. The final decree, called the Decree on 
 Further Directions, or on the Equity reserved, ((Z) 
 disposes ultimately of the suit. 
 
 The causes which create a necessity for a prelimi- 
 nary decree, are four in number ; viz., 1. That in the 
 course of the suit a dispute has arisen on a matter 
 of law, which the Court is unwilling to decide ; 2. 
 That a similar dispute has arisen on a matter of fact; 
 3. That the equity claimed is founded on an alleged 
 legal right, the decision of which the Court of Chan- 
 cery declines to assume; and 4. That there are 
 matters to be investigated, which, although within 
 the province of the Court, are such as the presiding 
 Judge cannot at the hearing effectually deal with. 
 To obviate these impediments the preliminary decree 
 directs, 1. A case for a Court of law ; 2. An issue 
 for a jury ; 3. An action at law, to be determined in 
 the ordinary course ; or 4. A reference to one of the 
 Masters of the Court, to acquire and impart to it the 
 necessary information. Each of these methods of 
 
 (c) 2 Dan. C. P., ch. xxiv. 
 
 Id) Bruin v. Knott, 12 Sim. 453. 
 
668 Adams's doctrine op equity. 
 
 inquiry may be also adopted on interlocutory appli- 
 cations by motion or petition,(e) but, as a part of the 
 regular proceedings of the Court, they properly occur 
 under the preliminary decree, and will be now most 
 fitly considered. 
 
 1. A case for the opinion of a Court of law is di- 
 rected, where a question of law arises incidentally in 
 a suit. . The direction is not made necessary by any 
 want of jurisdiction; for, subject to any restraint 
 which its own discretion may impose, the Court has 
 jurisdiction to decide every question, whether of law 
 or fact, incidentally brought before it. If, however, 
 r*^7fi1 * doubtful question of law arises, which can 
 
 be *effectually separated from the equitable 
 matter, its ordinary practice is to direct, on the ap- 
 plication of either party, (/) that a case may be 
 made for the opinion of the common law Court, re- 
 serving its decision on the consequent equities until 
 after the Judges shall have given their certificate. 
 
 The certificate of the Judges is usually adopted 
 by the Court, and a decree made in conformity with 
 it. But it is not absolutely binding ; and if the 
 Judge in equity be still in doubt, he may return the 
 matter for reconsideration to the same, or to another 
 Court of law ; or may, if he think fit, decide in op- 
 position to the certificate, (g) 
 
 2. An issue is directed where an incidental ques- 
 tion of fact is so involved in doubt by conflicting or 
 
 (e) Ansdell v. Ansdell, 4 M. & C. 449 ; Lancashire v. Lan- 
 cashire, 9 Bea. 259. 
 
 (/) Morrioe v. Langham, 11 Sim. 280. 
 
 (y) Landsdowne v. Landsdowne, 3 Bligh. 0. S. 86 ; Spry v. 
 Bromfield, 12 Sim. 75; Muddle v. Fry, Mad. & G. 270 ; Northam 
 Bridge Company v. Southampton Kailway Company, 1 Sim. 42. 
 
OF THE HEARING AND DECREE. 669 
 
 insufficient evidence, that the Court, considering the 
 inefficacy of written testimony, is desirous of refer- 
 ing it to the verdict of a jury. (A) It can, however, 
 only be adopted where the evidence creates a doubt, 
 and not as a substitute for omitted evidence ; and, 
 therefore, the party claiming the issue must first 
 prove his case by regular depositions. (*') ' The form 
 of an issue was formerly that of an action on a 
 wager, assumed to have been made respecting the 
 fact in dispute, but this fiction is now dispensed 
 with, and the question may be referred to the jury 
 in a direct form. Qc) 
 
 The result of an issue is not necessarily a mere 
 general verdict, but liberty may be given to take a 
 special verdict, or a special case.(Z) And a direc- 
 tion is frequently given, that if the substance of the 
 issue is found, but with special circumstances, which 
 
 (h) Moons V. De Bemales, 1 Russ. 301 ; Lloyd v. Wait, 1 Ph. 
 61. 
 
 (i) Clayton v. Meadows, 2 H. 29; Whitaker v. Newman, 2 H. 
 302. 
 
 (^) 8 & 9 Vict. c. 109, s. 19. 
 
 (0 Clayton v. Nugent, 1 Coll. 362. 
 
 ' A chancellor may decide every question of fact himself; but 
 any question he considers very doubtful, he may and should refer 
 to a jury. But the verdict is to satisfy the conscience of the 
 chancellor, and if he is not satisfied with it, he should disregard 
 it ; on the other hand, if he concurs with the jury, or if his mind 
 still oscillates, he should allow the verdict to be decisive ; Lee v. 
 Beatty, 8 Dana, 207. The practice of referring doubtful questions 
 to a jury is not confined to those cases where witnesses are to be 
 introduced, but when the chancellor is perplexed with doubtful 
 questions of fact, he may have the aid of a jury, as well where the 
 decision must be upon the written evidence in the record, as 
 where oral testimony is to be introduced ; Ibid. 212. 
 
670 Adams's docthine of equity. 
 
 may be material in measuring the relief, the special 
 matter shall be endorsed on the postea. (to) 
 r*S771 *'^^^ Court will also provide that the issue 
 shall eflfectually raise the real question, 
 cleared of all extrinsic matter, by directing all re- 
 quisite admissions to be made ; and will secure its 
 satisfactory investigation, by compelling the parties 
 to produce at the trial all material documents in 
 their possession or power. 
 
 The privileges of an heir at law and of a rector 
 or vicar, in suits for establishing a will or modus, to 
 demand an issue as a matter of right, have already 
 been considered in treating of the jurisdiction for 
 sucK establishment, (m) With these exceptions the 
 granting of an issue is discretionary with the Court, 
 and the attendant expense and delay will only be 
 incurred when, in the exercise of a sound discretion, 
 it is deemed necessary, (o) 
 
 The same discretion is exercised after a verdict 
 has been returned. The object of an issue, like that 
 of a case, is not to bind the Court, but to satisfy its 
 conscience. If, therefore, the verdict, coupled with 
 the information of the Judge's notes, does not afford 
 satisfaction, a new trial will be directed, although 
 there be no surprise or fraud, nor manifest miscar- 
 riage, and the verdict be one which at common law 
 would be undisturbed, (p) And even though no 
 
 (m) White v. Lisle, 3 Sw. 345. 
 
 (n) Supra, Tithes ; Testamentary Assets. 
 
 (o) Short V. Lee, 2 J. & W. 495; Hampson v. Hampson, 3 
 Ves. &. B. 43. 
 
 (p) Bootle V. Blundell, 19 Ves. 500 ; Northam Bridge Company 
 V. Southampton Railway Company, 11 Sim. 42 ; East India Com- 
 pany V. Bazett, Jac. 91. 
 
OF THE HEARING AND DECREE. 671 
 
 new trial is sought, yet when the cause is brought 
 on for further directions, the Court, if it thinks that 
 the issue as tried does not answer the purpose 
 intended, may direct a new one to be framed ; or 
 may, on reconsideration of the evidence, decide at 
 once against the verdict. (2) In suits relating to 
 land, and seeking to bind the inheritance, a direction 
 for a new trial is not unfrequent, though the original 
 verdict may be free from objection, but it is not a 
 matter of right, (r) 
 
 *3. An action at law is directed where the p, „_ ., 
 equity is based on a disputed legal right, but L -J 
 the trial of such right at law is prevented either by 
 equitable impediments, which the Court is asked to 
 remove, or by the mere pendency of the suit itself; 
 e. g., where an heir at law is unable to bring an 
 ejectment, by reason of an outstanding mortgage or 
 term, or where the bill seeks an injunction against 
 the infringement of a disputed patent. 
 
 In this class of cases there is not a mere point of 
 law or fact incidentally in dispute, as to which the 
 Court, for its own satisfaction, seeks the aid of 
 another tribunal ; but there is a general question of 
 right, determinable as such by the ordinary Courts, 
 and requiring a decision, according to the course of 
 those Courts, both of disputed facts and of the law as 
 applicable thereto. The general rule, therefore, is, 
 that where the foundation of a suit is a legal demand, 
 on which the judgment of a Court of law, whether 
 
 (2) Armstrong v. Armstrong, 3 M. & K. 45. 
 
 (r) Locke v. Colman, 2 M. & C. 42 ; White v. Wilson, 13 
 Ves. 88 ; Baker v. Hart, 3 Atk. 542 ; Wilson v. Beddard, 12 
 Sim. 28. 
 
672 Adams's doctrine of equity. 
 
 obtained on a verdict or in any other shape, ought 
 to be conclusive, the Court of Chancery will not 
 direct a case or issue, but will either order an action 
 to be brought, providing that the term or other like 
 impediment shall not be set up as a defence at law, 
 or will retain the bill for a limited period, with 
 liberty for the plaintiff to proceed at law. (s) The 
 Court will not in general retain the bill unless it 
 thinks that, if the action succeeds, a valid equity 
 will exist ; but the retainer is not conclusive on the 
 point, and the decree, on further directions, may be 
 against the plaintiff, (t) If there are any persons 
 equitably interested, and who cannot therefore be 
 parties at law, they will have liberty given them to 
 attend the trial, and to make such defence as they 
 may be advised. Provision will also be made for a 
 satisfactory trial, by directing admissions by the 
 parties, and production of documents, as in the case 
 of issues. But the Court of Chancery assumes no 
 n^.„»q-, jurisdiction over the action; and if *either 
 party be dissatisfied with the result, a new 
 trial must be moved for in the Court of law. 
 
 4. A reference to the Master is generally made 
 for one of the three following purposes, viz., the pro- 
 tection of absent parties against the possible neglect 
 or malfeasance of the litigants ; the more effectual 
 working out of details, which the Judge sitting in 
 Court is unable to investigate ; and the supplying 
 
 (s) Pemberton v. Pemberton, 13 Ves. 298 ; Bootle v. Blundell, 
 19 Ves. 500 ; Waterford v. Knight, 11 Clarke & F. 662 ; Butlin 
 V. Masters, 2 Ph. 290. 
 
 (t) Harmood v. Oglander, 6 Ves. 225. 
 
OP THE HEARING AND DECREE. 673 
 
 defects or failures in evidence.* And it differs 
 materially from a case, an issue, or an action, be- 
 cause these steps, when directed, are rather transfers 
 to another tribunal than steps of procedure in the 
 Court itself But a reference to a Master is an 
 ordinary step in the cause, and comparatively few 
 causes of importance are decided without one or 
 more such references. 
 
 1. The reference for the protection of absent 
 parties is made where a claim, or the possibility of 
 a claim, to the property in suit belongs to creditors 
 or next of kin, or other persons entitled as a class, 
 so that it is uncertain at the hearing whether they 
 are all before the Court. In order to remove this 
 uncertainty, a reference is made to the Master to 
 ascertain the fact before any step is taken for ascer- 
 taining or distributing the fund.(M) And, on the 
 same principle, if a proposal of compromise or of ar- 
 rangement by consent is made where any of the 
 parties are infants or femes covert, and therefore 
 unable to exercise a discretion, the Court, before 
 
 (m) 2 Dan. C. p. 983 ; Fisk v. Norton, 2 Hare, 381. 
 
 ' The Master's office is a branch of the Court; Stewart v. Tur- 
 ner, 3 Edw. C. K. 458. The Master, in his ministerial charac- 
 ter, is bound strictly to follow the instructions of the Court ; Fen- 
 wicke V. Gibbes, 2 Desau. 629. A reference will not be ordered 
 to inquire relative to a fact, constituting the gist of the contro- 
 versy, and put in issue by the pleadings ; Lunsford v. Bostion, 1 
 Dev. Eq. 483. Where the evidence in a case is all written, and 
 a decree thereon can be rendered without difficulty, a reference to 
 a Master is unnecessary; Levert v. Redwood, 9 Porter, 79. As 
 to the practice in taking testimony on an order of reference to a 
 Master, see Remsen v. Eemsen, 2 Johns. C. R. 495. 
 
 43 
 
674 Adams's doctrine of equity. 
 
 sanctioning the proposal, will ascertain by a refe- 
 rence, whether it is for their benefit.^ 
 
 2. A reference for the working out of details is 
 principally made in matters of account, when the 
 Court declares that the account must be taken, and 
 refers it to the Master to investigate the items.^ 
 The same principle applies to the investigation of a 
 vendor's title; for the Court cannot undertake to 
 peruse the abstract, and that duty devolves on the 
 Master.^ In like manner it will be referred to the 
 Master to settle conveyances or other deeds, to super- 
 r*^801 ^'^^^"^ *sales, to appoint trustees, receivers, 
 and guardians, and so forth. 
 
 For the same reason, the Masters are deputed to 
 judge of impertinence or insufficiency in pleadings, 
 the decision of which must depend on a minute ex- 
 amination of their details. And it is now ordei'ed 
 by statute that they shall determine all applications 
 for time to plead, answer, or demur, for leave to 
 amend bills, for enlarging publication, and all such 
 
 ' Where a suit is instituted on behalf of an infant, by a prochein 
 ami, the Court, on a suggestion of its being improperly instituted, 
 will refer it to a Master to inquire into the circumstances, and to 
 report whether the suit is for the benefit of the infant ; Garr v. 
 Drake, 2 Johns. C. E. 542. 
 
 " See Hart v. Ten Eyck, 2 Johns. C. K. 513 ; Consequa v. Fan- 
 ning, 3 Johns. C. E. 591 ; Barrow v. Khinelander, 3 Johns. C. E. 
 614 ; Maury v. Lewis, 10 Yerg. 115. 
 
 = And where the plaintiff, in a bill for specific performance, 
 shows his right to a conveyance, but the defendant has, by sale or 
 otherwise, put it out of his power to convey, it may be referred to 
 a Master to ascertain the damages ; Woodcock v. Bennet, 1 Cowen, 
 711. Upon a bill for specific performance, the title will not be 
 referred, where the nature of it is distinctly seen ; Wilbanks v. 
 Duncan, 4 Desau. 536. 
 
OF THK HEARIKG AND DECREE. 675 
 
 other matters relating to the conduct of suits, as the 
 Lord Chancellor, with the advice and assistance of 
 the Master of the Rolls and Vice Chancellor, or one 
 of them, shall by any general order or orders direct, 
 subject to an appeal, by motion to the Lord Chan- 
 cellor, Master of the Rolls, or Vice Chancellor, but 
 without any further appeal, (v) 
 
 On bills for a partition, for settling boundaries, 
 and for assignment of dower, the appointment is not 
 made by reference to a Master, but, in analogy to 
 the process at law, to commissioners specially ap- 
 pointed, reserving all further directions until after 
 their return. 
 
 Formerly the mode of directing these accounts 
 and inquiries was by a preliminary decree at the 
 hearing of the cause, reserving the ultimate decision 
 until after a report. In the case of a bill for specific 
 performance, when the title only is in dispute, it has 
 long been the practice to refer it on motion, either 
 before or after answer, (it;) But in the generality of 
 cases the direction was delayed till the hearing, and 
 the consequent necessity of two successive decrees 
 was frequently productive of needless delay and 
 expense. 
 
 In order to remedy this evil, it has been ordered 
 that " in all cases in which it shall appear that cer- 
 tain preliminary accounts and inquiries must be 
 taken and made, before the rights and interest of 
 the parties to the cause can be ascertained, or the 
 questions therein arising can be determined, the 
 
 (w) 3 & 4 Wm. 4, c. 94, s. 13. 
 
 (to) Balmanno v. Lumley, 1 Ves. & B. 224 ; Matthews v. Dana, 
 8 Mad. 470. 
 
676 ADAMS'S DOCTRINE OF EQUITY. 
 
 r*£!Si 1 pl^i'^tiflf shall be at liberty, at any time, *after 
 *- ^ the defendants shall have appeared to the 
 bill, to move the Court, on notice, that such inquiries 
 and accounts shall be made and taken, and that an 
 order, referring it to the Master to make such in- 
 quiries, and take such accounts, shall thereupon be 
 made, without prejudice to any question in the cause, 
 if it shall appear to the Court that the same will be 
 beneficial to such (if any) of the parties to the cause 
 as may not be competent to consent thereto, and that 
 the same is consented to by such (if any) of the de- 
 fendants as, being competent to consent, have not 
 put in their answers, and that the same is consented 
 to by, or is proper to be made upon, the statements 
 contained in the answers of such (if any) of the de- 
 fendants as have answered the bill.(a;) 
 
 This order, however, only applies where it is ob- 
 vious that the accounts and inquiries must be directed 
 at the hearing, as incidental to the admitted allega- 
 tions of the bill. If, in order to warrant them, it is 
 necessary that parts of the bill should be established 
 by evidence, the order does not apply, e. g., where a 
 person alleging himself to be next of kin, files his 
 bill against the administrator, who does not admit 
 that he sustains the character. In this case an in- 
 quiry as to the other next of kin, and an account of 
 the estate, cannot be directed on motion. The same 
 principle was followed in a suit for specific perfor- 
 mance, where the purchaser alleged that the contract 
 had been rescinded through the vendor's failure in 
 showing title by a specified day. The vendor moved 
 for the ordinary inquiry, whether he could make a 
 
 (x) 5th Order of May, 1839, 
 
OF THE HEARING AND DECREE. 677 
 
 good title, and when first such title was made, with- 
 out prejudice to any question in the cause. But it 
 was refused, because such an inquiry assumed that 
 a title shown after the specified time would be avail- 
 able, and therefore if the purchaser's objection suc- 
 ceeded at the hearing, the inquiry might be useless. 
 The plaintiff then ofiered to take an inquiry whether, 
 on the day of the alleged *rescission, or on r*qQo-| 
 an earlier day, a good title had been shown. 
 But that inquiry was also refused, because, although 
 in any view of the case an affirmative answer would 
 decide the case, yet, if the purchaser's objection were 
 overruled, a negative one would lead to no result, {y) 
 
 In cases not falhng within the scope of that order 
 the former practice still continues. 
 
 3. The third class of cases in which a reference 
 to the Master is made, is where it becomes necessary 
 to supply defects or failures in evidence. It has been 
 already mentioned that such a reference is occa- 
 sionally made for ascertaining the truth of an allega- 
 tion, with respect to which there has been an acci- 
 dental omission of evidence, but that such course is 
 not strictly regular. The circumstances under which 
 the reference would, in regular course, be made, are 
 where the evidence already given has induced a 
 belief in the Court that new matter might be elicited 
 by inquiry, or where allegations have been made in 
 the answer, though not established by proof, which, 
 if true, would be material in the cause, (z) 
 
 Q/) Topham v. Lightbody, 1 Hare, 289 ; Curd v. Curd, 2 Hare, 
 116; Breeze v. English, 2 Hare, 118; Clifford v. Turrell, 1 N. 
 C. C. 138. 
 
 (z) Broadhurst v. Balguy, 1 N. C. C. 16 ; Conuop v. Hayward, 
 
678 Adams's doctrine of equity. 
 
 In directing a reference to the Master, the Court 
 provides for a full investigation of the matter referred 
 by a direction that the parties shall produce, on oath, 
 all documents in their power, and shall be examined 
 on interrogatories as the Master shall direct, (a) 
 And he has a similar power of examining, either on 
 interrogatories or vivd voce, any creditors or other 
 persons who, by coming in to claim before him, may 
 render themselves quasi parties to the suit. (6) 
 
 The method in which the Master proceeds is by 
 issuing warrants from time to time, directing all par- 
 ties concerned to attend before him at the time and 
 r^ooq-i for the purposes *therein mentioned. The 
 proceedings under a warrant may be attended 
 by all persons beneficially interested, whether actual 
 parties to the suit, or such as have become quasi 
 parties by having come in and established a claim, 
 whenever the object is such as may affect their 
 interests, or increase or diminish their proportion in 
 the fund. And, on the same principle, all such per- 
 sons are entitled to take copies of any written pro- 
 ceeding brought into the oflRce, or of any part thereof 
 which affects their interest. 
 
 On the proceedings being thus commenced, all the 
 parties who take an active part in the inquiry lay 
 before the Master written narratives, called States 
 of Facts, of the circumstances on which they respec- 
 tively rely ; and as the report is ultimately formed 
 on the basis of these states of facts, it is material 
 they should be carefully drawn. The parties then 
 
 1 N. C. C. 33 ; Miller v. Gow, 1 N. C. C. 56 ; Maomahon v. Bur- 
 chell, 2 Ph. 127. 
 
 (a) 9th Order of 1828. (6) 72d Order of 1828. 
 
OF THE HEARING AND DECREE. 679 
 
 proceed to support them by proof, consisting, first, of 
 the depositions, aflBdavits, and other evidence already- 
 used in the cause ; (c) and, secondly, of any addi- 
 tional evidence which may be produced in the office, 
 subject, however, to the restriction that a witness 
 who has been already examined in the cause cannot 
 be re-examined before the Master by the same party 
 without leave of the Cou.rt.{dy The additional evi- 
 dence thus brought forward ought in strictness to be 
 given on interrogatories or vivd voce,(e) but it is usual 
 to substitute affidavits by express or tacit consent.^ 
 During the progress of the inquiry, the several states 
 of facts may, from time to time, be amended, or new 
 ones brought in and supported by further evidence, 
 until either publication has passed, where the evi- 
 dence has been taken on interrogatories, or the war- 
 rant has been issued for preparing the report. (/) 
 
 *After the warrant for preparing the report r-^„Q,-. 
 no further evidence can be received, but the ■- J 
 Master will proceed to settle and sign his report on 
 the evidence as it then stands. At this stage of the 
 
 (c) 65th Order of 1828. 
 
 (d) Willan v. Willan, 19 Ves. 590 ; Kowley v. Adams, 1 M. & 
 K. 545 ; Whitaker v. Wright, 3 Hare, 412 ; England v. Downs, 
 6 Bea. 281. 
 
 (e) 69 th Order of 1828. 
 
 (/) Trotter v. Trotter, 5 Sim. 383 ; Nelson v. Bridport, 6 Bea. 
 295; 67th Order of 1828. 
 
 ■ See Kemsen v. Remsen, 2 Johns. C. E. 501. If the defendant 
 wishes to controvert any allegations in the bill, he should put them 
 in issue by plea or answer; and neglecting this, he is precluded 
 from introducing evidence for that purpose before the Master on 
 reference ; Ward v. Jewett, Walk. C. E. 45. 
 
 ' See Story v. Livingston, 13 Pet. 359. 
 
680 Adams's doctrine or equity. 
 
 proceedings, and whilst the report is still in draft, it 
 is the duty of any dissatisfied party to lay before 
 him written objections, specifying the point in which 
 he considers it erroneous. If that be not done, 
 exceptions, which, as we shall presently see, are the 
 mode of contesting it before the Court, will not be 
 entertained. The exceptions, when taken, though 
 not necessarily identical in word, must in substance 
 agree with the objections, and the practice generally 
 is to prepare the objections in the form of the 
 intended exceptions, and, on their disallowance, to 
 convert them into exceptions. If the objections are 
 allowed by the Master, he will alter his draft accord- 
 ingly ; and it will then be the business of the other 
 side to object, as they may be advised. 
 
 When the Master has disposed of all objections, 
 and come to a conclusion on the matters referred, 
 he settles and signs his report, and such report is 
 then filed. The ordinary mode of framing a report 
 is to refer separately to each of the directions in the 
 decree, and then, with respect to each direction, first 
 to mention on what evidence the Master has pro- 
 ceeded, (g) and then to state the conclusion at which 
 he has arrived. In stating his conclusion, he should 
 so far detail the facts which warrant it as may ena- 
 ble the Court to judge of its correctness; and it is 
 frequently advantageous, though not necessary, that 
 he should also state the reasons which have induced 
 his decision. But he must not omit the conclusion 
 itself, or state evidence, or circumstances which are 
 presumptive evidence, without finding whether they 
 
 ((/) 48th Order of August, 1841; In re Grant, 10 Sim. 573: 
 Meux V. Bell, 1 Hare, 93. 
 
OF THE HEARING AND DECREE. 681 
 
 amount to a satisfactory proof. (7i) And if liberty 
 be given, as it frequently is, to state special 
 circumstances, he should state, not the evi- L -■ 
 dence, but the facts proved, as pn a special verdict 
 at law.(i)' 
 
 If any of the inquiries directed by the decree are 
 such as cannot conveniently be delayed until the 
 general report, the Master may make a separate re- 
 port,(Z)) which is prepared, disputed, and confirmed, 
 in the same manner as a general one ; the only dif- 
 ference being that when it is intended to act on such 
 a report, the cause is not set down for further direc- 
 tions, but a petition is presented praying such di- 
 rections as are consequent on the separate report. 
 
 Subject to this right of making separate reports, 
 the rule is, that a Master's report must dispose of all 
 matters referred, either by actual findings on each 
 section of the decree, or by pointing out what matters 
 of reference have been waived, and what have been 
 disposed of by separate reports ; and the omission of 
 any gUch matters, or the introduction of any matter 
 not referred to him, will render his report erro- 
 neous. (Z) 
 
 (h) Lee V. Willock, 6 Ves. 605; Meux v. Bell, 1 Hare, 91; 
 Champernowne v. Scott, 4 Mad. 209. 
 
 (i) Marlborough v. "Wheat, 1 Atk. 454. 
 
 {k) 70th Order of 1831. 
 
 (l) Winter v. Innes, 4 M. & 0. 101 ; Jenkins v. Bryant, 6 Sim. 
 605; Gayler v. Fitzjohn, 1 K. 469. 
 
 1 Where certain facts are referred to the decision of a Master, it 
 ia his duty to report his conclusions ; and it is irregular and im- 
 proper for him to report the evidence, without the special direc- 
 tion of the Court; Matter of Hemiup, 3 Paige, 305. 
 
682 Adams's doctrine of eqttitt. 
 
 As soon as the Master's report has been filed, the 
 next step is its confirmation by the Court. 
 
 In the case of reports under orders made on peti- 
 tion, a petition is the usual mode of objection and 
 confirmation, (m) But with respect to reports under 
 a decree or decretal order, the regular mode of con- 
 firmation is by an order nisi, made on a motion, of 
 course, or petition at the Rolls, and directing that 
 the report shall stand confirmed, " unless the defen- 
 dant shall, within eight days after notice, show good 
 cause to the contrary." If no cause is shown within 
 the eight days, a further order is made on motion, 
 confirming the report absolutely . (n) ^ 
 
 If any of the persons interested, whether actual 
 
 r^qo^-1 or quasi *parties, are dissatisfied with the 
 
 report, they may file exceptions after service 
 
 of the order nisi, and show them as cause against its 
 
 being made absolute. 
 
 The exceptions, which, like the pleadings and in- 
 terrogatories, require the signature of counsel, are 
 a written enumeration of the alleged errors, and of 
 the corrections proposed ; and they should be so 
 framed as not merely to allege error in general terms, 
 but to enable the Court to decide distinctly on each 
 point in dispute, (o)^ If, however, there be error ap- 
 
 (m) Empringham v. Short, 11 Sim. 78 ; Ottey v. Pensam, 1 
 Hare, 322 ; Beavan v. Gilbert, 8 Bea. 308. 
 
 (m) 2 Dan. C. P. 1227. 
 
 (o) Pureell v. M'Namara, 12 Ves. 166 ; Ballard v. White, 2 
 Hare, 158 ; Flower v. Hartopp, 6 Bea. 485 ; Stoken v. Dawson, 
 2 Ph. 141. 
 
 ' See Hulbert v. McKay, 8 Paige, 652. 
 
 ' Story V. Livingston, 18 Pet. 359 ; Dexter v. Arnold, 2 Sumn. 
 108. 
 
OF THE HEAEING AND DECREE. 683 
 
 parent on the report, as, for example, if the facts 
 stated contradict the conclusion, it is unnecessary to 
 except. And even if the facts stated, though not 
 contradicting the conclusion, are insufficient to sup- 
 port it, the Court may, of its own motion, decline to 
 act, leaving the parties to get rid of the finding in 
 such way as they may be advised, (p) On the same 
 principle, the introduction of matter merely irrele- 
 vant is not a ground of exception, for its irrelevancy 
 must be apparent from the report itself. 
 
 The next step after filing exceptions, is that they 
 should be heard and determined by the Court, and in 
 doing this there are three courses open for adoption. 
 
 1. They may be disallowed, or allowed absolutely; 
 which has the effect of at once confirming the report, 
 either as it stands, or with such changes as the al- 
 lowance of the exceptions may make. 
 
 2. If the facts are imperfectly stated in the report, 
 so that no judgment can be formed as to the proper 
 conclusion; or if the existing evidence is unsatis- 
 factory, but it is possible that other evidence exists, 
 which in consequence of a favourable finding has not 
 been adduced ; or if the nature of the matter con- 
 tested, or the frame of the exceptions, is such, that 
 their allowance shows a necessity for *further r^Qgy-] 
 investigation ; it may be referred back to the 
 Master to review his report, continuing in the mean 
 time the reservation of further directions, and either 
 allowing the exception, or making no order thereon. 
 On a reference back to review, the Master may re- 
 ceive additional evidence ; but if it be accompanied 
 
 (p) Adams y. Claxton, 6 Ves. 226 ; Ottey v. Pensam, 1 H. 
 326; Gregory v. West, 2 Bea. 541. 
 
684 Adams's docteine of equity. 
 
 by an allowance of the exception, he can come to no 
 conclusion inconsistent with the terms of the excep- 
 tion. If no order is made on the exception, his find- 
 ing on reviewal is unfettered. (g') 
 
 3. If the suit has taken such a ^course, that at the 
 time of hearing the exceptions, it is apparent, that 
 whatever order be made, the same decree will follow, 
 the Court may decline to adjudicate on them, and 
 may proceed to decree on further directions, as if no 
 exceptions had been filed, (r) 
 
 The plaintiff may, at his discretion, set down ex- 
 ceptions for hearing at the same time that he sets 
 down the cause on further directions. But the pro- 
 priety of so doing will depend on the probability of 
 the exceptions requiring or not requiring a reviewal 
 of the report. For if there be a reference back to 
 review, the cause cannot be heard on further direc- 
 tions, and the expense of setting it down will have 
 been uselessly incurred. 
 
 When the exceptions have been disposed of and 
 the report confirmed, the cause is heard on further 
 directions ; and this is repeated from time to time, 
 as often as any further directions are reserved, (s) 
 
 The decree on further directions is confined to 
 carrying out the equities appearing on the' report, 
 consistently with the original decree. If circum- 
 stances have occurred since the original decree, which 
 
 (2) Egerton v. Jones, 1 Euss. & M. 694 ; Twyford v. Trail, 3 
 M. & C. 645 ; Liversey v. Liversey, 10 Sim. 331 j Ex parte 
 Grant, 10 Sim. 857; Ballard v. White, 2 H. 158; Stoken v. 
 Dawson, 2 Ph. 141. 
 
 (r) Hall V. Laver, 1 Hare, 571 ; Robinson v. Milner, 1 Hare, 
 578 ; Courtenay v. Williams, 3 Hare, 554, 639. 
 
 (s) 2 Dan. C. P., ch. 26. 
 
OP THE HEARING AND DECREE. 685 
 
 vary the form of relief required, but leave the sub- 
 stantial equity the same, they may be *stated rHsooon 
 in a petition to be heard with the cause, (ss) 
 But no order can be made on further directions 
 which will vary or impugn the original decree, 
 whether on a point which it had expressly decided, 
 or one which, being raised by the pleadings, and not 
 depending on the questions referred, has been left 
 unnoticed, and thus by implication disallowed. (<) 
 If the original decree is erroneous, the proper mode 
 of correction is by a rehearing or appeal. 
 
 A decree thus made, without any reservation of 
 further directions, constitutes a final decree; and 
 after it has been pronounced, the cause is at an end, 
 and no further hearing can be had. It often hap- 
 .pens, however, that although the decree requires no 
 reservation of further directions, yet there is a possi- 
 bility of future interests arising, which having a 
 potential existence only, cannot be then the subject 
 of judicial decision, and which, therefore, prevent 
 the cause from being altogether disposed of; e.g., 
 where a fund is given to a tenant for life, living at 
 the time of the decree, with remainder to a class of 
 individuals who cannot be ascertained till his death. 
 In this case the Court will not declare the future 
 interests, because it cannot know what alterations 
 may be produced by time ; but it will order payment 
 of the income to the tenant for life, or make such 
 
 (ss) Pinkus v. Peters, 5 Bea. 253 ; Tanner v. Dancey, 9 Bea. 
 339. 
 
 (0 Le Grand v. "Whitehead, 1 Kuss. 309 ; East India Company 
 V. Keighly, 4 Madd. 38 ; Camp v. Moody, 2 Ves. 474 ; Creuze v. 
 Hunter, 2 Ves. Jun. 164. 
 
686 ADAMS'S DOCTRINE OF EQUITY. 
 
 other decree as the immediate circumstances war- 
 rant, with liberty for all parties to apply, as their 
 respective interests arise. The effect of this liberty 
 is to enable them to apply summarily by petition or 
 motion, without the necessity of again hearing the 
 cause. If a similar difiiculty exist with respect to 
 part only of the property in litigation, and such pro- 
 perty be in the hands of the Court, it will be met by 
 carrying it over to a separate account, distinguished 
 by an explanatory title, with a like liberty to apply. 
 In this way the share of an infant, or of a married 
 woman, will be carried over to a separate account, 
 r*^8Q1 ^^ti^'l^'l ^^ t^^ *one case the infant's account, 
 and in the other, the account of the husband 
 and wife, with liberty for the infant to apply on at- 
 taining twenty-one, and for the husband and wife to, 
 apply generally, so that the consent of the wife to 
 relinquish her equity for a settlement may be ascer- 
 tained, (u) 
 
 On the same principle, if a sum of money appears 
 at the hearing to belong prima facie to one person, 
 subject to claims by others which cannot then be 
 discussed, it will be carried to the account of the 
 prima facie owner, with a direction that it shall not 
 be paid to him without notice to the adverse claim- 
 ants, and such claimants may then present a petition 
 to have the fund out of Court, and may serve it on the 
 party in whose name it stands, (-y) 
 
 The hearing of the cause on further directions is 
 generally the occasion for deciding on the " costs of 
 the cause." The precise nature of the costs included 
 
 (u) 2 Dan. 1251. (v) 2 Dan. C. P. 1342. 
 
OF THE HEAEING AND DECREE. 687 
 
 under this expression, as distinguished from inci- 
 dental costs, which are disposed of as they arise, 
 need not be here discussed ; but it will be important 
 to consider briefly the rules which determine by 
 whom the " costs of the cause" shall be borne. 
 
 In considering this subject it must be borne in 
 mind, that the jurisdiction in equity is not like that 
 at common law, purely litigious, but in many in- 
 stances protective and administrative; and it is 
 obvious that under each of these heads the rule as 
 to costs may properly be very different. 
 
 In suits under the protective and administrative 
 jurisdiction of the Court, the general principle is, 
 that the party requiring aid, shall be liable for the 
 costs. Such, for instance, are suits for discovery 
 and for perpetuating testimony, in which the costs 
 are paid by the plaintiff; suits for partition, in 
 which, by analogy to a partition at law, the costs 
 of the commission and of making out the title are 
 paid in proportion to the respective interests, and 
 *no other costs either precedent or subse- r*QQQ-| 
 quent are allowed; and suits for assignment 
 of dower, in which by the same analogy, no costs are 
 given ;(v«) suits for redemption, or in the nature of 
 redemption, as for setting aside a purchase on repay- 
 ment of the money advanced, in which the party 
 redeemed is, in the absence of gross misconduct, 
 entitled to his costs ;(tu) suits against an heir to 
 establish a will, or against a vicar or rector to esta- 
 blish a modus, in which the heir, unless he vexa- 
 tiously litigate the will, and the vicar or rector, 
 
 (w) 2 Dan. 1103 ; Bainford v. Bainford, 5 Hare, 203. 
 \w) 2 Dan. C. P. 1260-1267. 
 
688 ADAMS'S DOCTRINE OF EQUITY. 
 
 unless he dispute the modus, are entitled to costs ; {x) 
 suits for the performance of trusts, in which the 
 trustees are entitled to their reasonable costs out of 
 the fund, except in so far as their own misconduct 
 has occasioned the suit ; {y) and suits for the adminis- 
 tration of assets, in which the costs are treated as 
 expenses of administration, and are payable, first, to 
 the personal representative, and next, if the bill be 
 a creditor's bill, to the plaintiff,, as the primary 
 charge on the personal estate, (z) The same prin- 
 ciple is applied where a legal mortgagee, instead of 
 foreclosing, resorts for his own benefit to a decree 
 for sale ; in which case the costs of suit become costs 
 of administering the estate, and are discharged in 
 the first instance, {a) If the costs have been incurred 
 in administering several funds, of which the ulti- 
 mate destinations are different, an apportionment 
 may be made.(&) A claim has also been made on 
 behalf of the Attorney-General to have his costs 
 from the plaintiff in suits where a claim by the 
 Crown is involved, on the ground that they are in- 
 curred in performance of a public duty ; and a simi- 
 lar claim has been set up on behalf of provisional 
 assignees in suits for foreclosure of a bankrupt's or 
 r:5.qQ-| -I insolvent's estate. *But both these claims 
 have been disallowed ; for whatever be the 
 
 (x) 2 Dan. C. P. 1257-1260. (y) Ibid. 1286. 
 
 (2) Shuttleworth v. Howarth, Cr. & P. 228 ; Larkins v. Paxton, 
 2 M. & K. 320 ; Tipping v. Power, 1 Hare, 409 ; Tanner v. Dan- 
 cey, 9 Bea. 339. 
 
 (a) Tipping v. Power, 1 Hare, 409 ; Hepworth v. Heslop, 3 
 Hare, 485. 
 
 (6) Christian v. Foster, 2 Ph. 161. 
 
OF THE HEARING AND DECREE. 689 
 
 hardship on the parties making them, it is not to be 
 remedied at the plaintiff's expense, (c) 
 
 The amount of costs payable in a suit, whether 
 given out of a fund or payable by a party, is ascer- 
 tained by taxation, which, if conducted by the strict 
 rule of the Court, is termed a taxation as between 
 " party and party." But there is in some cases a 
 more liberal allowance called " costs as between soli- 
 citor and client." In suits of a litigious class, the 
 taxation is always " as between party and party," 
 but in those of a protective or administrative kind, 
 its adoption though general is subject to exceptions. 
 The suits in which an exception is made are those 
 for performance of trusts and administration of 
 assets, in which the trustee or personal representa- 
 tive has always his costs as between solicitor and 
 client ; and if payments have been made by him not 
 coming strictly under the name of costs, he may 
 obtain them also by a direction for " charges and 
 expenses, not strictly costs in the cause." (c?) In 
 suits to establish or administer a charity, if the fund 
 be of adequate amount, and the parties have con- 
 ducted themselves with propriety, the taxation " as 
 between solicitor and client," is extended to the 
 costs of all ; and a privilege of a like character is 
 conferred on the plaintiff in a creditor's suit, if the 
 estate to be administered prove insolvent ; for in this 
 case the creditors, whom he represents, are entitled 
 to the whole fund. But if there be any surplus, so 
 
 (c) Perkins v. Bradley, 1 Hare, 233 ; Appleby v. Duke, 1 Ph. 
 272. 
 
 (d) 2 Smith, C. P. 461. 
 
690 Adams's doctrine of equity. 
 
 that other persons become interested, he can claim 
 only his costs, as between party and party, (e) 
 
 In suits under the litigious jurisdiction of the 
 Court the general principle is that the costs shall 
 follow the result. 
 
 In the particular case of a bill against a vendor 
 for specific performance, and a subsequent dismissal 
 through his want of title, a doubt has existed whe- 
 ther, notwithstanding *such dismissal, he may 
 L -■ not be charged with costs. But the rule 
 seems to be established that the bill in such case 
 will be dismissed without costs; and in all other 
 cases the rule is so far strictly adhered to that a 
 successful party never pays costs. (/) If a decree for 
 specific performance is obtained by a vendor, who 
 has not shown a good title before the suit commenced, 
 but who has made out a title afterwards, he will be 
 liable for all the costs incurred previously to the 
 making out of such title. 
 
 With respect, however, to the right of the suc- 
 cessful party to receive costs, the practice is less uni- 
 form, and decrees are frequently made, and bills 
 dismissed without costs, on the ground that the fail- 
 ing party has been misled by his adversary's con- 
 duct, or that the question in dispute was one of very 
 doubtful character, or even in some instances merely 
 in consideration of the hardship of his case, (g) 
 
 (e) Stanton v. Hatfield, 1 K. 358. 
 
 (/) 3 Sug. V. & P. 137 ; Westcott v. Culliford, 3 H. 275 ; 
 Maiden v. Tyson, 9 Bea. 347. 
 
 (g) Fenton v. Brown, 14 Ves. 144 ; Kobinson v. Kosher, 1 N. 
 C. C. 7 ; Cogan v. Stephens; Lewin on Trustees, 730 ; 2 Dan. C. 
 P. 1279. 
 
OF THE HEARING AND DECREE. 691 
 
 The propriety of making exceptions to the rule, 
 on the ground of doubt or hardship, appears to be 
 very questionable, because, however doubtful the 
 title may be, or however reasonable the litigation, it 
 is but fair that the party ultimately found entitled 
 should be reimbursed the expense of defending his 
 right, {h) There is, however, no doubt that a limited 
 discretion is exercised by the Court ; but, subject to 
 such discretion, the general rule is that the costs 
 will follow the event, and more especially so if the 
 plaintiff's claim be either made or resisted on the 
 ground of fraud. (*) If several claims or defences 
 are set up, of which some only succeed, the costs of 
 suit may be apportioned accordingly, or, instead of 
 such apportionment, each party may be left to the 
 payment of his own.(^) 
 
 * If a specific tender of the amount due be r*0Q9-i 
 made before the commencement of the suit, 
 or after its commencement of the amount and costs 
 already incurred, a proof of such tender, and of its 
 refusal by the plaintiff, will throw on him the 
 burden of subsequent costs ; and even where no ten- 
 der can in strictness be made, yet if a defendant has 
 offered terms which would have rendered the suit 
 unnecessary, the plaintiff, though in strictness en- 
 titled to a decree, may be refused his costs. (I) 
 
 The manner of compelling obedience to a decree 
 
 (A) Millington v. Fox, 3 M. & C. 352. 
 
 (i) Scott V. Dunbar, 1 Moll. 442 ; Wright v. Howard, 1 S. & 
 S. 190. 
 
 (/c) 3 Dan. C. P. 40 ; 2 Smith, 463 ; Strickland v. Strickland, 
 
 3 Bea. 242. 
 
 (0 Millington v. Fox, 3 M. & C. 352 ; Keeley v. Hooper, 1 N. 
 
 C. C. 197. 
 
692 Adams's doctrine of equity. 
 
 still remains for consideration, (m) The power of 
 the Court for this purpose, like that for compelling 
 appearance or answer, was originally confined to 
 process of contempt. If the order disobeyed was 
 for appearance and answer, disobedience was a con- 
 tempt of the subpoena; if for performance of a 
 decree, it was a contempt of another writ also issued 
 under the Great Seal, termed the writ of execution. 
 In either case the process of contempt was by the 
 five successive steps of attachment, attachment with 
 proclamations, writ of rebellion, serjeant-at-arms, 
 and sequestration ; or in the case of a privileged per- 
 son, by sequestrations nisi and absolute, and in that 
 of a corporation by distringas and sequestration. 
 The only differences were, that an attachment for 
 non-performance of a decree was not, like an attach- 
 ment on mesne process, a bailable writ;(w) that in 
 the particular instance of a decree for delivering up 
 an estate, the Court might effectuate its own order 
 by issuing a writ of assistance to the sheriff" com- 
 manding him to put the plaintiff in possession ; and 
 that on a decree for payment of money, the receipts 
 under a sequestration, though intended as a means 
 of punishment, might indirectly operate as a perfor- 
 mance. 
 
 We have already seen that by the present orders 
 of the Court the two steps of attachment with pro- 
 clamations and writ of rebellion are abolished, and 
 the process of contempt *reduced to attach- 
 >- -I ment, serjeant-at-arms, and sequestration, (o) 
 
 The same orders which effected this reduction 
 
 (m) 2 Dan. 1020. («,) 2 Dan. 1326. 
 
 (o) Supra, Appearance ; Answer. 
 
OF THE HEARIKG AND DECREE. 693 
 
 have also abolished the writ of execution, and have 
 substituted serviqe of a copy of the decree. With 
 this view it is directed that every order or decree 
 requiring an act to be done, shall state the time, or 
 time after service, within which it is to be done ; 
 and that if a decree directing an act within a limited 
 time be disobeyed after due service, the party pro- 
 secuting it shall be entitled to an attachment, and 
 on default after arrest to sequestration, or if the 
 sheriff return " non est inventus" to an order at his 
 option, for an immediate sequestration or a serjeant- 
 at-arms, and if the decree is for delivering up pos- 
 session, shall also be entitled to a writ of assistance. 
 And it is further declared that the same process 
 shall be available, although the person in favour of, 
 or against whom the order is made, be not a party 
 to the record, (p) 
 
 If the decree or order direct the payment of costs 
 alone, it is enforced by a subpoena for costs and a 
 non-bailable attachment. But if the payment of 
 other moneys be also directed, the ordinary process 
 will extend to the whole, and a subpoena is unneces- 
 sary. If payment be directed out of a fund or an 
 estate, a subpoena does not lie, but a sufficient pro- 
 portion will be ordered to be sold.(^) 
 
 The inefficacy of the process of contempt for com- 
 pelling a perverse defendant to obey has been already 
 commented on, as well as the remedies which have 
 been provided in respect to appearance and answer. 
 In respect to contempts by non-performance of a 
 decree, remedies have been also provided ; first, by 
 1 Wm. 4, c. 36, in regard to the execution of instru- 
 
 (p) Aug. 1841, X., xiii., XV. (2) 2 Dan. C. P. 1328. 
 
694 ADAMS'S DOCTRINE OF EQUITY. 
 
 ments, and the delivery up of documents; and, 
 secondly, by 1 & 2 Vict. c. 110, in regard to the pay- 
 ment of sums of money. 
 
 r*oQc-| *By the fifteenth rule of 1 "Wm. 4, c. 36, 
 it is directed that when the execution of any 
 instrument, or the making of any transfer or sur- 
 render is decreed, the Court shall have authority, 
 on default by the defendant after committal, to direct 
 a Master to execute, surrender, or transfer in his 
 stead ; [r] and by the sixteenth rule of the same act, 
 it is directed that where a party is in contempt for 
 non-production of documents, the sequestrators may 
 seize such documents and dispose of them as the 
 Court shall direct. 
 
 By the 1 & 2 Vict. c. 110, s. 18, it is directed that 
 all decrees and orders of Courts of equity, by which 
 any sum of money or costs shall be payable to any 
 person shall have the effect of judgments at law. 
 And by sect. 20 of the same act, and the General 
 Orders of May, 1839, a party to whom payment of 
 any sum of money or costs has been ordered may 
 enforce it, not only indirectly by sequestration, but 
 by direct writs of /leri facias or elegit ; and if it ap- 
 pears on a return of & fieri facias that the sheriff has 
 seized, but not sold the goods, then by a further writ 
 of venditioni exponas, (s) 
 
 Where none of these remedies can be adopted, as 
 when the act ordered requires the personal agency 
 of the defendant, the Court is remitted to the process 
 of contempt, and can only enforce its decree by im- 
 prisonment and sequestration. 
 
 (r) 2 Dan. 1050. (s) Ibid. 1020. 
 
OF THE REHEARING AND APPEAL. 695 
 
 *CHAPTER VIII. [*396] 
 
 OF THE KEHEARING AND APPEAL. 
 
 The next subject for consideration, after the regu- 
 lar conclusion of a suit by decree is tbe jurisdiction 
 for alteration or reversal, (a) And, it should be ob- 
 served, that the authority for this purpose is not 
 confined as at law to the final judgment, but extends 
 to interlocutory proceedings in the cause. 
 
 The first step after judgment is, as we have seen, 
 the giving out and settlement of the minutes. If 
 the minutes do not correspond with the judgment, 
 the requisite alterations are effected in the manner 
 already pointed out. But in order that the judg- 
 ment itself may be impeached, the decree must no 
 longer remain in minutes, but must have been regu- 
 larly drawn up, passed and entered, so as to consti- 
 tute a record, though not a conclusive one, of the 
 Court of Chancery. 
 
 After an entry and before inrolment, the decree is 
 in some sense still in fieri, and may be altered by a 
 rehearing before the same jurisdiction, viz., either 
 before the Judge who originally made it, or before 
 the Lord Chancellor as the head of the Court. If it 
 be reheard before the same Judge, it may be again 
 reheard by the Chancellor. (6) But after it has been 
 
 (a) 2 Dan. 1331. (b) Brown v. Higgs, 8 Ves. 567. 
 
696 Adams's doctrine of equity. 
 
 reheard by the Chancellor, it cannot, without special 
 cause shown, be again reheard, (c) 
 
 If the error complained of be a mere clerical slip, 
 it may *be rectified before inrolment on a 
 '- -' common petition, without the expense of a 
 rehearing, (cc) And if the order itself has been 
 made on motion, or on an ex 'parte petition irregu- 
 larly presented, it is not the subject of rehearing, 
 but may be discharged on an independent motion. (cZ)^ 
 In all other cases, a revisal or variation before inrol- 
 ment must be effected by a petition or rehearing.^ 
 So long as the decree is capable of rehearing it is not 
 capable of appeal; but as soon as inrolment has 
 taken place it becomes a conclusive decree in Chan- 
 cery, and can only be altered by an appellate juris- 
 diction, (e) If, therefore, either party desire a re- 
 
 (c) Moss V. Baldook, 1 Ph. 118. 
 
 \cc) 45th Order of 1828 ; 2 Smith C. P. 14 ; Whitehead v. 
 North, Cr. & P. 78. 
 
 (d) West V. Smith, 3 Bea. 306. 
 
 (e) M'Dermott v. Kealy, 1 Ph. 267 ; Sheehy v. Muskerry, 7 01. 
 & F. 1 ; Andrews v. Walton, 8 01. & F. 457. 
 
 ' Gardiner, J., Gracie v. Freeland, 1 Comstock, 236. 
 
 ^ A rehearing is not a matter of right, but rests in the sound 
 discretion of the Oourt; Daniel v. Mitchell, 1 Story, 198. It is 
 only allowed where some plain error, omission, or mistake, has been 
 made, or where something material to the decree is brought to the 
 notice of the Court which had been before overlooked ; Jenkins v. 
 Eldredge, 3 Story, 299. It is not sufficient to show that injustice 
 has been done ; but it must appear that it occurred under circum- 
 stances authorizing the court to interfere ; it must appear that the 
 petitioner has not been guilty of laches, and that the matter on 
 which he relies could not have been obtained by reasonable dili- 
 gence at the former hearing ; Walsh v. Smyth, 3 Bland. 9 ; see, 
 also. Burn v. Poaug, 3 Desau. 596; Wilcox v. Wilkinson, 0am. 
 & Nor. 533 ; S. 0. 1 Murph. E. 11. 
 
OF THE REHEARING AND APPEAL. 697 
 
 hearing, he should enter a caveat against inrolment, 
 which will stay it for twenty-eight days, and give 
 him an opportunity to apply for the purpose. But 
 if he neglect this, and the inrolment takes place 
 before an order to rehear has been served, it cannot 
 afterwards be vacated except on special grounds of 
 fraud, surprise, or irregularity. (/) 
 
 The appellate jurisdiction in equity is twofold; 
 viz., 1. In the King, whose conscience is ill adminis- 
 tered, and who may issue a special commission pro 
 re nata to reconsider his Chancellor's decree •,{g) and 
 2. In the House of Lords,''on petition to them as the 
 supreme j udicature of the realm. 
 
 The latter of these courses, a petition to the Lords, 
 has now altogether superseded the former ; but in 
 the latter part of the seventeenth century a vehement 
 dispute respecting its validity arose between the 
 Houses of Lords and Commons, and it was contended 
 that the appellate jurisdiction in equity, like that on 
 writs of error at common law, could only be exercised 
 under a reference from the Crown, *and not 
 on a mere petition to the Lords. The dispute L ^ 
 on this point had been preceded by a similar one, 
 arising out of a cause of Skinner v. The East India 
 Company, as to the Lords' claim to an original juris- 
 diction, and the result of that contest, though in 
 terms a compromise, has been practically an aban- 
 donment of the c\siim..{gg) 
 
 (/) Hughes V. Garner, 2 Y. & C. 335; Sheehy v. Muskerry, 7 
 CI. & F. 22; Dearman v. Wych, 4 M. &. C. 550. 
 
 (g) Hale's Jurisdiction of the House of Lords, Pref. xxxix., and 
 p. 186. 
 
 (^c/ff) Hargrave's Pref. to Hale's Jurisdiction, p. xcix.-cxxiv. 
 
698 Adams's docteine of equity. 
 
 The contest on the appellate jurisdiction arose in 
 the session of 1675, on three petitions of appeal in 
 the causes of Shirley v. Fagg, Stouton v. Onslow, 
 and Crispe v. Dalmahoy. In each of these suits the 
 , respondent in the appeal was a member of the House 
 of Commons ; and their alleged privilege of not being 
 summoned to attend the Lords was in the onset the 
 principal matter in dispute. The contest speedily 
 assumed a different aspect, and was put by both 
 Houses on the express issue, whether the House of 
 Lords was, as asserted by its members, the assembly 
 where the King is highest in the royal estate, and 
 where the last resort of judging on writs of error and 
 appeals in equity is fixed. It was for a time quieted 
 by a prorogation ; but at the re-assembling of Parlia- 
 ment it was resumed, and a resolution was passed 
 by the Commons, " that whoever shall solicit, plead, 
 or prosecute any appeal against any commoner from 
 any Court of Equity before the House of Lords, shall 
 be deemed and taken a betrayer of the rights and 
 liberties of the people of England." The resolution, 
 however, thus passed, was their last effort of resist- 
 ance. And at the meeting of Parliament, after the 
 next prorogation in February, 1677, the Commons 
 appear to have tacitly abandoned the contest ; and 
 although their previous resolution was not in terms 
 rescinded, the jurisdiction has been since exercised 
 without dispute. (A) The jurisdiction is confined to 
 appeals in equity, and does not extend either to the 
 r*9QqT administrative power in lunacy, or to *the 
 jurisdictions conferred by statute, unless 
 
 (Ji) Hale's Jurisdiction of Lords ; Hargrave's Preface, cxxxv.- 
 clxyii. Macqueen's Practice, 70-92. 
 
OF THE REHEARING AND APPEAL. 699 
 
 where sucli appeal is expressly given, or where the 
 statutory jurisdiction is a mere extension of a pre- 
 vious equity, (i) 
 
 There exists ,a marked distinction in principle 
 between rehearing and appeal in regard to the evi- 
 dence which may be used on each. On a rehearing, 
 which is strictly what its name expresses, a second 
 hearing before the original jurisdiction, any evidence 
 may be used, which might have been used originally, 
 whether it were in fact so used or not. {ky But on 
 
 (i) Bignold V. Springfield, 7 CI. & F. 71. 
 
 (k) Wright T. Pilling, Pre- Cha. 496; Lovell v. Hicks, 2 Y. & 
 C 472; Herring v. Clobery, Or. & P. 251; Roberts v. Marcliant, 
 1 Ph. 371. 
 
 * Upon a rehearing no evidence can be gone into which was in 
 the case at the original hearing, and capable of being then pro- 
 duced; Story, J., Jenkins v. Eldredge, 3 Story, 299. But where 
 evidence in the case was omitted to be read at the original hearing, 
 such, for example, as a document, or where the proof of an ex- 
 hibit in the original cause was omitted, the Court will make an 
 order allowing them to be read or proved, saving just exceptions. 
 Ibid. 
 
 Rehearings, when asked for on the ground of newly-discovered 
 evidence, are mainly governed by the same considerations that 
 apply to cases where leave is asked, after publication of testimony, 
 and before the hearing, to file a supplemental bill, to bring 
 forward such new evidence; or where, after a decree, leave is 
 asked to file a bill of review on like ground ; Daniel v. Mitchell, 
 1 Story, 198. See also Baker v. Whiting, Ibid. 218. 
 
 Where a party has had it in his power to ascertain the import- 
 ance of testimony before the hearing of his ease, and has neglected 
 to do so, and to obtain the testimony, a rehearing will not be 
 granted on the ground that the importance of the evidence had 
 been ascertained after the decision, although the justice of the 
 case might be promoted by it ; Prevost v. Gratz, Peter's C. C. E. 
 
700 Adams's doctrine of equity. 
 
 an appeal, which is a resort to a superior jurisdiction 
 to determine whether the Court below was right, no 
 evidence can be tendered except that which is en- 
 tered as read in the decree, or the rejection of which 
 is a ground of appeal. (T) 
 
 The manner of obtaining a rehearing, or of making 
 an appeal, is by petition stating the order or decree 
 complained of, and the subsequent orders, if any 
 have been made, and praying in the one case for a 
 rehearing, in the other for a reversal or variation, (m) 
 The petition is signed by two counsel, who, in the 
 case of an appeal, must have been either counsel in 
 the cause below, or must attend as counsel on the 
 appeal ; and must be accompanied by a certificate 
 that in their opinion there is a reasonable cause for 
 rehearing or appeal, (n) It is not necessary, though 
 sometimes convenient, that the petition should state 
 
 (I) Eden v. Lord Bute, 1 B. P. C. 465. 
 (m) 50th Order of 1841 ; Macqueen, 131. 
 (n) Wood V. Milner, IJ. & W. 636. 
 
 365. See also Cocke v. Evans, 9 Yerg. 287 ; Cleland v. G-ray, 1 
 Bibb, 38. 
 
 If the Court will, at all, grant a rehearing where the newly-dis- 
 covered evidence consists wholly of confessions made by the plain- 
 tiff since the decree, it will be only when the confessions are of 
 the most full and direct character, and are proved by disinterested 
 testimony, and not susceptible of different interpretations ; Daniel 
 v. Mitchell, ubi. supra. 
 
 In Hinson v. Pickett, 2 Hill, C. R. 351, it was held that a re- 
 hearing should not be granted in any case on the ground of after- 
 discovered oral evidence. And a rehearing is never granted upon 
 new evidence, which is merely cumulative to the litigated facts 
 already in issue, or which is designed to contradict the witnesses 
 examined by the adverse party; Walworth, Ch., Dunham v. Wi- 
 nans, 2 Paige, 24 ; Baker v. Whiting, ubi. supra. 
 
OF THE REHEARING AND APPEAL. 701 
 
 the ground of objection, (o)' But on an appeal to 
 the Lords it is required, that besides the mere petition 
 of appeal, each party should deliver a printed case 
 signed by counsel, (jp) containing a narrative of facts, 
 and a summary of the reasons on which he relies, 
 and accompanied by an appendix of evidence. 
 *In order to warrant a rehearing or appeal, 
 it is sufficient that some litigated question has *- J 
 been decided, and that it is certified by counsel to 
 be fit for reconsideration. But it is essential that 
 the decision be on a litigated point, and, therefore, 
 a decree by consent is excluded, {q)' A decree made 
 on default of appearance at the hearing, is also inca- 
 pable of being appealed from or reheard, unless a 
 special ground be shown for indulgence, (r) And in 
 cases where the bill has been taken pro confesso, the 
 defendant, though he may obtain a rehearing, must 
 waive any objection to the pro confesso order, and 
 must submit to pay such costs as the Court shall 
 direct, (s) If the costs of suit are in the nature of 
 relief, a miscarriage respecting them will be a suffi- 
 cient ground of complaint ; e. g., where they are im- 
 properly given, or refused, out of an estate or fund. 
 
 (o) Giffard v. Hort, 1 Sch. & L. 398. 
 
 Ip) 2 Dan. 1367. 
 
 Iq) Wood V. Griffiths, 1 Meriv. 35 and 720; Woodmason v. 
 Doyne, 10 CI. & F. 22 ; 2 Dan. 1331. 
 
 (r) Booth V. Creswicke, Cr. & P. 361 ; 44th Order of August, 
 1841; Stubbs V. , 10 Ves. 30. 
 
 (s) 89th Order of 1845; 1 Dan. 480. 
 
 ' A petition for a rehearing should state the grounds on which 
 it is asked; Wiser v. Blachly, 2 Johns. C. E. 488. 
 = Coster V. Clarke, 3 Edw. Ch. R. 405. 
 
702 Adams's DOCTRINE or equity. 
 
 But the ordinary costs of suit are discretionary with 
 the Court, and if the decision on the merits is ad- 
 mitted to be correct, the Court will not rehear it on 
 a mere question of costs. (<)^ It is otherwise if, 
 without going into the merits, it is apparent on the 
 face of the decree that the order as to costs is at 
 variance with a settled practice, (u) 
 
 "With respect to costs of a rehearing on appeal, it 
 is held, that whatever be its result, no costs can be 
 given against the respondent, if he confines himself 
 to supporting the original decree ; (v) but that in the 
 event of an affirmance or a trifling variation, they 
 will generally be given to him. And in the case of 
 an appeal, which is a step beyond the ordinary pro- 
 cedure in a cause, they will sometimes be so given, 
 though, on a rehearing below, no *costs would 
 L J have been given, or they would have been 
 paid out of the estate. 
 
 The effect of a successful rehearing or appeal is 
 obviously to render useless, either wholly or in part, 
 any proceedings under the original decree. It does 
 not, however, follow that they will be saved during 
 its pendency ; for it is presumed until reversal that 
 the decree is right ; and if there are special grounds 
 for requiring their stay, a distinct application must 
 be made to the discretion of the Court. If an order 
 
 (f) 2 Dan. 1334. 
 
 (u) Attorney-General v. Butcher, 4 Euss. 181; Taylor v. 
 Southgate, 4 M. & C. 203 ; Angell v. Davies, 4 M. & C. 360 ; 
 Chappell V. Purday, 2 Ph. 227 j 2 Dan. 1334-5. 
 
 (v) 2 Dan. 1355. 
 
 ^ See Travis v. "Waters, 1 Johns. C. R. 48. 
 
OF THE REHEARING AND APPEAL. 703 
 
 to stay them is made, it may be accompanied, in a 
 case of rehearing, by an order to advance the cause, 
 or in the case of an appeal, by a requirement that a 
 similar order be applied for in the House of Lords, (w) 
 
 (w) Storey v. Lennox, 1 M. & C. 685; Corporation of Grlou- 
 cester v. Wood, 3 Hare, 150 ; 1 Ph. 493 ; Garoias v. Kicardo, 1 
 Ph. 498 ; Drake v. Drake, 3 Hare, 528 ; 2 Smith, C. P. 74. 
 
704 ADAMS'S DOCTRINE OF EQUITY. 
 
 [*402] *CHAPTEE IX. 
 
 OF THE cross-bill; BILL OF REVIVOR, AND OF SUPPLE- 
 MENT; AND OF THE BILL TO EXECUTE OR TO IMPEACH 
 A DECREE. 
 
 In the observations which have been hitherto 
 made on procedure in equity, three things have been 
 assumed; viz., 1. That a decree on the plaintiff's 
 bill will determine the litigation ; 2. That the bill is 
 properly framed at the outset for obtaining that de- 
 cree ; and 3. That the suit is conducted to its termi- 
 nation without interruption or defect. It is obvious 
 that these assumptions cannot always be correct ; 
 and it is therefore requisite, before quitting the sub- 
 ject, to consider the means of remedying any such 
 imperfections as may occur. 
 
 The first class of imperfection is, where a decree 
 on the plaintiff's bill will not determine the litiga- 
 tion.^ This imperfection may arise either from cross 
 relief or discovery being required by the defendants, 
 
 ^ The Court sometimes in its discretion, when it appears that 
 the suit is insufficient to bring before the Court the rights of all 
 the parties, and the matters necessary to a just determination of 
 the cause, will at the hearing before publication, direct a cross-bill. 
 Kent J. Field v. Schieffelin, 7 Johns. C. R. 250. But see Sterry 
 V. Servant, 1 Johns. C. R. 62; and White v. Buloid, 2 Paige, 
 164, wherein the subject of cross-bills is discussed. 
 
OF THE CROSS-BILL. 705 
 
 or from the existence of litigation between co-defen- 
 dants.' In either case it is remedied by one or more 
 cross-bills, filed by one or more of the defendants 
 against the plaintiff, and against such of their co- 
 defendants as the cross relief may affect. If this has 
 not been done and the difficulty appears at the hear- 
 ing, the cause may be directed to stand over for the 
 purpose. A cross-bill may also be filed to answer 
 the purpose of a plea puis darrein continuance, where 
 a new defence arises after answer ; but not for the 
 purpose of indirectly altering the answer itself (a) ^ 
 *The proper frame of a cross-bill is, that it r*4f)o-i 
 should state the original bill and the pro- 
 ceedings thereon, and the rights of the party ex- 
 hibiting the bill, which are necessary to be made the 
 subject of cross litigation, or the ground on which he 
 resists the claims of the plaintiffs in the original bill, 
 if that is the object of the new bill.= But a cross-bill 
 being generally considered as a defence, or as a pro- 
 
 (a) 1 Dan. 565. 
 
 » See Talbot v. McGee, 4 Monr. 375 ; Anderson v. Ward, 6 
 Monr. 419. 
 
 ° Fenton v. Williams, 11 Paige, 18 ; Taylor v. Titus, 2 Edw. 
 C. E. 135; White v. Bullock, 8 Edw. C. R. 453. 
 
 ' A cross-bill is a matter of defence. It cannot introduce new 
 and distinct matter not embraced in the original suit, and if it 
 does so, no decree can be founded on those matters ; Grallatian v. 
 Erwin, Hopk. 48 S. C. 8 Cow. 361 ; May v. Armstrong, 3 J. J. 
 Marsh. 262 ; Daniel v. Morrison's Ex'rs, 6 Dana, 186 ; Fletcher 
 V. Wilson, 1 S. & M. Ch. 376; Draper v. Gordon, 4 Sandf. C. R. 
 210. But it seems that a cross-bill may set up additional facts 
 not alleged in the original bill where they constitute part of the 
 same defence, relative to the same subject-matter. See Underbill 
 V. Van Cortlandt, 2 Johns. C. R. 339, 355. 
 
 45 
 
706 Adams's doctrine of equity. 
 
 ceeding to procure a complete determination of a 
 matter already in litigation in the Court, the plain- 
 tiff is not, at least as against the plaintiff in the 
 original bill, obliged to show any ground of equity to 
 support the jurisdiction of the Court. (6)' 
 
 The second class of imperfection arises where the 
 bill is framed improperly at the outset. This im- 
 perfection ought regularly to be rectified by amend- 
 ment ; but if the time for amendment has elapsed, it 
 may be rectified by a supplemental bill, or by a bill 
 in the nature of supplement, the character of which 
 bills will be considered under the head of imperfec- 
 tions of the third class. 
 
 Imperfections of the third class are those which 
 originate in an interruption or defect subsequent to 
 the institution of the suit, and they are rectified, 
 according to circumstances, by bill of revivor or in 
 the nature of revivor, and by bill of supplement or 
 in the nature of supplement. They occur where, by 
 reason of some event subsequent to the institution of 
 the suit, there is no person before the Court by or 
 against whom it can, either in whole or in part, be 
 prosecuted. They are technically called abatements, 
 and are cured by a bill of revivor, or in the nature 
 of revivor. The events which cause such abate- 
 ments are, the death of any litigant whose interest 
 or liability does not either determine on death or 
 survive to some other litigant, and the marriage of a 
 
 (b) Mitf. 80-83 ; Farquharson v. Seton, 5 Kuss. 45 ; Cotting- 
 ham V. Lord Shrewsbury, 3 Hare, 627 ; Sanford v. Morrice, 11 
 CI. & F. 667. 
 
 ' See Cartwright v. Clark, 4 Met. 104. 
 
OP THE CEOSS-BILL. 707 
 
 female plaintiff or co-plaintifF. Upon the marriage 
 of a female defendant the suit does not abate, r*^r>^-i 
 *but the husband must be named in the sub- 
 sequent proceedings. And if a female plaintiff mar- 
 ries, pending a suit, and afterwards, before revivor, 
 her husband dies, a bill of revivor becomes unneces- 
 sary, her incapacity to prosecute the suit being re- 
 moved ; but the subsequent proceedings ought to be 
 in the name, and with the description which she has 
 acquired by the marriage, (c) 
 
 It will be observed, that in order to cause an 
 abatement it is essential that the person dying be a 
 litigant ; and therefore, if he be not named a party 
 to the suit, or if, being named, he die before appear- 
 ance, the suit is not abated, but non-existent, and 
 must be recommenced by original bill against his re- 
 presentative, (d) 
 
 It is also essential that his interest or liability be 
 such as does not either determine by his death, or 
 survive to another litigant. For if it determine on 
 his death, there is no such abatement as can inter- 
 rupt the suit against the remaining parties, although 
 if he be the only plaintiff, or the only defendant, 
 there will necessarily be an end of litigation. If it 
 survive to another litigant, and the circumstances be 
 such that no claim can be made by or against the 
 representatives of the party dying, there is no abate- 
 ment ; e. g.,if a. bill is filed by or against trustees or 
 executors, and one dies, not having possessed any of 
 the property, or done any act relating to it which 
 may be questioned in the suit ; or if it be by or 
 
 (c) Mitf. 56-60. (d) Crowfoot v. Mander, 9 Sim. 396. 
 
708 Adams's doctrine of equity. 
 
 against husband and wife, in right of the wife, and 
 the husband dies under circumstances which admit 
 of no demand by or against his representatives ; or 
 again, if a bill be filed by several creditors, on behalf 
 of themselves and all other creditors, and one of the 
 co-plaintiflfs die. For in all these cases the persons 
 remaining before the Court either have in them the 
 whole interest in the matter in litigation, or at least 
 are competent to sustain the suit, and to call upon 
 the Court for its decree. If indeed, upon the death 
 r*4-n'il ^^ ^ husband *suing in his wife's right, the 
 widow does not proceed in the cause, the 
 bill is considered as abated, and she is not liable to 
 the costs. But if she thinks proper to proceed, she 
 may do so without revivor, for she alone has the 
 whole interest, and therefore the whole advantage of 
 the proceedings survives to her; so that if any judg- 
 ment has been obtained, even for costs, she will be 
 entitled to the benefit of it. But if she takes any 
 step in the suit after her husband's death, she makes 
 herself liable to the costs from the beginning, (e) If 
 the husband and wife be made defendants in respect 
 of her inheritance, the husband's death, it seems, is 
 an abatement of the suit, and makes a bill of revivor 
 necessary against the wife, but if she be sued in auter 
 droit a different rule appears to prevail. (/) A de- 
 cree on a bill of interpleader may terminate the suit 
 as to the plaintiff", though the litigation may continue 
 between the defendants by interpleader, and in that 
 
 (e) Mitf. 59. 
 
 (/) White on Supplt. 168 ; 1 Dan. C. P. 169 ; 2 Dan. C. P. 
 1418. 
 
or BILLS OF REVIVOR. 709 
 
 case, the cause may proceed without revivor, not- 
 withstanding the plaintiff's death, {g) 
 
 The effect of an abatement is, that all proceedings 
 in the suit are stayed to the extent of the abated 
 interest, viz., on abatement by the death of a plain- 
 tiff or co-plaintiff, they are stayed altogether; on 
 the death of a defendant, they are stayed as to him. 
 And in order to set them again in motion, the suit 
 must be revived by order or decree. 
 
 For the purpose of obtaining such order or decree 
 it is requisite that a new bill be filed, stating the 
 proceedings in the suit, the abatement, and the trans- 
 mission of the interest or liability, and praying that 
 the suit and proceedings may be revived. If the 
 transmission is by act of law, viz., to the personal 
 representative or the heir of a deceased party, or to 
 the husband of a married plaintiff, the bill is termed 
 a bill of revivor ; and unless the defendant shows 
 cause against it by demurrer or plea, within a 
 limited time, an *order to revive is made. (A) ^^.^p-. 
 If the transmission is by act of the party, ■- ^ 
 viz., to a devisee, an original bill in nature of a 
 revivor must be filed, and a decree made at the hear- 
 ing to revive the suit, (i) The bill, however, though 
 termed an original bill in respect of the want of pri- 
 vity between the original and new defendants, is 
 framed like a bill of revivor, and will so far have 
 the same effect, that if the validity of the transmis- 
 
 (g) Mitf. 60. 
 
 (K) Pruen v. Lunn, 5 Russ. 3 ; Langley v. Fisher, 10 Sim. 349 ; 
 Orders of May, 1845, 61, 62 ; Mitf. 69, 76, 78. 
 (i) Folland v. Lamotte, 10 Sim. 486. 
 
710 Adams's docteike of equity. 
 
 sion be established, the same benefit may be had of 
 the former proceedings. (A;) 
 
 There was also anciently a practice, where a suit 
 abated after decree signed and inrolled, to revive the 
 decree by subpoena in the nature of a scire faxiias ; 
 but this practice is now disused, and it is customary 
 to revive, in all cases indiscriminately, by bill.(Z) 
 
 The liability to abatement, and the consequent 
 right of revivor, are not limited to any particular 
 stage of the suit. The only requisite is, that there 
 be some matter still in litigation, for the decision of 
 which revivor is needed. And if the decree has 
 been in all other respects performed, the mere non- 
 payment of costs will not warrant a revivor, except 
 where they have been decreed out of a fund, or 
 where they have been taxed and certified before 
 abatement, so as to constitute in equity a judgment 
 debt.(m) 
 
 The principle that there can be no revivor for 
 costs, precludes any other person than the plaintiff 
 or his representative from reviving before decree ; 
 for the plaintiff may at his pleasure dismiss the bill 
 with costs, and therefore a revivor by any other 
 party would in effect be for costs alone. If the 
 plaintiff neglect to revive, the defendant's remedy is 
 r*4-n71 ^^ ™ove that he may do so within a limited 
 *time, or that the bill may be dismissed, (n) 
 It is otherwise after decree ; for then all parties are 
 
 (k) Mitf. 71-97. (0 Mitf. 69, 70. 
 
 (to) Andrews v. Lockwood, 15 Sim. 153. 
 ()i) 1 Smith, C. P. 659; Lee y. Lee, 1 Hare, 617; Orders of 
 May, 1845, 63. 
 
OF BILLS OF REVIVOR. 711 
 
 equally entitled to its benefit ; and on neglect by the 
 plaintiffs, or those standing in their right, a defen- 
 dant may revive, (o) 
 
 The construction of a bill of revivor is similar in 
 principle to that of an original bill. It states the 
 filing of the original bill, and recapitulates so much 
 of its statements as is requisite to show the right to 
 revive, (p) But it recapitulates it as the statement 
 of the original bill, and not as matter of substantive 
 averment; nor can such statement be contravened 
 by the defence further than is done by the answers 
 to the original bill, [q] It then states the original 
 prayer of relief, the proceedings which have taken 
 place, and the event which has caused abatement, 
 and prays that the suit may be revived. 
 
 In the case of a pure bill of revivor no answer is 
 requisite, but the revivor is ordered as of course, 
 unless cause be shown by demurrer or plea. If, 
 therefore, the original bill has been answered, the 
 prayer of process is for a subpoena to revive, and not 
 to answer ; but if the abatement be before answer, 
 it prays an answer to the original bill, and the sub- 
 poena is framed accordingly. In the case of revivor 
 against the representatives of a party chargeable, an 
 answer is generally asked as to assets. But a bill 
 praying such an answer, though generally called one 
 of revivor alone, appears to be in strictness supple- 
 Co) Mitf. 79; Upjohn v. Upjohn, 4 Bea. 246. 
 (p) 49th Order of August, 1841 ; Griffith v. Eicketts, 3 H. 
 476. 
 
 (j) Devaynes v. Morris, 1 M. & C. 213 ; Langley v. Fisher, 10 
 Sim. 345 ; White, 122. 
 
712 Adams's doctrine of equity. 
 
 mental also, and if assets be not admitted, requires 
 a hearing and decree for account. 
 
 On an original bill in the nature of a revivor, a 
 decree is, as we have seen, the object sought, and 
 the subpoena therefore requires an answer ; and if 
 the original bill be unanswered, it asks an answer to 
 that also. 
 
 If a suit becomes abated, and the rights of the 
 r*4081 P^'^^^^® *^^^ affected by any event, other than 
 that which causes the abatement, e. g., by a 
 settlement, it is not sufficient to file a mere bill of 
 revivor, although such a bill might be adequate for 
 merely continuing the suit, so as to enable the par- 
 ties to prosecute it. But the parties must incorpo- 
 rate in their bill a supplemental statement of the 
 additional matter; so that all the facts may be 
 before the Court. The compound bill thus formed 
 is termed a bill of revivor and settlement. And 
 the rules relating to it, so far as its supplemental 
 character is concerned, are the same with those 
 which will be presently considered under the head 
 of pure supplemental bills, (r) 
 
 Defects in a suit subsequent to its institution may 
 be caused, either in respect of parties by the transfer 
 of a former interest, or the rise of a new one, or in 
 respect of issues between the existing parties, by the 
 occurrence of additional facts. And they are cured 
 by a bill of supplement, or in the nature of supple- 
 ment. 
 
 Where a defect in respect of parties is caused by 
 transfer of an interest already before the Court, the 
 
 (»•) Mitf. 70, 71; Bampton v. Birchall, 5 Bea. 330; 1 Ph. 
 
 568. 
 
OF BILLS or SUPPLEMENT. 713 
 
 transferree may be joined in the suit by supplemental 
 bill ; but the necessity of so joining him depends on 
 the character of the transfer. 
 
 If the transfer is by act of the party, e. g., on 
 assignment or mortgage, the general principle is, that 
 an alienation pendente lite cannot affect the remain- 
 ing litigants. And therefore, unless the alienation 
 disable the party from performing the decree, e. g., by 
 conveyance of a legal estate or indorsement of a 
 negotiable security, it does not render the suit defec- 
 tive, nor the alienee a necessary party. But the 
 alienee himself, if he claim an interest, may add 
 himself to the cause by supplemental bill, or may 
 present a petition to be heard with the cause, (s) If 
 it is necessary to bring the alienee before the Court, 
 the object is effected by *a supplemental bill, p^^f^Q-, 
 stating the original bill and proceedings, and L -I 
 the subsequent transfer, and praying to have the 
 same relief against him as was originally asked 
 against his alienor. In all cases, however, such an 
 alienee, acquiring his interest pendente lite, is bound 
 by the proceedings in the suit, and depositions taken 
 after the assignment, and before he became a party, 
 may be used against him as they might have been 
 used against the party under whom he claims, (t) 
 
 If, on the other hand, the transfer be by act of 
 law, as on bankruptcy or insolvency, the rule as to 
 alienation pendente lite, does not apply; but the 
 
 (s) Eades v. Harris, 1 N. C. C. 230. But as to assignment by 
 a sole plaintiff, see Clunn v. Crofts, 12 Law J. Ch. 112; White 
 on Suppl. 178 ; Booth v. Creswicke, 8 Sim. 352. 
 
 (t) Mitf. 73, 74. 
 
714 Adams's doctrine of equity. 
 
 suit becomes defective for want of the assignees, (u) 
 If, therefore, the bankrupt is a defendant, the plain- 
 tiff must either dismiss his suit, and go in under the 
 bankruptcy, or must add the assignees by supple- 
 mental bill, praying the same relief against them as 
 might have been had against the bankrupt ;(w) and 
 if the relief originally asked were payment of money, 
 he should further pray for liberty to prove against 
 the estate, (w) If the bankrupt were a party, not in 
 respect of a liability, but in respect of an interest, 
 the assignees must of course be joined ; and if the 
 plaintiff neglect to add them, they may themselves 
 file a supplemental bill after notice to him of their 
 intention, (x) If the plaintiff be the party becoming 
 bankrupt he is placed under an incapacity (perma- 
 nent or temporary as the case may be) of prosecu- 
 ting the suit. And unless his assignees file a supple- 
 mental bill, and so take proceedings to sustain the 
 original suit, it would in strictness, after the usual 
 time, be dismissed with costs, for want of prosecution. 
 But in cases where the bankrupt is the sole plaintiff, 
 the modern practice is, to order that it be dismissed 
 without costs, unless within a limited time a supple- 
 mental bill be filed, [y) 
 
 V .- ^-. *The doctrine as to alienation by act of law 
 
 r 410T . . . 
 
 '- -"is also applicable where the interest of a 
 
 (li) Hitchens v. Congreve, 4 Sim. 420 ; Lee v. Lee, 1 Hare, 621. 
 
 (d) Monteith v. Taylor, 9 Ves. 615. 
 
 (w) Ex parte Thompson, 2 M., D. & D. 761 ; Thompson v. 
 Derham, 1 Hare, 358. 
 
 (x) Phillips V. Clarke, 7 Sim. 231. 
 
 (y) Mitf. 66, 67 ; Lee v. Lee, 1 Hare, 621 ; Kilminster v. 
 Pratt, 1 Hare, 632 ; Whitmore v. Oxborrow, 1 Coll. 91. 
 
OF BILLS OF SUPPLEMENT. 715 
 
 plaintiff suing in auter droit entirely determines by 
 death or otherwise, and some other person becomes 
 entitled in the same right ; e. g., where an executor 
 or administrator becomes entitled upon the deter- 
 mination of an administration durante minori setate, 
 or pendente lite, and in such cases the suit may be 
 added to and continued by supplemental bill.(z;) 
 The same rule was formerly applicable on the death 
 of the assignees of a bankrupt or insolvent ; but it is 
 now enacted, that where such assignees are plaintiffs 
 no fresh bill shall be required, but the names of the 
 new assignees shall be substituted in the subsequent 
 proceedings, (a) 
 
 In the case also of a plaintiff suing as the repre- 
 sentative of a class, e. g., of creditors or legatees, a 
 similar principle is applied after decree. The plain- 
 tiff, until decree, has the sole interest in the suit, and 
 therefore, on abatement by his death, his personal 
 representative can alone revive. But, after a decree, 
 all the members of the class are interested, and there- 
 fore if an abatement then occurs, and the personal 
 representative declines to revive, it is almost a mat- 
 ter of course to permit any other member of the 
 class to file a supplemental bill. (6) 
 
 "When a defect in respect of parties is caused by 
 the rise of a new interest, it cannot be remedied by 
 a supplemental bill, but a bill must be filed in the 
 nature of a supplement, restating the case against 
 
 (z) Mitf. 64. 
 
 (a) 6 Geo. 4, c. 16, s. 67; 7 Geo. 4, o. 57, s. 26; Bainbridge 
 V. Blair, Younge, 386 ; Man v. Kicketts, 7 Bea. 484. 
 
 (h) Houlditch V. Donegall, 1 S. & S. 491 ; Dixon v. Wyatt, 4 
 Mad. 392 ; 2 Dan. C. P. 1109. 
 
716 Adams's doctrine of equity. 
 
 tlie new party, and praying an independent decree. 
 The reason of this is, that the interest in respect of 
 which he is introduced is not derived from any for- 
 mer litigant, and has not been previously represented 
 in the suit, so that he cannot be bound by what has 
 taken place, but is entitled to have the entire case 
 proved anew, and an independent decree made. The 
 instance most usually given of an interest of this 
 T-^j-^-,-, class, is that of an ecclesiastical *person suc- 
 L -^ ceeding to a benefice, of which the former 
 holder was before the Court. The interest which 
 such a person holds is obviously independent of the 
 prior holder ; and therefore, if the claim is pursued 
 against him, he must be added to the suit by a bill, 
 which though in some sense supplementary, is in 
 strictness original, and is called an original bill in 
 nature of supplement. On such a bill a new defence 
 may be made ; the pleadings and depositions cannot 
 be used in the same manner as if filed or taken in 
 the same cause; and the decree, if any has been 
 made, is not otherwise of advantage, than as it may 
 induce the Court to make a similar decree, (c) 
 
 The rule, that an original bill in nature of supple- 
 ment must re-open the litigation, is modified in the 
 case of a remainder after an estate tail, where such 
 remainder falls into possession pending the suit. 
 We have already seen that the estate tail is held to 
 represent the entire inheritance, and that, notwith- 
 standing the general doctrine as to parties, the 
 remainderman need not be before the Court until 
 his estate falls into possession. When that event 
 
 (c) Mitf. 73 ; Loyd v. Jones, 9 Ves. 54, 55 ; Attorney- General 
 V. Foster, 2 H. 81 ; 13 Sim. 282. 
 
OF BILLS OF SUPPLEMENT. 717 
 
 occurs, he must be added to the suit. The bill for 
 this purpose is in strictness original, in the nature of 
 supplement, because the remainderman makes title 
 under no previous litigant. But in respect of the 
 rule enabUng the tenant in tail to represent the 
 inheritance, it is so far treated as supplemental that 
 the remainderman will be bound by the previous 
 proceedings, unless he can establish any special dis- 
 tinction between his own case and his predeces- 
 sor's. (cZ) A question of the like character may 
 occur where a suit has been commenced against a 
 tenant for life and the ultimate remainderman, and 
 an intermediate tenant in tail has been born pend- 
 ing the litigation. The bill for adding the tenant in 
 tail as a party will be strictly original in the .. 
 
 *nature of supplement. But it may be pre- '- -^ 
 sumed that the Court, in suffering the suit to pro- 
 ceed in its previous form, implies that such tenant 
 in tail, when brought before it, shall be bound by 
 the previous proceedings, (e) 
 
 The frame of an original bill in nature of supple- 
 ment, is similar to that of a supplemental bill; viz., 
 it states the original bill and proceedings, and the 
 supplemental matter, and prays the same relief 
 against the new defendant, as if he had been origi- 
 nally a party to the suit. But it is subject to the 
 distinction, that as the proceedings in the original 
 suit are not conclusive, an averment that certain 
 statements were made therein is not regular, and 
 the facts should be again averred and put in issue. 
 
 (d) Mitf. 63, 72 ; Lloyd v. Johnes, 9 Ves. 37. 
 
 (e) Giffard v. Hort, 1 Sch. & L. 408; Lloyd v. Johnes, 9 Ves. 
 59. 
 
718 ADAMS's DOCTRINE OF EQUITY. 
 
 This may be done either by restating the whole case 
 in its original form, and then stating that the origi- 
 nal bill was filed containing statements to that effect, 
 or by stating the contents of the original bill, as in 
 an ordinary case of supplement, coupled with an 
 averment of their correctness. (/) 
 
 Where a necessary party has been omitted at the 
 commencement of the suit, but the regular time for 
 amendment has been allowed to pass, he may in like 
 manner be added to the suit by a bill, generally 
 termed supplemental, but which would, perhaps, be 
 more accurately called original in the nature of sup- 
 plement, (g) 
 
 Where a defect in the issue between the existing 
 parties is caused by the occurrence of new matter, it 
 is remedied by a supplemental bill. 
 
 It should be observed, however, that in order to 
 warrant its introduction, the new matter must be 
 supplemental to the old. If, therefore, it is meant 
 to show a new title in the plaintiff, it is inadmissi- 
 ble ; e. g., where a party having filed his bill as heir- 
 at-law, afterwards, on his heirship being disproved, 
 r*ii QH purchased a title from his devisee ; for the 
 *plaintifi" must stand or fall by such title as 
 he had when his bill was filed, (h) If, again, it be 
 merely new evidence of the original equity, it does 
 not appear necessary to have a supplemental bill. 
 
 (/) Attorney-General v. Foster, 2 Hare, 81 ; Lloyd v. Johnes, 
 9 Ves. 37. 
 
 (g) Mitf. 61 ; Jenkins v. Cross, 15 Sim. 76. 
 
 (K) Tonkin v. Lethbridge, Coop. 43 ; Barfield v. Kelly, 4 Euss. 
 355 ; Pritchard v. Draper, 1 R. & M. 191 ; Mutter v. Chauvel, 5 
 Euss. 42 ; Bampton v. Birchall, 5 Bea. 330 ; 1 Phill. 568. 
 
OF BILLS OF SUPPLEMENT. 719 
 
 But it seems that the proper course would be to 
 move specifically for leave to examine witnesses on 
 the new matter, and to have their depositions read 
 at the hearing, (■i) or if discovery is required, to file 
 a supplemental bill for that purpose alone, [k) 
 
 If the new matter be really supplemental, i. e., if, 
 leaving the original equity untouched, it varies the 
 form in which relief must be given, or creates a 
 necessity for additional relief, the defect must be 
 remedied by a supplemental bill, stating the new 
 matter and praying the consequent relief; e. g., 
 where the original bill prayed an injunction against 
 an action at law, but, in consequence of the refusal 
 of an interlocutory injunction, the plaintiff" at law 
 recovered during the pendency of the suit. But the 
 evidence under such a bill must be confined to the 
 new matter ; and if publication has passed in the 
 original cause, and witnesses are examined in the 
 supplemental suit as to matters previously in issue, 
 their depositions cannot be read.(Z) 
 
 If material facts, which existed when the suit 
 began, are discovered when the time for amendment 
 is passed, they may be introduced by supplemental 
 bill, provided they corroborate the case already 
 made ; but if the object of introducing them is to 
 vary that case, so as to produce two inconsistent 
 
 (i) Milner v. Harewood, 17 Ves. 148 ; Adams v. Dowding, 2 
 Madd. 53. 
 
 (k) Milner v. Harewood, 17 Ves. 148 ; Osborne v. Baker, 2 
 Madd. 379. 
 
 (?) Pinkus V. Peters, 5 Bea. 253 ; Malcolm v. Scott, 3 Hare, 
 89 ; Nelson v. Bridges, 2 Bea. 239 ; Catton v. Carlisle, 5 Mad. 
 427 ; 2 Dan. C. P. 1490 ; Mitf. 326. 
 
720 Adams's doctrine of eqttitt. 
 
 statements, they are inadmissible by way of supple- 
 ment, and the plaintiff must obtain special leave to 
 amend, (m) 
 
 *It has also been determined on an analo- 
 •- -' gous principle, that where the defendant was 
 an infant at the date of the original bill, so that no 
 discovery could be obtained, the plaintiff might file 
 a supplemental bill on his coming of age, requiring 
 him to answer those interrogatories of the original 
 bill, which were not originally answered by him. [n) 
 The frame of a supplemental bill, whether strictly 
 so termed, or one which is original in the nature of 
 supplement, is similar in principle to that of an ori- 
 ginal bill. It states the filing of the former bill, and 
 recapitulates so much of its statement as is required 
 to show the bearing of the supplemental matter ; 
 coupling with such recapitulation, if the bill be ori- 
 ginal in the nature of supplement, a substantive 
 averment that the statement is correct, (o) It then 
 states the original prayer for relief, the proceedings 
 in the suit, and the supplemental matter ; and con- 
 cludes, if it be not for discovery alone, with the 
 appropriate prayer for relief With respect to the 
 parties against whom process should be prayed, the 
 principle which has been already stated in regard to 
 original bills, applies equally to those of a supple- 
 mental kind, viz., that all persons must be parties 
 
 (tri) Mitf. 55, 62 ; Colclough v. Evans, 4 Sim. 76 ; Crompton 
 V. Wombwell, 4 Sim. 628 ; Attorney-General v. Fishmongers' 
 Company, 4 M. and C. 9 ; Walford v. Pemberton, 13 Sim. 442 ; 
 Blackburn v. Staniland, 15 Sim. 64. 
 
 (n) Waterford v. Knight, 9 Bligh. N. S. 307 ; 3 CI. & F. 270. 
 
 (o) 49th Orders of May, 1841 ; Vigers v. Lord Audley, 9 Sim. 
 72 ; Griffith v. Kicketts, 3 H. 476. 
 
OF BILLS TO EXECUTE A DECREE. 721 
 
 ■who are interested in the relief sought. The plain- 
 tiffs in the original suit are in all cases so interested, 
 and must be joined either as plaintiffs or as defen- 
 dants. (^) But the defendants are not necessarily 
 in the same position, and the test with regard to 
 them appears to be, that if any supplemental matter 
 is introduced which may affect their interests, or if 
 a new party is introduced, with whom they may 
 have rights to litigate, and against whom, therefore, 
 they are entitled to state their case on the record, 
 they are necessary parties to the supplemental suit ; 
 but they are not *necessary parties, if the 
 supplemental matter is immaterial to them, ^ J 
 or if the new party is added in respect of an inte- 
 rest in the plaintiff alone, (g') 
 
 If the bill be not for discovery alone, the cause 
 must be heard on the supplemental matter at the 
 same time that it is heard on the original bill, and a 
 decree must be taken in both suits, or if the cause 
 has been already heard, it must be further heard on 
 the supplemental matter, and a decree taken thereon. 
 
 If new matter occurs or is discovered after the de- 
 cree, it is not properly matter of supplement, but 
 may be introduced into the cause, if necessary, by a 
 bill expressly framed for the purpose, and called a 
 bill to execute or to impeach a decree. 
 
 A bill to execute a decree is a bill assuming as its 
 basis the principle of the decree, and seeking merely 
 to carry it into effect. For example, such a bill 
 may be filed where an omission has been made in 
 
 (j>) Fallowes v. Williamson, 11 Ves. 306. 
 (2) Mitf. 75 ; Dyson v. Morris, 1 Hare, 413 ; Jones v. Howells, 
 2 Hare, 342 ; Holland v. Baker, 3 Hare, 68. 
 
 46 
 
722 ADAMS'S DOCTRIN-E OF EQUITY. 
 
 consequence of all the facts not being distinctly on 
 the record ;(r) or where, owing to the neglect of 
 parties to proceed under a decree, their rights have 
 become embarrassed by subsequent events, and a new 
 decree is necessary to ascertain them ; (s) or where a 
 decree has been made by an inferior Court of equity, 
 the jurisdiction of which is not equal to enforce it.(t) 
 And a bill of the same nature is sometimes exhibited 
 by a person who was not a party, nor claims under 
 a party, to the original decree, but claims in a similar 
 interest, or is unable to obtain the determination of 
 his own rights until the decree is carried into execu- 
 tion, (m) The distinguishing feature of a bill of this 
 class is, that it must carry out the principle of the 
 former decree. It must take that principle as its 
 basis, and must seek merely to supply omissions in 
 *the decree or proceedings, so as to enable 
 L -■ the Court to give effect to its decision. If it 
 goes beyond this, it is in truth a bill to impeach, the 
 decree, and is subject to the restrictions which will 
 be hereafter considered as imposed on bills of that 
 class, (u) It appears, however, that although the 
 plaintiff in such a bill cannot impeach the decree, 
 yet the defendant is not under the same restriction. 
 If the decree can be enforced by the ordinary pro- 
 cess, it will be assumed, until reversal, to be correct. 
 And even where a decree is required in aid, the same 
 
 (r) Hodson V. Ball, 1 Ph. 181. (s) Mitf. 95. 
 
 (0 Mitf. 96. 
 
 (u) Mitf. 95; 2 Dan. 0. P. 1405; Oldham v. Eboral, 1 Coop. 
 Sel. Ca. 27. 
 
 (y) Hodson v. Ball, 11 Sim. 456; 1 Ph. 177; Toulmin v. Cop- 
 land, 4 Hare, 41 ; Davis v. Bluck, 6 Bea. 393. 
 
OF BILLS TO EXECUTE A DECREE. 723 
 
 assumption will be generally made. But it is com- 
 petent for the Court, in respect of the special appli- 
 cation, to examine the decree, and if it be unjust, to 
 refuse enforcement. (^«) 
 
 A bill to impeach a decree is either a bill of review, 
 a supplemental bill in the nature of review, an ori- 
 ginal bill of the same nature, or an original bill on 
 the ground of fraud. There is also another class of 
 bills mentioned by Lord Redesdale, termed " bills to 
 suspend or avoid the operation of decrees." They 
 appear, however, to be adapted only to contingencies, 
 arising from public events ; and as the instances of 
 them, which are to be found in the books, originated 
 chiefly in the embarrassments occasioned by the 
 Great Rebellion, they are to be considered with much 
 caution, (x) 
 
 A bill of review is used to procure the reversal of 
 a decree after signature and inrolment. It may be 
 brought upon error of law apparent on the decree, 
 or on occurrence or discovery of new matter. In the 
 former case the bill may be filed without leave of the 
 Court, but the error complained of must not be mere 
 error in the decree, as on a mistaken judgment, 
 which would in effect render a bill of review a mere 
 substitute for an appeal, but it must be error appa- 
 rent on the face of the decree, as in the case of an 
 absolute *decree against an infant, (y) Errors 
 in form only, though apparent on the face of <- ' 
 the decree, and mere matters of abatement, seem not 
 
 (w) Mitf. 96; 2 Dan. C. P. 1407; Hamilton v. Houghton, 2 
 Bligh. 169. 
 
 (x) Mitf. 74; 2 Dan. C. P. 1408. 
 
 (y) Mitf. 84; Perry v. Phelips, 17 Ves. 179. 
 
724 ADAMS'S DOCTRINE OF EQUITY. 
 
 to have been considered sufficient ground for re- 
 view, (z) Where a bill of review is founded on the 
 occurrence or discovery of new matter, the leave of 
 the Court must be first obtained ; and this will not 
 be granted except on an affidavit, satisfying the 
 Court that the new matter could not by reasonable 
 diligence have been produded or used by the appli- 
 cant at the time when the decree was made ; and 
 showing also that such new matter is relevant and 
 material, either as evidence of matter formerly in 
 issue, or as constituting a new issue, and is such as, 
 if previously before the Court, might probably have 
 occasioned a different decision, (a) If such a bill is 
 filed without leave, it will be taken off the file or the 
 proceedings stayed. (6) 
 
 A bill of review, on new matter discovered, has 
 been permitted even after an affirmance of the decree 
 in Parliament ; but it may be doubted whether a bill 
 of review on error apparent can be brought after 
 such affirmance. If a decree has been reversed on 
 bill of review, another bill of review may be brought 
 upon the decree of reversal. But when twenty years 
 have elapsed from the time of pronouncing a de- 
 cree, which has been signed and inrolled, a bill of 
 review cannot be brought ; and after a demurrer to 
 a bill of review has been allowed, a new bill of 
 review on the same ground cannot be brought, (c) 
 
 (z) Mitf. 85. 
 
 (o) Mitf. 84-87; Partridge v. Usborne, 5 Euss. 195 j Hungate 
 V. G-asooyne, 2 Ph. 25. 
 
 (b) Hodson V. Ball, 11 Sim. 456; 1 Ph. 177; Toulmin v. Cop- 
 land, 4 Hare, 41. 
 
 (c) Mitf. 88. 
 
OF BILLS OF REVIEW. 725 
 
 It is a rule of the Court that the bringing of a bill 
 of review shall not prevent the execution of the de- 
 cree impeached, and that a party shall not be allowed, 
 except under very ^special circumstances, to 
 file or prosecute such a bill, unless he per- l^^^°A 
 forms at the proper time all that the decree com- 
 mands, {d) 
 
 In a bill of this nature it is necessary to state the 
 former bill, and the proceedings thereon ; the decree 
 and the point in which the party exhibiting the bill 
 of review conceives himself aggrieved by it, and the 
 ground of law, or the new matter, upon which he 
 seeks to impeach it ; and if the decree is impeached 
 on the latter ground, it seems necessary to state in 
 the bill the leave obtained to file it, and the fact 
 that the new matter has been discovered since the 
 decree was made. It has been doubted whether 
 this last statement is traversable after leave has 
 been given to file the bill. The bill may pray 
 simply that the decree may be reviewed and re- 
 versed in the point complained of, if it has not been 
 carried into execution. If it has been carried into 
 execution the bill may also pray the further decree 
 of the Court to put the party complaining of the 
 former decree into the situation in which he would 
 have been if that decree had not been executed. If 
 the bill is brought to review the reversal of a former 
 decree, it may pray that the original decree may 
 stand. The bill may also, if the original suit has 
 become abated, be at the same time a bill of revivor. 
 A supplemental bill may also be added, if any event 
 
 (d') Mitf. 88 J Partridge v. Usborne, 5 Russ. 195. 
 
726 ADAMS'S DOCTRINE OF EQUITY. 
 
 has happened which requires it, and if any person 
 not a party to the original suit becomes interested 
 in the subject, he must be made a party to the bill 
 of review by way of supplement, (e) 
 
 A supplemental bill, in the nature of review, is 
 used to procure the reversal of a decree before iiirol- 
 ment, on the occurrence or discovery of new matter. 
 The leave of the Court must be obtained for filing 
 it, and the same affidavit is required for this purpose 
 as is necessary to obtain leave for a bill of review. 
 P^ V -. q-i The manner of procedure on such a bill *is 
 to petition for a rehearing of the cause, and 
 to have it heard at the same time on the new matter 
 introduced. The bill itself in its frame resembles a 
 bill of review, except that instead of praying that 
 the former decree may be reviewed and reversed, it 
 prays that the cause may be heard with respect to 
 the new matter, at the same time that it is reheard 
 upon the original bill, and that the plaintiff may 
 have such relief as the nature of the case made by 
 the supplemental bill requires. (/) If the ground 
 of complaint be error apparent, it may be corrected 
 on a rehearing alone, and a supplemental bill is un- 
 necessary. 
 
 An original bill, in nature of review, is applicable 
 when the interest of the party seeking a reversal 
 was not before the Court when the decree was made. 
 Thus, if a decree is made against a tenant for life, a 
 remainderman in tail, or in fee, cannot defeat the 
 proceedings, except by a bill showing the error in 
 
 (fi) Mitf. 88-90. 
 
 (/) Perry v. Phelips, 17 Ves. 178; Mitf. 90, 91. 
 
OF BILLS OF REVIEW. 727 
 
 the decree, tlie incompetency in the tenant for life 
 to sustain the suit, and the accrual of his own inte- 
 rest, and thereupon praying that the proceedings in 
 the original cause may he reviewed, and that for 
 that purpose the other party may appear to and an- 
 swer this new bill, and the rights of the parties may 
 be properly ascertained. A bill of this nature, as it 
 does not seek to alter a decree made against this 
 plaintifif himself, or against any person under whom 
 he claims, may be filed without the leave of the 
 Court, (g) 
 
 A bill to impeach a decree for fraud used in ob- 
 taining it suflSciently explains its own character. It 
 may be filed without the leave of the Court, because 
 the alleged fraud is the principal point in issue, and 
 must be established by proof before the propriety of 
 the decree can be investigated. And where a decree 
 has been so obtained, the Court will restore the par- 
 ties to their former situation, whatever their rights 
 may be. Besides cases of direct fraud in obtaining 
 a decree, it seems to have been considered that 
 where a *decree has been made against a p^ - n^-. 
 trustee, without discovering the trust, or L ^ 
 bringing the cestui que trust before the Court, or 
 against a former owner of property without disco- 
 vering a subsequent conveyance or incumbrance, or 
 in favour of or against an heir, without discovering 
 a devise of the subject-matter of the suit, the con- 
 cealment of the trust, of the subsequent conveyance 
 or incumbrance, or of the will, ought to be treated 
 as a fraud. It has been also said, that where an 
 
 (g) Mitf. 92. 
 
728 Adams's doctrine op equity. 
 
 improper decree has been made against an infant, 
 without actual fraud, it ought to be impeached by 
 original bill. When a decree has been made by 
 consent, and the consent has been fraudulently ob- 
 tained, the party grieved can only be relieved by 
 original bill. 
 
 A bill to set aside a decree for fraud must state 
 the decree, and the proceedings which led to it, with 
 the circumstances of fraud on which it is impeached. 
 The prayer must necessarily be varied according to 
 the nature of the fraud used, and the extent of its 
 operation in obtaining an improper decree. (Ji) 
 
 (K) Mitf. 93, 94. 
 
INDEX. 
 
 THE PAGES KEFEKRED TO ARE THOSE BETWEEN BRACKETS [ ] . 
 
 ABANDON 
 contract, notice by aggrieved party 
 to, 68 
 ABATEMENT 
 
 ofsuit, 403-406, 410, 417 
 ABROAD, 
 commission to examine witnesses, 
 
 23-25 
 service of process, 323, 327 
 defendant domiciled, 360 
 plaintiff, 360 
 
 See JVe Exeat Regno^ 
 ABSCONDING, 
 
 defendant, 324, 326, 328. 
 ABSENT PARTY, 
 Substituted service on, 324 
 decree saving rights of, 343 
 reference to Master as to, 379 
 See Abroad. 
 ABSTRACT OF TITLE, 
 fraud in, 178 
 Master to peruse, 379 
 ACCEPTANCE 
 oftrusts, 27, 36 
 
 how evidenced, 37 
 ACCIDENT, 
 delay occasioned by, 89 
 forfeiture incurred by, 109 
 or mistake in framing instrument, 
 166 
 ACCOUNT 
 generally, 220-228 
 of committee, 293,294 
 of legacies, 258 
 of mortgagee in possession, 118, 
 
 119. 
 of profits of partnership, 244 
 of receivers, 293, 294 
 of trustee, 57, 63 
 
 of profits made, 64 
 discovery as to, 11 
 fraudulent, discovery as to, 5 
 partnership, jurisdiction as to, 239, 
 
 240, 241 
 in suit for ascertainment of bounda- 
 ries, 237 
 
 ACCOVNT— continued. 
 in suit for cancellation, 191 
 
 infringement of patent, 
 
 213, 357 
 injunction, 218 
 partition, 232 
 
 limit of, 232, 233 
 writ of ne exeat, 360 
 against guardian, 281 
 dowress entitled to, 234 
 defendant directed to keep, 357 
 schedule containing, 344 
 settled or stated, plea of, 337 
 reference to Master as to, 379 
 decree for taking, 259, 362 
 preliminary, 380 
 
 party liable to, see Representatives. 
 action of, 224, 240 
 ACCOUNTANT-GENERAL, 352 
 
 See Fayment into Court. 
 ACCUMULATION, 
 trusts for, 43, 64 
 of pin money, 46 
 presumption of, 104 
 ACKNOWLEDGMENT 
 oftrusts or confidence, 28 
 ACQUIESCENCE 
 of cestui que trust, in breach of trust, 
 
 62 
 of purchaser, efl'ect of, 87 
 by party to an account, 227, 228 
 ACTION AT LAW, 
 parties to, 312 
 
 discovery in aid of, 18, 19, 24 
 defence to, discovery in aid of, 9 
 by mortgagee, 112, 113, 117 
 directed, 375, 378, 379 
 
 on interpleader, 206 
 See Ejectment ; Statute of Limi- 
 tations. 
 
 ACTS, 
 contract for performance of, 92 
 specific covenant for doing, 109 
 
 See Ownership. 
 of Parliament, printing of, 214 
 
730 
 
 INDEX. 
 
 ADMINISTRATION, 
 grant ofliligated, 352 
 durante minori aetate, 410 
 pendente lite, 410 
 of testamentary assets, 248-266 
 
 order of appli- 
 cation in, 
 262, 263 
 of estate of mortgagor, 120, 121 
 
 of debtor, 130 
 suit, by whom instituted, 257 
 costs of, 64, 65, 390, 391 
 ADMINISTRATOR, 
 set-off in suits by or against, 222 
 action of account by or against, 225 
 appointed by Ecclesiastical Court, 
 248 
 See Representatives. 
 ADMIRALTY COURTS, 
 proceedings in, 198, 233 
 See Court. 
 ADMISSIBILITY, 
 as witnesses, of parties to suits, 363 
 -365 
 
 See Evidence. 
 ADMISSION, 
 stated or charged, 304, 305 
 as to documents, 13, et seq., 350 
 as to money in hands of defendant, 
 
 350, 351 
 rendering evidence unnecessary, 363 
 directed on trial of issue, 377 
 action, 378 
 See Answer ; Copyholds. 
 ADMITTANCE 
 to copyholds, bill to compel, 65, 98, 
 99 
 ADVANCEMENT, 
 purchase construed as, 101 
 of ward, 286 
 of cause, order for, 401 
 ADVANCES, 
 
 future iDy mortgagee, 163-165 
 ADVERTISEMENT 
 for creditors, legatees, and next of 
 kin, 262 
 ADVICE 
 
 given, discovery as to, 6, 343, 344 
 ADVOWSON, 
 trust to purchase, 71, 72 
 See Living; Presentation. 
 AFFIDAVIT 
 to bill to perpetuate testimony, 24, 
 331 
 of interpleader, 206, 231 
 by shipowners, 207 
 on application for production of docu- 
 ments, 15, 18, 331 
 
 to stay separate pro- 
 ceedings, 259 
 to amend answer, 346 
 to obtain interlocutory 
 orders, 348, 355, 356 
 to grant injunction, 
 355, 356 
 
 AFFIDAVIT— co?i«raBe(f. 
 
 to extend injunction, 
 
 195 
 to dissolve injunction, 
 
 355, 356 
 for leave to file bill of 
 review, 417, 418 
 in cause, use of, before Master, 383 
 for examination after publication, 
 
 372 
 to prove document at hearing, 373 
 as to instrument destroyed or lost, 
 167, 331 
 AFFIRMATIVE, 
 
 pleas, 337 
 AGENT, 
 notice to, 157 
 
 bill by, against principal, for ac- 
 count, 221 
 bill of interpleader by, 204 
 inquiry as to wilful default of, 221 
 to sell or buy, 184 
 neglecting to render accounts, 220, 
 
 221, 222 
 mixing up his own with his princi- 
 pal's property, 222 
 making profit for himself, 222 
 account against, 221 
 substituted service on, 324 
 AGREEMENT, 
 under Statute of Frauds, 85, 86 
 to deposit deeds, 124 
 to refer to arbitration, 192 
 on behalf of infants, 285 
 
 lunatic, 295, 296 
 instrument executed in pursuance 
 
 of, 169 
 written, see Misrepresentatioji. 
 See Parol ; Purchase. 
 ALIEN, 
 discovery as to, 5 
 trust of real estate for, 42, 50, 51 
 trust to sell and pay proceeds to, 137, 
 
 138 
 enemy, disability of, to sue, 331 
 ALIENATION 
 of trust, restraint on, 42 
 pendente lite, by act of party, 408 
 by act of law, 404, 
 409 
 ALIENEE 
 with notice, rights of, 273 
 pendente lite, 408, 409 
 bound by proceedings in suit, 409 
 ALIMONY, 
 what, 46 
 
 arrears of, ground for writ of ne 
 exeat regno, 360 
 ALLEGATION 
 in bill, 306 
 
 See Statement ; Charges. 
 ALLOWANCE 
 
 of exceptions, 386, 387 
 ALTERATION. See Instrument 
 Co7iversion ; Decree. 
 
INDEX. 
 
 731 
 
 AMENDMENT 
 of bill, 304, 342, 346 
 
 right as to, 346 
 
 when time for, passed, 412, 
 
 413 
 leave for, 380 
 Bpecial leave for, 413 
 after allowance of plea, 342 
 at hearing, libertj' of, 342, 
 343 
 of answer, 346 
 of state of facts, 383 
 AMERICAN COURTS, 121 
 ANNUITIES, 
 life, sale of, 83 
 ANOMALOUS PLEA, 338 
 ANSWER, 
 rules as to, 8, et seq. 
 what a defendant must, 308 
 of one defendant, effect of, as against 
 another, 20 
 
 as respects 
 himself, 
 20,21 
 prolixity of, 1 1 
 suggestion in, of matter for inquiry, 
 
 21 
 positive denial in, effect of, 21 
 admissions by, 363 
 
 as to documents, 14, 
 et seq, 
 how read in equity, 21 
 
 at law, 21 
 defence by, 342-347 
 
 when bill demurrable, 
 336 
 protection from discovery by, 4 
 in support of plea, 332, 337, 339, 340 
 plea directed to stand for, 342 
 use of, as evidence, 363 
 to bill for administration, 259 
 to cross-bill for discovery, 22 
 to bill for injunction, 194, 205 
 
 of revivor, 407 
 formal, filed in name of defendant, 
 
 329 
 contract to, 5 
 
 exception for insufficiency of, 14 
 further, 346 
 
 motion or petition on, 348 
 See Discovery. 
 ANTICIPATION, 
 clause prohibiting, 43, 44 
 language to impose fetter on, 45 
 APPEAL 
 generally, 388, 396-401 
 in lunacy, 290 
 at law, 300, 301 
 
 in equity, on facts as well as law, 
 366, 377 
 APPEARANCE 
 entered for defendants, 326, 328 
 at hearing, default of, 374, 400 
 APPLICATION 
 of purchase-money, 156 
 
 APPOINTMENT, 
 power of, abuse of, 185 
 under power, 30 
 
 as to election, 93, 94 
 of new trustees under power, 38 
 
 effect of bill filed for, 
 
 39 
 by Court, 37, 39 
 of person to convey, by Court, 37 
 judgment defeated by, 153 
 See Receiver. 
 APPORTIONMENT 
 
 of costs, 300, 392 
 ARGUMENT 
 of demurrer, 335 
 of plea, 339, 342 
 ARBITRATION, 
 discovery in aid of, 18 
 dispute referred to, 191, 192 
 submission to, arbitration of, 191, 
 192 
 
 made rule of Court, 
 192 
 See Submission. 
 ARBITRATOR, 
 proceedings before, 18 
 miscarriage of, 191 
 misconduct of, 192 
 grounds of judgment of, 193 
 ARRANGEMENT 
 by consent, reference to Master as 
 to, 379 
 ASSENT 
 
 of executor to bequest, 250, 251 
 ASSETS 
 legal, defined, 252-254 
 equitable defined, 254-257 
 getting in of, 250, 251, 252 
 of partnership, administration of, 
 240, 241 
 
 interest in, 241, 
 242 
 testamentary, administration of, 248 
 
 -266 
 answer to bill of revivor as to, 407 
 ASSIGNEES 
 in bankruptcy, 142 
 
 grants void against, 
 
 145 
 suit defective for 
 
 want of, 409 
 plaintiff, death of, 
 410 
 See Bankrupt ; Bankruptcy ; 
 Chose in Action. 
 ASSIGNMENT 
 of chose in action, 53, 54, 80, 142, 148 
 of copyright, 215 
 of debt, 53, 54 
 of dower, 233, 234 
 
 suits for, costs of, 390 
 of lease, 3 
 of possible and contingent interests, 
 
 54 
 of right, 53, 54 
 
732 
 
 INDES. 
 
 ASSIGNMENT.— con«t«Mc^. 
 
 of trust or confidence, 28, 53 
 
 fraudulent, 151 
 
 injunction against, 144 
 See Conveyance ; Grant ; Term ; 
 Elegit. 
 ASSIGNDR 
 
 of chose in action, 317 
 ASSISTANCE, 
 
 writ of, 393, 394 
 ASSUMPSIT, 
 
 action of, 224 
 ATTACHMENT, 
 
 writ of, 324, 394 
 
 witli proclamations, 324 
 
 abolished, 
 328, 393 
 
 when sequestration substituted for, 
 326 
 
 in default of appearance, 328 
 of answer, 329 
 
 for non-performance of decree, 393 
 
 non-bailable for costs, 394 
 ATTAINDER 
 
 of cestui que trust, effect of, 50 
 
 of trustee or mortgagee, 50 
 ATTENDANCE, 
 
 before Master, 382, 383 
 ATTENDANT. See Terms. 
 ATTESTING 
 
 witness, evidence of, 249, 250, 373 
 ATTORNEY, 
 
 communication with, 6 
 
 taking a benefit, 184 
 See Solicitor. 
 ATTORNEY-GENERAL, 
 
 party to what suits, 313, 314 
 
 complaint by, 301 
 
 a defendant, 311 
 
 answer by, 8 
 
 protector of lunatics, 301 
 - costs of, 390 
 AUCTION, 
 
 employing persons to bid at, 177 
 AUCTIONEER, 
 
 bill of interpleader by, 204, 205 
 AUDITOR 
 
 in action of account, proceedings by, 
 224 225 
 AUTHENTICITY 
 
 of document, 373 
 AUTHOR, 
 
 rights of, 213 
 
 statutes protecting, 214 
 AUTHORITIES, 
 
 conferred by law, 99' 
 AVERAGE 
 
 general, doctrine of, 270, 271 
 AVERMENT 
 
 in plea, 340, 341 
 
 in answer, 343 
 
 in bill of revivor, 407 
 
 in supplemental bill, 414 
 
 in bill in nature of supplemental 
 bill, 412 
 
 AVOIDANCE, 
 
 matter of, 303, 336 
 AWARD, 
 
 how enforced, 192 
 
 may be impeached, 192 
 
 how invalidated, 193 
 
 jurisdiction to set aside, 191, 193 
 
 application to set aside, 193 
 
 plea of, 337 
 BAIL, 360 
 
 See Equitable Bail. 
 BAILIFF, 
 
 accounts of, 225 
 BANK 
 
 notes, sheriff to seize, 131 
 
 distringas on, as to stock, 357, 358 
 
 restraining order on, as to transfer or 
 dividend, 358 
 BANKRUPT, 
 
 mortgagor becoming, 121 
 
 plaintifi becoming, 409 
 
 uncertificated, sued, 331 
 
 assignees of, costs of, 390, 391 
 BANKRUPTCY, 
 
 Court of, 198 
 
 fraudulently issuing fiat of, 198 
 
 fiat in, not notice, 157 
 
 conveyances, &c., avoided by, 145, 
 148 
 
 assignees in, injunction to restrain, 
 198 
 
 petition in, 349 
 
 set-off in, 223 
 
 ofpartner,241,246 
 
 pendente lite, 409 
 
 suit, defective by, 409 
 BARGAIN, 
 
 set aside in equity, 186, 187 
 BENEFICE, 
 
 person succeeding to, bill against, 
 410, 411 
 BENEFIT, 
 
 obtained by influence, 184 
 
 See Consideration ; Trustees. 
 BEQUEST. See Election ; Charita- 
 ble. 
 BIBLE, 
 
 right to printing of, 214 
 BILL, 
 
 generally, 301-311 
 
 statement in, 302, 303 
 
 charges in, 302, 303 
 
 interrogatories in, 302 
 
 prayer of relief, 302 
 process, 302 
 
 for administration, 257 
 
 for administration of assets, evidence 
 in, 362 
 
 of foreclosure, 113, 119 
 
 or sale, 120 
 
 of interpleader, 202-206 
 
 of peace, 199-201, 249 
 
 in cases of election, 95, 96 
 
 for discovery in aidofother proceed- 
 ings, 20, 31, 22, 197 
 
INDEX. 
 
 733 
 
 BILL — continued. 
 for establishing modus, 236 
 for redemption, dismissal of, 120 
 for account, writ of ne exeat regno 
 
 on, 360 
 for specific performance, writ of ne 
 
 exeat regno on, 360 
 founded on the solet, 238 
 to make infant ward of Court, 281 
 to perpetuate testimony, 23-25 
 to revive, 406 
 
 to execute a decree, 415, 416 
 to impeach decree, 415, 416 
 
 for fraud, 419, 420 
 to suspend or avoid operation of 
 
 decree, 416 
 of review and revivor, 418 
 
 by way of sup- 
 plement, 418 
 and information, 73, 74, 76 
 by one partner against another, 240, 
 
 241 
 by surety against principal, 270 
 by one of a class on behalf of himself 
 
 and others, 320,410 
 when affidavit to be annexed to, 167 
 pro confesso, application to take, 326 
 taken pro confesso, 327, 329, 400 
 and answer, cause heard on, 347« 
 dismissal of, 373 
 
 for want of prosecution, 
 347 
 right to file new, 373 
 order to retain, with liberty to pro- 
 ceed at law, 378 
 imperfections of, 403, 403 
 
 See Copy of Bill; Cross-Bill; In- 
 junction ; Interpleader ; Ori- 
 ginal Bill ; Review ; Revivor ; 
 Supplement. 
 
 BILL OF EXCHANGE, 
 sheriff to seize and sue on, 131 
 action on, 168 
 
 injunction against negotiating, 355 
 See Security. 
 
 BONA VACANTIA, 
 trust of chattels when, 51 
 
 BOND, 
 with penalty, 108 
 to marry, 187 
 
 of committee or receiver, 294 
 debt, priority of, 252 
 
 may be tacked, 164 
 correction of, 172 
 lost, 167 
 
 profert of, at law, 167 
 parties to, parlies to suit, 319 
 
 BOOKS, 
 
 of account, discovery as to, 11 
 protection to, 214 
 See Copyright. 
 
 BOROUGH ENGLISH, 50. 
 
 BOUNDARIES, 
 
 ascertainment of, 237 
 
 confusion of, 237, 238 
 
 bill for settling, 380 
 BOUNTY, 
 
 voluntary, a consideration, 97 
 BREACH, 
 
 of trust, liability of trustees as to, 59, 
 61, 62, 268 
 
 option of cestui que trust, in case of, 
 143 
 
 cestui que trust, consenting to, 62 
 
 suit as to, parties to, 319 
 
 costs of suit as to, 64 
 
 afiecting charity property, Romil- 
 ly's acts in respect to, 75, 76 
 
 to discover secret, 216 
 
 of professional confidence, 370 
 
 of contract, see Specific Performance. 
 BUILDING, 
 
 contract for, 83 
 BUSINESS, 
 
 goodwill of, 80, 81 
 
 damaging, injunction against, 216 
 CANCELLATION, 175-193 
 CAPIAS AD SATISFACIEN- 
 DUM, 
 
 when plaintiff may have, 133 
 CARGO. See Average. 
 CASE, 
 
 for Court of law directed, 375, 376 
 
 printed, on appeal, 399 
 
 of the Duties, 200- 
 
 of the Fisheries, 200 
 CAUSE, 
 
 set down for hearing, 373 
 
 set down on further directions, 387 
 
 not set down on further directions, 
 385 
 
 directed to stand over, 372, 403 
 
 order to advance, 401 
 
 day to show, see Infant. 
 See Confirmation. 
 CAVEAT, 
 
 against enrolment of decree, 307 
 
 emptor, maxim of, effect of, 178 
 CERTIFICATE, 
 
 on case directed, 376 
 
 of counsel for rehearing or appeal, 
 399 
 CESTUI QUE TRUST, 
 
 who called, 26 
 
 effect of death of, without heirs, 50 
 attainder of, 50 
 
 trustee may deal with, 60, 184 
 
 option of, in case of breach of trust 
 143 
 
 consent of, to breach of trust, 62 
 
 suit by, parties to, 318 
 
 See Conversion; Reconversion. 
 CHAMPERTY, 
 
 discovery as to, 3 
 CHANGE 
 
 of property subject to a trust, 142 
 See Conversion. 
 
734 
 
 INDEX. 
 
 CHARGE, 
 equitable, by deposit of deeds, 135 
 lien available by way of, 127 
 judgment, under 1 & 2 Vict. u. 110, 
 
 130, 131 
 creation of, on partition, 231 
 
 See Contribution, ; Discharge ; 
 Exoneration ; Incumbrance ; 
 Marshalling. 
 CHARGES, 
 in bill, 302, 303 
 and expenses, 391 
 CHARITABLE 
 purposes, trust for, 65, et seq. 
 Uses, Statute of, 66, 75 
 
 trusts of real estate for, 68 
 trust, purchaser with notice of, 69 
 cy pres application of, 69, 70, 
 71 
 bequests, no marshalling in favour 
 of, 276 
 CHARITY, 
 meaning of word, 65 
 three duties of, 97 
 gift to, 70, et seq. 
 relief on bill as to, 309 
 Romilly's act as to, 75 
 suit costs. of, 391 
 See Statute of Limitations. 
 CHATTELS, 
 trust as to, 42, 51 
 real, of wife, 43, 47 
 lien at law on, 127 
 possession of, 127 
 
 See Bona Vacantia; Specific. 
 CHILD, 
 purchase in name of, 35, 101, 102 
 unprovided for, equity of, 101 
 See Advancement. 
 CHILDREN, 
 duty of maintaining, 97 
 being creditors, 105 
 See Relations. 
 CHOSESIN ACTION, 
 of wife, 43, 47 
 
 assignment of, 53, 54, 80, 142, 148 
 how perfected, 161 
 bill of interpleader as to, 204 
 suit as to parties to, 317 
 CHURCH, 
 rates, debts, or charges on, appoint- 
 ment of, 76 
 
 See Living; .Presentation. 
 CLAIMS, 
 by several persons, ground for bill of 
 interpleader, 202 
 CLASS, 
 suit by representative of, 410 
 See Creditors; Legatees. 
 CLERGY, 
 poor-act for augmenting mainte- 
 nance of, 286, 296 
 CLIENT, 
 communications of, with advisers, 
 discovery as to, 6 
 
 ChlEi^T— continued. 
 
 attorney taking benefit from, 184 
 CO-DEFENDANTS, 
 
 claims between, 313, 402 
 
 litigation between, 402 
 
 cross relief between, 402 
 COLLATERAL SECURITY, 
 
 given by mortgagor, 119 
 LLEGES, 
 trusts imposed on, 68, 69 
 their privileges of printing, 214 
 COLLIERIES, 
 jurisdiction of Court as to, 247 
 quasi partnership in, 247 
 receiver of, 354 
 COLONIAL COURT, 
 
 proceedings in, 198 
 COMMISSION, 
 in suit for partition, 231, 380 
 to set out dower, 234, 380 
 to ascertain boundaries, 237, 360 
 to examine witnesses abroad, 23-25 
 de lunatico inquirendo, 292 
 under great seal, inquisitions on, 
 transcripts of, 296 
 COMMISSIONERS, 
 to make partition, 231, 380 
 to examine witnesses, 368 
 for regulation of charities, 75 
 for settling boundaries, 380 
 for assignment of dower, 380 
 in lunacy, now Masters, 294 
 COMMITTEE, 
 in lunacy, 
 
 appointment of, 291 
 powers of, 295 
 duties of, 293, 294 
 security given by, 294 
 allowance for maintenance to. 
 
 293 
 remuneration to, 293 
 control over, 298 
 of lunatic or idiot, suit by, 301 
 COMMON INJUNCTION, 195, 
 
 358 359 
 COMMUNICATION, 
 
 privileged, 6 
 COMPANY, 
 injunction against, 211 
 bill by, parties to, 320, 321 
 COMPENSATION, 
 what, must be, 91 
 condition of sales as to, 89, 90 
 for defects, 85, 89 
 
 for defects, performance with, 90, 91 
 in cases of election, 96, 97 
 for non-performance of covenants, 
 109 
 COMPETENT WITNESS, 364 
 COMPLETION. See Specific Fer- 
 
 formance. 
 COMPOSITION, 
 with creditors, 179, 180 
 real, 236 
 
INDEZ. 
 
 735 
 
 COMPROMISE, 
 
 made under mistake, 188 
 
 of administration suit, 259 
 
 reference to Master as to, 379 
 CONCEALED OR UNDIS 
 
 CLOSED INTEREST, 151 
 CONCEALMENT, 
 
 fraud by, 178, et seq. 197 
 
 on treaty of marriage, 180-182 
 CONDITIONS of SALE, 
 
 as to misdescriptions and errors, 89, 
 
 90 
 CONFEDERACY, 
 
 charge of, 306 
 CONFIRMATION, 
 
 of Master's report, 385 
 See Report ; Meiurn. 
 CONFLICTING CLAIMS, 
 
 priority between, 145 
 CONFUSION, 
 
 of boundaries, 237, 238 
 CONSIDERATION, 
 
 valuable, necessary for specific per- 
 formance, 78, 92, 98 
 
 benefit conferred as, 79, 92 
 
 service rendered as, 79 
 
 mistakenly supposed to exist, 188 
 
 conveyance without, 146 
 
 See Fraud ; Imposition ; Merito- 
 rious ; Purchase. 
 CONSIGNEE. See West Indian 
 
 Mortgage. 
 CONSOLS, 
 
 investments in, 56, 57 
 CONSPIRACY, 
 
 indictment at law for, 4 
 CONSTRUCTION, 
 
 of instrument, as to trusts, 30, 31 
 
 by extrinsic evidence, not allowed, 
 170 
 
 as to legacy or gift, 103 
 
 of equity, trustees by, 62 
 See Interpretation, 
 CONTEMPT, 
 
 process of, 324, 325, 393-395 
 
 of Court, as to marriage of ward, 
 288 
 
 party being in, 326 
 CONTINGENT CHARGE, 91 
 CONTINGENT INTEREST, 
 
 assignment of, 54, 55 
 CONTRACT, 
 
 in writing, parol waiver of, 84 
 
 misrepresentation of, 84 
 
 in fieri, 86 
 
 implied, 213 
 
 in rem, equity under, 149, 159 
 
 purchaser having right to nullify, 
 153 
 
 promise to alter, 84 
 
 secured by penalty, 107 
 
 as to real estate, 85 
 
 to convey, 122 
 
 imperfect or uncompleted, 
 123 
 
 CONTRACT.— coraimaea!. 
 
 by defendant, to answer, 5 
 
 notice of prior, 152 
 
 specific performance of, equity to 
 compel, 77 
 
 where fulfilment of, impossible, 80, 
 81, 89 
 
 conversion, doctrine of, as to, 140 
 See Specific Performance. 
 CONTRIBUTIOSr, 
 
 generally, 267-269 
 
 between partners, 241, 243 
 
 persons liable to, parties to suit, 318, 
 319 
 CONVERSION, 
 
 equitable, 135-145 
 
 maxim as to, 135 
 
 of infant's estate, 296, 297 
 
 of lunatic's estate, 296, 297 
 
 of partnership estate, 245 
 CONVEYANCE, 
 
 on trust, advantage of, 27 
 
 inconvenience and risk of, 27 
 
 to new trustee, 37, 38 
 
 by trustee when trust at an end, 59 
 
 by incapacitated trustee, 81, 349 
 
 in pursuance of executory trust, 169 
 
 by substitution, 37, 39, 81, 116 
 
 where party has become lunatic, 296 
 
 fraudulent, statutes against, 145, 
 147, 153 
 
 imperfect, 123 
 
 unregistered, 153, 155 
 
 with compensation for defects, 85, 
 ■ 89 
 
 by bankrupt or insolvent, 145, 148 
 
 by donee having elected, 96 
 
 by tenant in tail, 99 
 
 on decree of partition, 232 
 
 of legal estate, protection by, 159, 
 160 
 
 character of, evidence of, HI 
 
 takes effect from date, 145 
 
 master to settle, 379 
 CONVICTION, 
 
 of felony, forfeiture by, 50, 51 
 CO-OBLIGORS, see Bond. 
 CO-OWNERS, 
 
 parties to suits, 315 
 COPARCENERS, 
 
 partition between, 229 
 COPIES, 
 
 in Master's office, persons entitled 
 to take, 383 
 CO-PLAINTIFFS, 
 
 interests of, 313 
 COPY OF BILL, 
 
 service of, 311, 318 
 COPYHOLDS, 
 
 suit to compel admittance to, 65 
 
 admittance of infants, femes covert, 
 and lunatics to, 285, 295 
 
 surrender of, equity for supplying, 
 98, 99 
 
 partition of, 229, 230 
 
736 
 
 INDEX. 
 
 C OTYBOhDS— continued. 
 
 how pass, 98 
 
 of debtor, 131 
 .See Court. 
 COPYRIGHT, 213-219 
 
 infringers of, 200 
 
 rights of crown as to, 214 
 
 ex parte injunction as to, 355 
 CORPORATION, 
 
 eleemosynary, jurisdiction of Court 
 as to, 74 
 
 property, trusts of, 67 
 
 trust imposed on, 68, 69 
 
 process against, 326 
 
 suit against, parlies to, 20, 314 
 See Municipal. 
 
 correction; 
 
 of written instrument, 168-173 
 CORRUPTION, 
 
 award procured by, 193 
 COSTS, 
 principle as to, in diflerent suits, 389 
 
 -391 
 general rules as to, 392 
 apportionment of, 389, 390, 392 
 as between party and party, when, 
 391 
 solicitor and client, when, 391 
 where tender or terms offered, 393 
 when out of estate or fund, 400, 401 
 of mortgagee, 111 
 of trustee, 61 
 
 of vendor where title not shown, 89 
 to pay for lunatic, 296 
 of answer to bill for discovery, 21, 22 
 for discovery and 
 relief, 21 , 22 
 cross-bill for discovery, 22 
 of administration suit, 261 
 of suit to set aside bargain, 186, 187 
 as to fraud, 176 
 for specific performance, 80, 
 
 81 
 as to trust, 64, 65 
 of interpleader suit, 206 
 of trying a traverse, 293 
 on demurrer, 334 
 of rehearing of bill taken pro con- 
 
 fesso, 400 
 in case of appeal, 400, 401 
 of rehearing on appeal, 400, 401 
 of the cause, time for deciding, 389 
 decree or order directing payment 
 
 of, 394 
 rehearing on question of, 400 
 right to revive as to, 406, 407 
 defendant's answer to save, 21 
 CO-TENANTS, 
 partition of, 229 
 COUNSEL, 
 communication of, with client, 6, 7 
 notice to, 157 
 signature of, to pleadings, 301 
 
 to exceptions, 345, 386 
 to interrogatories, 368 
 
 COVS^SF.!,— continued. 
 
 to petition of rehearing 
 
 or appeal, 399 
 to printed case, 399 
 certificate of, on appeal, 399, 400 
 COUNTY PALATINE, 
 
 suit for land in, 331 
 COURTS, 
 of equity, proceedings in, complained 
 
 of, 198 
 of equity, inferior, 415 
 of law and equity, contest between, 
 
 196, 197 
 of law, case for opinion of, 375, 376 
 of chancery, officers of, 198, 199 
 proceedings in, discovery in aid of, 
 
 18, 19 
 proceedings in other, injunction 
 
 against, 198 
 Manor, proceedings in, correction of. 
 65 
 See Action, Jurisdiction, Suit. 
 COURT ROLLS, 
 
 not notice, 157 
 COVENANT, 
 in lease, non-performance of, 109 
 compensation in respect of, 109 
 covenanter enjoined from infringing, 
 
 207 
 for purchasing land on trust, 137 
 notice of, effect of, 152 
 debt by, priority of, 252 
 CREDIBILITY, 
 of witness, impeachment of, 365, 
 371 
 CREDITORS, 
 remedy of, in equity, 129, 132 
 
 under 1 & 2 Vict. c. 110, 130, 131 
 suit by, 257, 258, 320 
 suit by some on behalf of all, 257, 
 
 258, 320, 404, 410 
 suit by, costs of, 391 
 proceedings by, against executor or 
 
 administrator, 250, 251 
 puisne, right against paramount cre- 
 ditor, 272 
 of lunatic, 297 
 of partnership, rights of, 244 
 gifts invalid against, 147, 148 
 grants, &c., void against, 145, 147 
 restrained from proceeding, 259 
 how judgments operate against, 131 
 advertisement for, 262 
 reference to master as to, 379 
 agreeing to give time, 107 
 gift or legacy to, 105 
 not bound to elect, 94 
 See Class, Composition, Elegit, 
 Execution, Marshalling, Prin- 
 cipal, Sureties. 
 CRIME, 
 discovery as to, from defendant, 3 
 4, 343 
 CROSS 
 bill, generally, 402-403 
 
INDEX. 
 
 737 
 
 C R SS — continued, 
 
 bill, form of, 403 
 
 when necessary, 17, 402, 403 
 
 right of defendant to file, 2, 17, 
 
 347, 402 
 costs of, 22 
 demands, right of set off of, 223 
 examination of witness, 370, 371 
 interrogatories, 370 
 suit, Court may direct, 226 
 CROWN, 
 rights of, by escheats or forfeiture, 
 
 50, 51 
 rights of, as to idiots and lunatics, 
 
 290, 291 
 jurisdiction of, as to eleemosynary 
 
 corporations, 74 
 appellate jurisdiction of, in equity, 
 
 397 
 prerogative copyright of, 214 
 debts due to, priority of, 252 
 conversion in favour of, 139 
 suit on behalf of, 301 
 suit as to rights of, 313, 314 
 title in, traverse of, 293 
 charitable fund, when at disposal of, 
 
 67, 68, 73 
 license of, for quitting kingdom, 560 
 See Alien; Attainder. 
 CUMULA-TIVE. See Gift; Legacy. 
 CURATOR, 
 
 of estate of lunatic, 296 
 CUSTODY, 
 ofinfants, 280, 281 
 
 statute as to, 283, 284 
 illegal, of infant, 281 
 defendants in, 327 
 instrument in defendant's, 25 
 See hifant. 
 CY PRES, 67, 68 
 application of trust funds, 68, 69 
 how eflfected, 71 
 in what cases, 73 
 DAMAGES, 
 
 arbitrary, mere matter of, 91 
 liquidated, 108 
 stipulated, 5 
 
 at law, remedy by, 83, 86, 87, 221 
 in injunction suit, 219 
 to vessel or cargo, 206, 207 / 
 
 See Compensation; Destructive; 
 Trespass; Penalty. 
 DEATH, 
 causing defect in suit, 410 
 abatement, 403, 405, 406. 
 of assignees of bankrupt or insolvent, 
 plaintiffs, 410 
 debtor, 130, 148, 173 
 heir pendente lite, 234 
 husband, 404, 405 
 idiot, or lunatic, 298 
 mortgagor, 120 
 partner, 241,246 
 plaintiff in interpleader suit, 
 206 
 
 47 
 
 DEATH — continued. 
 
 vendor or vendee, 140 
 DE BENE ESSE. See Examina. 
 
 tion. 
 DEBTOR, 
 land of, made assets, 253, 254 
 stock of shares belonging to, 133 
 entitled to trust or equity, 129 
 taken in execution, 133, 134 
 death of, 130, 148, 173 
 See Elegit; Execution. 
 DEBTS, 
 conveyance for payment of. 31 
 devise for payment of, 94, 253, 254 
 trust for payment of, 156, 255 
 payment of, provisions for, 43 
 statutes making real estate liable to, 
 
 253, 254, 275, 276 
 suit as to, parties to, 317 
 priority of, order of, 252 
 charged on several kinds of assets, 
 
 274 
 account of, 261 
 assignment of, 53, 54 
 incurred by married woman, 45, 46 
 gift or legacy in discharge of, 105 
 of lunatic, 296, 297 
 of mortgagor, payment of, 120 
 executor's right to retain, 223 
 notice to purchaser of, 156, 157 
 tacking of, under stat. 3 & 4 Wm. 4, 
 
 c. 104, 164 
 joint and several, 172 
 owing by partnership, 173 
 
 See Bond Debt; Composition; 
 Principal; Set off; Simple Con- 
 tract Debt; Sureties. 
 DECEIT, 
 
 intentional, 150 
 DECLARATION, 
 of trust, 27, et seq. 
 omission of, 32 
 how interpreted, 40 
 that fund may be identified, 56 
 character of trustee assumed by, 80 
 of intention, evidence of, 102 
 as to breach of trust, evidence of, 
 143 
 DECREE, 
 generally, 374-395 
 m suit for account, 226 
 for account, in suit to revive, 407 
 on bill for administration, 258, 259, 
 
 362 
 in suit for foreclosure, 119 
 to set aside bargain, 186, 187 
 for cancellation, 191 
 for partition, 223 
 for specific performance, 362 
 by one on behalf of himself and 
 others, 320, 321 
 in creditor's suit, 257, 258 
 in legatee's suit, 258 
 in interpleader suit, 205, 206 
 
738 
 
 INDEX. 
 
 T)ECREE— continued. 
 
 in original suit, use of, in supple- 
 mental, 411 
 
 in supplemental suit, 415 
 
 for charging property, 130 
 
 of injunction, 194 
 
 for dissolution of partnership, 242, 
 243 
 
 for delivering up an estate, 393 
 
 for payment of money, 393 
 
 original, 387, 388 
 
 on further directions, 387 
 in administration suit, 262 
 
 minutes of, 396 
 
 passed and entered, 396 
 
 signed and inrolled, 417 
 
 when in fieri, 396 
 
 conclusive, 396, 397 
 
 service of copy of, 394 
 
 error in, 396, 397 
 
 compelling obedience to, 326-393, 
 395 
 
 unjust, enforcement refused, 416 
 
 obtained by fraud, 419 
 
 by consent fraudulently obtained, 
 420 
 
 improper against infant, 420 
 
 alteration or reversal of, 396, 417 
 
 bill to execute or impeach, 415, 416 
 
 bill to suspend or avoid operation of, 
 416 
 
 reversal of, bill for, 416, 417 
 
 proceedings under, stay of, 401 
 
 impeached, bill of review shall not 
 prevent execution of, 417, 418 
 
 having effect of judgment, 130, 131 
 
 debts by, priority of, 252 
 
 when some parties out of jurisdic- 
 tion, 322, 323 
 
 on argument of plea, 342 
 
 saving rights of absent parties, 343 
 
 evidence, foundation for, 362, 363 
 
 evidence entered in, as read, 399 
 
 trustees constituted by, 62 
 
 by consent excludes appeal, 400 
 
 on default, rehearing or appeal as to, 
 400 
 
 matter discovered after, 415, 417 
 
 by inferior court of equity, 414 
 
 interlocutory, notice by, 157 
 
 final, or judgment, not notice, 157 
 
 mention of, in Master's report, 384, 
 385 
 See Order ; Priorities. 
 DEED, 
 
 execution of power by, 100 
 
 under duress, 182 
 
 mortgage by deposit of, 123, 
 
 depositee of, 125 
 
 to be registered, 153 
 
 registration of, not notice, 157 
 
 Master to settle, 379 
 
 resulting trust by, 32 
 
 of separation, 44 
 
 See Search; Title deeds; Trust. 
 
 DEFACEMENT, 
 
 suit to prevent, 92 
 DEFAULT, 
 
 decree by, 374, 400 
 iDEFEASIBLE, 
 
 interest being, 152, 153 
 DEFECTS, 
 
 substantial, 90 
 
 compensation for, 85, 89, 90, 91 
 
 in defendant's title, 15, 16 
 
 in title, waiver of, 87 
 
 in execution of gift, 100 
 
 in suit, how cured, 408, et seq. 
 
 fraud as to, 178, 179 
 DEFENCE, 
 
 statement and charge to meet, 303, 
 304 
 
 to a suit, 331-348 
 DEFENDANT, 
 
 at law and in equity, 1, 2 
 
 absconding, process against, 327 
 
 privileged, process against, 327 
 
 competent or incompetent, 8 
 
 discovery by one, effect of, 20 
 
 protection of, from discovery, 2, 3, 
 4,343 
 
 conflicting claims of, 313 
 
 right of, to set off, 222, 223 
 
 in custody under process, 327 
 
 to answer contempt, 329- 
 
 third answer of, insufficient, 346 
 
 litigation between, 402 
 
 female, marriage of, 403, 404 
 
 infant coming of age, discovery 
 from, 414 
 See Answer ; Discovery ; Insuf- 
 ficiency. 
 DELAY 
 
 by accident or misfortune, 89 
 
 Court may rectify, 88 
 DELIVERY, 
 
 effect of, 53 
 
 of deeds by way of security, 124 
 
 of chattel, 127 
 
 of instrument, 167 
 DEMURRER, 233-236 
 
 protection from discovery by, 3, 5, 6 
 DEPOSIT 
 
 of title deeds, 123 
 
 on sale, 128 
 
 of lease, 141 
 
 bill of interpleader as to, 204, 205 
 
 DEPOSITIONS, 
 of witnesses, 366-368 
 in cause, use of, before Master, 383 
 in original suit, \ise of, in supple- 
 mental, 411 
 in supplemental suit, 413 
 motion for leave to read, 413 
 
 to suppress, 370 
 used against alienee pendente lite, 
 409 
 DESIGNS, 
 registered, protection to, 214 
 
INDEX. 
 
 739 
 
 DESTRUCTION, 
 
 of instrument, 25, 166 
 
 suit to prevent, 92 
 DESTRUCTIVE TRESPASS,209, 
 
 210 
 DETAINER, 
 
 of chattel, 127 
 
 of title deeds, rights of, 124, 127 
 DETINUE, 
 
 action of, 9 1 
 DEVICE, 
 
 right to use, 217 
 
 imitation of, 217 
 DEVISAVIT VEL NON, 
 
 issue, when directed, 249 
 DEVISE, 
 
 of trust estate by trustee, 57 
 
 ineffectual, as to election, 92, 93, 94 
 
 for payment of debts, 94, 253 
 
 fraudulent and void, statutes as to, 
 253 
 
 specific, 265 
 
 residuary, 265 
 DEVISEES, 
 
 of mortgage in respect to reconvey- 
 ance, 116 
 
 of vendee, 140 
 
 of vendor, 141 
 
 title of, 249 
 
 how far trustees for creditors, 251 
 
 and heirs, contributions, &c. be- 
 tween, 274 
 See Representatives. 
 DIRECTORS, 
 
 of company, suit against, 322 
 DISABILITY, 
 
 to sue, 331 
 
 plea of, 336 
 DISCHARGE, 
 
 by matter in pais of contracts under 
 seal, 106-109 
 
 trustee's receipt, 156 
 
 of incumbrances, contribution to, 
 270 
 
 of one of several coparceners, 270 
 
 by one of parties liable, 270 
 
 of an order, 397 
 DISCLAIMER, 
 
 generally, 332, 333 
 
 deed of, 37 
 
 DISCOVERY, 
 generally, 1-22 
 bill for, prayer of, 311 
 
 parties to, 314 
 supplemental bill for, 413 
 in suit for account, 225 
 
 staled account, bar to, 
 226 
 suits for, costs of, 389 
 bill for, demurrer to, 334 
 plea to all relief, bar to, 338, 339 
 by answer, 343 
 
 required in cross suits by defendants, 
 402 
 
 T>lSCOY'EViY— continued. 
 from defendant on his coming of age, 
 414 B s . 
 
 mere want of, not ground for relief, 
 
 221 
 subsequent ground for injunction, 
 197 
 See Account ; Copyright ; Docu- 
 ments ; Patent. 
 DISMISSAL 
 of bill for administration, 259 
 if plaintiff omit to file replication, 
 
 347 
 for want of prosecution, 373 
 on default of plaintiff, 373 
 if plaintiff neglect to revive, 406, 
 
 407 
 when plaintiff bankrupt, 409 
 See Ml. 
 DISSEISIN, 
 
 of trustee, 37 
 DISSOLUTION 
 of partnership by death or bank- 
 ruptcy, 246 
 of partnership, suit for, 240, 322 
 what will cause or warrant, 241, 242 
 DISTRIBUTION 
 of assets, 261 
 bill for, 262 
 among creditors, 250 
 
 partners, 241, 245 
 See Statute of Distributions. 
 DISTRINGAS, 
 process by, 326 
 as to stock, 357 
 DIVIDENDS, 
 on stock of infant, 286 
 lunatic, 296 
 See Distringas ; Restraining 
 Order; Stock. 
 DOCKET 
 of judgments, 155 
 system abolished, 155 
 See Judgjnent, 
 DOCUMENTS, 
 discovery as to, 12, 13 
 title to possess, 13 
 
 possession of, by plaintiff, 12, 17, 18 
 by defendant, 14, 15 
 charge as to, 305 
 suit for, 13 
 bill to impeach, 16 
 production of, motion for, 13 
 deposit of, on order to produce, 350 
 liberty to inspect and take copies of, 
 
 350 
 uncertainly described, 14 
 schedule containing list of, 344 
 in custody of public officer, proof of, 
 
 372 
 proof of, by affidavit, 373 
 delivery of, contempt as to, 394 
 seizure and disposal of, by seques- 
 trators, 395 
 See Inspection ; Production. 
 
740 
 
 INDEX. 
 
 DONEE, 
 of power, contract by, 99 
 quasi owner, 99 
 DOWER, 
 at common law, what, 51 
 33 to equitable estates, 51, 152, 153 
 assignment of, 233, 234 
 notice of, effect of, 152, 153 
 DQWER ACT, 51, 94, 153, 235 
 DRAMATIC COMPOSITIONS, 
 
 protection of, 214 
 DURANTE MINORI iETATE, 
 
 administration, 410 
 DURESS, 
 contracts by persons under, 182 
 See Fraud. 
 DUTY, 
 moral, performance of, a considera- 
 tion, 97, 101 
 EQUITABLE 
 assets, 252 
 bail, writ of ne exeat operates in 
 
 nature of, 360 
 charge, 125 
 conversion, 135-145, 245 
 
 See Conversion. 
 debt, ground for writ of ne exeat, 
 
 3G0 
 fieri facias and elegit, 122, 129 134 
 fraud, 186 
 
 impediments to trial at law, 378 
 interest, debtor having, 129 
 assignment of, 53 
 lien, 122, 126-129 
 mortgage, 122, 123-125 
 right, not perfect in any of claimants, 
 
 162 
 set-off, 223 
 waste, 208 
 ECCLESIASTICAL COURT, 
 proceedings in, 18, 19, 198, 235, 250 
 as to will, 248 
 See Court. 
 EDUCATION 
 
 of ward, scheme for, 282 
 EJECTMENT, 
 action of, nature of, 202 
 for tithes, 235 
 injunction to restrain, 194, 202, 249 
 ELECTION 
 generally, 92-96 
 
 equity of, 92, 93 
 by alien, 138 
 by purchaser, 352 
 for infant, 284 
 between two benefits, 105 
 between action and suit, 336 
 ELEGIT, 
 equitable, 122,129-134,164 
 extended by Statutes, 1 & 2 Vict, 
 c. 110, and 2 & 3 Vict. c. 11- 
 131,159 
 estate by assignment of, 159 
 ENFORCEMENT 
 ofdeoree, 415, 416 
 
 ENGRAVINGS, 
 protection to, 214 
 ENLARGING PUBLICATION, 
 
 380 
 ENTAIL, 
 of trust estate, 50 
 executory trust as to, 41, 42 
 EQUITY 
 to have accounts taken in Chancery, 
 
 see Account. 
 for account in injunction suit, 219 
 for account, bar to, 227 
 for administering assets of testator 
 
 or intestate, 248, 250 
 for assignment of dower, 233, 234 
 for resorting to Chancery in cases of 
 
 set-off, 222, 223 
 for partition, 229 
 for sale of partnership estate, 244, 
 
 245 
 for specific performance, 285 
 for winding up partnership, 239 
 of interpleader, essentials to, 203 
 of injunction against tort, 207 
 injunctive, incidentsof, 217-219 
 to have legal impediments removed, 
 
 249 
 of contribution, 266, 267 
 of exoneration, 266, 269 
 of marshalling, 266, 271 
 of election, 92, et seq. 
 of wife to a settlement, 48, 288, 289 
 to file cross-bill, 402, 403 
 to revive, 406 
 in nature of tacking, 165 
 based on disputed legal right, 378 
 being equal, law prevails, 148, 159 
 when equal, 148 
 confessed, 196, 359 
 reserved, 359 
 
 decree on, 375 
 subordinate, 85 
 
 affidavit as to, 205 
 notice of effect of, 151 
 want of, 331 
 
 demurrer for, 333 
 plea of, 336 
 
 See Tacking. 
 EQUITY OF REDEMPTION 
 on mortgage, 110, 111 
 of mortgagor, 113 
 incidents of, 113, et seq. 
 title to, how perfected in equity, 160 
 mortgage of, 122, 123 
 assets, 255, 256 
 aliened, not assets, 165 
 of wife's estate, 173 
 ERROR 
 at law, 300, 301 
 in decree or order, 396, 397, 416, 
 
 419 
 in stated account, 226 
 as to instruments, 166 
 on both sides, 171 
 condition of sale as to, 89, 90 
 
INDEX. 
 
 741 
 
 ERROR — continued. 
 
 improvements made in, 150 
 ESCHEAT 
 
 generally, 263, 264 
 
 what is, 50, 113 
 
 of mortgagee's estate, 115 
 
 of mortgagor's estate, 113, 114 
 
 as to trust, 37, 50 
 ESSENCE OF CONTRACT. See 
 
 Time. 
 ESTATE, 
 
 legal and equitable, analogy be- 
 tween, 50 
 
 equitable as to dower, 51 
 
 See Dower ; Legal Estate ; Per- 
 sonal Estate ; Possession ; Heal 
 Estate ; Trust. 
 EVIDENCE 
 
 generally, 362-373 
 
 of breach of trust, 143 
 
 of fraudulent conveyance, 147 
 
 of fraud, not fraud, 158 
 
 of mistake or error, 171, 172 
 
 in cases of election, 95 
 
 production of document being, 15, 17 
 
 as to presumption of trust, 34, 35 
 
 on purchase in name of another, 102 
 
 of intention as to gifts or legacies, 
 103, 104 
 
 extrinsic, of intention, 103, 104, 105, 
 106 
 
 presumptive, correction on, 172, 173 
 
 conflicting or insufficient, 376 
 
 going into, without answer, 329 
 
 notice of, in bill, 304 
 
 as to plea, 341 
 
 defects or failures in reference to 
 Master to supply, 379, 382 
 
 already used, use of, before Master, 
 383 
 
 additional, in Master's office, 383 
 
 mention of, in Master's report, 384 
 
 entered as read, 399 
 
 on rehearing and appeal, distinction 
 as to, 399 
 
 rejection of, ground of appeal, 399 
 
 new, of original equity, 413 
 
 after publication passed, 413 
 
 appendix of, to case, on appeal, 399 
 See Extrinsic ; Parol. 
 EXAMINATION 
 
 de bene esse, 23-25 
 
 bill for, 167 
 
 of witness at law, 363, 364, 365, 366 
 in equity, 366-368 
 before Master, 383 
 
 method of, on reference to the Mas- 
 ter, 382 
 
 of defendant, when third answer in- 
 sufficient, 345 
 
 of party to suit as witness, 363, 364 
 
 after publication, 371, 372 
 See Evidence. 
 EXAMINER, 368 
 
 documents produced before, 350 
 
 EXCEPTION 
 
 to answer for insufficiency, 14, 345, 
 346 
 
 to Master's report, 345, 384, 386 
 EX DELICTO, 
 
 liability, 268 
 EXECUTED 
 
 trust, what, 40 
 EXECUTION 
 
 at law, 300 
 
 writ of, under 1 & 2 Vict. c. 110, 
 129 
 
 taking debtor's person in, 133, 134 
 
 property exempt from, 130 
 
 plaintiff restrained from issuing, 196 
 
 against partner, 241 
 
 See Fieri Facias ; Elegit. 
 
 of deed, proof of, 373 
 
 of instrument, decree for., 394, 395 
 by Master, instead 
 of party in con- 
 tempt, 395 
 See Re-execution. 
 
 of decree, bill for, 415, 416 
 
 bill of review shall not 
 prevent, 417 
 EXECUTORS, 
 
 powers of, 251 
 
 discovery by, as to accounts, 11 
 
 action of account by or against, 225 
 
 set-off in suit by or against, 222 
 
 of executors, account by, 225 
 
 of trustee, 57 
 
 of vendee, 141 
 
 receipt by, 58 
 
 sale by, of leaseholds, 156 
 
 acquiring benefit, 59, 60 
 
 balance in hands of, 258, 259 
 
 how far trustees, 251 
 
 parties to suit against heir, 319 
 
 entitled to retain debt out of legacy, 
 223 
 
 debtors to their testator, 35], 352 
 See Representatives. 
 EXECUTORY 
 
 trust, what, 40, 41, 42 
 
 gift, 42 
 EXONERATION 
 
 generally, 269-371 
 
 intention of, 263, 264 
 EX PARTE 
 
 injunction, 205, 355 
 EXTINCTION 
 
 of trust, 32 
 EXTRINSIC EVIDENCE, 
 
 of intention, 103, 104, 106, 169, 170 
 See Evidence. 
 FACTS, 
 
 mistake as to, 188, 193 
 
 uncertainty as to, 188 
 
 known, law mistaken, 189 
 
 conclusion of, answer to, 344 
 See Issue ; Master. 
 FAILURE 
 
 of trusts, 33, 69 
 
742 
 
 INDEX. 
 
 FALSE REPRESENTATION, 
 150 
 
 See 31ishd. 
 FATHER, 
 
 of ability to maintain child, 287 
 
 right of guardianship of, 278 
 
 misconduct of, 283 
 
 dead, non-compos, or beyond seas, 
 289 
 FELLOWSHIP, 
 
 trust for founding, 71, 72 
 FELONY, 
 
 composition of, 3 
 
 infant convicted of, 284 
 
 cestui que trust attainted of, 50 
 FEME COVERT, 
 
 suit by, 301, 331 
 
 suit against, parties to, 313 
 
 power of, over separate property, 45 
 
 equity for settlement of, 43, 47, 48, 
 49, 288, 289 
 waiver of, 48, 49, 389 
 
 interest of, how fettered, 44 
 
 alimony of, 46 
 
 right of survivorship of, 47 
 
 appointment testamentary by, 93 
 
 election by, 96 
 
 examination of, by Court, 48, 289 
 
 statutes relating to property of, 285 
 
 separate use and pin money trusts 
 for, 43, 46 ~ 
 
 share of, carried to separate account, 
 388, 389 
 FEOFFMENT 
 
 of insane person, 182 
 FERRY, 
 
 obstructors of, 200 
 FIERI FACIAS, 
 
 equitable, 122, 129-134 
 
 extension by Statutes 1 & 2 Vict. c. 
 110, and 2 Vict. c. 11,131, 395 
 FINAL DECREE, 375, 388 
 FINDING 
 
 of Master, statement of, in report, 
 384 
 FINES, 
 
 legal title destroyed by, 153 
 
 contribution to discharge, 270 
 FIXTURES. See Waste. 
 FORECLOSURE, 
 
 suit for, 112, 119 
 
 parties to, 317 
 costs of, 391 
 
 of Welsh mortgage, 125 
 
 of mortgage by deposit, 125 
 
 by trust deed, 125 
 
 in case of lien, 128 
 
 See Judgment; Recognisance; 
 Staiide. 
 FOREIGN 
 
 Court, proceedings in, 19, 198 
 
 Sovereign, party to suit, 313 
 FORFEITURE, 
 
 discovery as to, 2, 3, 5, 343 
 
 of mortgage, 112 
 
 FORFEITVRE— continued. 
 of trust estates, 50 
 in cases of election, 96, 97 
 
 of tithes, 235 
 under Marriage Act, 289 
 witness not bound to incur, 370 
 FRAUD, 
 what constitutes, 176 
 in equity, 144 
 discovery as to, 4 
 jurisdiction in cases of, 175, 176 
 suit as to, parties to, 317, 319 
 by drawer of will, 248 
 in obtaining will, 175, 248 
 probate, 248 
 decree, 419, 420 
 enrolment of decree vacated on, 397 
 original bill to impeach decree, on 
 
 ground of, 416 
 gross inadequacy of consideration, 
 
 79 
 refusal to complete contract, 86 
 as to instrument, 166 
 staled account opened on ground of, 
 
 226 
 contract rescinded on ground of, 144 
 innocent party profiting by, 176 
 priority of equity on ground of, 176 
 to vitiate award, 192 
 warranting injunction, 197 
 precluding copyright, 215 
 to discover secret, 216 
 set-off in cases of, 223 
 alleged in bill, reason against de- 
 murring, 336 
 by solicitor, notice of, 151 
 concealment, evidence of, 151 
 evidence of, not fraud, 158 
 costs in cases of, 392 
 
 See Banliruptcy ; Cancellation ; 
 Fraudulent Conveyances ; Mis- 
 led ; Rescission ; Statute of 
 Frauds. 
 FRAUDULENT 
 conveyances. Statutes against, 145, 
 
 147 
 removal of goods, 238 
 dealing of partner, 243 
 FREIGHT. See Shipowner; Ave- 
 rage. 
 FRIEND, 
 
 advantage taken by, 185 
 FRIENDLY SOCIETIES, 
 
 jurisdiction over, 76 
 FURTHER DIRECTIONS 
 in administration suit, 262 
 reserved, 387 
 cause set down on, 387 
 when cause not set down for, 385 
 cause heard on, 387, 389 
 decree on, 375, 387 
 
 GAMING, 
 
 discovery as to, 6 
 GAVELKIND, 50 
 
INDEX. 
 
 743 
 
 GENERAL OBJECTS, 
 
 trust for, 65 
 GIFT, 
 instrument of, 79, 80 
 or meritorious consideration, 98, 99, 
 
 100 
 promise inter vivos followed by, 104, 
 105 
 • as substituted portion, 101 
 
 cumulative, 101 
 
 successive, 103 
 See Consideration. 
 GOODS, 
 
 sale of, 83 
 
 account of, 224 
 GOODWILL 
 
 of business, 81 . 
 
 of partnership, 246 
 GRAMMAR SCHOOLS, 
 
 jurisdiction by statute as to, 76 
 GRANDCHILD, 
 
 equity of, 101 
 GRANT 
 
 of trust or confidence, 28 
 
 fraudulent, 145 
 
 voluntary, 146 
 GUARANTEE, 
 
 contract to, 106 
 
 stipulation in, 107 
 
 by specialty, 106, 107 
 
 by simple contract, 107 
 
 discharge of, 106, 107 
 
 restraint from suing at law upon, 
 \ 107 
 GUARDIAN, 
 
 appointment of, 281, 349 
 
 in socage, 279 
 
 account of, 225 
 
 authorized by Court, act of, 143 
 
 legal, misconduct of, 283 
 
 under Marriage Act, 289 
 
 of personal estate of lunatic, 292 
 
 consent of, to marriage, 289 
 
 property unduly changed by, 142, 
 143 
 
 benefit to, from ward, 184 
 
 Master to appoint, 380 
 GUARDIANSHIP, 
 
 kinds of, 279, 280 
 
 by statute, 280 
 
 right of, 278-280 
 HABEAS CORPUS, 
 
 jurisdiction under, 280 
 HANDWRITING, 
 
 proof of, 373 
 HARDSHIP, 
 
 specific performance being, 85 
 HEARING, 
 
 generally, 374-395 
 
 of cause, documents produced at, 
 350 
 
 of exceptions, 387 
 
 as to assets, in suit to revive, 407 
 
 on supplemental matter, 415 
 
 See Cause ; Further Directions^ 
 
 HEIR, 
 
 equity of, 100, 101 
 
 right of, to an issue devisavit vel 
 
 non, 249, 377 
 expectant, bargain with, 186, 191 
 presumptive, of lunatic, 294, 295 
 of mortgagee in respect to recon- 
 veyance, 116 
 of trustee, 37, 38 
 of vendee, 140 
 of vendor, 141 
 
 in case of failure of devise, 33, 138 
 course of, to set aside will, 249 
 when put to his election, 93, 94 
 resulting trust for, 139, 140 
 how far trustee for creditors, 251 
 will established against, 249 
 suit against parties to, 319 
 costs of, in suit to establish will, 390 
 allegation of plaintiff" being, 337, 
 
 338 
 and devisee, contribution between, 
 274 
 
 See Infant ; Trustees, 
 HEIRSHIP, 
 
 plea denying, 337 
 HEREDITAMENTS, 
 contract or sale of, 85 
 HOUSE OF LORDS, 
 appellate jurisdiction of, in equity, 
 397-399 
 HUSBAND, 
 rights of, as to estate of wife, 289 
 against will of wife, 93 
 in case of election, 96 
 restrictions of, 43, 47, 49 
 assignment by, of wife's chose in 
 
 action, 142 
 of female party to suit, 403, 404 
 and wife, bill by or against, 403, 404, 
 405 
 
 mortgage by, 173 
 admissions by, 363 
 See Feme Covert. 
 
 IDIOT, 
 
 who considered, 290 
 
 conveyance and contract of, 182 
 
 suit by, 301 
 
 suit against, parties to, 313 
 IGNORANCE 
 
 of law, 190, 191 
 
 rescinding transaction, 188 
 
 as to instrument, 166 
 
 forfeiture incurred by, 109 
 ILLEGAL TRUSTS, 32, 33 
 ILLEGALITY 
 
 as to instruments, 166 
 ILLUSORY APPOINTMENT, 
 
 185, 186 
 IMBECILITY, 
 
 consequence of, 183 
 IMMORALITY 
 
 precluding copyright, 316 
 
744 
 
 INDEX. 
 
 IMPERFECTION 
 
 of bill, 402, etseq. 
 IMPERTINENCE 
 
 in allegations in bill, 306 
 
 in answer, 343 
 
 Master to judge of, 380 
 See Prolixity ; Scandal. 
 IMPEACH 
 
 decree, bill to, 415 
 See Account ; Decree. 
 IMPOSITION 
 
 inadequacy of consideration, 79 
 IMPRISONMENT, 
 
 deed executed during, 182 
 
 decree enforced by, 395 
 IMPROVEMENTS 
 
 made in error, 150 
 INCAPACITY 
 
 to contract, 182-185 
 
 persons under, property belonging 
 to, 285, 290 
 See Fraud. 
 INCUMBRANCE, 
 
 inquiry of vendor as to, effect of, 
 150 
 
 contribution to discharge, 270 
 
 on estate of lunatic, 296 
 INCUMBRANCER, 
 
 prior, 122 
 
 mesne, 163 
 
 rights of, as to receiver, 353 
 
 power of, to tack, 163-165 
 
 getting in term, 52 
 
 acquiring conflicting rights, 53 
 INDEMNITY, 
 
 offer to give, what is, 91 
 
 against risk, 91 
 
 in case of loss, 168 
 
 bond of, 172 
 
 right of surety to, 269 
 INFANCY 
 
 generally, 278-289 
 
 as to election, 96 
 
 of defrauding party, 176 
 
 of parties in suits for partition, 232 
 INFANT, 
 
 suit by, 301, 331 
 
 for specific performance, 82 
 
 relief on bill for, 309 
 
 reference to Master as to proposal 
 for benefit of, 379 
 
 statutes relating to property of, 285 
 custody of, 283 
 284 
 
 estate of, receiver appointed, 353 
 
 property of, unduly charged, 142, 
 143 
 
 day for, to show cause, 232 
 
 truslee being, 37, 38 
 
 heir of mortgagee being, 116 
 
 mortgagor, sale directed, 120, 121 
 
 admissions by, 363 
 
 defendant, answer by, 8 
 
 coming of age, discovery 
 from, 414 
 
 INFANT— continued. 
 decree against, 416 
 improper decree made against, 420 
 See CtLstody ; Infant. 
 INFLUENCE, 
 
 benefit obtained by, 184 
 INFORMATION 
 and bill as to charitable trusts, 73, 
 
 74 
 and bill, 301, 302 
 INFRINGEMENT 
 of patent, 212, 213 
 of copyright, 214, et seq. 
 
 remedy at law for, 215 
 216 
 in equity, 216 
 INHERITANCE, 
 
 term attendant upon, 51, 52 
 INJUNCTION, 
 common. 195. 358, 359 
 special, i95, 198 
 ex parte, 205, 355, 356 
 mandatory, what, 218 
 at suit of creditor, 129 
 against sale or assignment, 144 
 
 proceedings at law, 194-198, 
 
 249, 311 
 proceedings in ecclesiastical 
 and other Courts, 197, 
 198 
 tort, 207-219, 247 
 trespass as to mine or col- 
 liery; 247 
 ejectment, 249 
 on bill of interpleader, 205 
 by shipowners, 207 
 to stay separate proceedings in ad- 
 ministration suit, 259, 260 
 continued, 196 
 made perpetual, 196 
 order of, 349, 355-359 
 operation of, 194 
 after judgment, 196 
 motion to dissolve, 196, 205, 206, 
 356, 359 
 See Dissolution. 
 INJURIOUS ACTS, 
 
 contract to refrain from, 83 
 IN LOCO PARENTIS, 
 
 person, 35, 98, 101 
 INNOCENCE 
 
 of party profiting by fraud, 176 
 INQUIRY 
 directed, 367 
 
 on interpleader, 206 
 as to wilful default of trustee or 
 
 agent, 221 
 as to profits of partnership, 246 
 in lunacy, 294 
 
 on bill for specific performance, 362 
 to verify statement, 177 
 effect of, as to notice, 157, 158, 161 
 suggestion in answer of matter for, 
 
 21 
 preliminary, 380, 381 
 
INDEX. 
 
 745 
 
 INQUISITION 
 de lunatico inquirendo, 291, 292 
 transcripts of, 296 
 INROLMENT 
 of decree, 374, 396, 397 
 
 caveat against, 397 
 vacated. 397 
 INSOLVENCY, 
 conveyances, &c., avoided by, 145, 
 
 148 
 making suit defective, 409 
 pendente lite, 409 
 INSOLVENT, 
 
 when party to suit, 319 
 assignees of, costs of, 390, 391 
 INSPECTION OF DOCUMENTS 
 plaintiff's right to, 13 
 before hearing, 16 
 in possession of plaintiff, 17, 18 
 See production. 
 INSTRUMENT, 
 execution of, contempt in regard to, 
 
 394 
 delivery of, 167 
 
 construction of, as to trusts, 30 31 
 written, extrinsic evidence as to, 
 
 103, 104, 105, 106 
 in pursuance of agreement, 169 
 destroyed, lost, or in defendant's 
 
 custody, 25 , 
 
 See Cancellation ; Concealment ; 
 Correction ; J)estructio7i ; Execu- 
 tion ; Loss; Missing; Negotia- 
 ble ; Se- execution ; Rescission ; 
 Security. 
 INSUFFICIENCY 
 of answer, 345 
 exceptions for, 345 
 Master to judge of, 380 
 INSURANCE, 
 covenant for, 109 
 contribution in cases of, 269 
 fraud as to, 179 
 INTENTION 
 of donor of power, 100 
 See Extrinsic Evidence. 
 INTEREST 
 on moneys retained by trustees, 63 
 
 used by trustees, 64 
 compound, when trustee charged 
 
 with, 64 
 on purchase-money, 88, 140 
 on legacy, 101, 102, 103 
 on mortgage, increase or reduction 
 of, 108, 109, 112 
 payment of, within 
 twenty years, 114 
 in account of mortgagee, 118 
 
 See Stock. 
 in or coricerning lands, tenements, 
 
 or hereditaments, 85 
 concealed or undisclosed, 151 
 limited, owner of, 89, 90, 91 
 defeasible and indefeasible, 152, 153 
 cessation of, 5 
 
 INTEREST— continued. 
 of parties to suits, 314 
 
 rise of, 410-411 
 transfer of, 408- 
 
 410 
 examined as wit- 
 nesses, 364 
 of witnesses, 363-365 
 of surviving parties to suit, 404 
 defendant incapable of having, 5 
 INTERLOCUTORY 
 orders, 348-361 
 
 alteration or reversal of, 396 
 applications for preliminary decrees, 
 
 375 
 writ of injunction, 194, 195 
 
 motion for, 217 
 See Decree; Motioti ; Order; Pe- 
 tition. 
 INTERPLEADER, 
 statute of, 203 
 suit of, revivor of, 405 
 action directed on, 206 
 See Bill. 
 INTERPRETATION 
 
 of declaration of trust, 40, et seq. 
 INTERROGATORIES 
 in bill, 302, 307, 308 
 
 as to documents, 12-14 
 note of, 307, 311 
 on third answer reported insufficient, 
 
 345 
 for examination of witnesses, 366- 
 
 371 
 rules for framing, 368 
 for cross-examination, 370 
 leave to exhibit, 372 
 examination on, before Master, 382 
 INVENTION, 
 right to, 216 
 
 See Copyright ; Patent. 
 INVESTMENT 
 of trust fund, 56, 63 
 of purchase-money, 156 
 of infant's property, 285 
 of fund in Court, 352 
 improper, 63, 64 
 See Conversion. 
 IRREGULARITY, 
 
 inrolment of decree vacated on, 397 
 ISSUE, 
 provision for, under Marriage Act, 
 
 289, 290 
 at law, manner of trial of, 300, 301 
 directed, 375, 376, 377 
 devisavit vel non, 249 
 raised by plea, 340, 341 
 
 by supplemental bill, 412 
 defect in, remedied by supplemental 
 bill, 412 
 JEWELS, 
 
 suit for recovery of, 92 
 JOINDER 
 of parties, 315-323 
 See Misjoinder. 
 
746 
 
 INDEX. 
 
 JOINT 
 
 demand, several as well as, 319 
 JOINT STOCK COMPANIES 
 suit to wind up, 241, 322 
 shares in, alienation of, 242 
 acts regulating, 142 
 JOINT TENANTS 
 partition by, 229 
 conveyance to persons as, 33, 34 
 JUDGE, 
 notes of, 377 
 rehearing by, 396 
 JUDGMENT 
 charges under 1 & 2 Vict. i^. 110- 
 
 122, 129-134, 148 
 charge on stock and shares, 133 
 debts, priority of, 252 
 debt, payment of, 261 
 person bound by, 123 
 decrees, &c., having effect of, 130, 
 
 131 
 lien by, equity under, 149 
 creditor must obtain, 148 
 against owner of equitable interest, 
 
 152 
 memorial of, 154 
 undocketed, 153, 155 
 when take effect, 145 
 or final decree, not notice, 157 
 docketing or registration of, not no- 
 tice, 157 
 at law, when Chancery will inter- 
 pose after, 196, 197 
 injunction after, 196 
 of Court, supposed error in, 197 
 motion to arrest, 300 
 subpcena to hear, 373 
 creditors, rights of, 129, et seq. 
 rights of, extended to all property, 
 
 133 ' 
 
 under statute 1 & 2 Vict. i;. 110, 
 
 130,131, 132,148 
 taking person of debtor in execution 
 under, 133, 134 
 See Search. 
 JURISDICTION 
 of Courts of law and equity, distinc- 
 tion as to, 1, 175, 176, 248 
 of Courts of equity to enforce disco- 
 very, 1 
 to enforce a right, 
 
 26 
 to administer a 
 right, 220 
 of equity, after judgment at law, 196, 
 
 197 
 of Court to decide questions whe- 
 ther of law or fact, 375 
 of Court, in cases of cross-bill, 403 
 statutory of Court of Chancery, 398, 
 
 399 
 appellate in equity, 397-399 
 House of Lords, contest of, with 
 House of Commons as to, 397, 
 398 
 
 JVRlSmCTION— continued. 
 averment of, in bill, 306 
 want of, demurrer for, 333 
 
 plea of, 336 
 persons out of, 322 
 guardian resident beyond, 282 
 ward taken out of, 282 
 infant taken out of, 284 
 
 See Discovery ; Fraud ; Ne Exeat 
 
 JURY 
 
 in matters of account, 224-226 
 See Issue. 
 
 LAND, 
 sale of, contract for, 83, 85 
 cultivation of, 83 
 converting. See Waste. 
 LANDLORD 
 equity of, on deposit of lease, 14), 
 142 
 LAPSE 
 by death of legatee, 276 
 of time in case of breach of trust, 62 
 how affecting charitable 
 
 trusts, 68, 69 
 no bar to relief in cases of 
 fraud, 176 
 LAW 
 questions of, 9 
 mistake as to, 188, 192 
 mistaken, facts known, 189 
 uncertainty as to, 189 
 conclusions of, answer as to, 344 
 deviation from rule of, 85 
 See Action ; Cose. 
 LEADING INTERROGATO- 
 RIES, 368 
 LEASE 
 by tenant for life, 3, 4 
 
 in tail, 99 
 contract for granting, 82 
 under power, rent reserved in, 174 
 renewal of, on request, 89 
 
 by trustee for, 55 
 or executor, 59, 60 
 of infant or feme covert, renewal of, 
 
 285 
 belonging to lunatic, renewal of, 
 
 295 
 date of order of Court as to, 82 
 deposit of, 141 
 See Assignment. 
 LEASEHOLDS 
 of debtor, 131,256 
 purchaser of, from executor, 156 
 equities of redemption of, 256 
 LECTURES 
 
 protected by Statute, 213 
 LEGACY 
 general, 275 
 cumulative, 101 
 successive, 103 
 bill for, 258 
 account of, 261 
 
INDEX. 
 
 747 
 
 LE GA C Y — continued. 
 trust for payment of, 156 
 payment of, 261 
 recovery of, 250 
 charged on several kinds of assets, 
 
 274 
 construed a provision, 101 
 as substituted portion, 101 
 to stranger and child, distinction be- 
 tween, 102 
 promise inter vivos followed by, 104, 
 
 105 
 in discharge of debt, 105 
 notice to purchaser of, 156 
 right of executor to retain debt out 
 of, 223 
 See Charitable ; Election. 
 LEGAL 
 estate, conveyance of, procured by 
 
 purchaser, 159 
 right, in either party, 159 
 
 not in either party, 160 
 where none, 162 
 order to try, 357 
 LEGATEE 
 by a fraud, constituted trustee, 248, 
 title of, 249 
 proceedings by, against executor or 
 
 administrator, 250, 251 
 administration bill by, 257 
 suit by, 258, et seq., 320, 410 "^ 
 advertisement for, 262 
 contribution, &c., between, 275 
 when party to suit, 315, 316, 320 
 See Class. 
 LESSEE 
 discovery by, 5 
 See Lease. 
 LESSOR. See Landlord ; Lease. 
 LETTER MISSIVE, 311 
 LETTERS PATENT. See Patent. 
 LIBEL 
 
 precluding copyright, 216 
 LIBERTY TO APPLY, 388 
 LIEN, 
 what it signifies, 126 
 possession, foundation of, 126 
 when at an end, 128, 129 
 equitable,"of vendor or purchaser, 
 
 122, 126-129, 152 
 by judgment, equity under, 149 
 See Deposit. 
 LIMITATION, 
 of personal estate analogous to strict 
 
 settlement, 42 
 of account of mortgagee, 119 
 of title of mortgagor to redeem, 119 
 See Statute of. 
 LIQUIDATED DAMAGES 
 
 fixed sum as, 108 
 LIS PENDENS 
 privileged communications, 6, 7 
 notice by, 157 
 
 not notice of unregistered incum- 
 brance, 154 
 
 LIS PENDENS— cora«j-«Me<?. 
 
 to bind purchaser, 157 
 LITIGATION 
 
 matters in, communications as to, 
 6,7 
 See Bill of Peace. 
 LITURGIES 
 
 right of printing, 214 
 LIVING 
 
 presentation to, by mortgagor, 118, 
 120 
 See Presentation. 
 LOAN 
 
 by trustee to lend, 55 
 LORD 
 
 of Parliament, a defendant, 311 
 See House of Lords ; Manor. 
 LOSS 
 
 compensation for, 91 
 
 of bond, excusing pro/ert, 167 
 
 of bill or note, 168 
 
 indemnity in case of, 168 
 See Affidavit. 
 LUCID INTERVAL, 297 
 LUNACY, 
 
 effect of, 182, 183 
 
 partner, incapacitated by, 243 
 
 jurisdiction in, how exercised, 290, 
 398, 399 
 
 petition in, 349 
 LUNATIC 
 
 who considered, 290 
 
 lucid interval of, 297 
 
 suit by, 301, 331 
 
 suit against, parties to, 313 
 
 without committee, answer by, 8 
 
 where contracting party becomes, 
 81 
 
 trustee being, 37, 38 
 
 mortgagee being, 116 
 
 conveyance and contract of, 182 
 
 statutes relating to property of, 285 
 
 brothers and sisters of, 288, 297 
 
 curator of, estate of, 296 
 
 MAINTENANCE 
 
 allowance of, 281,349 
 
 past, allowance for, 288 
 
 of lunatic, allowance for, 293, 297 
 
 of ward, allowance for, 286, 287 
 
 provision for, 286, 287 
 
 interest on legacy when 
 allovifed as, 103 
 
 statutory power of, 284, 285, 286 
 
 manner of, 287, 288 
 
 discovery as to, 3 
 
 of poor clergy, 286 
 MALFEASANCE, 
 
 of trustee, 64 
 
 See Breach of Trust. 
 MANDATORY 
 
 injunction, what, 218 
 MANOR, I,.ORD OF, 
 
 bill against, 65 
 
748 
 
 INDEX. 
 
 MANOR, LORD OF— continued. 
 bill of peace by or against, 199 
 See Court. 
 MANUSCRIPTS. See Copyright. 
 MAPS, 
 
 copyright of, 215 
 MARRIAGE, 
 consideration of, 146 
 agreement on treaty for, 180-182 
 secret agreement on, 180 
 contract, fraud on, 180 
 articles, construction on, 41, 42 
 clandestine, bond for assisting, 180 
 of ward, 288, 289, 290 
 of defendant, discovery as to, 3, 5 
 consent of trustees to, 186 
 causing abatement, 403 
 act, as to infant, 289 
 See Bond. 
 MARRIED WOMAN. See Feme 
 
 Covert. 
 MARSHALLING, 271-277 
 MASTER, 
 reference to, directed, 375, 379, 387 
 to take account, 225, 
 
 226 
 on bill for partition, 
 
 230, 231 
 in suit for dower, 234 
 as to profits of partner- 
 ship, 246 
 in administration suit, 
 
 260, 261 
 as {0 lunatic, 294 
 for re-investigation, 
 
 304 
 as to sufficiency of an- 
 swer, 345 
 jurisdiction of, in conduct of suits, 
 
 380 
 report of, 384-387 
 
 in administration suit, 262 
 to execute surrender or transfer, 
 
 395 
 in lunacy, 294 
 MATERIAL 
 
 facts, evidence as to, 362, 363 
 MEMORANDUM. See Agreement. 
 MEMORIAL 
 
 under Registry Acts, 154 
 MERCHANTS, 
 accounts of, 224, 225 
 what a stated account between, 227 
 MERITORIOUS OR IMPER- 
 FECT CONSIDERATION, 
 equity of, 97-105 
 MESSENGER, 328 
 MILL, 
 owner of, bill of peace by, 199 
 repairs of, by co-tenant, 267, 268 
 MINES, 
 jurisdiction of Court as to, 247 
 receiver of, 354 
 quasi partnership in, 247 
 opening, see Waste. 
 
 MINORITY. Bee Infancy. 
 MINUTES 
 
 of decree, 374, 396 
 MISAPPLICATION 
 
 of purchase-money, 155, 156 
 
 of trust-fund, 352 
 MISCONDUCT 
 
 of arbitrators, 192 
 
 of trustees, ground for receiver, 352, 
 353 
 
 alleged in bill, reason against de- 
 murring, 336 
 MISDESCRIPTION, 
 
 condition of sale as to, 89, 90 
 MISFORTUNE, 
 
 delay occasioned by, 89 
 MISJOINDER 
 
 of claim, 309, 310,314 
 MISLED 
 
 party, equity of, 150 
 MISREPRESENTATION 
 
 by plaintiff as to contract, 84 
 
 equity originating in, 159, 205 
 
 fraud by, 176 
 MISSING 
 
 instrument, 166 
 MISSTATEMENT, 
 
 fraud by, 177, 217 
 MISTAKE 
 
 affecting specific performance, 84, 
 85,90 
 
 as to instrument, 166 
 
 of solicitor, correction of, 170 
 
 rescinding contract, 188 
 
 money paid under, 188 
 
 acts done under, 188 
 
 of law or of fact, 191 
 
 by arbitrators, 192 
 
 award procured by, 193 
 See Compensation ; Error. 
 MODUS, 
 
 what is, 236 
 
 suit to establish, 236 
 
 costs of, 390 
 
 bill of peace as to, 199 
 
 issue to try, 236 
 MONEY, 
 
 trustee to realize or secure, 55, 56 
 invest, 56 
 
 purchaser in possession allowed to 
 expend, 36 
 
 purchase, not paid, 127 
 
 paid prematurely, 128 
 paid under mistake, 188, 
 189 
 See Fieri Facias ; Payment of, 
 into Court. 
 MORTGAGE, 
 
 definition of, 110 
 
 perfect and imperfect, 110-134 
 
 by husband and wife, 173 
 
 of an equity, 123 
 
 debt, payment of, 261 
 
 for satisfaction of debts, 253 
 
 devise subject to, 264 
 
INDEX. 
 
 749 
 
 M RT G A GE—cont inued. 
 
 contribution to discharge, 270 
 
 moneys out on, trust of, 28 
 
 interest on, where in nature of pen- 
 alty, 108, 109 
 
 property in, as assets, 264, 265, 274 
 
 estate in, in an infant, 285 
 See Tacking. 
 MORTGAGEE, 
 
 rights of, 110, et. seq., 353 
 
 when mortgagor banlc- 
 
 rupt, 121 
 under Registry Acts, 
 
 153, 154 
 in administration suit, 
 261 
 
 equitable, right of, to receiver, 353 
 
 costs of suit of, 390 
 
 ordinary right of, to costs, 21 
 
 when entitled to a sale, 120 
 
 power to tack, 163-165 
 
 in possession, duties of, 117, 118 
 
 second, 122 
 
 attainder of, 50 
 
 death of, without heirs, 50, 116 
 
 heir of, being an infant, 116 
 
 being lunatic, 116 
 
 renewal of lease by, 60 
 
 always mortgagee, 112 
 
 when bound to re-convey, 115 
 
 careless or negligent, 151 
 
 undocketed judgments as against, 
 155 
 
 inquiry as to wilful default of, 221 
 MORTGAGOR, 
 
 rights of, 110, et seq. 
 
 in possession, 114 
 
 answer of, as to costs, 21 
 
 as to prior mortgage, 122 
 
 of different estates, 165 
 
 receiver against, 353 
 
 becoming bankrupt, 121 
 See Infant. 
 MOTHER 
 
 of infant, rights of, 283, 284 
 
 consent of, to marriage, 289 
 MOTION, 
 
 classes of, 348, 349 
 
 for common injunction, 358 
 
 to extend injunction, 195 
 
 to dissolve injunction, 196, 205, 206, 
 356, 359 
 
 for production of documents, 15, 18 
 
 for preliminary decree, 375 
 
 to confirm report, 385 
 
 to discharge order irregularly made, 
 397 
 
 by defendant that plaintiff may re- 
 vive or bill may be dismissed, 406, 
 407 
 
 notice of, 348, 349 
 
 See Interlocutory Orders. 
 MOTIVE, 
 
 for successive legacies or gifts, 103, 
 104 
 
 MULTIFARIOUSNESS, 
 
 what, 309, 310 
 
 as a defence, 331 
 
 demurrer for, 333 
 MUNICIPAL CORPORATION 
 ACT, 
 
 trust under, 67, 76 
 MUTDAL, 
 
 fulfilment of contract, 80 
 
 accounts, see Accounts. 
 
 debts, see Set-off. 
 MUTUALITY, 
 
 between parties to contract, 82 
 
 NE EXEAT REGNO, 
 
 writ of, respecting alimony, 47 
 
 application for, 360, 361 
 
 to discharge, 361 
 See Writ of. 
 NEGATIVE PLEA, 337 
 NEGLIGENCE, 
 
 evidence of fraud, 151 
 NEGOTIABLE 
 
 instrument, action on, 168 
 
 security, fraudulent holder of, in- 
 junction against, 207 
 
 See Security. 
 NEW MATTER 
 
 after decree, 417, 418 
 
 statement as to, in bill of review, 
 418 
 NEW TRIAL 
 
 at law, 300, 301, 366 
 
 on issue directed, 377 
 
 on action directed, 379 
 NEXT FRIEND, 
 
 of married woman, suit by, 301 
 NEXT OF KIN, 
 
 suits by, 320 
 
 proceedings by, against executor or 
 administrator, 251 
 
 bill by, when no preliminary inquiry 
 directed, 381 
 
 when party to suit, 315, 316, 320 
 
 on failure of bequest, 33, 138 
 
 presumptive, of lunatic, 294, 295 
 
 advertisements for, 262 
 
 reference to Master as to, 379 
 NOMINATION. See Appointment. 
 NON COMPOS MENTIS, 
 
 when father, mother, or guardian is, 
 289 
 
 return of, 293 
 
 See Irnbecility ; Lunacy. 
 NON-DISCLOSURE, 
 
 equivalent to fraud, 179, 197 
 NOTE 
 
 of agreement, see Agreement. 
 
 action on, 168 
 
 of interrogatories in bill, 307, 311 
 See Security; Traversing Note. 
 NOTICE, 
 
 what amounts to, 157, 158, 159 
 
 of assignment, effect of, 53 
 
750 
 
 INDEX. 
 
 NOTICE— continued. 
 ofcharitable trust, purchaserwith, 69 
 of prior contract, 152 
 to abandon contract, 88 
 to pay mortgage money, 114 
 of claim, 150 
 of an equity, 151 
 of mesne equity, 163 
 to postpone equity, 161 
 of covenant, 152 
 of dower, 152, 153 
 of prior incumbrance not registered, 
 
 154 
 of undocketedjudgments, 155 
 under 3 & 4 Vict. c. 82, immaterial, 
 
 155 
 of breach of trust, 156 
 to purcliaser, of debts and legacies, 
 
 156, 157 
 of fraud, 157, 158, 159 
 
 purchaser denying, 159 
 as to title deeds, 158 
 given to trustees, 161 
 of motion, 348, 349,352 
 
 See Purchase. 
 NUISANCE, 210-212 
 NUMEROUS, 
 interested parties being, 319, 320 
 
 OATH 
 of defendant to plea, 341 
 defendant to answer on, 344 
 OBJECTIONS 
 to title waived, 87 
 to report to Master, 384 
 OBLIGATION, 
 
 joint and several, 172 
 OCCUPATION RENT, 232 
 OFFICE, 
 
 discovery as to, 3 
 OFFICERS 
 
 of Court of Chancery, 198, 199 
 OFFICIAL ACTS, 
 
 claims arising out of, 198, 199 
 OFFICIAL PERSONS, 
 
 discovery by, 7, 8, 344 
 ORDER 
 on further directions, 388 
 requiring act to be done, 394 
 irregularly made, 397 
 to take bill pro confesso, objections 
 
 to, 400 
 to stay proceedings pending appeal, 
 401 
 See Decree , Further Directions; 
 Interlocutory. 
 ORDERS IN COUNCIL, 
 
 printing, 214 
 ORIGINAL BILL, 
 in nature of revivor, 406 
 
 supplement, 410, 414 
 
 form of, 412 
 review, 416 
 See Supplemental. 
 OUSTER LE MAIN, 298 
 
 OUTLAW, 
 
 disability to sue, 331 
 OUTSTANDING 
 property, trustee of, 55, 56 
 estate, injunction against setting up, 
 
 129 
 terms, equity to have, removed, 249 
 impediment to ejectment, 378 
 See Assets; Terms. 
 OVERRULED, 
 
 plea, 342 
 OWNERS. See Shipowners; Spe- 
 cific Chattels; Title Deeds. 
 OWNERSHIP, 
 legal and equitable, 39, 40 
 equitable, to what subject, 42 
 
 of personal estate, how 
 transferred or changed, 
 53 
 devolution and transfer of, 49, 51 
 of trustee, 55 
 
 acts of, purchaser doing, 87 
 modified, of donee of power, 99 
 See Conversion. 
 
 PARENT, 
 
 'purchase by, 35 
 
 gift or legacy by, 104 
 
 children being creditors of, 105 
 
 consent of, to marriage, 289 
 PARISH, 
 
 charitable bequest to, apportionment 
 of, 76 
 
 inhabitants of, bill by, 321 
 PAROL, 
 
 trust by, 28 
 
 waiver by, 84 
 
 contracts relating to land, 85 
 
 agreement, possession upon, 86 
 
 evidence to reform conveyance, 171 
 See Evidence. 
 PARSON. See Modus; Tithes. 
 PARTIALITY 
 
 to vitiate award, 192 
 PART PERFORMANCE, 
 
 of parol contracts, 85 
 
 doctrine of, 86 
 
 what acts constitute, 86, 87 
 PARTIES, 
 
 generally, 312-324 
 
 defendants, who may be made, 20 
 
 defect of suit, in respect nf, 408 
 
 want of, as a defence, 331 
 demurrer for, 333 
 
 to suit, evidence of, as witnesses, 363 
 
 to supplemental bill, 414, 415 
 See Class; Numerous. 
 PARTITION, 
 
 generally, 229-232 
 
 suits for, costs of, 389 
 
 for an infant, 284 
 PARTNER, 
 
 rights of, 239-247 , 
 
 wnen party to suit as to partnership, 
 321 
 
INDEX. 
 
 751 
 
 PARTNER— continued. 
 retired, liability of, 173 
 accounts between, 244 
 death of, effect of, 173 
 deceased, interest in goodwill, 246 
 renewal of lease by, 60 
 PARTNERSHIP, 
 generally, 239-247 
 suits in behalf of, 320 
 bill as to, 309, 310, 321 
 suit for managing or dissolving, par- 
 ties to, 321,322 
 ^ contract for entering into, 82 
 land held by, trust as to, 35 
 debts owing by, 173 
 deed, covenants in, 240 
 plea denying, 337 
 receiver in cases of, 354 
 See3Jine$; Collieries. 
 PARTY 
 
 and party, costs as between, 391 
 PATENT, 
 statutes as to, 212 
 ex parte injunction as to, 355 
 disputed, infringement of, 378 
 right, 212, 213 
 See Infringement. 
 PAYMENT, 
 of principal or interest within twenty 
 
 years, 114 
 of purchase-money, 156 
 of rents, 238 
 
 forfeiture for want of, 109 
 into Court of balance in hand of 
 
 executor, 258, 259 
 into Court, order for, 349, 350-352 
 by plaintiff at law, 359 
 of money directed by decree, 394 
 contempt as to, 394, 395 
 See Debts; Purchase; Rents. 
 PEACE, 
 
 See Bill. 
 PEER, 
 privileges of, 326 
 being defendant, 311 
 PENALTY, 
 discovery as to, 2, 4, 5, 6, 343 
 equity for relief against enforcement 
 
 of, 107-109 
 statutes as to, 108 
 for non-performance of covenants, 
 
 108 
 for non-payment of money, 108 
 witness exposing himself to, 370 
 PENDENTE LITE, 331 
 suit pending, plea of, 336 
 receiver appointed, 352 
 injunction granted, 355 
 alienation, effect of, 408 
 administration, 410 
 PERFORMANCE 
 of trusts, suits for, costs of, 390, 
 391 
 See Acts; Fart Performance; Pen- 
 alty; Specific Performance. 
 
 PERPETUAL, 
 
 injunction made, 196 
 PERPETUATION, 
 of testimony, 23-25, 249 
 bill lor, 311 
 suits for, costs of, 389 
 See Purchaser. 
 PERPETUITY, 
 rule as to, 42, 43 
 PERSON, 
 
 of unsound mind, statutes relating 
 to property of, 285 
 default in appear- 
 ance of, 328 
 PERSONAL CHATTELS, 
 trust as to, 42 
 lien on, 126 
 PERSONAL ESTATE, 
 declaration of trust as to, 28 
 liabilities of, 94, 95 
 See Conversion. 
 PERSONAL REPRESENTA- 
 TIVE. 
 
 See Administrator ; Executor. 
 PETITION, 
 classes of, 348, 349 
 of right, 293 
 
 for preliminary decree, 375 
 to be heard with cause, 388, 408 
 to confirm report, 385 
 to have fund out of Court, 389 
 for rehearing or appeal, 396-401 
 
 form of, 399 
 service of copy of, 348, 349 
 PICTURES, 
 
 suit for recovery of, 92 
 PIN MONEY, 
 
 trust as to, 43, 46 
 PIRACY 
 
 of copyright, 214, 215 
 PLAINTIFF, 
 
 at law and in equity, 1, 2 
 interests of, 313 
 female, marriage of, 403, 404 
 becoming bankrupt, 409 
 PLEA, 
 generally, 336, 342 
 protection from discovery by, 3 
 of dismissal of bill, 373 
 puis darrein continuance, 402 
 to bill of revivor, 405, 407 
 PLEADING, 
 in Courts of equity, 299 
 at law, 299-301 
 
 in original suit, use of, in supple- 
 mental, 411 
 mistake in, 197 
 PORTION, 
 provisions for raising, 43 
 substituted, 101 
 
 double, presumption against, 104, 
 105 
 POSSESSIO FRATRIS,50 
 POSSESSION, 
 of plaintiff, document in, 12, 17, 18 
 
752 
 
 INDEX. 
 
 TOSSESSWN— continued, 
 of defendant, document in, 14 
 of documents, 350 
 
 suit for, 13 
 of deeds, protection by, 160 
 of trustees by construction, 62, 63 
 upon parol agreement, S6 
 purchaser taking, 86, 87 
 mortgagor in, 114 
 
 for twenty years, ef- 
 fect of, 114, 119 
 mortgagee in, 117, 118, 119 
 of receiver, 355 
 foundation of lien, 126 
 where evidence of fraud, 151 
 of estate of idiot or lunatic deceased, 
 298 
 
 See Seduction, into. 
 POSSESSORY RIGHT, 
 suit as to, parties to, 317 
 POSSIBLE INTEREST, 
 
 assignment of, 54, 55 
 POSTEA, 376 
 POSTPONEMENT- 
 
 of day of payment, 127, 128 
 POWER, 
 trust in form of, 29 
 in nature of trust, 100 
 to dispose of by will, 95 
 created by way of use, defective exe- 
 cution, 99, 100 
 of sale in mortgage, 121 
 of revocation, may render convey- 
 ance voidable, 146 
 of appointment, abuse of, 185 
 illusory appointment under, 185 
 of sale to pay debts, 255 
 
 See Appointment; Election; Pos- 
 session. 
 PRAYER, 
 of process, 302, 310, 311 
 
 how framed, 312 
 in supplemental bill, 414 
 in bill of revivor, 407 
 for relief, 302, 308-310 
 for general relief, 308, 309 
 for ne exeat, 360 
 to bill of revivor, 407 
 to supplemental bill in case of bank- 
 ruptcy or insol- 
 vency, 409 
 in nature of bill 
 of review, 419 
 to bill to impeach or set aside de- 
 cree for fraud, 419, 420 
 
 PRECATORY WORDS, 
 
 trust by using, 29, 30 
 PRELIMINARY, 
 
 accounts and inquiries, 380, 381 
 
 decree, 375, 380 
 See Interlocutory Orders. 
 PRESCRIPTION, 
 
 de non decimando, 236 
 
 de modo decimandi, 236 
 
 PRESENTATION, 
 
 to church, mortgage of, 120 
 PRESUMPTION, 
 of law, trust by, 27, 31, 33, et seq. 
 of waiver, 87 
 
 on purchase in name of another, 101 
 as to successive legacies or gifts, 
 
 103 
 against double portion, 104, 105 
 evidence in rebuttal or confirmation 
 
 of, 106 
 from enjoyment of tithes, 236 
 PRETENCE, 
 
 charge in bill, 303 
 PRICE. See Purchase. 
 PRINCIPAL, 
 liability of, discharge of, 106 
 in suit against agent, 220, 221, 222 
 and surety, contribution between, 
 
 269, 270 
 party to suit against surety, 319 
 money, payment of, within twenty 
 years, 114 
 
 See Afrent; Steward. 
 PRINTER, 
 
 Queen's, 214 
 PRIOR 
 mortgage, mortgagor bound to dis- 
 close, 122 
 incumbrance, not registered, 154 
 PRIORITIES, 
 generally, 145-162 
 of legal over equitable, 148, 256 
 decree to settle, 162 
 under mortgagor, as to redemption, 
 113 
 See Contribution; Exoneration; 
 Marshalling. 
 PRIVILEGE 
 
 of Peerage or Parliament, 326, 327 
 PROBATE 
 duty, effect of conversion as to, 139, 
 
 246 
 copy of will of personal estate, 248 
 fraudulently obtained, 248 
 grant of, opposition to, 249 
 litigated, 352 
 PROCEEDINGS 
 separate, by creditor, 259, 260 
 order to stay, 260 
 See Action; Suit. 
 PROCESS 
 generally, 324-330 
 of contempt to enforce answer, 326 
 performance 
 of decree, 
 326 
 effect of, 326 
 service of, abroad, 323, 327 
 present practice as to, 327-330 
 See Prayer. 
 PROCLAMATIONS 
 
 printing, 214 
 PRO CONFESSO, 
 taking bill, 327, 329, 374 
 
INDEX. 
 
 753 
 
 PRO CONFESSO— continued. 
 bill taken, rehearing of, 400 
 See Bill. 
 PRODUCTION OF DOCU- 
 MENTS, 12, 13 
 order for, 16, 349, 350 
 grounds for refusing, 16 
 in possession of plaintiff, 17, 18, 350 
 on reference to Master, 225, 382 
 allegations in bill to obtain, 305 
 on trial ofissue, 377 
 action, 378 
 PROFERT, 
 
 at law, doctrine of, 167, 168 
 PROFESSIONAL ADVISER, 6, 
 
 344, 370 
 PROFITS, 
 made by trustee, account of, 64 
 
 agent, 221,222 
 of partnersnip, division of, 244, 246 
 of partnership, inquiry directed as to, 
 
 246 
 of mine or colliery, suit for, 247 
 PROLIXITY, 
 of bill, 306 
 of answer, 11 
 PROMISE, 
 consideration, basis of, 97 
 verbal, that agreement be altered, 
 
 84 
 inter vivos, followed by gift or le- 
 gacy, 104, 105 
 
 See Consideration. 
 PROOF, 
 
 production of documents for, 305 
 PROSECUTION, 
 
 bill dismissed for want of, 347, 373 
 PROTECTION, 
 of documents from production, 15 
 See Discovery. 
 PROVISION, 
 legacy construed as, 101, 103 
 purchase construed as, 101 
 PUBLIC, 
 interest, discovery to prejudice, 8 
 purposes, trust for, 65, et seq. 
 company, shares in, sale of, 83 
 
 restraining order against, 
 358 
 trust, suit as to, parties to, 313 
 PUBLICATION, 
 in suit to perpetuate testimony, 25 
 of depositions taken de bene esse, 
 
 25 
 application to enlarge, 371 
 passing, 367, 371 
 passed, new evidence after, 371 
 PUNISHMENT, 
 
 discovery leading to, 3 
 PURCHASE, 
 parol agreement for, possession un- 
 der, 86 
 in name of another, 101 
 without notice, equity originating in, 
 159 
 
 48 
 
 TVRCKASE— continued. 
 without notice, plea of, 162 
 for valuable consideration, plea of, 
 337 
 
 See Conversion. 
 PURCHASE-MONEY, 
 resulting trust from, 33-35 
 parol evidence to prove payment of, 
 
 being trust fund, 143, 144 
 
 application of, 155 
 
 repayment of, in case of mistake, 
 
 190 
 interest on, 88 
 See Compensation. 
 PURCHASER, 
 rights of, under Registry Acts, 153, 
 
 154 
 for value without notice, 37 
 without notice of no debts, 156, 157 
 not compelled to 
 
 discover, 160 
 bill to perpetuate 
 testimony 
 against, 162 
 with notice, 273 
 
 of charitable trust, 69 
 having notice of undocketed judg- 
 ments, 155 
 undocketed judgment as against, 
 
 155 
 in possession. 86 
 of realty, right as to title, 87 
 equitable lien of, 122, 126-129 
 how judgments operate against, 131 
 grants void against, 145 
 getting in term, 52 
 having acquired, conflicting rights, 
 
 53 
 under trust for sale, 155, 156 
 debtor for his purchase-money, 352 
 See Money ; Vendee. 
 
 QUARRIES, 
 
 working, injunction against, 210 
 QUEEN CONSORT, 
 
 suit as to right of, 313 
 QUO W^ARRANTO, 
 
 discovery subjecting to, 3 
 
 RAILWAY 
 
 company, injunction against, 211 
 
 shares, 265 
 REAL ESTATE, 
 
 declaration of trust as to, 28 
 
 resulting trust as to, 31 
 
 specific performance as to, 85 
 
 judgment, charge on, 132 
 See Lien ; Conversion. 
 REBELLION, 
 
 writ of, 325 
 
 abolished, 328, 393 
 RECEIPT, 
 
 by trustees, 58 
 
 by executors, 58 
 
754 
 
 INDEX. 
 
 RECEIPT— continued. 
 
 trustee's, a discharge, 156 
 RECEIVER, 
 right of equitable mortgagee to, 122, 
 
 123 
 legal mortgagee cannot have, 122 
 depositee of deeds entitled to, 125 
 creditor's right to appointment of, 
 
 129 
 in suit to wind up partnership, 243 
 right of tenant in common of mines, 
 
 &c., to, 247 
 in administration suit, 259 
 bill for appointment of, 281, 284 
 of the estate of ward, 284 
 lunatic, 293 
 
 duty of, 293, 
 
 294 
 security by, 
 294 
 order for appointment of, 349, 352- 
 
 355 
 Master to appoint, 380 
 accounts of, 225 
 RECOGNISANCE, 
 person bound by, 123 
 debts by, priority of, 252 
 memorial of, 154 
 RECOMMENDATORY WORDS, 
 
 trust by use of, 29, 30 
 RECONVERSION, 
 
 what, 136, 137 
 RECONVEYANCE, 
 by mortgagee, 115 
 by substitution by order of Court, 
 116,117 
 RECORD, 
 plea of matter of, 341 
 what constitutes, 347, 396 
 RECTIFICATION, 
 of clerical slip in order, 396, 397 
 of defect in bill, 403 
 RECTOR, 
 right to an issue as to modus, 377 
 costs of, in suit to estabhsh modus, 
 390 
 REDEMPTION, 
 clause of. 111 
 right to sue for, 113 
 right of, restriction of, 112 
 suit for, 112-120 
 suits for, or in nature of suits for, 
 
 costs of, 390 
 expenses of, 115 
 of escheated estate, 115 
 See Equity of. 
 REDUCTION INTO POSSES- 
 SIGN, 
 assignment equivalent to, 142 
 RE-ENTRY, 
 clauses of, 109 
 RE-EXAMINATION, 
 after publication, 372, 383 
 See Examination^ 
 RE-EXECUTION, 166, 168 
 
 REFERENCE 
 to Master, 379-387 
 
 See Ariitrator; Auditor; Master. 
 REGISTER 
 of judgment, 132 
 acts, 153 
 See Conveyance. 
 REHEARING, 
 generally, 388, 396-401 
 on supplemental bill, in nature of 
 
 review, 419 
 and hearing on supplement and re- 
 view, 418, 419 
 REGISTRATION, 
 under 1 & 2 Vict. c. 110-155 
 of deed, not notice, 157 
 of judgment, not notice, 157 
 RELATIONS, 
 
 trusts for, 29, 66 
 RELATOR, 
 
 bill and information by, 302 
 RELEASE 
 of trustee to co-trustee, 37, 38 
 
 when trust at an end, 59 
 decree for execution of, 106 
 executed under mistake, 188 
 under seal, plea of, 337 
 plea of, 338 
 RELIEF. See Prayer far. 
 REMAINDERMAN, 
 quasi heir, 99 
 bargain with, 186 
 after estate tail, when party to suit, 
 
 315,316,411 
 bill of supplement and review by, 
 419 
 RENEWAL. See Lease. 
 RENT, 
 intermediate, 88 
 payment of, covenant for, 109 
 
 statute as 
 to, 109 
 payment of, bill to obtain, 237, 238 
 mortgagor entitled to, 114 
 creation of, in partition, 231 
 to co-owner, 232 
 
 bygone, heir or devisee charged 
 with, 263 
 See Bill. 
 RENUNCIATION 
 
 of trust, how evidenced, 37 
 REPAIR, 
 covenant to, 83, 109 
 contract to, 83 
 mortgagee in possession bound to, 
 
 117, 118 
 by co-tenant, 267, 268 
 REPLICATION, 
 effect of, 20 
 to plea, 342 
 to answer, form of, 347 
 
 omission to file, 347 
 REPORT 
 of Master, 225, 226, 383, 384-387 
 in lunacy, 294 
 
INDEX. 
 
 755 
 
 REPORT— continued. 
 of Master, as to sufficiency, 345 
 
 exceptions to, 345 
 warrant of Master for preparing, 
 
 383 
 separate, 385 
 REPRESENTATION, 
 fraud by, 176, 177, 178 
 REPRESENTATIVES 
 of party chargeable, bill of revivor 
 and supplement against, 407 
 See Administrator ; Executor. 
 RESCISSION, 175-193 
 RESERVATION 
 
 of rent in lease, 174 
 RESIDUARY BEQUEST, 264 
 RESTRAINING ORDER 
 
 as to stocks and dividends, 358 
 RESTS IN ACCOUNTS, 
 as to allowing, against morlgageein 
 possession, 118, 119 
 RESULTING TRUSTS 
 generally, 27, 32, 33 
 in case of uncertainty, 29, 32, 69 
 by presumption of law, 31 
 effect of, 33 
 for a purchaser, 101 
 See Conversion. 
 RETAINER 
 in nature of set-off, 223 
 of bill, see Bill. 
 RETIREMENT 
 of trustee, 38, 39 
 RETURN 
 of commissioners for assignment of 
 dower, 380 
 settUng boun- 
 daries, 380 
 partition, 231 
 de lunatico in- 
 quirendo,292 
 by sheriff to writs, 324, 325, 328, 
 394 
 REVERSAL 
 
 of decree or order, 396, 397, 417 
 REVERSION, 
 
 dry, mortgage of, 120 
 REVERSIONARY INTEREST 
 
 of wife, 142 
 REVERSIONER, 
 bargain with, 186 
 REVIEW, 
 bill of, 416, 417 
 
 in nature of, 416 
 of, form of, 418 
 
 leave to file, 417, 418, 419 
 statement in, of leave obtain- 
 ed to file, 418 
 of Master's report, 387 
 REVIVOR, 
 bill of, 402. 403-408 
 
 form of, 405, 407 
 who may file, 403-407 
 and supplement, bill of, 408 
 
 REVOCATION, 
 power of, may render conveyance 
 voidable, 146 
 See Power. 
 RIGHT, 
 assignment of, 54 
 bill of peace as to, 199-202 
 general, ascertained, injunction 
 
 granted on bill of peace, 200 
 legal, of plaintiff in injunction suit, 
 tried at law, 217 
 RISK, 
 
 indemnity against, 91 
 RULE. See Decree. 
 
 SALE 
 in case of mortgage by deposit, 125 
 Welsh mortgage, 125 
 mortgage by trust, 126 
 of lien, 128 
 of property mortgaged, 120, 261 
 
 suits for, costs 
 of, 391 
 power of, in mortgage, 121 
 with power to repurchase, 111 
 trustee for, .55 
 on equitable elegit, 130 
 trust for, operating as conversion, 
 
 139, 140 
 and conversion of partnership estate, 
 
 244 
 of land, contract for, considered as 
 
 performed, 140 
 bona fide, after prior grant, 146 
 injunction against, 144, 146 
 for satisfaction of debts, 2.53, 255 
 Master to superintend, 379, 380 
 See Auctio7i ; Bargain ; Condi- 
 tion ; Conversion. 
 SCANDAL 
 in bill, 306 
 in answer, 343 
 See Impertinence. 
 SCHEDULE 
 in answer, of documents, 16, 344, 349 
 to answer, 344, 345 
 
 how referred to, 345 
 SCHOOLS. See Grammar Schools. 
 SCULPTURES, 
 
 protection to, 214 
 SEAL, 
 contracts under, see Discharges. 
 securities not under, 167 
 SEARCH 
 for deed or judgment, presumed 
 notice, 157 
 SECURITY, 
 trust property on, 56 
 conveyance being, right to redeem, 
 
 111, 112 
 collateral, mortgagee selling on, 119 
 
 in case of lien, 128 
 imperfect, what is, 122 
 sheriff to seize, 131 
 negotiable, lost, 167 
 
756 
 
 INDEX. 
 
 SECURITY— continued. 
 
 under writ of ne exeat, 360, 361 
 See Instrument ; Mortgage. 
 SEPARATE 
 
 account, 388 
 
 property, wife's power over, 45 
 
 trust, language creating, 45 
 
 use, trust for, 43, 44, 289 
 SEPARATION, 
 
 deed of, 44 
 SEQUESTRATION, 
 
 writ of, 325, 394, 395 
 
 nisi, 326 
 
 in default of answer, 329 
 SEQUESTRATOR 
 
 authorized by writ of sequestration, 
 325 
 
 power of, to seize and dispose of 
 documents, 395 
 SERJEANT AT ARMS, 325, 328, 
 
 329, 394 
 SERVICE 
 
 of subpoena, 324, 327, 328 
 
 abroad, 327 
 
 of copy of petition, 348, 349 
 of decree, 394 
 
 to Mill, bill of peace as to, 199 
 SET-OFF, 
 
 right of, 222 
 
 tried at law, 222 
 when tried in equity, 222, 
 223 
 
 statutes of, 222 
 SETTLEMENT, 
 
 articles for, 41, 42 
 
 wife's equity for, 43, 47, 48 
 
 waiver of, 48 
 
 children's right to, 48, 49 
 
 correction of, 171 
 
 on marriage of ward, 288 
 
 affecting parties to suit, to revive, 
 408 
 SEVERANCE. See Partition. 
 SHARES, 
 
 fi. fa. cannot operate on, 130, 131 
 
 judgment, charge on", 132 
 
 of partners, sale of, 242 
 SHERIFF, 
 
 duties under 1 & 2 Vict. c. 110, 131 
 
 division by, on partition, 230 
 See Writ. 
 SHIP, 
 
 subject of tenancy in common, 233 
 
 repairs of, 268 
 
 jurisdiction as to, in Court of admi- 
 ralty, 233 
 See Average. 
 SHIP-OWNERS, 
 
 responsibility of, act limiting, 206, 
 207 
 
 liberty of, to employ ship, 233 
 SIMONY, 
 
 discovery as to, 3 
 SIMPLE CONTRACT, 
 
 debt maybe tacked, 164 
 
 SIMPLE CONTRACT— continued. 
 
 debts on, priority of, 252 
 SOCIETIES. See Friendly. 
 SOLICITOR, 
 communications with, 6, 7 
 trustee being, 61 
 notice to, 157 
 
 mistake of, correction of, 170 
 jurisdiction over, 349 
 and client, costs as between, 391 
 See Attorney. 
 SOLICITOR-GENERAL, 
 complaint preferred by, 301 
 SPEAKING DEMURRER, 335 
 SPECIAL 
 circumstances, liberty to slate, 384, 
 385 
 issue found with, 376 
 verdict, 376, 385 
 case, 376 
 
 injunction to restrain proceedings, 
 195, 198, 359 
 SPECIALTY, 
 debts by priority of, 252 
 creditors by, rights of, by statutes, 
 
 253, 254 
 decree for delivery and cancellation 
 of, 106 
 
 See Discharge. 
 SPECIE, 
 enforcement of contractin, 82, et seq. 
 S6e Specijic JPerfortnance. 
 SPECIFIC 
 allegations in bill, 305 
 chattels, order directing to be deli- 
 vered up or secured, 91 
 devise, what is, 265 
 legatee, rights of, to be exonerated, 
 265 275 
 SPECIFIC PERFORMANCE, 
 generally, 77-92 
 bill for, receiver on, 354 
 ne exeat on, 360 
 inquiry on, 381 382 
 evidence on, 362 
 costs of, 391, 392 
 reference in suit for, 380 
 of contract to convey, 123, 146 
 SPLITTING UP, 
 cause of suit, 331 
 STAKEHOLDER, 
 protection of, 202 
 STATE, 
 matter of, discovery as to, 344 
 of facts before Master, 383 
 STATED ACCOUNT, 
 effect of, 226 
 when opened, 226, 227 
 STATEMENT 
 in bill, 302-303 
 STATUTE 
 of Frauds, 27, 28, 84, 85, 123, 125, 
 129, 171, 254 
 declaral ion of trust under, 
 27,28 
 
INDEX. 
 
 757 
 
 STATUTE — continued. 
 of Frauds, requirements of, not com- 
 plied with, 86 
 plea of, 337 
 of Distributions, relations within, 29 
 of Limitations, 173, 227, 258 
 plea of, 337 
 of actions and suits, 
 69, 234, 235 
 of guardianship, 280 
 of interpleader, 203 
 of Merton, 234 
 of partition, 229, 230 
 of set-off, 222 
 
 as to Court of Chancery, 327 
 service abroad, 327 
 contempts, 394, 395 
 taking bill pro' confesso, 326, 
 
 327 
 custody of infants, 283, 284 
 property of persons not sui 
 
 juris, 285, 295 
 lunatics, 291, 292 
 traverse of inquisition, 293 
 joint stock companies, 242 
 submission to arbitration, 192 
 193 
 for improvement of law of evidence, 
 
 363 
 making real estate assets, 253. 254, 
 
 275, 276 
 debts by, priority of, 252 
 persons bound by, 123 
 memorial of, 154 
 lectures protected by, 213 
 STEWARD, 
 bill for account by, against em- 
 ployer, 221 
 See Agent. 
 STIPULATED PAYMENT 
 
 held penal, 108 
 STOCK, 
 sale of, 83 
 mortgage of, 120 
 fi. fa. cannot operate on, 130, 131 
 judgment, charge on, 132 
 belonging to infant, 286 
 
 lunatic, 296 
 transfer of, into Court, 352 
 distringas as to, 357, 358 
 See Payment into Court. 
 STOCKJOBBING, 
 
 discovery as to, 6 
 STRANGER, 
 
 purchase in name of, 102 
 SUBMISSION 
 to arbitration made rule of Court, 
 statutes as to, 192, 193 
 SUBPCENA, 
 
 writ of, prayer for, 308, 310, 311 
 service of, 324 
 substituted service of, 324 
 to hear judgment, 373 
 to revive suit, prayer for, 407 
 
 SUBPCENA— con(tBiied. 
 in nature of scire facias, to revive 
 
 decree, 406 
 for costs, 394 
 SUBSTITUTION 
 by Court, of persons to convey, 37, 
 39 
 SUBTRACTION 
 of tithes, 235, 236 
 SUFFICIENCY 
 of plea, 341, 342 
 of answer, 345 
 SUIT, 
 discovery in aid of, 18, 19, 23 
 defence in, discovery in aid of, 9 
 by trustee for direction, 59 
 
 costs of, 64, 
 65 
 for foreclosure, 112, 113 
 for redemption, 112 
 separate, for administration, 259, 
 
 260 
 by one on behalf of himself and 
 others, 319, 320 
 See Bill ; Priorities ; Statute of 
 Limitations. 
 SUPERSTITIOUS USE, 
 
 trust for, 67 
 SUPPLEMENTAL 
 bill, 402, 403, 408-415 
 form of, 414, 
 and bill of revivor, 408 
 bill in favour of, form of, 412, 
 
 414 
 in nature of bill of review, 416, 
 
 418,419 
 added to bill of review, 418 
 necessary party added by, 412 
 answer, 347 
 
 See Bill ; Original. 
 SUPPRESSION 
 
 of depositions, 370,372 
 SURCHARGE AND FALSIFY, 
 
 liberty to, 227 
 SURETIES,, 
 rights of, 269, 270 
 
 between themselves, 268, 
 269 
 and principal, 
 269, 270 
 of committee or receiver, 294 
 suit against, parties to, 319 
 discharge of, 106 
 SURETYSHIP, 
 bond of, 172 
 fraud as to, 179 
 SURPLUS, 
 
 right to, 139 
 SURPRISE, 
 
 inrolment of decree vacated on, 397 
 SURRENDER 
 of copyhold, equity for supplying, 
 
 98 99 
 decree for, 394, 395 
 
758 
 
 INDEX. 
 
 SURRENDER— coMiOTMCfZ. 
 by Master instead of party in con- 
 tempt, 395 
 See Copyhold. 
 SURVIVING ■ 
 interest in suit, 404 
 See Revivor. 
 
 TACKING, 
 
 doctrine of, 162-165, 271 
 TAXATION 
 
 of costs, 391 
 TENANTS, 
 
 bill of peace by or against, 199, 200 
 interpleader by, 204 
 See Joint Tenants. 
 TENANTS IN COMMON, 
 
 partition by, 229 
 
 right to receiver of, 354 
 See Ship. 
 TENANT FOR LIFE, 
 
 lease by, 3, 4 
 
 waste by, 4 
 
 whether defendant is, discovery as 
 to, 4 
 
 renewal of lease by, 50 
 
 partition by, 230 
 
 and remainderman, suit against, 411, 
 412 
 
 decree against, reversal of, 419 
 TENANT IN TAIL, 
 
 leases or conveyances by, 99 
 
 charge paid off by, 270 
 
 party to suit, 315, 316 
 
 born pending suit, 411, 412 
 
 bound by previous proceedings, 412 
 TENANT FOR YEARS, 
 
 partition by, 230- 
 TENDER 
 
 to save costs, 21, 393 
 TENEMENTS, 
 
 contract or sale of, 85 
 TERMS, 
 
 satisfied attendance of, 51,52,159,160 
 
 in gross, 52 
 
 outstanding, assignment of, 159 
 
 equity to have removed, 249 
 TESTAMENTARY 
 
 assets, administration of, 248-266 
 
 expenses, what, 261 
 TESTIMONY. See Perpetuation. 
 THEATRE, 
 
 engagement to perform at, 81 
 
 patent to keep, 213 
 TIMBER, 
 
 directions for preservation of, 43 
 
 cut by guardian or trustee, 142, 143 
 stranger, 143 
 
 mortgagor restrained from cutting, 
 114 
 
 felling, injunction against, 210 
 
 blown down by accident, 143 
 See Waste. 
 TIME 
 
 to make out title, 85, 87, et seq. 
 
 TIME— continued. 
 not of essence of contract, 88 
 lor payment, contract to give, 107, 
 
 126, 127 
 applications for, to Master, 380 
 TITHES, 
 jurisdiction as to, 235, 236, 237 
 bill of peace as to, 199 
 subtraction of, 235, 236 
 Commutation acts, 237 
 See Modus. 
 TITLE 
 to real estate, in bill for specific per- 
 formance, 84 
 on purchase of realty, 87 
 time to make out, 85, 87, et seq. 
 objections to, waived, 87 
 proved bad, 87 
 how perfected in equity, 160 
 reference to Master as to, 379 
 of plaintiff when bill filed, 412,413 
 of defendant on bill of interpleader, 
 inquiry as to, 206 
 See Defects; Evidence. 
 TITLE DEEDS, 
 order directing, to be delivered up 
 
 or secured, 91 
 inspection of, in hands of mortgagee, 
 
 115 
 deposit of mortgage by, 123-125 
 right of detainer of, 124 
 notice as to, 158 
 
 possession of, protection by, 160 
 TORT. See Injunction against. 
 TRADE, 
 trust fund used in, 64 
 secret of, injunction against use of, 
 216 
 TRANSFER 
 of trust, 32, 53 
 of equitable interest, 53 
 of interest in suit, effect of, 408-410 
 of stock, restraining order as to, 358 
 when breach of trust, 38 
 substantial, for specific performance, 
 
 90 
 decree for, 394, 395 
 by Master instead of party in con- 
 tempt, 395 
 TRAVERSE, 
 matter of right, 293 
 of inquisition, 292 
 general, in answer, 343 
 special, in answer. 344 
 of statement in bill of review, 418 
 TRAVERSING NOTE, 329 
 TREASON. See Attainder. 
 TRESPASS, 
 action of, 91, 209 
 remedy at law for, 209, 210 
 as to mine or colliery, injunction 
 against, 247 
 See Destructive Trespass. 
 TRESPASSER, 
 at law, 86 
 
INDEX. 
 
 759 
 
 TRIAL. See New Trial. 
 TROVER, 
 
 action of, 91 
 TRUSTEES, 
 who called, 26-27 
 duties and responsibilities of, 55, ct 
 
 seq. 
 by operation of law, 143 
 by construction of equity, 62, 81, 97, 
 
 102, 115, 143 
 claims against, 69 
 by misrepresentation, 150 
 retiring, 38, 39 
 
 desirous ofbeing discharged, 61 
 compelled to act, 61 
 restrained, 61 
 removed, 61 
 another appointed, 61 
 incapacitated, 81, 349 
 refusing to convey, 37 
 careless or negligent, 151 
 abusing trust, 352, 353 
 defaulting, contribution between, 
 
 268 
 acquiring benefit, 59, 60, 61, 183 
 being a solicitor, 61 
 nomination of, by Court, 36-37 
 appointment of, by Court, 37, 38, 39 
 authorized by Court, act by, 143 
 conveyance by substitution to, 37, 81 
 trusts shall not fail for want of, 36 
 how may divest themselves of trust, 
 
 37, 38 
 may deal with cestui que trust, 60, 
 
 184 
 for sale, 155 
 
 or purchase, sale or pur- 
 chase by, CO, 183, 184 
 of ward, 284 
 
 of stock, moneys, &c., 39 
 attainder of, 50 
 
 on death of cestui que trust, 50 
 death of, without heirs, 50 
 notice to, of conveyance, 161 
 
 of transfer, 53 
 person in, nature of, 352 
 when executor is, 251, 252 
 
 purchaser is, 352 
 property unduly changed by, 142, 
 
 143 
 enjoined from committing breach of 
 
 trust, 207 
 inquiry as to wilful default of, 221 
 promise by legatee to stand, 248 
 consent of, to marriage, 186 
 ejectment by, 194 
 parties to suit as to breach of trust, 
 
 319 
 representing cestui que trust in suit, 
 
 316, 317 
 suit against, parties to, 318 
 right of, as to costs, 61 
 costs of, in suits for performance of 
 
 trusts, 390 
 
 See Conversion. 
 
 TRUST, 
 generally, 26-76 
 
 acceptance of, how evidenced, 37 
 mortgage of, 122 
 
 deed in nature of mortgage, 122, 126 
 to pay debts, 255 
 notice of, effect of, 152 
 set-off in case of, 223 
 estate of debtor, operation of elegit 
 on, 131 
 made assets, 254 
 title to, how perfected in 
 
 equity, 160, 161 
 disentailing of, 50 
 in an infant, 285 
 suits for performance of, costs of, 
 
 390, 391 
 concealment of ground for bill of re- 
 view, 419 
 equity under, 149 
 
 operation under, of equitable con- 
 version, 135, et seq. 
 countermanded, a reconversion, 136, 
 137 
 See Conversion; Declaraiion; 
 Statute of Frauds. 
 
 UNCERTAINTY, 
 
 gift void on ground of, 67, 69 
 UNDERWRITERS, 
 
 contribution between, 269 
 See Averai^e. 
 UNIVERSITIES, 
 
 privileges of, 331 
 
 privileges of, as to printing and 
 copyright, 214 
 UNSOUND. MIND. See Persons 
 
 of. 
 USURIOUS CONTRACT, 
 
 discovery as to, 3 
 USE. See Separate Use. 
 USEFUL OBJECTS, 
 
 trusts for, 65 
 
 VALIDITY 
 
 of patent, 213 
 
 of will of personal estate, 248 
 real estate, 249 
 VALUE, 
 
 rent below, notice of fi-aud, 159 
 See Compensation. 
 VALUABLE. See Consideration. 
 VARIATION 
 
 of decree, effect of, as to costs, 400 
 VENDEE, 
 
 death of, effect of, 140, 141 
 VENDITIONI EXPONAS, 
 
 writ of, 395 
 VENDOR 
 
 allowed time, 89 
 
 equitable lien of, 122, 126-129 
 
 death of, effect of, 140 
 
 ejectment by, 194 
 
760 
 
 INDEX. 
 
 VERDICT 
 
 at law, 300 
 
 on issue directed, 376, 377 
 VICAR, 
 
 right to an issue on modus, 377 
 
 costs of, in suits to establish modus, 
 390 
 VIVA VOCE 
 
 examination before Master, 382 
 VISITOR 
 
 of corporation, 74, 75 
 
 being trustee, 75 
 VOLUNTARY 
 
 conveyance, &c., 153 
 
 gift, 147 
 
 equity under, 149 
 
 grant, 146 
 
 promise, 79 
 See Bounty. 
 
 WAIVER, 
 
 parol, 84 
 
 of penalty, 5 
 
 of right to call for title, 87 
 
 of forfeiture in suit for tithes, 235 
 
 evidence of, 87 
 WARD 
 
 of Court, bill to make an infant, 281 
 
 education of, 282-284 
 
 management of estate of, 284-290 
 
 guardian taking benefit from, 184 
 See Infant. 
 WARDSHIP, 
 
 incidents of, 281 
 WARRANT 
 
 of Master, 382, 383 
 
 for preparing report, 383, 384 
 WARRANTY. 
 
 representation by way of, 178, 179 
 WASTE, 208, 209, 355, 356 
 WELSH MORTGAGE, 122, 125, 
 
 126 
 WEST INDIAN MORTGAGE, 
 
 112 
 WIDOW 
 
 entitled to dower, bound to elect, 
 94 
 
 right of, as to revivor, 404, 405 
 WIFE, 
 
 duty of maintaining, 97 
 
 chose in action of, assignment of, 
 142 
 
 right of survivorship of, 142 
 See Feme Covert. 
 WILFUL DEFAULT, 
 
 inquiry as to, against trustee, mort- 
 gagee or agent, 221 
 WILL, 
 
 validity of, jurisdiction as to, 175, 
 248 
 
 jurisdiction to declare, established, 
 249 
 
 WILL — continued. 
 
 trusts created by, '27, 249 
 
 resulting trusts by, 32 
 
 mistake in, 172 
 
 to be registered, 153 
 
 proof of execution of, on issue di- 
 rected, 249, 250 
 
 fraud used in obtaining, 175, 248 
 
 execution of power by, 100 
 
 of feme covert judicially non exist- 
 ent, 93 
 
 construction of, as to trusts, 41, 42 
 
 bill to perform trusts of, 249 
 
 administer assets under, 249 
 
 suit to establish, costs of, 390 
 
 void under late Will act, 93 
 
 made before late Will act, 94 
 
 Act, as to copyholds, 98, 99 
 
 residuary devise, 265 
 See Election. 
 WITNESS, 
 
 competent, 364 
 
 evidence of one only, 21 
 
 attesting, to will, examination of, 
 249, 250, 373 
 
 defendant examined as, 363-365 
 
 plaintiff incompetent as, 365 
 
 mode of examining, 369-371 
 
 signature of, to examination, 370 
 
 objection of, to interrogatory, 370 
 
 evidence to discredit, 371 
 See Commission; Evidence. 
 WOODS. See Timber. 
 WORK, 
 
 contract to do, 83 
 
 done, account of, 224 
 WRIT 
 
 of assistance, 393, 394 
 
 of attachment, 325, 393 
 
 with proclamations, 
 325, 328, 393 
 
 of distringas, 357, 393 
 
 of dower, 234 
 
 unde nihil habet, 234 
 
 of error, 300,301 
 
 of execution, 393, 394 
 
 of injunction, 311 
 
 de lunatico inquirendo, 292 
 
 of melius inquirendum, 292 
 
 ofne exeat regno, 311,349, 360, 361 
 
 of partition, 229, 230 
 
 of rebellion, 325, 328,393 
 
 of sequestration, 325, 393 
 
 of subposna, 308, 310, 311 
 
 of venditioni exponas, 395 
 
 delivery of, 131 
 
 See Elegit; Fieri Facias. 
 WRITING, 
 
 trust by, 28, 143 
 
 agreement in, under Statute of 
 Frauds, 85, 86 
 
 instrument in, extrinsic evidence a 
 to, 103, 104. 
 
 FINIS.